Bangalore District Court
State By; vs Ganganna @ Gangadhara @ Paapi on 27 August, 2016
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 27th day of August 2016
PRESENT
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.831/2013
COMPLAINANT : State by;
Peenya Police Station, Bengaluru City.
(By Learned Public Prosecutor)
- Vs -
ACCUSED Ganganna @ Gangadhara @ Paapi
S/o Late.Shankarappa,
Aged about 40 years,
Residing at Dalamma Building,
13th Cross, Sidedahalli,
Nagasandra Post, Bengaluru - 73.
(By Sri.T.Mahesh, Advocates)
1. Date of commission of offence 19-02-2013
2. Date of report of occurrence 19-02-2013
3. Date of arrest of accused 21-02-2013
Period undergone in custody 3 Years, 6 Months, 3
Days
4. Date of commencement of evidence 29-04-2014
2 S.C.831/2013
5. Date of closing of evidence 15-03-2016
6. Name of the complainant Smt.C.H.Revathi
7. Offences complained of Sec.302 of I.P.C.
8. Opinion of the Judge As per the final order
9. Order of sentence Offence proved
JUDGMENT
This case is committed by the VII Addl. Chief Metropolitan Magistrate Court, Bangalore City, to the Hon'ble Prl. City Civil and Sessions Court, Bangalore on the ground that offence punishable under Sec.302 of I.P.C. is exclusively triable by the court of Sessions.
2. The Police Inspector of Peenya Police Station has filed charge-sheet against accused for the offence punishable under Sec.302 of I.P.C. arising out of Peenya Police Station in Crime No.99/2013.
3. The brief facts of the prosecution case is as under:
It is the case of the Prosecution that, accused 6 years earlier to 19-02-2013 married with CW.1-C.H.Revathi and he is having one daughter by name Lavanya through CW.1. 3 S.C.831/2013 Lavanya was studying in LKG in the year 2013. It is the case of prosecution that accused after the marriage was not doing any work and addicted to vices and availed loan from so many persons. It is further case of the prosecution that, accused use to take alcohol every time and use to quarrel with his wife and daughter and assaulting them and giving ill-treatment to them. It is further case of the prosecution that, CW.2- Nagaraju has sold the site belongs to CW.1 and repaid the loan availed by accused for his vices. CW.2 was providing materials required for the house of accused and advised him not to ill-treat CW.1 and her daughter. Accused in spite of it was taking alcohol daily and picking up quarrel with CW.1 for money and ill-treating CW.1 and her daughter if CW.1 refused to give money, he also use to give threat to CW.1 stating that he will kill her and her daughter. It is further case of the prosecution that, accused on 19-02-2013 within the limits of Peenya Police Station at Sidenahalli 13th 'C' Cross, at Dalamma building in the morning when CW.1 was proceeding to work, asked money from her, CW.1 told that she is not having money, for that accused on the same day when his 4 S.C.831/2013 daughter Lavanya came from school at 2.00 p.m. and playing in front of the house with other children, accused with an intention to kill his daughter Lavanya at 3.30 p.m. reprimand his daughter and taken her in the house and taken her on the cot and tied cotton veil cloth to her neck, put underwear on her mouth and nose, pressed and strangulated and due to asphyxia, Lavanya died and thereby committed the offence under Sec.302 of I.P.C.
PW.16 who is the Police Sub-Inspector of Peenya Police on 19-02-2013 at 7.30 p.m. when in the Police Station, complainant came to the Police Station and given her written complaint, CW.24 has obtained the same and registered the same in Crime No.99/2013 and submitted the FIR to the Court and thereafter handed-over the further investigation to CW.25. CW.25 who is the Police Inspector of Peenya Police on 19-02-2013 has taken the further investigation of this case from CW.24 and verified the investigation done by CW.24. On the same day, CW.25 has visited the spot and Hospital, on the same day CW.24 has recorded the statement of CW.2. On 20- 02-2013, CW.25 has visited M.S.Ramaiah Hospital and called 5 S.C.831/2013 CW.3, 4, 5 and drawn the Inquest Mahazar in respect of dead body of Lavanya from 7.30 a.m. to 8.30 a.m. CW.25 at the time of Inquest Mahazar has recorded the statement of CW.6, 7 and 8. Thereafter, CW.25 sent the dead body for Postmortem through his officials, on the same day CW.25 has recorded the statements of CW.9 and 10. On the same day CW.25 has directed his officials CW.13 and 14 to catch-hold the accused and produce before him. On the same day CW.13 and 14 have catch-hold the accused and produced before CW.25 at 5.30 p.m. CW.25 has arrested the accused and enquired him. CW.25 has recorded the voluntary statement given by the accused. CW.25 has called CW.11 and 12-
Panchas and searched the accused in presence of Panchas, accused was possessing one Key, Nokia Mobile and a purse containing Rs.10/- three currency notes and one photo, there CW.25 has drawn Mahazar as per Ex.P2 and seized the said articles in presence of Panchas and subjected the same in P.F.39/2013. Accused has given voluntary statement before CW.25 and in the voluntary statement has stated that if he is accompanied, he will show the place where he has 6 S.C.831/2013 strangulated and caused the death of his daughter Lavanya and produce the veil used for tying the neck of his daughter, produce the underwear used to put the same in the mouth and caused her death as per Ex.P21. On the same day, CW.25 has recorded the statement of CW.4, 14, 15, 16 and
23. CW.25 after the Postmortem handed-over the dead body to the relatives of the deceased and obtained the acknowledgement and produced the same before CW.25. On 20-02-2013 the accused as per the Ex.P21 voluntary statement, taken CW.25 and his officials to the spot of incident which is at Sidenahalli, 13th 'C' Cross, Dalamma Building, in the house of complainant, there CW.25 called CW.15 and 16-Panchas. Accused has opened the key of his house and taken Panchas in the house and shown the cot and stated that on the cot itself he has tied the neck of his daughter Lavanya with cotton veil. CW.25 has verified the said place and to the right leg of the cot one side of veil was tied and accused has told CW.25 that the said veil is used for committing the offence. CW.25 has verified the same which was 7 feet length, thereafter accused has shown one green 7 S.C.831/2013 colour underwear and there CW.25 has drawn Spot Mahazar in presence of Panchas and seized the said cotton veil and underwear. CW.25 has obtained the photos of the place, prepared the rough sketch of the spot, thereafter CW.25 has subjected the properties seized under P.F.40/2013. On the same day, CW.25 has recorded the statement of CW.15 and
16. On 21-02-2013, CW.25 has recorded the statement of CW.17 and 18. Thereafter, CW.25 has obtained the marriage photos of CW.1 and included the same in the file. Thereafter, CW.25 has obtained the Lease Agreement in respect of the house of the complainant. Thereafter, CW.25 has obtained the complaint lodged by the complainant against the accused earlier to the incident in the Peenya Police, also obtained the Xerox copy of the Aadhar Card and Transfer Certificate belongs to the complainant. On 22-02-2013, CW.25 has recorded the statement of CW.19. On 25-02-2015, CW.25 has recorded the statement of CW.20 and on 03-04-2013 CW.25 has sent the veil and underwear seized and subjected under P.F.40/2013 to the Medical Officer for examination and giving the opinion. On 18-04-2013, obtained the opinion 8 S.C.831/2013 given by the Doctor for examining the veil and underwear, also obtained the Postmortem Report. CW.23 has brought the clothes preserved by the Medical Officer which were on the dead body of Lavanya and produced before CW.25, CW.25 has obtained the same and subjected the same under P.F.83/2013. On 19-04-2013, CW.25 has recorded the statement of CW.21. Thereafter, CW.25 has obtained the call details of Mobile belongs to the complainant and accused thereafter CW.25 has handed-over the further investigation to CW.26.
CW.26 who is the Police Inspector of Peenya Police Station has obtained the further investigation in this case from CW.25 on 26-04-2013 and scrutinized the investigation done by CW.25 and thereafter CW.26 has filed the charge-sheet against the accused.
4. After filing the charge-sheet by the Investigating Officer, VII Addl. Chief Metropolitan Magistrate Court, Bengaluru taken cognizance and registered the case in C.C.7969/2013 thereafter VII Addl. Chief Metropolitan 9 S.C.831/2013 Magistrate Court, Bengaluru has secured presence of accused and furnished charge-sheet copy to him as contemplated under Sec.207 of Cr.P.C. Thereafter, VII Addl. Chief Metropolitan Magistrate Court, Bengaluru has committed the case against accused before the Hon'ble Prl. City Civil and Sessions Court, Bangalore and that was registered as S.C.831/2013 and made over to FTC-XIV Court for disposal according to law as the offence alleged against the accused are exclusively triable by the Sessions Court. After establishment of this court, the present case is made over to this court.
4. After receipt of the papers, this court has secured presence of accused, thereafter this court has heard the counsel for accused and learned Public Prosecutor for state on charge to be framed. Charge framed under Sec.228 of Cr.P.C. against the accused for the offence under Sec.302 of I.P.C. and read-over to the accused in the open court and accused pleaded not guilty and claim to be tried.
10 S.C.831/2013
5. Prosecution in order to prove the guilt of the accused beyond all reasonable doubt in all examined 20 witnesses as PW.1 to 20, got marked 26 documents as Ex.P1 to 26 and got marked 9 material objects as MO.1 to 9 and closed its side. Thereafter, accused examined under Sec.313 Cr.P.C. to enable him to explain the incriminating circumstances appearing against him in the prosecution evidence. Accused denied the statement in toto and further stated that he has defence evidence and he has nothing to say, thereafter case is posted for defence evidence. Even though this court has given sufficient time, accused has not lead defence evidence, hence it is taken that accused has no defence evidence, thereafter the case is posted for arguments.
6. Heard the arguments advanced by the learned Public Prosecutor for state. Even though sufficient time is given to the counsel for the accused, he has not advanced arguments. Heard accused.
7. The points that arise for my determination are: 11 S.C.831/2013
1) Whether the prosecution proves beyond
reasonable doubt that death of Lavanya is
homicidal death?
2) Whether the prosecution proves that the
accused has caused the death of Lavanya?
3) Whether the act of accused in causing the
death of Lavanya is culpable homicide
amounting to murder or not amounting to
murder?
4) What order/sentence?
8. My findings on the above points are as follows:
Point No.1 : In the AFFIRMATIVE;
Point No.2 : In the AFFIRMATIVE;
Point No.3 : Culpable homicide
amounting to murder;
Point No.4 : As per final order;
For the following;
REASONS
9. POINT No.1 AND 2: These points are inter-
connected, hence I have taken up these points together for discussion.
12 S.C.831/2013
10. It is the case of the prosecution that the accused has committed the offence punishable under Sec.302 of I.P.C. and in order to prove the guilt of the accused the prosecution in all examined 20 witnesses and they are;
PW.1-Smt.Revathi C.H. wife of Ganganna @ Gangadhara-complainant, PW.2-V.A.Nagaraj son of Annegowda V.R.-complainant's sister's husband and circumstantial witness, PW.3-N.L.Sathish Kumar son of Lakshmanaiah-Pancha on Ex.P2 Seizure Mahazar, PW.4-
Smt.Varadambike wife of Nagaraj- elder sister of complainant and circumstantial witness, PW.5-Dr.Basappa S.Hugar son of Subhash Hugar-Medical Officer who has conducted Postmortem, PW.6-K.Srinivas son of Krishnaiah-Pancha on Inquest Mahazar, PW.7-Chikkamariyappa son of Late.Chennappa-Pancha on Inquest Mahazar, PW.8- Smt.Kavitha wife of Kiran-the person who went near the house of accused as per the say of complainant, PW.9-Rachaiah son of Siddappa- the person who last seen the accused and deceased together, PW.10-Smt.Sudha wife of Babu- the person who last seen the accused and deceased together, 13 S.C.831/2013 PW.11-Vanaraj son of Byalappa-Police Constable who went to catch hold the accused, PW.12-Smt.Komala wife of Vasanth Kumar- last seen accused and deceased together and Pancha on Ex.P9 Spot Mahazar, PW.13- Smt.Manjula wife of Chennappa- circumstantial witness, PW.14-Smt.Gangalakshmi wife of Honnappa-the person who last seen the accused and deceased together, PW.15-Thimmegowda son of Late. T.Venkatesh- Pancha on Ex.P9 Spot Mahazar, PW.16- E.S.Mahesh son of E.N.Sathyanarayana-Police Sub-Inspector who has conducted earlier part of investigation, PW.17- H.G.Lakshmanaiah son of Govindappa-Police Constable who was present at the time of drawing Spot Mahazar and Seizure Mahazar and also Inquest Mahazar and who has written the said Mahazars as per the directions of the Investigating Officer, PW.18-Smt.Dalamma wife of Ramalingaiah-house owner in which CW.1 and accused were staying, PW.19-D.N.Shamanna son of Nagappagowda- Investigating Officer who has conducted later part of investigation, PW.20-Yathiraj B.R. son of Revanasiddappa- Police Inspector who has filed the charge- sheet.
14 S.C.831/2013
11. Prosecution in order to prove the guilt of the accused in all got marked 26 documents and they are;
Ex.P1-complaint, Ex.P2-Seizure Mahazar for seizure of MO.3, MO.3(a) and MO.3(b), Ex.P3-Postmortem Report, Ex.P4- opinion given by the Medical Officer, Ex.P4(I)- Two marriage photos of accused and complainant, Ex.P5- one photo, Ex.P6- Notice given to the Inquest Mahazar Panchas, Ex.P7- Inquest Mahazar, Ex.P7(c)-Portion of statement of PW.10, Ex.P7(c)(1)- Portion of statement of PW.10, Ex.P8-Portion of statement of PW.9, Ex.P9-Spot Mahazar, Ex.P10-Sketch of spot, Ex.P11- Portion of statement of PW.13, Ex.P11(a)-Portion of statement of PW.13, Ex.P12-Portion of statement of PW.14, Ex.P13- Portion of statement of PW.12, Ex.P14-FIR, Ex.P15-Report given by CW.23 to Police Inspector, Ex.P16-Lease Agreement, Ex.P17-Form No.146(i), Ex.P18- Form No.146(ii), Ex.P19- Report given by Head Constable to Police Inspector, Ex.P20- P.F.No.39/2013, Ex.P21-Portion of statement of accused, Ex.P22- Four photos obtained at the time of Spot Mahazar, Ex.P23-P.F.40/2013, Ex.P24- P.F.82/2013, Ex.P25- Complaint lodged by the complainant against the accused dated 06-02- 15 S.C.831/2013 2012, Ex.P26- Statement given by the accused before Peenya Police.
12. Prosecution got marked 9 Material Objects and they are;
MO.1-Door lock key, MO.2-Mobile phone of accused, MO.3- Purse of accused, MO.3(a)-Photo of accused, MO.3(b)- Rs.10/- three currency notes, MO.4-Red colour shirt, MO.5- Blue colour ¾ Pant, MO.6-White colour underwear, MO.7-One Pink colour synthetic veil, MO.8-White colour underwear, MO.9-Blood with preservative Sodium Fluoride.
13. In the present case, prosecution has to prove that death of Lavanya is homicidal death and in order prove the same prosecution has examined the complainant and complainant in her evidence stated that on 19-02-2013 at 7.00 a.m., she went to her work and at that time her daughter who is aged about 4 years 8 months was studying in LKG and when she went to the work, her daughter and her husband who is the accused in this case were in the house and on that day accused sent her daughter to school and on that day accused 16 S.C.831/2013 asked her money and she told him that she is not having any money and at that time accused told her that he will do something to the child as she has not paid the money. On that day at 3.50 p.m., her husband has called her and she asked her husband whether he has sent her daughter to the tuition and for that her husband has told her that he has done some thing and now there is no need to send the daughter for tuition. Further this witness has stated that, at 5.00 p.m. she left the place of work and came to her house and opened the door and her daughter was lying on the cot and her daughter was not speaking, she was lying unconscious and she and the neighbourers have taken her daughter to Sapthagiri Hospital and there the Doctors have examined and told that her daughter is dead and thereafter she has lodged complaint against the accused. The counsel for the accused has cross- examined CW.1 and in the cross-examination accused has not disputed that the death of Lavanya is homicidal death. In the cross-examination it is the contention of the accused that he has not caused the death of Lavanya.
17 S.C.831/2013
14. Further prosecution has examined the Inquest Mahazar Pancha as PW.7. PW.7 in his evidence stated that on 20-02-2013 at 6.30 he came to M.S.Ramaiah Hospital and on that day at 7.30 to 10.30, Police have drawn Inquest Mahazar of the dead body of Lavanya and obtained his signature and identified the Inquest Mahazar as Ex.P7 and identified his signature as Ex.P7(a) and also identified the Notice given by the Police to him as Ex.P6. This witness has been cross- examined by the counsel for the accused and in the cross- examination this witness has admitted that he is not knowing what is written by the Police on that day and except that nothing has been made out in his cross-examination so as to disbelieve his evidence.
15. Prosecution has examined PW.6. He is also Pancha on Inquest Mahazar and in his evidence he has stated that on 20-02-2013 at 9.00 to 9.30 a.m. he came to M.S.Ramaiah Hospital as he came to know that the daughter of complainant is dead and in the M.S.Ramaiah Hospital the dead body was kept in the cold storage. He has seen the dead body of Lavanya, on the neck of the body mark was there. He has 18 S.C.831/2013 identified the Notice given to him as Ex.P6 and identified the Inquest Mahazar as Ex.P7. Prosecution treated this witness as hostile in part and cross-examined him and this witness has admitted that the Police have drawn Ex.P7-Inquest Mahazar in his presence from 7.30 to 10.30. Further this witness has admitted that he has put his signature on Ex.P7 after knowing the contents in the same. The counsel for the accused cross- examined this witness and nothing has been made out in his cross-examination so as to disbelieve his evidence.
16. Prosecution has examined Medical Officer who has conducted Postmortem as PW.5. PW.5 in his evidence stated that, since 9 years earlier to his evidence he is working as Assistant Professor in Department of Forensic Medicines, M.S.Ramaiah Medical College, Bengaluru. On 20-02-2013 he has received requisition from Police Inspector of Peenya Police Station to conduct Postmortem examination of 4 years 8 months old female dead body by name Lavanya S.G. and he has conducted the Postmortem examination on the same day between 12.40 to 1.40 p.m. The dead body was kept in the cold storage. The dead body was that of a child aged about 4 19 S.C.831/2013 years 8 months, built for age moderately nourished measuring 3 inches in length, wheetish in complexion, eyes were closed, pupil dilated and fixed. Postmortem staining was present over the back and fixed. Rigor mortis appreciated all over. Lips and nail beds shows bluish discolouration. He has noted the clothes on the body and they are;
1) One red colour multi design shirt,
2) One blue colour 3/4th pant,
3) One white coloured underwear stained with fugal material 16(a) After the examination he has handed-over the clothes to the concerned Police in sealed manner. Further this witness has stated that he has noted the ligature mark faint horizontal ligature mark measuring 10 cm X 3 cms encircling the neck situated below the thyroid cartilage and lies 5 cms below the left ear labule, 5 cms below the chin and 5 cms below the right ear labule. On dissection minimal extra vagation was seen in the subcutaneous tissue and scrapped muscles of the neck. Hyoid bone and thyroid cartilage are 20 S.C.831/2013 intact. Contusion measuring 2 X 0.3 cms present over middle of the inner aspect of the upper lip. Contusion measuring 2.5 X 0.5 cms present over middle of inner aspect of lower lip. Further this witness has stated that, on internal examination, scalp was intact, scull was intact, brain and menangis were intact and congested. On cut section white matter of brain showed peticual hemorrhage. Trachea showed blood stained frothy fluid. Both the lungs were edematous and congested. Further this witness has stated that, he has made observations that ligature mark and contusions were anti mortem in nature and fresh. Time since death could not be ascertained as the body was kept in cold storage. He has preserved the blood for control purpose. He is of the opinion that death is caused due to asphyxia as a combined effect of smothering and ligature strangulation. For conducting Postmortem, he has issued Postmortem Report and identified the same as Ex.P3. Further this witness has stated that on 03-04-2013 he has received requisition from Police Inspector of Peenya Police for examining the materials and furnishing further opinion in Crime No.89/2013 of Peenya Police, along with the requisition 21 S.C.831/2013 he has received two white colour closed unsealed packet said to have contained veil and underwear. On opening the packet No.1 contains pink colour synthetic veil measuring 212 cms in length and 100 cms in breadth. On opening packet No.2 contains one white colour underwear with blue colour leaves design with label as 'Arrow 55 cms' back of the underwear shows brownish stains. He examined the said articles and he is of the opinion that, ligature mark described in the Postmortem Report Ex.P3 could be caused by the type of veil examined by him. Further he has opined that, injury No.2 and 3 described Ex.P3 Postmortem Report could be caused by forceful application of the type of material i.e., underwear examined.
16(b) After the examination he packed the said materials, labeled, sealed and handed-over to the concerned Police along with the sample seal and he has identified the opinion given by him as Ex.P4 and identified the red colour multi design shirt which is marked as MO.4, blue colour 3/4th pant which is marked as MO.5, one while colour underwear which is marked as MO.6 and further stated that MO.4 to 6 22 S.C.831/2013 were on the dead body of the deceased, identified pink colour veil examined by him as MO.7 and identified white colour underwear examined by him as MO.8. Further this witness has stated that the external injury No.1 mentioned in Ex.P3 is the ligature mark is a strangulation mark and external injury No.2 and 3 are due to smothering and both together have lead to Asphyxia and death of Lavanya, identified the blood collected by him as MO.1. This witness has been cross-examined by the counsel for the accused and nothing has been made out in the cross-examination of this witness so as to disbelieve his evidence.
17. Further the prosecution has examined the Investigating Officer who has conducted the Inquest Mahazar as PW.19. PW.19 has clearly narrated regarding the Inquest Mahazar drawn by him in presence of Panchas and nothing has been made out in the cross-examination of PW.19 so as to disbelieve his evidence. Further in the present case accused has not denied that death of Lavanya is homicidal death. The evidence of complainant, Inquest Mahazar Panchas, Medical Officer who has conducted the Postmortem, Investigating 23 S.C.831/2013 Officer who has conducted the Inquest Mahazar, Ex.P7 Inquest Mahazar , Ex.P3 Postmortem Report, Ex.P4-opinion given by the Doctor, proves beyond reasonable doubt that death of Lavanya is homicidal death. So, the prosecution has proved beyond reasonable doubt that death of Lavanya is a homicidal death.
18. In the present case, there are no eye-witnesses who have seen the accused committing the offence. The entire case of the prosecution is based on the circumstantial evidence. The standard of proof required to convict the person on circumstantial evidence is well established by the series of judgments of Hon'ble Apex Court and our Hon'ble High Court. In 1984(4) SCC 116 (Case: Sharad Birdhichand Sarda Vs. State of Maharashtra), wherein the lordship of Hon'ble Apex Court have held that;
"While dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in the prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are; 24 S.C.831/2013
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be"
established;
(ii) 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;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) 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."
19. In the present case, in order to prove the guilt of the accused beyond reasonable doubt on circumstantial evidence, the prosecution has relied upon the following circumstances;
1) Last seen together the accused and deceased in the house of accused just few hours before the death of deceased Lavanya.
25 S.C.831/2013
2) Motive - Accused and complainant were husband and wife and accused all along giving ill-treatment to the complainant and her daughter Lavanya, accused was addicted to bad vices, he was not doing any work and always insisting the complainant to give money for his vices and as the complainant has not given the money to the accused for his bad vices as she was not having money, accused in order to teach a lesson to the complainant has committed the murder of Lavanya.
3) Accused has left the house immediately after the incident, he was not present either in the Hospital or at the funeral ceremony of Lavanya and not given any explanation regarding the same.
4) Complainant, accused and deceased Lavanya were alone staying in their house and accused has not denied the fact that on that day complainant went to her work at 7.00 a.m. and returned to the house after 5.00 p.m.
5) The key of the house was also recovered from the accused.
26 S.C.831/2013
6) False defence taken by the accused.
The prosecution has to prove the above six
circumstances beyond reasonable doubt. Further the
prosecution has to prove the said circumstances as stated by the Hon'ble Apex Court in the above referred citation.
20. Prosecution in order to prove the first circumstance i.e., last seen accused and deceased together in the house of accused few hours earlier to the incident has examined PW.9 and PW.9 in his evidence stated that his house is situated at Sidedahalli, 13th Cross. He know the accused, accused was residing abetting to his house, the CW.1 is the wife of accused, accused and complainant was having one daughter, he is not knowing what happened to the daughter of the accused and complainant, he has not given statement before the Police. Prosecution treated this witness hostile, cross-examined him and nothing has been made out in the cross-examination of this witness so as to help the prosecution to prove that accused and deceased seen together in the 27 S.C.831/2013 house of accused few hours earlier to the death of deceased- Lavanya.
21. Prosecution examined PW.10 and PW.10 in her evidence stated that she stayed 4 years in the Dalamma building, 1 month earlier to her evidence she has vacated the Dalamma building and staying in some other area. She know CW.1, CW.1 was also residing in Dalamma building abetting to her house. She know the accused, CW.1 is the wife of accused. From the wedlock of accused and complainant, complainant was having one daughter. During the stay of accused and complainant at Dalamma building for some days, they were living cordially and thereafter accused and CW.1 were quarreling in their house. The daughter of CW.1 was going to school and she was aged about 5 years. On 19-02- 2013 she has brought her grand daughter Sanjana from the school at 4.30 p.m. and after return of her grand daughter, her grand daughter was playing in front of her house. On that day accused has brought his daughter from the school at 3.00 p.m. and after that up to 3.30 p.m. the daughter of accused was playing with her grand daughter. On that day accused came 28 S.C.831/2013 two times and called his daughter and she has not went inside the house, third time accused came and taken his daughter inside his house thereafter she has closed her door and accused has also closed his door and thereafter after sometime she heard the noise of crying of the daughter of accused in her house, she heard the same and thought that the daughter of the accused was not intending to sleep and when she has been asked to sleep she was crying. Further this witness has stated that, on that day at 4.30 p.m., CW.1 called her on phone and asked her whether the accused has sent her daughter to the tuition, she went to the house of accused and knocked the door of accused but the window of the house of accused were closed, so she returned, thereafter again CW.1 called her and asked her whether her daughter went to the tuition and she told her that door is closed and windows are also closed. Further this witness has stated that, CW.1 told her that the accused has called her on phone and told her that he has not sent the daughter to the tuition and also told that to come and see her. Further this witness has stated that, on that day at 5.00 p.m., the friend of CW.1 came near the house of CW.1 29 S.C.831/2013 and at that time the friend of CW.1 also knocked the door of CW.1 and at that time door was locked and she was also standing there and on that day at 5.30 p.m. CW.1 came near her house and opened the lock and entered in the house, at that time the daughter of CW.1 was lying on the cot, thereafter CW.1 and her friend brought the daughter of CW.1 out of the house and taken to the Hospital, the daughter of CW.1 was unconscious so she has been taken to the Hospital and thereafter she came to know that the daughter of CW.1 died thereafter she went to M.S.Ramaiah Hospital and saw the dead body of the daughter of CW.1. Prosecution treated this witness hostile in part and cross-examined this witness and in the cross-examination this witness has admitted that the accused was not doing any work and he was addicted to bad vices. Further this witness in her evidence stated that on that day at 3.30 p.m. accused reprimanded and taken his daughter inside the house. Further this witness has admitted that, name of the daughter of accused is Lavanya. Further this witness has admitted that name of the friend of CW.1 who came near the house is Kavitha. The counsel for the accused 30 S.C.831/2013 has cross-examined this witness and in the cross-examination this witness has admitted that, noise of talking in the house of accused will not be heard by sitting in her house. Further this witness has admitted that by sitting in her house, it is not possible to see who will come and who will go to the house of accused. Further this witness in the cross-examination clearly stated that on 19-02-2013, no other persons came to the house of accused. The evidence of this witness clearly goes to show that on 19-02-2013 the daughter of complainant Lavanya brought from the school by the accused at 3.00 p.m. and from 3.00 to 3.30 p.m. Lavanya was playing in front of the house of this witness along with the grand daughter of this witness. Further evidence of PW.10 clearly goes to show that on that day from 3.00 to 3.30 p.m., accused called his daughter two times to come inside the house and Lavanya not went in the house and on third time accused came and forcibly taken his daughter inside the house and thereafter accused closed the door of his house and this witness has also closed the door of her house and after some time this witness has heard the noise of crying of Lavanya in her house. Further this 31 S.C.831/2013 witness in her evidence clearly stated that, on that day no other person came to the house of accused and evidence of this witness clearly proves that just before few minutes or hour earlier to the death of Lavanya, this witness has seen the accused and Lavanya together. Further this witness has clearly stated that, no third person went to the house of accused on that day.
22. Further prosecution has examined PW.12. PW.12 in her evidence stated that, in the year 2010 she has purchased house at Sidedahalli and House Number of her house is 18/2. After purchase, she has given her house on lease for two years and since September-2012 she was residing in her house. She know the complainant. Complainant was residing abetting to her house. The daughter of complainant was coming for playing with her daughter. The name of the daughter of complainant is Lavanya. Lavanya is also called by name Sonu. In the year 2012 Lavanya was studying in Nursery and at that time she was aged about 4 years. CW.1 was working as Nurse in Lakshmi Nursing Home situated at Malleshwaram. She know the husband of accused. 32 S.C.831/2013 On 19-02-2013 at 12.30 p.m., father of Lavanya brought Lavanya from the school and till 12.45 to 1.00 p.m., Lavanya was playing with other children. On that day at 1.30 p.m., the father of Lavanya taken Lavanya in his house and on that day at 2.00 to 2.30 p.m. she heard the noise of crying of the child and she came out of her house, no one was on the road. On that day at 5.00 p.m. CW.1 came to her house, she heard the noise of crying in the house of complainant, thereafter CW.1 has taken her daughter and proceeding along with CW.7. CW.7 has taken Lavanya to the Hospital as she was not breathing. Thereafter she came to know that Lavanya is dead thereafter she came to know that accused has killed his daughter. The evidence of this witness also discloses that this witness has seen the accused and deceased together just few hours earlier to death of deceased. This witness has stated that at 1.30 p.m. the accused has taken his daughter inside his house, whereas PW.10 has stated that at 3.00 p.m. accused has taken inside the house. This witness has given some contradictions regarding the time at when accused has taken his daughter inside the house and the minor contradiction 33 S.C.831/2013 regarding the time will not in any way affect the case of prosecution. The minor contradictions in the evidence shows that they are the natural witnesses. The minor contradiction regarding the time is bound to happen due to human tendency and minor contradiction regarding the time, place will not in any way affect the case of prosecution. This witness has clearly stated that, on that day in the afternoon the daughter of complainant was plying along with other children and accused has taken his daughter inside the house and thereafter she heard the noise of crying of a child and that version of this witness corroborates with the evidence of PW.9. Further her evidence also clearly goes to show that this witness has also seen the accused and deceased together few hours earlier to the death of Lavanya.
23. Prosecution has examined PW.14 and PW.14 in her evidence stated that she know the complainant, her parental house is at Sidedahalli. The house of complainant is near the house of her mother at Sidedahalli. She know the husband of CW.1, CW.1 is having one daughter, CW.1 is a Nurse, Lavanya was studying in LKG. On 19-02-2013 she was in the house of 34 S.C.831/2013 her mother and on that day at 5.00 p.m., CW.1 came out of the house crying and she came to know that the child of CW.1 died. She is not knowing what is the reason for the death of the daughter of CW.1. The learned Public Prosecutor has treated this witness hostile and nothing has been made out in his cross-examination so as to help the prosecution to prove the last seen together accused and deceased together just few hours earlier to the death of Lavanya.
24. Prosecution has examined PW.8. PW.8 in her evidence stated that CW.8 is her friend. She is residing at Sidedahalli. She was residing in the first floor of the house in which CW.1 was residing, she stayed there for one year and thereafter she went to some other house, now she is at II Main in the same area. The complainant was residing along with her husband and daughter. The daughter of the complainant was studying in Pre Nursery. When CW.1 was attending her work, she use to leave her child in her house. Further this witness has stated that the persons from whom the accused has availed loan use to come to the house of CW.1 and they were making galata for repayment of the loan with the 35 S.C.831/2013 accused. On 19-02-2013 she was in her house and on that day at 4.30 p.m., CW.1 called her and asked her whether her husband has left her daughter for tuition and she told CW.1 that Lavanya has not gone for tuition, CW.1 again called her husband and thereafter called her and told her that her husband stated her that her child will not go to tuition henceforth and asked her to go near her house and see, thereafter she came near the house of CW.1 and at that time the house door of the complainant was locked, at that time CW.8-Sudha also came there and they have knocked the door of the house of complainant and no voice came from the house, CW.8 told her that after Lavanya came from the school she was playing in front of her house and accused came there and taken Lavanya in his house and after that she heard the noise of crying of the child and thereafter the crying was stopped and thereafter accused went away hurriedly. Further this witness has stated that thereafter when CW.1 came there and opened the lock, they went inside the house and Lavanya was lying on the cot and she was unconscious and they have taken Lavanya to Sapthagiri Hospital, there Doctors have told 36 S.C.831/2013 that she is dead. The evidence of this witness also corroborates with the evidence of PW.12. The evidence of PW.10, PW.12 and PW.8 clearly goes to show that PW.10 and PW.12 have seen the accused and deceased-Lavanya together in the house of complainant just few hours earlier to the death of Lavanya. So the prosecution has proved beyond reasonable doubt that CW.10 and CW.12 have seen the accused and deceased together in the house of complainant few hours earlier to the death of Lavanya.
25. The second circumstance relied upon by the prosecution to prove the guilt of accused on circumstantial evidence is the motive of accused to commit the murder of his daughter. It is the case of prosecution that accused was not doing any work, accused was addicted to bad vices like drinking, gambling etc. Accused by taking drinks use to quarrel with the complainant and her daughter. Accused always insisting the complainant to give money for his bad vices. On the day of incident in the morning when complainant was leaving the house to attend her work, accused asked her to give money for his bad vices, complainant told that she is 37 S.C.831/2013 not having money and for that accused told the complainant that he will teach a lesson to her and for teaching a lesson to the complainant, accused has committed the murder of his daughter, in order to prove this circumstance the prosecution has examined complainant as PW.1 and PW.1 in her evidence stated that her marriage solemnized with the accused 7 years earlier to her evidence, her father and mother were not alive at the time of her marriage and CW.2 who is her elder sister's husband and CW.6 who is her sister has performed her marriage with the accused. At the time of marriage she has been given 120 grams golden ornaments and at the time of her marriage she was having one site in her name at Sidedahalli. After the marriage she and her husband were residing in the parental house of her husband. She gave birth to a female child after one year of her marriage and the name of her daughter is Lavanya. After her marriage she was looking after all the family expenses. The accused has availed loan from so many persons and he has addicted to bad vices like drinking etc. Accused has also mortgaged her ornaments and availed loans and spent the same for his vices. After the 38 S.C.831/2013 birth of child accused use to assault her, abuse her by taking drinks. She is doing Nurse work and accused use to take all her salary and spending the amount for his vices. After two years of her marriage, she and her husband started residing in a separate house at Sidedahalli. They have taken house on rental basis in Dalamma building and they were residing there. Accused use to take drinks daily and abuse and assault her. She has sold the site which was standing in her name in order to repay the loan incurred by the accused for his vices. Her sister's husband and sister have advised the accused many a times but accused was not heeding their words. On 19-02- 2013 at 7.00 a.m. she proceeded for work and at that time her husband and her daughter aged about 4 years 8 months were in the house and on that day accused asked money from her and she told that she is not having money, accused told her that if she refused to pay the money, he will do something to the child, she was not having money so she has not paid the money to the accused and went away. On that day at 3.50 p.m. when she was in her work place, her husband called her on phone and she asked her husband whether he has sent her 39 S.C.831/2013 daughter for tuition, for that accused told that henceforth the daughter will not go for tuition and further told that come and see what he has done. Further this witness has stated that, after hearing the words of the accused she frightened and she left the place of work and came near her house at 5.00 p.m. and at that time the door of her house was locked, she was having one key with her and another key is with the accused and she has opened the lock and came inside the house and her daughter was lying on the cot and abetting to the leg of the cot veil was there, one underwear was there, one side of the veil was tied to the leg of the cot, she tried to awake her daughter but she has not awaken, at that time the residents of nearby her house one Sudha, Rachaiah, Kavitha, Komala, Kavya, Rajeshwari came to her house and they told her that at 3.30 p.m. her daughter was playing in front of the house and accused came and taken her daughter inside the house and thereafter he has closed the door of the house and child was crying and thereafter crying was stopped and thereafter accused has locked the door and went away. This witness has been cross-examined by the counsel for the accused and 40 S.C.831/2013 nothing has been made out in the cross-examination of this witness so as to disbelieve her evidence regarding the ill- treatment given by the accused to this witness and her daughter. Further this witness has stated that earlier also for giving ill-treatment by the accused she has lodged complaint against the accused before the Peenya Police and Peenya Police have called the accused to the Police Station and enquired and accused has given undertaking before the Police saying that henceforth he will look-after his wife properly. In the present case, prosecution has got marked the complaint lodged by this witness against the accused before the Peenya Police which is at Ex.P25 and Ex.P25 clearly goes to show that on 06-02-2012 i.e., about 1 year earlier to the present incident, the present complainant has lodged complaint before the Peenya Police and in the complaint the present complainant has stated that the accused is addicted to bad vices, he was not doing any work, he is taking drinks, assaulting and abusing her and giving ill-treatment to her and her daughter. Ex.P25 clearly corroborates the case of prosecution that the accused was addicted to bad vices, he 41 S.C.831/2013 was not doing any work, he was insisting the complainant to pay money fro his vices and ill-treating the complainant. Further prosecution has got marked the statement given by the accused before Peenya Police on 07-02-2012 which is marked as Ex.P26. Ex.P26 discloses that after the complainant has lodged the complaint against the accused as per Ex.P25 before the Peenya Police, Peenya Police have called the accused to the Police Station, enquired him and accused has given statement before the Police as per Ex.P26 and wherein he has admitted that occasionally he is taking drinks and further he has undertaken that he will not give any ill- treatment henceforth and if he has done so, action may be taken against him and Ex.P25 and Ex.P26-documents clearly proves the case of prosecution that accused was addicted to bad vices and he use to take drinks and ill-treat the complainant and her daughter. The counsel for the accused suggested to PW.1 as under;
"£À£Àß ¸ÉßûvÀgÁzÀ PÀ«vÀ, ¸ÀÄzsÁ ªÀÄvÀÄÛ EvÀgÀgÀÄ DgÉÆæAiÉÆA¢UÉ ¨Á¼Éé ªÀiÁqÀ¨ÉÃqÀ «ªÁºÀ «ZÉÑÃzÀ£À PÉÆqÀÄ CAvÀ ºÉüÀÄwÛzÀÝgÀÄ JAzÀgÉ 42 S.C.831/2013 ¸ÀjAiÀÄ®è. £Á£ÀÄ £À£Àß ªÀÄUÀ¼ÀÄ EgÀĪÀÅzÀjAzÀ DgÉÆæAiÉÆA¢UÉ ºÉÆAzÁtôPÉ ªÀiÁrPÉÆAqÀÄ ºÉÆÃUÀÄwÛzÀÉÝ. £Á£ÀÄ ºÀ®ªÁgÀÄ ¨Áj DgÉÆæUÉ «ªÁºÀ «ZÉÑÃzÀ£À PÉÆqÀ®Ä PÉýgÀÄvÉÛÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ DgÉÆæ¬ÄAzÀ «ªÁºÀ «ZÉÑÃzÀ£À ¥ÀqÉzÀÄPÉƼÀÄîªÀÅzÀPÉÆÌøÀÌgÀ ¦Ãtå oÁuÉAiÀÄ°è DgÉÆæ «gÀÄzÀÝ zÀÆgÀÄ ¸À°è¹zÉÝ CAvÀ ¸ÀÆa¸ÀĪÀÅzÀÄ ¸ÀļÀÄî.
26. The above suggestion made by the counsel for the accused to PW.1 has been denied by PW.1. The said suggestions are entirely contrary to Ex.P26-Statement given by the accused before the Peenya Police. Further the counsel for the accused has suggested to PW.1 as under;
"DgÉÆæ £Á£ÀÄ ¥Áè£ï ªÀiÁr £À£Àß ªÀÄUÀ¼À£ÀÄß PÉÆA¢zÉÝÃ£É JA§ÄzÀÄ UÉÆvÁÛV £Á£ÀÄ eÉÊ°UÉ ºÉÆÃUÀĪÀÅzÀÄ §ÉÃqÀ CAvÀ CªÀ£Éà ¥ÉǰøÀjUÉ ºÉÆÃV ±ÀgÀuÁVgÀÄvÁÛ£É CAvÀ ¸ÀÆa¸ÀĪÀÅzÀÄ ¸ÀļÀÄî."
27. The above suggestion made by the counsel for the accused to PW.1 is denied by PW.1 and the said suggestion 43 S.C.831/2013 clearly goes to show that the accused is making false allegations against the complainant. In the earlier suggestion made by the counsel for the accused, which has been denied by the complainant, the accused has suggested that the complainant was insisting him to give divorce and the later suggestion which is denied by PW.1 goes to show that accused knowing that the complainant has hatched a plan and killed her daughter, he surrendered before the Investigating Officer to save the complainant is inconsistent with the earlier suggestion and the said suggestions which are denied clearly goes to show that accused has taken false defence.
28. Further in the present case, PW.2 who is the elder sister's husband of complainant in his evidence clearly stated that accused was giving ill-treatment to the complainant and her daughter, accused was not working, he was addicted to bad vices, he has availed loan from so many persons and use to spend the same for his bad vices. Further this witness has stated that he as sold the site which is in the name of the complainant and repaid the loans incurred by the accused and thereafter also accused has not stopped ill-treatment and 44 S.C.831/2013 nothing has been made out in the cross-examination of PW.2 so as to disbelieve his evidence regarding the ill-treatment given by the accused to complainant and his daughter.
29. Further PW.4 is the elder sister of the complainant and she also in her evidence stated that accused is addicted to vices, accused has availed loan from several persons and utilized the same for his vices, accused was giving ill-treatment to the complainant, accused was not doing any work, he and her husband have sold the site which is standing in the name of the complainant and repaid the loan and thereafter also accused has not stopped giving ill-treatment to the complainant and nothing has been made out in the cross- examination of PW.4 so as to disbelieve her evidence.
30. Further PW.8 in her evidence stated that CW.1 is her friend and she is also residing in the Sidedahalli, she know the daughter of complainant. PW.8 in her evidence stated that creditors of accused use to come near the house of complainant and at that time accused use to pick-up quarrel with the complainant. The counsel for accused cross-examine 45 S.C.831/2013 PW.8 and nothing has been made out in her cross-examination so as to disbelieve her evidence.
31. Further prosecution has examined PW.13 and PW.13 in her evidence stated that she know the complainant. Complainant was residing near her house at Sidedahalli. The name of husband of the complainant is Gangadhara, CW.1 is having one daughter and the name of the daughter was Lavanya, Lavanya is also called by name Sonu. Prosecution treated this witness hostile in part and cross-examined him and in the cross-examination this witness has admitted that accused was not doing any work and he was playing cards and staying in the house only. Further this witness has admitted that accused always use to take drinks. Further this witness has admitted that the elder sister and sister's husband of complainant use to help the complainant by supplying household materials. This witness has been cross-examined by the counsel for the accused and in the cross-examination this witness has denied the suggestion made by the counsel for the accused to her that she is not knowing the quarreling of accused with the complainant personally. The evidence of 46 S.C.831/2013 PW.1, PW.2, PW.4, PW.8, PW.13 and Ex.P25, Ex.P26, Ex.P1 proves beyond reasonable doubt that accused was addicted to bad vices, accused has availed loans from several persons for his bad vices, accused was not doing any work and he was giving ill-treatment to the complainant and her daughter and on the day of incident as the complainant has not paid the money to him for his bad vices, the accused in order to teach a lesson to the complainant intended to commit the murder of Lavanya. So the prosecution has proved the motive of accused to commit the murder of Lavanya. Hence, the prosecution has proved this circumstance beyond reasonable doubt.
32. The third circumstance relied by the prosecution to prove the guilt of the accused on circumstantial evidence is that accused has left the house after the incident immediately and he was not present at the time of Inquest Mahazar of Lavanya. Accused was not present at the time of Postmortem of Lavanya. Accused has not came to receive the dead body after the Postmortem examination is over. Accused was not present at the time of funeral ceremony of Lavanya. In the 47 S.C.831/2013 cross-examination of prosecution witnesses, it is the case of accused that he has surrendered before the Investigating Officer and in order to prove the same except the suggestions made by the counsel for the accused which are denied and disputed by the prosecution witnesses, accused has not adduced any oral and documentary evidence to prove his defence.
33. Further in the present case, prosecution has examined PW.11 and PW.11 in his evidence stated that in the year 2013 he was working as Police Constable at Peenya Police Station. On 20-02-2013, SHO of his Police Station told him and CW.13 for catch-holding the accused and produce before him and accordingly he and CW.13 went to Sidedahalli and they have contacted the informants and on that day at 4.45 p.m., the informants told them that the accused required for them is near Sidedahalli Circle and they went there and catch- hold the person and asked his name, the said person told his name as Gangadhara S/o Late.Shankarappa and they brought him to the Police Station and produced before the SHO at 5.30 p.m. and the counsel for the accused cross-examined this 48 S.C.831/2013 witness and nothing has been made out in the cross- examination of this witness so as to disbelieve his evidence. The evidence of this witness clearly goes to show that accused has been catch-hold by this witness and CW.13 on 20-02-2013 at 4.45 p.m. at Sidedahalli Circle and produced before the SHO and the said version clearly falsifies the case of accused that immediately after the incident he went to the Police Station and surrendered before the Police. Accused after the incident was not present at the time of Inquest Mahazar, Postmortem and further accused has not received the dead body of his daughter and if really the accused has not committed any offence as alleged against him, he ought to have present on the spot itself and accused has not explained why he was absconding from the spot immediately after the incident and prosecution has proved beyond reasonable that the accused has left the house immediately after the incident.
34. The next circumstance relied upon by the prosecution to prove the guilt of the accused beyond reasonable doubt on circumstantial evidence is that, the accused has not disputed the fact that complainant is a Staff 49 S.C.831/2013 Nurse working at Lakshmi Nursing Home. Further accused has not disputed that on the date of incident the complainant went to the Hospital at 7.00 a.m. and returned to her house at 5.00 p.m. Complainant has been examined in this case as PW.1 and PW.1 in her evidence stated that she is working as Staff Nurse at Lakshmi Nursing Home, on the date of incident she went to Hospital at 7.00 a.m. and she returned from the Hospital at 5.00 p.m. and the said version of PW.1 is not denied by the accused in her cross-examination. Further in the present case, PW.2 who is the sister's husband of the complainant has also stated that on the date of incident complainant went to Lakshmi Nursing Home for her duty at 7.00 a.m. and she returned at 5.00 p.m. and the said version is not disputed by the accused in the present case. Further the elder sister of the complainant has been examined in this case as PW.4 and she has also in her evidence stated that on the day of incident, complainant went to her duty to Lakshmi Nursing Home at 7.00 a.m. and she returned from the duty at 5.00 p.m. and on that day accused was in the house and the said aspect is not denied by the accused. Further PW.8, PW.10 50 S.C.831/2013 and PW.12 have also in their evidence stated that the complainant is working as Staff Nurse at Lakshmi Nursing Home and further they have stated that on the date of incident complainant went for her duty at 7.00 a.m. and she returned from the duty at 5.00 p.m. and on that day accused was in the house. The accused has not disputed that version and the evidence of PW.1, PW.2, PW.4, PW.8, PW.10 and PW.12 and said version proves beyond reasonable doubt that on the date of incident complainant attended her duty as a Staff Nurse in the Lakshmi Nursing Home and she left the house at 7.00 a.m. and returned to the house at 5.00 p.m., accused and deceased were alone in the house.
35. The next circumstance relied upon by the prosecution is that, the two door lock keys were there to the house of the complainant and one door lock key was with the complainant and another door lock key was with the accused and one door lock key was recovered from the possession of the accused. In order to prove the said circumstance, prosecution has examined PW.3 and PW.3 in his evidence stated that on 20-02-2013, Peenya Police have called him to 51 S.C.831/2013 the Police Station and at that time accused Ganganna was in the custody of the Police and Police requested him for acting as a Pancha and he agreed for the same and Police have searched the accused in his presence and accused was having one Key, one Nokia Mobile Phone, one Purse and in the said Purse one Photo, Rs.10/- three Notes was there and the said key was door lock key and the accused has produced the same before the Police and Police have drawn Mahazar in his presence as per Ex.P2 and seized the said door key, Nokia phone, the Purse containing a Photo, Rs.30/- in presence and identified his signature as Ex.P2 and Ex.P2(a). Further this witness has identified the door lock key as MO.1, identified the Nokia Phone as MO.2 and identified the Purse as MO.3and Photo as MO.3(a) and Rs.3/- three currency Notes as Ex.P3(b). This witness has been cross-examined by the counsel for the accused in length and nothing has been made out in the cross- examination of this witness so as to disbelieve his evidence.
36. Further prosecution has examined PW.17 and PW.17 who is the Police Constable of Peenya Police in his evidence stated that in the year 2013 he was working as Police 52 S.C.831/2013 Constable at Peenya Police. Further this witness has stated that on 20-02-2013 at 6.00 p.m., CW.25 called him in the Police Station, there CW.25 has arrested the accused- Ganganna. Further CW.25 has told him that accused has told that he is possessing house lock key with him and for that accused has to be searched. CW.25 has called the Panchas and in presence of the Panchas accused has been searched and in the pocket of accused one Key, one Mobile and Purse were there and in the Purse one photo, Rs.30/- cash were there. CW.25 has drawn Mahazar as per Ex.P2 and seized the Key, Mobile Phone and Purse containing one Photo and Rs.30/- in his presence in presence of Panchas. Further this witness has stated that he has written Ex.P2-Mahazar as per the instructions given by CW.25 and identified the key as MO.1, Mobile as MO.2 and Purse as MO.3, Photo in the Purse as MO.3(a) and Rs.30/- currency Note in the Purse as MO.3(b). This witness has been cross-examined and nothing has been made out in his cross-examination so as to disbelieve his evidence.
53 S.C.831/2013
37. Further the Investigating Officer who has conducted later part of investigation has been examined in this case as PW.19 and PW.19 in his evidence stated that on 20- 02-2013, CW.13 and 14 have catch-hold the accused and produced before him at 5.30 p.m. and he has arrested the accused and enquired him, accused has given voluntary statement before him, he has recorded the same, he has searched the accused and he was having one Door Lock Key, one Mobile, one Purse containing a Photo and Rs.30/-. Thereafter, he called CW.11 and 12-Panchas and drawn Mahazar in presence of Panchas and seized the door lock key, Mobile, Purse containing Photo and Rs.30/- in presence of Panchas and identified the Mahazar as Ex.P2 and identified the Key as MO.1, Mobile as MO.2, Purse as MO.3, Photo in the Purse as MO.3(a) and Rs.30/- in the Purse as MO.3(b). This witness has been cross-examined and nothing has been made out in his cross-examination so as to disbelieve his evidence. Further in the present case, complainant in her evidence has stated that the owner has given two door lock keys to them and one is with her and another key is with the accused and 54 S.C.831/2013 the said version of complainant is not disputed by the accused in the cross-examination of PW.1.
38. Further in the present case, the owner of house in which accused and complainant were staying as tenants has been examined in this case as PW.18 and PW.18 in her evidence stated that she has constructed a house at Sidedahalli, 13th Cross, bearing No.18/01 belongs to her, she has given her house on rental basis to the complainant and accused, accused and complainant came to the house as tenants in the year 2011. In the year 2013 after the death of the daughter of complainant, complainant has left her house. Complainant has given advance amount of Rs.12,000/- and she was paying rent of Rs.1,500/- per month and Rent Agreement was executed between her and the complainant and identified the said Agreement as Ex.P16. In the cross- examination this witness has stated that when she lent her house to the complainant, she has given two keys to them and the evidence of PW.18 also goes to show that PW.18 has handed-over two keys to the complainant and her husband and the said evidence corroborates with the evidence of 55 S.C.831/2013 complainant. Prosecution has proved that on that day, complainant went to Lakshmi Nursing Home to attend her duty at 7.00 a.m. and she returned at 5.00 p.m. on that day and on that day accused was in the house and accused was having one key and accused locked the house and went away and at 5.00 p.m. when the complainant came and opened the lock of the door, her daughter was lying on the cot and she was unconscious and complainant has taken her daughter to Sapthagiri Hospital and there Doctors have declared that she is dead and the prosecution has proved beyond reasonable doubt that accused was having one key of the house and the said key was seized from the possession of the accused and i.e., one of the circumstance to prove the guilt of the accused.
39. The last circumstance i.e., sixth circumstance relied upon by the prosecution to prove the guilt of the accused on circumstantial evidence is that, accused has taken the false defence during the cross-examination of prosecution witnesses and the prosecution has relied upon defence of accused during the cross-examination of prosecution witnesses. The accused has cross-examined PW.1 and in the 56 S.C.831/2013 cross-examination suggestion to PW.1 that she has made a plan and killed her daughter and he came to know the same and he in order to save the complainant, surrendered before the Police and the said suggestion made by the counsel for the accused to PW.1 is denied by PW.1. Further the counsel for the accused has suggested to PW.1 as under;
"¯ÁªÀtå¼À PÉÆ¯É ZÁ¸Á-1 ªÀÄvÀÄÛ CªÀgÀ ¨sÁªÀ ªÀiÁrzÀÄÝ ºÉAqÀw eÉÊ°UÉ ºÉÆÃUÀÄvÁÛ¼É JA§ PÁgÀtPÉÌ DgÉÆæ ¥ÉǰøÀgÀ ªÀÄÄAzÉ ºÉÆÃV ±ÀgÀuÁVgÀÄvÁÛ£É CAvÀ ºÉüÀĪÀÅzÀÄ ¸ÀļÀÄî."
40. The said suggestion made by the counsel for the accused to PW.8 is denied by PW.8. The counsel for the accused has suggested to PW.1 that on several occasion PW.1 has insisted the accused for giving divorce and the PW.1 has lodged complaint before the Peenya Police Station in order to get divorce from the accused and the said suggestion is denied by PW.1. As per the said suggestions, it is the case of accused that PW.1 was insisting the accused for giving divorce and for that reason she has lodged complaint against him in the Peenya Police 1 year earlier to the incident and if that is taken 57 S.C.831/2013 as true, for the sake of arguments, the further suggestion made by the counsel for the accused that he came to know that PW.1 and 2 have planned and committed murder of Lavanya and he in order to save PW.1 has surrendered before the Police is unacceptable one. No ordinary prudent man whose wife asking him for giving divorce and for that she has lodged the complaint and when she has committed a grave offence, the husband will not come to save her. So the defence taken by the accused during the cross-examination of prosecution witnesses is a false defence. Further accused has not given any explanation in Sec.313 Cr.P.C. statement regarding the same, accused has not lead any defence evidence and not proved his defence and the said facts goes to show that accused has taken a false defence during the cross- examination of prosecution witnesses. The learned Public Prosecutor has relied upon citation reported in 2011(4) Kar.L.J. 505 (SC) in (Case: G.Parshwanath Vs. State of Karnataka), wherein the Hon'ble Apex Court have held as under;
"(D) INDIAN EVIDENCE ACT, 1872, Section 3 - False plea and inconsistent defences taken by accused - 58 S.C.831/2013
Held to be additional circumstance strengthening chain of circumstances already established."
41. From the above principles laid down by the Hon'ble Apex Court, it is clear that false plea and inconsistent defence taken by the accused is an additional circumstance strengthening the chain of circumstances already established in this case. In the present case, prosecution has proved beyond reasonable doubt the first circumstance that accused and deceased-Lavanya seen together just few hours earlier to the incident in the house of accused. Further prosecution has proved the second circumstance i.e., motive of the accused for committing the offence. Prosecution has proved beyond reasonable doubt that accused was not doing any work, he was addicted to bad vices, he has incurred loans for his vices, he was insisting the complainant for giving money for his vices and ill-treating the complainant and her daughter-Lavanya and on the date of incident when the complainant was proceeding for her work at 7.00 a.m., accused insisted the complainant to give money for his vices and complainant has stated that she 59 S.C.831/2013 is not having money and as the complainant has not given any money to the accused for his bad vices, the accused has committed the offence. Further prosecution has proved the third circumstance i.e., accused has left the house immediately after the incident and he was not present when Lavanya was taken to the Hospital, when Inquest Mahazar and Postmortem of Lavanya were conducted and he has not come forward for taking the dead body. Further prosecution has proved beyond reasonable doubt the fourth circumstance that on the date of incident, complainant went for hear duty as a Staff Nurse at 7.00 a.m. and she returned to her house at 5.00 p.m. and on that day accused was in the house and he left the house by locking the same after the incident. Further prosecution proved beyond reasonable doubt that, two keys were there to the house of complainant, one key was with the complainant and another key was with the accused and MO.1-key is seized from the accused. Further in the present case, prosecution has proved beyond reasonable doubt that accused has taken false and inconsistent defence and that is one of the additional circumstances strengthening the chain of circumstances 60 S.C.831/2013 already established. Further learned Public Prosecutor has relied upon the citation reported in 2016(1) Crimes 256 (SC) in (Case: Gajanana Dashrath Kharate Vs. State of Maharashtra), wherein the Hon'ble Apex Court have held as under;
"When the appellant and deceased were alone at the time of occurrence and he failed to explain the death of deceased and the ocular and forensic evidence go against him, he must be convicted."
42. In the present case in hand also prosecution has proved the last seen together theory and established that accused and deceased were last seen in the house of accused alone on the date of incident at 3.00 p.m. and thereafter accused has left the house by locking and on that day at 5.00 p.m. complainant came and opened the lock of the door and she saw her daughter lying unconscious on the cot and shifted her daughter to the Hospital and there she came to know that her daughter is dead. In the present case, accused has not given any explanation for the death of deceased and in the present case, prosecution has proved that accused was giving 61 S.C.831/2013 ill-treatment to the complainant and her deceased daughter, accused was addicted to bad vices and asking money for vices from the complainant and on the date of incident when the complainant was proceeding for work, accused has asked money for his vices and complainant has not given and that all go against the accused and discloses that the accused and accused only has committed the offence. Further the learned Public Prosecutor has relied upon citation reported in (2005)3 Supreme Court Cases 114 in (Case: State of U.P. Vs. Satish), wherein the lordship of Hon'ble Apex Court have held as under;
"F. Criminal Trial - Circumstantial evidence - Last seen together -
Applicability of - Principles reiterated.
The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the 62 S.C.831/2013 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 those cases."
43. In the present case in hand also, time gap between the point of time when the accused and deceased were last seen alive and when the deceased has found dead is small. In the present case, evidence on record clearly goes to show that PW.10 and PW.12 have seen the accused and deceased together in the house of accused alone at 3.00 p.m. on the date of incident and on that day itself at 5.00 p.m. when the complainant came and opened the door, the body of the deceased was lying unconscious and immediately she has taken the body to Sapthagiri Hospital which is the nearest Hospital and there Doctors have declared her death. So the time gap between the point when the accused and deceased were last seen alive and when the deceased found dead is so small in this case, the possibility of any person other than the accused being the author of the crime becomes impossible. 63 S.C.831/2013
44. In the present case, the circumstances from which the conclusion of guilt has to be drawn is fully established. The circumstances relied upon by the prosecution have established that the accused has committed the murder of Lavanya. The circumstances established are consistent only with the hypothesis of guilt of the accused. The circumstances are conclusive in nature and tendency. The circumstances exclude every possible hypothesis except the one that accused has committed the murder of deceased. Further there is a chain of evidence so complete as not to leave any reasonable ground for conclusion in consistent with the innocence of the accused and the same shows that in all human probabilities the act is done by the accused and accused only. So the evidence of PW.1 to 20, Ex.P1 to 26 and MO.1 to 9 proves beyond reasonable doubt that death of Lavanya is homicidal death. Further prosecution has proved beyond reasonable doubt that accused has caused the death of Lavanya. In the present case, prosecution has established all the circumstances relied upon by it by adducing cogent and consistent evidence. Further the evidence adduced by the prosecution is sufficient 64 S.C.831/2013 to establish the charge leveled against the accused beyond reasonable doubt. Hence, I answered point No.1 and 2 in the AFFIRMATIVE.
45. POINT NO.3: In view of my findings on point NO.1 and 2, prosecution has proved beyond reasonable doubt that the death of Lavanya is homicidal death. Further prosecution has proved that accused has caused the death of Lavanya. Accused has tied the veil to the neck of Lavanya and put the underwear on her nose and face and due to asphyxia as a result of combined effect of smothering and ligature strangulation, caused the death of Lavanya. So the accused with intention or knowledge that his act cause the death, has caused the death of Lavanya, so the culpable homicide is murder. The act of culpable homicide of Lavanya committed by the accused will not fall in the four exceptions given to Sec.300 of I.P.C. Further it is no where case of the accused that his case will cover under any one of the exceptions given to Sec.300 of I.P.C., so the culpable homicide is amounting to murder. So, in the present case culpable homicide is amounting to murder. Hence, for the above discussions, I 65 S.C.831/2013 answered the above point that act of causing the death of Lavanya by the accused is culpable homicide amounting to murder.
46. POINT No.4: In view of my findings point No.1 to 3 and reasons stated there, I proceed to pass the following:
ORDER Acting under Sec.235(2) Cr.P.C. accused by name Ganganna @ Gangadhara @ Paapi is convicted for the offence under Sec.302 of I.P.C.
Order regarding sentence is deferred for hearing the accused on the question of sentence as contemplated under Sec.235(2) of Cr.P.C. (Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 27th day of August 2016) (SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.66 S.C.831/2013
ORDER REGARDING SENTENCE Heard the accused on sentence. Heard the learned Public Prosecutor on sentence.
2. Accused has stated that he is aged about 43 years, he is having aged mother, he is the only son to his mother, his mother is depending on him, he is having 4 married sisters, now his mother is staying with his sisters.
The offence committed by him is the first offence. Further accused has submitted that looking to the age, family background and first offence committed by him, lenient view may be taken while passing the sentence.
3. The learned Public Prosecutor has submitted that the offence committed by the accused under Sec.302 of I.P.C. is punishable with death or imprisonment for life. Further the learned Public Prosecutor has contended that looking to the present facts and circumstances of the case, accused may be punished severely.
4. The offence under Sec.302 of I.P.C. is punishable with death or imprisonment for life. Prosecution has proved 67 S.C.831/2013 beyond reasonable doubt that accused has committed the offence under Sec.302 of I.P.C. In the present case, accused is not entitled for benefit under Sec.360 of I.P.C. and Sec.3 and 4 of P.O. Act. Looking to the present facts and circumstances of the case, fact that present case is based on circumstantial evidence, mitigating circumstances against the accused and aggregative circumstances against the accused, the present case will not come under the rarest of the rare case. Only in case of rarest of the rare case, death penalty has to be awarded. Keeping in mind the facts and circumstances of the case, I feel that it is not a fit case to award extreme penalty. Looking to the present facts and circumstances of the case, sentence to suffer imprisonment for life and to pay fine of Rs.10,000/- is sufficient for the offence under Sec.302 of I.P.C. and in default of payment of fine, simple imprisonment for 6 months is sufficient. Hence, I proceed to pass the following;
ORDER Acting under Sec.235(2) of Cr.P.C., accused by name Ganganna @ Gangadhara @ Paapi is convicted for 68 S.C.831/2013 the offence under Sec.302 of IPC and sentenced to suffer imprisonment for life and to pay fine of Rs.10,000/-, in default of payment of fine, accused shall suffer simple imprisonment for six months.
The accused is entitled to set-off under Sec.428 of Cr.P.C. for the period which he has already undergone being in judicial custody. Accused is in judicial custody from 21-12-2013 till today.
Issue conviction warrant accordingly.
MO.2-Mobile and MO.3(b)-Cash of Rs.30/-, same are confiscated to the state after the appeal period is over.
MO.1, MO.3, MO.3(a), MO.4, MO.5, MO.6, MO.7, MO.8, MO.9 are worthless articles, hence ordered to be destroyed after the appeal period is over.
Office to supply copy of the Judgment to the accused free of cost.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 27th day of August 2016) (SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
69 S.C.831/2013ANNEXURE Witnesses examined for the prosecution:
PW.1 C.H.Revathi CW.1 29-04-2014
PW.2 V.A.Nagaraju CW.2 29-04-2014
PW.3 N.L.Sathish Kumar CW.11 07-07-2014
PW.4 Varadambike CW.6 27-08-2014
PW.5 Dr.Basappa S Hugar CW.22 23-09-2014
PW.6 K.Sreenivas CW.4 09-03-2015
PW.7 Chikkamariyappa CW.5 09-03-2015
PW.8 Kavith CW.7 17-06-2015
PW.9 Rachaiah CW.19 07-07-2015
PW.10 Sudha CW.18 22-07-2015
PW.11 Vanaraja CW.14 22-07-2015
PW.12 Smt.Komala CW.16 28-09-2015
PW.13 Smt.Manjula CW.17 28-09-2015
PW.14 Smt.Gangalakshmi CW.18 28-09-2015
PW.15 Thimmegowda CW.15 28-09-2015
PW.16 E.S.Mahesh CW.24 07-12-2015
PW.17 H.G.Lakshmanaiah CW.23 29-12-2015
PW.18 Smt.Dalamma CW.20 02-02-2016
PW.19 B.N.Shamanna CW.25 02-02-2016
PW.20 B.R.Yathiraj CW.26 15-03-2016
Documents marked for the prosecution:
Ex.P1 Complaint PW.1 29-04-2014
Ex.P1(a) Signature of PW.1 PW.1 29-04-2014
70 S.C.831/2013
Ex.P1(b) Signature of PW.1 PW.1 29-04-2014
Ex.P2 Seizure Mahazar PW.3 07-07-2014
Ex.P2(a) Statement of PW.3 PW.3 07-07-2014
Ex.P3 Postmortem Report PW.5 23-09-2014
Ex.P4 Two marriage photos PW.1 05-01-2015
Ex.P5 One Photo PW.1 05-01-2015
Ex.P6 Notice given to the Inquest PW.6 09-03-2015
Mahazar Panchas
Ex.P6(a) Signature of PW.6 PW.6 09-03-2015
Ex.P6(b) Signature of PW.7 PW.7 09-03-2015
Ex.P7 Inquest Report PW.6 09-03-2015
Ex.P7(a) Signature of PW.6 PW.6 09-03-2015
Ex.P7(b) Signature of PW.7 PW.7 09-03-2015
Ex.P7(c) Statement of PW.10 PW.10
(c1)
Ex.P8 Statement of PW.9 PW.9 07-07-2015
Ex.P9 Spot Mahazar CW.16 28-09-2015
Ex.P9(a) Signature of PW.12 PW.12 28-09-2015
Ex.P9(b) Signature of PW.15 PW.15 28-09-2015
Ex.P10 Spot sketch CW.16 28-09-2015
Ex.P10(a) Signature of PW.12 PW.12 28-09-2015
Ex.P10(b) Signature of PW.15 PW.15 28-09-2015
Ex.P11 Statement of PW.13 CW.17 28-09-2015
Ex.P12 Statement of PW.14 CW.18 28-09-2015
Ex.P14 FIR 99/2013 CW.24 07-12-2015
71 S.C.831/2013
Ex.P15 Report of H.C.4455 PW.17 29-12-2015
Ex.P15(a) Signature of PW.17 PW.17 29-12-2015
Ex.P16 Rental Agreement PW.18 02-02-2016
Ex.P16(a) Signature of PW.18 PW.18 02-02-2016
Ex.P17 Form No.146(i) PW.19 02-02-2016
Ex.P17(a) Signature of PW.19 PW.19 02-02-2016
Ex.P18 Form No.146(ii) PW.19 02-02-2016
Ex.P18(a) Signature of PW.19 PW.19 02-02-2016
Ex.P19 Report of H.C.4520 PW.19 02-02-2016
Ex.P20 P.F.39/2013 PW.19 02-02-2016
Ex.P21 Voluntary statement of PW.19 02-02-2016
accused
Ex.P22 4 Photos PW.19 02-02-2016
Ex.P23 P.F.No.40/2013 PW.19 02-02-2016
Ex.P23(a) Signature of PW.19 PW.19 02-02-2016
Ex.P24 P.F.82/2013 PW.19 02-02-2016
Ex.P24(a) Signature of PW.19 PW.19 02-02-2016
Ex.P25 Complaint PW.19 02-02-2016
Ex.P26 Statement of accused PW.19 02-02-2016
Material objects marked for the prosecution:
MO.1 Door lock key
MO.2 Mobile Phone of accused
MO.3 Purse of accused
MO.3(a) Photo of accused
MO.3(b) Rs.10/- three currency notes
72 S.C.831/2013
MO.4 Red colour shirt
MO.5 Blue colour 3/4th Pant
MO.6 White colour underwear
MO.7 One pink colour synthetic veil
MO.8 White colour underwear
MO.9 Blood with preservative Sodium Fluoride
Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.