Karnataka High Court
Ananda vs The State Of Karnataka on 1 April, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL No.1220 OF 2018
BETWEEN:
1. ANANDA
S/O LATE MUTTUSWAMY
AGED ABOUT 48 YEARS
CENTERING WORK
R/AT NO.183, 23B,
JADAL NAIDU STREET
JAYANAGAR, PERIYANAYAKAN PALYAM
COIMBATORE TALUK AND DISTRICT
TAMILNADU STATE.
2. ANANDI
W/O ANANDA
AGED ABOUT 48 YEARS
CENTERING WORK
R/AT NO.193, 23B,
JADAL NAIDU STREET
JAYANAGAR, PERIYANAYAKAN PALYAM
COIMBATORE TALUK AND DISTRICT
TAMILNADU STATE.
...APPELLANTS
(BY SRI DAROJI, ADVOCATE)
2
AND:
THE STATE OF KARNATAKA
REP. BY STATE PUBLIC PROSECUTOR
BY: T.NARASIPURA POLICE STATION
MYSORE-572103
AMBEDKAR VEEDI
HIGH COURT BUILDING
BANGALORE-560 001
...RESPONDENT
(BY SRI K NAGESHWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF
CONVICTION AND SENTENCE DATED 02.11.2017 PASSED BY
THE III ADDITIONAL SESSIONS JUDGE, MYSURU, IN
S.C.NO.11/2013 CONVICTING THE APPELLANTS/ACCUSED
NOS.1 AND 2 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302 AND 364 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B. VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
Accused Nos.1 and 2, who are the dutiful husband and wife, have filed the present criminal appeal against the impugned judgment of conviction and order of sentence dated 02.11.2017 made in S.C.No.11/2013 on the file of the III Additional Sessions Judge, Mysuru, convicting accused Nos.1 and 2 for the offences punishable under the provisions of Sections 364 and 302 read with 34 of Indian Penal Code, 1860 (for short 'IPC'), imposing punishment of 3 life with fine of Rs.5,000/- each and rigorous imprisonment of four years with fine of Rs.5,000/- each, respectively.
2. It is the case of the prosecution that an unidentified dead body, aged about 50 years, was found in the agricultural land belonging to PW.1-Siddaraju thereby, Siddaraju lodged a complaint as per Ex.P.1, dated 21.08.2012, at about 2.30 p.m. The same was registered by the jurisdictional Police in Crime No.240/2012 at about 3.00 p.m. under the provisions of Sections 364 and 302 of IPC. Based on the aforesaid complaint, the Investigating Officer conducted inquest mahazar at the spot as per Ex.P.2. Thereafter, the dead body was forwarded for Post Mortem. At the spot where the dead body was found, three bottles containing some liquid and a napkin were also found along with a pair of plastic slippers, which were marked as M.Os.1 to 5. The Doctor-PW.17, who conducted the Post-Mortem, collected the viscera and other organs (heart, lungs, stomach, liver and kidney) and forwarded the same to the Investigating Officer along with 4 the clothes of the deceased i.e. Blouse-M.O.6, Pettycoat- M.O.7, Saree-M.O.8 along with one gold nose stud, which was on the dead body and the same were received by the Police and sent to the Forensic Science Laboratory (FSL) for opinion.
3. It is the further case of the prosecution that there was a Tailor's label on the Blouse, which contained a phone number and the Investigating Officer was able to trace the said phone number pertaining to a tailor shop in Gudlur Panchayat, Coimbatore District, Tamilnadu. The Investigating Officer contacted the jurisdictional Periyanayakana Palyam Police Station and came to know that a missing complaint has been lodged in respect of one Mariya Pushpam (the deceased). The Investigating Officer forwarded the photographs of the dead body to Periyanayakana Palyam Police Station by e-mail and on that basis, the son and the brother of the deceased i.e. PWs.5 and 6 came to T.Narasipura Police Station and identified the dead body with reference to the photographs 5 and also the clothes which were found on the dead body. Thereafter, the Police have conducted the investigation and obtained Call Detail Record (CDR) relating to deceased's phone number and on receipt of the same, the Police found that there were two phone numbers which were in continuous contact with the deceased's phone number just before the disappearance of the deceased. On the basis of this information, T.Narasipura Police team went to Periyanayakana Palyam and apprehended accused Nos.1 and 2, who are the residents of Periyanayakana Palyam. Thereafter, the Investigating Officer recorded the voluntary statement of the accused persons as per Exs.P.46 and P.47 wherein, accused Nos.1 and 2 have stated that they will show the jewels and other articles belonging to the deceased which are in their house and on the basis of the said disclosure, the Police recovered certain jewels, mobile phone and other documents from the house of accused Nos.1 and 2. The Police also took accused Nos.1 and 2 to the house of the deceased where, the son of the deceased produced the mobile phone box, 6 promissory note for Rs.10,000/- executed by accused No.2 and the documents relating to purchase of the said mobile phone. It is alleged that the accused took the Police to the spot where accused No.2 threw the Vanity Bag of the deceased, but the Vanity Bag was not recovered from the said spot. Thereafter, on the basis of the disclosure made by the accused and on the basis of the receipt recovered from the house of the accused, the Police took the accused to India Info Line Finance Limited (IIFL), Periyanayakana Palyam, Ganapathy Finance and Balaji Finance where, on the basis of the disclosure of the accused, the Police recovered several gold ornaments, which were pledged by the accused for raising loans.
4. It is further alleged that accused Nos.1 and 2 took the Police to Satyamangala Bus Stand where accused No.1 parked his motorbike on the date of the incident. On the basis of the investigation, the deceased was working as a Distributor of Amway Company and she introduced accused No.2 also to become a distributor of the said 7 company. It is alleged that the fee of Rs.10,000/-, which has to be paid by accused No.2 to the said company was paid by the deceased on behalf of accused No.2 and accused No.2 executed a Promissory Note in favour of the deceased. In furtherance of the prosecution version, accused Nos.1 and 2 were paying monthly installment of Rs.500/- as arrears for about four years, in spite of the same, the deceased was insisting that still Rs.6,000/- remained due from accused No.2. In that regard, she was coming to the house of the accused creating disturbance and demanding repayment. Fed-up of the same and also to make unlawful gain by stealing her gold ornaments, accused Nos.1 and 2 induced the deceased that they will introduce Amway customers in Mysuru and Kollegal area to her and on that basis, the accused took the deceased from Periyanayakana Palyam to T.Narasipura on 20.08.2012 and on the intervening night between 20/21.08.2012, in the field of PW.1 where they were spending the night, the accused mixed sleeping tablets with water in the bottle- M.O.3 and induced the deceased to drink the same. As a 8 result of drinking the same, the deceased became drowsy and thereafter, accused No.1 smothered the mouth and nose of the deceased with Napkin-M.O.5 and thereby, killed her. Thereafter, the accused relieved the deceased of her jewels and fled. Accordingly, the jurisdictional Police filed charge sheet against the accused persons for the offences punishable under the provisions of Section 364 and 302 read with 34 of IPC. After committal of the matter, the learned Sessions Judge, secured the presence of accused Nos.1 and 2, framed the charges for the offences punishable under Sections 364 and 302 read with 34 of IPC and read over the same to accused Nos.1 and 2 in the language known to them. The accused pleaded not guilty and claimed to be the tried.
5. In order to prove the case, the prosecution examined, in all, 28 witnesses as PWs. 1 to 28, got marked documents as per Exs.P.1 to P.47 and the material objects as per M.Os.1 to 35. The Court also examined one Manjunath (Translator) as C.W.1. After completion of the 9 evidence of the prosecution witnesses, the statement of accused Nos.1 and 2, as contemplated under Section 313 of Cr.P.C., were recorded. The accused persons denied all incriminating circumstances and did not adduce any evidence.
6. Based on the aforesaid pleadings, the learned Sessions Judge, framed four points for its consideration. Considering both oral and documentary evidence on record, the learned Sessions Judge answered Point Nos.1, 2 and 4 in the affirmative and Point No.3, partly in the affirmative holding that the prosecution has proved beyond reasonable doubt that the dead body which was recovered from the field of PW.1 on 21.08.2022 is the deceased Mariya Pushpam and it is a homicidal death caused by accused Nos.1 and 2. Further held that, accused Nos.1 and 2 caused the death of Mariya Pushpam punishable under the provisions of Section 302 of IPC after abducting her from Periyanayakana Palyam, took her to the field of PW.1 in order to murder her which is punishable under 10 Section 364 of IPC. Accordingly, the learned Sessions Judge proceeded to convict the accused for the aforesaid offences. Hence, the present appeal.
7. We have heard learned counsel for the parties.
8. Sri P K Daroji, learned counsel for the appellants, contended with vehemence that the impugned judgment of conviction convicting the accused for the offences under Sections 364 and 302 read with 34 of IPC is erroneous, contrary to the material on record and cannot be sustained. He further contended that the entire case of the prosecution is based on circumstantial evidence and the prosecution has not completely established the chain of circumstances thereby, the accused are entitled for an order of acquittal. He further contended that initially, the FIR was registered against unknown persons as per Ex.P.1. After the investigation, accused Nos.1 and 2 have been falsely implicated mainly on the basis of Exs.P.7 to P.11, the photographs of the dead body, said to be taken in Station Digital Camera and CDR. In the absence of any 11 certificate issued by the author under Section 65B of the Evidence Act or author being not examined, the very conviction by the learned Sessions Judge cannot be sustained. He further contended that the alleged motive, last seen theory and recovery are not proved at the instance of the accused. Exs.P.41, P.42 and P.43 are the CDRs issued by the authority, which has not been examined. Thereby, the very conviction passed by the learned Sessions Judge on the basis of presumption and assumption cannot be sustained. Hence, he sought to allow the appeal.
9. Per contra, Sri K Nageshwarappa, learned High Court Government Pleader for the respondent-State contended that the learned Sessions Judge has considered the evidence of PWs.13 and 19 with regard to last seen theory, recovery spoken to by PW.20 and PW.19 as per Ex.P.19 and M.Os.11 to 13, pledging of the gold ornaments. Upon recording the voluntary statement of the accused, they have disclosed about the killing of the deceased and 12 pledging of gold ornaments. He would further contend that PW.5, the son of the deceased identified the jewels M.Os.31 to 35. M.O.12 is the sanction letter dated 21.08.2012 for pledging the jewels at about 4.00 p.m. The incident occurred on the intervening date of 20/21.08.2012 at about 2.30 p.m. On the same day, the complaint was lodged and after the incident, accused No.2 pledged the ornaments as per M.O.12 and received an amount of Rs.50,000/-. There is absolutely no explanation in the statement under Section 313 of Cr.P.C. and the accused persons do not claim that the ornaments recovered belongs to them. In the absence of any explanation being offered by the accused persons, adverse inference has to be drawn. The circumstances proved both motive and recovery and thereby, the learned Sessions Judge is justified in convicting the accused. Therefore, he sought to dismiss the appeal. 13
10. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present appeal is, "Whether the accused Nos.1 and 2 have made out a case to interfere with the impugned judgment of conviction and order of sentence dated 02.11.2017 passed by the learned Sessions Judge convicting the accused for the offences punishable under the provisions of Section 364 and 302 read with 34 of IPC in the facts and circumstances of the present case?"
11. We have given our anxious consideration to the arguments advanced by learned counsel for the parties and perused the entire material on record carefully.
12. This Court being the appellate Court, in order to re- appreciate the entire oral and documentary evidence on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied thereupon, in detail.
14
i) PW.1-Siddaraju is the complainant in whose land the dead body was found and he identified the dead body.
ii) PW.2-Bellegowda and PW.3-M M Jagadeesh identified the dead body of the deceased in the land of PW.1. They have also deposed about the lodging of complaint.
iii) PW.4-Prasannakumar is the Police Constable who shifted the dead body to the hospital for Post-Mortem and brought back the clothes M.Os.6 to 8 and gold nose stud, which were on the dead body and produced them before the Investigating Officer. He supported the case of the prosecution.
iv) PW.5-Anthony Babu is the son of the deceased who deposed that his mother lived alone in Periyanayakana Palyam in the first floor of the house and she had given the ground floor for rent and she was doing the business of selling Amway products. He further 15 deposed that he spoke to his mother for the last time telephonically on 20.08.2012 as she had to attend a marriage at Tiruchi on 22.08.2012, but she did not attend the marriage.
v) PW.6-James Pakyam, who is the brother of the deceased also deposed on par with PW.5 and also deposed that on 23.08.2012, they went to T.Narsipura Police Station and identified M.O.1-Slippers, M.Os.6 to 8-clothes of deceased and also identified the photographs of the dead body as per Exs.P.7 to P.11 as that of the deceased Mariya Pushpam. PW.5 also identified M.O.35-gold nose stud, which was found on the dead body belonged to his mother. Both PWs.5 and 6 further deposed that the deceased used to wear gold neck chain, dollar, nose stud, bangles and rings. They also identified M.O.9-mobile phone box and the phone bill issued by the Univercell showroom regarding purchase of mobile phone at Ex.P.13.
They also identified the promissory note signed by accused No.2 as per Ex.P.14 under Ex.P.12-Mahazar. PW.5 16 identified M.Os.31, 32, 33 and 35, 24, 26, 29 and 30- ornaments and M.O.20 - mobile phone as that of his mother. He supported the case of the prosecution.
vi) PW.7-Senthilkumar, who is distributor of Amway Company deposed that the deceased was working as a distributor in the said company and the deceased introduced accused No.2 as a member of the said company. He further deposed that on 20.08.2012, the deceased sought for 4 applications forms of Amway Company on the ground that she is going to introduce new members to the said company and accordingly, on the same day at 12.00 p.m., he visited the house of the deceased and handed over the said application forms to her. He supported the case of the prosecution.
vii) PW.8-Smt. Lourde Mary deposed that she is acquainted with the deceased and also seen the accused, who lived in the adjacent area. She further deposed about the deceased being the distributor of Amway Company. She further deposed that the deceased had told her that 17 accused No.2 had borrowed money from her and when she sought repayment of the said money, there was a quarrel between them. Thereby, she supported the case of the prosecution.
viii) PW.9-Smt. Shanthamani also deposed that she knew the deceased for the past 15 years who was working as a distributor in Amway Company and the deceased told her that one Anandi has to owe money to her. She supported the case of the prosecution.
ix) PW.10-Smt. Gowrigunashekar has deposed that she was the tenant of the deceased and on 20.08.2012 at 11.30 a.m., the deceased came to her house and told her that she is going to Mysuru for personal work and from there going to Tiruchi. She supported the case of the prosecution.
x) PW.11-Ramaswamy has deposed that the accused are the tenants in his house and he is also acquainted with the deceased as she had come to the 18 house of accused on one occasion and he has seen the same. He has supported the case of the prosecution.
xi) PW.12-Doreswamy is also a tenant in the building belonging to PW.11 and neighbor of the accused. He deposed that he is also acquainted with the deceased for 2 to 3 years. He has stated on oath that the deceased used to visit the house of the accused since she had introduced accused No.2 as member of Amway company and on one occasion, the deceased came near the house of the accused and demanded repayment of Rs.10,000/-. He further deposed that on 20.08.2012, accused Nos.1 and 2 left their house and came back only in the afternoon of 21.08.2012. He supported the case of the prosecution.
xii) PW.13-Mahadevaswamy, who was working as Home Guard deposed about seeing accused Nos.1 and 2 with deceased on 20.08.2012 at 11.15 p.m. at Santemaranahalli within the limits of Chamarajanagar Police Station. He supported the case of the prosecution. 19
xiii) PW.14-Veeresh is a panch witness who deposed about Ex.P.19-mahazar regarding recovery of mobile phone, ornaments, money and documents from the house of the accused, Ex.P.12-mahazar, under which the mobile phone box, phone purchase bill and promissory note were seized from the house of the deceased and Exs.P.20 to P.22-mahazars under which the gold ornaments which were pledged were seized from IIFL, Ganapathy Finance and Balaji Finance on the basis of the voluntary statement of the accused. He supported the case of the prosecution.
xiv) PW.15-Shankar is the Police Constable who carried the FIR to the Magistrate.
xv) PW.16-Smt. Kruthika is the Scientific Officer of Regional FSL, who deposed about submitting the report as per Ex.P.25 detecting the presence of Benzodiazypine in a bottle found adjacent to the dead body and also in the viscera of the dead body. She supported the case of the prosecution.
20
xvi) PW.17-Smt. Lokeshwari is the Doctor who conducted the Post-mortem and issued Post-mortem Report Ex.P.26. She supported the case of the prosecution.
xvii) PW.18-Shivaraju, who is the mahazar witness to Ex.P.23 under which, it is alleged that accused No.2 showed the spot where she threw the Vanity Bag of deceased into a stream, but it is not of much significance because no recovery is made of said vanity bag at the said spot.
xviii) PW.19-Shantamallappa, who was working as Police Constable of Chamarajanagar Town Police Station has deposed on par with PW.13 regarding seeing accused Nos.1 and 2 along with the deceased on 20.08.2012 at 11.15 p.m. at Santemaranahalli.
xix) PW.20-Raju has deposed that he has given his motorbike to accused No.1, who used the same in the offence. He further deposed that he produced the 21 photographs as per Exs.P.27 and P.28 and also the Delivery Note in respect of the motorbike at Ex.P.29 before the T.Narasipura Police. He also deposed that accused No.1 had taken loan of Rs.4,000/- from him, which he returned to PW.20 and on being told by T.Narasipura Police that the said amount given by accused No.1 is the money obtained by selling the gold ornaments of the deceased. He produced the money before the Police and at that time, another person by name Marimuthu also produced Rs.3,000/- before the Police. He supported the case of the prosecution.
xx) PW.21-Anthony Swamy is the neighbor of the accused and panch witness to Ex.P.19 regarding recovery of gold ornaments, cash of Rs.20,000/-, documents and mobile phone from the house of the accused, mahazars at Exs.P.20 to P.22 regarding recovery of pledged gold ornaments from the Finance Companies on the disclosure of the accused and also Mahazar at Ex.P.12 regarding seizure of mobile box, promissory note and phone bill etc., 22 He supported the case of the prosecution on par with PW.5.
xxi) PW.22-Sudha, who was working as Gold Appraiser in IIFL identified accused Nos.1 and 2 as persons who had pledged the gold ornaments in the said company. She also stated that the Police had brought accused Nos.1 and 2 on 29.08.2012 and at that time, seized the gold ornaments pledged by accused Nos.1 and 2 as per Ex.P.20. Ex.P.32 is the document issued by the said Finance Company intimating the Police regarding pledging of gold ornaments by accused Nos.1 and 2. She also identified the sanction letter at M.O.12 issued at the time of advancing the gold loan to accused and she has also identified the photograph of accused No.2 on the said M.O.12. She identified the jewels worn by the deceased in the photographs at Exs.P.4 to P.6 are seen in M.O.12 and are same as M.O.32 and M.O.33 produced before the Court, which are the ear-rings and gold chain pledged by accused No.2 in IIFL company.
23
xxii) PW.23-Gunashekaran, who deposed that he is running vehicle parking stand in Satyamangalam. He deposed that xerox copy of his Register as per Ex.P.33 disclose that the motorbike bearing No.TN-37-BF-4811 was parked in the said stand on 20.08.2012 and taken out on 21.08.2012. According to the prosecution, in order to avoid being seen together with the deceased in Periyanayakana Palyam, accused No.1 dropped accused No.2 in Metupalyam bus stand, from where the deceased and accused No.2 came together in a bus to Satyamangalam and accused No.1 went to Satyamangalam in the said motorbike and parked the motorbike in the said vehicle stand managed by PW.23 and from Satyamangalam, all the three proceeded towards T.Narasipura.
xxiii) PW.24-Mariswamy is the mahazar witness to the mahazar at Ex.P.30 regarding seizure of the motorbike in the Police station. He supported the case of the prosecution.
24
xxiv) PW.25-Javaraiah, who was working as a Police Constable in T.Narasipura Police Station has deposed about assisting the Investigating Officer in various investigation and mahazars done in this case. He supported the case of the prosecution.
xxv) PW.26-Sundar Raj is the Circle Inspector of T.Narasipura, who has deposed that after completing the investigation in-part, handed over the same to PW.28, who investigated the matter on the basis of the disclosure made by the accused. He supported the case of the prosecution.
xxvi) PW.27-Balakumar has deposed to the fact that he has translated the FIR at Ex.P.15 and produced the translated copy at Ex.P.39. He supported the case of the prosecution.
xxvii) PW.28-Santhosh Kashyap, who was working as PSI, T.Narasipura has deposed about the inquest mahazar, finding of M.Os.1 to 5 adjacent to the dead body, 25 apprehending the accused on the basis of suspicion since the CDR of deceased's phone number revealed several phone calls between the deceased and the accused persons. He supported the case of the prosecution.
Based on the aforesaid material on record, the leased Sessions Judge proceeded to convict the accused.
13. In order prove the case of the prosecution, at this stage, it is relevant to consider the following three circumstances:-
(i) Motive;
(ii) last seen theory and
(iii) recovery of ornaments.
(i) Motive
14. As already stated supra, PWs.7, 8 and 9 have deposed that the deceased was a distributor of Amway Company and she introduced accused No.2 as a member to the said company. In fact, on 20.08.2012, immediately before the death of the deceased, the deceased telephoned to PW.7 and asked for four application forms on the 26 ground that she is going to introduce new members to the said company and accordingly, on the same day at 12.00 p.m., he visited the house of the deceased and handed over the said application forms to her. Other witnesses who have spoken about the motive is PWs.8 and 9, who have deposed that the deceased told them regarding her financial transaction with accused No.2 and she has given some amount to accused No.2, but accused No.2 has not repaid the same to her. The evidence of PWs.8 and 9 that they have the knowledge of the fight between the deceased and the accused as the deceased had told them about the same, though it amounts to hearsay evidence, but hearsay evidence is admissible. As the statement of PWs.8 and 9 clearly disclose that accused No.2 had borrowed money from the deceased, thereby there was a quarrel between them. Nothing has been elicited in the cross-examination of PWs.8 and 9. It is further relevant to state at this stage that PW.11, the house owner of the accused and PW.12, the neighbor of the accused, have deposed about the fact of acquaintance of the deceased 27 and the accused. In fact, the deceased used to visit the house of the accused seeking repayment of loan. Nothing has been elicited in the cross-examination of PWs.11 and 12, though the cross-examination was at some length. Thus, the motive is also proved.
15. The accused persons have not denied in the cross- examination the motive spoken to by the aforesaid witnesses nor offered any explanation while denying the incriminating circumstances. While recording the statement of the accused under Section 313 of Cr.P.C., except total denial, they have not offered any explanation. Once the prosecution has discharged its initial burden of proving the involvement of accused Nos.1 and 2, it is for the accused to offer an explanation as the witnesses stated supra have stated about the acquaintance between the deceased and the accused as there was money transaction between them. In the absence of any explanation, adverse inference has to be drawn against the accused. Our view is fortified by the dictum of the Hon'ble Supreme 28 Court in the case of Prahlad vs. State of Rajasthan reported (2019)14 SCC 438, paragraph 11, which is as under;
"11. No explanation is forthcoming from the statement of the accused under Section 313 of Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an advance inference against the accused."
(ii) Last seen theory.
16. The evidence of PW.13-Mahadevaswamy, PW.19- Shantamallappa, PW.22-Sudha, the gold appraiser, PW.23- Gunashekaran, have categorically stated that they have last seen the deceased with the accused. In fact, PW.22, the gold appraiser, has specifically stated on oath that she identified accused Nos.1 and 2 as persons who pledged the gold ornaments in IIFL company. She has also stated that the Police brought accused Nos.1 and 2 on 29.08.2012 and 29 seized the gold ornaments pledged by accused Nos.1 and 2 as per the mahazar at Ex.P.20. She has further deposed about Ex.P.32, the document issued by the said Finance Company, intimating the Police regarding pledging of gold ornaments by accused Nos.1 and 2. She has also identified the Sanction Letter at M.O.12, which had been seized from the house of the accused as the sanction letter was issued at the time of advancing gold loan to the accused. She has also identified the photograph of accused No.2 on the said M.O.12 and identified that the jewels worn by the deceased in the photographs at Exs.P.4 to P.6 are seen in M.O.12 and are same as M.Os.32 and 33 produced before the Court, which are ear-rings and gold chain respectively which were pledged by accused No.2 in IIFL. It is relevant to state at this stage that while recording the statement of accused No.2 under Section 313 of Cr.P.C., she has signed in Kannada, while pledging the ornaments on 21.08.2012 at about 4.00 p.m. after the incident had occurred on 20.08.2012 and after the complaint is lodged to the Police on the same day at about 30 2.30 p.m., she has signed the pledging document M.O.12 in English and in the election ID issued by Election Commission, she has signed in Tamil. Thereby, it clearly depicted that the accused No.2 is very clever and at each of the circumstances, she has signed in difference languages. Thereby, the last seen theory is also proved in view of the aforesaid evidence of the prosecution witnesses.
(iii) Recovery of ornaments.
17. It is also not in dispute that PWs.5 and 7 identified the jewels M.Os.32 and 33. The incident occurred on 20/21.08.2012 and complaint was lodged at 2.30 p.m. On the very same day, accused No.2 pledged the ornaments as per M.O.12-sanction letter issued on 21.08.2012 at about 4.00 p.m. These circumstances proved the involvement of the accused. Though the voluntary statement of the accused as per Exs.P.46 and 47 depicts no ground for conviction, but the statement corroborates with the other evidence of the prosecution witnesses and 31 the material documents at M.O.12, 32 and 33. It is also not in dispute that on the voluntary statement of accused Nos.1 and 2, the articles at M.Os.11 to 30 have been recovered from the house of the accused as per Ex.P.19 and on the basis of the disclosure of the accused persons, gold ornaments pledged by them in the Finance Companies have been recovered as per Ex.P.20 to P.22. It is also no doubt true that PW.20 has deposed that he had given the motorbike to accused No.1 for his use. However, when the said motorbike was produced before the Police admittedly by PW.20, it is difficult to believe that it was being used by accused No.1. In Ex.P.23-mahazar, it is alleged that accused No.2 showed the spot where she threw the vanity bag of the deceased. Exs.P.19, 20 to 22 are the important recovery mahazars from the house of the accused. Apart from that, the mahazar at Ex.P.12 seized in the house of the deceased wherein the son of the deceased produced the mobile phone box regarding purchase of mobile phone. These are the important mahazars sufficient to prove by the evidence of PW.14. Though nothing has been elicited 32 in the lengthy cross-examination of the prosecution witnesses, the evidence of independent witnesses to the prosecution proved the recovery under mahazars Exs.P.19, P.20 to P.22 and also mahazar regarding seizure of properties from the house of the deceased under Ex.P.12 was spoken to by the son of the deceased, which is also stated by the Investigating Officer. Thereby, the prosecution has successfully proved the circumstances involving homicidal death of the deceased.
18. Considering the entire material on record, the learned Sessions Judge has passed a well-founded impugned judgment of conviction and order of sentence and the accused have not made out any ground to interfere with the same.
19. For the reasons stated above, the point for consideration raised in the present appeal is answered in the Negative holding that accused Nos.1 and 2 have not made out any ground to interfere with the impugned judgment of conviction convicting the accused Nos.1 and 2 33 for the offences punishable under the provisions of Sections 364 and 302 of IPC and the learned Sessions Judge is justified in convicting the accused and the same is in accordance with law. The accused persons have not made out any ground to interfere with the same in exercise of the appellate power of this Court under Section 374(2) of Cr.P.C.
20. In view of the above, we pass the following:
Order
(i) The criminal appeal filed by accused Nos.1 and 2 are hereby dismissed.
(ii) The impugned judgment of conviction and order of sentence passed by the learned Sessions Judge stands confirmed.
Sd/-
JUDGE Sd/-
JUDGE mv