Karnataka High Court
Palani P vs State Of Karnataka on 3 February, 2017
Equivalent citations: 2017 (2) AKR 342
Author: John Michael Cunha
Bench: John Michael Cunha
1 Crl.A.No.203/2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF FEBRUARY 2017
PRESENT
THE HON'BLE MR. JUSTICE H.G.RAMESH
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL No.203 OF 2012
BETWEEN :
PALANI P
S/O LATE P ARAMUGAM
AGED ABOUT 25 YEARS
R/AT NATIVE OF ATTIMARUTHAPATI VILLAGE
ANNASAGARAM POST & TALUK,
DHARMAPURI DISTRICT,
TAMIL NADU STATE.
NOW R/AT C/O. YELLAREDDY'S HOUSE,
NEAR AIRTEL TOWER,
HINA NAGARA CROSS,
KITHAGANAHALLI,
BENGALURU -560009. ... APPELLANT
(By Sri: KEMPARAJU, ADVOCATE OF ALAWMENS CHAMBER)
AND:
STATE OF KARNATAKA
BY J P NAGARA POLICE STATION
BY ITS PUBLIC PROSECUTOR ... RESPONDENT
(By Sri.S.RACHAIAH, HCGP )
2 Crl.A.No.203/2012
THIS CRL.A IS FILED U/S.374(2) OF CR.P.C. BY THE
ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND
ORDER PASSED BY THE LEARNED DIST. & SESSIONS JUDGE,
FTC-XVII, BENGALURU CITY DATED 23/24-1-2012 IN
S.C.No.1018/2009 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S.302 OF IPC. THE
APPELLANT/ACCUSED IS HEREBY SENTENCED TO UNDERGO
LIFE IMPRISONMENT AND ALSO LIABLE TO PAY FINE OF
RS.5,000/- AND IN DEFAULT OF FINE, HE SHALL UNDERGO
SIMPLE IMPRISONMENT FOR A PERIOD OF 03 MONTHS FOR THE
OFFENCE P/U/S.302 IPC
THIS CRL.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.01.2017, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, JOHN MICHAEL CUNHA J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction passed by the Presiding Officer, Fast Track Sessions Court-XVII, Bengaluru City, in Sessions Case No.1018/2009 dated 23.1.2012 whereby the appellant/accused is convicted for the offence punishable under section 302 of Indian Penal Code and sentenced to undergo life imprisonment and a fine of Rs.5,000/-.
2. Briefly stated, the prosecution case is that the deceased Miss. Jithin George was a Lab Technician working in 3 Crl.A.No.203/2012 the Microbiology department at Apollo Hospital, Bengaluru. The accused was also working in the same hospital as Lab Technician in Hematology department. They were loving each other. It is the case of the prosecution that on 28.5.2009, at about 12 O' clock in the mid-night, the accused was seen in the cabin of the deceased engaged in hot discussion. In the morning, when the house keeping staff (PW.6) entered the cabin, she found the deceased lying on the floor with a blanket covered on her body. As she did not respond, she was immediately taken to the ICU where she was declared dead. There was a ligature mark on the neck of the deceased.
3. The PSI of J.P.Nagar Police Station - PW.17 having been informed of the death memo received from the Apollo Hospital, immediately rushed to the ICU and received a written complaint from PW.7 - another Lab Technician working in the Hematology department. In the said complaint, it was stated that on the night of 28.5.2009, the accused was found in the cabin of the deceased. Further, the complaint contained a specific allegation that the accused murdered the deceased by 4 Crl.A.No.203/2012 strangulating her neck with some wire and has been absconding since then.
4. Based on this complaint, PW.17 registered a case against the accused. He conducted the inquest over the dead body as per Ex.P2. During the spot mahazar Ex.P3, he collected an orange coloured veil, a Nokia Mobile Phone, blood stains and hair found at the spot of occurrence. He prepared a sketch of the scene of occurrence as per Ex.P24, subjected the seized properties to property form on the same day and deputed his staff to apprehend the accused. On 6.6.2009, the accused was arrested and produced before PW.17. Further investigation was continued by PW.18 - P.I. of J.P.Nagar Police Station. He recorded the voluntary statement of the accused and recovered the mobile phone charger at the instance of the accused and forwarded the same to the Medical Officer who conducted the autopsy for his examination and opinion. On collecting the medical report and the opinion of the Medical Officer, PW.18, laid the charge-sheet against the accused.
5 Crl.A.No.203/2012
5. In order to substantiate the charge framed against the accused, the prosecution examined 18 witnesses as PW.1 to PW.18 and produced in evidence 25 documents marked as Ex.P1 to Ex.P25 and material objects at M.Os.1 to 19. In the course of the cross-examination of the witnesses, the defence got marked Ex.D1 to Ex.D5. Upon considering the oral and documentary evidence produced by the prosecution, the learned Sessions Judge, by the impugned judgment, convicted the accused for the offence under section 302 of Indian Penal Code and sentenced him as above.
6. The appellant/accused has preferred this appeal questioning the correctness and legality of the findings recorded by the Trial Court.
7. We have heard the learned counsel for the appellant and the learned HCGP.
In support of his argument, learned counsel for the appellant has placed reliance on the following decisions:
1. 2015 (1) CRIMES 105 (SC).6 Crl.A.No.203/2012
2. 2015 (1) CRIMES 32 (SC).
3. 2016 (1) CRIMES 261(SC).
4. 2015 (4) CRIMES 135 (SC).
5. 2015 (4) CRIMES 27 (SC).
6. 2015 (2) CRIMES 71 (SC).
7. 2015 (4) KCCR 3180 (DB).
8. CRL.A NO.261/1998.
9. CRL.A.NO.1243/2000.
10. 2015 (1) CRIMES 591 (Cal).
11. 2015 (1) CRIMES 65 (All) (DB).
12. 2015 (1) CRIMES 167 (Del).
13. 2015 (1) CRIMES 154 (Cal).
14. 2015 (1) CRIMES 704 (Raj).
15. LAWS (DLH)-2014-7-145.
16. LAWS (RAJ)-2013-10-133.
17. BCR (CRI) 2014 (1) 579.
8. While assailing the findings recorded by the Trial Court, learned counsel has seriously disputed the cause of death and has contended that the circumstances brought out in the 7 Crl.A.No.203/2012 evidence clearly point out that the deceased committed suicide. It is the submission of the learned counsel that the deceased was an employee of the hospital and on the fateful day, she committed suicide within the precincts of the hospital, but to save the reputation of the hospital, the hospital authorities have covered up this incident and have made it to appear like a murder. Elaborating this submission, learned counsel has referred to the evidence of PW.15 Dr.Sharavanan who examined the dead body in the ICU at 7.50 a.m. on 29.5.2009. Learned counsel pointed out that this witness has unequivocally stated in his chief-examination that during the examination he found scratch injuries on the lips of the deceased. He has specifically stated that there were traces of hanging on the anterior part of the neck (PÀwÛ£À ªÀÄÄA¨sÁUÀz° À è, £ÉÃtÄ ºÁQPÉÆAqÀAvÀºÀ UÀÄgÀÄvÀÄUÀ¼ÀÄ PÀAqÀÄ §AzÀªÀÅ). It is the argument of the learned counsel that if infact the deceased was dead much earlier to her examination by PW.15, there was no necessity for shifting her body to the ICU. Further the learned counsel pointed out that PW.6 -Kum.Sri Guna who was the first to visit the cabin of the deceased on 8 Crl.A.No.203/2012 29.5.2009 has stated in her evidence that at about 7.00 a.m., when she had gone to the cabin of the deceased to clean the room, she found the deceased sleeping on the floor. According to this witness, the deceased was lying on the floor and her body was covered with a blanket and there was a switched off mobile phone near her head. Based on this evidence, learned counsel for the appellant has strenuously contended that the above evidence clearly establish that the deceased committed suicide and therefore, the finding recorded by the lower court holding that the deceased met with a homicidal death is contrary to the evidence available on record.
9. As the counsel for the appellant has disputed the cause of death, it is necessary to scrutinize the evidence produced by the prosecution to find out the actual cause of death of the deceased. According to the prosecution, the deceased was strangulated with a mobile phone charger during the wee hours of 29.5.2009. There is no dispute that the deceased died an unnatural death. According to the medical opinion produced by the prosecution, the deceased died due to 9 Crl.A.No.203/2012 "asphyxia as a result of ligature strangulation." The Medical Officer who conducted the autopsy has deposed before the court that on 29.5.2009 between 6.15 p.m. and 7.15 p.m., he conducted the post mortem examination over the dead body of the deceased and issued the post mortem report as per Ex.P18. Here itself it may be appropriate to refer to the relevant portion of the post mortem report Ex.P18 wherein it is mentioned:
"Dead body of a female aged about 27 years measuring 160 cms. in length, moderately built and nourished, fair complexion, rigor mortis is present all over the body. Post mortem staining present over back, face congested, blood stained froth coming from the nostrils, nail beds are cyanosed.
1. There is a ligature mark at and below the level of thyroid cartilage around the neck running transversely measuring 32 cms. It is prominent over the front of neck for 10 x 3 cms it is deep over the upper and lower margins and blood effused in between. It is prominent over the back measuring 8 x 1 cms. The breadth of the ligature mark along sides of neck is 1 cms and faint. It is present 9 cms below `right ear lobule and 10 cms below left ear lobule, 5.5 cms from chin. The ligature mark is present over front of neck is pale and parchmencised on dissection of neck the tissues above and below the ligature mark are 10 Crl.A.No.203/2012 congested, the tissues in front of middle and on right side are contused measuring 6 x 2 cms blood effused in the neck muscles on either sides. Hyoid bone is intact. Thyroid carilage fractured in the middle, blood effused around fractured site.
2. Six abrasions over right side front of neck above ligature mark measuring 1 x 0.2 cms to 1.5 x 0.2 cms.
3. Three abrasions present over left side front of neck above ligature mark measuring 1 x 0.5 cms to 1 x 1 cms.
4. Abrasions over front of middle of right leg 3 x 0.3 cms.
5. Two abrasions over front of right knee each measuring 0.3 x 0.2 cms.
6. Lacerated wound over inner aspect of upper lip on right side 2 x 0.1 cms, mucous membrane deep contusion present around the laceration.
7. Contusions present over inner aspect of lower lip on right side 1 x 1 cms.
8. Abrasion over right side ala of nose 1 x 0.5 cms."
10. PW.14 - Dr.Jagannath has specifically stated in his evidence that according to his opinion, the death is due to asphyxia as a result of ligature strangulation.
11. In view of above opinion, the immediate legal question that arises for consideration is:
11 Crl.A.No.203/2012
Whether the strangulation was suicidal, homicidal or accidental?
12. The assertion of the prosecution is that the strangulation in the instant case was homicidal. Modi's Medical Jurisprudence and Toxicology defines "strangulation" as "violent form of death which results from constricting the neck by means of a ligature or by any other means without suspending the body." With regard to the symptoms of strangulation, the author observes that, "if the windpipe is compressed so suddenly as to occlude the passage of air altogether, the individual is rendered powerless to call for assistance, becomes insensible and dies instantly. If the windpipe is not completely closed, the face becomes cyanosed, bleeding occurs from the mouth, nostrils and ears, the hands are clenched and convulsions precede death."
13. According to the author, "homicidal strangulation" is a common form and "suicidal strangulation" is not very common. It is in this background, we may have to analyse the evidence to find out whether in the instant case the deceased met with a 12 Crl.A.No.203/2012 homicidal strangulation or suicidal strangulation? In this context, it may be relevant to refer to the inquest mahazar Ex.P2. This inquest mahazar is said to have been conducted between 12.30 p.m. and 2.30 p.m. on 29.5.2009. In Ex.P2, it is stated that the dead body was kept in the ICU unit. Regarding the injuries found on the dead body, it is noted that "ªÀÄÈvÀ¼À PÀwÛ£° À è 6 EAZÀÄ GzÀÝ 1 1/2 EAZÀÄ CUÀ® MwÛzÀ UÀÄgÀÄvÀÄ EgÀÄvÀÛz.É §®UÁ® ªÀÄArAiÀÄ PɼU À É vÀga À zÀ UÁAiÀÄ«gÀÄvÀÛz.É ¨ÉÃgÉ AiÀiÁªÀÅzÉà vÀgº À z À À UÁAiÀÄUÀ¼ÀÄ ªÉÄïÉÆßÃlPÉÌ PÀAqÀÄ §gÀĪÀÅ¢®è."
14. In the post mortem report, presence of the ligature mark is described as running around the neck measuring 32 cms. and further it is specifically mentioned that the ligature mark was prominent over the front and also on the back of the neck. But in Ex.P2 the length of the injury on the neck is stated to be just 6 inches equivalent to 15 cms. The presence of the ligature mark on the back of the neck is conspicuously absent in Ex.P2. If the ligature mark on the back of the neck was prominent, as mentioned in Ex.P18, it would not have escaped the notice of the I.O. or panch witnesses during the inquest 13 Crl.A.No.203/2012 mahazar. Be that as it may, even in the medico-legal register Ex.P14, the injuries are described as:
(i) Abrasion seen over both lips; (ii) Bruise seen over middle of neck extending horizontally between sterno cleido mastoid muscle (iii) Nasal secretion.
Both these documents do not mention the presence of ligature mark all around the neck. Further the conspicuous absence of ligature mark on the back of the neck of the deceased creates a serious doubt about the findings noted in the post mortem report-Ex.P18.
15. In this context, it may also be relevant to refer to the evidence of PW.15 -Dr.Sharavanan who examined the deceased at the earliest point of time. In his evidence, this witness has stated thus:-
"CªÀ¼£ À ÀÄß ¥ÀjÃPÉë ªÀiÁrzÁUÀ, CªÀ¼ÀÄ CµÀÖgÉƼÀUÁVAiÉÄà ªÀÄÈvÀ¼ÁVzÀÄÝ PÀAqÀÄ §A¢vÀÄÛ. CªÀ¼£ À ÀÄß ¥ÀjÃPÉë ªÀiÁrzÁUÀ, CªÀ¼À vÀÄnUÀ¼° À è vÀgÀÄazÀ UÁAiÀÄ PÀAqÀÄ §A¢vÀÄ. PÀwÛ£À ªÀÄÄA¨sÁUÀz° À è, £ÉÃtÄ ºÁQPÉÆAqÀAvÀºÀ UÀÄgÀÄvÀÄUÀ¼ÀÄ PÀAqÀÄ §AzÀªÀÅ."14 Crl.A.No.203/2012
16. This witness has no where stated in his evidence that he found any ligature mark extending around the neck of the deceased nor has he stated that bleeding was present at the ligature site. Instead, this witness has asserted in his chief- examination that he found the traces of hanging on the front side of the neck. Undisputedly, PW.15 is not a lay person. He was the duty doctor who examined the deceased at the earliest point of time and his evidence, on the face of it, is contrary to the findings noted by PW.14 in the post mortem report. This is yet another circumstance which leads to doubt the cause of death projected by the prosecution.
17. Apart from the above inconsistencies, if we look into the spot mahazar -Ex.P3, it is pertinent to note that in Ex.P3 - spot mahazar, it is clearly mentioned that the Microbiology Lab wherein the alleged incident had taken place was measuring 8 ft. x 5 ft. On the western side of this room there was a shelf like counter with drawers and there were microscopes and other equipments on the table and on the eastern side of the room, there was a table with two chairs. It is further mentioned that 15 Crl.A.No.203/2012 the walls of the said room were built to an height of 4 ft. and above them, there were glass panels. In Ex.P2 it is specifically mentioned that during the spot mahazar, it was found that hairs had fallen here and there on the floor and during the mahazar, longer hairs were collected separately in a plastic box and shorter hairs were kept in another plastic box. It is important to note that it is specifically mentioned in Ex.P2 that on the northern side, there were traces of blood and they were collected in a cotton swab and were separately seized.
18. A look at the photograph produced at Ex.P8 shows that there was hardly any vacant space in the said room except at the entrance. The photograph does not show any blood stains on the floor. On the other hand, the facts depicted therein shows that all the equipments and books on the table and shelf were lying intact. There were 5 chairs in the room which also appear to be in proper place. Entire room appears spick and span. By looking into this photograph, it is difficult to believe that any such incident had taken place in the said room as suggested by the prosecution. It is a common knowledge that 16 Crl.A.No.203/2012 murderer will always need to use some degree of force even to strangulate the neck with any object. It would be near impossible to persuade the victim to co-operate to put a chord or wire around her neck. Even assuming that the wire was put around the neck of the deceased from behind, there would be some evidence of struggle. But the facts depicted in Ex.P8 do not indicate that there was any struggle or resistance from the victim. Besides, it is an admitted fact that the said room had walls only upto 4 ft. and rest of the walls was fitted with glass. Under the said circumstances, the case of the prosecution that the deceased was strangulated in open view during the duty hours when other staff and security were moving about becomes highly improbable. Added to that the glaring inconsistencies highlighted above especially the findings noted in the post mortem report, Ex.P18, evidence of PW.15 and the contents of Ex.P3 - spot mahazar and the facts depicted in the photograph - Ex.P8, in our view, a reasonable doubt arises as to the cause of death due to asphyxia as a result of strangulation. 17 Crl.A.No.203/2012
19. Be that as it may, the case of the prosecution is that the accused committed the murder of the deceased by strangulating her neck with a mobile charger wire. There are no eye-witnesses to the incident. The case of the prosecution is rested solely on the circumstantial evidence. One of the main circumstance relied on by the prosecution is that immediately prior to the discovery of the dead body of the deceased on the morning of 29.5.2009, the accused was seen in the cabin room of the deceased. In this regard, the prosecution has examined the hospital staff who have deposed in conformity with the case of the prosecution. Amongst them, PW.1 was the Security Supervisor. According to this witness, on 28.5.2009 in the night at about 2.10 a.m., when he was taking rounds, he went inside the Microbiology Lab and at that time, he found the accused and the deceased talking with each other. In the cross-examination it is elicited that when he saw accused and the deceased talking with each other, there was no quarrelsome atmosphere between them.
18 Crl.A.No.203/2012
20. PW.2 is a house-keeping staff. This witness has stated that on 28.5.2009 at night around 3.45 a.m., he had been to the Microbiology Lab to deliver blood sample. He called the deceased as "Madam" and went inside the Lab. At that time, accused himself came forward to receive the blood sample stating that the deceased is sleeping and hence, PW.2 handed over blood sample to the accused and took his signature in the register. The Xerox copy of the register is marked through this witness as Ex.P1 subject to the production of the original.
21. PW.3 is another house-keeping staff. This witness has deposed that on 28.5.2009 in the early morning at 4.30 a.m., the accused rang up to him and asked him whether he had been to the Lab and again at 5.30 a.m., he phoned up to PW.3 and inquired whether he does not know anything about the matter. According to the prosecution, these queries add up to the circumstances connecting the accused to the murder of the deceased.
22. PW.7 is the Lab Technician working at Apollo Hospital at the relevant point of time. According to her, on 28.5.2009 at 19 Crl.A.No.203/2012 about mid-night, she was in need of a tube and for the said purpose, she went to Microbiology Lab and at that time, she found the accused and the deceased together. Thereafter, again at 1.45 a.m., she went to Microbiology Lab and at that time, deceased and accused were talking in Tamil language and she heard the deceased saying to the accused not to talk about her mother and at that time, the accused asked PW.7 as to whether she knew Tamil language.
23. The Trial Court has believed the evidence of these witnesses and has proceeded on the premise that the prosecution has established the last seen theory which is a strong circumstance nailing the accused. But on a careful scrutiny of the evidence of above witnesses, we are of the view that the evidence of the above witnesses does not convincingly establish the fact that the accused and the deceased were seen together immediately prior to the incident and secondly, even if the evidence of these witnesses is believed, in our opinion, the said evidence does not lead to the inference that the accused was the author of the crime in question.
20 Crl.A.No.203/2012
24. Coming to the credibility of the testimony of the above witnesses, no doubt it is true that these witnesses were the staff and servants of the hospital and their presence in the hospital at the relevant time cannot be doubted. It also cannot be disputed that they are natural witnesses. There is no difficulty in accepting the evidence of PW.7 that she saw the accused in the company of the deceased in Microbiology Lab as this fact has been unequivocally stated by her in the complaint Ex.P4 at the earliest point of time. Her testimony therefore finds corroboration in the said complaint Ex.P4.
25. The other witnesses namely PWs.2, 3 and 6 have admitted in their evidence that they did not disclose the above fact to anyone in the hospital either on the date of the incident or immediately thereafter until their examination by the police. This circumstance weakens the credibility of the testimony of these witnesses.
26. Though PW.3 has stated that he received a phone call from the accused at 4.30 a.m. and 5.30 a.m., the 21 Crl.A.No.203/2012 prosecution has not made any efforts to produce either the call records or sim details of the phone of PW.3 or that of the accused. There is also nothing in the evidence to show that the phone of PW.3 was either seized or any efforts have been made by the Investigating Officer to find out whether any calls were received by PW.3 as stated by him. As a result, even the evidence of this witness has remained uncorroborated and consequently the testimony of PW.3 cannot be accepted in proof of the fact that the accused was following up the incident as sought to be made out by the prosecution.
27. Apart from the above discrepancies, it is significant to note that PW.2 has specifically stated before the court that on 29.5.2009 at 2.45 a.m., the accused himself received the blood samples from him and signed the register. As already stated above, the copy of this register was marked subject to the production of the original register. But for reasons best known to the prosecution, no efforts have been made either to produce the original register before the Court or to prove the signature found in the original register so as to substantiate the contention 22 Crl.A.No.203/2012 of the prosecution that the accused was infact found in the said room and he himself received the blood samples stating that the deceased was sleeping. This is fatal to the prosecution case. The proof of this signature not only would have clinched the issue, but also would have lent corroboration to the testimony of the above witnesses establishing the circumstance of last seen beyond any doubt. The non-production of the original register and the non-proving the signature thereon not only weakens the case of the prosecution, but leads to doubt the very presence of the accused in the room of the deceased, as contended by the prosecution.
28. It is now well settled that in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. In the instant case, the circumstances discussed above do not conclusively prove the fact that the accused was last seen in the company of the deceased. It has come in evidence of the above witnesses that C.C.T.V. cameras were installed in the premises 23 Crl.A.No.203/2012 of the hospital and there were as many as 68 C.C.T.V. cameras. Though these witnesses have stated that they saw the accused in the cabin of the deceased at different point of time, there is absolutely no evidence as to when he came into the room and when he went out of the said room. PW.1 - Security Supervisor has stated that security men were posted at three main entrances and C.C.T.V. cameras were installed in all the passages and all the movements were being monitored in the hospital. The Investigating Officer PW.18 has also stated that the C.C.T.V. cameras were installed at every stage of the hospital, but has clearly admitted in the cross-examination that he did not verify the C.C.T.V. footages. This lapse on the part of the investigating agency cannot be brushed aside as mere faulty investigation, but it amounts to withholding of the best evidence within the meaning of section 114(g) of the Indian Evidence Act as observed by the Hon'ble Supreme Court of India in the case of TOMASO BRUNO & Another vs. STATE OF UTTAR PRADESH reported in 2015 (1) Crimes 105 SC. In the said case, the incident was stated to have taken place inside the privacy of a hotel room and the prosecution had relied upon 24 Crl.A.No.203/2012 section 106 of the Indian Evidence Act to contend that the fact which was especially within the knowledge of the accused, the burden lay on him in proving the circumstance in which the deceased died. In the said case, having noted various lapses on the part of the prosecution in collecting the necessary evidence, the Hon'ble Supreme Court in paras 27 to 29 has observed that, "Non-production of C.C.T.V. footage, non-collection of call-records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation, but amount to withholding of best evidence."
In the instant case also, the lapse on the part of investigating agency in verifying the C.C.T.V. footages to track the movement of the culprit entering into the Microbiology Lab and leaving the hospital at the relevant time could be characterized as deliberate withholding of material evidence rendering its case susceptible to doubt.
29. Even on point of law, the last seen theory can be pressed into service where the time gap between the deceased 25 Crl.A.No.203/2012 and accused were last seen alive and when the deceased is found dead is so small that the possibility of any other person other than the accused being the author of the crime becomes impossible. In the instant case, there is no evidence whatsoever to show the exact time of the incident nor is there any cogent evidence to show as to when the accused left the room of the deceased. It has also come in evidence that the room wherein the incident is stated to have taken place is situated in the 3rd floor and is surrounded by various other rooms as shown in the sketch Ex.P22. The evidence of PWs.1, 2, 3, 6 and 7 go to show that the door of the said Microbiology Lab was always open implying that it was accessible to the staff and other men and servants of the hospital. Under the said circumstances, in the absence of any definite evidence to show that during the intervening time between the last seen and the recovery of the dead body, no other person had access to the Microbiology Lab, solely on the basis of the evidence of PW.1, PW.2, PW.3, PW.6 and PW.7 that they had seen the accused and the deceased at different point of time, it cannot be concluded that the accused was the only person who was last seen with the deceased. 26 Crl.A.No.203/2012 Therefore, even this circumstance cannot be held against the accused.
30. Another circumstance pressed into service by the prosecution to connect the accused to the alleged incident is the recovery of the mobile phone charger M.O.7. In order to prove this circumstance, the prosecution has relied on the oral testimony of PW.18 the Investigating Officer who has stated that on 6.6.2009, the accused was produced before him and he recorded his voluntary statement and on 7.6.2009, he along with the panchas by name Somashekar and Venkatesh proceeded to Attimaruthapati village, Dharmapuri District, Tamil Nadu and the accused led them behind his house and produced a black colour mobile charger measuring 150 cms. in length which was hidden underneath a stone, and it was seized under a mahazar Ex.P24 and was sent for the opinion of Doctor who conducted the post mortem examination.
31. Even the above recovery evidence is not free from doubt. The panchas who participated in the recovery of M.O.7 are not examined before the court and no explanation has been 27 Crl.A.No.203/2012 given by the prosecution for their non-examination. Though it is stated that the recovery was effected behind the house of the accused at his native place at Dharmapuri district, in the photograph said to have been taken during the recovery, no traces of any house are visible. Neither the inmates of the house nor any local witnesses have attested the mahazar. A perusal of the photographs Ex.P9 to Ex.P12 discloses that the place of recovery was an open place. Therefore, the evidence produced by the prosecution in proof of the recovery does not inspire confidence to hold that M.O.7 was recovered at the instance of the accused.
32. Though PW.14 has given his opinion that the wire or mobile charger could have been used for ligature strangulation causing the ligature mark over the neck leading to asphyxia and death, there is no specific evidence that M.O.7 was used by the accused for strangulating the deceased. In appreciating the recovery evidence produced by the prosecution it is relevant to note that according to PW.14 the doctor who conducted the post mortem examination, the ligature mark was extending all round 28 Crl.A.No.203/2012 the neck and he is very specific in his evidence that the breadth of the ligature mark along sides of neck is 1 cm. and faint. But in his cross-examination, PW.14 has admitted that the width of the ligature mark was about 3 cms. If this evidence is believed, the width of the wire M.O.7 does not correspond to the width of the ligature mark found on the neck of the deceased, thereby rendering it improbable that the ligature could have been caused with the use of M.O.7. Apparently for this reason, PW.14 appears to have not mentioned the width of the wire examined by him in his opinion Ex.P19. Likewise, the recovery mahazar Ex.P24 also does not specify the width of the said wire making it evident that right from the inception a deliberate attempt has been made to suppress the material evidence from the scrutiny of the court.
33. The last circumstance relied on by the prosecution is the abscondance of the accused. Of course, there is acceptable evidence to show that after the incident the accused stopped attending his job in Apollo Hospital and the documents produced by the prosecution namely Ex.P15 and Ex.P16 clearly show that 29 Crl.A.No.203/2012 he was absent from duty from 29.5.2009 onwards. But in the absence of any direct or circumstantial evidence connecting the accused to the incident in question, solely on the basis of the abscondance of the accused, it cannot be held that the accused is the author of the crime.
34. The abscondance of the accused and the other circumstances projected by the prosecution at the most may lead to the suspicion that the accused was instrumental in causing the death of the deceased. But suspicion, however strong cannot take the place of proof. As discussed above, the prosecution has utterly failed to prove any of these circumstances with cogent and convincing evidence so as to connect them to the death of the deceased. None of the circumstances alleged by the prosecution unerringly point out the involvement of the accused in the incident in question. Even the motive for the commission of the offence is not established. Except the stray statements of the hospital staff that the accused and deceased were in love, no other reliable material is brought on record to show that on account of the alleged failure 30 Crl.A.No.203/2012 of love, the accused resorted to the murder of the deceased. As a result, there is no worthwhile evidence connecting the accused to the death of the deceased.
35. The prosecution has failed to prove the guilt of the accused. The evidence produced by the prosecution does not establish its case beyond reasonable doubt. The Trial Court therefore was not justified in convicting the accused for the offence under section 302 of Indian Penal Code. The Trial Court has failed to appreciate the evidence in proper perspective and has accepted the evidence of prosecution witnesses on their face value without considering the inherent improbabilities and the doubtful circumstances emanating there from. In the light of the above discussion and the conclusions arrived at by us, on re- appreciation of the evidence, we are of the firm opinion that the impugned judgment and order cannot be sustained and the accused deserves to be acquitted of the charge leveled against him. Hence, we proceed to pass the following order: 31 Crl.A.No.203/2012
Criminal Appeal No.203/2012 is allowed. The impugned judgment and order of conviction passed by the Fast Track Sessions Court-XVII, Bengaluru city in Sessions Case No. 1018/2009 dated 23.1.2012 is set-aside. Accused/appellant is acquitted of the offence charged against him under section 302 of Indian Penal Code. Accused shall be set at large forthwith, if not required in any other case. The fine amount, if deposited, shall be returned to the accused/appellant.
Registry is hereby directed to communicate the operative portion of this judgment to the concerned jail authorities forthwith to enable them to release accused.
Sd/-
JUDGE Sd/-
JUDGE Bss.