Karnataka High Court
Prakash vs The State Of Karnataka on 13 January, 2018
Author: K. N. Phaneendra
Bench: K. N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2018
PRESENT
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
AND
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
CRL.A. NO. 1212/2012
BETWEEN
PRAKASH
S/O BADRACHARI@RACHA CHARI,
AGED ABOUT 28 YEARS,
R/AT THOREBOMMANAHALLI VILLAGE,
MADDUR TALUK,
MANDYA DIST.
... APPELLANT
(BY SRI.B.S.PRASAD., ADV.)
AND
THE STATE OF KARNATAKA
REPRESENTED BY
BELAKAVADI POLICE STATION. ... RESPONDENT
(BY SRI. VIJAY KUMAR MAJAGE, ADDL. SPP)
THIS CRL.A IS FILED U/S 374(2) CR.P.C.
PRAYING TO SET ASIDE CONVICTION AND SENTENCE
DTD:08.09.2010 PASSED BY THE P.O., F.T.C.-1,
MANDYA IN SC.NO.54/2008 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 302 OF
IPC ETC.
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THIS CRL.A COMING ON FOR HEARING THIS
DAY, K.N. PHANEENDRA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant is the sole accused in S.C. No.54/2008 on the file of the Fast Tract Court-I at Mandya. Being aggrieved by the judgment of conviction and sentence dated 08.09.2010 passed under Section 302 of IPC against him by the said Court, he has preferred this appeal.
2. The trial Judge has convicted the accused person and sentenced him to undergo imprisonment for life and also to pay fine of Rs.10,000/- for the offence punishable under Section 302 of IPC and in default of payment of fine, to further undergo imprisonment for six months.
3. We have heard the arguments of Sri. B.S. Prasad, the learned counsel for the appellant and Sri.Vijay Kumar Majage, learned Additional S.P.P. for the Respondent -State. We have carefully evaluated the evidence on record.
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4. The brief factual matrix of the case that, emanate from the records is that, one Rachachar, Son of Siddachar has lodged an information as per Ex.P1, wherein it was categorically stated that, on 24.05.2007 at about 12.30 in the noon he received a phone call from his brother, who informed that, their mother died in Hosahalli Village of Malavalli Taluk. Immediately, he went to the said village and found the dead body of his mother in the hind portion of the house and it was in decomposed state. It is stated that, on 22.05.2007 the complainant's father (Rachachar) and his youger brother (Gurusidda) had been to Dhangur Village. On that day, the mother (deceased) of the complainant was alone in the house. On 23.05.2007, the father and brother of the complainant came back to Hosahall Village and found the door of their house was locked from outside. Thinking that his mother might have gone to her daughter's house, they slept in the house of his another brother viz., Ningachari, who was staying separately at Hosahalli Village, on that day. Thereafter, on the next day ie., on 24.05.2007 in the 4 morning at 11.00 clock, when the father and brother of the complainant were plucking Pappaya Fruits, they observed emission of some filthy smell from their house. On opening the roof tiles of the said house, they found the dead body of the deceased inside their house. On receiving the said information and on seeing the dead body, the complainant filed FIR with the jurisdictional Police and the police have registered a case on the basis of such information in Crime No. 32/2007 and after thorough investigation, the police have laid a charge sheet.
5. During the course of investigation the police found that, the accused had actually visited the house of the deceased on the date of the death of the deceased, particularly on 22.05.2007. It is alleged that, taking advantage of the loneliness of the deceased Siddamma, on that day, the accused has committed the murder of the deceased by assaulting her with a spade on her head and thereafter, robbed gold ornaments which were worn by the deceased on that particular day. It is also the case of the prosecution 5 that, the accused has pledged those ornaments with some jewellars and obtained some money from them.
6. It is also the case of the prosecution that, for the purpose of wrongful gain, the accused has committed the murder of the deceased. Having found sufficient materials against the accused with regard to recovery of the gold ornaments at the instance of the accused and also recovery of spade used by the accused for committing the murder and also the surrounding circumstances with regard to the accused visiting the house of the deceased on that day, the prosecution has projected the case before the court against the accused. The accused denied the case of the prosecution and he pleaded not guilty, and claimed for trial.
7. In order to prove the guilt of the accused, the prosecution examined as many as 32 witnesses viz., PW1 to PW.34 and got marked Exs. P1 to P.30 and also the Material Objects - Mos. 1 to 9. Though the accused was also examined under Section 313 of Cr.PC., but he 6 did not plead for any defence evidence nor he has stated anything during the course of his statement except denying incriminating materials found in the evidence of the Prosecution Witnesses.
8. The court after hearing both the parties has drawn an inference that the accused has committed the said offence and accordingly convicted and sentenced him for the above noted offence.
9. Sri.B.S.Prasad, learned counsel for the appellant/accused has strenuously argued before the court that, the prosecution has failed to prove the circumstances which are projected by it before the trial Court. The prosecution has relied upon various circumstances. According to the prosecution, strongest circumstances are, the accused and the deceased last seen together and recovery of incriminating materials at the instance of the accused and as well as Finger Print Expert's report against the accused, apart from other minor circumstances. He further contends that, the above circumstances have not been proved beyond 7 reasonable doubt and there is no link between one circumstance to another and the prosecution has not established the completion of chain of circumstances. Therefore, he pleads for setting aside the judgment of conviction and sentence passed by the trial Court and consequently, to acquit the accused.
10. Per contra, the learned SPP has argued before the court that, though there are certain contradictions and omissions in the evidence of the witnesses with regard to recovery of articles at the instance of the accused and also the accused and deceased last seen together and the circumstances that the accused seen near the house of the accused on that particular day of the incident and as well the evidence of the Finger Print Expert and the Investigating Officer, nevertheless, on over all perusal of the entire evidence on record, the prosecution has proved the guilt of the accused beyond reasonable doubt. Therefore, there is no room for interference with the impugned judgment of conviction and sentence at the hands of this court. Hence, he pleaded for dismissal of the appeal. 8
11. We have carefully gone through the evidence of the prosecution witnesses and also the documents placed before the court. On over all perusal of the entire materials on record, the main circumstances, which the prosecution are that,-
i) Homicidal death of the deceased;
ii) The deceased alone in the house seen with the accused on that particular date of incident and another circumstance that the accused seen near the house of the accused at the specific time when the incident occurred; Two days before the date of incident, the accused and deceased last seen together and the dead body of the deceased found in her house;
ii) Recovery of gold chain, gold ear-studs and
spade at the instance of the accused;
iii) Extra-judicial confession of the accused before
the villagers.
v) Finger Print Expert's opinion with regard to the
thumb impression of the accused on the
incriminating materials/documents.
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Now, let us discuss about the circumstances noted above.
Reg: Homicidal death of the deceased:
12. There is no much dispute with regard to the homicidal death of the deceased, as during the course of cross-examination of the witnesses, it is not suggested that the deceased did not die homicidal death. On the other hand, the prosecution has established from the evidence of PW.1-Rajachari, that on 24.05.2007 he came back to the village and saw the dead body of his mother. After PW.1 seeing the dead body of his mother, he lodged a case with the Police. Initially, the police registered a case in UDR No.10/2007 under Section 174 (C) of Cr.P.C. and after receiving Post-Mortem Examination report, the Police have registered a crime in Crime No. 32/2007 under Section 302 of IPC.
13. Apart from the above, the prosecution has also placed the evidence of inquest witness PW.2- Rachappaji for consideration of the court. Though PW.2-Rachappaji gave distorted statement, but he has 10 categorically stated about Inquest Panchanama (Ex.P2), drawn on the dead body of the deceased. Ex.P2 discloses that the inquest has been conducted by the Investigating Officer in presence of the panch- witnesses. The evidence of PW.24 - Dr. N. Shashikala, who conducted Autopsy on the dead body of the Said Siddamma, had categorically state that the deceased had sustained fracture to the head and other injuries and due to hemorrhage and shock, the deceased died. Ex.P8 is the Post-Mortem report, which amply establishes that the deceased died a homicidal death. No cross-examination is adverted so far as the nature of the death of the deceased is concerned. Therefore, the prosecution has established that the deceased died a homicidal death.
Reg: The circumstance of the accused and deceased last seen together:
14. The next important circumstance is, the accused and deceased last seen together and deceased was alone at that particular point of time when the accused was seen with her. The prosecution has relied 11 upon the evidence of PW.19-Gowramma, PW.20- Rachappaji, PW.22-Naganna and PW.23-Gurusiddachari. PW.19-Gowramma has categorically deposed before the court that on the previous date of the incident, which was a Monday, she went to the house of deceased Siddamma and Siddamma was there in the house and this witness saw the accused in the house of the deceased in the after noon of Monday. She came back on that day, because, the said Siddamma told that her husband and son had been to Dhanguru Village to see her grand son. On the next day, that was happened to be Tuesday, this witness again went to the house of Siddamma, at that time also she saw the accused witnessing the television in the house of Siddamma. Except the accused and Siddamma no other persons were there in the house. The deceased Siddamma told PW.19-Gowramma that, the accused was demanding money and gold. Then PW.20 told the deceased not to give any gold or money because that day was happened to be Tuesday, not an auspicious day. Thereafter, PW.20 went back to her house. On the next day, ie., on 12 Wednesday, when this witness (PW.20) again went to call Siddamma, the front door was closed and backdoor was locked. She called Siddamma by her name several times, but there was no response from inside the house. Therefore, she suspected that Siddamma also might have gone to Dhanguru to see her grand son, thinking so, she went back. She further deposed that on the next day, ie., on Thursday, son and husband of the deceased Siddamma came to their house and they broke open the lock put to the house and found the dead body of Siddamma which was emitting foul smell. Therefore, this witnesses(PW.20) has categorically stated about the presence of this accused particularly, on the date of incident ie., on Tuesday at the house of the deceased Siddamma. Though she has not specifically stated about the date of incident, but she was very specific in her statement about the week days, that on Monday and Tuesday, the accused was very much present in the house deceased Siddamma.
15. Learned counsel for the appellant has strenuously contended before the court that, the 13 witness (PW.20) has not specifically stated about the date and further she has stated in the cross- examination that she has stated before the Police that she went to the house of Siddamma on Monday, Tuesday and Thursday, but it was not brought to the notice of the court that, whether this amounts to contradiction or omission from the mouth of the witness, because there is no further suggestion to this witness that she has not stated so before the Police. On the other hand, there is a specific suggestion made to this witness that the accused was even visited the house of the deceased, likewise on that day, he was also present in the house of the deceased talking to deceased. Therefore, it clearly discloses that, in the course of cross-examination, there is no much dispute with regard to the presence of the accused, on Monday and Tuesday, in the house of the deceased. Therefore, the last seen theory projected by the prosecution has been established by the prosecution.
16. Further, added to the above, other witness - Rachappaji (PW.20), is very specific about the time of 14 visit of the accused, when he had gone to the house of the deceased. He has categorically stated that, about two years ago on Monday at about 8.00 p.m. the son of the deceased viz., Gurusiddachari (PW.23) and accused were found near a shop belonging to one Lokesh. The husband and son of the deceased were proceeding towards Malavalli along with the accused. Thereafter, he specifically states that on Tuesday (next day) at about 3.30 in the afternoon, the accused went towards the house of Siddamma and he came back at about 4 or 4.30 p.m and went away towards Malavalli, and subsequently about three days later he also saw the dead body of the deceased in her house. Again in the course of cross-examination, similar suggestions have been put as put to PW.19-Gowramma. The over all analysis of the cross-examination shows that there is no denial with regard to the presence of the accused on that particular day near the house of the deceased. There is a specific suggestion put to this witnesses that on that day, ie., on 22.05.2007, the accused was there in the house of Siddamma, and it is a casual and usual 15 visit, and thereafter he went back. The witness (PW.19- Gowramma and PW.20-Rachappaji) have admitted the same and that goes to show that, the accused has no dispute with regard to he being visited the house of Siddamma at 3.30 p.m. and came back from the house at 4.30 p.m. because the suggestion is referable to the evidence elicited in the course of examination in chief as to at what exact time the accused had went to the house of deceased.
Reg: Extra judicial confession:
17. One more witness PW.22-Naganna, who also similarly speak about the fact that the accused had been to the house of the deceased at 3.00 p.m. of 22.05.2007. Again in the course of cross-examination, similar suggestion have been put that, the accused was oftenly visiting the house of the deceased and as usual on that day also he had been to the house of the deceased. This witness was also examined to establish the extra-judicial confession. Though this witness has stated that the accused had stated before the villagers 16 that, he has committed the murder, but it is very feeble in nature and the prosecution has not concentrated much with regard to said extra-judicial confession. These three witnesses, in fact, have categorically stated about the presence of the accused on that particular days and time in the house of the deceased, when the alleged incident had happened.
18. Learned counsel has strenuously contends before the court with regard to evidence of the Doctor (PW.24). He points out that, the time of death has not been spoken to by the Doctor. In Ex.P8 (P.M.Report) except the cause of death, time of death is not forthcoming. Of course that is the mistake committed by the Doctor. Merely because the Doctor has not stated about the time, nevertheless the evidence of these witnesses ie., the son of the deceased and other witnesses that the accused on 22.05.2007 was seen alone with the deceased and thereafter the dead body of the deceased found and on the next day that on 22.05.2007 onwards, nobody has seen the deceased alive. Therefore, with all human probabilities, the court 17 can draw an inference that the incident must have been happened on 22.05.2007 itself. Therefore, when the accused is a close relative of the deceased. it is his responsibility to explain as to how the deceased could not be seen from 23.05.2007, when she was last seen with the accused on 22.05.2007. Therefore, with all probabilities it can be safely said that the death must had been occurred on 22.05.2007 itself. Therefore, we are of the opinion that, the prosecution has established to that extent that, the death of the deceased has occurred on 22.05.2007, though not the time is surely stated by the prosecution.
19. PW.23- Gurusiddachari, who is none other than the son of the deceased has in fact stated that, on the date of death of the deceased, they were not present in the village and they had been to Dhanguri Village and in fact they have seen the accused on the way to Malavalli and accused also assured that he would also come to Dhanguri on the same day, but he did not go there. On the other hand, the accused was found in the house of the deceased. The accused is the only 18 person to be suspected by his conduct on the basis of the above narrated circumstances, that accused must had committed the offence as alleged by the prosecution. Therefore, looking to the evidence of the above said prosecution witnesses, it is clear that the prosecution has proved the case amply with the evidence before the court in showing that, the accused was very much present in the house of the deceased on the date of incident and specifically on the date of death of the deceased. Therefore, we can safely hold that the prosecution has proved this particular strong circumstances against the accused.
Reg: Recovery of Incriminating Articles:
20. The next point is regarding recovery of incriminating article viz., ornaments at the instance of the accused and it is virtually an adventure of the prosecution case, because properties which were seized in this particular case, i.e., gold chain and gold ear studs which were worn by the deceased on the date of the death were specifically identified by the witnesses, particularly PWs. 1 and 6, who are the son and husband 19 of the deceased. There is no cross-examination with regard to the identification of these ornaments that those belonged to the deceased.
21. It is worth to refer the evidence of PW.1 who has categorically stated that the articles which were marked before the court as MOs. 1 to 6 belonged to his mother, out of which, MO.2 (Gold two row Chain) and MO.3 (one pair ear stud ) were said to have been recovered at the instance of the accused. Though this witness was cross-examined, a short cross-examination was adverted to, but no where in the course of cross- examination, this particular aspect has been touched upon. It clears out the doubt that, the ornaments belonged to the deceased were properly identified by PW.1. In this background, the recovery of ornaments by the accused play a dominant role.
22. Now we will take-up recovery of articles one by one.
First of all, the article which marked as MO.2 was a gold chain. The accused has pledged the same with 20 PW.9 (Nenaram), the owner of Jewellary shop. The Investigating Officer (PW.31) has categorically stated in his evidence that, soon after the arrest of the accused, his voluntary statement has been recorded as per Ex.P20 and the accused has disclosed about pledging of the articles in connection with this case. Thereafter the Police have secured the panchwitnesses and proceeded to recover the same. In this background, PWs. 9, 10, 11, 12 and 13 are the important witnesses, who connect the accused to the recovery with reference to MO.2.
23. PW.9-Nenaram has stated that on 24.05.2007, the accused had been to the shop of this man and pledged one Mangalasutra of two rows with this witnesses and taken Rs. 5,150/- and at that particular point of time, he has taken the Thumb Impression of the accused on receipts marked at Exs.P5 and P6, which are xerox copies and the Originals are marked at Exs. P28 and P29. He also states that the Police have drawn mahazar as per Ex.P9 and recovered the articles at the instance of the accused and the 21 accused was also present at that particular point of time. In the course of cross-examination, he reiterated with regard to identification of the accused specifically denying the suggestion that because of out of many number of visitors to his shop of this man, how the shop owner can identify the accused specifically. It is very specifically suggested to this witness that when the police actually had taken the accused to the shop of this witness, he told that the accused alone has pledged these articles and therefore, on force of the police, he is deposing falsehood, it clearly makes-out a case that the police took the accused to the shop and draw-up the mahazar as per Ex.P9 and taken these articles from the custody of this petitioner. There is no reason to disbelieve this witness and as to why this man has to make a false allegation against the accused without there being any animosity or interest. Actually if he give false evidence before the court, then he will be losing his loan money paid to the accused as well as the ornaments.
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24. Other witnesses viz., PWs. 10, 11 & 12 have also fully corroborated the evidence of PW.9. PW.10- S.Raghu has identified MO.2 and also admitted his signature on Ex.P9 and also presence of the accused on that day. Though some questions have been put to this witness, that no notice has been issued to him calling him to attend the manazar proceedings, but in the course of cross-examination it is suggested that on that day at 3.00 p.m., when the police drew up mahazar, only Police Inspectors and two constables were present, it is also suggested that accused was not there, but the said suggestion has been denied. Looking to the cross-examination, it is reaffirmed with regard to the presence of the police and the accused at that particular point of time and also drawing-up of manazar.
25. PW.11-Jayaramu also similarly stated about Ex.P9 and MO.2 and he identified the accused also, said to have been present on that particular day. Again in the course of cross-examination nothing has been elicited to disbelieve the evidence of this witness. 23 PW.12-T.S. Ravi is also another witness, who is the attestor to Ex.P9 and he also similarly stated that he is a goldsmith, who actually weighed the gold on the spot at that particular point of time. In the course of cross- examination, it is elicited that the mahazar was drawn between 3.30 p.m. onwards on that particular day. He has also stated in the cross-examination about the presence of these witnesses viz. Ravi (PW.12) and Jauaramu (PW.11) and also the presence of the accused. What has not been stated in the examination in chief that those incriminating materials have been filled-up during the course of cross-examination making evidence of these witnesses strengthy, and complete, for acceptance.
26. PW.13-Chethan, who is none other than the son of PW.9-Nenaram, has also fully supported the case of the prosecution. He stated that Exs. P5 & P6 which are the receipts given to the accused were actually belonging to their shop and he admits that they have given Rs.5,000/- and add to the accused on pledging of the said article (MO.2). He also identified 24 his signature at Exs.P5 and P6 as per Exs.P5(c) and 6(a). He also identified MO.2 which was pledged by the accused on that day. In the course of cross- examination nothing more has been elicited from the mouth of this witness. Of course, the witness has voluntarily stated that this witness was not knowing the accused earlier to that date, therefore, he refused to take the ornaments by way pledge, but accused brought some known person and thereafter, then they have taken the ornament and gave money to the accused. He has also specifically stated that the mahazar was drawn from 3.30 p.m. on that particular day. The suggestion made to this witness was that, the accused was not at there at that time, which was denied. Therefore, looking to the above said facts and circumstances, though there are some contradictions with regard to timings and also with regard to other minor discrepancies, but on over all looking to the entire evidence, the prosecution has proved beyond reasonable doubt that MO.2 was recovered at the instance of the accuse under a Mahazar- Ex.P9. 25
27. Recovery of MO.3- one pair of Ear-stud belonged to the deceased, has also been available from the evidence of PWs. 14 & 15. PW.14-T.M. Kalaiah has also deposed before the court that the police had taken the accused to the Jewellary shop by name Tara Bankers and recovered MO.3 and at that time, the accused was also very much present with the police. In the course of cross-examination, it is elicited that the Tara Bankers were very well known to these witnesses since to 4 to 5 years, because he transact with the said jewelers for the purpose of purchasing gold ornaments etc. In the course of cross-examination, in fact it is suggested whether the police have explained the contents of mahazar or not, then he specifically answered that after drawing up of mahazar, the police have explained about the contents of the mahazar. The next suggestion is made that, the police never went to the said shop and the accused was not there with them and no mahazar was drawn, such suggestion is contradictory to each other and become superfluous. On the other hand, the supporting material available in 26 cross-examination fortifies the statements made to this witness in the cross-examination.
28. PW.15-Chowdegowda is another witness to Ex.P11. He also categorically supported the case of the prosecution and identified the weapon MO.3 (ear studs) and He also put his signature to Ex.P11. Again there is no suggestion to this witness as to why this witness has to give false evidence. Nothing worth has been elicited during the cross-examination of this witness. On over all reading of the statement of evidence of this witness, it is noticed that not even a semblance of cross- examination is made as to why this witness should be disbelieved and what is the ill-will or animosity, hatred against the accused to depose falsehood. In the absence of such elucidation of facts, though there are some contradictions and omissions we may find in the evidence of this witness, nevertheless, over all truth with regard to recovery of the incriminating articles, has been satisfactorily established by the prosecution. 27
29. Now we have bestowed our attention to recovery of MO.7, which is an incriminating weapon used by the accused for the purpose of commission of offence. Of course, the learned counsel is right in submitting that the Investigating Officer (PW.31) though has sent the incriminating materials to the FSL, the FSL report has not been got marked by the prosecution. Even otherwise, let us examine whether this article has been recovered at the instance of the accused or not, prior to connecting this material to the accused and to the crime.
30. PW.16-Mr. H.S. Shivakumar in fact has stated that, on 30.05.2007, the Circle Inspector of Police (PW.31) along with the accused taken this witness to the house of Siddamma and in fact the accused has shown the place where the incident happened and also told the police that he threw the spade in the house of one Nagamma. The police drew up the manazar as per Ex.P.12. He identified his signature as per Ex.P12(b). Though, the learned counsel for the appellant strenuously contends before 28 this court that this witness has shifted the place of recovery from the house of Siddamma to the house of Nagamma, no mahazar in the house of Nagamma has been drawn, from where the alleged recovery has been made. Therefore, he contends that the evidence of this witness should not be believed. But the court has to analyse over all circumstances looking into the evidence of the Investigating Officer and other witnesses, to ascertain from where actually this article has been recovered. Though there is some discrepancy in the evidence of this witness, in the course of cross- examination, this witness has categorically reiterated about the house of Siddamma only. It is suggested and denied by the witness in the course of cross- examination that, the witness and the accused and police went to the house of Nagamma for the purpose of recovery of any article. This witness has categorically identified with specification that, MO.7 is spade. He specifically says that there was a hole in the said spade, therefore, he specifically identified the said spade and he also stated that, such type of hole cannot 29 be found in other spades. Therefore, he is very consistent and strong in his evidence in identifying the said spade on the particular day and even before the court.
31. PW.17 also specifically says about recovery of this article under Ex.P12 beneath the cot in the house of Siddamma. Learned counsel points out that PW.16 never stated about the recovery of this article underneath the cot in the house of Siddamma. On the other hand, there are discrepancies with regard to the place from where actually the said article was recovered. In the course of cross-examination, this witness has categorically stated that he has identified MO.7 because of a 'Hole' in the spade and he also categorically stated with regard to drawing up of mahazar on that particular day and also he has given some topography of the house of Siddamma. Coupled with this evidence of these two witnesses, the court has to examine Ex.P12 and as well as the evidence of I.O (PW.31).
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32. The I.O-(PW.31) in his evidence has categorically stated that the accused has disclosed about MO.7 (Spade) which was thrown in the house of Siddamma. The said Investigating Officer collected the panchwitnesses and went to the house of Siddamma and found this MO.7 in Bath room of the said house. Of course, there is a contradiction sofar as the place from where this particular article (Spade) has been recovered at the instance of the accused by the police. Even considering that, such discrepancy or contradiction is there in the evidence of this witness, but this witness has specifically stated that they put signature to the mahazar on the spot itself in the house of Siddamma. Even PW.16 also stated that Panchnama was written in the house of Siddamma. When it is specifically stated about the drawing of mahazar-Ex.P12 and that, the said article (Spade) was seized from the bathroom of the house of Siddamma, the contents of this mahazar which are satisfactorily proved from the evidence of the Investigating Officer (PW.31) and the witnesses have stated that the mahazar was drawn in 31 the house of Siddamma and he signed to the Mahazar. Therefore, even if there is any such contradiction with regard to recovery of spade is from the house of Siddamma alone and no where else, though it is stated by PW.16 that it was from the house of Nagamma, but all other materials clearly disclose that the spade was recovered from the house of Siddamma. Therefore, such contradiction in our opinion, is not a material contradiction, which totally discredit the other evidence of this witness. Therefore, we accept that the prosecution has also proved the seizure of MO.7 under Ex.P12 at the instance of the accused. Therefore, looking to the above facts and circumstances of the case, the prosecution has successfully established the recovery of article MO.7 (Spade) at the instance of the accused.
33. Though there is no material to show that actually MO.7 (Spade) has been used by the accused for the commission of the offence, in the absence of FSL report, nevertheless the recovery of Spade has to be explained by the accused as to why he has actually 32 thrown the Spade in the house of Siddamma. On the other hand, the other circumstances with reference to recovery of other articles like MO.2 and MO.3 also throws the onus on the accused to establish as to how he came into possession of these articles, which are belonging to the deceased. If the accused do not satisfactorily establish this, then it becomes an additional link or circumstances to draw an inference that the accused alone is the person, who knew about this particular fact of as to how the death of the deceased occurred and how he came to be in possession of the said incriminating articles. If he does not explain, this court can certainly hold that, he must be the perpetrator.
Reg: Thumb Impression & Finger Print Expert's opinion:
34. Last but not least, the prosecution has also relied upon the Finger Print Expert's report. It is the case of the prosecution that during the course of investigation, they have seized Exs.P28 & 29 (originals) and the xerox copies of the original Pawn Receipt are 33 marked as Exs. 5 & 6. The originals were sent to the Finger Print Expert-PW.32 ( K.R. Venkatesh). Apart from that the police have collected Thumb Impression of the accused and sent the same to the Finger Prints Expert. Though they are not specifically marked, however, PW.32 has stated in his evidence that those materials have been sent to FSL..
35. Learned counsel for the appellant has strenuously contended that the Investigating Officer (PW.31) himself has not categorically explained as to on what date and in whose presence the admitted Thumb Impression of the accused have been taken and sent them to the FSL for report. We have already examined the evidence of the prosecution witnesses particularly, the owners of the Jewellary Shops. They have categorically admitted with regard to Exs.P5 & P6 and those documents belonged to them and they have taken thumb Imprison of the accused on the said documents. In this background the evidence of Investigating Officer (PW.32) play a dominant role. 34
36. Before adverting to the documents produced by the Investigating Officer (PW.31), we would like to discuss the evidence of PW.32 (Finger Prints Expert). PW.32 has stated that, Exs. 28 & 29 sent to him are the documents belonging to Tara Bankers and Mangal Deep Bankers respectively. He marked them as Q2 as questioned or disputed signatures and also marked the admitted Thumb Impression of the accused as per Ex.D2. The questioned signatures in the document Ex.D1 and D1(a) and Q3 are examined that they all admittedly the thumb impression of the accused and thereafter, in detail examining them, he gave opinion that the disputed thumb impression at D1(a) matches with each other. But the question that the Thumb Impression marked as 'Q2' was not sufficient for comparison. Further Q4 and Q3 are the disputed Thumb Impressions also tallies with the admitted Thumb Impression of the accused marked at D1(a). He has in detail given as to how he conducted examination etc. 35
37. Now the evidence of the Investigating Officer, who has sent these admitted Thumb Impressions to the FSL is to be examined. PW.31 (I.O.) has categorically stated that he arrested the accused and recorded his voluntary statement as per Ex.P20-Rachappaji and at that time, he has taken Thumb Impression of the accused for the purpose of sending the same to the FSL. Though he has not specifically stated in what manner he has taken the said Thumb Impression, but this was not much disputed in the course of cross-examination of this witness. Not even single suggestion was put to this witness that, he has not at all taken the Thumb Impression of the accused for sending the same to the FSL. In the absence of any suggestion or denial by the accused in the course of cross-examination, the Investigating Officer, who is a public servant, during the course of discharging his duty as a public servant, he has taken the admitted Thumb Impression of the accused for the purpose of sending the same to the FSL. The said portion of evidence is fully supported by the evidence of the Finger Prints Expert (PW.32). There is 36 no reason as to why this piece of evidence should be disbelieved. In the above circumstances, this circumstance also fully establishes the case of prosecution that the accused is the person who has committed the murder of the deceased for the purpose of wrongful gain and he has actually after committing the murder of the deceased taken-out MOs.2 & 3 from the body of the deceased and also pledged them with jewellery shops as noted above. It is also corroborated in the evidence of other witnesses.
38. With regard to the last seen, now the whole onus is on the accused to establish as to how and what time, the death of the deceased occurred and also how he possessed the gold ornaments of the deceased with him. Even there is no connecting material to MO.7, nevertheless, the nature of evidence show that, the deceased died due to the injuries sustained to her head and that also has to be explained by the accused as to how the deceased sustained injuries when he was in the house of the deceased, without he being assaulting the deceased.
37
39. As we have stated above, the accused no where in the course of cross-examination of prosecution witnesses has taken any specific defence. Even in the course of cross-examination it is not suggested as to how the death of the deceased occurred in any other manner and he has also not suggested with regard to the ornaments which were worn by the deceased and subsequently found in his possession. Therefore, absence of any explanation by the accused also act as one more strong circumstance connecting the link to the circumstances already proved before the court.
40. In circumstantial evidence cases, though the prosecution may project many number of circumstances, but what the court has to see is, on the basis of the proven circumstances, whether the chain of circumstances is complete and the prosecution has sufficiently placed material to bring home the guilt of the accused. So, from the above circumstances, we are of the opinion that the chain of circumstances is complete beyond reasonable doubt to hold that, only accused is the perpetrator and no one else. Hence, we 38 are of the opinion that the appellant has not made-out any strong reasons to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court. Accordingly, we proceed to pass the following:-
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KGR*