Karnataka High Court
Prashanth. M vs State Of Karnataka on 22 February, 2024
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CRL.A No. 1362 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1362 OF 2017
BETWEEN:
PRASHANTH M.
S/O MARAPPA
AGED ABOUT 35 YEARS
R/O KODALIPURA
ANEKAL - 562 106.
...APPELLANT
(BY SRI S. SHANKARAPPA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY ATTIBELE P.S.
REPRESENTED BY S.P.P.
HIGH COURT COMPLEX
BENGALURU - 560 001.
...RESPONDENT
Digitally signed by (BY SRI VIJAYAKUMAR MAJAGE, S.P.P.-II)
MOUNESHWARAPPA
NAGARATHNA
Location: HIGH
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
COURT OF CR.P.C T PRAYING TO SET ASIDE THE JUDGMENT OF SENTENCE AND
KARNATAKA
CONVICTION DATED 12.06.2017 PASSED BY THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU IN S.C.NO.5010/2015 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 498(A) AND 302 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 27-11-2023, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE
VENKATESH NAIK T. J., PRONOUNCED THE FOLLOWING:
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CRL.A No. 1362 of 2017
JUDGMENT
This appeal is filed by the accused aggrieved by the judgment of conviction and order on sentence dated 12.06.2017 passed by III Additional District and Sessions Judge, Bengaluru Rural District, sitting at Anekal in S.C.No.5010/2015, whereby the trial Court convicted the accused for the offences punishable under Sections 302 and 498-A IPC.
2. The case of the prosecution in brief is as under:
The name of the deceased is Manjula. PW.1-Babu M. the brother of the deceased lodged a complaint on 17.07.2014 alleging that the marriage of deceased-
Manjula was performed with the accused on 16.08.2007 at ANR Kalyana Mantapa, Chandapura and after the marriage, the relationship of the accused and Manjula was cordial. Out of the wedlock, the accused and Manjula had two children, viz., Bhagawathi and Chiranth and thereafter the accused and Manjula were residing near Parthasarathi hospital, Thilaknagar, Attibele. After few years, -3- NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 misunderstanding started between the couple. Deceased- Manjula was working at M/s. Apotex company, Bommasandra and the accused was not having any avocation. Hence, he was opposing Manjula-his wife from going to work and he suspected the fidelity of deceased- Manjula. This aspect was informed by deceased Manjula to her parents and PW.1. Later, the accused insisted Manjula to bring additional dowry from her parents and PW.1. In this regard, on 17.07.2014, at 06.00 p.m., the accused took deceased-Manjula in a car from Attibele to Sarjapura road and next to Bidaraguppe Anjaneya temple, the accused took Manjula near a baniyan tree, assaulted and cut her neck with a knife, thus she succumbed to the injuries on the spot. In this regard, PW.1 lodged a complaint. This led to the registration of F.I.R and investigation.
3. In order to prove its case, the prosecution in all examined 15 witnesses as PW.1 to PW.15 and got marked 17 documents as per Exs.P1 to P17 and marked 14 -4- NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 material objects as per M.O.1 to M.O.14. Ex-D1 portion of statement of PW.7 and Ex-D2 certified copy of letter are marked on behalf of defence.
4. After evaluating the evidence, the trial Court came to the conclusion that the prosecution was able to prove its case beyond reasonable doubt and held the accused guilty for the offences punishable under sections 498-A and 302 of IPC. The main reasons assigned by the trial Court for convicting the accused is that the case is based on circumstantial evidence. The trial Court observed that the prosecution proved the alleged demand of dowry by the accused, ill-treatment and assault made by the accused and held that PW.1 has consistently stated about the ill-treatment and assault on deceased Manjula by the accused which in fact was informed to PW.1 by deceased Manjula when PW.1 visited the house of the accused to secure information about the educational loan from father of the accused. The trial Court further observed that the prosecution further relied upon the -5- NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 evidence of PW.4 the mother of deceased Manjula, who has stated about the ill-treatment meted out by the deceased at the hands of the accused for not bringing dowry from her parental house. Hence, the trial court observed that the testimonies of PW.1 and PW.4 corroborated with regard to ill-treatment and harassment made by the accused to the deceased during her life time. The trial Court also observed that, the prosecution proved the fact of physical and mental harassment made by the accused to deceased by the circumstantial witnesses viz., PW.5 to PW.7 who also corroborated the oral testimonies of PW.1 and PW.4. The trial Court further observed that the prosecution proved the last seen theory and PW.7 has categorically stated that deceased-Manjula was last seen alive in the company of accused prior to her death and later, he saw the dead body of deceased in front of the house of accused. The trial Court further observed that the seizure mahazar witnesses PW.7 and PW.8 have clearly stated that in their presence, the Investigating Officer recovered bloodstained knife MO.5, bloodstained -6- NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 shirt, pant and baniyan (MOs.6 to 8) and these witnesses have supported the case of the prosecution and as per FSL report Ex.P14, these articles were blood stained, but, the accused has not offered any explanation in this regard. The trial Court considering the motive behind the commission of murder of deceased Manjula, recovery of M.Os.5 to 8 blood stained knife and blood stained clothes of the accused and recovery of incriminating materials from the spot as per M.Os.1 to 4, held that the prosecution has been able to successfully prove that the accused committed the murder of deceased Manjula and he is guilty of the offence under Section 302 of IPC. The trial Court also observed that the oral testimonies of the prosecution witnesses is corroborated by the evidence of the Doctors. As per the medical evidence, the cause of death of deceased-Manjula was due to injuries on the neck. The motive behind the commission of murder of Manjula was due to non bringing of additional dowry from her parental house. The medical evidence and the evidence of circumstantial witnesses are supported by the -7- NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 spot and seizure mahazar witnesses. Hence, the trial Court convicted the accused.
5. We have heard the arguments of Sri S. Shankarappa, learned Senior Counsel for the accused and Sri Vijayakumar Majage SPP-II for the respondent-State.
6. Assailing the findings of the trial Court, Sri. S.Shankarappa, learned Senior Counsel for the accused argued that the prosecution is guilty of suppression of material evidence and has not come forward with the true version of the incident. The trial Court by wrongly relying upon the evidence of PWs.1, 2, 5 to 7, who are the interested witnesses and family members of deceased Manjula, without appreciating the fact that there is suspicion in the prosecution case and no motive on the part of the accused to commit murder of deceased, has convicted the accused.
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7. It is contended that the case of the prosecution is based on circumstantial evidence and it has failed to prove the entire chain of events, inspite of which, the trial Court has convicted the accused based on the uncorroborated testimonies of the witnesses. The trial Court wrongly pressed into service Section 106 of the Indian Evidence Act and failed to appreciate that the offence has taken place outside the house, hence no onus can be casted upon the accused to explain and in fact the burden is on the prosecution to prove its case beyond reasonable doubt, which the prosecution has failed to discharge it.
8. It is contended that even before the law was set into motion, the Investigating officer had been to the place of incident and started investigating into the matter, hence, the very complaint Ex.P1 is hit by Section 162 Cr.P.C. which is inadmissible in law, but, the trial Court went on to conclude that Ex.P1 is not hit by Section 162 Cr.P.C. by holding that the police had the responsibility to save the life, but, there is no evidence to the effect that -9- NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 the deceased was still alive, when the police received the information, hence, the trial Court by misreading the precedent of the Hon'ble Apex Court has come to an erroneous conclusion and has not examined Ex.P1- complaint in proper perspective.
9. It is contended that the trial Court erred in considering the sketch Ex.P7 prepared by the Engineer, wherein he has admitted in his cross examination that, he had prepared the sketch on the basis of the rough sketch prepared by him, but, the same is not endorsed on Ex.P7. Therefore, without producing the rough sketch, the primary evidence, which is the basis for preparing Ex.P7, said document is not admissible in evidence, but, this aspect is ignored by the trial Court. It is contended that, PW.7 is a relative and chance witness. PW.7 is a pancha to the spot mahazar-Ex-P2 dated 18.07.2014 and Ex.P7 sketch, wherein M.Os.1 to 4 were seized and he is also pancha to Ex.P3 dated 19.07.2014 for recovery of M.Os.5 to 8 from the house of the accused.
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10. Hence, it is to be noted that when PW.7 was available even before 28.07.2014, there was no reason as to why there was inordinate delay of 11 days in recording the statement of PW.7, which is not explained by the prosecution. Ex.D2 is the letter of communication between the official witnesses and the investigating agency which was confronted to PW.15-Investigating Officer and the Investigating Officer admitted this aspect, where the prosecution has suggested some improvements to be made in the statement of PW.7 with regard to he seeing the accused and the deceased at the relevant point of time, which clearly goes to show the false implication of the accused. The Investigating agency has failed to examine any independent witnesses to demonstrate the last seen theory. The statement of PW.7 was recorded after the arrest of the accused. The conduct of PW.7 of not disclosing his version till 28.07.2014 even though he met the Investigating officer prior to 28.07.2014 and not adequately explaining his presence at the spot creates a shadow of doubt on the evidence of PW.7.
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11. It is contended that PW.2 Dr. Anitha, who conducted autopsy on the dead body of deceased-Manjula, has deposed about three types of injuries on her body i.e., stab injury, incised injury and chop wound and opined that the said injuries could be caused with three different weapons. She further admits that all the three injuries could be caused by a single weapon also. She further admits that the chop wound could be caused by a heavy weapon like chopper, which clearly establishes that two views are possible, hence, the view favouring the accused has to be accepted. So also, MO.5- knife was not confronted to PW.2 Doctor to find out as to whether the injuries sustained by deceased Manjula could have been caused by MO.5. This important aspect is ignored by the trial Court. It is contended that, PW.11 received the complaint as per Ex.P1 and registered the FIR as per Ex.P11. The contents of the complaint, FIR, arrest memo and the evidence of PW.11 is contrary to the evidence of PW.1. Infact PW.1 has deposed in his examination-in- chief that when he had been to the police station to file a
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 complaint, by that time, the accused was already present in the police station, which clearly goes to show the conduct of the accused wherein soon after the incident came to his knowledge, he had been to the police station to file a complaint, the same is suppressed.
12. It is contended that the alleged incident took place on 17.07.2014 and complaint was lodged on the same day and it was in respect of cognizable offence, thus, the Investigating officer would have arrested the accused on the same day, but, the police have shown the arrest of the accused on 18.07.2014 at about 5.00 p.m., this circumstance creates a doubt as to whether any cognizable offence has taken place on 17.07.2014 or not. Further, there is delay in sending the FIR to the jurisdictional Magistrate. Even if the FIR is dispatched to the Court on 17.07.2014 at about 11.35 p.m., it has reached the Jurisdictional Court on 18.07.2014 at 11.00 a.m. This delay has not been explained by the prosecution and it creates a doubt on the prosecution case
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 and fabrication of first information. This aspect is not considered by the trial Court. It is contended that, as per column No.4 of inquest mahazar-Ex-P9, one Venkateshappa has last seen the accused along with deceased and non examination of said Venkateshappa is fatal to the case of prosecution and an adverse inference should have to be drawn since only a relative witness with regard to last seen(PW.7) is examined, but this independent witness-Venkateshappa is not examined. It is contended that there is no evidence on record to show that it is the accused, who shifted the body of deceased- Manjula from the scene of offence to the house of the accused.
13. It is contended that the trial Court based on assumptions and presumptions has come to a wrong conclusion that initially the accused shifted injured Manjula to Hospital for treatment, but, the trial court has not considered this aspect. Even if the voluntary statement of the accused is looked into, it discloses that it is the
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 accused who shifted deceased Manjula to the hospital and the body was still warm, but, the investigating agency has not investigated into this aspect of the matter and has suppressed the entire genesis of the crime, thereby, has falsely implicated the accused. It is contended that in order to prove the contents of Ex.P3, the prosecution has examined PW.8 and in his examination-in-chief, PW.8 has stated that the police went inside the room and brought the blood stained clothes, and, it was not seized at the instance of the accused, hence, the prosecution failed to prove the recovery, but this aspect is ignored by the trial Court.
14. It is contended that though PW.7 was a pancha to Exs.P2 and P3, which were drawn on 18.07.2014 and 19.07.2014, but nowhere has he whispered that he has last seen the deceased in the company of the accused on the day of the incident. It is further contended that PW.12 the Tahsildar, Anekal who conducted inquest panchanama as per Ex.P9 has stated that, PW.4 and PW.5 have not
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 given any statements before him, alleging that on 17.07.2014, PW.4 and her son(PW.1) had been to the house of accused, they saw dead body of Manjula and there were visible injuries on the neck of the deceased and on enquiry, she came to know that the accused took deceased-Manjula in a car to teach driving and he committed murder of Manjula and brought her dead body to the house of the accused. Further, PWs.1, 4, 5 and 7 have given their evidence in exaggerated manner. Their evidence is full of omissions, contradictions and inconsistencies. Their omissions are proved by the evidence of PW.15 Investigating Officer. Exs.D1 and D2 are also proved through the evidence of PW.15. The prosecution has failed to produce the blood group of the accused, as it plays a very important role to conclusively connect the blood stained clothes of the accused with the blood group of deceased Manjula. But in FSL report, the blood group is shown as 'A' group. Therefore, the prosecution has failed to explain the difference that arose in the blood group. It is contended that PW.7 is a planted
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 witness and his evidence is interested in nature. The trial Court has not considered the statement of the accused while recording his statement under Section 313 Cr.P.C., defence version and the contents of Ex.D1 and Ex.D2. On all these grounds, learned counsel prayed to allow the appeal and to set aside the judgment of conviction and sentence passed by the trial Court.
15. The learned counsel relied upon the following decisions:
1. GARGI Vs. STATE OF HARYANA reported in (2019) 9 SCC 738;
2. PRAKASH Vs. STATE OF KARNATAKA reported in (2014) 12 SCC 133;
3. RAJ KUMAR SINGH ALIAS RAJU ALIAS BATYA Vs. STATE OF RAJASTHAN reported in 2013 CRI.L.J.3276;
4. SUJIT BISWAS Vs. STATE OF ASSAM reported in 2013 CRI.L.J.3140;
5. DHANNA, ETC Vs. STATE OF M.P reported in AIR 1996 SCC 2478;
6. H.C.KARIGOWDA @ SRINIVASA AND OTHERS Vs. STATE OF KARNATAKA, BY HOLENARASIPURA TOWN POLICE reported in ILR 2013 KAR 992;
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7. SUBHASH Vs. STATE OF HARYANA reported in (2011) 2 SCC 715; and
8. RINKU Vs. STATE OF MADHYA PRADESH reported in 2023 SCC Online MP 261 and
9. JAIKAM KHAN V. STATE OF UTTAR PRADESH, reported in (2021) 13 SCC 716.
16. Per contra, Sri Vijayakumar Majage, learned State Public prosecutor-II for respondent-State submits that PW.1 and PW.4 being the brother and mother and PW.5 to PW.7 being the relatives of deceased-Manjula have clearly stated about the incident. PW.7 who has last seen the deceased in the company of accused on the day of the incident has categorically stated about the incident and PWs.1 and 4 have stated about the motive aspect, such as, the accused was questioning the fidelity of the deceased, he was demanding dowry from her parents and PW.1 and the harassment given by the accused to deceased Manjula in respect of deceased securing a Government job as a Drug Inspector and accused being jobless and frequently demanding money from Manjula. PWs-1 and 4 have stated that they saw visible injuries on
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 the neck of deceased. The oral testimonies of these witnesses is strengthened by the medical evidence. M.Os. 1 to 4 were recovered from the spot and M.Os 5 to 8 were recovered at the instance of accused from his house under Exs-P2 and P3 panchanamas. Further, M.Os.1, 3 to 8 were blood stained. The recovery mahazar witnesses PW.7 and PW.8 have categorically stated that the Investigating officer has seized these articles in their presence. Hence, the manner of recovery is also proved. PW.14 - The Scientific Officer has clearly stated that except M.O.2, M.Os.1, 3 to 7 were blood stained as per Ex.P14 FSL report. The motive for commission of murder of deceased Manjula was non-bringing of additional dowry from the parental house of deceased-Manjula and said aspect has been proved by the evidence of PW.1 and PW.4. It is contended that as per the evidence of PWs.7, 8 and 11, the police have recovered M.Os.5 to 8 at the instance of the accused, when he was in custody of the police and therefore the recovery of M.Os.5 to 8 viz., a knife, shirt, pant and baniyan were recovered at the instance of
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 accused and same were proved, which is in accordance with Section 27 of the Indian Evidence Act, 1872. It is contended that there is sufficient material placed on record against the accused to show that he had intention to commit the offence. The evidence of the prosecution witnesses coupled with recovery of incriminating articles clearly establishes the guilt of the accused and there is ample evidence against the accused and no interference is required by this Court. Hence, he prayed to dismiss the appeal filed by the accused.
17. We have perused the entire evidence both oral and documentary and considered the points of arguments.
18. From the evidence of PWs.1, 2, 5, 7 and 12, what we find from their examination is that the accused married Manjula on 16.08.2007. After the marriage, the relationship of accused and deceased was cordial for couple of days and thereafter, the accused started to harass the deceased to bring additional dowry from her parental house. On 17.07.2014, at 6.00 p.m., the accused
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 took deceased Manjula in the car of the accused on the pretext of teaching car driving from Attibele towards Sarjapur road near Bidaraguppe Anjenaya temple, at that time, PW.7-chance witness saw the deceased in the company of the accused. Thereafter, the accused assaulted the deceased and cut her neck with M.O.5-knife. Hence, she succumbed to the injuries on the spot. Thereafter, the accused brought the dead body of deceased Manjula to his house and he went to police station.
19. Therefore, the prosecution case rests squarely on circumstantial evidence. The Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116, has held at para 153 wherein a close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:-
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1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
3. The circumstances should be of a conclusive nature and tendency,
4. They should exclude every possible hypothesis except the one to be proved;
and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.
20. It can thus clearly be seen that it is necessary for the prosecution that circumstances from which the conclusion of the guilt is to be drawn should be fully established. In the light of these guiding principles, we
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 have to examine the present case. The trial court has relied on the following circumstances:-
a. Homicidal death of deceased Manjula, b. Motive, c. Deceased last seen together with the accused, d. Recovery of knife and clothes of the accused, e. Section 106 of Indian Evidence Act, and f. Extra-judicial confession of the accused before police.
21. In order to prove the homicidal death of deceased Manjula, the prosecution examined PW.2 Dr. Anitha, who conducted autopsy on the dead body of deceased Manjula. PW.2 has stated that she conducted the post mortem on the dead body of deceased Manjula on 18.07.2014 in between 12.40 p.m. to 2.40 p.m. alongwith Dr. B.S. Ramachandrappa (CW-21) and found the following injuries:-
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1. Abrasion on left half of face below left eye present reddish blue in colour one day old.
2. Incised wound on left cheek 5 cm long x 1/2 cm wide x skin deep with tailing of wound with dried blood around about one day old.
3. Stab injury in the right axilla 1 cm long x half cm about 2 inches deep extending upto right scapula with the chipping of the lateral border. Wound is flame shaped with one edge sharp and other edge round.
4. Stab injury on centre of right breast 1 cm long x 0.5 cm wide x 1 cm deep, one edge of wound rounded and other edge sharp.
5. Stab injury on the centre of lower part of the chest 1 cm long x 0.5 cms wide x 1 cm deep with tailing of wound present..
6. Stab injury on the abdomen with left side of abdomen 1.3 cm below left breast, 3cm long x 1 cm wide x abdominal organ deep touching the spleen tailing of wound present.
7. Stab injury 2 cm below the above injury, 1cm long x ½ cm wide x 1 cm deep.
8. Chop wound on the centre of the neck cutting the trachea, esophagus and all major blood vessels, 10 cm long,5 cm wide at centre and 3 cm wide on both sides with 3 cm deep with bone depth with chipping of the cervical spine posteriorly with ragged edges and tailing of wound on both sides.
As per the opinion of the Doctor, death of deceased Manjula is due to shock and haemorrhage due to multiple injuries sustained. Hence, she issued post mortem report as per Ex-P6. PW.2 opined that injuries mentioned in
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 Ex-P6 may be caused with a heavy weapon like chopper, is believable.
22. The prosecution in order to ascertain the visible injuries on the person of deceased examined PW.9 Smt. Manjula. She has stated that she saw dead body of deceased Manjula in Anekal Government Hospital on 18.07.2014. She has also seen injury on the neck of the deceased and stab injury on the chest, scratch marks on shoulders. The Investigating Officer conducted inquest panchanama as per Ex-P9 in her presence. Further, the prosecution relied upon the evidence of PW.12 Manohar Jyothi, Special Tahsildhar, Anekal who conducted inquest panchanama on the dead body of Manjula as per Ex-P9 in presence of PW.9 and other witnesses. PW.12 corroborates the oral testimony of PW.9 with regard to injuries on neck, shoulder and chest. Therefore, the oral evidence of PW.9 and PW.12 is supported by the medical evidence. Contrary to this evidence, the accused has not placed any material to establish that the death of deceased Manjula was not
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 homicidal one. Hence, the prosecution proved the death of Manjula as homicidal one.
23. So far as motive is concerned, it is well settled law that in a murder case based on circumstantial evidence, 'motive' acts as an additional link in the chain of circumstances. In this case, there are no eyewitnesses to the incident, hence, motive fortifies all the incriminating circumstances against the accused and lends circumstantial corroboration.
24. The prosecution in order to prove the aspect of motive, has examined PWs.1 and 4, the brother and mother of deceased respectively. PWs.1 and 4 have stated that at the time of marriage of Manjula with the accused, the accused was given dowry in the form of cash and gold articles. Thereafter, the couple lived happily for some time and Manjula continued her studies even after marriage. Deceased Manjula secured a job in a private company and thereafter the accused left the job. The accused started pestering for money from Manjula and he
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 used to assault her. The accused also suspected the fidelity of his wife and he was also addicted to bad vices. There were frequent quarrels between the accused and deceased Manjula. As deceased Manjula had secured a Government job, the accused pressured her to quit the job. Thereafter, one week prior to the date of the incident, the deceased had telephoned her mother stating that accused had assaulted her, due to which, she is unable to hear properly. Thereafter, PW-1 son of PW.4 informed her to come to Attibele and they found the dead body of Manjula in front of the house of accused. The people who had gathered informed that the accused took deceased Manjula in the car on the pretext of teaching driving to her and committed her murder. Therefore, it is to be held that the accused being addicted to bad vices and unemployed, developed animosity against deceased Manjula and had premeditated to commit her murder. Further, PW.7 Muniraju, a chance witness has stated about the strained relationship between the accused and Manjula and about the frequent demands by the accused to deceased Manjula
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 to bring money from her parental house. Contrary to the evidence of PWs.1, 4 and 7, to disbelieve that there was no intention on the part of the accused to commit the crime, the defence has not placed any material to disprove the prosecution case. Thus, the prosecution has proved the motive of the accused in committing the crime.
25. The third ground on which the prosecution has placed reliance is the 'last seen theory'. The last seen theory comes into play where the time gap between the point of time when accused and the deceased were last seen alive near Bidaraguppe bus stand and when the deceased was found in the car with the accused is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Further, PW.7 saw the deceased in the company of the accused and she was driving the car near Bidaraguppe village. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in that
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 event. In this case, there is positive evidence that the deceased and accused were seen together in a car by witness PW.7. He has stated that on 17.07.2014 at about 6.10 p.m., he came to Bidaraguppe bus stand in a bus and went towards Gada Anjenaya temple, he saw the accused and deceased Manjula in a car, Manjula was driving the car bearing No.KA-51-N-4173. At that time, Manjula saw PW.7 and smiled, he also smiled at her and later he went to the temple and after performing pooja, he returned at 6.30 p.m. to his village. His further evidence is that on the same day, at 8.30 p.m., one Devegowda called over phone and asked him to visit his house. As soon as he went to the house of Devegowda, he came to know about the death of Manjula. Therefore, PW.7 telephoned PW.1 and informed about accused and Manjula going in a car at 5.30 p.m. together near Bidaraguppe bus stand and death of Manjula. His further evidence is that he went to the house of the accused, where he saw the dead body of Manjula and also visible injury on the neck of the deceased. He informed the persons present in front of
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 house of the accused about the accused and deceased going in a car near Bidaraguppe bus stand. In the cross examination, nothing is elicited from his mouth to discredit his testimony.
26. Further, the prosecution relied upon the evidence of the Investigating Officer-PW.15, who has stated that he seized the car used for the commission of the offence from the house of the accused. The recovery of the car and blood stains found in the car further strengthens the fact that deceased Manjula was last seen in the company of the accused and there was possibility of no other hypothesis other than the accused being present at the place of incident.
27. Therefore, the prosecution is able to establish that the accused took Manjula in a car and her dead body was brought to the house of the accused. Thus, the prosecution is able to prove the last seen theory, place of occurrence and seizure of car from the house of the accused, which are additional links in completing the chain
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 of circumstances. In this case, there is positive evidence to conclude that the accused and the deceased were last seen together.
28. So far as recovery of material objects is concerned, the prosecution relied upon the evidence of PWs.1 and 7. They have stated that the Investigating Officer conducted spot panchanama as per Ex-P2 near Bidaraguppe Kodi and collected blood stained mud(M.O.1), sample mud(M.O.2), two plastic chappals of accused(M.O.3), two black colour chappals of deceased (M.O.4) under Ex-P2. To corroborate the oral testimonies of PWs.1 and 7, PW.15 the Investigating Officer has also stated that on 18.07.2014, in between 1.00 p.m. to 1.45 p.m., he conducted spot panchanama at Bidaraguppe lake(Kodi) as per Ex-P2 in the presence of PWs.1 and 7 and seized M.Os.1 to 4. Hence, the evidence of PW.15 is corroborated by the oral testimonies of PWs.1 and 7 about he drawing spot panchanama in their presence and seizure of M.Os.1 to 4.
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29. Sofar as seizure of M.O.5 blood stained knife, M.O.6 blood stained shirt, M.O.7 blood stained black pant, M.O.8 blood stained baniyan are concerned, the prosecution relied upon the evidence of PWs.1, 7, 8 and
15. They have stated that on 19.07.2014, the Investigating Officer called them to the police station, at that time, the accused was in the custody of the police. Investigating Officer secured PWs.7 and 8 as panchas, thereafter, the accused led PWs.1, 7 and 8 to the house of the accused and he showed blood stained knife, shirt, pant and baniyan(M.Os.5 to 8) underneath the cot of his bedroom. Further, PWs.1, 7 and 8 have consistently stated that on the same day, the accused showed his Alto car bearing registration No.KA-51-N-4173 which was used for the commission of the offence. Thus, the Investigating Officer seized M.Os.5 to 8 and a Maruti Alto car under Ex-P3 seizure panchanama. Hence, the prosecution is able to prove the recovery of blood stained clothes of the accused, a knife and a car used for the commission of the offence. The accused has not placed any material to show
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 that there was any irregularity in seizure of M.Os.5 to 8 and the car, which would prejudice his right. In the absence of such contrary material, we can safely come to the conclusion that the seizure of M.Os.5 to 8 and the car in presence of PWs.1, 7 and 8 by the Investigating Officer is in accordance with law.
30. So far as FSL report is concerned, the prosecution relied upon the evidence of PW.14 Dr. Chandrashekar. He has consistently stated that on 25.08.2014, he received in all 14 articles from the Investigating Officer and examined said articles and ascertained that except item No.2 shown in FSL report (sample soil-M.O.2), rest of the articles are stained with 'A' blood group. Hence, he issued his report as per Ex-P14. From the perusal of Ex-P14- FSL report, blood stains were detected in M.Os.1, 3 to 14. The blood stains found in item Nos.1, 3 to 14 are of human origin and 'A' group blood. From the perusal of Ex-P14 FSL report, M.Os.9 to 14 clothes pertaining to deceased Manjula were stained with
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 'A' group blood. Further, M.Os.6 to 8 clothes pertains to the accused. The presence of blood stains was detected in M.Os.6 to 8 and the blood stains found in M.Os.6 to 8 are of human origin and pertain to 'A' blood group.
31. In the circumstances, we can safely rely on the version given by PWs.1, 7, 8, 14 and 15 with regard to recovery of a knife, blood stained clothes of accused and deceased and the recoveries of these articles are in accordance with law. The accused has not placed any material to show that there was irregularity in collecting M.Os.1 to 14 and it has prejudiced his right.
32. There is another feature in the evidence touching upon the involvement of accused and it is recovery of a knife at the instance of the accused. In the absence of any material by the accused, the trial court considered the theory that such recovery would be admissible under Section 27 of the Indian Evidence Act, 1872. Thus, the version given by PWs.1, 7, 8, 14 and 15 being worthy to be relied upon, we have also considered the evidence of
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 recovery of a knife, other incriminating articles and the evidence of the aforesaid witnesses.
33. So far as, invoking section 106 of the Indian Evidence Act, the prosecution must first establish that there was any fact within the special knowledge of the accused. In this case, the accused and deceased Manjula were travelling in a car and the death occurred in the evening of 17.07.2014 at 6.00 p.m. and the last seen witness PW.7 has categorically stated he saw deceased Manjula in the company of the accused while she was driving the car of the accused near Bidaraguppe bus stand and thereafter he saw the dead body of the deceased in front of house of the accused. The factum of death of deceased Manjula was within the knowledge of the accused, but, the accused failed to explain the circumstances as to how the deceased sustained injury on her neck as shown in Ex-P6 post mortem report. PW.2 Dr. Anitha opined that death is due to shock and haemorrhage due to multiple injuries sustained. It has
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 already been held that the death of Manjula is homicidal. The evidence on record also discloses that the incident had occurred in the car and the dead body of deceased Manjula was brought in front of house of the accused and there is possibility of no person other than the accused to have remained in contact with deceased Manjula. The Investigating Officer seized blood stained knife and clothes of the accused from the house of the accused on the basis of the voluntary statement of the accused. Further, the accused has not explained as to how his clothes were stained with 'A' group blood. The fact that M.O.5 knife and M.Os.6 to 8 clothes of the accused were stained with 'A' group blood was within the knowledge of the accused, hence, the burden shifts on him to explain, but he failed to explain the same.
34. Except bare denial in his statement under section 313 Cr.P.C., the accused has not offered any explanation as to how deceased Manjula sustained abrasions, incised wounds, stab injury, chop injuries etc., as per Ex.P6 post
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 mortem report. Obviously, this circumstance goes against him. Section 114 of the Indian Evidence Act empowers the Court to presume the existence of any fact which it thinks is likely to have happened. From the perusal of evidence on record, the only reasonable inference that could be drawn is that the accused alone committed the murder of deceased Manjula.
35. Having bestowed thoughtful consideration of the rival submissions and taking into account the totality of the circumstances, though there are some discrepancies in the investigation done by the Investigating Officer and the statements of the witnesses, but, those discrepancies cannot go to the very root of the case. If investigation is suspicious, rest of the evidence must be scrutinized independently on the impact of the faulty investigation. Further, the accused cannot be acquitted on the sole ground of irregularities in the investigation and mere defect in the investigation cannot vitiate the trial. If the Investigating Officer caused delay in questioning the
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 witnesses, it would not necessarily make the prosecution version doubtful. If the Investigating Officer has not questioned the witnesses within a reasonable time, disbelieving the prosecution witnesses on that score, is improper. Further, the delay in questioning the crucial witness viz., PW.7 may not necessarily lead to create doubt regarding the veracity of the prosecution case. Unless, the Investigating Officer was specifically cross examined on this aspect, defence cannot derive any advantage.
36. Further more, the fact that deceased was working in a company and she was appointed as a Drug Inspector in the Government Department and the accused being jobless at the relevant time, this led the accused to develop ill-will against deceased Manjula and it becomes a strong animosity between the two, appears to be highly probable.
37. In the present case, there is definite evidence of last seen as also the fact that there is no such long time
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 gap between the last seen and the dead body found in front of the house of the accused and the fact that the accused voluntarily surrendered before the police and gave his extra-judicial confession before them prior to registration of the case. Hence, the act of the accused is corroborated by the evidence of the prosecution witnesses and the chain of circumstances is complete that the only inference that could be drawn is the guilt of the accused.
38. In the case of Sharad Birdhichand Sarda's case referred supra, the Hon'ble Supreme Court held that in a case based on circumstantial evidence, the chain has to be complete in all respects so as to indicate the guilt of the accused and also exclude any other theory of the crime.
39. Learned counsel for the accused relied upon Gargi's case cited supra. In Gargi's case, the wife strangulated the husband to death and dead body was hanged in room of their house to show it as suicide. Whereas in this case, the accused took the deceased in a
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 car on the pretext of teaching car driving and a quarrel took place between them and ultimately, accused assaulted deceased with a knife and caused her death. The principles laid down in Gargi's case are correct, but is not applicable to the case on hand.
40. Learned counsel relied upon Prakash's case, wherein the Hon'ble Apex Court acquitted the accused on the ground of absence of Test Identification parade, identification of accused after four and half years, suspicion in finger print evidence and recovery of blood stained clothes of the accused and deceased, thus, the Hon'ble Apex Court acquitted the accused. Whereas in the instant case, conduct of Test Identification Parade and identification of the accused is not at all necessary. In this case, the prosecution is able to prove the seizure of blood stained clothes of the accused and the deceased. Therefore, the decision is not applicable to the case on hand.
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41. The learned counsel relied upon Rajkumar's case cited supra, wherein the Hon'ble Apex Court held that the incriminating circumstances appearing in the prosecution witnesses was not put to the accused under section 313 Cr.P.C., the same cannot be used against him and have to be excluded from consideration and it cannot be treated as evidence under section 3 of the Indian Evidence Act. Whereas in this case, the trial court has put all incriminating circumstances appearing in the prosecution evidence to the accused, hence the decision cited supra is not applicable to the case on hand.
42. Learned counsel relied upon Sujit Biswas's case cited supra, wherein the Hon'ble Apex Court held that if two views are possible, benefit of doubt must go to the accused. Whereas, in this case, the prosecution proved beyond reasonable doubt all the circumstances and it was consistent only with the hypothesis of guilt of the accused. Therefore, the question of raising two views would not arise.
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43. Learned counsel for the appellant relied upon the decision in the case of Rinku's case, wherein the High Court of Madhya Pradesh held that if there is delay in examination of the eye witnesses, the accused is entitled for acquittal. From the perusal of the evidence of PW.7, the Investigating Officer has recorded the statement belatedly, however, PW.7, a last seen witness has not stated anything else than the version in Ex-P1 complaint. The delay in recording the statement of PW.7 by the Investigating Officer cannot be blamed as the statement was recorded after some days. Further, the oral testimony of PW.7 cannot be discarded on account of delay alone. The delay on the part of the Investigating Officer in questioning PW.7 does not necessarily make the prosecution witnesses suspect. Further, the delay in questioning the important witnesses like PW.7 may not necessarily lead to create doubt regarding the veracity of the prosecution case.
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44. Learned counsel relied upon the case reported in Jaikam Khan's case, wherein the Hon'ble Apex Court held that if the prosecution fails to prove the motive and corroborative evidence and relies upon only related eye witnesses, under such circumstances, the accused must be acquitted. In this case, the prosecution relied upon related witnesses as well as independent witnesses and official witnesses. Their oral testimonies inspire the confidence of the Court. There is no dispute that the principles enumerated in the other decisions cited supra, but those decisions are not applicable to the present facts of this case.
45. Therefore, it would be safe to sustain the conviction of the accused on such evidence, where the chain is clearly complete. That apart, the prosecution is able to prove the motive, blood stained articles seized from the spot(M.Os.1 to 4), knife(M.O.5), recovery of blood stained clothes of the accused(M.Os.6 to 8) and blood stained clothes of the deceased(M.Os.9 to 14) and
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NC: 2024:KHC:7838-DB CRL.A No. 1362 of 2017 same is corroborated by the medical evidence and FSL report(Ex-P14). Looking into the facts and circumstances of the case, we are of the opinion that the accused has committed the offences under sections 302 and 498A IPC. Hence, the trial court has rightly convicted the accused for the offences under sections 302 and 498A IPC. Hence, no interference is called for.
Thus, we proceed to pass the following:-
ORDER
1. The appeal is dismissed.
2. The judgment of conviction and sentence dated 12.06.2017 passed by III Addl. District and Sessions Judge, Bengaluru Rural District, sitting at Anekal in S.C.No.5010/2015 is confirmed.
3. The trial court is directed to secure the accused and issue conviction warrant to serve the sentence.
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4. The bail bond of accused and his surety stands cancelled.
5. Registry is directed to send trial court records forthwith, with a copy of the judgment.
Sd/-
JUDGE Sd/-
JUDGE MN List No.: 1 Sl No.: 1