Bangalore District Court
The State Of Karnataka vs Umesh @ Umesh Mogavera on 16 October, 2021
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S.C..No.84/2012
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE (CCH-56)
: Present :
Sri. Krishnamurthy R. Padasalgi,
B.Sc., LL.M., HDSE
LV Addl. City Civil & Sessions Judge,
Bangalore
: S.C.No.84/2012 :
DATED: THIS THE 16th DAY OF OCTOBER 2021
COMPLAINANT : The State of Karnataka,Through
Sub-Inspector of Police, Vijayanagar
Police Station, Bangalore.
(By: The Public Prosecutor)
- V/s -
ACCUSED : Umesh @ Umesh Mogavera,
S/o Late Narayana,
Aged about 31 years,
R/o No.58, Anjaneya Store,
R/at No.59, 7th 'B' Cross Road,
8th Main Road, R.P.C. Layout,
2nd Stage, Bengaluru.
(By Sri. R.K.M., Advocates)
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S.C..No.84/2012
JUDGMENT
1. Date of commission of 08.06.2011
Offence
2. Date of report of 08.06.2011
Occurrence
3. Date of commencement 03/10/2012
of evidence
4. Date of closing of 16/09/2019
Evidence
5. Name of the complainant M.Shekhar
6. Offence complained of Under Section 302, 392 & 201 of IPC
7. Date of arrest 21/01/2012
8. Date of release 11/09/2015
9. Opinion of the Judge Offence are proved.
10. Duration: (from date of 10 years 04 months 08 days
commission of offence)
11. Order of sentence Accused is convicted for the offence
punishable under Section 302, 392,
201 of IPC
The accused is facing trial before the court for the offence alleged under Section 302, 392, 201 of IPC for the charge sheet filed under Vijayanagar Police.
1. The case of the prosecution in brief are that accused Umesh @ Umesha Mogavera and deceased H.S. Savitha were having 3 S.C..No.84/2012 acquaintance and were familiar with each other. The accused was owning vegetable shop. On 07.06.2011 at about 2-00 p.m. he called the deceased Savitha to his house at No.120, 7 th 'A' Cross, 7th main, RPC Layout, Bangalore with an intention to rob her belongings and he talked with her and asked gold jewels and when she denied he assaulted her and smothered her neck and committed murder and took gold Mangalya chain weighing 54.5 grams and gold ring of 3.2 grams and with an intention to destroy the evidence put the dead body of the deceased Savitha in a gunny bag and took it on a vehicle bearing No. KA-02/EW-1634 on the footpath next to vacant site bearing No. 119 of Betheseda Educational Trust, Amruthanandamayee Ashram, Mariyappanapalya, Bangalore and threw dead body.
2. Since the offences alleged are triable exclusively by the court of Sessions this case has been committed by the learned Magistrate 1st ACMM after complying with the statutory provisions of furnishing copies of papers of prosecution. 4
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3. The accused is on bail and represented by his counsel.
4. On hearing the prosecution & defence the charge was framed against the accused for offence punishable under Sections 302, 392, 201 of IPC.
5. The prosecution has examined 20 witnesses as PWs 1 to 20 and got marked 30 documents as Ex.P1 to P30 and got identified material objects as MO1 to 16.
6. The incriminating circumstances in the evidence of prosecution was explained to the accused under Section 313 (1)(b) of Cr.P.C. The answers given by the accused were recorded.
7. The accused have not chosen to lead any evidence.
8. Heard the learned PP and counsel for the accused.
9. Perused oral and documentary evidence on record.
10. Based on the materials the following points are framed.
1. Whether prosecution beyond reasonable doubt proves that on 07.06.2011 at about 2-00 p.m. accused called deceased Savitha to his house at No. 120, 7 th 'A'; Cross, 7th Main, RPC layout, Bangalore with an intention to rob her belongings owing to her acquaintance with her and when she denied to give ornaments he assaulted her and smothered her neck 5 S.C..No.84/2012 to breath her last and thereby committed offence of culpable homicide amounting to murder punishable under Section 302 of IPC?
2. Whether the prosecution beyond reasonable doubt proves that on the above said date, time and place, accused forcibly robbed Mangalya Chain (Gold) weighing 54.4 grams and gold ring weighing 3.2 grams and thereby committed offence punishable under Section 392 of IPC ?
3. Whether the prosecution beyond reasonable doubt proves that on the above said date, time and place, after committing murder of the Savitha accused in order to screen the offence put the dead body of Savitha in a gunny bag and took it and thrown on the foot path next to vacant site No.119, belonging to Bethesada Educational Trust, Amruthanandamayee Ashrama, Mariyappanapalya, Bangalore and thereby committed offence punishable under Section 201 of IPC ?
4. What order?
11. The above points are answered as follows.
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 : In the Affirmative
Point No.4 : As per final order, for the following.
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S.C..No.84/2012
REASONS
12. POINT NO.1 AND 2: The counsel for the accused has
advanced his arguments mainly on the following grounds. The first and foremost ground is on absence of corpus delicti and submits that the dead body of Savitha is not identified. The second argument is with regard to non-availability of evidence for the reason of married woman H.S.Savitha going to the house of accused on 07.06.2011 at about 2-00 pm and non-availability of any evidence imputing her character. The third arguments advanced was with regard to the discrepancy in weighing of the gold chain. According to him it was stated that it is 70 grams in the inquest statement by the husband of deceased, but it turns out to be 54.4 grams. He also argued that two bangles which were said to be gold were rolled gold. He further argued with regard to non- giving entire particulars in the missing complaint required to identify the missing Savitha.
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S.C..No.84/2012
13. He further contends that Mangalya chain was said to be prepared by one Navarathna Jewels of Mysore i.e. by PW 15, but the receipt at Ex.P8 stands in the name of Chetan Maddur and that is not explained by the prosecution and even learned counsel for the accused has pointed out the lapses in the investigation wherein it is admitted by the Investigating officers PWs 17 and 18 that they have not at all conducted DNA test to identify the dead body and also having not collected the details of SIM having regard to the number of the deceased Savitha. He also argued that trenches which were allegedly dug by PWs 5 & 7 by taking the house on rent at Manganahalli Road of PW 16 is not proved. Hence, for all the above there is no link and prays to acquit the accused.
14. Per contra, the learned public prosecutor submits there was illicit relationship between Savitha and accused which is within four corners and there cannot be any evidence. He submits that the identification was done by the husband and relatives and there was no necessity for identification through DNA. If the dead body is 8 S.C..No.84/2012 not of Savitha then there is no evidence about she living. He also submits about unmarked call records showing last call is made by the accused to the deceased Savitha. Hence, prays to convict the accused as prosecution has been proved as it is the case of the guilty of the accused.
15. Having regard to the above submissions and materials as held by the Hon'ble Supreme Court in a ruling reported in AIR 2014 SC 3595, the following five-step inquiry is necessary to arrive at a right conclusion:
"(i) Is there a homicide?
(ii) If yes, is it a culpable homicide or a 'not-culpable homicide?
(iii) if it is a culpable homicide,m is the offence one of culpable homicide amounting to murder (Section 300 of Indian Penal Code) or is it a culpable homicide not amounting to murder (Section 304 of the Indian Penal Code)?
(iv) if it is a 'not-culpable homicide' then a case under Section 304-A of the Indian Penal Code is made out,
(v) If it is not possible to identify the person who has committed the homicide, the provisions of Section 72 of the Indian Penal Code may be invoked."9
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16. It is necessary to give findings about the absence of corpus delicti first as argued by the learned counsel for the accused. The learned counsel for the accused contended that dead body itself is decomposed whether it is of H.S. Savitha or not was not identifiable. For that purpose he draws the attention of the court to the evidence portion of the Investigating officer, PW 17 who is H.S.Dharmendra, CPI of then Rural Circle of Ramanagara District, wherein he has admitted that in order to ascertain whether the dead body is that of Savitha he has not done DNA test. The learned counsel for the accused further draws the attention of the court to the cross examination portion dated 23.07.2015 wherein PW 17 says that no birth marks were present on the dead body of the deceased. He also further draws the attention of the court to the evidence of PW 6 who has conducted post mortem, who also admitted that relatives of the deceased Savitha have not identified the dead body in his presence, because it is the version of the IO PW 17 that since the deceased was identified by the husband and other relatives,therefore, DNA test was not conducted. He took the 10 S.C..No.84/2012 attention of the court to the evidence of PWs 3 and 4 who are one Sri.Srinivasaiah and Sri.Atmananda, who happens to be the relatives of the deceased who have identified the dead body of the deceased in mortuary of Rajarajeshwari Medical College and Hospital, to the admission of PW 3 that in statement stated that he being the relative of the deceased. He also draws the attention of the court to the cross of PW 4 who says that he has not stated before the police about he is a relative and stayed in the house of deceased for some time. And also contends that by showing Ex.P11 and portion of evidence of PW-2 that when he saw the dead body of his wife it was turned into black and swollen and it was disfigured to the extent of non-identification.
17. The learned counsel for the accused also draws the attention of the court to the fact that the dead body was allegedly identified that of Savitha with precision as her front teeth was cut and toe was fat but in the missing complaint given by the PW 2 himself the same are not stated.
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S.C..No.84/2012
18. Here it is pertinent to note, at this juncture that PW 2 by name Sri. S.T.Ramesh who is the husband of Savitha works as a Passenger Guard in Mysore Railway Station. He received phone call from his children on 07.06.2011 that the mother is not in the house for which he replied to wait for some time. When she has not returned and when her mobile was not answerable he intimated his relatives and he returned to Bangalore and searched for her and gave missing complaint in Vijayanagar Police Station and PW 1, on 08.06.2011 at about 7-15 a.m. found dead body which was later identified that of Savitha, covered in a gunny bag, which was intimated to police and FIR was registered under Section 302 of IPC.
19. Now to consider the arguments of the counsel for the accused who draws the attention to the Ex.P4. Ex.P4 is the missing complaint given by PW 2 before Vijayanagar Police Station. Which says that his wife Savitha is found missing in between 1.00 pm to 3-30 p.m. of 07.06.2011. PW-2 has given 12 S.C..No.84/2012 description on the backside page with respect to her name, height, colour and also worn clothes said to be nighty and learned counsel contends that there is no description about the broken teeth and fat toe and also as per inquest and other records the deceased was wearing red colour saree. Therefore, it cannot be established that the dead body is that of deceased Savitha.
20. Now to consider his contentions; first and foremost thing with regard to non-examination of DNA test is concerned, it is clear that dead body is identified by none other than husband of the deceased Savitha who has given missing complaint on the previous day. It was contended that it was not identified through children, but getting dead body identified through children who are of tender age of 16 years and 11 years old would be greatest shock for the children and usually when elder people could identify the dead body why the children are put to the task of identification.
21. It is true that in the missing complaint at Ex.P4 there is no 13 S.C..No.84/2012 mention about broken teeth and fat toe of the deceased Savitha nor there is anything mentioned about other identification marks. But the circumstances under which missing complaint was given by PW 2 has to be scrutinized. For that purpose if the evidence of PW2 is seen on 07.06.2011 he left the house at 6-45 a.m. to Mysore wherein he was working as Guard in Mysore Railway Station and at about 3-00 p.m. or 3-30 pm, he received phone call from his daughter stating that mother is not in the house and door is locked. When he called his son studying in College he told that her mother might have gone to shop and it was intimated to him to call his mother's mobile number. Later again son of PW 2 called him and told mother is not receiving call and he also telephoned to his wife on her mobile No. 9739187644 which was constantly engaged. In an anxiety he told to enquire the neighbours, who on enquiry said they do not know. Immediately he called to his brother-in-law Shankarnag and he told that he is in J.P. Nagar. So immediately PW 2 rushed to Bangalore. He searched till 10-30 p.m. to 11-00 p.m. in the night gave missing complaint. 14
S.C..No.84/2012
22. While giving missing complaint person who gives such complaint of his missed relatives, siblings, or life partner would be under greatest stress,in state of perplexity, anxiety of unknown and he gives the complaint only in order to set immediate motion of police,so that missing person could be traced immediately. While giving such complaint it cannot be excepted of the person who gives it ,to recollect minute details of the missing person in an anticipation of death or disfigurement requiring those marks for identification such expectation is improbable. More over he has given photograph of his wife by which very well the police can trace her. Ex.P11 shows face is disfigured but by medical evidence of PW 6 who noted rigor mortis and lividity and Sub conjuvital hemorrhage of both eyes and he has opined that the death has occurred about 18 - 24 hours back to his P.M. Examination which can be seen from Ex.P12 P.M. Report and as per his version the dead body was kept in cold storage on 08.06.2011 at about 2-00 p.m. So earlier to that the death has occurred. So if 18-24 hours 15 S.C..No.84/2012 prior is considered it will be around 2-00 p.m. to 6-00 p.m. of 07.06.2011. Therefore, the condition as found in Ex.P11 is after livedity and decomposed of the dead body for not keeping in cold storage even after 18 - 24 hours of death which has resulted in the condition as shown in Ex.P11. But here identification done by the husband himself who is best person to identify the dead body of his wife. In addition to that two more his relatives have also identified her dead body, who are Sri.Srinivasiah and Sri.Atmananda who are relatives of deceased H.S. Savitha. There may be omission in the statement of the police given by PWs 3 and 4 as argued, but that itself is not major omission and that the fact they identified dead body could not be shaken in the cross examination. Coupled with evidence of husband of deceased with respect to identification of dead body, it is clear that the dead body found on 08.06.2011 by PW 1 is the dead body of deceased Savitha. Therefore, the arguments of learned counsel for the accused that absence of corpus delicti cannot be accepted. 16
S.C..No.84/2012
23. In a similar circumstances, the Hon'ble Supreme Court wherein similar arguments were advanced with regard to absence of corpus delicti i.e. identification of the dead body of the deceased, wherein it is held as under in a ruling reported in SAHADEVAN @ SAGADEVAN VS. STATE REP. BY INSPECTOR OF POLICE (2003) 1 SCC 534.
"7. In these appeals, the learned counsel appearing for the appellants very seriously contended that most of the circumstances relied upon by the courts below have not been proved beyond reasonable doubt. They argued that in the absence of any material to establish that the body that was found in Crime No.141/85 was that of the deceased Vadivelu, it would be hazardous to presume that the deceased Vadivelu had died because of the alleged beating given to him by the appellants i.e. assuming that such an incident did take place in the Police Station on 5.3.1985. The argument of the learned counsel in this regard is that in cases where the corpus-delicti is not found, there should be some acceptable evidence produced by the prosecution to prove that the death of the missing person was in fact caused, and the accused persons are directly responsible for causing such death, and that the alleged injury caused to the missing person was sufficient in the normal course to cause such death. In the absence of such proof as to the actions of the accused persons connecting them with such assault or injury, it is not possible to convict the appellants of an offence punishable under section 302 of IPC Elaborating this contention, the learned counsel argued that there is absolutely no evidence whatsoever to hold, that by the so called attack on Vadivelu in the police station he had died 17 S.C..No.84/2012 or that the injury caused, if any, on Vadivelu by these appellants were sufficient in the normal course to cause a death....."
"15. The 5th circumstance considered by the courts below pertains to the identification of the dead body found at Enathur. This is a very important circumstance so far as the prosecution case is concerned. Learned Sessions Judge accepted the prosecution case that the said dead body was that of Vadivelu. This was on the basis of the evidence of PWs.1 and 6, who had pointed out the identification marks on the person of Vadivelu, and by comparing these identification marks with those found by the doctor who conducted the post mortem. The trial court also placed reliance on the evidence of PW-18, the photographer, and held that the body which was the subject matter of Crime No.141/85 was that of Vadivelu's. However, the High Court placing an undue emphasis on the failure of PWs.1 and 6 to mention the approximate height and weight of Vadivelu, came to the conclusion that the prosecution has not proved that the said dead body was that of Vadivelu.
16. Learned counsel appearing for the appellant supported the finding of the High Court by pointing out that the identification marks spoken to by PWs.1 and 6 were not mentioned in the first instance by these witnesses when their statement was recorded. They also supported the conclusion of the High Court, that in the absence of the description of the dead body as to its height and weight, in the evidence of PWs.1 and 6, it should be held that the prosecution has failed to establish the identification of the dead body. They also contend that the evidence of PW-18 in this regard is wholly artificial and should not be relied upon because of the fact that the said witness could not have remembered the 18 S.C..No.84/2012 features of the dead body which he had seen about 7 years earlier.
17. We have carefully examined the evidence of PWs.1 and 6. They have stated that Vadivelu had a birthmark on his right side buttocks as also a surgical mark on the back side of his shoulder. These witnesses have also stated that he had undergone circumcision, which is not a common thing amongst the members of the caste to which Vadivelu belonged. The doctor who conducted the post mortem examination of the dead body had in his evidence stated that these identification marks were found on the said body and, therefore, the identification marks spoken of by PWs.1 and 6 found on person of Vadivelu tally with the identification marks found on the dead body on which the doctor conducted the post mortem, indicating that the body was that of Vadivelu.
24. In this case also it is pertinent to note that the body was identified on the basis of broken teeth and fat toe, even Doctor Pw- 6 has also mentioned about the old fractured teeth. Therefore without hesitation it can be held that the dead body was that of Savita.
25. Another submission of learned counsel for accused that in the missing complaint at Ex.P4 the dress wormed by the savita is shown as nighty but dead body is found with read saree, it can 19 S.C..No.84/2012 stated for this that PW-2 who gave complaint left home at 6.45 am in the morning he had no occasion to know the last worn dress of his wife.
26. The learned counsel for the accused submitted that why the married woman of middle aged would go to the house of the accused in the afternoon when nobody was there in the house and contends that there is no evidence with regard to illicit relationship between the accused and deceased. In this regard the learned counsel also submitted that there is no motive at all. He relied upon the evidence of PW 2 husband of the deceased wherein in the cross examination admits as follows.
"ನನನನ ನನನ ಹಹಹಡತ ಅನಹನನನನನವನಗದಹದವವ. ನನನ ಹಹಹಡತಯ ನಡತಹ ಬಗಹಗ ಇವತತನ ವರಹಗಹ ಯನವವದಹನ ಅನನಮನನವಲಲ. ನನನ ಹಹಹಡತ ಶನಲವಹತಳನಗದದಳನ ಎಹದನ ಹಹನಳನತಹತನನಹ. ನನನ ಹಹಹಡತಯ ಶನಲದ ಬಗಹಗ ಸಹಬಹಧಕರನ ಮತನತ ಅಕಕಪಕಕದವರನ ಏನನನನ ಹಹನಳಲಲ, ಅದರಹತಹ ನನನನ ನನನ ಹಹಹಡತಯ ಶನಲದ ಬಗಹಗ ಅನನಮನನ ವನಕತ ಪಡಸ ಪನಲಸರ ಮನಹದಹ ಹಹನಳಕಹ ಏನನ ಹಹನಳಲಲ".
27. He also draws the attention of the court to the evidence of PW 17 who is IO who said to have enquired with PW 2 with 20 S.C..No.84/2012 regard to character of the deceased Savitha. He contends that there is no evidence at all.
28. With regard to having illicit relationship, in this connection the evidence of PW 2 assumes importance who is husband of the deceased. In the cross examination PW 2 admits that since he is Passenger Guard having no fixed hours of duty and the vegetables required for the house hold was purchased by his wife. In the cross examination of PW 2 it is elicited that PW 2 has seen vegetable shop of the accused and brother of the accused disabled Ramesh also will be present in the shop. In the cross no single suggestion is given that the accused and deceased were not at all acquainted.
29. It is clear that the accused is having vegetable shop in the proximity of the area and has elicited in the cross of PW 2 that vegetables etc. were purchased for the household by the deceased Savitha this clearly infers the fact that the said vegetables were purchased by the shop of the accused, who was running vegetable shop and his brother Ramesh was also managing the shop. So this 21 S.C..No.84/2012 shows acquaintance with the accused and the deceased if not clearly about illicit relationship.It is also appropriate to note that the accused got bail by the Hon'ble High Court in Crl.Petition No:-
4880 of 2015 on 12/08/2015 wherein the submission was made by the learned counsel for the accused that "..He Submits that petitioner was running a Grocery shop with vegetables and the deceased was regularly contacting him for purchase of her grocery needs..". This also further establishes that familiarity of deceased and accused. And no where it is suggested that such acquittance was there and it was only of a shop keeper and customer to PW-2 or to other witnesses of prosecution.
30. One more aspect is seen here is evidence of PW 10 by name Swamy N. PW 10 is the Auto driver drives autorikshaw for his livelihood. He deposed that on 07.06.2011 at about 2-15 p.m. he brought customers from Satellite bus-stand to Bapuji Nagar and they were alighted and he saw the deceased was standing in front of shop of accused by holding bag and he talked with the deceased, 22 S.C..No.84/2012 who called him to have lunch, but he told he has finished the lunch and he asked why she has come,she told she came to purchase vegetables.
31. The learned counsel for the accused has challenged the evidence of PW 10 and stated that there is no evidence of last seen together theory. But here the evidence of PW 10 prima facie shows that he has seen the deceased alive lastly, because it is the case of the prosecution that gruesome murder has taken in the house of accused and there was no occasion to see the accused and deceased coming together.
32. To consider the cross of PW 10 to see as to whether anything elicited to disbelieve his version. Firstly it is stated that this witness PW 10 on 09.06.2011, he came to know that Savitha is dead and he happens to be the friend of brother of deceased by name Sunil Kumar. In the cross it is elicited that he on 07.06.2011 at about 2-15 p.m. saw Savitha and told same thing to Sunil and after two days he went to Bidadi Police Station and then Ramanagara Police Station with Sunil to say the same. He tried to 23 S.C..No.84/2012 meet the police, but he could not meet the police and tell it. The learned counsel for the accused stated that statement of this witness recorded on 04.07.2011 belatedly and also he has got marked Ex.D2 portion wherein he has not stated that Savitha was not holding back.
33. That may be omission because statement is recorded on 04.07.2011 the witness saw Savitha on 07.06.2011 and he has deposed before the court on 05.10.2012. The said omission cannot be termed as improvement to disbelieve his version.In the cross of PW 10 it is elicited that his house is about 1½ Kms away from the place where he met Savitha. He denied suggestion that he stays 20 Kms away from that place. It is also stated that the fact of Savitha asking him to have dinner and he saying that he has completed his dinner was not stated before the police. But again the said fact is not fatal omission or improvement totally making the credibility of the witness to be non-believable.
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34. Hon'ble Supreme Court in a ruling reported in YOGESH SINGH VS. MAHABEER SINGH (2017) 11 SCC 195.
Discrepancies in evidence "29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. (See Rammi v.State of M.P. [Rammi v. State of M.P., (1999) 8 SCC 649 : 2000 SCC (Cri) 26], Leela Ram v. State of Haryana [Leela Ram v.State of Haryana, (1999) 9 SCC 525 : 2000 SCC (Cri) 222] ,Bihari Nath Goswami v.Shiv Kumar Singh [Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186 :
2004 SCC (Cri) 1435] ,Vijay v. State of M.P. [Vijay v. State of M.P., (2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639] ,Sampath Kumar v Inspector of Police[Sampath Kumar v Inspector of Police, (2012) 4 SCC 124 : (2012) 2 SCC (Cri) 42] , Shyamal Ghosh v State of W.B. [Shyamal Ghosh v.25
S.C..No.84/2012 State of W.B., (2012) 7 SCC 646 : (2012) 3 SCC (Cri) 685] and Mritunjoy Biswas v Pranab [Mritunjoy Biswas v. Pranab, (2013) 12 SCC 796 : (2014) 4 SCC (Cri) 564] .)"
35. On appreciation of evidence of PW 10 one fact becomes clear that on 07.06.2011 he saw Savitha alive at last time in front of the shop of accused. The counsel for the accused also argued that in the shop as elicited by other witnessed invalid brother Ramesh would also be there. But the said fact is not suggested to PW 10 stating that on that day the said PW 10 was not at all present on the spot. Nothing is elicited to disbelieve that PW 10 was not present on that day and it is not suggested to PW 10 that the accused was not in the shop and it is not at all suggested that the presence of Savitha was not there and nothing was elicited in that regard. Therefore, the evidence of PW 10 can be believable to say that on 07.06.2011 at about 2-15 p.m. the deceased was in front of the shop of the accused.
36. Counsel for Accused submitted that there is delay in recording the statement of PW-10 by the investigating officer, but 26 S.C..No.84/2012 here it is to be seen whether such delay has afforded an opportunity for the Investigation agency to plant PW-10 as a witness, but on going through the cross and the suggestions made to him and on appreciation which discussed supra, it cannot be stated that delay in recording the statement of PW-10 is fatal to prosecution and he is an implanted witness.
37. Hon'ble Supreme court in a ruling reported in YOGESH SINGH VS. MAHABEER SINGH (2017) 11 SCC 195.
"34.The learned counsel for the respondents has further sought to attack the testimony of this prosecution witness (PW 5) on the ground of delay in recording of her statement by the investigating officer. In support of this submission, the learned counsel has relied upon the judgments of this Court in State of U.P. v. Ashok Dixit [State of U.P v. Ashok Dixit, (2000) 3 SCC 70 : 2000 SCC (Cri) 579] ,Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel [Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel, (2004) 10 SCC 583 : 2004 SCC (Cri) 2032] and Jagjit Singh v. State of Punjab [Jagjit Singh v State of Punjab, (2005) 3 SCC 689 : 2005 SCC (Cri) 893] . However, we find that none of these cases help the case of the respondents since Vijaybhai Bhanabhai Patel v.Navnitbhai Nathubhai Patel [Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel, (2004) 10 SCC 583 : 2004 SCC (Cri) 2032] , does not pertain to the case of a child witness and in State of U.P. v. Ashok Dixit [State of U.P. v. Ashok Dixit, (2000) 3 SCC 70 : 2000 SCC (Cri) 579] and Jagjit Singh v. State of Punjab [Jagjit 27 S.C..No.84/2012 Singh v. State of Punjab, (2005) 3 SCC 689 : 2005 SCC (Cri) 893] , delay in recording of evidence was not per se held to be fatal to the prosecution case but the testimony of the child witness in each case was found to be incredible on account of material contradictions and lack of independent corroboration. We find that this is not the case here. In this context, we may note that the trial court has observed that PW 5 was cross-examined on practically every detail of the prosecution story and her statement corroborated every part thereof. Moreover, the delay in recording of the statement of PW 5 was not unexplained. It was rightly observed by the learned trial Judge that the delay was on account of the fact that the investigating officer wanted to assure himself of the veracity of her statement and hence, she was examined after she had time to recover from the shock of the incident and compose herself. Under these circumstances, any delay in examining this witness under Section 161 CrPC will not prejudice the prosecution."
38. Here also as elicited in the cross of PW-10 that the went to police station to Police station to give statement of he last seeing the deceased Savita alive in front of shop of accused. The explanation which is not given by the prosecution but is elicited by the defence.
39. Now to consider the distance of the house of the accused and deceased the evidence of owner of the house PW 8 assumes 28 S.C..No.84/2012 importance. PW 8 who is owner of the house who has given house on rent to the accused, says that since 5 years accused is in his house on rental basis. His son is examined as PW 13 who also says that he knowns the accused Umesh and their house was given on rent to him. It is elicited in the cross of PW 13 along with accused his brother Ramesh was also residing, who was disabled and working with Umesh in vegetable shop. This is clear that shop and house of the accused are situated in close proximity. So it is clearly shows that on that day the deceased Savitha had gone to meet the accused Umesh.
40. The learned counsel for the accused had advanced arguments that why the married woman will enter the house of accused at about 2-00 p.m. afternoon, it is not at all forthcoming in the prosecution. As per the papers of the prosecution although bleak attempt is made to say illicit relationship with the deceased Savitha, but the not established. But one fact is seen about the acquaintance and familiarity of Savitha with the accused is 29 S.C..No.84/2012 established. The fact would be forthcoming if the appreciation of evidence with regard to recovery of Mangalya chain, which is personal ornament of H.S. Savitha, is done.
41. It is the case of the prosecution that the after committing murder accused went and pledged Mangalya chain and finger ring with the Manappuram Finances and took cash of Rs.1,07,000/- and the bangles were said to be rolled gold he threw it away. In this connection, seizure panchanama is at Ex.P14. The panchas who are examined in this connection are PW 9-(CW 18).
42. PW9 M.Ananthakumar happens to be the Railway employee. He deposed that on 14.06.2011 police Inspector brought the accused to the Manapuram Finance. It is forthcoming that this witness is friend of PW 2 Ramesh who is husband of Savitha and Inspector taken them to Manapuram Finance and shown the receipt, accused identified the same and Inspector told to produce one chain and ring pledged by the accused which was 30 S.C..No.84/2012 produced by Manappuram Finance officials and police have seized it by drawing panchanama. The said panchanama is at Ex.P14.
43. In the cross examination it is elicited that this witness (P W
9) is acquainted with PW 2 from 15 years and on that day the said Ramesh and this witness have gone on two wheeler of Ramesh and another witness has also came to Manapuram Finance on his two wheeler. The said Manapuram Finance (although typed as Bank) was not known to the witness and the said Ramesh has taken him there. By relying on this portion of the evidence the counsel for the accused submits that there is no recovery as contemplated under Section 27 of Indian Evidence Act. But by the evidence which is elicited in the cross it becomes clear that Ramesh, this witness and another witness have gone to Manapuram Finance. Although they might have gone through two wheeler separately, but that does not vitiates the recovery proceedings.
44. Section 27 is with respect to any fact is deposed to as discovered in consequence of information received from a person 31 S.C..No.84/2012 accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved, but the further recovery is to be proved as per law. Here in this case merely this witness happens to be the friend of Ramesh, his evidence and testimony cannot be disbelieved. It is quite natural that for recovery proceedings of ornaments of his wife which has unfolded in the investigation said to have been pledged in Manapuram Finance to get his friend.
45. In the further cross examination PW 9 says that about 5- 6 employees of Manapuram Finance were there and police had come with the staff. This again corroborates this witness has gone to Manapuram Finance, he although says that he cannot say boundaries mentioned in the panchanama, but with regard to seizure he even deposed that first ornaments was marked with the mark as G.L. Suggestions are given with regard to he seeing the accused for the first time before the court and no seizure is 32 S.C..No.84/2012 effected. But the witness has denied those suggestions. By the evidence of this witness it is clear that MO 3 and 4 are seized under Ex.P14.
46. In this regard the evidence of IO H.N. Dharmendra PW 17 also assumes importance. He in the chief evidence deposed that the accused has led him to Manapuram Finance situated at Katriguppe - Vijayanagar Main Road on 14.06.2011 and CWs 17 and 18 were called as panchas and accused has taken the IO to the Manager and on enquiry the Branch manager admits about pledging of the ornaments on showing receipt at Ex.P7.
47. Here as the reference with regard to Ex.P7 has come it is necessary to consider the same. Ex.P7 is receipt of Manapuram General Finance and leasing Limited customer copy. It is issued in the name of accused which bears his photograph, which is not at all disputed. Item pledged shows about chain and finger ring and amount taken is R. 1,07,000/-. The pledge is made on 07.06.2011 33 S.C..No.84/2012 at about 4-10 p.m. which is evident from the receipt itself. The said receipt was shown to the Manager who is CW 22 and she admits it and they produced ornaments which were seized by drawing panchanama at Ex.P14 between 5-00 p.m. and 6-00 p.m. The time also said by PW 9. The IO has also deposed that G.L. Trade mark was engrossed on those ornaments and he deposed that he also recorded the statement of CW 22 - Smt.Vasantha. There is no specific cross to the IO with regard to recovery of Mangalya gold chain by the counsel for the accused. It is only general suggestion is given that the accused has not given any voluntary statement as per Ex.P25 and no material objects were seized which is denied by the witness (cross mentioned at page No.15).
48. By appreciation of the evidence of PW9 and PW17 recovery is proved. It is also proved that the accused himself has pledged gold ornaments to Manappuram Finance on 07.06.2011 that is on the day of alleged murder of Savitha. The murder took place between 2-00 and 2-30 p.m. which is corroborated by the medical 34 S.C..No.84/2012 evidence. The pledge of the ornaments is at about 4-10 p.m. on the same day by this accused.
49. The evidence of PW 20 - CW 22 Smt. H.S.Vasantha who was Manager of Manapuram Finance assumes importance here. She admits her signature at Ex.P14 and deposed that from 2009 to 2012 she was working in Manapuram General Finance. She deposed that she has signed as she was Branch manager. The chain and finger ring were to be seized by the police, so they came to their office and she further deposed that accused has pledged ornaments in their Finance and asked her to give the same. She further deposed that those ornaments were given to the police. The said witness has also identified MO 3 and 4 which are finger ring and gold chain which were pledged in their Finance. Her evidence shows that the accused has pledged MO 3 and 4 that is finger ring and chain respectively which were given back by this witness on the asking of the police and the police have seized it. She in the capacity of the Branch Manager has signed in the recovery 35 S.C..No.84/2012 panchanama as per Ex.P14(c).
50. In the cross examination which was done on the first occasion by the accused, the accused has suggested to this witness that he has pledged many gold ornaments in their Finance. The witness admits the same. This shows that the accused is very well versed in pledging the gold ornaments in the same Finance and he knows very well formalities to be complied to pledge the gold ornaments in Manapuram Finance in order to get the money. In the cross done by the counsel, it is elicited that in the first sentence that since September 2010 she worked in RPC Layout Branch. It is also elicited that she worked there about 1½ years. It is also elicited that the accused used to visit frequently to their branch. So these suggestions and answers show that the accused has admitted about status of the CW 22 to be Branch Manager and he is acquainted with her and also acquainted with the transaction of pledging gold ornaments and getting the amount. In the cross although she says that for pledging the ornaments she has not produced the ledger, 36 S.C..No.84/2012 but the receipt at Ex.P7 which is admitted by the prosecution in the evidence which is proved. It contains photograph of the accused which he has not at all denied. No singe question is asked about the genuineness or veracity of Ex.P7 to this PW 20. So this clearly establishes that the accused has pledged the ornaments.
51. Next issue argued by the counsel for the accused with regard to variations in the weight of the gold. Firstly he has contended that in the missing complaint at Ex.P4 there was no mention of deceased wearing gold ornaments, Mangalya chain, ring, bangles etc. But here while discussing in the earlier part it is held that such minute details may not be possible while missing complaint in anticipation of any untoward incident and Mangalya chain is integral part of married woman. It is not that she without wearing went outside and more over by the evidence of PW 9 and 22 and IO - PW 17 with regard to recovery it is clear that the accused has came into possession of Mangalya chain of the deceased. It is not a defence of the accused that he asked any 37 S.C..No.84/2012 financial help for which the deceased out of acquaintance gave Mangalya chain and asked to pledge and take the money. More interestingly the possession of the personal ornaments of deceased Savitha in the custody of the accused is proved. The learned counsel contended that in the inquest statement PW 2 has stated that the Mangalya chain was weighting 70 grams, but whereas only 54.4 grams weighing Mangalya were recovered. There is no consonance with weighing. He also cross examined specifically IO in this regard on 23.07.2015.
52. PW 17 admits that during the course of investigation PW 2 has stated that Mangalya chain was weighing 70 grams and but only 54.4 grams is recovered from the Finance. This suggestion and answers shows that the recovery is established again. However, with regard to variations in the weight, no doubt in the inquest statement the PW 2 has stated that his wife was wearing Mangalya chain of 70 grams, but that does not mean that it is a conclusive proof of weight of the chain.
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53. PW 2 is not at all asked anything about his statement given in the inquest. The said inquest panchanama is at Ex.P10. The relevant statement is found at page No.5. One fact is to be considered here is with regard to importance of inquest. The inquest is done by the police under Section 174 of Cr.P.C, in the cases of death enumerated therein to ascertain cause in the case of unnatural death. The statement given by the inquest witnesses are subjected contradiction and corroboration on par with statements recorded under under Section 161 and 162 of Cr.P.C. But not statements of blood relatives whose statements are recorded only with an intention to rule out the suspicion of unnatural death and if the blood relatives express doubt the investigation would commence on the said inquest. The relevancy of the inquest is laid down by the Hon'ble Supreme Court in a ruling reported in (1975) 4 SUPREME COURT CASES 153 - PEDDA NARAYANA AND OTHERS VS. STATE OF ANDHRA PRADESH, wherein in para No.10 and 11 stated as under.
39
S.C..No.84/2012 "10.Another point taken by the learned Additional Sessions Judge was that in the inquest report details of the overt acts committed by the various accused have not been mentioned in the relevant column. The learned Judge in fact has assumed without any legal justification that because the details were not mentioned in the requisite column of the inquest report, therefore, the presumption will be that the eyewitnesses did not mention the overt acts in their statements before the police. To begin with it seems to us that the learned Additional Sessions Judge's approach is legally erroneous. A statement recorded by the police during the investigation is not at all admissible and the proper procedure is to confront the witnesses with the contradictions when they are examined and then ask the Investigating Officer regarding those contradictions. This does not appear to have been done in this case. Furthermore, proceedings for inquest under Section 174 of the Code of Criminal Procedure have a very limited scope. Section 174 of the Code as it then stood read as follows:
"174.Police to enquire and report on suicide, etc.-- (1) The officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf, on receiving information that a person --
(a) has committed suicide; or
(b) has been killed by another, or by an animal, or by machinery, or by an accident; or
(c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence;
shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation and draw up a report of the apparent cause of death, describing such wounds, 40 S.C..No.84/2012 fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any) such marks appear to have been inflicted.
(2) * * * (3) When there is any doubt regarding the cause of death, or when for any other reason the police officer considers it expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless."
11.A perusal of this provision would clearly show that the object of the proceedings under Section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under Section 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report. The High Court has adverted to this point and has rightly pointed out as follows:
"The learned Sessions Judge had also stated that the details regarding the weapons armed by each of the accused and which accused had attacked on which part of the body of the deceased are not found in the inquest report and from this he sought to draw the inference that the statements of the witnesses now found recorded under Section 161 CrPC could not have been the statements then read over to the panchayatdars. Column 9 of the inquest report shows that the injuries on the deceased were caused by knives and daggers. Column 11(a) shows that A-1 to A-3, A-4 and A-5 with 3 strangers came in the jeep driven by A4, got down from the jeep, stabbed the deceased with daggers and knives, pushed PW 1, lifted the deceased, put him in the jeep, and drove away the jeep and death 41 S.C..No.84/2012 was the result of the injuries inflicted. The object of holding any inquest as can be seen from Section 174 CrPC is to find whether a person died a natural death, or a homicidal death or due to suicide. It was therefore not necessary to enter all the details of the overt- acts in the inquest report. From the mere fact that these details were not noted in the inquest report it cannot be concluded that the statements given by the witnesses and read over at the inquest did not contain those overt acts and the statements now produced are those of the witnesses which were taken later."
The High Court has thus rightly explained that the omissions in the inquest report are not sufficient to put the prosecution out of court and the learned Additional Sessions Judge was not at all justified in rejecting the prosecution case in view of this alleged infirmity.
54. The Hon'ble Supreme Court by following the above PEDDA NARAYANA's case in a ruling reported in (2017) 11 SCC 195 - YOGESH SINGH VS. MAHABEER SINGH, at para No. 41 and 42 held the inquest report is not substantive piece of evidence. It can be only looked into for testing veracity, wherein it is held as under.
"41. Further, the evidentiary value of the inquest report prepared under Section 174 of Cr.P.C. has also been long settled through a series of judicial pronouncements of this Court. It is well-established that inquest report is not a substantive piece of evidence and can only be looked into for testing the veracity of the witnesses of inquest. The object of preparing such report is merely to ascertain the apparent cause of death, namely, whether it is suicidal, 42 S.C..No.84/2012 homicidal, accidental or caused by animals or machinery etc. and stating in what manner, or by what weapon or instrument, the injuries on the body appear to have been inflicted.
42. In the present case, it is not the case of the accused that they have been prejudiced by the alleged delay in dispatch of the FIR to the nearest Magistrate competent to take cognizance of such offence. Moreover, in our opinion, the non-recording of certain relevant entries in the inquest report do not constitute a material defect so grave to throw out the prosecution story and the otherwise reliable testimonies of prosecution witnesses that have mostly remained uncontroverted"43
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55. Here the inquest witnesses are obviously are panchas to the witness. Therefore, merely the husband has stated 70 grams weight chain in inquest statement and it is found to be 54.4 grams etc. cannot be held as major contradictions to disbelieve the recovery itself. More over the husband of the deceased Savitha has identified it. Even if the accused has pledged it and as per his own version he has gone frequently to Finance to pledge jewelery. He should have staked claim on the Mangalya chain of 54.5 grams which he pledged into Manapura Finance. But he has not claimed the chain, on the contrary PW 2 husband of Savitha has claimed chain and gold ring and taken it. This is the circumstance goes against the accused he failed to point out how he came in possession of personal ornaments of Savitha. More over how he came into possession is not explained by him. The burden is on the accused under Section 106 of Evidence Act. Even in the statement under 313 of Cr.P.C , a specific question was posed to him with regard to the recovery made at question No.24, which he denied as 'ಸನಳನಳ'. Even the question No.47 he also denied as 'ಸನಳನಳ' . But 44 S.C..No.84/2012 never explained anything regarding how he came in possession of personal ornaments of the deceased.
56. The learned counsel for the accused submits that in order to prove the ornaments Mangalya chain of the deceased the prosecution has introduced Ex.P8 which is a xerox copy of receipt of Navarathna Jewels Mart wherein the said Mangalya chain was allegedly got prepared, but it stands in the name of Chetan Maddur. The IO PW 17 in the cross has not at all enquired about Chetan Maddur. He also further submits that PW 2 in the cross examination admits that he is having original of Ex.P8.
57. In this connection the evidence of PW 15 assumes importance. PW 15 is the person by name B.K. Radhakrishna who is said to be owner of Navarathna Jewels mart at No.109, D.Devaraj Urs Road, Mysore. He deposed that he prepared MO4 of 54 grams with 'G.L.' Mark and he also identified Ex.P8 and his signature is marked at Ex.P8(b). In the cross he admits that the 45 S.C..No.84/2012 letter G.L. is not mentioned in Ex.P8 and also no documents are furnished to the police to show that the said G.L. mark pertains to their shop. In the cross examination this witness is steady and stated that he got the ornaments prepared through his labourers and he denied the suggestion of he creating Ex.P8. But this witness no single word is suggested with regard to Ex.P8 in the name of Chetan Maddur to elicit truth. Most conveniently it appears that the said question is skipped only to create certain doubt.
58. Irrespective of fact that Ex.P8 is proved or not the maker of the chain himself has deposed about he preparing the said chain in Mysore and it is quite natural that since PW 2 was working in Mysore he might be having certain acquaintance in Jewellery shop at Mysore and got the same done there itself. In the evidence of PW 2 with regard to preparation of this chain is found at page No.12.
59. Now to consider the point No.1 as per ruling reported in 46 S.C..No.84/2012 AIR 2014 SC 3595 - RICHHPAL SINGH MEENA VS. GHASI that whether the case is homicidal. First and foremost stand against the accused is having possession of personal ornaments of the deceased Savitha which he pledged in Manapuram Finance and recovery is made by the police and the recovery is proved and ornaments are identified by the husband. Also owner of shop by name B.K.Radhakrishna deposed who is PW 15. There is no specific denial in the cross of PW 15 or in the evidence of PW 2 that no such Mangalya chain was got prepared by PW 2 or it was prepared on the instructions of PW 2 and deceased by PW 15. In addition to that in the cross of PW 17 IO he admits that by going through Ex.P 8 that he came to know that the said receipt is in the name of Chetan Maddur and he has not enquired about it. He denied the suggestion that there is no nexus to Ex.P8 and MO4. But as observed earlier the said Mangalya chain is identified by PW 2 and claimed by him and not by the accused.
60. The another suggestion is given to PW 17 which is very contrary to the entire stand. It is suggested to him as under. 47
S.C..No.84/2012 ಮಮತಳ ಶವದ ಮನಲನ ಮನಹಗಲನ ಚಹಚನನನನ ಹಹನರತನ ಪಡಸ ಬಹನರಹ ಬಹಗನರದ ಆಭರಣಗಳನ ಎಲಲ ಮನಡಸದ ಆಭರಣಗಳನ ಇರನತತವಹ ಎಹಬನದನ ಗಹನತತಲಲ
61. This suggestion indirectly show that the preparation of Mangalya chain which were said to be on the dead body of deceased Savitha was prepared at Mysore by Navarathna Jewellery Mart.
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62. With regard to first point as per ruling supra, whether the death is homicide?, in this connection the evidence of doctor assumes importance as PW 6 and he has given P.M. report at Ex.P12. The opinion of the doctor is Asphyxia as a result of strangulation. This clearly shows that the death is homicidal. In addition to that the doctor has observed lividity and there is an abrasion of 2 x 1 cm. On back of right elbow and an abraded contusion of 05.3 cm. Over front of right knee. Fracture of superior cornua of thyroid cartilage on both side with extravasation of blood around fracture sites. This clearly corroborates the opinion of the doctor which is not disputed. In the cross it is elicited that the doctor has not done measurement of the injury, but that does not make the evidence of doctor to be doubtful to rely upon. The doctor admits that there were no finger marks and nail mark on the neck. It is obvious because body was in a such state Lividity has already occurred. In the cross suggestion is given that the external injuries number No.2 and 3 are the struggle injuries i.e. an abrasion of 2 x 1 cm. on back of right elbow and an abraded 49 S.C..No.84/2012 contusion of 05x 3 cm over front of right knee. But if other external injuries at Sl.No.1, 4 and 5 of the P.M. report are seen which are contusion injuries. After giving suggestion again another suggestion and answer is elicited that those injuries may be caused for other reason.
63. But this answers and suggestions is without suggestion that what would be the other possibilities to cause such injuries for married woman to get such injuries at Sl.No.1 to 5 mentioned as external injuries in Ex.P12 and these injuries are not caused during the household course by married woman unless there is certain protest and scuffle with some one.
50
S.C..No.84/2012
64. It is the case of the prosecution also that the accused called her in his house and asked gold ornaments for which she resisted and there was scuffle and he murdered her by strangulation and took the ornaments and pledged it. So the chain is totally linked with respect to the circumstances are concerned. The first circumstance the accused coming into possession of ornaments of the deceased, second link in the chain is death due to strangulation and asphyxia with external injuries of struggle. The third circumstances is non-claim of the accused of ornaments which were pledged by him and fourth circumstance only denying questions asked u/s 313 statement without explaining the circumstances against him about seizure and coming into possession of ornaments. The fifth circumstance is accused having vegetable shop which was visited by the deceased on her day of death. These circumstances link together clearly points out the fact that the death is homicidal caused by the accused. Therefore, the 2nd and 3rd points laid down in a ruling reported in AIR 2014 SC 3595 - RICHHPAL SINGH MEENA VS. GHASI, requires 51 S.C..No.84/2012 the court to hold that the death was culpable homicide amounting to murder and it is very easy to identify the person who committed the homicidal death.
65. Another aspect argued by the learned counsel for the accused is with regard that two bangles which were robbed by the accused and stated by PW 2 in inquest statement of gold were turned out rolled-gold. As observed earlier no importance can be given to the statement of other witnesses given during the course of inquest.
66. PW 2 is cross examined in this aspect. In the cross explanation is given by PW 2 under wrong impression he has stated that bangles were of gold and he also further clarifies that those bangles were not of his wife and were of daughter of the elder sister of his wife and while his wife went to her native she came wearing them. It is the case of the prosecution that the accused has thrown those bangles.
52
S.C..No.84/2012
67. In the evidence of PW 17 - IO -Sri. Dharmendra it is elicited that PW 2 stated before him that the deceased was wearing rolled- gold bangles and also PW 2 has stated at the time of inquest that those bangles were of gold. But as observed earlier no importance can be given. Had really those bangles were of gold they would have been subjected to pledged by the accused in Manapuram Gold Finance, since they were not of gold he has thrown them outside. 53
S.C..No.84/2012
68. It is the contention of the defence that the IO has not at all investigated about the ownership of the vehicle bearing No. KA- 02/EW-1634 on which the dead body was allegedly transported. But irrespective of the facts that it belongs to whomsoever, the transport of dead body is evident, because in the cross of PW 17 IO the suggestion is given by the defence that whether any blood stains were found on the said scooter at page No.15. PW 2 says that there was bleeding and no blood was found on the two wheeler. But here bleeding is with respect to sub conjuctival haemorrhage noted on either side of cornea of both eyes., the IO might have stated about the said bleeding. It is also elicited that accused is not the owner of the two wheeler. It is clear that accused took two wheeler for transportation of the dead body. It is evident by the suggestion that no blood was seen on the two wheeler. It is established that the death is by asphyxia due to strangulation. So bleeding and blood stains on the vehicle will not arise when the dead body was transported. But by the fact that the dead body was found on the spot next to footpath near the 54 S.C..No.84/2012 Sy.No.119 of Amruthanandamayee Ashram, Mariyappanapalya, Bangalore makes it clear that it has been transported by the accused himself.
69. It is pertinent to note that the accused himself has shown the spot where he threw the dead body. The panchanama is at Ex.P3. PW 1 who was present on the panchanama has unequivocally stated that he finding the dead body at the first instance and he also further deposed that on 14.06.2011 police came again with the accused and accused shown the spot where the gunny bags with dead body was thrown by him. In the cross of this person the denials are suggested. Although this witness stated that he does not know what is written in Ex.P2, but he deposed that he has signed after the police reading over the contents to him. Although he admits that the police have not given notice, but he is predominant person, it appears he is said to be President of Labour Unit of Ullalu and he was called by the police and his testimony discloses that he has seen the corpus at the first instance and he 55 S.C..No.84/2012 gave complaint to the police and set the law into motion. FIR was registered by the Bidadi police in Cr.No.350/2011 and spot at Ex.P2 and P3 are one and the same. His evidence has remained constant throughout.
70. PW 11 is another witness who has seen the dead body along with PW 1. He deposed in consonance with the evidence of PW 1. In the cross also nothing worthwhile is elicited except fact that he knows Shekar PW1. But it is explained by the witness that since the PW1 is Labour leader hence, he knows him. There is no reason to disbelieve the testimony of PWs 1 and 11 who at the first instance seen the dead body.
71. It is suggested to PW 17 - IO by the defence that to match missing complaint with the unclaimed dead body, it is prepared that the dead body is that of missing person Smt.H.S. Savitha, but on analyzing the evidence so far the said Savitha was murdered and missing complaint was lodged as her whereabouts were not traced by her family members and on the next day PWs 1 and 11 56 S.C..No.84/2012 traced the dead body in a gunny bag and registered the crime under Section 302, 201 of IPC in Bidadi Police Station. Later, in the evidence of PW 2,noticed that in the Television channel the scrolling lines were shown that unidentified dead body is found of a woman near Amruthanandamayee Ashrama, Ullalu Main Road and PW 2 and other family members called Kengeri Police Station, Jnanabhaarathi Police Station and then they reached Bidadi police who told them that the unclaimed dead body is kept in mortuary of Rajarajeshwari Medical College Hospital, wherein PW 2 and PW 6 identified the said dead body as that of Savitha. So links are clearly joined here. There is no doubt to say that missing person dead body found is that of Savitha.
72. Spot of murder: The spot is the house of accused. The sketch is at Ex.P15. The person who has drawn sketch is examined as PW 12. PW 12 is the Assistant Engineer, who told that requisition was received by Vijayanagar Police to draw the sketch. So on 25.08.2011 went to police station and one Kumara 57 S.C..No.84/2012 Chinnadurai PW 13 was deputed to show the spot and accordingly, PW 12 went there in RPC Layout and prepared rough sketch at Ex.P15 and P16 is requisition received by their office. In the cross examination nothing worthwhile is elicited and only suggestions is given to the effect that only to help the police the sketch is prepared. This suggestion is denied by the witness.
73. In this case evidence of PW 13 assumes importance. PW13 who has shown the spot to the PW12 to draw sketch who happens to be the son of owner of the house where the accused was residing. He says that on 25.08.2011 two police came in mufti dress and asked to prepare the sketch and he told the plan. He was treated as hostile. To show that he has pointed spot to the Assistant Engineer. But he admits that on 25.08.2011 PW-12 had come there. This clearly shows that the spot sketch was drawn by PW12.
74. Next aspect which is argued with regard to keys. It is stated that PW 2 that by the time he could go to the house of the accused along with accused on 14.06.2011 police have already opened the 58 S.C..No.84/2012 door and accused produced Ex.P7. PW 17 says that keys is received is found in possession of the accused which is marked in this case as MO1, but he could not find the lock of the key. But here the fact that recovery is proved that the death is homicidal. Mere some minor inconsistency with regard to the availability of the key and not tracing of the same is hardly of any relevancy for the defence.
75. It is very much vehemently contended by the defence with regard to the defects in the investigation, lapses in the investigation and highlighted facts which were not done by the IO. But rather to establish the fact of incredibility of the evidence of the prosecution on the materials available, mere showing of fault of investigation which was not done by his Investigating Agency will not help the accused always. The Investigating Agency i.e. police are well acquainted and well trained in detecting the crime and equipped with the latest technologies and also having aid of FSL and Medical staff. The investigation depends on the facts of the each case and it is the prerogative of the Investigating Officer to 59 S.C..No.84/2012 proceed. The defence cannot dictate the investigation could have been done in a particular manner under the grab of pointing lacuna in the investigation.
76. In a ruling reported supra, YOGESH SINGH's case the Hon'ble Supreme Court with regard to lapses in the investigation is held that the defective or illegal investigation or lapses in the investigation cannot be the ground for acquittal. The investigation is not solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in that case cannot be allowed to depend solely on the probability of investigation (para No.30 and 36).
77. Therefore whatever the lapses are found alleged non- examination of DNA to identify dead body and non-examination of Chetan Maddur whose name appears in Ex.P8 and keeping the file even knowing the fact that the jurisdiction is not with the Bidadi police will not aid the accused.
78. Although in Ex.P12 - post mortem report it is mentioned that vaginal swab, vaginal smears and blood are collected to rule 60 S.C..No.84/2012 out the possibility of sexual intercourse and presence of drugs in blood as per the request of Investigating Officer and the same are sent to FSL for chemical examination, but no results are found in the records. But that itself will not extend any right to the accused to claim the to say benefit under non-examination of such samples or furnishing report thereof and that is not fatal to the case on hand.
79. It is forthcoming on the record that PW17 admitted that on 14.06.2011 he came to know that jurisdiction is within Vijayanagara Police Station limits of Bangalore and evidence of PW 18 says that he received file on transfer on 03.08.2011. But earlier investigation officer keeping file cannot be found fault with him. What prejudice caused to the accused is not forthcoming and it cannot be made a ground to prove innocence of the accused. Moreover transferring of files from one police station to another police station requires administrative order by the higher officials which will take some time.
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80. The evidence of PW 18 (Second I.O) and cross done establishes nothing to disbelieve the version of PW18. Searching cross examination is made to PW 18 just to overcome the answers given by PW 17 on the area which has not been investigated by him, but which were available on record.
81. By the above discussion of the evidence it becomes clear that the accused has committed culpable homicide- death by strangulation of deceased Savitha by calling her in his house and robbed her ornaments. Unless he has robbed and killed her he would not have got possession of ornaments. By the medical evidence at external injuries at Sl.No.1 to 5 it is clear that there was scuffle and fight prior to the strangulation. Hence, the same is proved. Accordingly, the points No.1 and 2 are answered in Affirmative.
82. POINT NO.3: By the above evidence it is clear that the accused has committed murder and robbery. In order to 62 S.C..No.84/2012 conceal the offence and dead body he has transported it over a vehicle bearing No. KA-02/EW-1634 and threw the dead body at the spot Sy.No.119, Amruthanandamayee Ashram Road, Ullalu, Bangalore in order to cover the offence. The intention of the accused that he was having intention to murder and also to conceal the dead body, the evidence of PWs 5, 6 & 16 assumes importance.
83. PWs 5 & 7 Satyaraj and Tyagaraj who were taken by the accused to his rented house at Manganahalli. Both deposed that they dug trench of 3 ft. width x 6 ft. length and PW 5 Satyaraj stating that his wife was about to deliver, he and PW7 went away. In the cross of PW 5 unconnected questions are asked with regard to Honda Activa and they taking only spade (Sanike) to dug the trenches. Those trenches were allegedly dug by them on the say of the accused to plant coconut trees. Even in the cross examination of PW 7 it is elicited that he has taken only one spade.
84. But Ex.P26 which is the Mahazar done by IO at Manganahalli village shows that those trenches were covered with 63 S.C..No.84/2012 mud. Even the evidence of PW 16 requires to be seen. PW 16 says that he has given house on rent at Manganahalli Village, Yeshwanthpur in the month of April 2011 to the accused at the rate of Rs.1,000/- p.m. In the cross it is stated that there was no rent agreement, but written agreement cannot be expected in the rural background. It is also elicited in the cross examination to this witness that the accused locked that house this witness found trenches were dug and closed. Although this fact shows that accused has taken these two labourers whom he knew very well and on various occasion purchasing the some items on credit ,to dug the trenches under the pretext of planting coconut trees at Manganahalli Village but intention of accused was obvious. The accused wants to screen the offence by hiding the dead body in such trench instead threw it on footpath.
85. Hence, the accused is found guilty of the offence punishable under Section 201 of IPC.
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86. It is submitted by the defence that accused by pledging gold ornaments received a sum of Rs.1,07,000/- from Manapura Finance, which is not recovered by the IO which is also admitted by PW17. But here it is quite natural to a person who is in need of money who can go to the extent of murdering will never keep the amount unspent and more over items itself are recovered and non- recovery of money is not serious lapses on the part of the investigating agency.
87. Having regard to the above discussion, it is held that the accused is found guilty of the offence punishable under Section 302, 392, 201 of IPC.
88. POINT NO.4: In view of foregoing discussions and findings on points No.1 to 3, following order is passed. 65
S.C..No.84/2012 ORDER Acting under Section 235 (2) of Cr.P.C. the accused by name Umesh @ Umesh Mogaveer S/o late Narayana is found guilty and convicted for the offences punishable under Section 302, 392, 201 of IPC .
Judgment is deferred to hear on sentence. The accused is taken into custody.
[Dictated to the Judgment Writer, transcribed by him, transcription corrected and then pronounced by me in open court, dated this the 16 th day of October, 2021.] (KRISHNAMURTHY R. PADASALGI) LV ADDL. CITY CIVIL & SESSIONS JUDGE, (CCH-56), BANGALORE.
66
S.C..No.84/2012 ORDER ON SENTENCE:
Heard both learned counsel for the accused and the learned Public Prosecutor on imposition of sentence.
The learned Public Prosecutor submitted that the accused has committed brutal act of murder of a married woman and robbed her ornaments. Therefore, the accused is not entitled for leniency and maximum sentence may be awarded to the accused and also submits to award compensation.
The learned counsel for accused submits ther are no antecedents of criminal record against the acucsed and he is 35 years young and having a responsibility to lookafter his mother by name Smt. Sannamma and deserted sister Smt.Ratna and also in the evidence it is forthcoming he is having disabled brother by name Ramesh. The accused was also in judicial for four long years and submits that it is not forthcoming that he is beyond reform and there was a contribution by the deceased Smt.H.S.Savitha also.
Hence, prays to take lenient view while awarding sentence.67
S.C..No.84/2012 Having regard to the above submission the accused being in judicial custody and granting of set-off can be considered while awarding sentence of imprisonment for the offences punishable under Section 392 and 201 of IPC. The main offence for which the accused is convicted is under Section 302 of IPC for which the death sentence or imprisonment for life are the only punishments.
In this case, the case is based upon circumstantial evidence and having regard to the fact that it is not rarest of the rare case to award capital punishment and also considering the findings supra, the following sentence is passed .
ORDER The accused is convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.5 lakhs (Rupees five lakhs only), in default he shall undergo Simple Imprisonment for two years for the offence punishable under Section 302 of IPC.
Acting under Section 357 (1) of Cr.P.C. out of fine amount, a sum of Rs.4,50,000/- (Rupees Four lakhs fifty 68 S.C..No.84/2012 thousand only) be paid to PW 2 Sri.Ramesh, who is the husband of deceased Smt.H.S.Savitha after its realization and remaining Rs.50,000/- (Rupees Fifty thousand) shall be paid to State Exchequer.
The accused is convicted and sentenced to undergo rigorous imprisonment for Five years and to pay a fine of Rs.2 lakhs (Rupees two lakhs only), in default he shall undergo SI for 6(Six) months, for the offence punishable under Section 392 of IPC.
Acting under Section 357 (1) of Cr.P.C. out of fine amount, a sum of Rs.1,00,000/- (Rupees one lakh only) be paid to PW 2 Sri.Ramesh, who is the husband of deceased Smt. H.S.Savitha after its realization and remaining Rs.1,00,000/-
(Rupees one lakh only) shall be paid to State Exchequer.
The accused is also convicted and sentenced to undergo rigorous imprisonment for Two years and to pay a fine of Rs.1,00,000/- (Rupees one lakh only), in default he shall undergo SI for 6 (Six)months, for the offence punishable under 69 S.C..No.84/2012 Section 201 of IPC.
Acting under Section 357 (1) of Cr.P.C. out of fine amount, a sum of Rs.50,000/- (Rupees fifty thousand only) be paid to PW 2 Sri. Ramesh, who is the husband of deceased Smt.H.S.Savitha after its realization and remaining Rs.50,000/-
(Rupees fifty thousand only) shall be paid to State Exchequer.
All the substantive sentences of imprisonment shall run concurrently.
Acting under Section 428 of Cr.P.C. the period of detention undergone by accused as under trial prisoner is set-off against the substantive imprisonment awarded to accused for the offences punishable under Section 392 and 201 of IPC only.
The bail bonds and surety bonds shall stand cancelled.
The custody of MO 3 & 4 granted to PW 2 - Sri.S.T. Ramesh is made absolute after appeal period. The MO5 to 7 are identified by PW 2 -Sri. S.T. Ramesh in the course of evidence and the same are given to his custody after appeal period is over..
Custody of Vehicle bearing no KA02 EW 1634 granted to 70 S.C..No.84/2012 Jagadish .R is hereby made absolute after appeal period.
MO1 - Key, MO2 - photograph, MO8 - Pettycoat, MO9 -
Red blue colour saree, MO.10-Blouse, MO11- Bra, MO12- Towel, MO13 & 14 -two Gunny bags, MO15 - plastic bag & MO16 - pair of keys are worthless ordered to be destroyed, after appeal period is over.
Furnish free copy of Judgment to Accused forthwith.
[Dictated to the Judgment Writer, transcribed by him, transcription corrected and then pronounced by me in open court, dated this the 18 th day of October, 2021.] (KRISHNAMURTHY R. PADASALGI) LV ADDL. CITY CIVIL & SESSIONS JUDGE, (CCH-56), BANGALORE.71
S.C..No.84/2012 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:
PW-1 :: M.Shekhar
PW-2 :: S.T.Ramesh
PW-3 :: K.Srinivasaiah
PW-4 :: Aatmananda
PW-5 :: Satyaraj
PW-6 :: Dr. Pradeep Kumar M.V.
PW-7 :: Tyagaraj
PW-8 :: Chinnadore
PW-9 :: M.Ananthkumar
PW-10 :: Swamy N.
PW-11 :: Jagadeesh
PW-12 :: V.Gopalakrishnappa
PW-13 :: Kumar
PW-14 :: Lakshminarayana
PW-15 :: B.K.Radhakrishna
PW-16 :: Siddappa Lola
PW-17 :: H.N.Darmendra
PW-18 :: P.Chandrashekhar
PW-19 :: Chandranna
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PW-20 :: Smt. H.S.Vasantha
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
PROSECUTION:
Ex.P-1 :: Complaint
Ex.P-1(a) :: Signature of PW-1
Ex.P-2 :: Mahazar
Ex.P-2(a) :: Signature of PW-1
Ex.P-3 :: Spot Mahazar
Ex.P-3(a) :: Signature of PW-1
Ex.P-4 :: Missing complaint
Ex.P-4(a) :: Signature of PW-2
Ex.P-4(b) :: Photo of deceased in complaint Ex.P-5 :: Acknowledgement of dead body Ex.P-5(a) :: Signature of PW-2 Ex.P-6 :: Signature of PW-2 Ex.P-6(a) :: Signature of PW-2 Ex.P-7 :: Receipt of Manampuram Finance Ex.P-8 :: Jewelery receipt Ex.P-8(a) :: Signature of deceased Ex.P-9 :: Inquest Mahazar Ex.P-9(a) :: Signature of PW-3 Ex.P-10 :: Notice 73 S.C..No.84/2012 Ex.P-10(a) :: Signature of PW-3 Ex.P-11 :: Photo of deceased Ex.P-12 :: P.M. Report Ex.P-12(a) :: Signature of PW-6 Ex.P-13 :: Form No.146(1)(2) Ex.P-14 :: Seizure Mahazar Ex.P-14(a) :: Signature of PW-9 Ex.P-15 :: Sketch Ex.P-15(a) :: Signature of PW-12 Ex.P-16 :: Letter Ex.P-16(a) :: Signature of PW-2 Ex.P-17 :: Statement of PW.13 Ex.P-18 :: Form No.146(2) Ex.P-18(a) :: Signature of PW-17 Ex.P-19 :: Copy of FIR Ex.P-20 :: Requisition Ex.P-20(a) :: Signature Ex.P-21 :: Seizure Mahazar Ex.P-21(a) :: Signature Ex.P-22 :: Requisition Ex.P-22(a) :: Signature Ex.P-23 :: Mahazar Ex.P-23(a) :: Signature 74 S.C..No.84/2012 Ex.P-24 ::M.O. Report Ex.P-24(a) :: Signature Ex.P-25 :: Statement of accused Ex.P-25(a) :: Signature Ex.P-26 :: Mahazar Ex.P-26(a) :: Signature Ex.P-27 ::M.O. Report Ex.P-27(a) :: Signature Ex.P-28 :: M.O. Report Ex.P-28(a) :: Signature Ex.P-29 :: M.O. Report Ex.P-29(a) :: Signature Ex.P-30 :: Copy of FIR Ex.P-30(a) :: Signature LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION:
MO-1 :: Key
MO-2 :: 2 Photos of Vehicle
MO-3 :: Gold ring
MO-4 :: Gold chain
MO-5 :: Toe rings
MO-6 :: Ear ring
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MO-7 :: Nose Thread
MO-8 :: Blue Petty Coat
MO-9 :: Red colour saree
MO-10 :: Blouse
MO-11 :: Bra
MO-12 :: Towel
MO-13 :: Two gunny bags
MO-14 :: Plastic bag
MO-15 :: Plastic bag
MO-16 :: One pair keys
LIST OF WITNESSES EXAMINED ON BEHALF OF
DEFENCE:
NIL
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
DEFENCE:
Ex.D-1 :: Statement of PW.7
Ex.D-2 :: Statement of PW.10
(KRISHNAMURTHY R. PADASALGI)
LV ADDL. CITY CIVIL & SESSIONS JUDGE,
(CCH-56), BANGALORE.
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Judgment passed and
pronounced in the open court. The
operative portion of the order reads thus.
ORDER Acting under Section 235 (2) of Cr.P.C. the accused by name Umesh @ Umesh Mogaveer S/o late Narayana is found guilty of and convicted for, the offences punishable under Section 302, 392, 201 of IPC .
Judgment is deferred to hear on sentence. The accused is taken into custody.
(Krishnamurthy R. Padasalgi,), LV ACC&SJ, Bangalore (CCH-56) 77 S.C..No.84/2012 Order on sentence passed and pronounced in the open court. The operative portion of the order reads thus.
ORDER The accused is convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.5 lakhs (Rupees five lakhs only), in default he shall undergo Simple Imprisonment for two years for the offence punishable under Section 302 of IPC.
Acting under Section 357 (1) of Cr.P.C. out of fine amount, a sum of Rs.4,50,000/- (Rupees Four lakhs fifty thousand only) be paid to PW 2 Sri.Ramesh, who is the husband of deceased Smt.H.S.Savitha after its realization and remaining Rs.50,000/- (Rupees Fifty thousand) shall be paid to State Exchequer.
The accused is convicted and sentenced to undergo rigorous imprisonment for Five years and to pay a fine of Rs.2 lakhs (Rupees two lakhs only), in default he shall undergo SI for 6(Six) months, for the offence punishable under Section 392 of IPC.
Acting under Section 357 (1) of Cr.P.C. out of fine amount, a sum of Rs.1,00,000/- (Rupees one lakh only) be paid to PW 2 Sri.Ramesh, who is the husband of deceased Smt. H.S.Savitha after its realization and remaining Rs.1,00,000/- (Rupees one lakh only) shall be paid to State Exchequer.
The accused is also convicted and sentenced to undergo rigorous imprisonment for Two years and to pay a fine of Rs.1,00,000/- (Rupees one lakh only), in default he shall undergo SI for 6 (Six)months, for the offence punishable under Section 201 of IPC.
Acting under Section 357 (1) of Cr.P.C. out of fine amount, a sum of Rs.50,000/- (Rupees fifty thousand only) be 78 S.C..No.84/2012 paid to PW 2 Sri. Ramesh, who is the husband of deceased Smt.H.S.Savitha after its realization and remaining Rs.50,000/- (Rupees fifty thousand only) shall be paid to State Exchequer.
All the substantive sentences of imprisonment shall run concurrently.
Acting under Section 428 of Cr.P.C. the period of detention undergone by accused as under trial prisoner is set-off against the substantive imprisonment awarded to accused for the offences punishable under Section 392 and 201 of IPC only.
The bail bonds and surety bonds shall stand cancelled. The custody of MO 3 & 4 granted to PW 2 - Sri.S.T. Ramesh is made absolute after appeal period. The MO5 to 7 are identified by PW 2 -Sri. S.T. Ramesh in the course of evidence and the same are given to his custody after appeal period is over..
Custody of Vehicle bearing no KA02 EW 1634 granted to Jagadish .R is hereby made absolute after appeal period.
MO1 - Key, MO2 - photograph, MO8 - Pettycoat, MO9 - Red blue colour saree, MO.10-Blouse, MO11- Bra, MO12- Towel, MO13 & 14 -two Gunny bags, MO15 - plastic bag & MO16 - pair of keys are worthless ordered to be destroyed, after appeal period is over.
Furnish free copy of Judgment to Accused forthwit.
(Krishnamurthy R. Padasalgi,), LV ACC&SJ, Bangalore (CCH-56)