Karnataka High Court
Sri. M Ramachandra vs State By S.P.P on 20 April, 2022
Author: B.Veerappa
Bench: B.Veerappa
-1-
CRL.A No. 1268 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO. 1268 OF 2018
BETWEEN:
1. SRI. M. RAMACHANDRA,
S/O LATE MUNIRATHNAM,
AGED ABOUT 39 YEARS,
R/AT COCONUT TREE GARDEN,
WEAVERS COLONY,
CHIKEN POULTRY FARM GATE,
BANNERGHATTA ROAD,
BANGALORE-560076.
...APPELLANT
(BY SRI. JAVEED S., ADVOCATE)
AND:
1. STATE BY S.P.P.,
BY JAYANAGAR POLICE STATION,
REPT. BY STATE PUBLIC PROSECUTOR,
Digitally signed by HIGH COURT BUILDING,
USHA
NAGENAHALLI
BANGALORE-560001.
SHANMUKHAPPA ...RESPONDENT
Location: High Court
of Karnataka (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT OF CONVICTION DATED
-2-
CRL.A No. 1268 of 2018
30.10.2017 AND ORDER OF SENTENCE DATED 31.10.2017
PASSED BY THE LEARNED LXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU IN S.C.NO.1115/2013 -
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 302, 307, 397 AND
120(B) OF IPC., AND SENTENCING TO UNDERGO RIGOROUS
IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.5,000/-;
SIMPLE IMPRISONMENT FOR 8 YEARS AND TO PAY OF
Rs.3,000/-; RIGOROUS IMPRISONMENT FOR 8 YEARS; AND
IMPRISONMENT FOR LIFE RESPECTIVELY WITH DEFAULT
CLAUSES.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
It is an unfortunate case where the accused persons had made an attempt to kill P.Ws.2 and 3 and murdered the deceased Chandra - sister of P.Ws.2 and 3.
2. The present criminal appeal is preferred by accused No.1 against the impugned judgment of conviction dated 30th October, 2017 and order of sentence, dated 31.10.2017 passed in S.C.No.1115/2013 by the learned LXIX Additional City Civil and Sessions Judge, Bengaluru City convicting him under the provisions of Sections 302, 307, 397 and 120(B) of the IPC and sentencing to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/-; simple imprisonment for 8 years and to pay -3- CRL.A No. 1268 of 2018 of Rs.3,000/-; rigorous imprisonment for 8 years; and imprisonment for life respectively with default clauses.
3. It is the case of the prosecution that on the basis of the complaint lodged by P.W.1-daughter of the deceased Chandra on 22.4.2013 at about 10.30 a.m. after she left her home for work, the accused persons have come to the house of C.W.1 to do the plumbing and sanitation work and initially P.W.2 - Smt. Sharada took the accused to first floor and showed the tap and while she was so doing by bending her body, both the accused attempted to kill her by pressing the mouth, nose and neck and after she became unconscious, both the accused looted the jewels worn by P.W.2 and then they locked the door from outside. Thereafter, they took P.W.3 to another room situated in the first floor and tried to kill her by pressing the nose, mouth and neck and when she became unconscious, they took away the jewels worn by her. At last, they came downstairs and accused No.1 pressed the neck of Chandra and accused No.2 closed the nose and mouth and killed her, looted the jewels worn by her and then ransacked the jewels, silver articles and cash from drawer and cupboard of the room and then left the spot. Thus the accused -4- CRL.A No. 1268 of 2018 committed the murder of Chandra, attempted to kill P.Ws.2 and 3 and robbed the valuables from their house. Accordingly, P.W.1 lodged the complaint.
4. On the basis of the complaint lodged by P.W.1 as per Ex.P.1, P.W.18 - Lokesh M.P., the then Police Inspector of Jayanagar Police Station, as per the information received by him on 22.4.2013 registered a case in Crime No.174/2013 around 3.30 p.m. for the offences punishable under Sections 302, 307 and 397 r/w 34 of IPC against the appellant, went to the spot, received the complaint, conducted inquest mahazar, sent the dead body to the hospital for postmortem examination, sent the injured for treatment, recorded the statements of the injured and witnesses, conducted the investigation, arrested the accused and recorded his disclosure statement, seized the stolen articles at his instance from his possession, subjected the articles for identification from the complainant, drawn the mahazar and after completion of the investigation, filed the charge sheet against the accused for the offences punishable under Sections 302, 307, 397, 120 r/w 34 of IPC.
-5-CRL.A No. 1268 of 2018
5. The learned Magistrate after taking cognizance, registered a case in C.C.No.11774/2003 and as the case was exclusively triable by the Court of Sessions, committed the case to the Court of Sessions for trial. The learned Sessions Judge registered a case as S.C.No.1115/2013 and framed the charges for the aforesaid offences which was read over to the accused in the language known to him, who pleaded not guilty and claimed to be tried. Though initially, charge was framed against both the accused, during trial on 3.3.2015 accused No.2 filed an application under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000, contending that he is a juvenile as on the date of incident and on considering the same, the said application was allowed on 21.1.2016 and hence, the case against accused No.2 was transferred to Juvenile Justice Board and accused No.1 alone faced the trial for the offences stated supra and as such, Section 34 of the IPC., did not survive for consideration.
6. In order to prove its case, the prosecution in all examined 19 witnesses as P.Ws.1 to 19, got marked the documents Exs.P.1 to 32 and material objects M.O.Nos.1 to 20. After completion of the evidence of the prosecution witnesses, -6- CRL.A No. 1268 of 2018 voluntary statement of the accused as contemplated under the provisions of Section 313 of Cr.P.C was recorded. Accused No.1 though denied all the incriminating circumstances appearing against him, did not chose to lead any defence evidence.
7. Based on the aforesaid pleadings, the learned Sessions judge framed five points for consideration and after considering both oral and documentary evidence on record, answered all the points in the affirmative holding that, the prosecution has proved beyond reasonable doubt that on 22.4.2013 at about 10.30 a.m., in the house bearing No.05, 27th Cross, 7th Block, Jayanagar, Bengaluru, after P.W.1 left for her work, the accused came to the house of P.W.1 to do plumbing and sanitation work and initially they took P.W.2 to the first floor and then closed her nose and mouth and pressed her neck and they did the same to P.W.3 and attempted to kill them and thereby committed an offence punishable under Section 307 r/w 34 of IPC; and on the same day accused No.1 strangulated Smt. Chandra with hands and accused No.2 closed the nose and mouth with hands and killed her and thereby committed an offence punishable under Section 302 r/w 34 of -7- CRL.A No. 1268 of 2018 IPC; and by robbing the jewels worn by P.Ws.2, 3 and Chandra, ransacked the valuables and cash of Rs.2,500/- which was kept in the drawer and cupboard of the room, committed an offence punishable under Section 397 r/w 34 of IPC and by conspiring together, committed an offence punishable under Section 120B r/w 34 of IPC. The learned Sessions Judge further recorded a finding that the prosecution has proved beyond reasonable doubt that the accused persons murdered the deceased Chandra which is homicidal in nature and accordingly, by the impugned judgment of conviction and order of sentence convicted and sentenced accused No.1 to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- for an offence punishable under Section 302 of IPC; simple imprisonment for 8 years and to pay a fine of Rs.3,000/- for an offence punishable under Section 307 IPC; rigorous imprisonment for 8 years for an offence punishable under Section 397 IPC and to undergo life imprisonment for an offence punishable under Section 120B of IPC and all the sentences to run concurrently. Hence, the present criminal appeal is filed by the appellant-accused No.1.
8. We have heard the learned Counsel for the parties. -8- CRL.A No. 1268 of 2018
9. Sri Javeed S., learned Counsel for the appellant- accused No.1 contended with vehemence that as the impugned judgment of conviction and order of sentence passed by the trial Court convicting and sentencing accused No.1/appellant to undergo imprisonment of life for the offences punishable under Sections 302, 307, 397 and 120B of IPC., is erroneous and contrary to the material on record, cannot be sustained and is liable to be set aside. He further contended that the trial Court erred in convicting the accused, even though the prosecution witnesses P.Ws. 1 to 19 have not supported the case of the prosecution and as such, the conviction of the accused is liable to be set aside. The learned Sessions Judge erred in convicting the accused based on the evidence of P.Ws.1 to 3, 5 and 6, who are relatives and P.Ws.13 to 19, who are official witnesses including the doctor and police. He would further contend that the learned Sessions Judge erred in holding that the evidence of P.W.1-complainant witness supported the case of the prosecution even though the evidence of P.W.1 is in no way supportive. He further contended that P.Ws.2 and 3 at the time of the alleged incident were unconscious due to the injuries sustained by them, the said aspect has not been -9- CRL.A No. 1268 of 2018 considered judiciously and also the evidence of P.W.1 also cannot be relied upon as she is an hearsay witness and was not present at the spot. the fact that P.W.1 was not present at the spot as she is an hearsay witness,. He would further contend that the respondent-Police failed to get the FIR and sample collection. Hence, he would contend that the conviction of accused No.1 is in violation of principles of natural justice and cannot be sustained and sought to allow the criminal appeal.
10. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor while justifying the impugned judgment of conviction and order of sentence passed by the trial Court contended with vehemence that P.Ws.2 and 3 are the injured eye witnesses aged about 79 and 80 years and they are highly educated, who are Registrar and Doctor respectively and as they have identified the accused and the material objects M.Os.4 to 19, jewels and other valuables, their evidence cannot be discarded. In view of the fact that recovery of material objects M.Os.4 to 19 at the instance of accused No.1 as per Ex.P.12-seizure mahazar is corroborated by the evidence of P.W.10, who is a witness to seizure mahazar for recovery of material objects M.Os.1 to 9, his evidence also
- 10 -
CRL.A No. 1268 of 2018 cannot be discarded and as such the prosecution has proved its case that the accused have committed the offences for gain. He would further contend that the presence of the accused on the date of the incident in the house of the complainant, who had come for doing the plumbing and sanitary work is not denied by the accused persons; The doctor - P.W.13, who conducted the postmortem examination on the dead body of the deceased has issued the postmortem report Ex.P.13 opining that the death of the deceased was due to asphyxia as a result of throttling as well as the doctor P.W.19, who examined P.Ws.2 and 3 - the injured eye witnesses at the Bangalore Hospital has issued the wound certificates Exs.P.24 and 25 stating that the wounds or injuries found on them were due to alleged strangulation; Further Ex.P.32 - the Medical Legal Case Register depicts an attempt of strangulation on P.Ws.2 and 3 was with hands and thereby all these material evidence produced and adduced clearly prove that the accused was involved in the homicidal death of the deceased Chandra and had also made an attempt to murder P.Ws.2 and 3 as well as committed theft of jewels -M.Os.4 to 19 recovered at their instance. Therefore, he contended that the conviction of
- 11 -
CRL.A No. 1268 of 2018 accused-appellant is just and proper and needs no interference and sought to dismiss the criminal appeal.
11. In view of the rival contentions urged by the learned Counsel for the parties, the only point that would arise for our consideration in the present appeal is:
"Whether the trial Court is justified in convicting and sentencing the appellant- accused No.1 for imprisonment of life along with other sentences for the offences punishable under Sections 302, 307, 397 and 120B r/w 34 of IPC"
or "Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence in the facts and circumstances of the present case?"
12. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully.
- 12 -
CRL.A No. 1268 of 2018
13. This Court being the Appellate Court, in order to re- appreciate the entire materials on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon:
i) P.W.1 - Smt. Chitra Narasimhan, whose is none other than the daughter of the deceased Smt. K. Chandra and hearsay witness, who lodged the complaint on 22.4.2013, reiterating the averments made in the complaint, has deposed that, on the request made by P.Ws.2 and 3, accused Nos.1 and 2 had come to the house of the deceased for plumbing and sanitary work. Initially P.W.2 took the accused to first floor and while she was showing the tap by bending her body, both the accused attempted to kill her by pressing her mouth, nose and neck and after she became unconscious, both the accused looted the jewels worn by her and then they locked the door from outside. Thereafter, they took P.W.3 to another room situated in the first floor and tried to kill her by pressing her nose, mouth and neck and when she became
- 13 -
CRL.A No. 1268 of 2018
unconscious, they took away the jewels worn by P.W.3 and at last, they came down stairs and accused No.1 pressed the neck of Chandra and accused No.2 closing the nose and mouth killed her and looted the jewels worn by her and then both the accused ransacked the jewels, silver articles and cash from the drawer of the cupboard in the room and then left the spot. Thus the accused committed the murder of Chandra and attempted to kill P.Ws.2 and 3 as well as robbed the valuables from their house. On receiving a phone call on 22.4.2013 from P.W.3 at about 1.15 p.m., she reached home at 1.40 p.m.; found her mother near the door and by checking her pulse, confirmed that she was dead. She further deposed that the accused/appellant was known to the family from the past eight years since her father's time. She then lodged the complaint as per Ex.P.1 on the same day around 3.30 p.m. alleging commission of the aforesaid offences and the jurisdictional police registered a case in Crime No.174/2013 against the
- 14 -
CRL.A No. 1268 of 2018 accused punishable for the offences stated supra. She has supported the case of the prosecution;
ii) P.W.2 - Smt. Sharada, aged about 79 years as on the date of the evidence, who is an injured eye witness and retired Registrar of Bangalore University; elder sister of the deceased Chandra and younger sister of P.W.3 - Smt. Munilakshmamma has deposed that both herself and her elder sisters Sharada and Doctor Munilakshmamma were residing in the same house and were unmarried. On the day of the incident, accused No.1 along with Vasanth Kumar had come to their house for plumbing work and to change the taps of the rooms. Since they were working for the past 10 to 15 days of the date of the incident, she had taken the accused to first floor bedroom to show the attached bathroom for changing the taps. Accused No.1 held her neck and Vasant Kumar from front, tried to close her nose and mouth and later she was unconscious. By the time she recovered, she noticed that her ornaments like ear studs, chain
- 15 -
CRL.A No. 1268 of 2018 and bangles were missing and as she could not open the bathroom door, she slept. P.W.1 came and opened the bathroom door and took her to ground fllor. Then P.W.1 had taken P.Ws.2 and 3 to hospital for treatment. In the hospital, P.W.1 asked P.W.2 by writing the name of the accused/appellant's name in a note book where he had done this act for which P.W.2 had nodded her head. Later P.Ws.2 and 3 were discharged from the hospital on 24.4.2013. She identified the material objects - M.Os.4 to 19 (gold and silver articles) and supported the case of the prosecution;
iii) P.W.3 - Smt. Munilakshmamma, being aged about 90 years and elder sister of P.W.2 and deceased Chandra has deposed that on the date of the incident, both the accused had taken her to first floor to show bathroom and they tried to strangulate her. She became unconscious. After some time, she regained conscious and she found her ornaments worn by her were missing. She could not get up. Slowly holding the steps she
- 16 -
CRL.A No. 1268 of 2018 came down crawling from the first floor and saw the deceased Chandra lying in the hall. She checked her pulse and found that she was no more.
Thereafter, she slowing went by crawling towards the landline telephone and called P.W.1 and requested her to come home immediately since her mother had fallen down. Then she took the advertisement paper cover marked as Ex.P.2 and wrote with green pencil that Ramu tried to strangulate her; She lost conscious and he had taken all her jewels and she is just coming down. She has identified the photos of the deceased marked as Exs.P.3 and 4 and material objects marked as M.Os.4 to 19;
iv) P.W.4 - Dr. Vijayalakshmi Balekundri, Children Cardiologist, Jayadeva Hospital, Bengaluru, examined on 6.1.2015 and witness to inquest mahazar Ex.P.10 has supported the case of the prosecution;
v) P.W.5 - Smt. Rekha Ramprasad, elder sister of P.W.1 and daughter of the deceased Chandra and
- 17 -
CRL.A No. 1268 of 2018 hearsay witness has deposed supporting the case of the prosecution.
vi) P.W.6 - Sri Jagath Ramprasad, brother of P.W.1 hearsay and mahazar witness to Exs.P.6 and 7 has deposed supporting the case of the prosecution;
vii) P.W.7 - Sri Nandakumar, son of the deceased, an hearsay witness and relative of P.W.1 as well as witness to inquest mahazar Ex.P.10 has identified the photos of the deceased marked as Exs.P.3 and 4 and supported the case of the prosecution;
viii) P.W.8 - Sri C.R. Narsimhamurthy, neighbour of P.W.1 and hearsay witness has supported the case of the prosecution;
ix) P.W.9 - Sri Stephen Benni, an hearsay and mahazar witness to Exs.P.6 and 7 (cover), Ex.P.11 (sample seal) and notebook Ex.P.5 has supported the prosecution case;
x) P.W.10 - Sri Prithvi Banavasi, witness to seizure mahazar Exs.P.12 for seizing M.Os.4 to 19 at the
- 18 -
CRL.A No. 1268 of 2018 instance of accused No.1 near his house has supported the prosecution case;
xi) P.W.11 - Sri Shivakumar, hearsay witness known
to accused has deposed that the
accused/appellant had chit business with him and after taking the money, he had not repaid the same.
xii) P.W.12 - Smt. Radha B.K., Staff Nurse, who accompanied P.W.1 to the Police Station and hearsay and mahazar witness to Ex.P.8 and Ex.P.9 (sample seal) and material objects M.Os.4 to 19 has supported the prosecution case;
xiii) P.W.13 - Dr. Anand K., who conducted the postmortem has issued Ex.P.13- the postmortem report has identified the M.Os.1 to 3;
xiv) P.W.14 Sri Basavarajaiah, Head Constable 4307 who had taken the dead body to KIMS Hospital for postmortem, the requisition and acknowledgment
- 19 -
CRL.A No. 1268 of 2018 marked as Exs.P.15 and 14, has identified material objects M.Os.1 to 15;
xv) P.W.15 - Sri Puttaswamiah, Junior Engineer, has deposed with regard to preparing the sketch Ex.P.18 and letter which are marked as Exs.P.16 and 17 respectively and supported the prosecution case;
xvi) P.W.16 - Smt. Eshwari P.N., PSI, has deposed that she recorded the statement of P.W.1 and registered a case in Crime No.174/2013 for the offences punishable under Sections 302, 307, 397 of IPC, received the complaint as per Ex.P.1, registered the FIR as per Ex.P.19, apprehended the accused with a white colour Maruthi 800 Car on 9.5.2013 and identified the photo marked as Ex.P.20;
xvii) P.W.17 - Sri Mahaveer Jain, witness to seizure mahazars Exs.P.8 and 9 has identified material objects M.Os.4 to 19 and supported the prosecution case;
- 20 -
CRL.A No. 1268 of 2018 xviii) P.W.18 - Lokesh M.P., Deputy Superintendent of Police, who was the then Inspector of Police in Jayanagar Police Station from March 2013 to May 2015 has deposed about he conducting investigation;
xix) P.W.19 - Dr. Sree Hamsa H.N., Medical Officer, The Bangalore Hospital, has deposed that he examined P.Ws.2 and 3 and issued the wound certificates Exs.P.24 and 25 with regard to alleged strangulation and MLC report as per Ex.P.32 stating that accused had tried to strangulate P.Ws.2 and 3.
14. Based on the aforesaid material both oral and documentary evidence on record, the learned Sessions Judge by the impugned judgment and order convicted the accused and sentenced them for the offences as stated supra.
15. The gist of the complaint lodged by P.W.1, who is none other than the daughter of the deceased Chandra, as per Ex.P.1, is that on 22.4.2013 at 9.15 a.m., P.W.1, the doctor at Jayadeva Hospital, had left home for her work and at that time,
- 21 -
CRL.A No. 1268 of 2018 accused Nos.1 and 2 came to her house for plumbing and sanitary work as they were doing it since 15 days of the incident. During that time, deceased Chandra, P.Ws.2 and 3 were staying in the house. At about 1.14 p.m. P.W.1 received a phone call from P.W.3 - Munilakshmamma that since her mother had fallen down, she should come immediately. At about 1.40 p.m. when she came home, she found her mother sleeping beside the front door. As she was the doctor, she sprinkled water on her mother's face and checked the pulse, but her mother was no more and P.Ws.2 and 3 were struggling. On the information given by P.Ws.2 and 3, she lodged a complaint. Further P.W.3 also had made a note as per Ex.P.2 that Rama had tried to strangulate her and when she was unconscious, he had taken the jewels worn by her. She came just now. He took her upstairs and strangulated.
16. The material on record clearly depicts that as per the evidence of P.Ws.2 and 3, who are injured eye witnesses have specifically deposed that, accused Nos.1 and 2 were working in their house even since the time of their father with respect to plumbing and sanitary problems. They were known to the family and whenever there used to be any repairs regarding
- 22 -
CRL.A No. 1268 of 2018 plumbing and sanitary, they used to come and do the work. On the unfortunate day, when P.W.1 had been to work to the Jayadeva Hospital, the said incident has occurred. The accused at first, had taken P.W.2 to the first floor where P.W.2 showed the tap and while she was so showing by bending her body, both the accused attempted to kill her by pressing the mouth, nose and neck and thereafter, she became unconscious and both the accused took her jewels worn by her (P.W.2) and then they locked that door from outside. Thereafter, they took P.W.3 to another room in the first floor and tried to kill her by pressing her nose, mouth and neck and after she became unconscious, they took away her jewels worn by P.W.3. At last, they came downstairs and accused No.1 pressed the neck of the deceased Chandra and accused No.2 closed her nose and mouth and killed her and looted her jewels. Then they both ransacked the jewels, silver articles and cash from the drawer and cupboard in the room and fled away from the spot. The evidence of these two witnesses, who are injured witnesses cannot be disbelieved. Infact, P.W.3 being the doctor has made a note on the cover marked as Ex.P.2 that "Ramu strangulated me, I lost conscious he took all my jewels I came
- 23 -
CRL.A No. 1268 of 2018 down just now he took upstairs and strangulate." These two injured witness - P.Ws.2 and 3 aged about 79 and 80 years, who are Registrar in the Education Department and Doctor respectively, have specifically deposed regarding the involvement of the accused in the homicidal death of the deceased Chandra and nothing has been elicited in their cross- examination to disbelieve their evidence.
17. As per the evidence of the prosecution witnesses, P.W.16 - Smt. Eshwari P.N., PSI., arrested accused Nos.1 and 2 on 9.5.2013, P.W.18 recovered the material objects - M.Os.4 to 19 gold ornaments at the instance of accused No.1 under seizure mahazar Ex.P.12 and P.W.10 is the panch witness to said mahazar, whose version is to the effect that, in his presence all the material objects-M.Os.4 to 19 were seized as shown by accused No.1 and nothing has been elicited in his cross-examination to disbelieve the recovery of material objects stated supra.
18. It is also not in dispute that P.W.13 - Dr. Anand K., who conducted the postmortem on the dead body of the deceased Chandra, has stated that on examination of the dead
- 24 -
CRL.A No. 1268 of 2018 body, he found 12 external injuries and opined that the death of the deceased was due to Asphyxia as a result of throttling and accordingly, he has issued the postmortem report Ex.P.13.
19. In order to prove the injuries sustained by P.Ws.2 and 3, who are injured eye witnesses, P.W.19 - Dr. Sree Hamsa H.N. was examined, who has deposed that after examination of P.Ws.2 and 3, she has issued Exs.P.24 and 25 - the wound certificates, which clearly depict that the injuries have been caused due to alleged history of strangulation. Nothing has been elicited in cross-examination of doctors P.Ws.13 and 19, who conducted the postmortem examination of the deceased and treated the injured eye witnesses P.Ws.2 and 3 to disbelieve their version.
20. Apart from the aforesaid oral and documentary evidence on record, entries of medical legal case in the MLC Register Ex.P.32 on the statement made by the injured eye witnesses/P.Ws.2 and 3 that accused tried to strangulate them, clearly proves that, accused No.1 and 2 had conspired to commit the homicidal death of the deceased Chandra and had also made an attempt to commit the murder of the injured eye
- 25 -
CRL.A No. 1268 of 2018 witnesses P.Ws.2 and 3 and robbed the jewels M.Os.4 to 19 and thereby committed offences punishable under Sections 307, 397 and 120B of IPC.
21. The material on record clearly depicts that M.Os.4 to 19 were identified by complainant-P.W.1 and injured eye witnesses P.Ws.2 and 3, but the accused in his statement recorded under Section 313 Cr.P.C., has denied in toto the case of the prosecution and has not offered any explanation as he has denied his presence at the place of incident. Since all the prosecution witnesses particularly P.Ws.2 and 3 the injured witnesses have deposed that the accused persons were doing plumbing and sanitary works in their house since 15 days prior to the date of incident, and in the absence of accused offering any explanation in their statement recorded under Section 313 Cr.P.C., an adverse inference has to be drawn against the accused as held by the Hon'ble Supreme Court in the case of Prahlad -vs- State of Rajasthan reported in (2019) 14 SCC 438 particularly at paragraph-11 wherein it is held as under:
- 26 -
CRL.A No. 1268 of 2018
"11. No explanation is forthcoming from the statement of the accused under Section 313 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused."
22. On re-appreciation of both oral and documentary evidence on record, it is clear that the prosecution has proved beyond reasonable doubt that it is the accused who has committed the murder of deceased Chandra by throttling her neck as per Ex.P.13, the postmortem report issued by P.W.13 - Dr. Anand K Further the prosecution also has proved beyond reasonable doubt that the accused attempted to commit murder of P.Ws.2 and 3, who are injured eye witnesses and have been treated by the doctor - P.W.19 - Dr. Sree Hamsa H.N., who has issued wound certificates as per Exs.P.24 and 25 and thereby has committed an offence punishable under Section 302 IPC. It is also not in dispute that all the material
- 27 -
CRL.A No. 1268 of 2018 objects i.e., M.Os.4 to 19 - jewels and cash were recovered at the instance of accused No.1 as per Ex.P.12 with regard to which the material witness P.W.10 has withstood his statement. As such, the prosecution has proved beyond reasonable doubt that the accused persons after conspiring together have committed the offences punishable under Sections 397 and 120B of IPC.
23. The trial Court considering the entire evidence both oral and documentary on record was justified in appreciating the material on record in proper perspective and holding that the prosecution has proved beyond all reasonable doubt, the death of the deceased Chandra was homicidal in nature and it is the accused, who committed her murder and thereby, convicted the accused for the offences punishable under Sections 302, 307, 397 and 120B of IPC.
24. For the reasons stated above, the point raised in the present criminal appeal is answered in the affirmative holding that the trial Court was justified in convicting and sentencing the appellant-accused No.1 for imprisonment for life along with other sentences for the offences punishable under Sections
- 28 -
CRL.A No. 1268 of 2018 302, 307, 397 and 120B of IPC., and accused has not made out any ground to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court in exercise of appellate powers under the provisions of Section 374(2) of Cr.P.C., and as such, the criminal appeal is liable to be dismissed.
25. In view of the above, we pass the following:
ORDER
i) Criminal appeal is dismissed as being devoid of any merits;
ii) The impugned judgment of conviction dated 30th October, 2017 and order of sentence dated 31st October, 2017 made in S.C.No.1115/2013 by the learned LXIX Additional City Civil and Sessions Judge, Bengaluru, convicting accused No.1 for the offences punishable under Sections 302, 307, 397 and 120B of IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-; simple imprisonment for a period of 8 years and to pay a fine of Rs.3,000/-; rigorous
- 29 -
CRL.A No. 1268 of 2018
imprisonment for 8 years and life imprisonment respectively with default clauses is hereby confirmed;
SD/-
JUDGE SD/-
JUDGE Nsu/-