Karnataka High Court
Murugeshan @ Mukesh vs State Of Karnataka on 20 July, 2018
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2018
PRESENT
THE HON'BLE MR. JUSTICE B.A. PATIL
AND
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.787/2013
BETWEEN:
Murugeshan @ Mukesh
S/o Thimmaiah
Aged about 37 years
Kongu Vellal Goundar,
Veppala Halli Village & Post
Palakodu Taluk, Dharmpuri District
Tamil Nadu State.
... Appellant
(By Ms. Pooja Kattimani, Amicus Curiae)
AND:
State of Karnataka
By Lashkar Police Station
Mysore City & District.
... Respondent
(By Sri Chetan Desai, HCGP)
This Criminal Appeal is filed under Section 374(2)
of Cr.P.C praying to set aside the judgment and order
dated 19.04.2013 passed by the C/C VI Additional
Sessions Judge and Spl. Court under SC & ST (POA)
Act, 1989, Mysore, in Spl. C.No.29/2011 convicting the
appellant/accused for the offences punishable under
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Section 302 of Indian Penal Code and Sections
3(1)(xi), 3(1)(xii), 3(2)(V) of SC and ST (POA) Act,
1989.
This Criminal Appeal having been heard and
reserved on 23.06.2018 coming on for pronouncement
of judgment this day, B.A.PATIL J., delivered the
following:-
JUDGMENT
Accused-appellant has filed this appeal against the judgment and order of conviction and sentence dated 19.4.2013 passed by the VI Additional District and Sessions Judge and Special Court under SC & ST (POA) Act, 1989 at Mysore in Spl.Case No.29/2011.
2. Case of the prosecution in brief is that the complainant-Varadaraju, working as a Cashier/Manager in Raj Residency Lodge at Mysore, filed a complaint alleging that on 11.1.2011 at about 6.30 p.m., PW.3-Ravi, a broker brought a male and female persons in an autorickshaw from KSRTC Rural Bus Stand and informed the complainant that the said two persons are husband and wife, they came for sight seeing of Mysore, they will stay for one night in his -3- lodge and next day morning they will go for sight seeing and requested him to provide a room to them. When he enquired the name and address of the said male person, he wrote his name as T.Mukesh, S/o.Veerachandra P.O, Bangalore, with his own writing in the Ledger maintained by the Lodge and when he was asked his full and permanent address, he gave as Door No.72/40A, 1st Cross, Electronic City, Rajendranagar, Bangalore and his phone number as 08428708011. The same was also written by the complainant in his own handwriting. The said two persons were talking in tamil and the lady who accompanied the said person was carrying a plastic bag which was white colour. Thereafter they were allotted Room No.201 after having paid Rs.500/- as an advance amount. The complainant also gave the receipt for the same. It is further case of the complainant that he himself took them to Room No.201 to show the room and at that time, the lady was telling in tamil "Chinnayirkada' for which the male -4- person replied "nallayirkada". Thereafter, at about 7.00 p.m. the complainant alone went and knocked the door of the room and at that time, the said male person came and opened the door. The complainant asked him as to they need any service for which he replied that they do not want any service. At that time also, the said lady was in the room. Thereafter the complainant came back to the staff room and slept. It is further case of the complainant that on the next day i.e., on 12.1.2011 at about 6.30 or 6.45 a.m., when the said male person alone was going out, PW.2, colleague of the complainant made an enquiry for which he replied that he was going out for having tea. It is further case of the complainant that at about 9.00 a.m., as usual he came to attend his duty in the reception counter and at that time, one Ismail of Durga Travels came to call the persons staying in Room No.201 for the purpose of sight seeing. The complainant went to Room No.201 and noticed that the door was locked from the outside. Thereafter, he came -5- back and enquired with his colleague Lingaraju, who told that the said person has gone outside to have tea and did not come back. Thereafter both of them went to the room and knocked the door, but there was no response from inside the room. By suspecting, they peeped through the hole of the door and they found that the lady who had come along with the said male person had slept on the cot in prostrate posture (lying flat facing towards the down) and she did not get alert even when they tapped the door. They suspected and intimated the said fact to the owner of the lodge as well as to the police. Thereafter the police came and requested to give the master key and accordingly, with the help of the master key, the door was opened by the police and after entering the room, they found that there were no clothes over the body of the said lady except the blouse and on verification, they found ligature marks on her neck and there was no respiration and she had already breathed her last. On observing the said body, it occurred to the mind of the -6- complainant that the person who had accompanied the lady under the name and style 'T. Mukesh' might have had sexual intercourse and she might have resisted the same and during that process, the said person might have murdered her with the help of some thread by strangulation. On the basis of the said complaint at Ex.P1, a case was registered in Crime No.11/2011 by Lashkar Police, Mysore City, against the accused for the offences punishable under Sections 302, 376, 397 of IPC and Sections 3(1)(xi), 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Initially, the FIR was submitted to JMFC Court, Mysore. Since the offences were also covering under the said Act, after completion of investigation, the charge sheet was submitted to the Special Court under SC & ST(POA) Act. The Special Court after observing the formalities and after hearing the learned Public Prosecutor and the learned counsel for the accused, framed the charge, which was read over and explained to the accused. The accused denied the -7- same and as he intended to face the trial, the trial was fixed.
3. In order to prove its case, the prosecution in all has examined 25 witnesses and got marked 45 Exhibits and 25 Material Objects. Thereafter, the accused was examined under Section 313 of Cr.P.C. by putting incriminating material as against him. He denied the same. He got marked the document at Ex.D1 on his behalf. After hearing both the parties, the trial Court acquitted the accused of the offences punishable under Sections 376 and 397 of IPC, but has convicted him for the offence punishable under Section 302 of IPC and also under Sections 3(1)(xi), 3(1)(xii) and 3(2)(v) of the SC & ST (POA) Act. Assailing the same, the accused-appellant is before this Court.
4. We have heard Ms.Pooja Kattimani, the learned amicus curiae representing the accused- -8- appellant herein and Sri Chetan Desai, learned HCGP for the respondent-State.
5. The learned amicus curiae, apart from the grounds urged at Sl.Nos.6 to 9 in the appeal memo, submitted that the name of the accused is Murgesh @ Murgeshan, but the person who has taken the room in Raj Residency is one Mukesh and hence the name of the accused does not tally at all. There was no description of the person who accompanied the deceased and booked the room. In the absence of such material, the trial Court ought to have acquitted the accused. She further submitted that all the circumstances on which the prosecution is intending to rely upon, have not been proved. If the chain of events has not been proved, then under such circumstances, the accused is entitled to the benefit of doubt. She further submitted that the prosecution has not clearly established the motive for the alleged offence. In the absence of motive, when the entire case rests on circumstantial evidence, the accused -9- ought not to have been convicted. She further submitted that the prosecution has not held the TI parade and even the evidence of handwriting expert has also not been proved in accordance with law. She further submitted that there was no recovery made at the instance of the accused from the place of the incident as well as subsequently from the possession of the accused. She further submitted that PW.5, father of the deceased and PW.9, husband of the deceased have not stated any specific cause for taking the deceased by the accused. She further submitted that when there is no worth believable material as against the accused, he is entitled to be acquitted. She further submitted that the trial Court without proper appreciation of the factual matrix and law has come to a wrong conclusion and has erroneously convicted the accused. On these grounds she prayed for allowing the appeal by setting aside the judgment and order passed by the trial Court.
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6. Per contra, the learned HCGP vehemently argued by contending that the complainant-PW.1 has clearly observed that it is the accused who came along with the deceased and booked the room and even his presence was notified by him. He further submitted that the FSL report Ex.P42 shows that Ex.P2 is in the handwriting of the accused and the same has been tallied and proved by the prosecution. Though the name of the accused does not tally, when he himself has written his name as Mukesh instead of Murgesh in the Ledger, which itself goes to show that he was intending to commit a crime and has falsely written his name as Mukesh instead of Murgesh. He further submitted that PWs.1, 2, and 3 are the persons who have seen the accused coming along with the deceased and occupying the room. Even the room in which the dead body was found was locked by the accused and on the basis of the voluntary statement of the accused at Ex.P35, the key-MO.No.1 has been recovered by drawing a mahazar at Ex.P20. The accused has not
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given any explanation as to under what circumstances, the death of the deceased has taken place. He further submitted that PW.5 has clearly stated the motive for commission of the offence. He further submitted that all the circumstances on which the prosecution has relied upon have been proved beyond all reasonable doubt. The trial Court after considering the entire evidence and the material on record has rightly convicted the appellant-accused. The appellant- accused has not made out any good grounds to allow the appeal. Hence, he prayed for dismissal of the appeal being devoid of merits, by confirming the judgment and order passed by the trial Court.
7. We have carefully and cautiously gone through the submissions made by the learned amicus curiae as well as the learned HCGP so also the evidence and the documents produced on record. It is the case of the prosecution that on 11.1.2011 at about 6.30 p.m. one male and a female person were brought and introduced by PW.3 to PW.1-complainant by saying that those two
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persons have come to Mysore for sight seeing and they would stay for one night and next day morning they would go for sight seeing. In his evidence, PW.1 has reiterated the contents of the complaint. He has deposed that on the next day morning when he resumed to his duties as receptionist, a person from Durga Travels came at about 8.30 a.m. to take the persons who were staying in Room No.201 for sight seeing and when CW.2 went to the said room, he noticed that the said room was locked. Thereafter, when PW.1 and CW.2 went and peeped through the hole of the door, they saw a woman sleeping on the cot and even after tapping of the door, she did not respond. They informed the said aspect to the owner of the lodge as well as to the police. Subsequently police came and noticed that the room was locked. They opened the door with the help of master key. They noticed that the said woman was in a nude position except the blouse and she was dead due to strangulation. Thereafter, complaint came to be filed
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by PW.1. During the course of cross-examination of PW.1, nothing has been elicited so as to discard the evidence of this witness.
8. PW.2 is a room boy who has also deposed about coming of two persons to Raj Residency and occupying the room and next day i.e., on 12.1.2011 at about 6.30 a.m. he saw the accused going out for having tea and thereafter he did not return. PW.3 is a person who brought the accused and the deceased to the lodge and left them in the lodge. He has also identified the accused. During the course of cross- examination, nothing has been elicited to discard the evidence of these witnesses.
9. It is the contention of the learned amicus curiae that the name of the accused is Murgesh and not the Mukesh. In the Ledger of the lodge, the name has been written as Mukesh. Hence, the said fact has not been considered and appreciated by the trial Court.
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It is also her contention that no TI parade was conducted to identify the accused.
10. As could be seen from the evidence of PWs.1 to 3, they have consistently deposed that the accused and the deceased came on 11.1.2011 at about 6.30 p.m. and they have occupied Room No.201 in Raj Residency and thereafter when PW.1 went to the room to ask as to they need any services and at that time both accused and deceased were present in the room. On the next day at about 6.30 a.m. accused alone went out of the room and while he going out, PW.2 enquired him for which he told that he was going out for having tea. Subsequently, the room was seen locked and inside the room the lady who had come along with the accused was seen murdered. It is the contention of the learned amicus curiae that appellant's name is Murgesh and not Mukesh. In order to substantiate the fact that he is the same person who occupied the room, the prosecution has got examined PW.24 the Assistant Director, Forensic Science
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Laboratory, Bangalore who has deposed that he has examined the hand writing found in the Ledger of Raj Residency Deluxe Lodge with the handwriting of the accused and he has given his opinion to the effect that the handwriting in the Ledger of Raj Residency Deluxe Lodge and the handwriting of the accused are one and same and he has given his report as per Ex.P42. During the course of cross-examination, he was suggested that at the instance of police, he has given the false report. The said suggestion was denied by this witness. Hence, the evidence of PW.24 and the FSL report at Ex.P42 would directly indicate the fact that it is the accused who came along with the deceased to Raj Residency and occupied Room No.201 wherein the murder of the deceased has taken place and it is the accused who came and occupied the room in the name and style 'Mukesh' though his name is Murgesh.
11. Even the key-MO.No.1 pertaining to Room No.201 was also recovered as per the voluntary
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statement of the accused at Ex.P35 by drawing a mahazar at Ex.P20. But accused has not given any explanation as to how he came in the possession of the said key pertaining to Room No.201 of Raj Residency. This circumstance also clearly goes to show that the said room was occupied by the accused and the deceased and on the next day he locked and went out of the room. When the key was with the accused and he stayed along with the deceased in the said room, as per Section 106 of the Indian Evidence Act, the accused has to explain as to what had happened when they were in the room. When those two persons were staying together in the said room, it is within the knowledge of those two persons as to what had happened inside the room which was occupied by them that too when there was no access by third persons. Admittedly though it might be within the knowledge of the deceased, as she is no more, then under such circumstances, it is the accused who has to explain as to how the murder of the deceased has taken place
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inside the room. If he fails to explain the said aspect, then it is said to be that the case of the prosecution stands proved. This proposition of law has been laid down by the Hon'ble Apex Court in the case of State of Rajasthan Vs. Kashi Ram, reported in 2007 (1) Crimes 262 (SC), wherein at paragraph-24, it has been observed as under:-
"24. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence
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Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re.Naina Mohd.AIR 1960 Madras, 218."
12. Keeping in view the aforesaid facts and circumstances, the contention taken up by the learned amicus curiae that appellant's name is Murgesh and the name entered in the Ledger is Mukesh and the appellant is not the same person, is not acceptable.
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13. Be that as it may, even as could be seen from the evidence of PWs.1 to 3, they have identified the accused who came to the lodge and booked the room. They have also deposed about they seeing the accused and deceased going to the room. When these witnesses have seen the accused in the light, the question of non-identifying the accused by these witnesses does not arise. When the witnesses are acquainted with the face of the accused, then under such circumstances, non-holding of TI parade by the Investigating Officer does not take away the case of the prosecution.
14. The next contention taken up by the learned amicus curiae is the motive for the alleged crime has not been proved. It is the specific case of the prosecution that the accused is known person to the deceased. It has come in the evidence of PW.5 father of the deceased, PW.9, husband of the deceased that the accused was having illicit relationship with the deceased and they were moving together. The wife of
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the accused had also warned the accused and she was also making galata in respect of the said illicit relationship.
15. It is further case of the prosecution that when the accused and deceased were staying in the room at about 11.30 p.m., the mobile phone of the deceased was ringing and accused received the said call which was from a male person. The said male person asked the accused to give the phone to the deceased Chitra. Accused gave the phone to the deceased Chitra. She went near the corner and talked with the said person. Thereafter, accused asked her as to who was the person who called her over mobile phone. She did not answer properly. In that regard, quarrel took place between them. This fact has also been established by the prosecution through his voluntary statement at Ex.P35 made before the Police Inspector-PW.23. Apart from this the accused has also taken the gold ornaments belonging to the deceased along with cash. In order to avoid returning of the same and as she was
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having illicit relationship with others, with the said motive of eliminating the deceased, the accused took the deceased to Raj Residency and committed her murder by strangulation. In that light, the prosecution has also proved the said circumstance beyond all reasonable doubt.
16. One more circumstance on which the prosecution has relied upon is that MO.No.1-key of Room No.201 was also recovered on the basis of the voluntary statement of the accused as per Ex.P35. The accused led the police and panch witness to Government Guest House and by the side of the compound he showed a silver waist thread containing a room key and a mobile phone. The said articles were seized by drawing a mahazar at Ex.P20. The said evidence has also been supported by PW.7, the panch witness. In that light, the prosecution has clearly established the fact that at the instance of the accused, MO.No.1-key of the room in which the accused and the deceased were staying was recovered. When PWs.1
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to 3 were having an opportunity all the time to observe the features and the face of the accused and when they have identified him before the Court, the remaining circumstances, i.e., the handwriting of the accused as per Ex.P41, the recovery of the key- MO.No.1 at the instance of the accused and the motive for the alleged offence have been proved by the prosecution with worth believable material. It is well established principle of law that when a case is based on circumstantial evidence and if the chain of all the events has been established by the prosecution, the said circumstances proved by the prosecution lead to one and only conclusion towards the guilt of the accused and the only hypothesis that can be drawn is the guilt of the accused. In that light, the prosecution has proved the guilt of the accused beyond all reasonable doubt.
17. It is the contention of the learned amicus curiae that though there is no evidence produced by
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the prosecution, the trial Court has wrongly convicted the accused-appellant herein for the offences punishable under the SC & ST (POA) Act. As could be seen from the evidence of PW.5, father of the deceased, he has deposed that accused belongs to Vayarkudi Velalu Caste, viz., Gowda community which is higher caste. Except stating so, nothing has been stated by PW.5. In order to prove its case, the prosecution has to establish that accused knowingly fully well that deceased belongs to SC Community used criminal force on her, assaulted her with an intention to outrage or dishonour the modesty and also exploited her sexually and has committed the murder. In order to substantiate the said fact, there is no evidence produced by the prosecution. Even as could be seen from the evidence of PW.5, father of the deceased and PW.9 the husband of the deceased, accused used to visit the house of the deceased and deceased was also moving along with him. In that light, there is no sufficient worth believable evidence to convict the
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accused under the SC & ST (POA) Act. The trial Court without proper appreciation of the evidence on record, has come to a wrong conclusion. Hence, the impugned judgment and order to that extent is liable to be set aside. Accordingly, we pass the following:-
The appeal is partly allowed. The judgment and order of conviction and sentence dated 19.4.2013 passed by the VI Additional District and Sessions Judge and Special Court under SC & ST (POA) Act, 1989 at Mysore in Spl.Case No.29/2011, in so far as it relates to conviction of the accused-appellant herein for the offences punishable under Sections 3(1)(xi), 3(1)(xii), 3(2)(V) of the SC and ST (Prevention of Atrocities) Act, 1989 is set aside. The impugned judgment and order in so far as it relates to conviction of the accused for the offence punishable under Section 302 of IPC is concerned, the same is confirmed.
We place on record the valuable assistance rendered by Ms.Pooja Kattimani, learned amicus curiae
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representing the accused-appellant herein. Hence, Registry is directed to pay a sum of Rs.10,000/-
(Rupees ten thousand only) to the learned amicus curiae as honourarium.
Sd/-
JUDGE Sd/-
JUDGE *ck/-