Karnataka High Court
P P Arun Bhaskar vs State Of Karnataka on 19 September, 2014
Author: Mohan .M. Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF SEPTEMBER 2014
PRESENT
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR
Criminal Appeal No.564/2010
BETWEEN:
P.P.Arun Bhaskar
S/o Bhaskaran Nair
Aged about 31 years
Occupation- Advocate
R/at Nair Aronima-Emeilima
Kalpetta Post
Wynad Dist.
Kerala State
..Appellant
(By Sri Hashmath Pasha, Adv.,)
AND :
State of Karnataka
By Nanjangud Rural Police
Mysore District
2
(Represented by learned
State Public Prosecutor)
..Respondent
(By Sri B.T.Venkatesh, Addl. SPP.,)
This Criminal Appeal is filed under Section 374 (2) of
Cr.P.C praying to set aside the judgment and order of
conviction dated 24.04.2010 and sentence dated
27.04.2010 in S.C.No.100/2007 passed by the Fast Track
Court-III, Mysore convicting the appellant/accused for the
offence punishable under Section 302 of Indian Penal Code.
This Criminal Appeal having been heard and reserved
for judgment, coming up for pronouncement of Judgment
this day, MOHAN .M. SHANTANAGOUDAR .J., delivered
the following.
JUDGMENT
The Judgment and Order of conviction dated 24th April 2010 passed by the Fast Track Court-III, Mysore in S.C. No.100/2007 is called in question in this appeal by the convicted accused. By the impugned Judgment, the trial Court has convicted the appellant/accused for the offence under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/-. 3
2. Case of the prosecution in brief is that the deceased Miss. Presin Susan had intimacy with the accused; the said Presin Susan was working in M/s Fazal Agency of BSNL, Kalpetta, Kerala State; the dead body of Presin Susan was found lying in the land of one Govinde Gowda of Elachagere village on 22.11.2006; the Police on getting the information that the unknown dead body was lying in the land of Govinde Gowda, rushed to the spot at 2.00 p.m on 22.11.2006 and found the dead body of the female; the Police suspected that the said female was murdered by some unknown person for unknown reason; PW.3 lodged the information as per Ex.P3 against unknown person in respect of unknown dead body; based on the said Ex.P3, the PSI of Nanjangud Rural Police Station (PW.54) registered Crime No.380/2006 for the offence punishable under Section 302 of IPC and first information report was sent to the jurisdictional Magistrate as per Ex.P30; during the course of investigation, it was found that the dead body 4 was that of Miss. Presin Susan; that the accused had monetary transaction with the deceased and in order to overcome repayment of money, the accused brought the victim in the car on 21.11.2006 from Kerala State to Karnataka State and caused her death by strangulation; Police after completion of investigation laid the charge sheet for the offences under sections 302 and 201 of IPC; the trial was held in S.C. No.100/2007 by the Fast Track Court-III, Mysore.
In order to prove its case, the prosecution in all examined 60 witnesses and got marked 41 Exhibits and 15 material objects. On behalf of the defence, 7 Exhibits were got marked.
On evaluation of the material on record and upon hearing, the trial Court convicted the accused for the offence under Section 302 of IPC and sentenced him to 5 undergo imprisonment for life and to pay a fine of Rs.10,000/-.
3. Sri Hashmath Pasha, learned advocate appearing on behalf of the appellant taking us through the entire material on record and the Judgment of the Court below submits that the case rests on circumstantial evidence; the trial Court is not justified in permitting the Prosecutor to once again conduct further examination-in-chief of certain important witnesses after recording of the entire evidence of such witnesses; Permitting the Prosecutor to conduct examination-in-chief of certain witnesses even after completion of cross-examination by the accused is improper and incorrect inasmuch as the witnesses would definitely tend to overcome the defects, if any, found in the evidence already recorded; the evidence of PWs.25 and 42 should not have been relied upon by the trial Court inasmuch as both the witnesses were interested to depose against the 6 accused; the seizure of watch from the spot of offence is unbelievable inasmuch as the evidence of PW.6 (father of the accused) does not support the same; the time of death of the deceased does not tally with the time of offence mentioned in the charge; the doctor PW.43 who conducted post-mortem examination over the dead body has deposed that the time of death may be about 8 to 12 hours prior to the post-mortem examination; the post-mortem examination was conducted in between 7.00 p.m. and 9.00 p.m. on 22.11.2006, which means that the offence must have taken place after 10 a.m. on 22.11.2006 and not during the night intervening between 21.11.2006 and 22.11.2006. But the case of the prosecution is that the incident had occurred in between 8.30 p.m. and 11.30 p.m. on 21.11.2006; the call details marked at Ex.P37 through PW.60 do not support the case of the prosecution and on the other hand, the same support the case of the defence. He further submits that the time of death as per the 7 evidence of the doctor rules out the possibility that the accused was present in the company of the deceased at or around the time of death; the watch which was stated to have been worn by the accused and which was found lying on the spot did not have any specific identification mark; such watches are available in the market; since there is no specific identifying mark on the watch to show that the same belongs to the accused, the trial Court is not justified in convicting the accused. He further submits that none of the circumstances relied upon by the prosecution are proved; one or two circumstances though are proved against the accused by the prosecution, did not complete the chain of circumstances so as to unerringly point towards the guilt of the accused. On these among other grounds, he prays for reversal of the Judgment of the Court below.
Per contra, Sri Venkatesh, learned SPP argued in support of the Judgment of the Court below. He submits 8 that PW.42 being the wife of the accused did not have animosity against the accused as on the date of the incident in question and as on the date of recording of her statement by the Police during the course of investigation; she was admitted to the hospital as on the date of the incident in question and that the accused was very much with her till the morning of 21.11.2006; This clearly goes to show that the accused and PW.42 were living with each other as husband and wife and therefore the contention of the appellant that PW.42 had animosity with the accused is not correct. Learned SPP further submits that PW.6 being the father of the accused naturally would depose in favour of the accused to the effect that the watch which was seized from the spot is not belonging to the accused; the deceased left the company of PW.42 in the morning of 21.11.2006 from the hospital and did not return to the hospital or to his native place till 22.11.2006; the deceased had misappropriated huge sums of money from Fazal 9 Agency of BSNL wherein she was working and had paid such money to the accused; since the accused could not repay the said amount to the deceased, he hatched the plan of doing away with the life of the deceased by taking her to a remote place in Karnataka State; PW.10, the owner of the Fazal Agency has deposed about the misappropriation by the deceased; even as on the date of the incident i.e., 21.11.2006 also, the deceased had misappropriated Rs.1,00,000/- from the firm; the dead body was containing semi-digested food in the abdomen, which clearly goes to show that the incident must have occurred within 2 to 3 hours of taking the last meal by the deceased i.e., the incident must have happened during the mid-night intervening between 21.11.2006 and 22.11.2006; the call details - Ex.P37 clearly reveals that the accused called the deceased four times in between 5.30 p.m. and 6.30 p.m. on 21.6.2006 i.e., immediately prior to their meeting near the scene of offence; the last call 10 received by the deceased was at 6.32 p.m. and said call was received at 'Sultan Baterie' near which the incident has taken place; PWs.25, 42 and 14 have identified the accused; there is no dispute with regard to the identity of the dead body as that of Miss Presin Susan; the trial Court is justified in convicting the accused for the offence under Section 302 of IPC inasmuch as the facts and circumstances clearly and unerringly point towards the guilt of the accused.
4. PW.1 is the witness for mahazar - Ex.P1. The said mahazar was in respect of search of house of the accused wherein his marriage album (MO.8) was kept.
PW.2 is the witness for mahazar Ex.P2 in respect of burial of the dead body in the graveyard of Nanjangud Town.
11
PW.3 is the complainant. He is the first informant. Ex.P3 is the first information. As aforementioned, Ex.P3 is against unknown person in respect of unknown dead body. He first noticed dead body at Elachagere village in the land of Govinde Gowda. He is also the witness for scene of offence mahazar Ex.P4. He has also deposed about the seizure of Mos.1 to 6.
PW.4 is the witness for scene of offence panchanama Ex.P4 and inquest panchanama Ex.P5. He has deposed about the seizure of Mos.1,2,4,5 and 7.
PW.5 is the witness for mahazars Ex.P6, Ex.P7, Ex.P8 and Ex.P9.
PW.6 is the father of the accused. According to him, he produced the marriage album (Mo.8) in Kalpetta Police Station, Kerala State. He has deposed that MO.2 - wrist watch does not belong to the accused. He is a witness for 12 mahazar - Ex.P10 under which the office of the accused was searched.
PW.7 is the Hostel Warden in which the deceased Presin Susan was living. According to him, he has seen the deceased Presin Susan last during the day time of 21.11.2006 and that the deceased was working as Accountant in BSNL.
PW.8 is the colleague of the deceased and she is also working in Fazal Agency as an Accountant. She saw the deceased last on 15.11.2006. She was on leave from 15.11.2006 to 22.11.2006 and came back to office on 22.11.2006. She has deposed that once accused had come to their office for purchasing sim card. She has turned hostile to the case of the prosecution.
PW.9 who was supposed to depose about Ex.P10 - mahazar has also turned hostile.
13
PW.10 is the Managing Director of the Fazal Agencies, which is a franchise of BSNL. He has deposed that the deceased was working as a Cashier in Fazal Agencies and she misappropriated to the tune of Rs.14,00,000/- at different times; the deceased attended the office last on 21.11.2006. He has lodged the complaint against the deceased relating to misappropriation at Kalpetta Police Station on 23.11.2006 in Crime No.383/2006.
PW.11 is the mother of the deceased and she has deposed that the deceased was working in Fazal Agencies. She identified Mos.1,6,9,10 and 11 as the articles which belong to the deceased.
PW.12 is the R.C. holder of the Santro Car bearing Registration No.KL-11-V-1160. He had given the said car to Travel Agency of Chandran (CW.13) for running the same on hire. PW.12 got the interim custody of the said 14 car in his favour from the Court during the pendency of the trial before the Court below.
PW.13 is the owner of Travel Agency - Rays Travels. He has deposed that one Mr. Fazalu asked him to send a car to an advocate; the driver Jayachandra (PW.14) took the car for giving it to the advocate; Ex.P13 - the note book containing the phone number of the advocate is seized under the mahazar Ex.P12.
PW.14 is the driver of the Santro car, who took the car from the travel agency of PW.13 on 21.11.2006 and handed over it to the accused at 'Sultan Baterie' near Gundlupet in Karnataka State which is about 100 kilometers from Kalpetta and the accused gave him Rs.1,850/- towards hire charges of the car.
PW.15 is the father of the deceased. He has lodged the missing complaint in Kalpetta Police Station. He identified Mos.1,9 to 11 as belonging to the deceased. 15
PWs.16 and 17 have turned hostile to the case of the prosecution.
PW.18 is the Plastic Board Seller who has deposed that PW.19 might have purchased Mo.7 i.e., number plate of the car, which was broken.
PW.19 is the barber and he was to depose about the last seen circumstance, but he has turned hostile. However he has deposed that he knew the accused since he was coming to his barber shop.
PW.20 is the witness for mahazar Ex.P17 in respect of identification of Mos.1 to 3,6,9 to 11, 12 and 13 which were clothes and personal belongings of the deceased.
PW.21 has turned hostile. PW.22 is the witness for mahazar Ex.P19.
16
PW.23 is the Receptionist working in Ganga Yathra Nivas lodge at Gundlupet, Karnataka State. He has deposed that the accused used to come and stay in their lodge in the name of Praveen Menon; accused had visited the said lodge and stayed on several occasions. He is a witness for seizure mahazar Ex.P20 under which the arrival register and receipt book maintained by the lodge were seized.
PW.24 is the Computer Operator working in the office of the the accused and he has turned hostile.
PW.25 is the important witness. He was working as a clerk in the office of the accused (accused is an advocate by profession). He has deposed that the conduct of the accused was not good; the deceased used to come to the office of the accused regularly; the deceased was a friend of the accused and she was working at Fazal Agency. PW.25 has also deposed about motive for commission of the 17 offence. He has further deposed that the accused used to take money from the deceased every now and then. He has identified Mo.2 - watch as belonging to the accused.
PW.26 is the tailor by profession and she has shop at Kalpetta in the name of 'Stitch Park Tailors'. She identified MO.11 - chudidar top as belonging to the deceased. She has deposed that she had stitched chudidar for the deceased.
PW.27 is the Police Constable of Manandavadi Police Station. He transalated the statements of CW.47 - Siyab, CW.51 - Praveen and CW.52 - Pradeep from Malayalam language to Kannada language.
PW.28 is the Room boy working in Gundlupet Gangayathranivas lodge. He has partly supported the case of the prosecution.
PW.29 is the Head Constable of Kalpetta Police Station and he registered the missing complaint lodged by PW.15 18 (father of the deceased) in Crime No.383/2006. He has also deposed about the complaint lodged by PW.10 as per Ex.D6 against the deceased registered in Crime No.382/2006.
PW.30 was another clerk working in the office of the accused. He has turned hostile to the case of the prosecution.
PW.31 is another Room boy working in Gundlupet Gangayathranivas lodge. He has deposed that the accused used to come and stay in the lodge.
PW.32 is the Receptionist in Gangayathranivas lodge. He has deposed that the accused used to come with the friends and stay in the lodge for few days. Ex.P38 to Ex.P41 (receipt books) are marked through PW.32 and he has identified the said receipt books.
PW.33 is the Watchman of Gangayatranivas lodge. His evidence is of no use to the case of the prosecution. 19
PW.34 is the Ex. Councillor of Nanjangud. He has turned hostile.
PW.35 is the mahazar witness for Ex.P17 under which Mos.1,2,3,6,9 to 13, the articles found on the dead body were seized.
PW.36 has partly turned hostile to the case of the prosecution.
PW.37 has turned hostile to the case of the persecution.
PW.38 is the witness for panchanama Ex.P12 under which Santro car was handed over to Karnataka Police in Kalpetta Police Station. He has deposed about two number plates. He has also deposed that Ex.P13, the note book was produced by owner of the Santro car.
PW.39 is the panch for Ex.P20 mahazar and he has turned hostile.
20
PW.40 is the Coolie who buried the dead body after post-mortem examination. The Police called him once again for exhuming the dead body. He removed the decomposed dead body and handed over the same to the relatives of the deceased.
PW.41 has turned hostile to the case of the prosecution.
PW.42 is the wife of the accused. During the pendency of the matter before the trial Court, she filed an application for divorce against the accused and the order seems to have been passed in her favour by the Family Court. She identified MO.2 and MO.14 as belonging to the accused.
PW.43 is the doctor who conducted the post-mortem examination over the dead body of the deceased in the Government Hospital at Nanjangud; Ex.P26 is the Post- mortem report. Ex.P27 is the opinion of the Doctor to the 21 effect that ligature mark found on the neck of the deceased can be caused by veil; veil or clothes of this type can cause death by tightening over the neck of the deceased.
PW.44 has turned hostile to the case of the prosecution.
PWs.45 and 46 are the Police Constables who participated during the course of investigation at different levels.
PW.47 is the Village Accountant who issued Ex.P29 - RTC extract of the land wherein the dead body was found and it discloses that the said land belongs to Govindegowda.
PW.48 is the Taluka Executive Magistrate who ordered for exhumation of the dead body on 28.12.2006 from the Government land. He found only the skeleton of the female dead body.
22
PW.49 is the Police Constable who took First Information Report and delivered to the JMFC at 8.20 p.m. on 22.11.2006.
PWs.50 and 51 are the Police personnel and they have participated during investigation.
PW.52 is the Assistant Sub-Inspector of Police of Nanjangud Rural Police Station. He has deposed that he registered a case in Crime No.380/2006 based on the complaint Ex.P3 of PW.3 and sent the first information report to the JMFC.
PW.53 is the Head Constable and he is the scribe of mahazars Ex.P20 and Ex.P10 drawn at Gangayathranivas lodge and in the office of the accused respectively.
PW.54 is the PSI who received telephone call at 2.30 p.m. on 22.11.2006 that the unknown dead body of the female is lying in the land. He went to the spot alongwith 23 his staff wherein PW.3 gave written complaint as per Ex.P3; the said Ex.P3 was sent to Head Constable who is the SHO of Nanjangud Rural Police Station (PW.52). He has also participated in the investigation.
PW.55 has investigated the crime to a major extent. PW.56 has investigated further and laid the charge sheet on 23.3.2007.
PW.57 is the cousin of the deceased and he identified the articles of the deceased found on her dead body.
PW.58 is the clerk working in Fazal Agency. He has deposed that the deceased was working in Fazal Agency.
PW.59 is the elder sister of the deceased. She has also deposed that the deceased was working in Fazal Agency at Kalpetta.
24
PW.60 is the Divisional Engineer of BSNL during the relevant time. He produced Ex.P37, the call details of cell phone of the deceased bearing No.9446733233.
5. As aforementioned, the learned advocate for the appellant submitted that the Court below is not justified in permitting the Prosecutor to conduct examination-in-chief of certain important witnesses after cross-examination by the defence. It is no doubt true that the Court below has permitted the Prosecutor to do so. Normally, after the completion of the cross-examination, the Public Prosecutor is permitted to have re-examination of the witnesses, if need be for getting certain things clarified. Certain restrictions are to be observed while re-examining the witnesses. However there is no legal bar for the Court to permit the Prosecutor to re-examine the witness after the cross-examination, if the circumstances warrant to do so. In the matter on hand, the Court below has permitted the 25 Prosecutor to put certain questions in further examination- in-chief, which were not earlier put to the witnesses. The further examination-in-chief as done by the Prosecutor in this matter was not intended to clarify what is already stated in the deposition of a particular witness in the cross- examination. On the other hand the further examination in-chief by the Public Prosecution was restricted only in respect of certain questions which were not earlier asked by the Public Prosecutor in the examination-in-chief. Moreover the defence counsel has not objected for grant of such permission by the Court, before the Court below. Since such objection was not raised by the defence counsel before the trial Court, in our considered opinion, the trial Court is justified in permitting the Prosecutor to examine certain witnesses, more particularly PWs.25 and 42 further, that too under the facts and circumstance of the case. Since such objection was not raised by the defence at the earliest, it may not be open for the defence to make such 26 grievance before the appellate Court. It is not in dispute that the defence was permitted to further cross-examine the witness wherever the further examination-in-chief was permitted.
6. The circumstances relied upon by the Prosecution mainly are as under:
a) Motive for commission of the offence
b) Wrist watch - MO.2 belonging to the accused and being worn by him regularly, was found at the spot of the incident.
c) Santro car was hired by the accused on 21.11.2006 and the car was handed over to the accused by PW.14, the driver of the travel agency at 'Sultan Baterie' in Karnataka State.
d) Phone number of the accused was found in the note book (Ex.P13) which was seized under mahazar -
Ex.P12. PW.13, owner of the travel agency who 27 maintained the note book Ex.P13 has deposed about the said mahazar.
e) The accused used to stay in the name of 'Praveen Menon' in Gangayatranivas lodge, Gundlupet very often and he used to come to the said lodge for having parties with friends.
f) Call details of cell phone of the deceased as deposed to by PW.60 and as found in Ex.P37.
7. It is relevant to note that the prosecution has relied upon one more circumstance i.e., last seen together. As per the case of the prosecution, PW.19 - Gafoor came alongwith the accused till Gundlupet and he was directed by the accused to go back from that place to Mysore. It is the further case of the prosecution that PW.19 - Gafoor saw the accused with the deceased in the car in the evening of 21.11.2006. PW.19 who deposed about this circumstance has turned hostile. The statement of PW.19 recorded by the Police during the course of investigation is marked at 28 Ex.P16. The Investigating Officer who recorded the statement of PW.19 during the course of investigation has admitted that he has recorded the statement of PW.19 as per Ex.P16. However in the cross-examination of PW.19, no other answer was got elicited by the Public Prosecutor in favour of the defence in respect of evidence of PW.19.
8. In respect of the circumstance relating to motive, the important witness is PW.25. The accused was an advocate by profession and he was practising at Kalpetta, Vynadu district, Kerala State during the relevant period. He was aged about 30 years at the time of the incident. He is married to PW.42.
PW.25 has deposed that the accused was not behaving with the ladies properly and his conduct was not good; He has gone alongwith the accused and other friends three to four times to Gundlupet, Chamarajnagar, Mysore etc., for parties ; they used to go in the car of the accused 29 and that the accused has got number of friends. PW.25 has further deposed that he knew the deceased Presin Susan; Presin Susan was a friend of the accused and she used to visit the office of the accused; Presin Susan was working in Fazal Agencies; the accused used to borrow money from the deceased Presin Susan very often. PW.25 has also deposed that he himself used to go to the office of the deceased for bringing money from the deceased and to hand over the same to the accused; the accused used to request him to get money from the deceased and consequently he used to go to the office of the deceased for getting money and deceased used to give money to him to hand over the same to the accused; the distance between the office of the accused and the office of the deceased was about one kilometer.
PW.25 has further deposed that the accused used to wear the watch and he identified MO.2 - watch as belonging to the accused; the murder of the deceased has 30 taken place because of strained relationship of the accused with the deceased. In the cross-examination, he has deposed that the accused did not have much practise and that he was working only as a junior advocate at Kalpetta. Even in the cross-examination, he has reiterated that MO.2 belongs to the accused and he got the same as a wedding gift from his relatives and the said watch was being worn by the accused. In the further examination-in-chief, this witness has deposed that though he used to attend the parties with the accused, he did not consume liquor inasmuch as he did not have the habit of consuming liquor; he has seen the accused wearing watch between 5 p.m. and 6 p.m. on 21.11.2006 in the office; he has seen the accused going out of the office after 5 p.m. on 21.11.2006. Certain improvements are made by PW.25 in his evidence before the Court. One of the improvement/omission in the evidence of PW.25 is that he has seen MO.2 - watch on 21.11.2006. However barring such minor omissions, other 31 material on record clearly reveals that the money transaction was the reason for the accused to commit the crime.
The evidence of PW.25 makes it clear that the deceased Presin Susan and accused were friends; they used to meet frequently; the accused used to send PW.25 to the office of the deceased to get money for him; the deceased used to conceal money in a cover and hand over the same to PW.25 by coming out of her office; PW.25 used to take such money from deceased and hand over the same to the accused. Hence it is amply clear that there is money transaction between the two and they knew each other very intimately.
The evidence of PW.25 is supported by the evidence of PW.10, the Managing Director of Fazal agency. PW.10 has deposed that the deceased was working as a Cashier in Fazal agency and she has misappropriated funds to the 32 tune of Rs.14,00,000/- from time to time. This fact of misappropriation came to limelight only after 21.11.2006. Presin Susan attended the office last on 21.11.2006 and she did not attend the office subsequent to 21.11.2006. After coming to know the misappropriation, PW.10 lodged the complaint alleging misappropriation against the deceased at Kalpetta Police Station, which came to be registered in Crime No.383/2006. From the evidence these witnesses, it is clear that the deceased used to misappropriate the money by taking the money stealthily from the Fazal Agency and hand over the same to the accused. The misappropriation was to the tune of Rs.14,00,000/-. Since the said money was not returned by the accused to the deceased, there was ill-will between the deceased and the accused and in order to overcome repayment, according to the prosecution, the accused committed the murder of the deceased.
33
9. Admittedly, the deceased as well as the accused are from the Kerala state. Both were working at Kalpetta, Vynadu district, Kerala state. The incident had taken place in Karnataka state near 'Sultan Baterie' which is about 147 kilometers away from Kalpetta. The dead body was found in the land of one Mr. Govindegowda near Elachgere village in Karnataka State. The evidence of PW.25 coupled with the evidence of PW.10 proves the circumstance relating to motive for commission of the offence by the accused.
10. According to PW.42, the wife of the accused i.e., Smt. Manaya, she was not well and she was hospitalized prior to 21.11.2006. The accused stayed in the hospital alongwith the patient (PW.42) till the morning of 21.11.2006. He left the hospital in the morning of 21.11.2006 by telling his wife (PW.42) that he will be going to Kalpetta town. Subsequently accused was unheard of. PW.42 has further deposed that at the time of her 34 marriage, her elder sister's husband had given watch - MO.2 as a gift to the accused and the said watch was of USA make and it is of "Fosil" company; The said watch was being worn by the accused daily; The accused was having two other watches and he used to wear those watches prior to the marriage; and after the marriage, he was not wearing those two watches. It is relevant to note that MO.14 - watch and MO.2 - watch are one and the same and said fact is clarified by the Trial Court in the list of material objects annexed to the judgment of the trial Court i.e., the same watch is marked as MO.2 and MO.14 wrongly during the course of trial. PW.42 has further deposed that she was given number of gold ornaments by her parents in the marriage and the accused had pledged all those gold ornaments and has taken loan for his personal use; the loan so borrowed was not given either to PW.42 or to his father; the conduct and character of the accused was not good; accused used to get number of phone calls from 35 women. In the cross-examination, PW.42 has admitted that after the incident in question and after coming to know about the bad conduct and character of the accused as well as about murder of the deceased, she has filed an application for divorce and the said application for divorce is granted by the Family Court. In the cross-examination, she has deposed that the accused used to come belatedly to the house on number of occasions; watch in question is not usually available in the market; as her husband (accused) used to wear MO.14 - watch regularly, she identified the watch as belonging to him. Though PW.42 is subjected to lengthy cross-examination, nothing worthwhile is elicited in the cross-examination. From the evidence of PW.42, it is amply clear that the accused was with her at Kalpetta town till the morning of 21.11.2006 and that he left Kalpetta town in the morning of 21.11.2006 by telling her that he will be going out and subsequently he did not return. It is also clear from the evidence of PW.42 that watch - MO.14 36 (same as MO.2) seized by the Police from the spot belongs to the accused. Though there are no specific marks to show that such watch belongs to the accused, PW.42 being the wife of the accused identified such watch as belonging to her husband. Merely because she has divorced the accused during the course of trial before the Court, her evidence cannot be suspected or ignored. So also it cannot be said that she is interested in prosecution. At the time of recording of her statement during the course of investigation, neither did she obtain divorce from Court nor she had filed an application for divorce; as on the date of the incident also, both of them were living together. Therefore it is not open for the defence to contend that her deposition cannot be relied upon since she is interested in favour of the prosecution. Looking to the overall evidence of PW.42, it is clear that the accused left Kalpetta town in the morning of 21.11.2006 and that watch MO.2 (MO.14) belongs to the accused.
37
11. After coming to Kalpetta, the accused hired a Santro car bearing Registration No.KL-11-V-1160. The RC owner of the said car is PW.12. PW.12 has deposed that he had given the said car to travel agency of Chandran (PW-
13) for running the said car on hire. PW.13, the owner of the travel agency has deposed that one Mr.Fasalu asked him to send car to the advocate. Accordingly, PW.13 arranged the driver Jayachandran (PW.14) to send the car to the advocate. The note book (Ex.P13) is maintained by PW.13, which contains the particulars relating to sending of car on hire. Ex.P13, the note book reveals the phone number of the advocate/accused showing that he had hired the car. During the course of investigation, Ex.P13 is seized by the Police. Though the accused has got his own car, in order to hide his identity, he had hired a taxi from PW.13. This is an additional circumstance. 38
PW.14, the driver of the car took the car from Kalpetta on 21.11.2006 and handed over the same to the accused at 5.30 p.m. He identified the accused in Court as the person who took the car from him. It is further deposed by PW.14 that the mobile number of the advocate/accused was given to him by PW.13, the owner of the travel agency and he called to the said number and talked to the advocate as to where the car should be brought; The advocate calling from other end also sought to know the colour of the car which was brought and the same was told by PW.14; When PW.14 came near a complex at Gundlupet, the accused signaled him to stop the vehicle looking to the colour of the vehicle; After parking the car on the left side of the road, PW.14 handed over the keys to the accused, who in turn gave Rs.1,850/- to him towards hire charges; at about 7 p.m. after reaching Koduvalli village, PW.14 reported to PW.13 that the car was handed over to the accused. Northing worthwhile is elicited 39 in the cross-examination of PW.14 so as to discard his evidence.
12. From the evidence of PWs.12, 13 and 14, it is clear that the Santro car was taken from Kalpetta, Kerala State up to Gundlupet, Karnataka State and the same was handed over by PW.14 to the accused after receiving Rs.1,850/- towards hire charges. The accused was already present at Gundlupet for receiving the keys and the car from PW.14.
13. According to the prosecution, the deceased came in a bus to Gundlupet from Kalpetta and alighted from the bus and she was picked up by the accused and was taken to Gangayatranivas lodge at Gundlupet and subsequently she was taken to nearby forest area and was murdered by the accused. In order to prove that aspect, the prosecution has examined PW.23, PW.28, PW.32 and 40 PW.33. Among them, the evidence of PW.23 is very much relevant. PW.23 has deposed that the Police came with the accused after the incident and verified the records of the lodge. There was an entry in the register maintained by the lodge and the name of the person who took the room is mentioned as Mr. Praveen Menon. PW.23 has identified the accused as the person who came to the lodge number of times. In the cross-examination, he has reiterated that the accused is none other than Mr. Praveen Menon and that the name of Mr. Praveen Menon is found in the register of the lodge. On going through Ex.P38, the register maintained by the lodge, PW.23 has deposed that the relevant entries are made in the said register in the handwriting of the person who occupied the room; so also the entries made on 17.5.2006, 27.5.2006, 1.6.2006, 5.6.2006, 28.6.2006, 5.7.2006, 9.7.2006, 12.7.2006 and 21.11.2006 are written by the accused and he has signed after the entries. PW.23 specifically deposes that on 41 21.11.2006, Room No.204 was allotted to the accused and two persons (including the accused) had stayed in the said room; Ex.P41 is the receipt book; Ex.P41(b) of the receipt book discloses that the accused has come to the lodge at 11.50 p.m. on 21.11.2006 and had left the room on 22.11.2006 at 6 a.m. On that day, two persons had stayed in the room. PW.23 has identified his signature also and has stated that he has put his signature as such in the register. From the evidence of PW.23, it is clear that two persons including the accused came to Gangayatranivas lodge and they were given Room No.204. The accused used to stay in the said lodge in the name of Mr.Praveen Menon. The accused and another person has occupied the room at 11.50 p.m. on 21.11.2006 and left the room on 22.11.2006 at 6 a.m., which means during the relevant period i.e., the night intervening between 21.11.2006 and 22.11.2006, the accused and the another person has entered the said room. The incident has taken place during 42 the very night just about 12 kilometers from the said lodge. No explanation is forthcoming from the accused as to who else has stayed alongwith him in the room in the said lodge on the relevant day.
From the aforementioned facts and circumstances, it is clear that the accused came from Kalpetta in Kerala state to Gundlupet in Karnataka state in a car and had stayed in Gundlupet lodge with another person on the night intervening between 21.11.2006 and 22.11.2006. Gundlupet is about 12 kilometers from the scene of offence. Thus the accused was found nearby the place of incident during the relevant time.
14. The dead body was found first by PW.15 in the afternoon of 22.11.2006 in the land of one Mr. Govindegowda. After lodging of the complaint as per Ex.P3, the investigation is taken up and the spot panchanama was 43 held. The chappals, watch, one plastic bottle and other articles which were fallen near the dead body were seized by the Police. The important factor is relating to seizure of watch from the spot. The very watch is marked as MO.2 as well as MO.14. PW.25 who was a clerk working with the accused during the relevant time and PW.42, the wife of the accused have identified the said watch as belonging to the accused. Both of them have withstood the cross- examination. We have already discussed in the preceding paragraphs that the watch was identified more particularly by PW.42, the wife of the accused by reiterating before the Court that the accused used to wear that watch regularly and that watch was gifted by her brother-in-law i.e., the husband of her elder sister. Though there is no specific identification mark on the watch, she could identity the watch as she is the wife of the accused and that the accused used to wear that watch regularly. The watch in question is of "fossil" company and it is a USA make. Such 44 watches are rarely available in the market of small towns. Though there are no specific marks on the watch, the evidence of PW.25 and PW.42 clearly reveals that the said watch belongs to the accused. There is no reason as to why they should depose falsely against the accused. PW.42 was the wife of the accused and PW.25 was the clerk working in the office of the accused. Merely because PW.42 has obtained divorce subsequently during the trial before the Court, her version cannot be treated as interested version in favour of the prosecution. There is no reason as to why she should depose falsely against the accused and in favour of prosecution if that watch does not belong to the accused. Therefore in our considered opinion, the trial Court is justified in concluding that the watch MO.2/MO.14 belongs to the accused and was found lying on the spot. If the accused was not present at the time of the incident on the spot, there was no reason as to why his watch has fallen there. The watch which was being worn by 45 him regularly is not available with the accused subsequent to 21.11.2006. If such watch is really available with the accused or with PW.6, the father of the accused, accused would have definitely produced the same during his examination before the Court under Section 313 of Cr.PC. PW.6 has deposed that the watch which was being worn by the accused is still available in his house. It is no doubt true that nobody can compell PW.6 to produce the watch. But the fact remains that the accused could have atleast brought to the notice of this Court in his statement under Section 313 of Code of Criminal Procedure that such watch is still available in his house. Moreover it is but natural for PW.6 to depose in support of the accused, who is his son.
Therefore we are of the considered opinion that the prosecution has proved that the watch of the accused was found lying on the spot near the dead body as on the date of the incident, which was seized by the Police during the course of drawing scene of offence mahazar. 46
15. PW.60 has deposed about the call details relating to the cell phone of the deceased bearing No.9446733233. The cell phone of the accused is bearing No.9895992108. PW.60 is none other than Sub-Divisional Engineer of BSNL. He has deposed that he has furnished the call details as per Ex.P37. He has produced the computer generated particulars of the call details of the mobile phone of the deceased bearing No.9446733233. Under Section 65(B) of the Indian Evidence Act, the electronic records are admissible in law. Under the said provision any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (computer output) shall be deemed to be also a document subject to certain conditions. The senior officer of the BSNL i.e., Sub- Divisional Engineer has deposed in support of the computer generated copy of the call details relating to cell phone of 47 the deceased vide Ex.P37. The computers are being used by the BSNL regularly to store information for the purpose of activities regularly carried on. In other words, the bills are being generated and even the call details are being generated through the computers maintained by the BSNL in the regular course of its business. There is no reason as to why PW.60 being the Sub-Divisional Engineer of the BSNL should falsely support the case of the prosecution, that too against the accused. He is an independent officer of the State. Therefore we rely upon the computer generated copy of call details at Ex.P37.
16. Ex.P37 discloses that the calls from the mobile of the accused to the mobile phone of the deceased were made on 21.11.2006 at 12.37, 14.11, 14.57, 17.29, 17.39, 17.45 and 18.32 hours. The last call of 18.32 hours was made by the accused to the deceased from Sultan Baterie. All other earlier calls of the same day were made from 48 Kalpetta town. From the aforementioned material, it is clear that the accused has repeatedly called the deceased from time to time on that day. Even after reaching Sultan Baterie near Gundlupet, he has called the deceased at 6.32 p.m. on 21.11.2006. It is also clear that the accused has come to Sultan Baterie at 6.32 p.m. and called the deceased. It is no doubt true that one more call is received by the mobile phone of the deceased on the next day i.e., on 22.11.2006 at 6.45 a.m. and one call has gone out from the mobile phone of the deceased at 6.49 a.m. The defence counsel adverting to these telephone calls submits that the deceased was very much alive at 6.49 a.m. on 22.11.2006. Such submission cannot be accepted. Merely because one call is received to the mobile of the deceased and one call has gone out from the mobile phone of the deceased, it cannot be said that the deceased has handled the mobile phone after the midnight of 22.11.2006. In this matter, the mobile phone of the deceased could not be 49 seized by the Police, which means immediately after the incident, the mobile phone of the deceased is taken away by some person or is missing.
From the aforementioned discussion, it is amply clear that the prosecution has proved all the circumstances relied upon by it. The chain of circumstances is complete so as to definitely come to a conclusion that the accused and the accused alone committed the crime in question. The person may lie, but not the circumstances. All the circumstances clearly reveal and undoubtedly point towards the guilt of the accused. The entire chain of circumstances is complete, which points towards the guilt of the accused. Therefore, in view of the above, in our considered opinion, the trial Court is justified in convicting the accused based on circumstantial evidence. Even on re-appreciating the material in its entirety, we do not find any ground to disagree with the reasons assigned and the conclusions arrived at by the trial Court.
50
Accordingly, the appeal fails and the same stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE gss/-