Karnataka High Court
Mr. Dayananda Poojary vs State Of Karnataka on 19 June, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19th DAY OF JUNE, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.1164/2013
BETWEEN:
Mr. Dayananda Poojary
S/o late Muthappa Poojary
Maji House, Thumbee Village
Bantwal Taluk-575 003.
... Appellant
(By Sri K. Shashikanth Prasad, Advocate)
AND:
State of Karnataka
by Town Police Station, Puttur.
Rep. by State Public Prosecutor
High Court of Karnataka
Bangalore-560 001.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section
374(2) of the Cr.P.C praying to set aside the
conviction and sentence dated 17.07.2013 passed
by the V Addl. District and Sessions Judge, D.K.,
Mangalore in S.C.No.31/2009 convicting the
appellant/accused for the offences punishable under
Sections 302, 392, 201 of Indian Penal Code.
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This Criminal Appeal coming on for hearing
this day, B.A.PATIL, J. delivered the following:-
JUDGMENT
Accused No.1-appellant in this appeal was found guilty for the offences punishable under Sections 302, 392, 201 of IPC and accused No.2 who was charged for the offence punishable under Section 201 of IPC was acquitted by the judgment and order dated 17/22.7.2013 passed by the V Additional District and Sessions Judge, D.K. Mangalore, sitting at Puttur in SC.No.31/2009. Challenging the same, accused No.1 is before this Court.
2. The case as contended by the prosecution is that on 12.9.2008 marriage of daughter of Smt.Channamma was being performed and the deceased Vinaya, the wife of the complainant was invited to attend the said marriage. Deceased went to attend the said marriage by wearing gold -3- ornaments and a citizen wrist watch and also carried the mobile phone which she usually used to carry whenever she used to go out. It is the case of the complainant that the deceased left the house at about 10.00 a.m. on 12.9.2008 to attend the said marriage without knowing the fact that it would be her last journey from the house. Thereafter when the deceased Vinaya was attending the marriage at Mura, accused No.1-Dayananda Poojary called her over phone and at that time deceased Vinaya requested him for an assistance of Rs.2,000/- to repay the loan to Stree Shakthi Sanga due in her to which accused No.1 promised her to pay the said amount, but he asked her to come to Farangipete to collect the money. Accordingly, the deceased left the marriage hall and accused No.1 repeatedly called her to see that she should reach Farangipete as per his direction and when she reached the said place, accused No.1 met her and at that time accused No.1 saw that the -4- deceased was wearing gold ornaments as she has come straight away from the marriage hall, when deceased Vinaya asked accused No.1 to pay the money, accused No.1 represented that he will get her money in the nearby village and took her in an autorickshaw to an isolated hill-lock of Kundolu Paraneeru of Thumbe Village in Bantwal Taluk with an ulterior motive to commit her murder and to take away her gold ornaments which she was wearing. When they reached the said place, deceased demanded the money, accused No.1 expressed that he will pay the money to her and by consent both had sex thereafter accused No.1 expressed his inability to pay the money. By such behaviour of accused No.1 deceased fed up and she warned him that she will expose his misdeeds. As accused No.1 was in need of money and for having seen the deceased wearing jewels worth more than rupees one lakh, he thought of committing her murder and to take away the gold ornaments. In -5- that light, accused No.1 assaulted with stone on the head of the deceased Vinaya and caused fatal injuries on her head, due to which she succumbed to the injuries on the spot. Accused No.1 dragged the dead body of the deceased and thrown into a trench and after taking all the gold ornaments, wrist watch and mobile phone, escaped from the spot. Thereafter he went to PW.8 at Mangalore and sold the jewels and by realising the money, he came back.
3. It is further case of the prosecution that PW.1, the husband of the deceased after returning from his work at about 7.30 p.m. found that his wife has not yet returned who had been to attend the marriage of daughter of PW.12, he waited for her arrival and as she did not return, he called to her mobile and at that time, he found that the said mobile was switched off. Thereafter he searched for whereabouts of his wife and after coming to know -6- that the deceased had not been to the houses of any of the relatives, on 13.9.2008 he went to the Police Station and filed a missing complaint. On the basis of the said complaint at Ex.P16, a case was registered in Crime No.146/2008.
4. It is further case of the prosecution that on 14.9.2008 accused No.1-Dayananda approached accused No.2-Ananda and explained the murder of the deceased Vinaya committed by him and offered him a financial assistance and asked him to assist for burial of the dead body of the deceased. Accused No.2 agreed him to assist him and thereafter both went near the dead body where accused No.1 thrown and both buried the body with an intention to destroy the evidence. It is further case of the prosecution that PW.2 on the basis of the missing complaint, took up the investigation to trace about the deceased and during her investigation, she came to know about the mobile -7- number of the deceased and it was switched off. She made further efforts and secured call details of the mobile of the deceased and on 16.9.2008 when she received the call details she came to know that last telephone conversation of the deceased was with the mobile of accused No.1. She further collected call details on 17.9.2008 and on the basis of the phone location of accused No.1 she came to know that accused No.1 was present in Farangipete tower location. Thereafter accused No.1 was traced and apprehended on 20.9.2008. After apprehension he was interrogated and at that time accused No.1 gave his voluntary statement for having committed the crime and he also told that if he is taken, he will show the dead body where he has buried and he will also show the place where he kept the gold ornaments, pledged and sold them. The Investigating Officer after completing the investigation, filed the charge sheet against accused Nos.1 and 2.
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5. The committal Court committed the case to the Court of Sessions. The Sessions Court took cognizance and secured the presence of the accused and after hearing them, framed the charge which was read over and explained to the accused persons, but they pleaded not guilty. As they wanted to face the trial, the learned Sessions Judge fixed the trial.
6. In order to prove its case, the prosecution in all has examined 22 witnesses and got marked 25 Exhibits with sub-marking and also Ex.C1 along with 16 Material Objects. Thereafter the accused were examined under Section 313 of Cr.P.C. by putting incriminating materials against them which they denied. Thereafter they led defence evidence by examining one Ramesh as DW.1. After closure of the evidence and after hearing both the parties, the trial Court passed the impugned judgment and -9- order convicting accused No.1 for the aforesaid offences.
7. We have heard the learned counsel Sri K.Shashikanth Prasad appearing for the appellant and the learned Additional SPP Sri Vijayakumar Majage for the respondent-State in detail.
8. Learned counsel for the appellant-accused No.1 apart from the grounds urged in the appeal memo submitted that though deceased Vinaya was missing on 12.9.2008 and the same has been noticed by PW.1, her husband, missing complaint has been filed on 13.9.2008 at about 4.50 p.m. Hence, there is a delay in filing the missing complaint. He further submitted that there are no eye witnesses to the alleged incident and the entire case rests on circumstantial evidence. Though the prosecution has utterly failed to prove the chain of events the trial Court has erroneously convicted the appellant-accused No.1 without any legal evidence.
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He further submitted that the driver of the autorickshaw in which accused No.1 and deceased had gone to the hill-lock was not examined though the said driver has last seen the deceased and accused No.1 together and the said autorickshaw has also not been seized. He further submitted that in view of Section 65-B of the Indian Evidence Act ('Act' for short) if electronic records, like call details are produced before the Court, then under such circumstances, it must be certified in accordance with sub-Section (4) of Section 65-B of the Act, otherwise it is not admissible. But the trial court ignoring this legal aspect, has wrongly convicted the appellant-accused No.1. Accused No.1- appellant is innocent and as such he prays for allowing the appeal by setting aside the judgment and order passed by the trial Court.
9. Per contra, the learned Additional SPP vehemently contended that as per the call details
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the last call has been received from the accused to the mobile phone of the deceased at about 1.45 p.m. and thereafter there were no calls at all and prior to the said call also there was a conversation between accused No.1 and the deceased. He further submitted that immediately after apprehension of accused No.1, he has given his voluntary statement as per Ex.P5 and on the basis of the said statement, the body of the deceased which was buried has been exhumed which clearly goes to show that accused was having the knowledge as to where the body of the deceased was buried, then under such circumstances, he has to explain as under what circumstances, he has seen the dead body of the deceased. He further submitted that PW.3 is the co-sister of the deceased, who has last seen the deceased leaving the house at about 10.00 a.m. on 12.9.2008 and she has also seen the deceased going by wearing gold ornaments. The deceased also told PW.3 that
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she was going to attend the wedding ceremony of the daughter of PW.12 and on the basis of the voluntary statement the gold jewels worn by the deceased were recovered as per Ex.P10. Accused has also not explained as to how he was in possession of the jewels of the deceased. He further submitted that recovery of the pledged gold ornaments were also recovered at the instance of accused No.1 and even PW.8, the owner of the jewelry shop also substantiated by supporting the evidence of the Investigating Officer. He further submitted that accused No.1 had given his mobile phone to PW.10 for repair and PW.10 has also identified the mobile phone of accused No.1 and the job card contains the signature of accused No.1. He further submitted that evidence of PWs.14 and 19 clearly goes to show that accused had purchased a pickaxe and a plastic basket to screen the evidence by burying the body of the deceased. All these circumstances on which the prosecution has
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relied upon clearly indicate that it is accused No.1 who has committed the offence for gain.
10. In so far as admissibility of the call details is concerned, learned Additional SPP submitted that at the time of marking the call details, objections have not been raised and now at this appellate stage, learned counsel for the appellant contended about the admissibility of the said records. The same is not sustainable in law in view of the decision of the Hon'ble Apex Court in the case of Sonu @ Amar Vs. State of Haryana, reported in (2017)8 SCC 570. He further submitted that the trial Court after considering the entire evidence and the material placed on record, has rightly convicted the appellant-accused No.1 and therefore, the appellant has not made out any case to acquit him. Hence, he prayed for dismissal of the appeal.
11. We have gone through the grounds of the appeal memo and the submissions made by the
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learned counsel appearing for both sides and the entire evidence produced by the prosecution as well as the Exhibits. As could be seen from the records, there are no eye witnesses to the alleged incident and the entire case rests on circumstantial evidence.
12. The first and foremost contention raised by the learned counsel for the appellant-accused No.1 is that the call details which have been produced by the prosecution at Exs.P3 and P4 are not admissible as they were not certified in accordance with sub-Section (4) of Section 65B of the Act. For the purpose of brevity we quote Section 65-B of the Act, which reads as under:-
"65B. Admissibility of electronic records - (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media
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produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-
section (1) in respect of a computer output shall be the following, namely:-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
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(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause
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(a) of sub-section (2) was regularly performed by computers, whether-
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by
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virtue of this section, a certificate doing any of the following things, that is to say-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub- section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the
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knowledge and belief of the person stating it.
(5) For the purposes of this section-
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
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Explanation - For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process."
13. No doubt, on going through the aforesaid provision of law, if any electronic records are produced, they should be certified in accordance with sub-Section(4) of Section 65B of the Act for admissibility of the said document. But it is the contention of the learned Additional SPP that the accused have not raised any objections at the time of marking of the said documents and now at this stage the said contention cannot be raised by the accused that the call details are not admissible. It is true that the records clearly goes to show that when the said records have been produced and got marked, no objections have been raised by the accused at the time of trial stage and even before
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the arguments were concluded. At that stage if objections were to be raised by the accused, then under such circumstances, the prosecution could have availed an opportunity to rectify the said deficiency by getting them certified as per Section 65-B(4) of the Act. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Sonu @ Amar Vs. State of Haryana (quoted supra), wherein at paragraphs 29 to 32 and 36 to 38 it has been observed as under:-
"29. That an electronic record is not admissible unless it is accompanied by a certificate as contemplated under Section 65-B(4) of the Indian Evidence Act is no more res integra. The question that falls for our consideration in this case is the permissibility of an objection regarding inadmissibility at this stage. Admittedly, no objection was taken when the CDRs were adduced in evidence before the Trial Court. It does not appear from the record that any such objection was taken even at the appellate stage before the High Court.
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In Gopal Das v. Sri Thakurji, it was held that: (SCC OnLine PC) "... Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof."
30. In R.V.E.Venkatachala Gounder, this Court held as follows: (SCC p.764, para 20) "20. ... Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence
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but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party
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entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is
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sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court." (Emphasis supplied)
31. It would be relevant to refer to another case decided by this Court in PC Purshothama Reddiar v. S Perumal. The earlier cases referred to are civil cases while this case pertains to police reports being admitted in evidence without objection during the trial. This Court did not permit such an objection to be taken at the appellate stage by holding that:(SCC p.15, para 19) "19. Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the
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respondent now to object to their admissibility."
32. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65-B(4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is
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inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 of the Cr. P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.
33. xxx xxx xxx xxx
34. xxx xxx xxx xxx
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35. xxx xxx xxx xxx The Effect of Overrule
36. Electronic records play a crucial role in criminal investigations and prosecutions. The contents of electronic records may be proved in accordance with the provisions contained in Section 65-B of the Indian Evidence Act. Interpreting Section 65-B(4), this Court in Anvar case held that an electronic record is inadmissible in evidence without the certification as provided therein. Navjot Sandhu case which took the opposite view was overruled.
37. The interpretation of Section 65-B(4) by this Court by a judgment dated 04.08.2005 in Navjot Sandhu held the field till it was overruled on 18.09.2014 in Anvar case. All the criminal courts in this country are bound to follow the law as interpreted by this Court. Because of the interpretation of Section 65-B in Navjot Sandhu, there was no necessity of a certificate for proving electronic records. A large number of
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trials have been held during the period between 04.08.2005 and 18.09.2014. Electronic records without a certificate might have been adduced in evidence. There is no doubt that the judgment of this Court in Anvar case has to be retrospective in operation unless the judicial tool of "prospective overruling" is applied. However, retrospective application of the judgment is not in the interests of administration of justice as it would necessitate the reopening of a large number of criminal cases. Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections are taken by the accused at the appellate stage. Attempts will be made to reopen cases which have become final.
38. This Court in Golak Nath v. State of Punjab, held that there is no acceptable reason why it could not restrict the operation of the law declared by it to the future and save transactions that were effected on the basis of earlier law. While
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referring to the doctrine of prospective overruling as expounded by jurists George F. Canfield, Robert Hill Freeman, John Henry Wigmore and Cardozo, this Court held that when a subsequent decision changes an earlier one, the latter decision does not make law but rather discovers the correct principle of law and the result is that it is necessarily retrospective in operation. As the law declared by this Court is the law of land, it was held that there is no reason why this Court declaring the law in supersession of the law declared by it earlier cannot restrict the operation of the law as declared to the future and save transactions that were affected on the basis of earlier law. While so holding, this Court in Golak Nath laid down the following propositions: (AIR p.1669, para 53) "(1) The power of the Parliament to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from Article 368 thereof which only deals with procedure. Amendment is a legislative process.
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(2) Amendment is "law" within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void.
(3) The Constitution (First Amendment) Act, 1951, Constitution
(Fourth Amendment) Act, 1955, and, the Constitution (Seventeenth Amendment) Act, 1964, abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid."
While taking note of the doctrine of "prospective overruling" in the United States, this Court referred to the decisions concerning the admissibility of evidence obtained by unreasonable search and seizure. In Weeks v. United States, the US Supreme Court held that evidence obtained by an unreasonable search and seizure has to be excluded in criminal trials. In 1949, the US Supreme Court in Wolf v. Colorado held that the rule of exclusion laid down in Weeks did not apply to proceedings in State Courts. The
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judgment in Wolf was over ruled in Mapp v. Ohio. Subsequently, the US Supreme Court applied the doctrine of prospective overruling in Linkletter v. Walker, as it was of the opinion that if Mapp was applied retrospectively it would affect the interest of the administration of justice and the integrity of the judicial process.
14. In order to prove the call details, the prosecution has got examined PW.2, Woman PSI who has deposed that immediately after receipt of the missing complaint she took up further investigation of the case and collected the SIM bearing No.9972419110 and when she collected outgoing and incoming calls, she noticed that on 12.9.2008, the last call has been received to the said mobile at about 14.05 hours and the said call has been received from SIM bearing No.990119208 and thereafter she has sent e-mail to the concerned Scientific Officer and SP Office and thereafter she came to know that the said call has been received
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from the phone number of accused No.1. The said call details were marked as Exs.P3 and P4 and on the basis of the same, she traced the mobile number and when she made enquiry with PW.10- Subramanya who was running the mobile repair shop, she came to know that the said mobile was belonging to accused No.1 and he had given his mobile for repair and obtained receipt as per Ex.P12. PW.2 further deposed that after apprehending accused No.1, she recorded his voluntary statement as per Ex.P5 and thereafter she collected further details. During the course of cross-examination of this witness, it has been elicited that she has sent the mobile phone for the purpose of ascertaining details of outgoing and incoming calls and the said documents at Exs.P3 and P4 were not bearing the signature and seal of the concerned authority as the copies were taken out from the computer system. Even though other details have been sought, the production of the said
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documents have not been seriously disputed during the course of cross-examination as well as at arguments stage before the trial Court. Even as could be seen from the evidence of PW.20, the Police Constable who has given call details of the mobile, he has also reiterated the evidence of PW.2 and other suggestions which were made to him have been denied. The issuance of the said copies by electronic document is also not disputed. Under such circumstances, the ratio laid down in the above said decision is applicable to the present case and when accused No.1-appellant has not raised any objections at the time of marking of the documents as Exs.P3 and P4, then under such circumstance, he cannot raise the said objections at this appellate stage. Even during the course of cross-examination, accused No.1 has not denied that the phone number which has been given by PW.2 does not pertain to him or he has also not given any explanation that either his mobile was
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stolen or missed, etc., then under such circumstances the first contention of the learned counsel for the appellant does not have any force and as such the same is rejected.
15. In order to prove that the death of the deceased Vinaya is a homicidal death, the prosecution has examined the doctor-PW.16 who has deposed that at the time of exhuming the body of the deceased Vinaya, he was present along with the Assistant Commissioner and after exhumation he conducted the postmortem and there was contusion of middle of upper back; bones were exposed off both legs and feet; after dissection he found fracture of anterior and middle cranial fosae and fracture of right frontal bone are seen. PW.16 further deposed that fracture of the skull can be caused if a person is assaulted with the stone- MO.No.13 and there is every chance of death. He has issued postmortem report as per Ex.P19. Even
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PW.4, the panch witness to inquest mahazar at Ex.P9 has also deposed that injuries were found over the body of the deceased. Even during the course of cross-examination of these two witnesses, nothing has been brought on record to say that it is not a homicidal death. In that light, the prosecution has proved the fact of homicidal death of the deceased.
16. Another circumstance on which the prosecution is relying upon is that the deceased Vinaya went to attend the marriage of daughter of PW.12-Smt.Channamma who had extended the invitation to her. While going for marriage, she was wearing gold ornaments and she left the house at about 10.00 a.m. In this behalf, prosecution has got examined PW.3, co-sister of the deceased, who has deposed that on 12.9.2008 at about 10.00 a.m. deceased left the house and at that time she was wearing yellow colour saree with matching blouse
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and she was also wearing gold ornaments. She was carrying vanity bag, umbrella and mobile phone. During the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness.
17. PW.12-Smt.Channamma is a witness who had extended the marriage invitation to the deceased. She has also deposed that the deceased Vinaya had come to attend the marriage of her daughter. The deceased was there in the marriage hall, but she does not know till how long she was there in the marriage hall. Thereafter, as she did not return to the house, her husband-PW.1 filed a missing complaint at Ex.P16. PW.1 has also deposed about the gold ornaments which the deceased used to wear. The said evidence produced by the prosecution clearly proves the fact that the deceased had left the house at 10.00 a.m. on 12.9.2008 by wearing gold ornaments and with
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vanity bag, umbrella, a mobile and subsequently the said gold ornaments were found in the possession of accused No.1 which were identified by PW.1 and other witnesses.
18. The next circumstance on which the prosecution is intending to rely upon is that the body of the deceased was discovered and exhumed at the instance of the accused. In order to prove its case, the prosecution has got examined PW.2 Woman PSI. As discussed above, after the call details PW.2 apprehended the accused and recorded the voluntary statement of accused No.1 at Ex.P5 and thereafter she also made a requisition to the Assistant Commissioner and the Tahsildar. Thereafter accused No.1 led them along with the panch witness PW.6 and the complainant PW.1 to Thumbe Village and when they exhumed the body from the place where the accused has shown, they noticed the dead body of a female and subsequently
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the complainant-PW.1 identified the same as of the deceased Vinaya on the basis of the clothes which she was wearing. Thereafter inquest mahazar was drawn in the presence of the Assistant Commissioner and thereafter postmortem was also conducted and postmortem report was issued as per Ex.P19. This evidence clearly shows that as per the request of PW.2 to the Assistant Commissioner and the Tahsildar, the body was exhumed and the said body was identified as that of the deceased Vinaya. Accused No.1 has not explained as to how he was knowing that the body was buried in the said place. When the body was shown and it was exhumed at the instance of accused No.1, it clearly goes to show that accused No.1 has committed the murder of the deceased and buried with the help of accused No.2 and therefore he was knowing the place where the body of the deceased was buried. Learned counsel for the appellant-accused No.1 has not seriously disputed the exhuming of body at
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Thumbe Village in the presence of the Assistant Commissioner and the complainant. In that light, the prosecution has also established this circumstance with worth believable evidence and material.
19. One more circumstance on which the prosecution has relied upon is that of recovery at the instance of accused No.1. In order to prove the said circumstance, the prosecution has examined PW.21, the PSI who has deposed that after taking further investigation, he took the custody of accused No.1 and recorded his voluntary statement and secured the panch witnesses. Thereafter, accused No.1 led them to the residential house No.1/131 at Thumbe Village, wherein he went near the cattle shed and by the side of the said cattle shed there was a henroost from where he produced one Lakshmi pendent with black beeds chain which has been cut into six pieces, coral beed, ear-studs,
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finger ring boxtype gold chain which was cut in three pieces, gold fancy bangles, citizen gold case ladies watch and a Nokia 1650 mobile. The said articles were seized by drawing a mahazar at Ex.P10. PW.21 further deposed that he has also recorded further voluntary statement of accused No.1 and secured the panch witnesses. As per his voluntary statement, accused No.1 led them to Vaishnavi Jewelry Shop situated at Bhavanthi Street where he sold gold chain, Ganesha pendent and Mahalakshmi pendent, which they seized by drawing a mahazar. The owner of the said shop PW.8-Ganesh and his Assistant PW.9-Priya identified accused No.1. Thereafter the sale vouchers were also seized by drawing mahazar as per Ex.P11. In so far as recovery of gold articles is concerned, the same is fully supported by the evidence of PW.21, the PSI PWs.5 and 7, the panch witnesses, PW.8, the owner of jewelry shop and his Assistant PW.9 who have deposed that the said gold
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articles have been seized by drawing a mahazar at Ex.P11. From the above evidence, the gold articles were recovered by the Investigating Officer and there is consistency and corroboration in the evidence of all these witnesses. In that regard, these materials also strongly point out the guilt of accused No.1.
20. Even as could be seen from the evidence of PWs.2, 10 and 11 they have also specifically deposed with regard to seizure of the mobile phone of accused No.1 as per Ex.P12 and the service job sheet as per Ex.P13. Even during the course of cross-examination of these witnesses, nothing has been elicited to show that the said mobile has not been recovered from PW.10 and it does not belong to accused No.1.
21. The next circumstance on which the prosecution is relying upon is that accused No.1 went to the house of PW.17-Smt.Mamatha on
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14.9.2008 and took pickaxe under the pretext that he was intending to construct a pit in the house of Bayamma. She identified the said pickaxe as MO.No.12. Even PW.19, the owner of Shali Traders deposed that he is dealing with the business of selling of plastic items and on 14.9.2008, Sunday, both the accused persons came to his shop and purchased a plastic basket for a sum of Rs.145/- and subsequently he has also deposed before the police and has identified the said plastic basket as MO.No.11. During the course of cross-examination, nothing has been elicited from the mouth of these two witnesses. Even as could be seen from the evidence of PW.6, he has also deposed that there was one plastic basket and a pickaxe and the same were seized by drawing a mahazar as per Ex.P7. In this behalf also, there is worth believable evidence in so far as recovery of these articles is concerned, at the instance of accused No.1.
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22. In the instant case, on careful perusal of the entire material on record including the recovery mahazars and the evidence of all the witnesses who have fully supported the case of the prosecution and though the prosecution case rests on circumstantial evidence, the prosecution has satisfactorily proved the chain of all the events on which it has relied upon. It is well established principle of law that 'men may lie, circumstances will not'. When all the circumstances have been clearly established with the chain of all the events without there being any break, we do not hesitate to hold that the material produced by the prosecution is satisfactory to bring home the guilt of accused No.1 beyond all reasonable doubt.
23. We have carefully and cautiously gone through the entire evidence and material on record, including the judgment and order passed by the trial Court. The trial Court after relying upon the
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testimonies of PWs.1 to 22 and the recovery made pursuant to the statement made by the accused, has rightly concluded that the prosecution has established that accused No.1 is guilty of the charges levelled against him, beyond all reasonable doubt. There is no perversity or illegality while passing of the impugned judgment and order. Hence, the appeal being devoid of merits is liable to be dismissed.
Accordingly, appeal is dismissed being devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE *ck/-