Karnataka High Court
Karuna Kumar @ Kumar vs State Of Karnataka on 12 June, 2024
Crl.A.No.788/2018
C/w Crl.A.No.437/2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO.788/2018 (A)
C/W
CRIMINAL APPEAL NO.437/2018 (C)
CRL. A. NO.788/2018
BETWEEN:
STATE OF KARNATAKA
BY NANJANGUD RURAL POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001 ...APPELLANT
(BY SMT.RASHMI JADHAV, ADDL. SPP)
AND:
KARUNA KUMAR @ KUMARA
S/O LATE PUTTASWAMAPPA
AGED ABOUT 40 YEARS
R/AT HEJJIGE VILLAGE
NANJANGUD TALUK - 571 301 ...RESPONDENT
(BY SRI.K.A.CHANDRASHEKARA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) &
(3) OF CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AND SET ASIDE
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 14.12.2017,
PASSED BY III ADDITIONAL SESSIONS JUDGE, MYSORE IN
S.C.NO.79/2013 ACQUITTING THE ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 302, 201, 465 & 471 OF IPC.
Crl.A.No.788/2018
C/w Crl.A.No.437/2018
2
CRL.A.No.437/2018:
BETWEEN:
KARUNA KUMAR @ KUMAR
S/O LATE PUTTASWAMAPPA
AGED ABOUT 35 YEARS
R/AT HEJJAGE VILLAGE
NANJANGUD TALUK
MYSORE DISTRICT - 541 403 ...APPELLANT
(BY SRI.K.A.CHANDRASHEKARA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY PEENYA POLICE STATION
REP. BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001 ...RESPONDENT
(BY SMT.RASHMI JADHAV, 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 02.12.2017 AND SENTENCE DATED 04.12.2017
PASSED BY LIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN S.C.NO.421/2013 CONVICTING THE ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 326 & 307 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED ON 25.04.2024 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these two appeals arise out of two different judgments passed by two different Sessions Courts in different Sessions cases, as the victims and the accused in both the cases are same and the cases have bearing on each other, they are Crl.A.No.788/2018 C/w Crl.A.No.437/2018 3 taken up together for disposal by this common judgment. The particulars of the proceedings of impugned judgments are as follows:
Crl.A.No. Sessions Name of Date of Conviction/ Case No. the Trial impugned acquittal Court Judgment 437/2018 SC No.421/2013 LIX Addl. 02.12.2017 Accused City Civil convicted and Sessions Judge, Bengaluru city 788/2018 SC No.79/2013 III Addl. 14.12.2017 Accused Sessions acquitted Judge, Mysore
2. In SC No.421/2013 accused/Karunakumar @ Kumar was tried for the charges for the offences punishable under Sections 326 and 307 IPC on the basis of charge sheet filed by Peenya Police in Crime No.679/2012 of their police station. In this case the charge was that the accused having committed the murder of Vedamurthy in Nanjangud, apprehending that his wife Kavitha who was aware that her husband had gone with the accused may bring him to books, came over to Bengaluru and attempted to commit her murder. In the said case, the Trial Court by the impugned judgment and order convicted him for the offences punishable under Sections 326 and 307 IPC and Crl.A.No.788/2018 C/w Crl.A.No.437/2018 4 sentenced him to different terms of imprisonment and fine as follows:
SL Convicted for Sentence Fine in Rs. Default NO. the Offence Sentence
1. 326 of IPC SI of 7 years 3,000/- SI of 30 days
2. 307 of IPC SI of 7years 5,000/- SI of 45 days
3. In SC No.79/2013 the same Karunakumar @ Kumar was tried for the charges for the offences punishable under Sections 302, 201, 465 and 471 IPC. In this case the charge was that the accused with the intention to siphon money of Vedamurthy, secured him to Nanjangud in the guise of starting joint venture petrol bunk business, committed his murder, collected the blank cheque brought by him, forged and encashed the said cheque and tried to screen the evidence of offence. In this case, on holding the trial, the Trial Court by the impugned judgment acquitted him.
4. Challenging his conviction in SC No.421/2013 the accused has preferred Crl.A.No.437/2018 and challenging his acquittal in SC No.79/2013, the State has preferred Crl.A.No.788/2018.Crl.A.No.788/2018
C/w Crl.A.No.437/2018 5
5. The brief facts of the case are as follows:
(i) The accused hails from Nanjangud. The accused and deceased/Vedamurthy were together doing Sheet Centering work under a contractor in Bengaluru. After some time, Vedamurthy started his own contract work and thrived. The accused for about four years worked under Vedamurthy, then shifted to his village. Still whenever Vedamurthy had more work, he used to get the services of the accused. The accused planned to siphon money from Vedamurthy. In execution of such plan, he induced Vedamurthy for joint venture project of running a petrol bunk. The accused represented to Vedamurthy that owner of a petrol bunk at Nanjangud is going abroad, therefore, he intends to lease out the said bunk to others in his absence and the project cost was Rs.15,00,000/-. The accused further told Vedamurthy that he contributes Rs.9,00,000/- and Vedamurthy shall contribute Rs.6,00,000/- and agreement can be taken in the name of wife of Vedamurthy. On 11.10.2012 on the representation of the accused that, owner of the petrol bunk has come to Nanjangud and Vedamurthy shall go there with his wife's bank cheque to pay Rs.1,00,000/- and other related records to enter into the agreement, Vedamurthy left to Crl.A.No.788/2018 C/w Crl.A.No.437/2018 6 Nanjangud in the afternoon. Before that the accused had planned the commission of murder of Vedamurthy and for that he chose the watchman shed built in the fallow land of one Thomas. Breaking the lock of the said shed put by the owner, he locked that with his own lock. On Vedamurthy reaching Nanjangud at 7.30 p.m., accused met him, took him to a bar where deceased had beer and then both of them had dinner in one Dhaba. Then accused took him to the aforesaid shed where Vedamurthy removed his pant and shirt and slept. At 1.00 a.m., the accused assaulted Vedamurthy with M.O.2 the stones and committed his murder. Thereafter the accused collected the cheque Ex.P9 (SC No.79/2013), pant, shirt mobile phone and bag of the deceased, locked the room and left. Before leaving the place, to confuse the identity of the dead body and mislead investigation, the accused left one election ID card, two health cards and some photographs relating to one Mahaveer Sharbidre and Savitha Sharbidre (Ex.P46 in SC No.79/2013) which they had lost. On the way to screen the evidence of offence, he dropped the bag and phone of the deceased in Kapila River and carried Ex.P9 with him. Between 12.10.2012 and 15.10.2012 he went on roaming here and there. In the meantime, as her Crl.A.No.788/2018 C/w Crl.A.No.437/2018 7 husband lost contact since around 7.30 p.m. of 11.10.2012, Vedamurthy's wife kept on calling the accused for her husband's information. The accused many a times did not receive the phone calls, once he told her that Vedamurthy's phone is stolen by somebody therefore, he has not received the call. When she requested the accused to at least connect Vedamurthy on his phone, he evaded saying that Vedamurthy has gone to Mahadeshwara Hills etc. Due to her persistence the accused apprehended that she may implicate him in Vedamurthy's murder case, therefore decided to eliminate her. On 16.10.2012 at about 11.20 a.m. he went to Vijaya Bank, T.Dasarahalli Branch, filling in the cheque sum of Rs.95,000/- and drawee's name as one Lokesh, he withdrew Rs.95,000/-. Then the accused went to the house of Vedamurthy. When his wife asked about Vedamurthy, accused told her that Vedamurthy has gone to his work site and has asked him to be in the house till he arrives. After lunch he sat watching TV. When Kavitha was relaxing in her bed room, the accused sent her son Sagar outside, entered her bed room, assaulted her with iron rod and when she woke up shouting, accused attempted to throttle her.
Listening to the commotion Sagar rushed into the house and Crl.A.No.788/2018 C/w Crl.A.No.437/2018 8 went to rescue his mother. The accused pushing both of them, ran away with his bag, bolting the door from outside.
(ii) Both Kavitha and Sagar raised alarm. Listening to the same, the landlady and neighbours opened the door and shifted Kavitha to Sapthagiri Hospital. On receiving MLC intimation from the said Hospital the PSI of Peenya Police station visited the hospital and recorded the statement of Kavitha on 17.10.2012 at about 2.25 p.m. On the basis of the said statement he registered FIR in Crime No.679/2012 against the accused for the offences punishable under Sections 307 and 324 IPC and commenced the investigation.
iii) In the meantime on 17.10.2012 at 3.30 p.m. one Raju S/o Puttaiah (PW.1 in SC No.79/2013) on getting foul smell peeped through the window of the shed and found the dead body and filed complaint before the ASI of Nanjangud Rural Police station. On that basis FIR in Crime No.244/2012 of Nanjangud Rural Police Station was registered against unknown persons for the offence under Section 302 IPC. On registering FIR, PW.19/the Circle Inspector of Nanjangud Rural Police Station took up the investigation. He broke open the lock, conducted the spot mahazar, inquest mahazar and got Crl.A.No.788/2018 C/w Crl.A.No.437/2018 9 conducted the PM examination on the dead body. During the spot mahazar he seized the footwear, banian, nicker and two stones from the scene of offence. During investigation the Investigating Officer in SC No.79/2013 arrested the accused on 08.11.2012 and on the basis of the voluntary statement of the accused, cash of Rs.95,000/- with his bag and his mobile phone were seized from his mother's house. Other incriminating materials were also seized. The accused to escape the clutches of law had changed his sim card. The said Investigating Officer got the belongings of the deceased identified through his wife and son, recorded their statements and the statements of other witnesses, got the DNA test of the son of the deceased conducted for the identification of the dead body. Ultimately, he filed the charge sheet in that case.
6. The Investigating Officer in SC No.421/2013 on learning about the arrest of the accused by Nanjangud Rural Police secured him on body warrant from the jurisdictional Court. During the course of investigation, he recorded the statements of the witnesses, got the spot mahazar conducted, collected the Crl.A.No.788/2018 C/w Crl.A.No.437/2018 10 cheque and CCTV footages from the bank and medical records of Kavitha and he filed the charge sheet in the said case.
7. Because charge sheets were filed before two different Sessions Divisions viz., Nanjangud and Bengaluru, separate trials were conducted and separate judgments (impugned judgments) were rendered. In the case involving the charges under Sections 302, 201, 465 and 471 IPC, the accused was acquitted and in the case involving the charges under Section 307 and 326 IPC, the accused was convicted. In fact the offence of attempt to commit murder of Kavitha was in continuation of the offence of murder of Vedamurthy. In such cases Section 219(1) and Section 184(a) Cr.P.C., applies which read as follows:
" 219. Three offences of same kind within year may be charged together.-
1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three."
"184(a). Place of trial for offences triable together.- Where - Crl.A.No.788/2018 C/w Crl.A.No.437/2018 11
a) the offences committed by any person are such that he may be charged with, and tried at one trial for, each such offence by virtue of the provisions of section 219, 220 or Section 221, the offences may be inquired into or tried by any Court Competent to inquire into or try any of the offences."
8. The Investigating Officers, the public prosecutors in both cases and the Trial Courts were aware of investigation and trial in both the cases. Somehow it appears they missed the object and purport of the provisions of Section 219(1) and 184(a) of Cr.P.C. That has led, we can say, to two conflicting judgments, though no doubt one case was based solely on circumstantial evidence. Therefore, at this stage for better appreciation of the facts and law involved in these cases, we have taken up these two cases for disposal by this common judgment.
9. Crl.A.No.437/2018 which arises out of S.C.No. 421/2013 is based on the evidence of the injured eyewitness. Crl.A.No.788/2018 which arises out of S.C.No.79/2013 is based on the circumstantial evidence. For better appreciation Crl.A.No.437/2018 is taken up first for discussion. Crl.A.No.788/2018 C/w Crl.A.No.437/2018 12 Reg.Crl.A.No.437/2018 (S.C.No.421/2013):
10. The charges in this case are that accused committed murder of Vedamurthy in Nanjangud during the intervening night of 11/12-10-2012 for wrongful gain. As PW.1-Kavitha the wife of Vedamurthy was aware of Vedamurthy going with the accused and then Vedamurthy was not heard of, she was pestering the accused about her husband's whereabouts. The accused thought that she may expose him and therefore he planned to commit her murder. In execution of such plan, on 16.10.2012 he went to the house of PW.1 in Bengaluru and attempted to commit her murder by assaulting her in her bedroom with the iron rod and by throttling her. When her son PW.2 rushed there on hearing the commotion, the accused bolting the door of the room from outside, escaped. When PWs.1 and 2 raised alarm, PW.4/the neighbour and PW.5/landlady rushed there, opened the door and shifted PW.1 to Sapthagiri Hospital where PW.6 the doctor treated her. When PW.1 was being treated PW.7 the PSI of Peenya Police Station visited the hospital and recorded her statement. On registering FIR, he conducted the investigation and charge-sheeted the accused. Crl.A.No.788/2018 C/w Crl.A.No.437/2018 13
11. The Trial Court on hearing the parties framed the charges against the accused for the offences punishable under Sections 326 and 307 IPC. As the accused denied the charges, trial was conducted. On recording the evidence and on examining the accused, the Trial Court by the impugned judgment and order convicted the accused for the offences punishable under Sections 326 and 307 IPC and sentenced him to imprisonment and fine as follows:
Offence Imprisonment Fine Default
sentence
326 IPC 7 years S.I 3,000/- 30 days
307 IPC 7 years S.I 5,000/- 45 days
12. The Trial Court held that the charges were proved beyond reasonable doubt by the evidence of PW.1 the victim, PW.2 the eyewitness and their evidence was corroborated by the evidence of PWs.4 and 5 the neighbours who came to the spot and saw the accused escaping from the scene of offence. Their evidence was further corroborated by PW.6/the doctor and PW.7/the Investigating Officer.
13. Sri. K.A. Chandrashekara, learned Counsel for appellant/accused reiterating the grounds of the appeal submits Crl.A.No.788/2018 C/w Crl.A.No.437/2018 14 that there is unexplained and inordinate delay in filing the complaint, delivering FIR to the Court, PW.2 is tutored witness and he admits having not seen the incident. PWs.2 to 5 are all interested witnesses. He further submits there are material contradictions and inconsistencies in the prosecution evidence. He further submits that the evidence on record shows that PW.1 has falsely implicated the accused only due to her suspicion of involvement of the accused in her husband's murder case of which he is acquitted. The Trial Court committed grave error in appreciation of the evidence and convicting the accused.
14. Per contra Smt. Rashmi Jadhav, learned Addl. SPP submits that the accused has admitted the presence of himself and the victim at the scene of offence and the injuries suffered by the victim at such time. But according to him the victim suffered accidental injuries, whereas, the victim and PW.2 unequivocally deposed about the overt acts of the accused. The evidence of PWs.1,2,4 and 5 shows that after the incident the accused bolted the room from outside and ran away. If the injuries were accidental one, accused would not have ran away like that. Such conduct of the accused shows that he was guilty. Crl.A.No.788/2018 C/w Crl.A.No.437/2018 15 He did not probabilise his defence. The victim was not responsible for delay in recording the statement or registering the FIR. Such delay is not fatal when the evidence of the witnesses is reliable. In such cases conviction can be placed based on the sole evidence of injured eyewitness. However, in this case her evidence was further corroborated by the other evidence on record. The acquittal of the accused in the murder case of husband of PW.1 is the subject matter of Crl.A.No.788/2018. Therefore, the said acquittal does not enure to the benefit of the accused.
15. On considering the submissions of both sides and on examination of the materials on record, the question that arises for determination is "Whether the impugned judgment and order of conviction and sentence is sustainable in law?".
Analysis
16. The case of the prosecution is based on i. Evidence of PW.1 the injured eyewitness ii. PW.2 the eyewitness iii. PWs.4 and 5 the res-gestae witnesses.
iv. Medical evidence of PW.6 Crl.A.No.788/2018 C/w Crl.A.No.437/2018 16 v. PW.7 who registered FIR, conducted investigation and filed charge sheet. vi. Circumstance of motive. 17. According to the prosecution, the accused on
committing murder of PW.1's husband for wrongful gain, attempted to kill her as she alone was aware of her husband going along with the accused and was unheard thereafter. PW.1 deposed consistent with her complaint/statement/Ex.P1. Herself, her husband, her son PW.2 living together in the rented house of PW.5 was not disputed. She also deposed about her husband's business, accused visiting their house frequently and on 16.10.2012 at 12.30 p.m. he coming to her house in the absence of her husband. She further deposed about her enquiry with the accused about her husband and accused telling her that her husband had gone to Yelahanka on his work and asked him to wait in the house till 2.30. p.m. She further deposed about she serving coffee and lunch to the accused and when himself and PW.2 were watching T.V, she retiring to the bedroom for relaxing and about 2.30-3.00 p.m the accused entering her bedroom assaulting her with rod MO.1 on her right eye and on she falling from the cot, he trying to strangulate her. She further Crl.A.No.788/2018 C/w Crl.A.No.437/2018 17 deposed about her son listening to her cries rushing into the room and then accused pushing both of them and escaping by locking both of them into the room and then they raising alarm through the window of the room and PWs.4,5 and other neighbours getting into the room, opening the door and shifting her to the hospital etc. She further deposed that on 17.10.2012 when she was in the hospital, police recorded her statement as per Ex.P1 and later she identified the accused and the footwear and innerwear of the husband. She also deposed about the accused luring her husband of jointly doing petrol bunk business, securing him to Nanjangud with blank cheque, thereafter her husband going missing and the accused drawing Rs.95,000/- using her blank cheque taken by her husband.
18. In the cross-examination of PW1, she suffering injuries in her bedroom when the accused was present was not disputed. Her husband's homicidal death was also not disputed. But his defence was that she picked up quarrel with him about her husband not returning home, threatened to file police complaint against him and tried to close the door of the house, Crl.A.No.788/2018 C/w Crl.A.No.437/2018 18 in that scuffle, he pushed her, she fell and suffered injuries, which she denied.
19. The accused does not dispute that scene of offence is the bedroom of PW.1. The evidence of PW.1 regarding the scene of offence being the bedroom was corroborated by the evidence of PW.2 and neighbours PWs.4 and 5. PW.5 deposed that on listening to the commotion from the house of PW.1, she came out of the house and found PW.1 calling for help by waving her hand through the window of the bedroom and accused running away from PW.1's house. Similarly, PW.4 deposed that on listening to the commotion from the house of PW.1, she rushed there and found accused running away from the house of PW.1. PWs.4 and 5 both deposed that they found PWs.1 and 2 being locked into the bedroom, they along with other neighbours opened bedroom and found injured PW.1. PW.5 deposed about herself and neighbours shifting the injured first to Ramachandra nursing home and on reference taking her to Sapthagiri Hospital.
20. The evidence of PWs.1,2, 4 and 5 regarding the scene of offence being the bedroom of PW.1 was not impeached. If the accused was just a visitor, he had no reason to enter the Crl.A.No.788/2018 C/w Crl.A.No.437/2018 19 bedroom of another woman in the absence of her husband. It was not his case that PW.1 had called him into her bedroom. Apart from that, if the victim suffered accidental injuries, there was no reason for him to lock PWs.1 and 2 into the bedroom and run away. Further the evidence of PWs.1 and 2 shows that PW.1 had made her son PW.2 to sit in the hall when accused was watching the T.V and it was the accused who sent PW.2 outside by insistence, apparently only to grab the opportunity to assault the victim.
21. The evidence of PW.1 is sought to be impeached on the ground that there is delay in filing the complaint and she has falsely implicated him in the present case to hook him in her husband's murder case also. The evidence of PW.6 the doctor and the wound certificate Ex.P4 show that the victim was taken to Sapthagiri Institute of Medical Science and Research Centre, Bengaluru on 16.10.2012 at 3.15 p.m., with history of assault by a rod and attempt of manual strangulation in her house by a known person. Within such a short time there was no scope for manipulation of theory of assault or introduction of rod or manual strangulation. PW.6 is an independent witness. There is no reason to disbelieve her evidence. Similarly, PW.1 had no Crl.A.No.788/2018 C/w Crl.A.No.437/2018 20 reason to shield her true culprit, if the assault was by somebody else. It is not the case of the accused himself that any third person was present in the house at the time of offence.
22. It is the settled proposition of law that an injured eyewitness stands on higher pedestal and there should be strong reason to discard his/her evidence. The Hon'ble Supreme Court in para No.9 to 9.2 of the judgment in Lakshman Singh V. 1 State of Bihar relying on several of its earlier judgments held as follows:
9. In State of MP vs. Mansingh [(2003)10 SCC 414], it is observed and held by this Court that "the evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly". It is further observed in the said decision that "minor discrepancies do not corrode the credibility of an otherwise acceptable evidence". It is further observed that "mere non-mention of the name of an eyewitness does not render the prosecution version fragile".
9.1. A similar view has been expressed by this Court in the subsequent decision in the case of Abdul Sayeed vs. State of M.P.[(2010) 10 SCC 259]. It was the case of identification by witnesses in a crowd of assailants. It is held that "in cases where there are large number of assailants, it can be difficult for witnesses to identify each assailant and attribute specific role to him". It is further observed that "when incident stood concluded within few minutes, it is natural that exact version of incident revealing every minute detail, i.e., meticulous exactitude of individual acts, cannot be given by eyewitnesses". It is further observed that "where witness to occurrence was himself injured in the incident, testimony of such witness is generally considered 1 2021 (9) SCC 191 Crl.A.No.788/2018 C/w Crl.A.No.437/2018 21 to be very reliable, as he is a witness that comes with an inbuilt guarantee of his presence at the scene of crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone". It is further observed that "thus, deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on basis of major contradictions and discrepancies therein".
9.2 The aforesaid principle of law has been reiterated again by this Court in the case of Ramvilas vs. State of M.P. [(2016)16 SCC 316] and it is held that "evidence of injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard their evidence".
It is further observed that "being injured witnesses, their presence at the time and place of occurrence cannot be doubted".
(Emphasis supplied)
23. The thrust of the accused to question the evidence of PW.1 is about the delay in recording her statement/filing complaint. It is no doubt true that PWs.1 and 2 both said that when PW.1 was in the hospital, on the same day police came there and enquired her. The incident said to have taken place on 16.10.2012 between 2:00 and 3:00 p.m. As per the evidence of PW.7, statement Ex.P1 was recorded on 17.10.2012 i.e., next day at 2:25 p.m. The FIR Ex.P5 was delivered to the Court on 18.10.2012 at 11:00 a.m. It was contended that as per the evidence of PWs.1 and 2, though the police visited the hospital on 16.10.2012 itself, the statements of PWs.1 and 2 or at least the person who admitted PW.1 to the hospital Crl.A.No.788/2018 C/w Crl.A.No.437/2018 22 could have been recorded and FIR could have been registered on that basis. If police fail to record the statement promptly, the victim or PW.2 who was aged hardly 9 years at the time of incident had no role in that. By that time, their only supporter i.e., husband of PW.1 and father of PW.2 had gone missing and later they came to know about his death. PWs.1 and 2 were at the mercy of their neighbours and relatives. PW.3 the brother of PW.1 also says that he reached the hospital on the day of the incident at about 6:00-7:00 p.m.
24. There is no dispute that PW.1 was treated in the hospital as in-patient between 16.10.2012 to 22.10.2012 and she had suffered the following injuries:
i. Lacerated wound on right zygomatic region measuring 5x4 cm x bone deep.
ii. Lacerated wound on right temporal region measuring 3x1 cm x muscle deep.
According to PW.6, they were the grievous injuries. Under such circumstance, the concern of the victim, her relatives or the neighbours would be to attend to her medical needs. Therefore, delay on the part of the police in recording the statement of the victim itself does not falsify the evidence of PW.1, which was further corroborated by the evidence of other witnesses and Crl.A.No.788/2018 C/w Crl.A.No.437/2018 23 medical evidence. Considering such aspects the Hon'ble Supreme Court in Hariprasad V. State Chhattisgarh2 relying on its earlier several judgments in para 10,11 and 15 of the judgment held as follows:
"10. Of course, the delay in lodging an FIR by itself cannot be regarded as the sufficient ground to draw an adverse inference against the prosecution case, nor could it be treated as fatal to the case of prosecution. The Court has to ascertain the causes for the delay, having regard to the facts and circumstances of the case. If the causes are not attributable to any effort to concoct a version, mere delay by itself would not be fatal to the case of prosecution.
11. In Ravinder Kumar and Another Vs. State of Punjab [(2001) 7 SCC 690], it has been held that: -
"13. The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
14. ...................................................................................2
2024 (2) SCC 557 Crl.A.No.788/2018 C/w Crl.A.No.437/2018 24
15. We are not providing an exhaustive catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR. (Vide Zahoor v. State of U.P. [1991 Supp (1) SCC 372], Tara Singh v. State of Punjab [1991 Supp (1) SCC 536] and Jamna v. State of U.P. [1994 Supp (1) SCC 185]. In Tara Singh the Court made the following observations: (Tara Singh case, SCC P.541, para 4) '4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.' "
(Emphasis supplied)
25. In the present case also, the facts and circumstances narrated above show there was no intentional delay on the part of PWs.1 to 5 in reporting the matter to the police. Therefore, such delay does not cast any shadow on the evidence of PWs.1,2,4 and 5.
Crl.A.No.788/2018C/w Crl.A.No.437/2018 25
26. It was contended that as per the prosecution, motive for the murder of husband of PW.1 was for wrongful gain and in turn motive for the present crime against PW.1 was to screen the evidence of murder of her husband. However, the handwriting of the accused on the cheque in question was not proved. It was also contended that the accused was handed over a duly written and signed cheque by PW.1 and on her request, he withdrew Rs.95,000/- and had paid it to her. Therefore, motive circumstance was not proved.
27. It is settled principle of law that when a case is based on the evidence of injured eyewitness, the motive circumstance loses its significance. Secondly, whether the cheque in question was in the handwriting of the accused, was not the subject matter of this case, but that was the subject matter of S.C.No.79/2013 out of which Crl.A.No.788/2018 arises. Therefore, that issue will be discussed in that case. Moreover, when the accused claims that PW.1 had handed over a completely filled up cheque to him for encashment and after encashing that he paid Rs.95,000/- to PW.1, the burden was on him to probabilise establish the same. But no such suggestions Crl.A.No.788/2018 C/w Crl.A.No.437/2018 26 were made to PW.1 herself. Such suggestions were made only to the Investigating Officer, who denied the same. Therefore, the said contention also does not deserve any merit.
28. The evidence of PW.1 was duly corroborated by the evidence of PWs.2 and 4 to 7. PWs.4 and 5 identified the accused. His conduct of running away from the scene of offence becomes relevant under Section 8 of the Indian Evidence Act, 1872 ('the Evidence Act' for short) which he failed to explain. Much was argued about not referring MO.1 to FSL for examination. It was not the case of the prosecution that MO.1 had bloodstains. Secondly, when the evidence on record is sufficient to prove the charge, such non-reference of MO.1 for forensic examination, at the most, amounts to lapse on the part of Investigating Officer. But that does not demolish the case of the prosecution.
29. It was contended that even assuming that the accused assaulted PW.1, she had not suffered grievous injuries as contemplated under Section 320 IPC. Learned Counsel for the appellant further submits that as per the doctor/PW.6, such injuries do not cause death, therefore at the most the overt acts Crl.A.No.788/2018 C/w Crl.A.No.437/2018 27 alleged constitute an offence under Section 324 IPC. He submits that reducing the conviction to Section 324 IPC, the accused may be sentenced to period of detention already undergone by him.
30. To constitute an offence punishable under Section 307 IPC the injuries being the grievous one, is not a precondition. Reading of Section 307 IPC shows that the pre- requisite for offence of attempt to commit murder are the intention or knowledge of the accused to cause death and such intention or knowledge has to be deduced from the circumstances of the case. The said provision shows that if there is only attempt without causing any hurt, the sentence prescribed is imprisonment upto ten years and fine and if during such attempt hurt is caused to the victim, the offence is punishable with imprisonment upto life or upto ten years and fine. Therefore, it is clear that hurt is not a pre-requisite to bring the offence under the first part of 307 IPC.
31. In the present case, the evidence on record shows that the accused has caused hurt to the victim on the vital parts namely the temporal region and zygomatic region with the iron Crl.A.No.788/2018 C/w Crl.A.No.437/2018 28 rod and he attempted to strangulate her neck. Therefore, it is difficult to accept that he had no intention to cause death or no knowledge that his acts would cause death. But for the resistance of PWs.1 and 2, he would have completed his attempt. Therefore, there is no merit in the contention that the offence falls only under Section 324 IPC.
32. So far as the conviction and sentence under Section 326 IPC, it is settled law that whenever an act of the accused constitutes two different offences like 307 IPC, 326 or 324 IPC against the same victim, the minor offences merge in the major offence i.e., Section 307 IPC [vide Section 220(3) and (4), Section 221 and 222 Cr.P.C]. The Trial Court should have framed the charge under Section 307 IPC and if intention or knowledge to attempt on life were not proved, then the Trial Court could have convicted and sentenced him to the lesser offence like Section 324 or 326 IPC. Convicting and sentencing him for both charges namely Sections 326 and 307 IPC amounts to double jeopardy within the meaning of Article 20(2) of the Constitution of India and Section 300 Cr.P.C. Therefore, the Trial Court committed error in convicting and sentencing the accused for Crl.A.No.788/2018 C/w Crl.A.No.437/2018 29 Section 326 IPC even after convicting and sentencing him for the offence under Section 307 IPC. Thus, only the order of conviction and sentence for the offence under Section 326 IPC is liable to be set aside and the appeal succeeds only to that extent.
33. So far as Section 307 IPC the impugned judgment and order of conviction and sentence passed by the Trial Court is based on the sound appreciation of the evidence and assigning sustainable reasons. That does not warrant any interference. Crl.A.No.788/2018 (S.C.No.79/2013)
34. In this appeal the State has challenged the judgment and order of acquittal of the accused in S.C.No.79/2013 passed by III Additional Sessions Judge, Mysore.
35. At the cost of repetition the brief narration of the case of the prosecution is as follows:
(i). The accused hails from Nanjangud. The accused and deceased/Vedamurthy were together doing Sheet Centering work under a contractor in Bengaluru. After some time, Vedamurthy started his own contract work and thrived. The accused for about four years worked under Vedamurthy, then Crl.A.No.788/2018 C/w Crl.A.No.437/2018 30 shifted to his village. Still whenever Vedamurthy had more work he used to get the services of the accused. The accused planned to siphon money of Vedamurthy. In execution of such plan, he induced Vedamurthy of running a petrol bunk as joint venture project. The accused represented to Vedamurthy that owner of a petrol bunk at Nanjangud is going abroad, therefore, he intends to lease out the said bunk to others, the project cost was Rs.15,00,000/-. The accused further told Vedamurthy that he contributes Rs.9,00,000/- and Vedamurthy shall contribute Rs.6,00,000/- and agreement can be taken in the name of PW.5 (wife of Vedamurthy). On 11.10.2012 on the representation of the accused that the owner of the petrol bunk has come down to Nanjangud and Vedamurthy shall go there with PW.5's bank cheque to pay Rs.1,00,000/- and other related records to enter into the agreement, Vedamurthy left to Nanjangud in the afternoon. Before that the accused had planned the commission of murder of Vedamurthy and for that he chose the watchman shed built in the fallow land of one Thomas. He broke the lock of the said shed put by the owner and locked that using his own lock. On Vedamurthy reaching Nanjangud at 7.30 p.m., accused met him, took him to a bar where deceased had beer and then Crl.A.No.788/2018 C/w Crl.A.No.437/2018 31 both of them had dinner in one Dhaba. Then accused took him to the aforesaid shed and Vedamurthy removed his pant and shirt and slept. At 1.00 a.m., the accused assaulted Vedamurthy with M.O.2 the stones and committed his murder.
(ii). Thereafter the accused collected the cheque Ex.P9, pant, shirt mobile phone and bag of the deceased, locked the room and left. Before leaving the place, to confuse the identity of the dead body and mislead investigation, the accused left one election ID card, two health cards and some photographs relating to one Mahaveer Sharbidre and Savitha Sharbidre (Ex.P46) which they had lost. On the way he dropped the bag and phone of the deceased in Kapila River and carried Ex.P9 with him.
(iii). Between 12.10.2012 and 15.10.2012 he went on roaming here and there. During the aforesaid period PW.5 was pestering the accused seeking the whereabouts of her husband.
The accused fearing that she may entrap him in police case, decided to eliminate her and accordingly on 16.10.2012 went to her house and attempted to commit her murder (which is discussed in the connected appeal).
Crl.A.No.788/2018C/w Crl.A.No.437/2018 32
36. In the meantime, PW.1/Raju a neighbour at the scene of offence on 17.10.2012 at 3.30 p.m. found some foul smell emanating from shed of Thomas. When he peeped through the window of the shed, he noticed the dead body and filed complaint as per Ex.P1 before ASI, based on which FIR Ex.P47 in Crime No.244/2012 of Nanjangud Rural police station was registered against unknown person for the offence under Section 302 IPC. Then PW.19/the Circle Inspector of Nanjangud Rural Police Station took up the investigation, conducted the spot mahazar of scene of offence and the inquest on the dead body, got conducted the Post mortem examination and got the dead body buried. During the investigation, he recorded the statements of the witnesses including that of wife and son of the deceased and arrested the accused. The interrogation of the accused revealed that forging the cheque Ex.P9, the accused withdrew Rs.95,000/- from the account of PW.5 and on attempting to kill PW.5, he ran away with that amount. On the basis of the voluntary statement of the accused, incriminating materials were seized, he collected the CDRs, Bank cheque etc., and on completing the investigation filed the charge sheet against the accused.
Crl.A.No.788/2018C/w Crl.A.No.437/2018 33
37. The Trial Court on hearing the parties framed the charges against the accused for the offences punishable under Sections 302, 201, 465 and 471 IPC. As the accused denied the charges, trial was conducted. In support of the case of the prosecution PWs.1 to 21 were examined, Ex.P1 to P63 and MOs.1 to 13 were marked. The accused after his examination under Section 313 Cr.P.C did not lead defence evidence.
38. The Trial Court on hearing the parties by the impugned judgment and order acquitted the accused. The Trial Court held that the prosecution proved the identity of the dead body and the death being homicidal one. However, the Trial Court held that the case was based on circumstantial evidence and the circumstance of motive, last seen together, Ex.P9 being the robbed cheque and forgery of the cheque were not proved. The Trial Court further held that mere phone calls between the accused, deceased and the wife of the deceased were not sufficient to indict the accused, therefore acquitted him.
39. Smt. Rashmi Jadhav, learned Addl. SPP reiterating the grounds of the appeal submits that though the case is based on the circumstantial evidence, the circumstance of motive and Crl.A.No.788/2018 C/w Crl.A.No.437/2018 34 last seen together are established by the evidence of PWs.5 and 6, the call detail records and the evidence of Bank officers. The accused himself admitted withdrawal of the amount from the bank account of PW.5 and claimed that she had given the cheque Ex.P9 which was filled up by her relative Lokesh and on drawing Rs.95,000/- he paid the cash to PW.5, but he failed to probabilise his defence of payment of Rs.95,000/-. If the accused was innocent when he came to know about missing of the deceased, he should have attempted to trace him and supported PW.5 in tracing him. Contrary to that he attempted to commit murder of PW.5. Such conduct of the accused clearly shows his involvement in the crime and motive for murder. The Trial Court was not right in ignoring the fact of recovery of Rs.95,000/- from the house of the mother of the accused at his instance. Further the conduct of the accused changing his cell phone to avoid contact from PW.5 and police shows his guilty mind. The Trial Court committed serious error in appreciation of the evidence and acquitting the accused which has defeated the ends of justice. Thus she seeks reversal of the acquittal judgment.
Crl.A.No.788/2018C/w Crl.A.No.437/2018 35
40. Per contra Sri K.A Chandrashekara, learned Counsel for the accused submits that this being an appeal against the order of acquittal, the scope of interference is very limited. He further submits that unless it is shown that the impugned judgment and order of acquittal suffers patent illegality or perversity, this Court cannot reverse the same only on the ground that two views are possible. He further submits that the case is based on circumstantial evidence and to prove the circumstance of motive, the handwriting of the accused on cheque/Ex.P9 itself was not proved. The witness to the last seen circumstance also did not support the case of the prosecution. The fact of PW5/wife not filing any missing complaint for a long time shows that she has falsely implicated the accused only at a later stage. Based on her complaint in another case, subsequently the accused is trapped into this case. There were missing links in chain of circumstances. Therefore, the Trial Court was justified in acquitting the accused. Thus, he seeks dismissal of the appeal. In support of his submission, he relies on the following judgments:
i. Shailendra Rajdev Pasvan v. State of Gujarat3 3 AIR 2020 SC 180 Crl.A.No.788/2018 C/w Crl.A.No.437/2018 36 ii. Raja Naykar v. State of Chhattisgarh4 iii. R. Sreenivasa v. State of Karnataka5 iv. Shankar v.State of Maharashtra6 v. Shailendra Rajdev Pasvan v. State of Gujarat7 vi. Laxman Prasad Alias Laxman v. State of Madhya Pradesh8
41. On considering submissions of both sides and on examination of materials on record, the point that arises for determination is "whether the impugned judgment and order of acquittal is sustainable in law ?"
Analysis
42. In this case there were no eyewitnesses to the crime. The case was based on circumstantial evidence. The circumstances relied by on the prosecution are as follows:
i) Motive - The accused with an intention to siphon the money of the victim secured him to the scene of offence in the guise of starting petrol business, committed his murder and robbed the cheque Ex.P9 and got that encashed; 4
Crl.A.No.902/2023 D.D.24.01.2024 5 Crl.A.No.859/2011 D.D.06.09.2023 6 2023 SCC Online SC 268 7 (2020) 14 SCC 750 8 (2023) 6 SCC 399 Crl.A.No.788/2018 C/w Crl.A.No.437/2018 37
ii) Last seen circumstance;
iii) Withdrawal of the cash from the Bank under the cheque Ex.P9 forging the contents of the cheque ;
iv) The recovery of Rs.95,000/- at the instance of the accused;
v) Medical evidence ;
vi) Evidence of official witnesses;
43. Before appreciating the evidence in the case, it is necessary to advert to the judgments relied on by Sri K.A.Chandrashekar, learned Counsel for the accused. Though he relied on innumerable judgments they deal with two points namely, the power of the appellate Court to interfere with the judgment of acquittal and the appreciation of circumstantial evidence.
44. In Shailendra Rajdev Pasvan's case referred to supra, the Hon'ble Supreme Court held that while reversing the Trial Court's order of acquittal, the Appellate Court should give proper weight and consideration to the presumption of innocence available to the accused at the trial stage and that the same got re-affirmed and strengthened by the order of acquittal. It was Crl.A.No.788/2018 C/w Crl.A.No.437/2018 38 further held that unless the acquittal order suffers manifest illegality or perversity, such judgment cannot be reversed merely on the ground that another view is possible.
45. In the aforesaid judgment and other judgments relied on by the counsel for the accused, it is held that if the case is based on circumstantial evidence, the chain of circumstances must be so complete to point out to the only hypothesis of the guilt of the accused and if there is any break in the chain, that benefit should go to the accused. It was also held that the evidence regarding last seen circumstance must be conclusive. Therefore, we have to examine whether the evidence on record points out to the only hypothesis of guilt of the accused and the Trial Court has committed manifest illegality in acquitting the accused.
Identity of the dead body :
46. According to the prosecution, accused committed murder of the victim on 11.10.2012 at 1:00 a.m. in watchman shed situated in the fallow land of one Thomas, then he locked the room from outside and went away. The dead body was discovered on 17.10.2012 at about 3:30 p.m when PW.1 on Crl.A.No.788/2018 C/w Crl.A.No.437/2018 39 getting foul smell, peeped through the window of the shed and found the dead body. As per the prosecution and the post- mortem report, the body was totally decomposed and unidentifiable. However, during the spot mahazar and inquest mahazar Ex.P2 and Ex.P3, the footwear, the nicker and banian of the deceased viz., MOs.1, 4 and 5 respectively were seized. PWs.5 and 6 the wife and son of the deceased identified them as that of the deceased. Considering the same the Trial Court rightly held that even though DNA test report was inconclusive, the identity of the dead body was established by such evidence of PWs.5 and 6.
Reg. Nature of death:
47. As per Ex.P37 the post-mortem report, there was depressed fracture of left frontal bone of the skull. PW.13 the doctor who conducted the post-mortem examination deposed that though the dead body was not identifiable, there was wound over the left forehead measuring 2x2 inches and there was abrasion over the right shoulder. He further deposed that the fracture of the skull would have been caused by the stones MO.2. Ex.P2 the spot mahazar and the ocular evidence in support of the same shows that two size stones MO.2 were Crl.A.No.788/2018 C/w Crl.A.No.437/2018 40 found lying on the left and right side of the head of dead body. As per Ex.P3 the inquest mahazar, the face of the dead body was crushed. Further the room where the dead body was found was locked from outside. The deceased was wearing only banian and underwear. From the above evidence the Trial Court rightly arrived at the conclusion that the death was homicidal one. Even the accused did not seriously dispute the nature of death, but he disputed only his connection to the death. Under the circumstances, there is no reason to disagree the finding of the Trial Court that the death was homicidal one. Reg. Last seen circumstance:
48. Two versions of the prosecution on the last seen circumstance are that on 11.10.2012 after the deceased meeting the accused at 8:00 p.m. the accused took him to Carvan Bar and Restaurant, there PW.12 served the deceased beer and he saw the accused and deceased together. Thereafter, the accused went missing.
49. The next version of prosecution regarding last seen together is that till the deceased reached Nanjangud he kept on informing his wife about his whereabouts, lastly about 8:30 p.m. Crl.A.No.788/2018 C/w Crl.A.No.437/2018 41 he informed over phone that he has met the accused in Nanjangud and he will call her after entering into the lease agreement. Thereafter though she tried several times to contact the deceased she was getting 'switched off' response. She kept on enquiring the accused about her husband's whereabouts, but the accused went on evading saying that her husband's phone is stolen, her husband has gone to M.M.Hill and they are not together etc. Ultimately on 16.10.2012 at about 12:00 noon the accused alone came to her house saying that the deceased has gone to his work place in Yelahanka and asked him to wait in the house till he arrives home and at about 2:00 p.m he attempted to commit her murder in her bedroom.
50. So far as PW.12 sighting the accused and deceased in Carvan Bar, though he admitted his employment as waiter in the said bar in 2012, he did not support the prosecution version about he sighting the accused and deceased together. In the cross-examination by the public prosecutor on treating him hostile, he denied having given statement as per Ex.P35 about he sighting the accused and the deceased together in the said Crl.A.No.788/2018 C/w Crl.A.No.437/2018 42 Bar. Therefore, the said circumstance so far as PW.12 was not proved beyond reasonable doubt.
51. So far as the deceased informing PW.5 over phone on 11.10.2012 at 8:30 p.m. about he being with the accused, she has supported the prosecution version. The accused also did not dispute about the deceased going to Nanjangud on 11.10.2012 and about he went missing since that night. To prove that the accused was in contact with the deceased during that day, the prosecution apart from the evidence of PW.5 relied on the evidence of PW.19 the Investigating Officer, PWs.20 and 21 the nodal officers of Reliance Communication Centre and Bharathi Airtel Limited respectively and Ex.P49 to P59 the customer application forms submitted by the deceased and the accused to buy the SIM cards, the copies of driving license, election I.D card submitted along with such applications, call details records of the phone of the accused, the deceased and PW.5, the certificate under Section 65 (B) of the Evidence Act.
52. PW.20 deposed that Vedamurthy by submitting application Ex.P49 had purchased Mobile SIM card No.9353003895 and on the requisition of the police he has Crl.A.No.788/2018 C/w Crl.A.No.437/2018 43 issued call detail records of the said number as per Ex.P51. His evidence shows that the said mobile number operated on 11.10.2012 at 7:10 a.m. and 13:50 p.m. in Dasarahalli, Bengaluru, at 14:53 at Gandhinagar, Bengaluru, 17.45 hours in Mandya and 20.07 hours in Nanjangud Industrial area. The accused did not deny such evidence of PW.20. The said evidence corroborates the evidence of PW.5 that on 11.10.2012 at 1:30 p.m. her husband returned from work and informed about accused calling him to Nanjangud for entering into Petrol pump business agreement and she dropping him to bus stop and her husband calling her from Maddur and again calling her from Nanjangud at about 8:30 p.m.
53. PW.21 deposes about the accused first buying mobile SIM No.9632928749 of Bharathi Airtel by submitting the application Ex.P53 dated 30.01.2009 furnishing his name as Karunakumar and again buying second SIM No.9845846402 under the application Ex.P56 dated 18.10.2012 and he furnishing Ex.P55 the CDR of sim No.9632928749, Ex.P58 the CDR of sim No.9845846402 and Section 65(B) certificates regarding the same. The accused did not controvert his evidence by cross- Crl.A.No.788/2018 C/w Crl.A.No.437/2018 44 examining him. According to the prosecution the accused after assaulting PW.5, to avoid police tracking him based on his earlier phone number namely 9632928749 changed his phone number. The accused has not given any explanation for changing his phone number.
54. The evidence of PWs.5,6,20 and 21 coupled with the aforesaid documents show that on the instruction of the accused to come to Nanjangud for the purpose of petrol pump agreement, deceased left to Nanjangud and he last called his wife PW.5 at about 8:30 p.m. saying that he is with the accused and thereafter he went missing and ultimately found dead. Therefore, such statement of the deceased to PW.5 becomes relevant under Section 32(1) of the Evidence Act and Court can rely on the same. The fact of the accused attempting to commit murder of PW.5 and thereafter changing his phone number without any reason shows his guilty mind. The Trial Court failed to appreciate the aforesaid evidence in the light of Section 32 of the Evidence Act and the circumstances of the case. The Trial Court was not justified in rejecting the call detail records or the last communication between the accused and the deceased only Crl.A.No.788/2018 C/w Crl.A.No.437/2018 45 on the ground that the accused admittedly belongs to Nanjangud and his phone operating within that area was natural. The Trial Court failed to note that the last calls between the accused and the deceased, the last call of the deceased to PW.5 emanated from Nanjangud Industrial area and the dead body was found in the same area. Therefore, this evidence of deceased informing PW.5 about he being in the company of accused and aforesaid phone calls, are proximate to the time and place of death of the deceased and that amounts to the credible evidence of the victim and the accused being last seen together soon before the death of the victim. Suffice it to say that, the judgments relied on by the learned Counsel for the accused regarding last seen theory are not applicable to the facts of the present case. Under the circumstances, the finding of the Trial Court that the last seen circumstance was not proved by the evidence of PWs.5,6,19 to 21 and call detail records, is a manifest error.
Reg. Recovery of Rs.95,000/-:
55. According to the prosecution, the accused after committing murder of Vedamurthy, robbed Ex.P9 the blank signed cheque of the account of PW.5 from the pant pocket of Crl.A.No.788/2018 C/w Crl.A.No.437/2018 46 the deceased, then stuffed the pant, shirt and mobile phone of the deceased in a bag and dropped that in Kapila River. It is further case of the prosecution that on 16.10.2012 the accused went to Vijaya Bank, Dasarahalli Branch, filled up sum of Rs.95,000/- and name of one Lokesh as drawee in Ex.P9, withdrew Rs.95,000/-. It is further case of the prosecution that as PW.5 alone was aware about Vedamurthy going with the accused and she was pestering him about her husband's whereabouts, the accused apprehending that she may expose him, went to her house and attempted to commit her murder, thereafter he escaped with the said amount and kept that in his mother's house. On his arrest, on the basis of his voluntary statement Ex.P48, the same was recovered under the mahazar Ex.P18 in the presence of PWs.8 and 9.
56. PWs.8 and 9 supported recovery of Rs.95,000/- from the house of the mother of the accused in Hejjige Village of Nanjangud Taluk under the mahazar Ex.P18. They deposed that on 09.11.2012 on the requisition of the Investigating Officer they had been to Nanjangud police station where the accused volunteered to show the place of commission of offence, Crl.A.No.788/2018 C/w Crl.A.No.437/2018 47 produce cash of Rs.95,000/- etc., led them and the police, first to the place of commission of offence where the mahazar Ex.P17 was drawn, then he led them to his mother's house Hejjige village. They further deposed that the accused produced the black bag from the said house which contained Rs.95,000/- consisted of 190 currency notes of denomination of Rs.500/- each and his mobile phone and they were seized under the mahazar Ex.P18. Their evidence was corroborated by the evidence of Investigating Officer/PW.19. The evidence of PWs.8 and 9 is assailed on the ground that they were not the local residents of place of seizure. PW.9 is the resident of Nanjangud. PW.8's evidence shows that he was the neighbour of PW.5 and her husband since 2 to 3 years prior to the incident and they were helping each other. He says that himself and one Manjanna had gone to the Nanjangud police station to enquire whether the accused was traced. He further deposed that as PW.5 was indisposable due to the injuries inflicted by the accused being her neighbour he had gone to the police station. No malafides can be attributed for he extending his helping hand to a helpless neighbour/victim and going to the police station to ascertain the progress in tracing the accused. They Crl.A.No.788/2018 C/w Crl.A.No.437/2018 48 cannot be called as interested witnesses as the implication of the accused in the case or his conviction in no way benefit them.
57. Though the accused contended that PW.5 had sent Rs.95,000/- with PW.8 and planting the said amount the mahazar was drawn, the said defence was not probabilised. First of all during the said period PW.5 was undergoing the physical and mental trauma because of assault by the accused and loss of her husband. Secondly, her bank statement Ex.P10 shows that the balance in her account as on 16.10.2012 was only Rs.7,512.82 as Rs.95,000/- was withdrawn on that day. The accused admitted that he withdrew Rs.95,000/-, but according to him he handed over the same to PW.5 on the same day which was denied by her in her cross examination. Therefore burden was on him to probabilise such payment. In fact no such suggestion of payment was made to PW.5 in the connected case namely S.C.No.421/2013 where she was examined as PW.1. Such suggestion was made only to the Investigating Officer which he denied. Further when the accused was first produced before the Magistrate, he did not make such Crl.A.No.788/2018 C/w Crl.A.No.437/2018 49 allegations of planting the money and making the show of recovery. Though the Trial Court accepted that the circumstance of recovery was proved, still held that such recovery is not sufficient to bring home the guilt of the accused as the other circumstances like last seen together and motive were not proved. Suffice it to say that the circumstance of recovery of Rs.95,000/- at the instance of the accused was proved and he failed to explain why and how he possessed the said amount. Reg. Motive and forgery of Ex.P9 cheque:
58. According to the prosecution, the accused induced the deceased that himself and deceased can jointly carry on petrol business at Nanjangud, he contributes Rs.9 lakhs and deceased shall contribute Rs.6 lakhs and they shall enter into an agreement with petrol pump owner. It is further alleged that the accused said that business can be run in the name of PW.5(Vedamurthy's wife) and owner of the petrol pump has come to Nanjangud, to enter into agreement deceased should go to Nanjangud. Therefore, deceased went to Nanjangud with blank cheque taken on the account of PW.5 signed by her. The accused to make wrongful gain, committed murder of Crl.A.No.788/2018 C/w Crl.A.No.437/2018 50 Vedamurthy, took away the said cheque and got the same realized filling the amount of Rs.95,000/-, the drawee's name as Lokesh and signing the same in the name of said Lokesh. Thus he forged the cheque.
59. To prove that the accused got encashed cheque Ex.P9 for Rs.95,000/-, the prosecution relied on the evidence of PWs.14 and 15 the then Assistant General Manager and Cashier in Vijaya Bank, T Dasarahalli Branch, Ex.P11 to P13 the photographs of the C.C. TV footages, Ex.P9 and 10 the cheque and account extract of the account of PW.5 and the evidence of Investigating Officer.
60. The accused in the cross examination of the aforesaid witnesses and his examination under Section 313 Cr.P.C unequivocally admitted about he visiting the bank, presenting the cheque and encashing the same for Rs.95,000/-. But his defence was that on 16.10.2012 when he went to the house of PW.5, she herself gave him the said cheque which was already written in the name of one Lokesh and requested him to draw the amount and accordingly he drew the amount and gave it to her.
Crl.A.No.788/2018C/w Crl.A.No.437/2018 51
61. The Trial Court rejected the evidence of the prosecution regarding forgery on the ground that the handwriting and the signature of the accused on Ex.P9 were not proved and to rule out the contents of Ex.P9 being that of PW.5 or Lokesh, the Investigating Officer should have sent their handwritings and signatures also for expert's opinion. The Trial Court held that if the accused intended to murder for gain, he could have asked the deceased to bring cash instead of cheque. The Trial Court further held that the prosecution failed to prove that the cheque allegedly sent by PW.5 through the deceased and Ex.P9 were one and the same.
62. Referring to the recital in Ex.P4/the complaint of PW.5, it was argued that PW.5 initially has said that she had issued the cheque for a sum of Rs.1,00,000/- and subsequently deposed that Ex.P9/cheque was blank when she had issued that and the same is material contradiction. Ex.P4 is in kannada. The recital relied on by the defence counsel reads as follows:
"CzÀPÉÌ £Á£ÀÄ M¦à £À£Àß n.zÁ¸ÀgÀºÀ½î «dAiÀÄ ¨ÁåAPï CPËAmï £ÀA.32279gÀ MAzÀÄ ®PÀë gÀÆ.UÉ ZÉPï ¸À» ªÀiÁr, CzÀgÀ eÉÆvÉUÉ ¨ÁåAPï ¥Á¸ï §ÄPï, ¥Á£ï PÁqïð J¯Áè £ÀªÀÄä AiÀÄdªÀiÁ£ÀgÀ PÉÊUÉ PÉÆmÉÖ." Crl.A.No.788/2018 C/w Crl.A.No.437/2018 52
63. Reading of Ex.P4 and the evidence of PW.5 shows that the entire discussion regarding petrol bunk agreement had taken place between the deceased and the accused and PW.5 narrated only the things revealed to her by the deceased. In Ex.P4 she stated that her husband told her in all he has to pay Rs.6,00,000/- , he is arranging 5 lakhs by selling Magadi road site and asked her to give balance of one lakh and agreeing to that she gave the cheque, passbook, pan card to him. It is incorrect to interpret the words "MAzÀÄ ®PÀë gÀÆ.UÉ ZÉPï ¸À» ªÀiÁr, CzÀgÀ eÉÆvÉUÉ ¨ÁåAPï ¥Á¸ï §ÄPï, ¥Á£ï PÁqïð J¯Áè £ÀªÀÄä AiÀÄdªÀiÁ£ÀgÀ PÉÊUÉ PÉÆmÉÖ" as an admission that she filled up Rs.1,00,000/- in the cheque. To call a statement as admission, the same should be unequivocal and clear. A truncated statement cannot be called as an admission.
64. The evidence of PW.5 that she had a scooty, she dropped her husband to bus stop and she was collecting the bills of her husband from his employer was not disputed. That goes to show that she was worldly wise and capable of navigating the bank and other offices. It is the defence of the accused himself Crl.A.No.788/2018 C/w Crl.A.No.437/2018 53 that by the time he went to her house, she frictioned with him for not disclosing the whereabouts of her husband. Under such circumstance, it goes hard to accept that she hands over Ex.P9 to him, a chance visitor, for collection of the proceeds. If Ex.P9/cheque was drawn in the name of one Lokesh, signed by the said drawee and she intended to collect the proceeds of the same, she would not have waited for a chance or unwelcome guest and entrust the cheque to him. She herself could have withdrawn the amount. The recovery of Rs.95,000/- at the instance of the accused is already held proved. If the accused had handed over the money to PW.5 and she suffered injury in the scuffle, there was no reason for him to run away or to change his mobile sim number. The accused who is a sheet centering worker failed to explain how he came in possession of Rs.95,000/-.
65. It is no doubt true that hand-writing expert's opinion was inconclusive about the hand writing on Ex.P9 being that of the accused. The expert's evidence is only an opinion evidence. The prosecution's failure to prove the handwriting of the accused on Ex.P9 does not warrant throwing away the other prosecution Crl.A.No.788/2018 C/w Crl.A.No.437/2018 54 evidence that the accused had filled up the contents and presented the cheque to make the wrongful gain. Though the case is based on circumstantial evidence, the cumulative effect of the evidence on record leads to irresistible conclusion that the accused robbed the cheque from the dead body, presented the same by filling the contents, drew the money and after attempting to commit murder of PW.5, escaped with the money. Criminal trial does not contemplate that the prosecution should lead evidence a fact which is almost impossible to prove. Who had written the contents of the cheque and signed that is within the special knowledge of the accused. Section 106 of the Evidence Act requires him to explain that and probabilise his explanation. In this case his explanation that PW5 gave him Ex.P9 is found unworthy of acceptance. Whereas the evidence of the prosecution shows that there is a ring of truth in the charges that after committing the murder of Vedamurthy, the accused forged the blank cheque, encashed the same etc.,
66. Once the defence of the accused that PW.5 herself had entrusted him Ex.P9 containing the name and signature of Lokesh and consideration amount is rejected and the Crl.A.No.788/2018 C/w Crl.A.No.437/2018 55 prosecution version that she had given blank cheque is found probable, the contention regarding the difference between one lakh and Rs.95,000/- does not sustain because it was the accused who was responsible for the contents of the cheque.
67. So far as the observation of the Trial Court that, if the accused intended to siphon the money of the deceased he could have asked him to bring cash instead of cheque, is also not sound. According to PW5, her husband told that they have to give cheque for Rs.1,00,000/- and she has to give cheque for that. Even otherwise, generally whenever a person wants to enter into a contract with the third party or unknown person, as a matter of prudence, he prefers to hold proof of such payment. Therefore, the deceased taking the blank cheque Ex.P9 is not suspicious circumstance.
68. The Trial Court failed to appreciate the evidence in judicious manner and committed serious error in holding that the accused has probabilised the defence of PW.5 entrusting Ex.P9 to him and the circumstances set up by the prosecution were not proved beyond reasonable doubt. Such approach has defeated the ends of justice as the accused has committed the crimes in a Crl.A.No.788/2018 C/w Crl.A.No.437/2018 56 very calculative and scheming manner. For the sake of Rs.95,000/- he not only cheated his innocent long time friend, but tried to wipe out his wife also. The approach of the Trial Court smacks of patent illegality. Suffice it to say that the judgments relied on by the learned counsel for the accused are not applicable to facts of the present case. The impugned judgment and order of acquittal is liable to be set aside and accused needs to be convicted for the charges. Hence the following:
ORDER IN CRL.A.NO.437/2018
i) The appeal is partly allowed.
ii) The judgment and order of conviction and sentence
dated 02.12.2017 passed in SC No.421/2013 on the file of LIX Addl. City Civil and Sessions Judge, Bengaluru city for the offence under Section 326 IPC is hereby set aside.
iii) The appellant/accused is acquitted of the charge under Section 326 IPC.
iv) The said judgment and order of conviction for the charge under Section 307 IPC is hereby confirmed.
v) The order with regard to compensation under Section 357(1) and 357A(3) Cr.P.C. and disposal of the properties is maintained.
Crl.A.No.788/2018C/w Crl.A.No.437/2018 57
vi) In the sentence period, accused is entitled to set off under Section 428 Cr.P.C. for the period of detention undergone during the trial. The Trial Court shall issue modified conviction warrant accordingly.
vii) The bail bonds of the accused and his sureties shall stand cancelled. He shall surrender before the Trial Court within two weeks from the date of this order, failing which the Trial Court shall proceed against him in accordance with law.
ORDER IN CRL.A.NO.788/2018
i) The appeal is allowed.
ii) The judgment and order of acquittal dated
14.12.2017 passed in SC No.79/2013 on the file of III Addl. Sessions Judge, Mysuru is hereby set aside.
iii) The appellant/accused is convicted for the charges for the offences punishable under Sections 302, 201, 465 and 471 IPC.
Sd/-
JUDGE Sd/-
JUDGE AKC/PKN