Bangalore District Court
Central Bureau Of Investigation vs James Kumar Ray @ James on 6 November, 2019
IN THE COURT OF XXXII ADDL CITY CIVIL AND SESSIONS
JUDGE AND SPL. JUDGE FOR CBI CASES, BANGALORE CITY
(CCH 34)
DATED THIS THE 6th DAY OF NOVEMBER, 2019
-: P R E S E N T:-
Sri.Shivaram.K, B.Com., LL.M.,
XXXII Addl.City Civil & Sessions Judge,
and Special Judge for C.B.I. cases, Bengaluru.
S.C.No.1297/2015
(J.P.Nagar P.S.Cr.No.1031/2010)
(RC.No.3(S)/2013 CBI/SCB/CHN)
Complainant : Central Bureau of Investigation
Spl.Crime Branch,
Chennai.
(Rep. by Public Prosecutor)
Vs.
Accused : James Kumar Ray @ James
S/o C.H.Neelam Madhav Ray,
Village Aradapally, Post Jaria,
PS Pattamundai,
Kendarapara Dist.,
Orissa. Pin - 754 216.
- Now at :
H.No.52, Ejipura,
Srinivagulu Main Road,
Bengaluru 47.
(Rep. by Sri.T.Sebastian - Adv.)
--:--
2 SC.No.1297/2015
JUDGMENT
The C.B.I./SCB/Chennai, Bengaluru, charge sheeted the accused for the offence punishable u/s.302, 404 and 201 of IPC. This court has framed charge only for the offence punishable u/s.302 and 201 of IPC. Initially, J.P.Nagar police had registered the case on 17.12.2010 u/s.302 of IPC against unknown person relating to the murder of the deceased. P.W.58 Sri.S.K.Umesh had conducted initial investigation and subsequently, P.W.56 N.Ramesh Chandra, ACP, Jayanagar investigated the case and had filed charge sheet. Thereafter, in view of the order of the Hon'ble Supreme Court, C.B.I. had taken the case for further investigation and P.W.59, (Addl.S.P/C.B.I.) had further investigated the case and filed charge sheet. P.W.52 (Police Inspector, C.B.I.) had assisted P.W.59 in the investigation. Further, one Hari Singh (S.P/C.B.I.) - D.W.3 was also entrusted the investigation of the case. It is also submitted that COD of Karnataka State also investigated the case in part.
2. It is not in dispute that one Ananth Narayan Mishra (P.W.11) was the husband of the victim deceased Payal 3 SC.No.1297/2015 Surekha. The murder of the deceased took place on 17.12.2010. Further, it is not in dispute that P.W.11 was running a Gym at J.P.Nagar in Bengaluru. Further, it is not in dispute that the deceased was staying in Flat No.203, 2nd floor, Service apartment, J.P.Nagar in Bengaluru. It is also not in dispute that accused knew the deceased and her husband and the father of her husband and the parents of the deceased prior to the incident. It is also not in dispute that Rudra Narayan Mishra (P.W.19) is the father of P.W.11 was serving as Addl.Superintendent of Police, CID, Cuttack and the mother of P.W.11 was a police officer. It is also not in dispute that one P.Vasantha Ram (P.W.18) was the friend of accused and he knew the husband of the deceased. It is also not in dispute that one Smt.Usha Premjit (P.W.29) was an employee of DELL company, wherein, the deceased was working and the DELL Company had paid a sum of Rs.8 lakh as death claim amount to the husband of the deceased. It is also not in dispute that on 18.12.2010 Inquest mahazar on the dead body of the deceased was conducted and a mahazar was drawn as per Ex.P.8. It is also not in dispute that one G.Ramana Babu (P.W.1) was the owner of the apartment, G.R.Comforts, Lakshmi layout, J.P.Nagar and it 4 SC.No.1297/2015 has 9 + 1 flats and P.W.1 was residing in the ground floor of the said apartment and deceased was the tenant in flat No.203. It is not in dispute that at the relevant time one Syed Munawar Ali was residing in flat No.102 on rental basis during the relevant period. It is also not in dispute that on 17.12.2010 the working period of deceased in DELL company was from 3.30 p.m. to 12.30 a.m and on the date of incident the deceased did not login to her duty. It is also not in dispute that on 17.12.2010 at 1.30 a.m in the night she was dropped from the DELL company in a Tata Sumo vehicle No.KA 50-905 by one Prabhakar (P.W.17). Further, it is not in dispute that Ananth Narayan Mishra (P.W.11) and Sathya Pramod were jointly running a Gym in the name of "Cuts & Curves" at J.P.Nagar, Bengaluru. It is also not in dispute that one Nagi Reddy (the husband of P.W.7) was running a training institute in software by name "Bangalore Consultancy" at J.P.Nagar and he was giving training to its students and he used to issue training certificate and in the year 2012 the said institution was closed and Nagi Reddy died on 19.9.2013. It is also not in dispute that the father of husband of the deceased was running a Gym by name "Cuts & Curves" at Cuttack along with P.W.11. Further, it is 5 SC.No.1297/2015 not in dispute that one N.Murali (P.W.9) was the work supervisor in the hostel by name "Sai Harika Gents hostel" at S.R.Nagar, Hyderabad (A.P) and the accused had stayed in the hostel for 2 to 3 months. Further, it is not in dispute that one Venku Reddy(P.W.10) of A.P was the owner cum teacher of Epic Technologies Pvt. Ltd. and he had issued Ex.P.6 certificate to the accused for having undergone training in the institution during the year 2010. It is also not in dispute that one Dindayal Surekha (P.W.14) is the father of the deceased. It is also not in dispute that the deceased was the permanent resident of Assam prior to her marriage and her husband's residence was at Cuttack in Orissa and the accused was the resident of Cuttack. It is also not in dispute that on the date of incident ie. 17.12.2010 accused was in Bengaluru.
3. Apart from that it is admitted by the accused in the statement u/s.313 of Cr.P.C that he had joined the Gym at Bengaluru run by the husband of the deceased by name "Cuts and Curves" in the year 2008. It is the evidence of the prosecution that he joined the Gym as a trainer, but accused had defended that he had joined as a Manager. 6 SC.No.1297/2015 Further, it is admitted that father of Ananth Mishra had lodged a police complaint alleging that he had stolen Rs.50,000/- from the Gym. Further, Amiya Kumar Das(P.W.8) knew the accused. Further, it is admitted that accused had executed a bond on a stamp paper for having received a total sum of Rs.75,000/- loan from the father of Ananth. Further, it is admitted that accused was staying in the hostel by name "Sai Harika Gents Hostel" in Hyderabad owned by one Y.Suresh Babu in Room no.406 for a period of 2 to 3 months. Further, it is admitted that P.W.11 knew him(accused) since 2001-2002 and accused was also from Cuttack and accused had actively participated in the marriage of P.W.11 and the parents of deceased knew him very well. It is also admitted that accused had met P.W.11 in the month of March 2008 in Bengaluru and initially he stayed with P.W.21 and thereafter, accused went along with P.W.20. Further, accused was in charge of the Gym at Cuttack and was looking after the finances and maintenance of the Gym and accused shifted from Bengaluru to Cuttack to stay along with his family near the Gym at Cuttack. It is also not in dispute that on 11.12.2010 P.W.11 had called P.W.20 7 SC.No.1297/2015 for lunch to his house and since accused was staying along with P.W.20 both were called for the lunch at 5 p.m.
4. The defence of the case is that accused did not commit the offence of murder and the I.O had fixed him in the case and there is lot of suspicion in the investigation made and some hired supari killers had killed the deceased.
5. It appears in the record that a complaint came to be filed on 17.12.2010 before the Inspector of Police, (P.W.58) J.P.Nagar police, Bengaluru and he had partly investigated the case. Further on 24.12.2010 in the morning at 7.30 am as per the order of the higher officer Smt.Sonia Narang, the case papers were handed over to the Assistant Commissioner of Police, Jayanagar (P.W.56) for further investigation and he had investigated the case and had filed charge sheet on 19.3.2011 against the accused for the offence punishable u/s.302 and 201 of IPC. Thereafter as per the direction of the Hon'ble High Court further investigation was done by Central Crime Branch, Bengaluru. Accordingly, one K.N.Jithendranath (P.W.60) had investigated the case. Thereafter, on 15.3.2013, the Hon'ble Apex court by its 8 SC.No.1297/2015 order had entrusted the matter for further investigation to the C.B.I and the C.B.I. had registered a case against unknown persons for the offence punishable u/s.302 IPC. Thereafter, the C.B.I. had investigated the case and had filed charge sheet against accused for the offence punishable u/s.302, 404 and 201 of IPC.
6. It is the case of the prosecution that for various reasons a difference arose between the accused and the husband of the deceased and enmity been developed. Hence, as a revenge the accused had killed the wife of Ananth Narayan Mishra (P.W.11) on 17.12.2010 at 10.30 hours. P.W.11 and accused are from the state of Orissa. P.W.11 had married the deceased in the year 2008. After the marriage the deceased had stayed in her in-laws house at Cuttack and thereafter, by doing a job in Dell Company in Bengaluru, she was residing in a flat at J.P.Nagar. The father of P.W.11 was an Addl.Superintendent of Police and the mother was also serving in police department. Further, P.W.11 was running a Gym in Bengaluru and the accused was also working there as a Trainer. As accused and P.W.11 9 SC.No.1297/2015 were from the same State, accused has become the friend of P.W.11.
7. During the year 2002, the deceased came in contact with Ananth Narayan Mishra (P.W.11) as they were classmates pursuing their studies in the same AMC college, Bannerghatta road, Bengaluru and the deceased was staying along with him (P.W.11) itself in J.P.Nagar 4th phase, Bengaluru and they had live-in-relationship. Both were doing MBA at that time. In the month of June 2007, P.W.11 had married the deceased at Byrasandra temple, Jayanagar 1st block, Bengaluru. The parents of the spouse were unaware of the marriage. After the respective parents been informed by the spouse they came over to Cuttack and discussed about the marriage and engagement ceremony was held in the month of November 2007 and marriage was solemnized in between the deceased and P.W.11 in the year 2008 at Bhubaneshwar in a Arya Samaj temple at Cutttack in Orissa before the elderly persons. Thereafter, the spouse came to Bengaluru.
10 SC.No.1297/2015
8. Further, during the year 2009, P.W.11 had opened in his native place Cuttack a Partnership firm with one Bhavani Shankar Mishra. P.W.11 started a Gym at Cuttack in Orissa in the year 2009 and has taken the accused to give training to the customer who visits to the Gym at there. Further, as requested by the accused to undergo SAP (Software application programme), P.W.11 had advanced a sum of Rs.25,000/- to the accused prior to 2009. The accused did not repay the same. Further, in the month of April 2009, father of P.W.11 had advanced further sum of Rs.50,000/- to the accused and the accused had executed promissory note and other documents in favour of P.W.11 and P.W.19. The accused did not return the said amount. After a few months Bhavani Shankar Mishra (P.W.20) paid a sum of Rs.50,000/- to P.W.11 with a request not to disclose the same to accused, if otherwise the accused would not repay the loan amount. Further, the accused was sent to Cuttack to look after the Gym and he had misappropriated the amount at there. Further, making use of the absence of partners of the Gym, accused started posing himself as the owner/partner of the Gym to the trainees. The father of P.W.11 had noticed the same. Hence, accused was removed 11 SC.No.1297/2015 and one Bikaram Sahoo(P.W.6) who was working in Bengaluru Gym was sent to Cuttack by P.W.11 to control the financial misappropriation. P.W.11 and 19 warned the accused that he was an employee and not the owner. P.W.11 and 19 had scolded the accused in front of customers to mend his ways and reminded him that he was only an employee and not the owner of the Gym. Hence, accused felt deeply insulted and humiliated, but had no other choice except to continue there as he was not having any other job. Hence, decided to take revenge against P.W.11 and his father and was waiting for an ideal opportunity. Further, the accused made his wife to lodge a false complaint against Bikram Sahoo at Orissa. In the intervention of the father of P.W.11, no action was taken on the complaint of the accused. Hence, the relationship between the accused and P.W.11 and his father has become worst. Further, Bikram Sahoo who was replaced in the place of accused also started misappropriating the Gym fund without the knowledge of P.W.11. Hence, father of P.W.11 had lodged complaint on 6.2.2010 against the said Bikram Sahoo and expelled him from the Gym.
12 SC.No.1297/2015
9. Thereafter, the accused came to Hyderabad and settled there. Further, whenever accused came to Bengaluru he used to call his friends, but on the day of incident he did not inform to anybody. This being the fact and as enmity been developed, the accused hatched a plan to finish the wife of P.W.11. Hence, on 13.12.2010 accused visited the house of P.W.11 and had collected the modus operandi as to how the task should be completed. Further, on 16.12.2010 the accused made a phone call from Hyderabad to P.W.11 and ascertained his absence in Bengaluru. On 17.12.2010 at 10.30 am the accused came to the house of the deceased and had murdered the wife of P.W.11.
10. Since the I.O had satisfied with regard to the materials available for the offence alleged, had charge sheeted the accused for the offence stated above.
11. This court had framed the charge against the accused for the offence punishable u/s.302 and 201 of IPC. To prove the case, the prosecution had examined P.W.1 to 60 witnesses and got marked Ex.P.1 to P.98 documents. 13 SC.No.1297/2015 M.O.1 to 36 were marked from the side of prosecution. Accused had denied the statement u/s.313 Cr.P.C. Defence has examined D.W.1 to D.W.3 witnesses and got marked Ex.D.1 to D.18 documents and D.M.O.1.
12. Heard the arguments. Learned Public Prosecutor and learned counsel for accused have filed their respective written arguments u/s.314 of Cr.P.C.
13. The points that would arise for consideration are :-
1. Whether the prosecution proves beyond reasonable doubt that on 17.12.2010 at about 10.30 hours while the deceased Smt.Payal Surekha, the wife of P.W.11 was alone at her home in Flat No.203, II floor, Service Apartment/G.R.Comforts, Opposite to RBI layout, No.40 Lakshminagar, J.P.Nagar 7th phase, Bengaluru, the accused had entered her house and did commit her murder by intentionally stabbing her several times with a knife on her body, thereby, committed the offence punishable u/s.302 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that on the above said date, time and place, the accused in furtherance of committing the murder of Smt.Payal Surekha, took 'ACER' Company laptop and Samsung mobile handset from the spot and took the same to Street No.4, Sanjeevreddy Nagar, Hyderabad - A.P, and destroyed the same by throwing into the dustbin and thereby, caused the evidence of the commission of the offence, to disappear, with an intention of screening from the legal punishment, thereby, 14 SC.No.1297/2015 committed the offence punishable u/s.201 of IPC?
3. What order?
14. My findings on the above points are as under :-
1. In affirmative.
2. In negative.
3. As per final order for the following :-
REASONS
15. Points 1 & 2 :- In order to avoid the repetition of facts and as both the points are inter-connected with one another, I have taken those points together.
16. Admittedly, the murder was a barbaric one. On perusal of the photo prints vide Ex.P.60 to P.95 it appears that it was a barbaric one. On perusal of the entire case of the prosecution and the defence taken, it appears that the intention of the culprit was not to commit any theft or to do any other offence other than the killing of the deceased.
17. It is the contention of learned Public prosecutor that there is no direct evidence available. Even then, the 15 SC.No.1297/2015 circumstantial evidence is sufficient to prove the guilt against the accused. It is also contended that "man may tell lie, but the circumstances would not tell lie".
18. In support of the contention the learned Public prosecutor has relied the judgment reported in 2007 Crl.L.J 20 (SC), Trimukh Maroti Kirkan Vs. State of Maharastra. In the said case, the deceased was married to the appellant prior to nearly 7 years from the date of incident ie. on 4.11.96. The incident was that she was killed by the appellants. There was allegation that the husband and in- laws of the deceased demanded dowry and ill treated her. This being the fact, the father of the deceased received an information from a person of the village Kikki, wherein the deceased was residing along with her husband, that the deceased had died due to snake bite. In the postmortem examination conducted on the body of the deceased disclosed that, she had died due to asphyxia as a result of compression of neck. In the trial, the learned Sessions Judge had acquitted the appellant of the offence punishable u/s.302 of IPC and the Hon'ble High Court in the appeal filed by the State had allowed the appeal and convicted the 16 SC.No.1297/2015 accused. The Hon'ble Apex Court had upheld the said conviction and had concurred the finding of the Hon'ble High Court. In the circumstances, the Hon'ble Apex Court has observed in paragraph No.12 of the Judgment that if an offence takes place inside the privacy of the house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of the circumstantial evidence is insisted by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to lead.
19. The learned Public prosecutor has also relied the judgment reported in 2005 AIR (SC) 1288, Usman Main Vs. State of Bihar. In the said case a charge was u/s.302 of IPC. The trial court had convicted the accused and the 17 SC.No.1297/2015 Hon'ble High Court and Apex Court had upheld the same. In the said case there were no eye witnesses. In paragraph No.15 of the judgment it is observed by the Hon'ble Apex Court that before analyzing factual aspects, it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed, and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, ie., the evidentiary facts. Further, counsel has relied the judgment reported in 1975 AIR SC 241, Dharm Das Wadhwani Vs. The State of U.P. In the said judgment it is held by the Hon'ble Apex Court that every evidentiary circumstance is a probative link, strong or weak and must be made out with certainty. The rule of benefit of reasonable doubt imply a frail willow bending to every whiff or hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inference following from evidence circumstantial or direct. Further, counsel has relied the judgment reported in 1984 Crl.L.J 18 SC.No.1297/2015 748 (Kerala High Court), Jose Vs. State of Kerala. In the said judgment in paragraph No.21 it is held that while considering the question whether the circumstantial evidence is inconsistent with the innocence of the accused, the standard to be adopted must be reasonable and not fantastic. The courts cannot be too willing to accept such fantastic probabilities as circumstances positing a hypothesis inconsistent with the guilt of the accused.
20. Further, the counsel has also relied the judgment reported in 2019 Crl.Law Reports (SC) 366, Pattu Rajan Vs. State of Tamilnadu. In the said judgment in paragraph No.43 it is held by the Hon'ble Apex court that the traditional dogmatic hyper technical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerated adherence to the rule of proof, in as much as the benefit of doubt must always be reasonable and not fanciful.
21. The learned Public prosecutor has brought to the notice of this court with regard to several circumstances to 19 SC.No.1297/2015 prove the guilt of the accused. It is contended that the deceased was an innocent person and her parents are at Orissa and were doing the business and the father of P.W.11 was a retired Superintendent of Police. Further, it is contended that enmity in between P.W.11 and the accused been developed as the accused was removed by P.W.11 from the employment where he was a trainer under P.W.11 in a Gym at Cuttack. Further, it is contended that the accused had misappropriated the income received in the Gym at Cuttack, thereby he was removed from the employment and for that the accused had developed a revenge against P.W.11 and his father over the Gym matter and financial misdeeds at Gymnasium. Hence, there was personal grudge by the accused against P.W.11 and his father. Therefore, he hatched a plan to take revenge by murdering his wife. Further, P.W.11 had lot of affection with his deceased wife and after the incident he had been depressed.
22. According to Ananth Narayan Mishra, (P.W.11) in the year 2002-03 he came over to Bengaluru for studying M.Sc Bio-technology in AMC college, Bannerghatta road, Bengaluru and deceased Payal Surekha was his classmate 20 SC.No.1297/2015 pursuing her studies in the same college during the year 2002. Further, she was also staying along with him in J.P.Nagar 4th Phase, Bengaluru and they were in live-in- relationship. After completing his P.G, he did MBA from C.V.Raman Institute and deceased was also doing MBA with him at that time. Further, he married the deceased in the month of June, 2007 in Bengaluru and opened a Gym by name "Cuts & Curves" on 4.6.2007 at J.P.Nagar in Bengaluru. Further, his parents and the parents of the deceased were unaware of their marriage in the temple. Thereafter, both had informed their parents about their marriage solemnized. Subsequently, in the month of November 2007 their engagement ceremony took place at his (P.W.11) residence at Cuttack in Orissa and marriage was performed at Arya Samaj Temple, Bhubaneshwar in the presence of elderly persons. Thereafter, both came to Bengaluru and they resided in Uma Sanjeevini Apartment till 31.3.2010. Thereafter, they went to Cuttack to stay along with their parents. Further, he (P.W.11) knows the accused since the year 2001-02 as he was also from Cuttack, and he had married. Further, the accused had actively participated in his (P.W.11) marriage at Cuttack, Orissa. The parents of 21 SC.No.1297/2015 the deceased knew the accused well. Further, since the accused wanted to go over to Bengaluru to pursue software course, he sought the financial assistance of P.W.11. Accordingly, in the month of March 2008 accused came over to Bengaluru and met P.W.11. Initially the accused stayed with C.W.17 and thereafter, he went along with Bhavani Shankar (C.W.16). Further, for the first time in Bengaluru the accused met P.W.11 in the Gym at J.P.Nagar in the month of March 2008 and told P.W.11 that he wants to join the Gym as a trainer. Meanwhile, P.W.11 and his family were intended to start a Gym at Cuttack and as the accused was trained by P.W.6 for a period of 2 months in the Gym belonged to P.W.11 at Bengaluru, P.W.11 had opened a Gym at Cuttack and the accused was put in charge of the Gym at Cuttack including its finance and maintenance. The accused shifted his family to Cuttack. Further, the accused had obtained financial help of Rs.25,000/- to pursue SAP course and in the month of March 2009, he has borrowed Rs.50,000/- for some construction work from P.W.11 and the accused had executed bond paper as security for repayment of the said amount of Rs.75,000/-, but the accused did not return the said amount. Further, the father of P.W.11 used 22 SC.No.1297/2015 to visit the Gym at Cuttack once or twice a week. It was found that the accused was not passing receipts to the customers of the Gym and he had mismanaged the financial affairs of the Gym and was adamant with the customers of the Gym by creating rift between the owner of the Gym and the customers. Further, the accused was pretending himself as the owner of the Gym and he used to get some girl customers for his own purpose in the wee hours. Hence, P.W.11 and his father had sacked him from the job in the month of March, 2009. Further, the accused used to sell the products of substandard to the customers. After the accused was removed from the service by P.W.11, one Shankar Behera was looking after the management of the Gym. Hence, the relationship between the accused and him (P.W.11) has strained, as such.
23. Further, initially P.W.11 had a partner to the Gym by name Sathya Pramod, and one Kartik Naidu was the trainer and thereafter, Bikaram Sahoo (P.W.6) was the trainer. Further, during the period from July 2008 to March 2009, the accused had a relationship with a girl by name Sonu. The wife of accused by name Smruthi Rai used to call 23 SC.No.1297/2015 and discuss with his (P.W.11) wife in that respect. At the same period, the accused had come over to him and told him not to interfere with his personal life. Hence, revenge between them had further developed. Therefore, the learned public prosecutor contends that the accused had motive to do the crime.
24. It is contended by the learned counsel for the accused that any inference with regard to the motive of the accused against P.W.11 cannot be inferred in view of the admissions made by P.W.11 in his evidence. It is not in dispute that accused had taken Rs.50,000/- from the father of P.W.11, and the partner of the Gym at Cuttack by name Bhavani Shankar (P.W.20) was the guarantor for the said amount, and P.W.11 had admitted in the cross-examination that P.W.20 had returned the amount of Rs.50,000/- lent to the accused. Further, P.W.11 had admitted in the cross- examination in paragraph No.14 that in the month of December 2008 father of P.W.11 had advanced Rs.25,000/- to the accused. Nothing is elicited in the cross-examination of P.W.11 that the accused had returned the balance amount of Rs.25,000/-. It is not in dispute that accused was a 24 SC.No.1297/2015 trainer in the Gym. at Cuttack. According to Rudra Narayan Mishra (P.W.19), P.W.20 had repaid the amount of Rs.50,000/- to P.W.11. It is suggested to P.W.19 in the cross-examination that P.W.11 had lent an amount of Rs.25,000/- to the accused to pursue some course. According to P.W.20 by taking the amount of Rs.50,000/- in the month of January 2010 the accused had left the job. Hence, it could be inferred that there was financial transaction in between P.W.11 and accused. No doubt P.W.20 in his evidence had deposed in paragraph No.4 that on 11.12.2010 P.W.1 had invited the accused to his house and P.W.20 had accompanied the accused to go to the house of P.W.11 on the said day. Further, P.W.11 in his evidence in paragraph 6 has stated that in the month of August 2010 the accused had approached him in the Gym at Cuttack belongs to him and he told to him (P.W.11) to forget previous ill will between them. It is not in dispute that on 11.12.2010 accused went to the house of P.W.11 along with P.W.20. I feel since there was money transaction in between P.W.11 and the accused, and accused did not pay the balance amount of Rs.25,000/-, and P.W.11 had demanded for return of the same, and 25 SC.No.1297/2015 accused was removed it cannot be said that accused and P.W.11 were in good terms.
25. It is further contended by the learned counsel for the accused that there was a smooth telephone conversation in between the accused and P.W.11 prior to and after the incident, thereby any adverse against accused cannot be drawn. It is not in dispute that on 16.12.2010 at 10.41 a.m P.W.11 had made a phone call to the accused and there was conversation for 3673 seconds as appears in Ex.P.29 call detail records of the mobile phone No.9701383478 belongs to the accused. Further, as per call detail records vide Ex.P.29 it appears that on 17.12.2010 at 11.03 p.m P.W.11 had made a phone call to accused and at that time the accused was at S.R.Nagar, A.P. Further, on the same day at 11.24 p.m accused made a call to P.W.11 while the accused was at S.R.Nagar in A.P. Hence, it is contended by the learned counsel for the accused that the accused and the P.W.11 were in good terms and any inference cannot be drawn with regard to the motive of accused. According to P.W.11 the said two calls were with respect to the death of his wife. In case, if the accused had affection with P.W.11, as an 26 SC.No.1297/2015 ordinary prudent man would do, he would have come on the day itself to Bengaluru to enquire about the incident and would have supported P.W.11 to find out the culprit. That has not been done by the accused. Hence, I feel for mere because telephone conversation was made as aforesaid, it cannot be inferred that there was no motive against P.W.11 to target his wife. Accused admits that he had worked in the Gym in Bengaluru belongs to P.W.11 and Sathyapramod, to the question No.34 put to him in his statement u/s.313 Cr.P.C.
26. It is further contended by the learned counsel for the accused in the written arguments filed that Ananth Narayan Mishra (P.W.11) and Rudra Narayan Mishra -( P.W.19 father of P.W.11) had motive to murder the deceased. It is not at all suggested in the cross-examination to P.W.11 and 19 that they had involved in the murder of the deceased or they had instigated to kill the deceased. Learned counsel for the accused had brought my notice to the admission made by A.Mousami (P.W.12). She (P.W.12) is the resident of Uma Sanjeevini apartment in flat No.005. According to her, earlier deceased had stayed in the said apartment and she 27 SC.No.1297/2015 knew her and deceased had come to her house and she had been to the house of deceased located in the respective apartment. Further, deceased had told to her that she was not happy at Orissa and she was made to work in her in-laws place like a maid servant. Further, before C.B.I. police when they enquired her (P.W.12), she told them that the deceased had informed that during her stay at Orissa the behaviour of her in-laws towards her was not proper and she had to do all house hold work like a maid servant. Thereby, she did not want to go back to Orissa and intended to work in Bengaluru only by doing some job as she was well qualified.
27. It is further contended that the statement given by P.W.12 before Sri.Hari Singh (D.W.3) has been proved through the evidence of Kalaimani (P.W.59) who had in his cross-examination at paragraph 4 admitted the suggestion that D.W.3 had recorded the statement of P.W.12 as per Ex.D.6. But P.W.12 had disowned the same. The statement was to the effect that while the deceased was looking upset and shattered, P.W.12 had enquired her and she had disclosed that her husband had gone to Orissa and he was not 28 SC.No.1297/2015 happy with her. Further, she expressed that what her husband could do to her, the maximum was he would divorce her and she was ready for that also and she (deceased) wept and P.W.12 advised not to think in that fashion. I feel since P.W.12 had disowned the same, it has no relevancy for consideration. Further, as it was found that there was no proper enquiry, Hon'ble Apex court had directed the C.B.I. to hold an enquiry. Hence, on that aspect also the statement vide Ex.D.6 said to have been recorded by D.W.3 cannot be taken into consideration. Further, the statement of the witness u/s.161 of Cr.P.C would become an evidence if he deposes the contents in the witness box. Hence, the statement said to have been recorded by D.W.3 under Ex.D.6 cannot be an evidence even though the I.O (P.W.59) Kalaimani has admitted the suggestion in paragraph No.4 of his evidence that Addl.S.P Hari Singh (C.W.77) had recorded the statement of P.W.12 as per Ex.D.6. It is suggested to D.W.3 (Hari Singh) in the cross-examination in page No.21 by the prosecution that since he had investigated the case in a wrong direction to help the accused, the investigation was handed over to one Pramod, Police inspector for further investigation. No doubt the witness had denied the same. 29 SC.No.1297/2015 For the above said reason, the statement of P.W.12 said to have been taken by him u/s.161 Cr.P.C has no relevancy.
28. Further, learned counsel for the accused had brought my notice to the admission made by Dindayal Surekha (P.W.14) who is the father of the deceased. In paragraph 5 page No.5 he had deposed in his cross- examination that he came to know through his another daughter that her (deceased) relationship with her in-laws was not so good. It is admitted by him in the cross- examination in paragraph No.7 that he had suspected the hands of his son-in-law and his parents in the crime. Further, according to him the deceased had complained to his wife that she was made to work in the husband's house like a maid servant the whole day and it was informed by his wife to him. Further, it is admitted by him that through his daughter he came to know that her husband had invited the accused to the flat when the accused was at Bengaluru about 5 to 6 days earlier to the incident and the accused had visited the flat. Further, it is admitted by P.W.14 that the husband of the deceased and the accused were in friendly 30 SC.No.1297/2015 terms when the accused had visited Bengaluru and also when visited to their flat.
29. Further, the counsel has brought to my notice the evidence of one Sri.K.M.Jitendranath (P.W.60). He was working as Asst.Commissioner of Police in the Central Crime Branch, Bengaluru during relevant period. He had further investigated the case. It is admitted by him in the cross- examination that the father of the deceased had complained to him regarding the involvement of the husband of deceased and her in-laws in the crime. According to him he had handed over the case papers to C.B.I. for further investigation and he did not suspect any other persons apart from the accused in the case in committing the offence alleged.
30. Further, counsel has brought my notice to the evidence of P.W.11 (the husband of the deceased). According to him he had received the death benefits of his wife of Rs.7,60,000/- and after the incident in the month of December, the parents of the deceased had taken all her belongings. Further, in page No.21 in paragraph No.21 he 31 SC.No.1297/2015 had admitted in the cross-examination that on the date of incident either he or his wife did not make any call by each other in between 9 a.m to 10 a.m, and usually his wife used to wake up him by calling him in between 9 a.m to 10 a.m. Further, on the said day he got up at 10.30 a.m. Further, on the date of incident at about 11.30 a.m his wife gave him a missed call on his mobile phone. I feel as because there was no call by each other as afore said, any negative inference against P.W.11 cannot be drawn.
31. Further, counsel has brought my notice to the statement of P.W.11 u/s.161 of Cr.P.C disowned by him as per Ex.D.5(a) to (d). Ex.D.5(c) is a portion of the statement recorded by P.W.59 to the effect that P.W.11 had stated before him that his mother was having rude behaviour with the deceased and the deceased did not like it and the deceased felt frustrated and wanted to do any job by keeping away from the house of in-laws. Further, the police had detained him till 3 a.m on the next day morning of the incident and asked to come on the following day at 9 a.m., and Ex.D.5(d) is a portion of the statement to the effect that during investigation P.W.11 and his parents were 32 SC.No.1297/2015 harassed by the police till they filed charge sheet in the case. I feel the police have enquired in detail and it is quite common to enquire the relative of the deceased and it was no wrong in subjecting the relative of the deceased for interrogation. In the circumstances of the case, I feel the omission in the evidence of P.W.11 with regard to his statement u/s.161 of Cr.P.C as per Ex.D.4, 4(a) to (d) and D.5, 5(a) to (d) is not a material one. Further, once the police have come to a conclusion that the accused had committed the murder of the deceased, the motive of other persons cannot be looked into. Sec.8 of the Indian Evidence Act contemplates that the conduct of any person with regard to an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Hence, I feel the motive of witnesses of the case against the deceased cannot be taken into consideration. Therefore, I feel there is no merit in the contention of the learned counsel for the accused that evidence with regard to the motive of P.W.11 and P.W.19 to get the deceased murdered is to be looked into. 33 SC.No.1297/2015
32. Further according to P.W.19 without returning the total due amount of Rs.75,000/- the accused quit the job somewhere in the month of April 2009. Hence, he (P.W.19) and accused were not in good terms. No doubt no documents been produced regarding money transaction. But P.W.19 had admitted the suggestion in page 7 of his cross- examination with regard to money transaction of Rs.75,000/- In the above circumstances, it cannot be said that there was no motive to the accused to commit the offence. Alternatively, it is further contended by the learned Public prosecutor that where facts are clear, failure to prove motive is not fatal and does not signify the non existence of the offence. In support of the contention, the Public prosecutor relies the judgment reported in 1992 SCC 482 (Mulakh Raj Vs. Satish Kumar). In the said judgment in paragraph No.17 Lordships have held that when facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case. I feel in the case in hand, the circumstances stated above, supports the revenge/grudge of the accused against the 34 SC.No.1297/2015 husband of the deceased, thereby, he hatched a plan of sadistic approach and made to suffer the husband of the deceased by killing his wife.
33. Motive is nothing but the intention of the culprit and sometimes the prosecution may able to prove the same, but sometimes it may not. Sometimes it is difficult to produce evidence as to what was running in the mind of the culprit prior to the killing of the person. Accused was not a stranger to the family of P.W.11 and to the deceased since the accused attended the marriage of the deceased, and accused was a trainer in the Gym run by the husband of the deceased and father of P.W.11 at Cuttack in Orissa. Further, accused was the friend of P.W.11 and both were from Orissa. Further, from March to May 2008 the accused was a trainee at the Gym in Bengaluru run by P.W.11. According to the husband of the deceased (P.W.11) accused was trained by P.W.6 for a period of 2 months in his Gym at Bengaluru. Thereafter, as he and his father had opened a Gym at Cuttack as per the request of the accused he joined the Gym at Cuttack as a trainer. The accused was in charge of everything including the finance and maintenance of the 35 SC.No.1297/2015 Gym at Cuttack. Accused shifted his family to stay near the Gym at Cuttack. Further, during the month of 2008 he gave a sum of Rs.25,000/- to the accused to pursue SAP course and again in the month of March 2009 he gave Rs.50,000/- for some construction work to the accused. Hence, for the total said amount of Rs.75,000/- the accused had executed a bond in paper in favour of P.W.11. Further, on 16.12.2010 the accused had contacted him(P.W.11) over phone at about 7 in the morning and asked him as to why he(P.W.11) had left his wife alone in the house, and P.W.6 had a very bad intention with him (P.W.11) and his wife. Further, for about 45 minutes the accused had a conversation with him (P.W.11).
34. A strong suspicion arose as to why the accused did not meet P.W.11 subsequent to the murder of the wife of P.W.11. On 11.12.2010 in the evening at 4.30 p.m accused and Bhavani Shankar Mishra (P.W.20) met P.W.11 in the flat No.203 in Lakshmi Nivas apartment. Further, on 17.12.2010 P.W.11 had called the accused over mobile of him at 11.03 pm and their conversation was reached upto 447 seconds and again the accused had called P.W.11 over his mobile at 11.24 36 SC.No.1297/2015 pm and it was about 117 seconds and these two calls were in respect to the death of the wife of P.W.11. Inspite of the matter been informed to the accused and as it was a serious one, a doubt appears in the mind of the court as to why the accused did not rush to meet P.W.11 in Bengaluru. This is one of the circumstances goes against the accused. It is not expected that all the relative of the victim would meet. But here it is an exception for that at the relevant period accused was at A.P and it was not far to Bengaluru and accused was a close friend of P.W.11 and he had met P.W.11 several times prior to the incident. Hence, the conduct of the accused after the incident is also one of the circumstances to be considered.
35. It is contended by the learned counsel for the accused in the written argument submitted that on 17.12.2010 accused had come to Bengaluru for the purpose of collecting the password for taking print out of the salary certificate issued pursuant to the experience certificate vide Ex.P.10. It is the contention of learned Public prosecutor that on the said day the accused had come to Bengaluru to commit the murder of the deceased Payal Surekha. It is not 37 SC.No.1297/2015 in dispute that on 13.12.2010 accused came to Bengaluru and collected the certificate. It is the further contention of the learned counsel for the accused that on 17.12.2010 accused had come to Bengaluru from Hyderabad to collect information regarding his salary details. It is the further contention of the learned counsel for the accused that accused had obtained the service certificate from Bengaluru consultancy owned by one Nagi Reddy. Ex.P.15 is the visitors register kept by Nagi Reddy in the said institution. It is the further contention of the learned counsel for the accused that Ex.P.52 register kept by Bengaluru consultancy cannot be relied to prove that accused had come to Bengaluru consultancy on 17.12.2010 since there is no entry with regard to his visit to Bengaluru consultancy either on 13.12.2010 or on 17.12.2010.
36. Contrary to that, it is the contention of learned Public prosecutor that there is an entry in Ex.P.52 with regard to the visit of the accused to Bengaluru consultancy. On perusal of the same, it appears that on 13.12.2010 in Sl.No.21 of the register the signature of the accused appears but the name is shown as K.V.Rajesh. On comparison of the 38 SC.No.1297/2015 signature appears in Sl.No.21 of Ex.P.52 and the signature of the accused made in his statement u/s.313 Cr.P.C, it appears similar. There is no dispute that on 13.12.2010 accused went to Bengaluru consultancy. On 17.12.2010 there is no entry that accused visited the said consultancy. Hence, it cannot be said that on 17.12.2010 accused had visited the Bengaluru consultancy to obtain the salary particulars. It is only the oral submission in the argument that on 17.12.2010 accused came to Bengaluru to collect his salary particulars in Bengaluru consultancy, but no suggestion is made to any of the prosecution witnesses or it is stated in his statement u/s.313 Cr.P.C that on 17.12.2010, accused came to Bengaluru to get the salary particulars of him from Bengaluru consultancy.
37. According to P.W.21 who is the friend of accused on the say of P.W.20 he accompanied the accused to collect experience certificate on the 3rd day from 11.12.2010 ie. on 14.12.2010 from Bengaluru consultancy. Further, according to him, he (P.W.21) was staying with P.W.20 in a room at J.P.Nagar and accused had come to the room of P.W.20 and stayed in the room in the night. On the third day, P.W.21 39 SC.No.1297/2015 accompanied the accused to collect the experience certificate and on the request of P.W.20 he (P.W.21) accompanied the accused in the night at about 7 pm to board the bus which proceeded to Hyderabad. This witness has not been cross-examined.
38. However, in the cross-examination of P.W.20 in para 8, he has deposed that while he was discussing with accused over phone on 16.12.2010 the accused informed that he (accused) has to come again to Bengaluru as the salary certificate attached to Experience certificate was defective one. Nothing is elicited from the evidence of P.W.20 and 21 that accused told to them that he had come to Bengaluru to collect salary details. It is the first time in the written argument it is stated that on 17.12.2010 the accused had come to Bengaluru for the purpose of collecting the password for taking print out of the salary certificate issued pursuant to Ex.P.10 experience certificate. It is not at all suggested either to P.W.20 or any of the witnesses that on 17.12.2010 accused had come to Bengaluru for the above said purpose. P.W.20 in the cross-examination in paragraph No.8 has stated that on 16.12.2010 accused had told him 40 SC.No.1297/2015 that as the salary certificate attached to experience certificate was defective, again he had to come back to Bengaluru, but the defence is that accused came to Bengaluru to collect password. I feel the said defence is only an after thought. Therefore, there is no merit in the contention of the learned counsel for the accused that on 17.12.2010 accused had come to Bengaluru to collect his salary details/pan card.
39. It is not in dispute that accused was using the Nokia mobile set seized from the hands of the accused in J.P.Nagar police station. It is the contention of the learned counsel for the accused that the house of the deceased was within the tower location of RBI layout and the call of the accused from his mobile sim was at 10.40 a.m on 17.12.2010 was not through the tower located at RBI layout. It is not in dispute that the mobile No.9701383478 used by the accused was stood in the name of one Kishore Chandra Pradan (P.W.43). According to P.W.43 he and accused were staying in a hotel at Hyderabad and he was asked to arrange for a sim and accordingly, he had provided his ID proof for getting the sim and the accused was using the above mobile sim. 41 SC.No.1297/2015 According to P.W.53, (Nodal Officer, Bharathiya Airtel Ltd.) on 11.12.2010, as revealed in call details report, from the tower noted in Ex.P.29, the subscriber of the above said sim was located in Bengaluru and on 17.12.2010 at 10.48 a.m the subscriber of the said mobile was at J.P.Nagar 7th phase, Bengaluru and on the very same day at 11.51 a.m. he was at Elita Promenade Apartment, J.P.Nagar and on the very said day at about 12.53 hours, he was at Majestic bus stand, Bengaluru. Further, the mobile No.9535206982 was stood in the name of deceased Payal Sahoo for the period from 1.12.2010 to 20.12.2010. As per Ex.P.30 call details, it appears that on 17.12.2010 at 11.03 a.m the subscriber of the mobile was located at RBI layout main road, Bengaluru. Hence, it is contended that on the alleged date of incident, the accused was not within the tower range of RBI layout. Therefore, there is suspicion with regard to the involvement of the accused in the offence alleged against him and it cannot be inferred that at 10.46 a.m while the accused was at J.P.Nagar he had committed the offence.
40. Apart from that, it is further contended by the learned counsel for the accused that on 11.12.2010 the 42 SC.No.1297/2015 phone call of the accused was through a tower in RBI layout while he was in the house of deceased. According to the prosecution the incident took place at 10.45 a.m on 17.12.2010. It is not in dispute that the phone No.9701383478 was with the accused during the relevant period. It is the contention of learned counsel for the accused that Ex.P.29 call detail records indicates that on 17.12.2010 at 10.46 a.m the location of the above said mobile sim was within the tower location of J.P.Nagar 7th phase and at 11.51 a.m it was within the tower location of Elita Promenade apartments. Hence, at any angle it cannot be said that the accused was in the tower location of RBI layout. Contrary to that, it is the contention of the learned Public prosecutor that these towers are located adjacently within the permitted distance. Hence, it is quite natural of overlapping of calls from the towers. Further, if there are more towers nearby, from nearby tower, call may pass on to mobile and some times if tower was not in working condition, then also call may pass from any nearby tower to the sim. Hence, it cannot be ruled out that as because accused had received call from the tower of J.P.Nagar 7th phase at the relevant time, he was not in the crime spot. 43 SC.No.1297/2015
41. According to P.W.1 who is the owner of the said flat wherein deceased was staying, the location of the flat is opposite to RBI layout. Hence, it is contended by the Public prosecutor that it cannot be said that the signal from the tower situated in RBI layout and the signal of the tower situated in J.P.Nagar 7th phase cannot reach the apartment wherein the deceased was staying. According to P.W.53(Nodal officer of Bharathiya Airtel Limited) as stated in his cross-examination in paragraph No.6 and 7 that Elita Promenade apartment is in J.P.Nagar, Bengaluru and a tower covers roughly 800 mtrs to 1 km. Further, in between two towers the distance will be roughly 1 km to 1 ½ kms and it depends upon the population. Nothing is elicited in the cross-examination of P.W.53 that it was impossible to receive any call while a subscriber of the phone was in the place of incident from the tower located at J.P.Nagar 7th phase and Elita Promenade apartments. Even though there is no dispute that on 17.12.2010 accused had come to Bengaluru, nothing is probabalised that on the said day accused visited Bengaluru consultancy. It is not forth coming as to where the accused went in Bengaluru on the said day. 44 SC.No.1297/2015 This is one of the circumstances to probabalise that the subscriber/possessor of mobile sim stated above which was in the possession of the accused was in the place of incident on the alleged date and time of the incident.
42. It is the further contention of the learned public prosecutor that the evidence of P.W.4 (Syed Munawar Ali - neighbour) itself is sufficient to prove the involvement of the accused in the crime. He is a crucial witness to the incident. Further, because of minor contradiction in his evidence, his evidence shall not be thrown out on the flimsy grounds. In support of the contention learned public prosecutor relies the judgment reported in AIR 2013 SC [Cri] 1544 and 313 Cr.P.C also. Admittedly, there is no enmity in between the accused and P.W.4 and nothing is suggested to P.W.4 by the accused that there was enmity and P.W.4 is an interested witness. One Syed Munnawar Ali is the P.W.4. He was residing in Flat No.102 on rental basis during the period of incident and at the same time deceased was residing in Flat No.203 in the 2nd floor and it was a corner flat, during the relevant period. According to P.W.4, he knew deceased Payal Surekha and she had informed him that she was staying 45 SC.No.1297/2015 alone, and was it ok, if she comes over to his house and had a chat with his wife, and he said ok for that. Further, his wife knew the deceased. That being the case, on 17.12.2010 when he was standing in front of his flat in the corridor he saw a person standing in front of the apartment wearing a jerkin and it was a kind of humidity at that time. Further, he had come out of the flat for smoking and it was 10.45 a.m at that time. He saw that person talking in his mobile with someone by seeing towards their flat and he (P.W.4) went inside. Further, he being a chain smoker after half-an-hour he came out for smoking and it was 11.15 a.m at that time and he saw the same person standing there looking towards the apartment. That person noticed him (P.W.4) and immediately walked away. Thereafter, he went inside the flat and after a few minutes the very person came to his flat and asked where Mr.Ananth (husband of the deceased) was staying. Since P.W.4 was not knew Mr.Ananth, his wife told him that the said person has been residing in the 2nd floor. P.W.4 saw that person in disturbed manner and he was talking in broken English. Thereafter, when he (P.W.4) came out of the flat after half-an-hour he saw the very same person going outside the apartment 46 SC.No.1297/2015 through the main gate and he was carrying the jerkin worn by him in his arms and he had identified the said person (accused) in the open court. Further, according to him on the very day at about 2'o clock in the afternoon he and his wife went to the city and by returning at 4.30 pm. they saw number of people assembled near the apartment.
43. It is contended by the learned counsel for the accused that according to one Maya Sharma (D.W.2) TV journalist, in the interview on the date of incident P.W.4 had stated that "in the morning he saw a stranger, a suspicious guy and he was wearing a mask, standing near to the apartment for quite some time and after 20 minutes he (the stranger) came to his house and enquired about victim's husband and he did not actually see the stranger going up and after 20 minutes he saw the said person going down..." Hence, it is contended that P.W.4 did not see the said person properly. Therefore, his evidence is not credit worthy to believe. In the cross-examination in page No.8, P.W.4 has stated that the stranger had worn a hood and not a mask. In the cross-examination in page 5, D.W.2 has stated that there is possibility that there might be variation 47 SC.No.1297/2015 in using the words by slip of tongue when a person faces interview by the first time. Further, P.W.4 did not tell to her (DW.2) that when the accused came to his house for enquiry he(accused) was wearing the mask. I feel, since P.W.4 had seen the suspected person (accused) in the door of his house itself while he had come asking as to where the house of Ananth (husband of deceased) was situated, whether the accused was wearing mask or hood, would not be a material discrepancy. P.W.4 had consistently stated that accused was wearing hood and D.W.2 had corroborated the same in the cross-examination as stated above. Hence, there is no merit in the contention of the learned counsel for the accused that it is hard to believe that P.W.4 had seen the accused properly and identify him.
44. Further, in addition to that I feel, since P.W.4 had seen the stranger (accused) from the upper side while he (accused) was standing in front of the apartment and when he had come to his house asking the house of the husband of the deceased, it was quite possible to see his face and identify him later on. I feel P.W.4 being a natural person as an ordinary prudent man could do, had did the same. 48 SC.No.1297/2015 According to S.K.Umesh (P.W.58) who had investigated the case, on 18.12.2010 had recorded the statement of P.W.4 and as per the particulars given by him he had prepared the portrait of the suspected person in the computer. Further on 23.12.2010 while he (P.W.58) was in station in the morning at 6 a.m P.W.36 and C.W.61 had produced the suspected person (accused) before him. P.W.4 in his evidence in paragraph No.3 states that the J.P.Nagar police had asked him to describe the stranger he had seen who came to enquire about the husband of deceased. About a month thereafter he received a notice from the police and at 11.15 a.m he went to Parappana Agrahara jail and had identified the accused in the test identification parade.
45. It is further contended by the learned counsel for the accused that P.W.4 in the statement u/s.164 of Cr.P.C before Magistrate has deposed that he had seen the suspected person(accused) in the police station and had identified him who was standing in front of the apartment in the early morning. Thereafter, police asked him to go to central jail for identification, accordingly he had identified him in the central jail. Hence, it is contended that such kind 49 SC.No.1297/2015 of identification does not carry any weight. I feel, since the said statement u/s.164 of Cr.P.C was recorded on 9.3.2015 by the Magistrate at the instance of C.B.I. police after 5 years of the incident, there is possibility of variation. It is not forth coming as to why statement u/s.164 of Cr.P.C was recorded after 5 years gap. Hence, it has no much weight for consideration. But his consistent evidence that after one month of the incident he was called to present at Central jail, accordingly, he went there and identified the accused in the I.P. It is further contended by the learned counsel for the accused that since P.W.4 had disowned his statement u/s.161 of Cr.P.C vide Ex.D.3, D.3(a) and (b), he is not trust worthy to believe. In Ex.D.3(a) he (P.W.4) has stated that at around 9.45 a.m he observed one unknown person wearing a specs and jerkin. In page No.13 of the cross-examination he had deposed that he does not remember the exact time of the stranger coming to their apartment on 17.12.2010. Ex.D.3(b) is the statement with regard to his acquaintance with the deceased. I feel since P.W.4 had deposed that deceased had come to his apartment and informed that she was staying alone and is it ok if she comes to his flat and have a chat with his wife, the disown as per Ex.D.3(b) is not 50 SC.No.1297/2015 a disownment in fact, for the reason parrot type of evidence is not expected. Hence, there is no merit in the contention of the defence.
46. Further one C.Manjunath (P.W.54) the then Thasildar and Taluk Executive Magistrate on 18.1.2011 had conducted test identification parade in the presence of P.W.4 and one Raghu Gowda (P.W.38), at Parappana Agrahara jail. P.W.54 had denied the suggestion that prior to the identification parade was conducted, the police had shown the accused to the witnesses. Further, it is denied that since the police at jail had given shake hand to the accused, the witnesses had identified the accused. I feel, since the incident was took place on 17.12.2010, and the test identification parade was conducted on 18.1.2011, it cannot be said that there was delay in conducting the test identification parade. No doubt, P.W.38 in his cross- examination had disowned his statement before the J.P.Nagar P.S to the extent of Ex.D.8 and 8(a) that he was working in a steel vessel shop by name Bramaramba Enterprises and they used to buy the materials from the market for cheap rate and sell in the Bramaramba 51 SC.No.1297/2015 Enterprises shop and on the previous day to his statement before the police, the police came to the shop and had shown the portrait of the suspected person. I feel, since the statement was recorded on 19.12.2010 and he was examined on 13.7.2016 before the court there is possibility to forget the things stated before the I.O after six years. Further, the said omission is not a material one and it is not expected to give parrot type evidence. I feel, P.W.38 is a natural witness and he was the better person to identify the accused. Accordingly, as stated by him in his cross-examination in paragraph No.3 he had identified the accused at Parapana Agrahara jail in test identification parade conducted by the Tahasildar after one month of the incident. Therefore, his evidence also corroborates the evidence of P.W.4 as far as identification of the accused.
47. It is further contended by the learned counsel for the accused that P.W.4 has given contradictory versions in different stages about the time at which he saw the suspected person standing in front of the apartment. Before P.W.58 S.K.Ramesh and before this court P.W.4 has stated that he saw the stranger standing in front of the apartment 52 SC.No.1297/2015 at 10.45 am, before P.W.59 he had stated that he saw the stranger standing in front of the apartment at 9.45 a.m. Further, in his statement u/s.164 of Cr.P.C and in the statement before P.W.59, had said that he saw the stranger for the first time at 7 a.m and second time one hour later. I feel, it is quite natural in variation in the time and the difference of time stated before the different authorities is not much of distance. Hence, there is no merit in the said contention of the counsel for the accused.
48. It is further contended by the learned counsel for the accused that as per the evidence of P.W.11 and P.W.20, accused visited flat No.203 on 11.12.2010 and the alleged incident took place on 17.12.2010. Hence, accused was well aware of the topography of G.R.Comforts Apartment. Therefore, question of forgetting the topography to the accused does not arise. Hence, question of asking with P.W.4 about the location of the flat of P.W.11 does not arise. I feel, for mere because accused had asked P.W.4 about the location of the house of the deceased any doubt cannot be inferred on the evidence of P.W.4. 53 SC.No.1297/2015
49. It is further contended by the learned counsel for the accused that on perusal of the outgoing and incoming calls to the mobile phone No.9701383478 belongs to the accused as appears in Ex.P.29 call details the presence of the accused in the place of incident on 17.12.2010 at 10.45 a.m cannot be inferred. While discussing above, I have already stated that there is possibility of getting phone signals from different nearby towers in the place of the incident. Hence, there is no merit in the said contention of the learned counsel for the accused that evidence of P.W.4 suffers from various infirmities and he is not worthy of acceptance to hold that he saw a stranger standing in front of the apartment at 10.45 a.m and the said person was the accused.
50. It is further contended by the learned counsel for accused that the recovery of MO.1 jerkin, MO.2 knife, MO.3 spectacle and MO.4, three scalp hairs of the deceased in Ex.P.7 mahazar is doubtful. According to N.Ramesh Chandra (P.W.56) during the month of August 2008 to May 2011 he had worked as Asst.Commissioner of Police in Jayanagar range. Further, as per the order of DCP Smt.Sonia Narang 54 SC.No.1297/2015 dated 23.12.2010, on 24.12.2010 he took the case papers for further investigation from C.W.64 S.K.Ramesh (P.W.58) the I.O. Further, on 24.12.2010 itself, he went to J.P.Nagar police station and at that time accused was arrested and kept in the police station. Further, at the instance of accused and as per the discloser statement of accused vide Ex.P.59, in the presence of C.W.8 and P.W.13, he had recovered the MO.1 to MO.4 from Puttennahalli kere angala. The accused had taken out those items from a bush at there and produced before the I.O.
51. According to H.K.Ramesh (P.W.13) on 24.12.2010 at 7.30 am the J.P.Nagar police called him to the police station. One Sri.Raja @ Raju (C.W.8) said to be the witness for panchanama had accompanied him to the police station and at that time ACP N.Ramesh Chandra too was in the police station. On the same day in the morning at 8 a.m he accompanied the ACP, and the other persons followed him (ACP) and the accused took them towards Shivamahalakshmi temple at Puttenahalli. From the spot the accused produced MO.1 to 3 and the police had drawn Ex.P.7 panchanama. 55 SC.No.1297/2015
52. According to P.W.56, on 17.12.2010 while he was in patrol duty at Venkataramana temple, at 4.00 to 4.30 pm he had received an information with regard to the murder taken place within the jurisdiction of J.P.Nagar police station. Immediately, he went to the spot along with his two staff members wherein the murder took place. Thereafter, one Sri.S.K.Umesh, Inspector of Police (P.W.58) came there and as per the instruction of DCP Smt.Sonia Narang on 23.12.2010 he took the case for further investigation from P.W.58. Further, on 24.12.2010 he went to J.P.Nagar police station and by that time P.W.58 had already arrested the accused and had recorded the voluntary statement of accused. Further, on the basis of the voluntary statement of accused, he (P.W.56) along with the staff in the police station followed the accused. By that time H.K.Ramesh (P.W.13) and C.W.8 were present. The accused took them near to Puttenahalli circle on the back of Mahalakshmi temple in Bengaluru and produced a jerkin (MO.1) worn at the time of committing the offence and a knife (MO.2) used to commit the offence and a specs (MO.3) worn at the time of committing the offence before them from a bush at there. On verification, they found 2-3 hairs (MO.4) in the jerkin and 56 SC.No.1297/2015 had drawn Ex.P.7 panchanama. Further, he had seized MO.1 to 3 and MO.4 hairs while drawing the panchanama.
53. According to P.W.13, on 24.12.2010 in the morning at 7.30 am he was called to J.P.Nagar police to the station, accordingly he went to the police station at 7.45 a.m and thereafter at 8 a.m. they went to the spot along with ACP and from a parthenium bush at Puttenahalli near to a temple, the accused had produced MO.1 to 3, and on search, the I.O had collected 3 hairs from the jerkin and the I.O had seized MO.1 to 4 in his presence and drawn the panchanama vide Ex.P.7 and he had attested his signature to the panchanama.
54. It is the contention of learned Public prosecutor that the evidence of H.K.Ramesh (P.W.13) and N.Ramesh Chandra (P.W.56) the then ACP, is sufficient to prove the recovery panchanama vide Ex.P.7. It is contended by the learned counsel for the accused that it is hard to believe that the accused went towards Puttenahalli instead of moving to Majestic to board the bus to go to Hyderabad. Further, Puttenahalli is not on the way to Majestic. I feel, as 57 SC.No.1297/2015 contended by the learned Public prosecutor that it is the mental status of the accused as to do what, after the offence been committed. It cannot be said that for mere because accused went towards Puttenahalli, there is doubt in his movement and thrown the jerkin and knife, etc. in a bush at Puttenahalli. It is further contended by the learned counsel for the defence that since P.W.13 had disowned his statement u/s.161 of Cr.P.C vide Ex.D.7 he is not a trust worthy witness. In his cross-examination in page No.6 when the said portion of statement was read over to him, he had stated that he cannot recollect it. Therefore, I feel he cannot be a hostile witness to the said portion of statement under Ex.D.7. Hence, there is no merit in the defence.
55. It is further contended by the learned counsel for the accused in the written argument submitted in page No.39 that MO.4, three hairs were not discovered on the basis of discloser statement of the accused or the same was not pointed out by the accused. Hence, the recovery is not in accordance with Sec.27 of Evidence Act. Admittedly, no doubt accused did not state in his voluntary statement vide Ex.P.59 that he would show MO.4 hairs if he was taken to the 58 SC.No.1297/2015 spot at Puttenahalli and further, he did not point out the hairs from the MO.1 jerkin. I feel since the accused did not know that MO.4 hairs would be in the jerkin, question of stating in his voluntary statement vide Ex.P.59 does not arise. Further, whether the accused had pointed out the hairs from the jerkin or not, is not a material one for the reason if the accused did know it, he would have pointed out the same. Hence, I feel there is no merit in the said contention. Hence, I feel prosecution has proved Ex.P.7 seizure panchanama of MO.1 to 3 and MO.4.
56. It is further contended by the learned counsel for the accused that MO.1 jerkin and MO.2 knife were got by S.K.Umesh(P.W.58) from the market to fix the accused in the case and he in connivance with Ramesh Chandra (P.W.56) and with the help of the doctor (P.W.34), the blood obtained from the dead body of the deceased was smeared on MO.1 and MO.2 for the purpose of the case and hairs in MO.4 were taken from the dead body of the deceased with the help of the doctor and shown to have been removed from the jerkin to fix the accused in the case. It is the further contention of learned counsel for the accused that the prosecution has 59 SC.No.1297/2015 failed to prove that the accused had purchased MO.15 and 16 thread (white rope) from the shop by name Bramaramba. According to the prosecution the accused had purchased the above said materials from the said shop through one Raghu Gowda (P.W.38). According to P.W.38 he has read upto 3rd standard. In the year 2005 he came to Bengaluru in search of work and thereafter returned to his home town and again in the year 2010 he came to J.P.Nagar in Bengaluru in search of work and he came in contact with a boy at Bramaramba shop and while he (P.W.38) was near the shop, the boy at the shop asked P.W.38 to be in the shop and he would go outside for food. At that time the accused came to the shop at 10 a.m and had purchased a rope and vegetable cutting knife (MO.2) and had paid a sum of Rs.100/-. It is not at all necessary to prove as to where from, the accused had purchased the MOs used to commit the crime. The thing to be seen is as to whether the accused had used the material MOs to commit the offence or not. It is further contended by the learned counsel for the accused that since P.W.38 had omitted in his evidence as per Ex.D.8 and D.8(a) statement u/s.161 of Cr.P.C, he is trust worthy to believe. As I said above, P.W.38 had studied only upto 3rd standard. His 60 SC.No.1297/2015 statement was recorded in the year 2010 and he was examined before the court in the year 2016. Therefore, there is possibility of forgetting the parrot type of statement to depose before the court. Further Ex.D.8, 8(a), D.9 and D.9(a) portion of statement which is omitted in the evidence is not a material one. Hence, there is no merit in the said contention. It is the contention of the learned counsel for the accused that P.W.2 did not identify the materials seized in Ex.P.2 (Mahazar) from the house of the deceased in the open court and, P.W.58 also did not identify the same in the court. Further, according to S.K.Umesh (P.W.58) the statement of P.W.4 was recorded in the police station on 18.12.2010. It is the further contention of the accused that the said statement has not been produced. I feel, the evidence of P.W.2 and 58 is sufficient to prove that accused had purchased MO.2 knife and MO.15 and 16 ropes from the shop by name Bramaramba. Since the prosecution has proved the seizure of MO.1 to 3 and MO.4 under Ex.P.7 seizure panchanama as well as the purchase of MO.2, 15 and 16, it cannot be said that the blood sample taken from the body of the deceased was smeared on MO.1 and 2. Apart from that, S.K.Umesh (P.W.58) had seized from the spot 61 SC.No.1297/2015 under Ex.P.2 the twine tied to the hands of the deceased and a cut twine found in the cupboard in the spot. According to B.Puttabasavaiah (P.W.40) - Asst.Director of Physics Division, FSL, Madiwala, he had received the two twine pieces seized by the police, one was blood stained (MO.15) and the other (without blood stain) (MO.16) and had given report as per Ex.P.13 that both the twines are similar with respect to colour, thickness and weaving pattern.
57. It is further contended by the learned counsel for the accused that the evidence of P.W.38 Raghu Gowda that the accused purchased MO.2 knife and two ropes from Bramaramba Enterprises is an artificial, unnatural and untrust worthy and cannot be relied. In support of the same it is contended that the prosecution has deliberately with- held the statements of Madhu who is the owner of the said shop and his brother-in-law Siddappaji and the statements of Sri.Ramesh Babu and Gopal Reddy who are the owners of the neighbouring shops recorded by D.W.3 Hari Singh. I feel the statement u/s.161 of Cr.P.C. of those persons would become evidence only after they depose before the court. There was no hindrance to the defence to examine those persons. 62 SC.No.1297/2015 Hence, on the basis of the evidence of D.W.3 Hari Singh the case of the prosecution cannot be doubted.
58. It is further contended by the learned Public prosecutor that the report of the FSL and DNA connects to the chain of circumstances. In support of the contention counsel relies the judgment reported in AIR 2017 SC 2161 Mukesh & another Vs. State for NCT of Delhi and others. In the said judgment Lordships have held that u/s.45 of Evidence Act the DNA profiles generated from samples of accused matching with the DNA profiles of the victim and the analysis of biological samples linking with the accused persons and with the crime as evidentiary value. Further, counsel has also relied the judgment reported in 2010(4) Crimes 226 Santosh Kumar Vs. State, the C.B.I. (SC). In the said judgment Lordships have held that report of an expert witness could not be brushed aside by making reference to some text on that subject without such text being put to the expert. To evidence the said fact he has brought my notice to the evidence of experts and their report thereon. It is not in dispute that blood sample of the accused was collected in the presence of the Magistrate by 63 SC.No.1297/2015 P.W.58 with the help of Dr.Naveen Kumar (P.W.34) on 4.1.2011. According to P.W.34 the injuries found on the dead body were caused through MO.2 knife and the death was due to shock and hemorrhage as a result of multiple stab injuries sustained. According to R.Range Gowda (P.W.39) the then Asst.Director of Toxicology section, FSL, Madiwala in the laboratory he had conducted analysis of the samples sent in the case and after examination opined that the death was not due to poisoning. Colour test and TLC methods have responded for the presence of Xelometazoline Hydrochloride in item No.8 and had given report as per Ex.P.12. This witness has not been cross-examined. According to Dr.Vinod (P.W.42) the then in charge scientific officer of the DNA Centre, Madiwala, he had received 12 articles with a requisition of C.W.62 to conduct DNA examination. Further, on examination of the articles he gave report as per Ex.P.15 that :-
1. The stains found on the spaghetti, nighty gown, jerkin and knife sent in item Nos.2, 3, 7 and 8 are of human in origin and of female sex.
2. The hairs sent in Item No.1 are of human in origin and of male sex.64 SC.No.1297/2015
3. The hairs sent in Item No.s.4 and 10 are of human in origin and of female sex.
4. The DNA profile of the sample blood collected from Sri.James Kumar Ray s/o.Sri. Neelam Dad Ray, Sample blood sent in Item Nos.11 & 12, the alleles in 15 STR lock were matching in all the 15 STR lock with that of the DNA profile of the hairs sent in Item No.1.
5. The DNA profile of the hairs sent in Item No.10 and the DNA profiles of the stains found on the spaghetti, nighty gown, jerkin and knife sent in Item Nos.2, 3, 7 and 8, the alleles were matching in all the 15 STR loci with that of the DNA profiles of the scalp hairs, portion of liver & kidney and the sample blood sent in Item Nos.4 to 6.
Therefore, I have considered the possibility of 1. The sample blood sent in Item Nos.11 & 12 collected from Sri.James Kumar Ray s/o.Sri Neelam Dad Ray is the contributor of the hairs sent in Item No.1.
2. The person to whom the scalp hairs, portion of liver & kidney and the sample blood sent 65 SC.No.1297/2015 in Item Nos.4 to 6 belong is the contributor of the hairs sent in Item No.10 and the stains found on the spaghetti, nighty gown, jerkin and knife sent in Item Nos.2, 3, 7 and 8.
This witness has not been cross-examined. According to Dr.Rupali (P.W.47), she had conducted polygraph examination on the accused and gave report as per Ex.P.21 with an opinion that the accused was not truthful in his statements arrived at in her report. According to S.Sathyan (P.W.48) Asst.Director & Scientist-C, CFSL, Hyderabad, he had examined MO.1, 2, 15, 16, 18, 19, MO.23 to 28 in the laboratory and gave report as per Ex.P.23 that the contributor of human female blood detected on MO.18 was also the contributor of the blood detected on MO.23, 24, 15, 19 , 1 & 2. Further, one Shahnaz Fatima (P.W.57) Scientific Assistant (Biology section) FSL, Bengaluru had examined the articles sent by the police in this case vide MO.15, 16, 23 to 28, 29 to 32 and gave report as per Ex.P.55 with regard to the presence of blood detected in the above items. This witness has not been cross-examined. The opinion given by the above witnesses connects to the chain of circumstances with regard to the involvement of the accused in the crime. 66 SC.No.1297/2015
59. It is further contended by the learned counsel for the accused that after the arrest of the accused, on 23.12.2010 his scalp hairs were plucked and planted the same in the mahazar vide Ex.P.2 by substituting the same in MO.17 (plastic container) while the accused was in the custody of P.W.58 S.K.Umesh. Thereby, hairs of the accused was misused in the investigation to obtain evidence against the accused. Therefore, the opinion furnished in Ex.P.15 as well as in the evidence of P.W.42 Dr.Vinod that MO.17 belongs to DNA of the accused is not incriminating against the accused as the very recovery of MO.17 in the manner mentioned in Ex.P.2 was not proved. Further, when MO.17 article was sent for DNA examination the plastic container was found missing.
60. It is opposed by the learned Public prosecutor that it is only suggested to P.W.58 that he had plucked the hairs of the accused and planted the same in Ex.P.2 mahazar, but the witness had denied the same. Further, the accused did not say while examining him u/s.313 of Cr.P.C that his scalp hairs were plucked. Further, the accused did not complain 67 SC.No.1297/2015 before the Magistrate when he was produced on 23.12.2010 or when he was produced from the police custody before the Magistrate about the same. Therefore, the defence of the accused is without any basis and it has no merit.
61. According to P.W.58 S.K.Umesh he was P.I in J.P.Nagar P.S during the year 2009-2011 and on 17.12.2010 while he was in patrol duty at Sri.Venkateshwara temple in J.P.Nagar along with P.W.56 N.Ramesh Chandra and his staff, at 4/4.30 p.m he was informed by P.W.56 about the murder took place at Lakshmi Layout (RBI layout) in J.P.Nagar. Thereafter, he (P.W.58) went to the police station in J.P.Nagar and got registered a case and prepared FIR vide Ex.P.56. Further, immediately along with police staff of the station he went to the spot and after enquiry had drawn Ex.P.2 mahazar in the presence of P.W.2 and C.W.3 in between 8 p.m to 10 p.m. At the time of drawing up of mahazar he had seized MO.17 and other articles. Since, MO.17 is disputed much, I have concentrated on the said article as to whether the same was substituted as alleged. It is not in dispute that on 23.12.2010 accused was produced before Magistrate and he was taken to police custody. It is 68 SC.No.1297/2015 contended by the learned counsel for the accused that neither P.W.1 Ramana Babu nor P.W.2 Umesh Rawat were called upon to identify any of the 20 items which were seized under Ex.P.2 more particularly item No.8 the hairs which was marked as MO.17. Further, P.W.58 alone had identified MO.17 in the court. P.W.2 had deposed in his evidence that on 17.12.2010 the police had recovered scalp hairs and other things from the spot and had drawn Ex.P.2 panchanama and he had signed the panchanama as per Ex.P.2(d). According to P.W.1 on 17.12.2010 the police had recovered some hairs of the deceased along with other articles from the spot and had drawn Ex.P.2 spot panchanama and Ex.P.2(a) is his signature. Nothing is elicited in the cross-examination of P.W.1 and 2 to doubt their presence at the time of drawing Ex.P.2 panchanama and seizure of MO.17 from the spot. Even though it is suggested to P.W.1 and 2 that while drawing Ex.P.2 panchanama police did not seize any articles in their presence, on perusal of the entire defence taken it appears that there is no dispute with regard to the seizure of hairs from the spot, but the dispute is that the same was substituted after the arrest of the accused. Further, 69 SC.No.1297/2015 physical identification of the hairs by P.W.1 and 2 seized from the spot, before the court after a period of 6 years is a formal one. However, P.W.58 had identified the same before the court in his evidence. It was not insisted by the defence to produce MO.17 hairs while P.W.1 and 2 had deposed before the court. Hence, I feel there is no merit in the contention of the defence that in the instant case MO.17 could have been identified by P.W.1 and 2 and not doing so is fatal to the case of the prosecution. It is also contended by the defence that since P.W.2 had disowned the statement recorded u/s.161 of Cr.P.C vide Ex.D.1 and Ex.D.2, D.2(a), his presence at the time of alleged mahazar is doubtful. I feel since the defence did not dispute the murder and is serious with regard to the involvement of the accused in the offence, the omission in his evidence is not fatal to the case of the prosecution.
62. It is further contended by the learned counsel for the accused that according to the prosecution the seized hairs (MO.17) was kept in a plastic container and the said plastic container is missing and same has not been produced during the trial. In Ex.P.2 it is written as serial No.8 hairs 70 SC.No.1297/2015 were found at spot by the side of dead body on the bed, and was taken and wrapped in a white paper and kept in a plastic dabba (container). Nothing is questioned to P.W.1 and 2 about the said plastic dabba. In Ex.D.12 PF.No.302/2010 dt.17.12.2010 it is mentioned about the seizure of hairs. According to P.W.58 S.K.Umesh, he had sent the articles seized to DNA center through P.W.49 on 23.12.2010. According to P.W.49 Sundar Rao, on 27.12.2010 he had given 29 articles kept in sealed covers to FSL, Madiwala as per the orders of C.W.64 (P.W.58). Further, on 5.1.2011 he had given 12 articles to DNA section, Madiwala. Further, he had obtained Ex.P.24 to 27 acknowledgements for having given the articles. P.W.49 had not been cross- examined. Hence, this fact has not been disputed. Further, on 24.12.2010 as per the orders of his higher officer Smt.Sonia Narang, he had handed over the case papers to P.W.56 for further investigation.
63. It is the further contention of the learned counsel for the accused that Ex.D.12 property form was submitted before the Magistrate on 23.12.2010 while the accused was produced before the court. On suggestion to P.W.58 in the 71 SC.No.1297/2015 cross examination in page No.9 that Ex.D.12 was reached to the Magistrate on 23.12.2010, the witness had said that the date is not visible in Ex.D.12. On perusal of Ex.D.12, it appears that the date is not visible. As contended by the learned counsel for the accused in Ex.P.15 DNA report in the sample article examined, about MO.17 it is not stated that the cloth packet said to contain hairs were in the plastic dabba. According to P.W.42 Dr.Vinod, he had received one sealed cloth packet said to contain hairs (MO.17) along with other articles. On the other hand, it is to be seen here that in Ex.P.7 panchanama dt.24.12.2010 it appears that S.Ramesh Chandra (P.W.56) had seized 3 hairs (MO.4) found in the jerkin belonged to the deceased. It is written in Ex.P.7 that the said hairs were seized and wrapped in a white paper and kept in a plastic dabba. According to P.W.42 Dr.Vinod he had also received 3 hairs (article No.10)
- MO.4 along with other articles to conduct DNA examination. He has not stated about the plastic container as far as MO.4 is concerned. P.W.42 has not been cross- examined.
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64. According to P.W.56 N.Ramesh Chandra he had seized MO.1 to 4. MO.4 is the hairs found in the jerkin. Further, he had reported the seizure of the same to the Magistrate vide PF.No.305/2010 vide Ex.P.38. In Ex.P.38 it is not mentioned that the hairs were kept in a plastic container. It is also suggested to P.W.56 that C.W.64 (P.W.58) at the time of post mortem had collected the scalp hair of the deceased and had incorporated the same to the case, but the witness had denied the same. In the cross- examination of P.W.56 it is not disputed with regard to the plastic container wherein MO.4 hairs were kept. Hence, I feel with regard to the plastic container wherein the hairs vide MO.17 and MO.4 were kept, were omitted by witnesses in their evidence and in the documents. The defence has no grievance with regard to the plastic container of MO.4 and his grievance is only with regard to the plastic container wherein MO.17 hairs were kept. I feel the omission or missing of the plastic container wherein MO.17 hairs were kept is not fatal to the case of the prosecution and it cannot be doubted that MO.17 hairs were plucked from the scalp of the accused and planted in Ex.P.2 panchanama. Hence, there is no merit in the said contention of the learned 73 SC.No.1297/2015 counsel for the accused. Further, it cannot be said that the scalp hairs of the accused was substituted under MO.17 by removing the hairs seized from the spot.
65. The defence did not dispute the murder of the deceased. According to P.W.34 Dr.Naveen Kumar, he had issued Ex.P.11 post mortem report relating to the Autopsy of the deceased Payal Surekha. Further, the death was due to multiple stab injuries sustained. According to P.W.48 S.Sathyan he had examined 12 sealed cloth parcels sent by C.B.I., Chennai on 7.8.2013 in the laboratory and had given report as per Ex.P.23. According to him he had examined MO.1 jerkin, MO.2 knife, MO.15 blood stained thread, MO.16 another thread (without blood stain), MO.18 red coloured spaghetti (belonged to the deceased), MO.19 a black nighty gown, MO.23 blood stained bed sheet, MO.24 a stained quilt said to be bed sheet, MO.25 a pillow with stained pillow cover, MO.26 a stained scarf, MO.27 a stained panty, MO.28 stained nail clippings. According to him the contributor of the human female blood detected on MO.18 is also the contributor of the blood detected on MO.23, 24, 25, 19 and MO.1 and 2. The opinion of P.W.48 connects to the evidence 74 SC.No.1297/2015 of P.W.34 Dr.Naveen Kumar and seizure of MO.1 to 4 and MO.17.
66. It is further contended by the learned counsel for the accused in page No.46 of the written argument that in Ex.P.12 certificate of examination dt.10.2.2011 issued by FSL, it is mentioned that articles in Exhibit Nos. 1 to 8 may be claimed within 10 days from the date of receipt of the certificate. Thus, it is evident that articles at Item No.9 to 12 as mentioned in Ex.P.25 were used in the FSL for ascertainment of presence of Xylometazoline Hydrochloride (sympathomimetic) and they are destroyed. Therefore, there is no possibility of the blood sample received under Ex.P.25 by the FSL, again being returned to the concerned police. Further, Ex.P.26 is the acknowledgement dt.24.12.2010 issued by the FSL for having received 15 articles dated in Ex.P.55 the certificate of examination dt.23.5.2011 issued by FSL, Madiwala. Hence, it is evident that police had more number of bottles of blood collected from the deceased apart from the blood sample of the deceased acknowledged under Ex.P.25.
75 SC.No.1297/2015
67. It is suggested to Dr.Naveen Kumar (P.W.34) who did post mortem and collected the incriminating materials from the dead body that he had given separately blood samples and scalp hairs to the I.O apart from officially providing. Witness had denied the said suggestion. On perusal of Ex.P.25 acknowledgement dt.23.12.2010 by the FSL, it appears that on the said date FSL had received 12 articles, i.e. some of the items seized in Ex.P.2 panchanama and some of the items taken at the time of conducting post mortem on the dead body of the deceased. According to Sundar Rao (P.W.49) on 22.12.2010 as per the orders of C.W.64 the then P.I at J.P.Nagar P.S, he had brought the P.M report (Ex.P.11) of the deceased along with 10 articles in a sealed cover and submitted it to C.W.64. Further, on 27.12.2010 as per the order of C.W.64 he had submitted 29 articles pertaining to the case kept in a sealed cover to Forensic Science Laboratory, Madiwala, Bengaluru, and on 5.1.2011 had submitted 12 articles to DNA section, Madiwala. To evidence the same he has produced Ex.P.24 to 27 the acknowledgements and a letter issued by KIMS hospital, Bengaluru. P.W.49 had not been cross-examined by the defence. In Ex.P.25 acknowledgement it is clearly 76 SC.No.1297/2015 stated about the blood sample received by the Forensic Science Laboratory on 23.12.2010. According to P.W.4 he had sent the following articles present on the dead body for Forensic science lab for examination.
a. Blood and Viscera sent for chemical analysis. b. Scalp hairs.
c. Nail clippings d. Palmar prints of the terminal phalynx of all digits (10 fingers) e. Vaginal Swabs for presence of spermatozoa. Further, article 2 to 4 were sent for investigation purpose. As contended by the learned counsel for the accused that the blood said to have been collected from the deceased has not been separately marked as material object. However, in Ex.P.25 it is mentioned that on 23.12.2010 FSL, Madiwala had received blood and preservative. According to Dr.Vinod (P.W.42), the then incharge scientific officer of the DNA centre, Madiwala has stated in paragraph No.5 of his evidence that he had tested and compared the sample blood sent in item No.4 to 6 as per Ex.P.15 DNA report. As per Ex.P.15 item no.6 was sealed bottle said to contain blood with preservative sodium fluoride collected by the Medical officer during post mortem on 19.12.2010. P.W.42 has not 77 SC.No.1297/2015 been cross-examined by the defence. Hence, it cannot be said that there was no possibility of blood sample received under Ex.P.25 by the FSL.
68. It is further contended that item no.10 (spaghetti) and 11 (night gown) marked by the I.O as MO.21 and 22 respectively mentioned in Ex.P.26 and P.55 were returned without examination to the concerned police on 31.10.2010. Ex.P.26 contemplates the receipt of spaghetti and night gown by the FSL on 24.12.2010. In Ex.P.55 it is stated that item no.21 and 22 were returned without examination to the concerned police on 31.12.2010. According to Dr.Vinod (P.W.42) he had received spaghetti (MO.18) and black night gown (MO.19) for examination and had issued Ex.P.15 report. In Ex.P.15 it is stated that item No.2 (MO.18) was one red colour spaghetti and item No.3 (MO.19) was one black night gown. Ex.P.15 was issued on 3.4.2012. The Forensic department and DNA department are different. Therefore, on 31.10.2010 the forensic department had returned item No.10 and 11 without examining and thereafter, on 5.1.2011 P.W.42 who was the then in charge Scientific officer of the DNA had received the said items. Hence, there is no merit in 78 SC.No.1297/2015 the contention that item No.10 and 11 were not been examined.
69. It is further contended by the learned counsel for the accused that Ex.D.12 PF.No.302/2010 was prepared on 17.12.2010 and it was sent to the court on 23.12.2010. The articles vide Ex.D.12 was seized under Ex.P.2 from the spot, about 20 articles, hence there is delay. On perusal of the evidence of P.W.58 it appears that no where it is admitted that Ex.P.2 seizure panchanama and Ex.D.12 P.F thereon in No.302/10 was sent to the court on 23.12.2010. Hence, there is no merit in the said contention.
70. It is further contended by the learned counsel for the accused that the accused was taken to the custody by the Karnataka police at Orissa, but the police have created a story that accused was arrested at Andhra Pradesh. Further, there was delay in the accused being produced before the Magistrate in Bengaluru. Therefore the wife of the accused had lodged a complaint before Human rights commission and the Human rights commission have levied fine of Rs.50,000/- to the police of Karnataka. According to S.K.Umesh (P.W.58) on 23.12.2010 P.W.36 and C.W.61 at 6 79 SC.No.1297/2015 a.m had produced the accused before him. According to P.W.36 in the year 2010 he was working as police inspector of C.K.Acchukattu police station, Bengaluru south and he was issued a memo by the then DCP Smt.Sonia Narang, Bengaluru south to apprehend the suspected accused and C.W.61 had assisted him and they all went to Cuttack, Orissa by flight on 21.12.2010 and they learnt that the accused would be available at Vijayawada, Hyderabad, accordingly on 22.12.2010 they went to Vijayawada and in the evening at 6 p.m they found the suspected accused at the Central bus stand, Vijayawada and took him to custody and on the next day on 23.12.2010 at about 6.20 a.m they produced the accused before C.W.64. I feel in the instant case as to whether the accused was arrested at Cuttack or in Vijayawada is not a material one, the question is with regard to the involvement of the accused in the crime.
71. It is contended by the learned Public prosecutor that the previous and subsequent conduct of the accused just prior and after the incident is a relevant one u/s.8 of Evidence Act. In this regard he had brought my notice to the evidence of P.W.20, 28 and 43. According to P.W.20 he was 80 SC.No.1297/2015 the native of Bhuvaneshwar of Orissa and P.W.11 introduced the accused to him. Further, he was also a partner of the Gym opened by P.W.11 at J.P.Nagar, Bengaluru. Initially the accused was the Trainer in the said Gym and he was looking after the affairs of the said Gym. Further, on 11.12.2010 P.W.11 had invited him to his house. He and accused went to the house of P.W.11 on the said day at 5 p.m. Further, there was discussion about the safety of the deceased as she was doing job in the evening UK shift. P.W.20 had no enmity with the accused. Further, they were in the flat for about half-an-hour. Hence, it is contended that at that time accused had studied the topography of the flat wherein the deceased was staying. Further, according to P.W.43 Kishore Chandra Pradhan, the accused went to Bengaluru from Hyderabad stating that he had been to Bengaluru to collect the experience certificate. This conduct of the accused shows that he had falsely stated before P.W.43 that he went to Bengaluru to collect the experience certificate even though he had collected the same on 13.12.2010. According to P.W.23 Ashish Behera, on 17.12.2010 at 9.30 p.m. accused told him over phone that Payal Surekha had been murdered and P.W.6 might have done it. Further, according to P.W.28 81 SC.No.1297/2015 J.S.Narayan Reddy, in order to get experience certificate one need not come to Bengaluru and it could be obtained through internet by using password.
72. It is not in dispute that accused was the friend of P.W.11 and he was the Trainer in the Gym owned by P.W.11 in Bengaluru. Such being the case, a doubt arose as to why accused did not meet P.W.11 immediately after the death of Payal Surekha. He could have come to Bengaluru to say sympathy to P.W.11. That has not been done by the accused. Hence, the act of absconding by the accused immediately after the crime is also one of the circumstances to be inferred against the accused.
73. Further, according to Dr.Rupali (P.W.47) on 27.11.2013 she had examined the accused and had submitted polygraphy examination report vide Ex.P.21 and Forensic psychological assessment report vide Ex.P.22 and had opined that accused was not truthful in his statements arrived at in the report. It is only suggested to P.W.47 that the report vide Ex.P.22 is not correct, but the witness had denied the same. Other than that, nothing is elicited to disbelieve the 82 SC.No.1297/2015 report. This is also one of the circumstances, connects the accused to the crime.
74. It is contended by the learned Public prosecutor that the entire case of the prosecution is to be looked into to come to a conclusion and court shall not give undue importance to omissions, contradictions and discrepancies which do not disturb the case of the prosecution. In support of the contention the counsel relies the judgment reported in AIR 2013 SC (Cri) 1544 Rohtash Kumar Vs. State of Haryana. In the said case it is held that evidence of witnesses must be tested on touch stone of reliability, credibility and trust worthiness. Court has to examine whether evidence read as a whole appears to have a ring of truth. Court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to heart of the matter and shake basic version of the prosecution witness. Further, it is obligatory on the part of the accused while being examined u/s.313 of Cr.P.C to furnish some explanation with respect to incriminating circumstances associated with him. Further, the doctrine of "last seen together" shifts burden of proof on accused 83 SC.No.1297/2015 requiring him to explain how incident had occurred. I have taken into consideration the principles laid down in the above said judgments.
75. On consideration of the entire case, I feel the prosecution has established the guilt of the accused within all reasonable probability under the following chain of circumstances:-
1. The accused was seen on the place of occurrence on 17.12.2010 by P.W.4 Munawar Ali going towards the house of the deceased on the said day morning.
2. Ex.P.29 call detail report of mobile No.9701383478 of the accused reflects that on 17.12.2010 at 10.48 a.m the tower location of the accused was at J.P.Nagar 7th phase, near the location the incident occurred.
3. The MO.1-jerkin, MO.2-knife, MO.3-specs and MO.4-3 hairs discovered u/s.27 of Evidence Act at the instance of the accused vide Ex.P.59 disclosure statement and the recovery made of those MOs vide Ex.P.7 coupled with the evidence of P.W.58 S.K.Umesh, P.W.56 Ramesh Chandra and P.W.13 proved the recovery of MO.1 to 4.84 SC.No.1297/2015
4. Further, P.W.4 Syed Munawar Ali had identified the accused in the test identification parade conducted by P.W.54 C.Manjunath at Parappana Agrahara jail vide Ex.P.3 corroborates the case of the prosecution.
5. The evidence of expert opinion P.W.42 Dr.Vinod who gave a DNA expert opinion vide Ex.P.15 that the hairs found in MO.17 belongs to the accused which were seized from the spot and the hairs of the deceased found in MO.4 further corroborates the case of the prosecution. Further, the blood stain found in MO.1 and 2 match the features of the blood of the deceased.
6. Further, the opinion issued by P.W.46 Mrs.Maheshwari in Ex.P.20 proves that cut marks found on spaghetti i.e. MO.18 worn by the deceased were found to be caused from MO.2 knife.
7. Further, the Forensic laboratory expert had opined that 'O' positive blood group of human found in MO.15, 16, 23 to 32.
8. Further, Dr.Naveen Kumar (P.W.34) who had conducted post mortem had given an evidence that the 85 SC.No.1297/2015 injuries noted by him on the dead body could be caused through MO.2 knife and those are sufficient to cause the death of a person in the natural course of events.
9. Further, the conduct of the accused while giving statement before Dr.Rupali (P.W.47) was not truthful. She gave an opinion under Ex.P.21 and 22 that the accused was not truthful to the questions put to him by her.
10. Further, the conduct of the accused that instead of meeting P.W.1 immediately after the death of his wife to console him, he absconded.
11. Since P.W.11 and his father sacked the accused from the job in the month of March, 2009 where accused was a Trainer in the Gym belonged to P.W.1, the relationship in between them was strained.
12. Further, accused borrowed Rs.50,000/- from the father of P.W.1 and the same was returned by P.W.2 as he was the guarantor for the same and accused did not return Rs.25,000/- borrowed and according to P.W.20, by taking Rs.50,000/- accused left the job.
For the above said reasons, I answer point No.1 in affirmative.
86 SC.No.1297/2015
76. Point No.2 :- It is the further case of the prosecution that on 17.12.2010 after committing the murder of Smt.Payal Surekha, the accused took ACER company laptop and a Samsung company mobile handset from the flat wherein she was residing, thereby, dishonestly misappropriated the same and threw the same at Street No.4, Sanjeev Reddy Nagar, Hyderabad (A.P) to a dustbin to disappear the evidence with an intention of screening himself from legal punishment and committed the offence punishable u/s.404 and 201 of IPC. It is the contention of the learned counsel for the accused that the broken laptop (MO.22) screen cover said to have been seized vide Ex.P.39 is doubtful. Ex.P.19 Examination report indicates that the laptop examined was of Samsung Company. MO.22 is the broken screen of Samsung made laptop shown to have been seized under the mahazar Ex.P.39 by P.W.38 in the presence of two independent witnesses. The prosecution did not examine the said witnesses. P.W.58 is the only witness who spoke about the recovery of MO.22 under Ex.P.39. According to D.W.3 Hari Singh, he had recorded the statements of the said two witnesses and they have stated that they had not accompanied the accused or the police to Hyderabad or they 87 SC.No.1297/2015 have attested the Mahazar. Hence, it is contended by the counsel for the accused that the aforesaid investigation papers are kept away from the court. Ex.P.14 is the acknowledgement issued by the FSL for having received MO.22. Ex.P.19 Examination report by the CFSL indicates that MO.22 is the component of Samsung made laptop. Ex.D.15(a) is the copy of invoice dated 28.11.2010 for the sale of ACER laptop by M/s.Computer Gadgets to Payal Surekha. Hence, the laptop screen cover seized was not of ACER company. Further it is admitted by P.W.59 G.Kalaimani that MO.22 seized by P.W.58 under Ex.P.39 Mahazar was sent by C.W.77 for examination to FSL. The investigation conducted by the state police, CCB or C.B.I. did not reveal that the deceased was possessing a laptop of Samsung company. Apart from that none of the relatives of the deceased P.W.11 Anant Narayan Mishra (husband of the deceased), P.W.14 Dindiyal Surekha (father of the deceased) and P.W.19 Rudra Narayan Mishra (father-in-law of the deceased) have stated that the deceased possessed Samsung laptop and they have not identified MO.22 as a component of Samsung laptop. Hence, any incriminating evidence under Ex.P.39 cannot be inferred against accused. Apart from 88 SC.No.1297/2015 that, the mobile said to have been taken by the accused has not been recovered by the I.O. Hence, I feel prosecution has failed to establish the recovery under Ex.P.39 and that the accused had destroyed the evidence. Since there was no material as well as offence u/s.404 of IPC, charge has not been framed on the said provision of law against the accused. For the above said reasons, the prosecution has failed to prove the offence alleged u/s.404 and 201 of IPC. Hence, I answer point No.2 in negative.
77. Point No.3:- It is not in dispute that the deceased was the wife of Ananth Narayan Mishra (P.W.11). The incident took place on 17.12.2010. On the said date P.W.11 was aged about 29 years and the deceased was aged about 29 years as it appears in Ex.P.8 Inquest panchanama and Ex.P.11 post mortem report. The deceased studied M.Sc Biotechnology and was doing MBA. P.W.11 had completed MBA. P.W.11 had married the deceased in the month of June, 2007. Because of the murder of the deceased, her husband (P.W.11) had suffered much and he has lost the companionship of his wife. From the date of death the parents of the deceased were also alive. Hence, the parents 89 SC.No.1297/2015 and her husband had sustained mental agony which cannot be compensated in terms of money. However, for the sufferings undergone by the deceased husband, it would be compensated in terms of money to a little extent by exercising the power u/s.357 of Cr.P.C. Therefore, I feel the husband of the deceased is entitled for compensation of Rs.1,00,000/- out of the fine amount. I feel the said amount is inadequate. Therefore, it is recommended to the District legal service authority for award of compensation as provided u/s.357A of Cr.P.C to P.W.11.
78. Further, since the provision u/s.360 of Cr.P.C does not attract the present case, the accused is not entitled to release on probation of good conduct or after admonition.
79. Accused had complied the provision u/s.437A of Cr.P.C by executing bail bond with the surety.
80. For the discussions made above and in view of the findings on the above points, I proceed to pass the following:-
90 SC.No.1297/2015
ORDER Acting u/s.235(2) of Cr.P.C, accused is convicted for the offence punishable u/s.302 of IPC and acting u/s.235(1) of Cr.P.C, accused is acquitted of the offence punishable u/s.201 & 404 of IPC.
To hear on sentence.
(Dictated to the Judgment Writer, computerized transcript thereof corrected, signed and then pronounced by me in the Open Court on this the 6th day of November , 2019).
....
(K.Shivaram) XXXII Addl.City Civil and Sessions Judge, & Spl.Judge for CBI cases, Bangalore.
6.11.2019 Order on sentence of accused Heard. Counsel for accused submits that accused is the sole bread winner of the family and he has got two children and a wife and his mother depend on him only for their livelihood. Hence, submits to impose lesser punishment. Contrary to that learned Public prosecutor submits that while the victim was alone at her house the accused entered the house and inflicted multiple injuries and it was a barbaric murder. Further, because of the 91 SC.No.1297/2015 revenge with the husband of the deceased with regard to money matter, the accused had killed the victim, thereby, the victim had lost her life for nothing. Apart from that after committing the murder the accused tried to fix her husband in the case. Therefore, the subsequent conduct of the accused also favours for higher punishment. Further, the modus operandi of the accused to take the life of the deceased was a highly pre planned one and it was not by any sudden provocation. In addition to that imposing of sentence to the accused is not only a lesson to him but also it would be a lesson to the public in large to have a peaceful society. Hence, the public prosecutor submits to impose death penalty.
I have taken note of the submissions made by the counsels for both the parties and proceed to pass the following:-
ORDER Accused is sentenced to undergo imprisonment for life and is liable to pay fine of Rs.1,00,000/-(One lakh only). P.W.11 is entitled for the said fine amount in the form of compensation/damages as contemplated u/s.357 92 SC.No.1297/2015 of Cr.P.C. The same could be recovered as land revenue as contemplated u/s.421 of Cr.P.C in the event of default. Further, it is recommended to the District Legal Service Authority for award of compensation apart from the above said amount on the application of the husband of the deceased or otherwise.
His bail bond and surety bond stand cancelled. MO.1 to 36 produced by the prosecution and MO.1 produced by the defence are worthless, ordered to be destroyed after the appeal period is over.
Office to comply the provision u/s.365 of Cr.P.C by forwarding the copy of the finding and sentence to the District Magistrate of the local jurisdiction of this court.
Supply copy of this judgment to the accused forthwith free of cost as contemplated u/s.363 of Cr.P.C.
(K.Shivaram) XXXII Addl.City Civil and Sessions Judge, and Spl.Judge for CBI cases, Bangalore.93 SC.No.1297/2015
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PWs Name of the witness P.W.1 G.Ramana Babu P.W.2 Umesh Rawath P.W.3 Smt.Padma P.W.4 Syed Munavar Ali P.W.5 Rodney Pushparaj P.W.6 Bikram Sahoo @ Babu P.W.7 Smt. Karuna P.W.8 Amiya Kumar Das P.W.9 N.Murali P.W.10 Venku Reddy P.W.11 Ananth Narayan Mishra P.W.12 A.Mousami P.W.13 H.K.Ramesh P.W.14 Dindayal Sureka P.W.15 Santhosh.T.K P.W.16 S.Charan P.W.17 Prabhakar P.W.18 P.Vasanth Ram P.W.19 Rudra Narayan Mishra P.W.20 Bhavani Shankar Mishra P.W.21 Debasis Biswal P.W.22 Suresh Babu P.W.23 Ashish Behara P.W.24 Sathyajit Mishra P.W.25 Satish Kumar.R 94 SC.No.1297/2015 P.W.26 Hemanth Kumar P.W.27 Sushanth Kumar Panda P.W.28 Kadmetla Surya P.W.29 Smt.Usha Premjit P.W.30 Ramu P.W.31 Vinay.K.S P.W.32 Anil Kumar P.W.33 Dr.Vinod Kumar P.W.34 Dr.Naveen Kumar P.W.35 Devaraja P.W.36 Vasudev P.W.37 A.Kumar P.W.38 Raghu Gowda P.W.39 R.Range Gowda P.W.40 B.Puttabasavaiah P.W.41 P.N.Ramakrishnan P.W.42 Dr.Vinod P.W.43 Kishore Chandra Pradhan P.W.44 Satish Kumar D.S P.W.45 Ch. Sai Prasad P.W.46 M.Maheswari P.W.47 Dr.Rupali P.W.48 S.Sathyan P.W.49 Sundar Rao P.W.50 P.V.S.N.Raju P.W.51 R.Ramachandran P.W.52 K.Pramod P.W.53 Stanley Agnelo P.W.54 C.Manjunath P.W.55 Prashanth 95 SC.No.1297/2015 P.W.56 N.Ramesh Chandra P.W.57 Shanaz Fathima P.W.58 S.K.Umesh P.W.59 G.Kalaimani P.W.60 K.Jithedranath LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENCE DWs Name of the witness D.W.1 Raghuraman Avinash D.W.2 Maya Sharma D.W.3 Hari Singh Gurawariah LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PROSECUTION EXHIBIT DESCRIPTION NO Ex.P.1 Complaint of P.W.1 Ex.P.1(a) Signature of P.W.1 Ex.P.2 Scene of Offence Panchanama Ex.P.2(a) Signature of P.W.1 Ex.P.2(b) Signature of P.W.2 Ex.P.2(c) Signature of P.W.58 Ex.P.3 Accused Identification Parade Ex.P.3(a) Signature of P.W.4 Ex.P.4 List of persons present with the Accused in Identification Parade Ex.P.4(a) Signature of P.W.4 Ex.P.5 Xerox copy of Rent receipt(4 pages) Ex.P.5(a) Relevant entry at page no.4 96 SC.No.1297/2015 Ex.P.5(b) Signature of P.W.21 Ex.P.6 Xerox copy of ID card of the accused Ex.P.7 Recovery Mahazar Ex.P.7(a) Signature of P.W.13 Ex.P.8 Inquest Ex.P.8(a) Signature of Hemanth Kumar Ex.P.8(b) Signature of P.W.30 Ex.P.9 Mahazar Ex.P.10 Office letter along with three documents.
Ex.P.11 PM Report
Ex.P.11(a) Signature of P.W.34
Ex.P.12 FSL report dt.10.2.2011
Ex.P.12(a) Signature of P.W.39
Ex.P.13 FSL report dt.17.3.2011
Ex.P.13(a) Signature of P.W.40
Ex.P.14 Letter dt.7.8.2013
Ex.P.14(a) Signature of P.W.41
Ex.P.15 DNA Report
Ex.P.15(a) Signature of P.W.42
Ex.P.16 Sketch
Ex.P.16(a) Signature of P.W.44
Ex.P.17 Covering Letter forwarded by AEE
Ex.P.18 Forensic Report
Ex.P.18(a) Signature of P.W.45
Ex.P.19 Examination Report pertaining to broken
Laptop Screen Cover
Ex.P.19(a) Signature of P.W.46
Ex.P.20 Examination/Opinion given by PW46 with
regard to knife & Spaghetti
Ex.P.20(a) Signature of P.W.46
Ex.P.21 Polygraph Examination Report
97 SC.No.1297/2015
Ex.P.21(a) Signature of P.W.47
Ex.P.22 Forensic Psychological Assessment Report
Ex.P.22(a) Signature of P.W.47
Ex.P.23 CFSL Report
Ex.P.23(a) Signature of P.W.48
Ex.P.24 to Four Acknowledgements
27
Ex.P.28 Letter of KIMS, Bangalore
Ex.P.29 Call details of Kishore Chandra Pradhan(6
sheets)
Ex.P.30 Call details of Payal Sahoo(5 sheets)
Ex.P.31 Call details of Mobile No. 9938809673(8
sheets)
Ex.P.32 Certificate U/s 65 of Indian Evidence Act
Ex.P.33 Covering letter Dt. 25.2.2011
Ex.P.34 T.I Parade Identification
Report(R.Raghugowda)
Ex.P.35 Covering Letter to Magistrate
Ex.P.36 Covering Letter with call details of Payal
Sureka(6 sheets)
Ex.P.37 Certificate U/s 65 of Indian Evidence Act
Ex.P.38 Property List
Ex.P.39 Seizure Mahazar
Ex.P.39(a) Signature of P.W.56
Ex.P.40 Property List
Ex.P.41 & Two Reports Dt.24.12.2010 & 31.12.2010
42
Ex.P.43 Request Letter Dt.31.12.2010
Ex.P.44 Request Letter Dt. 3.1.2011
Ex.P.45 Request Letter Dt.4.1.2011
Ex.P.46 Report of P.W.49
Ex.P.47 Letter Dt.4.1.2011 to ACMM Court
98 SC.No.1297/2015
Ex.P.48 CDR Report of Vodaphone
Ex.P.49 CDR Report of Airtel
Ex.P.50 Report Dt.13.3.2011 of Naveen Kulakarni, P.I
Ex.P.51 Report of P.W.4 Dt.13.3.2011
Ex.P.52 Covering Letter Dt.14.3.2011 with documents
submitted by Jynex Software Solutions
Ex.P.53 Rough Sketch
Ex.P.54 Memo given by Smt. Sonia Narang
Ex.P.55 Certificate of Examination issued by P.W.57
Ex.P.55(a) Signature of P.W.57
Ex.P.56 FIR
Ex.P.56(a) Signature of P.W.58
Ex.P.57 Portrait of Accused
Ex.P.58 Report given by P.W.36 & C.K.Achukattu
Ex.P.59 Voluntary Statement of the accused
Ex.P.59(a) Portion of Voluntary Statement of the accused Ex.P.59(b) Signature of the accused Ex.P.59(c) Signature of P.W.58 Ex.P.60 to Photos of deceased Payal Sureka & her flat 95 taken at the scene of occurrence Ex.P.96 FIR in RC.3/s/13 dt.18.4.2013 of C.B.I. Ex.P.97 Letter from Medical officer KIMS Ex.P.98 Relevant portion in the statement of P.W.4 Munnawar Ali LIST OF DOCUMENTS EXHIBITED ON BEHALF OF DEFENCE EXHIBIT DESCRIPTION NO Ex.D.1 Portion of the statement of P.W.2 given 99 SC.No.1297/2015 before C.B.I. Ex.D.2 Portion of the statement of P.W.2 given before J.P.Nagar Phenolphthalein solution Ex.D.2(a) -do-
Ex.D.3 Statement given before
Dy.SP/CBI/SCB/Chennai
Ex.D.3(a) Portion of the statement of P.W.4 & (b) Ex.D.4 Portion of statemtn of Ananth Narayan Mishra recorded by J.P.Nagar Police Station Ex.D.4(a) Another portion of statement of Ananth Narayan Mishra recorded by J.P.Nagar Police Station Ex.D.4(b) Another portion of statement of Ananth Narayan Mishra recorded by J.P.Nagar Police Station Ex.D.4(c) Another portion of statement of Ananth Narayan Mishra recorded by J.P.Nagar Police Station Ex.D.4(d) Another portion of statement of Ananth Narayan Mishra recorded by J.P.Nagar Police Station Ex.D.5 Portion of statement of Ananth Narayan Mishra recorded by CBI Police Ex.D.5(a) Portion of statement of Ananth Narayan Mishra recorded by CBI Police Ex.D.5(b) Portion of statement of Ananth Narayan Mishra recorded by CBI Police Ex.D.5(c) Portion of statement of Ananth Narayan Mishra recorded by CBI Police Ex.D.5(d) Portion of statement of Ananth Narayan Mishra recorded by CBI Police Ex.D.6 Portion of statement of M.Mousami(P.W.12) recorded by CBI Police Ex.D.7 Portion of statement of H.K.Ramesh recorded by CBI Police 100 SC.No.1297/2015 Ex.D.8 A portion of statement of P.W.38 Raghu Gowda given before J.P.Nagar Police Station Ex.D.8(a) Another portion in the statement of P.W.38 Raghu Gowda Ex.D.9 A portion of statement of P.W.38 Raghu Gowda given before C.B.I. Ex.D.10 CFSL Report of two threads Ex.D.10(a) Signature of P.W.46 Ex.D.11 Requisition of CBI to Airtel Ex.D.12 P.F. 302/2010Dt. 17.12.2010 Ex.D.12(a) Acknowledgement of Magistrate Ex.D.13 P.F. 303/2010 Ex.D.13(a) Acknowledgement of Magistrate Ex.D.14 Statement u/s.164 of Cr.P.C of Syed Munnawar Ali Ex.D.15 Invoice along with Receipt Memo Ex.D.16 Search list dt.21.5.2013 Ex.D.17 Transcription of C.D Ex.D.18 Certificate u/s.65B of Evidence Act LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION MO.NO PARTICULARS MO.1 Jerkin MO.2 Knife MO.3 Spectacles MO.4 Hairs MO.5 Dell Company ID card MO.6 Nokia Mobile Phone N.70 101 SC.No.1297/2015 MO.6(A) Airtel SIM MO.6(B) Memory Card MO.7 Sealed Glass bottle containing liquid MO.8 Cloth packet containing a Glass MO.9 Sealed cloth packet containing a steel spoon MO.10 to 13 Kerchiefs MO.14 A sealed cloth packet containing Otrivin Adult Nasal Spray MO.15 Blood stained thread MO.16 Another thread(without blood stain) MO.17 One sealed cloth packet said to contain hairs MO.18 One sealed cloth packet said to contain one read colored spaghetti MO.19 One sealed cloth packet said to contain a black nighty gown MO.20 One sealed packet said to contain scalp hairs MO.21 Nokia Mobile Model No.1200 MO.21(A) Hutch SIM MO.22 Broken Laptop Screen cover MO.23 Stained Bed Sheet MO.24 Stained Quilt MO.25 Pillow with Stained Pillow Cover MO.26 Stained Scarf MO.27 Stained Panty MO.28 Stained Nail Clippings MO.29 Left leg Chappel MO.30 Blood Swab 102 SC.No.1297/2015 MO.31 Control Swab MO.32 Metal Bangle MO.32(A) Two Ceramic Bangles MO.32(B) Two Leg Chains MO.32(C) Two toe Rings MO.32(D) Two Ear Rings MO.32(E) One Right Leg Chapels MO.32(F) One Waist Thread MO.33 Cup made up of Glass MO.34 8 Debit/Credit Cards & 6 Marketing Cards MO.35 Left hand Palmar Print MO.36 Right hand Palmar Print LIST OF MOs MARKED ON BEHALF OF ACCUSED MO.NO PARTICULARS D.MO.1 C.D (K.Shivaram) XXXII Addl.City Civil and Sessions Judge, and Spl.Judge for CBI cases, Bangalore.
Judgment pronounced in open court vide separate order with the following operative portion:-
ORDER Acting u/s.235(2) of Cr.P.C, accused is convicted for the offence punishable u/s.302 of IPC and acting u/s.235(1) of Cr.P.C, accused is acquitted of the offence punishable u/s.201 & 404 of IPC.
To hear on sentence.
Heard. Counsel for accused submits that accused is the sole bread winner of the family and he has got two children and a wife and his mother depend on him only for their livelihood. Hence, submits to impose lesser punishment. Contrary to that learned Public prosecutor submits that while the victim was alone at her house the accused entered the house and inflicted multiple injuries and it was a barbaric murder. Further, because of the revenge with the husband of the deceased with regard to money matter, the accused had killed the victim, thereby, the victim had lost her life for nothing. Apart from that after committing the murder the accused tried to fix her husband in the case. Therefore, the subsequent conduct of the accused also favours for higher punishment. Further, the modus operandi of the accused to 2 SC.No.1297/2015 take the life of the deceased was a highly pre planned one and it was not by any sudden provocation. In addition to that imposing of sentence to the accused is not only a lesson to him but also it would be a lesson to the public in large to have a peaceful society. Hence, the public prosecutor submits to impose death penalty.
I have taken note of the submissions made by the counsels for both the parties and proceed to pass the following:-
ORDER Accused is sentenced to undergo imprisonment for life and is liable to pay fine of Rs.1,00,000/-(One lakh only). P.W.11 is entitled for the said fine amount in the form of compensation/damages as contemplated u/s.357 of Cr.P.C. The same could be recovered as land revenue as contemplated u/s.421 of Cr.P.C in the event of default. Further, it is recommended to the District Legal Service Authority for award of compensation apart from the above said amount on the application of the husband of the deceased or otherwise.
His bail bond and surety bond stand cancelled. MO.1 to 36 produced by the 3 SC.No.1297/2015 prosecution and MO.1 produced by the defence are worthless, ordered to be destroyed after the appeal period is over.
Office to comply the provision u/s.365 of Cr.P.C by forwarding the copy of the finding and sentence to the District Magistrate of the local jurisdiction of this court.
Supply copy of this judgment to the accused forthwith free of cost as contemplated u/s.363 of Cr.P.C.
Issue Conviction warrant.
(K.Shivaram) XXXII Addl.City Civil and Sessions Judge, and Spl.Judge for CBI cases, Bangalore.