Karnataka High Court
Laxmi @ Kulli vs The State By Mandya Rural Police Station on 3 March, 2023
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
CRIMINAL APPEAL No.2273/2018
BETWEEN:
LAXMI @ KULLI
W/O. BORAIAH,
AGED 48 YEARS,
R/AT MANGALA VILLAGE, KOTTATTI HOBLI,
MANDYA TALUK AND DISTRICT
(NOW IN JUDICIAL CUSTODY
CENTRAL PRISON, MYSURU)
(WRONGLY TYPED IN JUDGMENT
AS D/O. BORAIAH) ... APPELLANT
(BY SRI KRISHNAPPA N.R., ADVOCATE)
AND:
THE STATE BY MANDYA RURAL POLICE STATION,
MANDYA,
REPRESENTED BY ITS SPP,
HIGH COURT BUILDING,
HIGH COURT BANGALORE - 560 001. ... RESPONDENT
(BY SRI K.S. ABHIJITH, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT AND CONVICTION ORDER DATED 30.06.2018
PASSED BY THE HON'BLE COURT OF IIND ADDITIONAL DISTRICT
AND SESSION JUDGE AT MANDYA IN S.C.NO.15/2015,
-2-
CONVICTING THE APPELLANT FOR THE OFFENCE P/U/S 450,
302, 392 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30/01/2023, COMING FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, K.S. HEMALEKHA J., DELIVERED THE
FOLLOWING:
JUDGMENT
Feeling aggrieved by the impugned judgment and order of sentence dated 30/06/2018 passed in S.C.No.15/2015 on the file of the II Additional District and Sessions Judge, Mandya, convicting the accused for the offences punishable under Sections 450, 302 and 392 of the Indian Penal Code, 1860 ("IPC") and order of sentence to undergo life imprisonment for the offence punishable under Section 302 of IPC with fine of Rs.10,000/- and in default to pay the fine, to undergo simple imprisonment of six months, accused is sentenced for simple imprisonment for two years and to pay a fine of Rs.2,000/- for the offence punishable under Section 450 of the IPC and in default to pay the fine, to undergo simple imprisonment for -3- two months and accused is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.3,000/- for the offence punishable under Section 392 of IPC and in default to pay the fine, the accused to undergo simple imprisonment for three months.
2. It is the case of the prosecution that on the basis of the complaint filed by Sannamma-PW.1 that on 16/09/2014, when the complainant and her husband had left the home for coolie work leaving behind their daughter at home and at about 1.30 p.m., when the complainant came home to fetch water from the water tank in the village, she noticed that the front door of the house was closed and when she pushed the door and went inside, she found that her daughter was not in the hall and she noticed the liquor sachet packet and khara mixture lying on the cot, being frightened she went inside the room and found her daughter Bhagya lying dead. She noticed -4- that there was a ligature mark on the neck of her daughter and the almirah was open and the jewels which were in the cupboard were scattered. On her scream seeing the dead body of her daughter Bhagya, the neighbors came and carried the dead body and kept it in front of the house. She stated in the complaint that a sum of Rs.19,000/- out of Rs.25,000/- and a pair of ear-studs have been found missing from the almirah. She got written the complaint through one M.E.Shankar as per Ex.P-1 and handed over the same to PSI at 3.00 p.m. The complaint was filed against an unknown persons.
3. After completion of the investigation and apprehending the accused, the investigation officer submitted charge sheet against the accused, the accused was taken into judicial custody and accordingly, the learned Judge framed charges for the offences punishable under Sections 450, 302 and 392 -5- of the IPC and the same was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.
4. The prosecution, in order to bring home the guilt of the accused, examined in all twenty nine witnesses as PWs.1 to 29 and got marked documents at Exs.P-1 to P-44 and material objects at MOs.1 to
10. On behalf of the defence Exs.D-1 to D-4 were marked. After completion of the prosecution evidence, the statement of the accused was recorded under Section 313 of the Cr.P.C. and the entire case of the prosecution was denied by the accused and the accused has not placed any defence evidence.
5. The Session Court framed the following points for determination:
"1. Whether the prosecution proves that on 16.09.2014 at about 12.15 p.m., accused committed house trespass by entering into the house of CW1- Sannamma W/o Thimmegowda with intent to commit an offence punishable -6- with imprisonment for life beyond all reasonable doubt?
2. Whether the prosecution proves that on the same date, time and place accused committed the murder of deceased Bhagya by strangulation with petticoat thread for making wrongful gain beyond all reasonable doubt?
3. Whether the prosecution proves that on the same date, time and place accused after committing house trespass committed robbery of Rs.9,000/- by break open the almerah in the house of CW1- Sannamma and after committing murder of deceased Bhagya beyond all reasonable doubt?"
6. The Sessions Court held that the prosecution has proved beyond reasonable doubt that, on 16/09/2014 at around 12.15 p.m. the accused trespassed into the house of PW.1 with an intent to commit an offence punishable with an imprisonment for life and that on the same date, time and place the accused committed the murder of deceased Bhagya by strangulation with petticoat thread (ladi) for -7- making wrongful gain, that the accused committed robbery by break opening the almirah in the house of PW.1 after committing the murder of deceased Bhagya. Accordingly, the learned Sessions Judge by the impugned judgment and order of sentence convicted the accused for the offences punishable under Sections 450, 302 and 392 of the IPC. Hence, the present appeal is preferred by the accused.
7. Heard Sri Krishnappa N.R., learned counsel for the accused and Sri K.S.Abhijith, learned High Court Government Pleader for the State. Contention of the learned counsel for the accused:
8. Learned counsel for the accused would contend that the motive of the accused is not proved by the prosecution as the accused has been apprehended only on suspicion and the complaint was lodged against the unknown persons and the -8- implication of the accused was on the basis of the scientific expert (finger prints), which was found on the neck of the deceased and the almirah without there being any witness to that aspect. It is further contended that there is no proper investigation by the Investigating Officer regarding the movements of the accused and to dig-out the truth of the death of the deceased, it is further stated that in order to prove the robbery, PW.7 - Shashikala and PW.9 - Shanthi were examined to prove the aspect that the accused was the member of the chit and would contend that the prosecution could not establish the fact that the accused was the member of the chit as the said witness turned hostile to the case of the prosecution. It is further contended by the learned counsel that the forensic report at Ex.P-34 is not material as the investigation was straightly proceeded against the accused there being no evidence as to the movements of the accused prior or after the incident which would -9- given an indication as to the accused being last seen at the place of incident.
9. It is further stated that the last scene theory as spoken to by PW.6 about the accused entering the house of PW.1 was not stated before the Investigating Officer and the said witness was brought for the first time before the Court who according to the prosecution is the material witness. Learned counsel would further contend that the evidence of PWs.4 and 5 the owners of the petty shop who are husband and wife have been examined to identify MO.1 liquor sachet and MO.2 khara mixture packet, however, the same is of less importance as the evidence of the doctor PWs.11 and 12 who had treated the accused do not depict about the deceased having consumed alcohol from MO.1 the fact being that MO.1 was empty.
- 10 -
10. In support of his contention, learned counsel relied upon the judgment of the Co-ordinate Bench of this Court in the case of Sridhara @ Sripathi and another vs. State of Karnataka by Siddapurs Police [ILR 2005 Kar. 2576]. Stating these grounds, the learned counsel for the accused would contend that the prosecution has failed to prove the circumstantial evidence which led to the initiation of proceedings against the accused and sought to allow the appeal stating that the accused has been falsely implicated in the case. Therefore, he sought to allow the appeal.
11. Contention of learned High Court Government Pleader:
(i) That the recovery of money stolen MO.10 was recovered at the instance of the accused in the seizure mahazar at Ex.P-6 in the presence of panch witness PW.19.
- 11 -
(ii) That MO.3 the waist thread (ladi) used to strangulate the deceased was recovered from the house of the PW.1 and the seizure mahazar at Ex.P-6 in the presence of panch witness PW.19.
(iii) That MO.4 stone used to break open the almirah was recovered at the instance of the accused and was found in the cowshed of PW.1 and the seizure mahazar at Ex.P-18 was drawn in the presence of panch witness PW.19.
(iv) That the finger print found on the liquor sachet MO.1 tallies with the finger print of the accused and the expert's opinion at Ex.P-27 would clearly establish that the finger prints found on the said liquor sachet is that of the accused.
(v) The last scene theory of the deceased being with the accused has been clearly established by the evidence of PW.6, who has categorically stated in her
- 12 -
statement that the accused had called the deceased on the pretext that she had lost the key of almirah and this has been stated in the evidence of PW.6 who stood the test of the cross-examination.
(vi) PW.11 - Savitha, who is the nurse in the nursing home has stated about the four to five ladies having come to the nursing home on 16/09/2014 and the husband of the accused had paid a sum of Rs.9,000/-.
(vii) PW.16 - Dr. K.Ashwininarayan the doctor, who conducted the post-mortem at Ex.P-13 on the dead body of deceased Bhagya, has categorically opined regarding the compressing the neck and causing of strangulation by the thread (ladi) as per Ex.P-15.
(viii) That the FSL report at Ex.P-43 of the stone, which was recovered at the instance of the accused shows the signatures of the accused.
- 13 -
(ix) That the prosecution has proved beyond reasonable doubt about the involvement of the accused in the death of the deceased Bhagya and that the accused after committing the murder misled the prosecution by keeping the MO.1-liquor sachet and MO.2-khara mixture to make believe that some men have committed the murder. It is also stated by the learned counsel that the accused went to an extent of doing an act that she was not present on the date of the incident within the vicinity by going to the hospital and stating that she was injured in an accident and this act of the accused, on a false pretext could be disbelieved as PWs.11 and 12, who were the nurse and doctor before whom the accused stated that she had taken treatment, have supported the case of the prosecution. Stating these grounds learned counsel would contend that the conviction of the accused
- 14 -
under Sections 450, 302 and 392 of the IPC is justifiable and does not call for any interference and therefore sought to dismiss the appeal.
12. Having heard the learned counsel for the parties, the only point that arises for our consideration in this appeal is:
"Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence for the offences punishable under Sections 450, 302 and 392 of the IPC in the peculiar facts and circumstances of the present case?"
13. We have meticulously considered the submission made by learned counsel for the parties and perused the original records carefully.
14. The prosecution case is based on the circumstantial evidence as could be seen from the incriminating evidence of the prosecution. The following circumstances were set out by the learned Sessions Judge:
- 15 -
(a) The first circumstance is, the prosecution has proved that the deceased was last seen with the accused and that is a homicidal death.
(b) The prosecution having recovered MO.3-
petticoat thread (ladi), MO.4-Stone and MO.10-cash were recovered at the instance of the accused.
(c) That the prosecution has proved that the finger prints found in the place of incident is that of the accused.
(d) The prosecution established that the accused has misled the police by implicating MO.1 liquor sachet and MO.2 khara mixture packet to make believe that some men have committed the crime and one more act of the accused to make believe that she was not present at the time of the incident and that she was taking treatment under PWs.11 and 12.
Placing reliance upon the evidence of all the incriminating evidence culled out by the prosecution,
- 16 -
the prosecution has proved beyond reasonable doubt that the accused has committed the murder of the deceased for wrongful gain and hence, the offences against the accused were proved.
15. In light of the said findings by the learned Sessions Judge, whether the aforesaid chain of circumstances is in consistence it is necessary to refer to the evidence adduced by the prosecution. There are totally twenty nine witnesses examined by the prosecution.
(i) PW.1-Sannamma - mother of the deceased who is the complainant has deposed that on 16/09/2014, when herself and her husband had been to work leaving behind her daughter Bhagya at home and when she returned at 1.30 p.m. to fetch water from the water-tank, she saw that the door was closed and entered the house by pushing the door, she found liquor sachet and khara mixture packet
- 17 -
lying, but her daughter was not found in the hall and immediately she entered the room adjacent to the hall and found her daughter lying and when she touched the body of her daughter, she was not breathing and she found that there was a ligature mark on the daughter's neck which might have caused by rope. She further deposed that on her scream the neighbors came to the spot and took the body outside and she also found that the almirah was scattered and an amount of Rs.19,000/- was missing out of Rs.25,000/- which she had kept in the almirah and a pair of ear-studs. She realized that some body had robbed the house and murdered her daughter and accordingly, she lodged complaint as per Ex.P-1 and the liquor sachet and mixture packet were marked as MOs.1 and 2 and she supported the case of the prosecution.
- 18 -
(ii) PW.2-Thimme Gowda - father of the deceased stated on par with his wife-PW.1. He is not an eyewitness to the incident. He stated that at 1.30 p.m. someone informed him at the place where he was working that his elder daughter Bhagya has been murdered and immediately he went to his house and found the dead body of his daughter was placed at verandah and on the neck of his daughter there was a ligature mark caused either by wire or thread and when he went inside, he found that there was a liquor sachet and mixture packet on the bench. The petticoat thread (ladi) and the stone were marked as MOs.3 and 4. He supported the case of the prosecution.
(iii) PW.3-Shankar, deposed that he wrote the complaint on the instruction from PW.1, who supported the case of the prosecution stating that he came to know about the death of Bhagya by an
- 19 -
unknown person on 16/09/2014 at about 1.00 p.m. when he was in the field and he immediately went to the house of PWs.1 and 2. By then there were number of people gathered and he noticed ligature marks on the neck of Bhagya which might have caused by wire and he enquired with PW.1 and PW.1 requested him to write the complaint. Accordingly, he wrote the complaint. He supported the case of the prosecution.
(iv) PW.4-Shashikala is the wife of PW.5 who runs a petty shop. She categorically deposed that when she was in the shop in the year 2014, the accused came to her shop and asked for liquor sachet at about 11.00 to 11.30 a.m. and this witness has given the liquor sachet to the accused along with 50 grams of mixture and Rs.30/- was given by the accused. She came to know about the murder of Bhagya daughter of PW.1 at about 1.00 p.m. and the husband of this witness and this witness reached the
- 20 -
spot and found ligature marks on the neck of the deceased. She identified MOs.1 and 2 and stated about the same were taken from their shop and supported the case of the prosecution.
(v) PW.5 - Shivakumar the husband of PW.4 who is the owner of the petty shop deposed that he was addicted to alcohol and that he had purchased MO.1 liquor sachet from MSIL wine store and had used one sachet and had kept another sachet in his shop and he went to his field for agricultural work. When he returned to the shop he found the tetra pack was missing and when he enquired, PW.4 said that the accused had asked for sachet and the same was given to her. He identified MOs.1 and 2 and supported the case of the prosecution.
(vi) PW.6 - Soumya deposed that her house is situated in front of the house of PWs.1 and 2. She deposed that on 16/09/2014 she saw that the accused
- 21 -
was going to the house of PWs.1 and 2. It is further deposed that this witness came to know that the accused had borrowed a loan of Rs.10,000/- from the Sangha which was run by one Shanthamma - PW.9 and she deposed that she was informed by PW.9 that the accused had not returned the amount. On the date of the incident when the witness and the deceased were talking, the accused came near the house of PWs.1 and 2 and called the deceased and on questioned by PW.6 as to why the accused was calling Bhagya, she said that she had lost the keys of almirah. This witness further deposed that she asked the accused whether the chit amount has been paid? At that time, the accused replied stating that she did not have amount and she has to asked somebody and would pay the same. By then, the deceased proceeded towards the accused and the said witness returned back to her house. The said witness deposed that she saw the accused coming out of the house of PWs.1
- 22 -
and 2 and closing the door. She identified MOs.1 to 4 and supported the case of the prosecution.
(vii) PW.7 - Shashikala deposed that she knows PW.9 Shanti @ Shanthamma and denied the suggestion that Shanthamma was running oil chit every year for Amavasya Festival and also denied that she was a member of the said chit and she deposed that she is unaware as to whether the accused was a member of the chit. She has turned hostile to the case of the prosecution.
(viii) PW.8 - Vishwa Who is the neighbor of PWs.1 and 2 stated that when he was in his house he heard scream of PW.1 and when he went to her house, he saw the dead body of Bhagya, but denied about seeing any injuries on the body. He also deposed that he did not see any items inside the house. He has not supported the case of the prosecution and has turned hostile.
- 23 -
(ix) PW.9 - Shanthi has deposed that she was not running any chit in her village and that the accused was not the member nor she has taken any loan of Rs.9,000/- from the chit Sangha. She also denied that accused was repaying the chit amount and interest on installment. She has totally denied all the questions put by the prosecution and has turned hostile and not supported the case of the prosecution.
(x) PW.10-Susheela deposed that she did not see the accused going to the house of PWs.1 and 2 and stated that she has not stated before PW.9 Shanthi that the accused had borrowed Rs.10,000/- from the chit and not repaid the amount. She deposed that on 16/09/2014 at around 1.30 p.m. she heard the scream of PW.1 who was shouting that someone has murdered her daughter and she has not gone to the place of the incident nor she has seen any
- 24 -
material. Thereby she has turned hostile and not supported the case of the prosecution.
(xi) PW.11 - Savitha is a nurse working in Seva Nursing Home deposed that when she was on duty on 16/09/2014 the accused came to the nursing home at 1.30 p.m. complaining about an accident. As the doctor was not in the nursing home, the said witness called Dr.Ashwini Narayan and the doctor gave injection to the accused and put glucose drips and she deposed that at that time, four to five ladies came to the hospital and quarreled with the accused asking for money. At that time the husband of the accused pad a sum of Rs.9,000/- to the ladies. The said witness stated that the accused had not sustained any injuries and also stated that Dr.Ashwini K.Narayan treated the accused for the first time. She supported the case of the prosecution.
- 25 -
(xii) PW.12 - Dr. S.Chaitra deposed that on 16/09/2014 at around 1.30 p.m. the accused had come to Seva Nursing Home on the pretext that she met with an accident and at that time this witness was working as a consulting surgeon. She deposed that Dr. K.Ashwininarayan treated the accused and she examined the patient. She denied about the Circle Inspector having brought the accused to the nursing home and she has partly supported the case of the prosecution and partly turned hostile.
(xiii) PW.13 - M.E.Shivanna spot mahazar witness stated that on 16/09/2014 the Mandya Rural Police called this witness near the house of deceased Bhagya and drawn the seizure mahazar, seizing the liquor sachet and khara packet and the seizure mahazar is at Ex.P-4 and further stated that the nighty, the petticoat and the thread (ladi) were seized
- 26 -
in his presence as per MOs.5 to 7 in panchnama at Ex.P-11. He supported the case of the prosecution.
(xiv) PW.14 - C.N.Lakshmi is a panch witness to the spot mahazar Ex.P-4 and identified MOs.1 and 2. She supported the case of the prosecution.
(xv) PW.15-Lankesh is a panch witness to the spot mahazar Ex.P-4 and identified MOs.1 and 2 and MOs.5 to 7. He supported the case of the prosecution. (xvi) PW.16 - Dr.Ashwininarayan who conducted the post-mortem on the dead body of deceased Bhagya and issued Ex.P-13 the post mortem report and opined that the injury found around the neck is by thread (ladi) and opined as per Ex.P-15 that the death has occurred due to compressing of the neck. He supported the case of the prosecution. (xvii) PW.17 - Shobha is inquest witness who conducted inquest on the dead body of Bhagya and
- 27 -
seized nighty, petticoat, a pair of gold ear-studs and the seizure mahazar is marked as Ex.P-12 and identified MOs.5, 6 and 8. She supported the case of the prosecution.
(xviii) PW.18 - Ramesh is the neighbour of PWs.1 and 2. He deposed that he had seen the dead body of Bhagya inside the house and shifted the dead body to the front yard of the house of PWs.1 and 2. He denied about PW.1's screaming and that her daughter was murdered by unknown persons and partly supported the case of the prosecution.
(xix) PW.19 - Ananda Mahazar witness to seizure of Petticoat, thread (ladi) hospital slip from the house of the accused at Ex.P-17 and drawing of mahazar in his presence and also the witness to seizing of stone MO.4 in the house of PW.1 and mahazar drawn at Ex.P-18. He is also a witness to
- 28 -
the seizure of Rs.9,000/- from Shanthama at Ex.P-6. He supported the case of the prosecution. (xx) PW.20 - Srinivasaiah stated that he has given property documents of PW.1 on request of PW.1 and the same was issued at Ex.P-20. He supported the case of the prosecution.
(xxi) PW.21- Nagarathnamma woman P.C., this witnesses arrested the accused on the instruction of the Circle Inspector and reported as per Ex.P-21 and Ex.P-21(a) is her signature. She supported the case of the prosecution.
(xxii) PW.22 - Uma B.R., Circle Inspector was appointed to guard the dead body of Bhagya. She supported the case of the prosecution. (xxiii) PW.23-Ramaswamy, AEE stated that the circle inspector requested him to prepare the spot sketch and accordingly he prepared the spot sketch as
- 29 -
per Ex.P-23. He supported the case of the prosecution.
(xxiv) PW.24 - Basavaraju deposed that he received request letter from C.I. Mandya Rural Police, requesting him to give details of supplying Haywards Chiyars Whisky 90 ml. pouch adhesive label and the details were submitted on 06/11/2014. The request letter and the details given are marked as Exs.P-25 and P-26. He supported the case of the prosecution.
(xxv) PW.25 - Venkatesh deposed that on a call from control room Mandya, he visited the spot with his staff relating P.S.Crime No.513/2014 of Mandya Rural Police and collected the finger prints from the spot and submitted letter to the Investigating Officer on 17/09/2014 as per Exs.P-32, 33, 34 and 35. He supported the case of the prosecution.
- 30 -
(xxvi) PW.26 - Shivarudraiah deposed that when he was in police station, CW.40 sent the complaint through P.C. 57 Anil Gowd which as per Ex.P-1 and this witness registered complaint and sent the FIR as per Ex.P-30 and he identified his signature at Ex.P-30(a) . He supported the case of the prosecution.
(xxvii) PW.27 - Sujatha who deposed that she received four items in sealed cover in her laboratory and the seal was intact and this witness has examined those items and gave report as per Ex.P-31 and she identified her signature at Ex.P-31(a). She supported the case of the prosecution.
(xxviii) PW.28-Lokesh this witness has taken further charge of investigation from Shivarudra- PW.29. He went to the spot and conducted inquest panchnama Ex.P-12 and he identified his signature at Ex.P-12(d). He supported the case of the prosecution.
- 31 -
(xxix) PW.29 - Shivarudra, Investigating Officer deposed that when he was in the police station, he received call and got information that there was a murder of one Bhagya at Managala Grama and he visited the spot along with CPC Anil Gowda and Woman Police Constable - Nagarathna and received complaint at the spot and the complaint was forwarded and gave direction to send finger print expert and dog squad. He supported the case of the prosecution.
16. The entire case of the prosecution is based on the circumstantial evidence and the reference to the leading judgment of the Apex Court, in the case of Sharad Birdhichand Sarda vs. State of Maharashtra [(1984)4 SCC 116], lays down the five Golden principle it is the panchsheela which governs the case based on the circumstantial evidence. The relevant para No.153 reads as under:
- 32 -
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt
- 33 -
of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) 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."
17. In light of the judgment of the Apex Court in Sharad's case stated supra, the prosecution witness deposed to that effect and material placed on record needs to reconsider.
18. As could be seen from the evidence of prosecution witnesses, the incriminating circumstances that led to implicate the accused are:
(a) Last scene theory;
- 34 -
(b) Homicidal death;
(c) motive;
(d) Recovery of the stolen amount-MO.10, stone-
MO.4, petty coat thread (ladi)-MO.3 used in the commission of offence found in the house of the accused at the instance of the accused;
(e) Misleading the investigation/police in a different direction so that the accused could not be implicated;
(f) Finger prints found at the place of incident.
(a) Last scene theory:
19. PW.6 is the prime witness who has stated in her evidence that when she along with the deceased Bhagya was standing in front of the house, the accused came near the house of Bhagya and called the deceased to come near her and when PW.6 questioned the accused as to why she was calling the deceased, she replied that she has lost the keys of her almirah and on that pretext she was calling the deceased. PW.6 categorically stated that she had
- 35 -
asked the accused as to whether her loan has been cleared and the accused had replied that she had no money and she would repay it shortly. In the meanwhile, the deceased went with the accused inside the house and PW.6 went back to her home. Later she saw the accused coming out of the house of the deceased Bhagya. The evidence of PW.6 would clearly establish that she has seen the accused entering the house of the deceased at that relevant point of time and she has stood the test of cross-examination by the accused. The perusal of the cross-examination would reveal that the cross-examination is to the effect that one Shaker and Subramani would visit the house of PW.1 often, but as to how the cross- examination to that effect is relevant is not stated by the defence. Even assuming that the said person was visiting the house of the deceased often, there cannot be any link of the said person's visit to that of the incident as no one is examined or any material has
- 36 -
been produced on behalf of the defence to show that on the said date of the incident, the said persons were in the vicinity. Thus, the evidence of PW.6 would clearly establish the fact that the accused was last seen with the deceased.
20. Another circumstance in the last scene theory is the evidence of PWs.4 and 5 which evidence involves importance to prove the fact that the accused was near the house of the deceased Bhagya. PW.4 who is the wife of PW.5 has categorically stated that the accused had come to her shop at around 11.00 to 11.30 a.m. and purchased liquor sachet MO.1 and khara mixture MO.2 and had paid an amount of Rs.30/-. This fact reveals the presence of the accused in the village where the incident had taken place and on that date just before the occurrence of the incident.
- 37 -
21. PW.5 though a hearsay witness, the husband of PW.4 and owner of the petty shop who has deposed on par with the evidence of PW.4 about the keeping of the liquor sachet in the shop and on his return from the field, when asked about the liquor sachet, PW.4 informed that the accused had purchased the same. PW.5 stood the test of cross- examination and nothing has been elicited to disbelieve the evidence of PW.5. The evidence of PWs.4 and 5 is in consonance with PW.6 about the accused being in the vicinity of the house of the deceased and the categorical statement of PW.6 about seeing the accused entering the house of the deceased along with the deceased and within few hours, the murder of the deceased Bhagya was found in her house. Thus, the prosecution has proved beyond reasonable doubt about the presence of the accused at the time of occurrence of the incident and the last seen with the deceased.
- 38 -
(b) Homicidal death:
22. PWs.1 and 2 - parents of the deceased, PW.16 - the doctor who examined the dead body of deceased Bhagya, PW.17 - inquest witness and PW.28-I.O. categorically deposed about the ligature marks found on the neck of the deceased. PW.16 the medical officer Dr.Ashwini Narayan who examined the deceased Bhagya, conducted post-mortem and issued Ex.P-13 the post-mortem report and opined at Ex.P- 15 in respect of petticoat thread (ladi) MO.3 and categorically deposed about the external injuries found on the dead body of Bhagya which reads as under:
"External Injuries:
Ligature Mark: It is a transverse, complete ligature mark measuring 35 x 1.2 cm present just below the thyroid cartilage, completely encircling the neck with edges of it at places shows ecchymoses. Base of mark is reddish, skin over the ligature mark is dry, reddish. It
- 39 -
lies 6 cms below left angle of mandible, 6 cms below chin and 6 cm below right angle of mandible. Bloodless dissection of the neck revealed extravasation of blood in the subcutaneous tissues and neck structures and also over the muscles of the neck. Capsule of thyroid gland over left side showed extravasation of blood. Skin over the ligature mark and normal skin around it, neck structures along with hyoid bone and thyriod cartilage dissected and sent for histopathological examination."
The doctor opined that the death is due to asphyxia as a result of strangulation. She categorically deposed when such petticoat thread (ladi) is used to compress the neck, the death could be caused by homicidal strangulation and not by any other material. The FSL report Ex.P-31 is not disputed by the accused and the scientific officer PW.27 opined as under:
"Residues of Volatile poisons, Ethyl Alcohol, Pesticides, Barbiturates, Benzodiazepine group of drugs, Toxic metal ions and anions were not detected in all the above stated articles."
- 40 -
Thus, the evidence of PW.27 along with PW.16 clearly establish the fact that the prosecution has proved beyond reasonable doubt that the death of the deceased Bhagya was a homicidal death.
(c) Motive:
23. PW.6 has deposed about asking the accused about whether the loan amount has been paid by her and the accused having replied that she would pay the amount is one of the circumstances, which could point against the accused. The evidence of PW.11 - nurse who treated the accused on the date of the incident deposed that when the accused was in the hospital, certain ladies entered the hospital and asked for money and the accused asked her husband to pay the amount of Rs.9,000/- and the same was paid by her husband. This link of the circumstance is very interesting for the reason that PW.6 and PW.11 are independent witnesses to each other and PW.6
- 41 -
categorically stated about the burden of loan by the accused and she stating that there was no amount and after the incident, when the accused was in the hospital at around 1.30 p.m. an amount of Rs.9,000/- was paid. Another circumstance is that out of Rs.25,000/- a sum of Rs.19,000/- was missing from the house of PWs.1 and 2 and a pair of ear-studs and the same was recovered at the instance of the accused. This clearly establish the motive of the accused was for gain by the homicidal death of the deceased.
(d) Recovery of the stolen amount-MO.10, stone-MO.4, petticoat thread (ladi)-MO.3 used in the commission of offence found in the house of the accused at the instance of the accused:
24. The other circumstance which leads to the committing of offence by the accused is recovery of the material objects at the instance of the accused.
MO.3 - petticoat thread (ladi) MO.4 - Stone and
- 42 -
MO.10 cash of Rs.9,000/-. The recovery of the said material is on the basis of the voluntary statement given by the accused at Ex.-37 and the seizure of the said material was in the presence of PW.19 and PW.28 the panch witnesses. Though there is a presumption that the statement of the accused cannot be used against the accused. However, Section 27 of the Indian Evidence Act, permits a fact discovered in an information supplied by the accused in his disclosure statement is a relevant fact and thus, the statement to that extent, the material seized at the instance of the accused can be relied. This circumstance is not the only circumstance which lead to the link of the accused in committing the offence. However, it is relevant to note that on the basis of the voluntary statement furnished by the accused, the material MOs.3, 4 and 10 have been recovered and such evidence is admissible and relevant under Section 27 of the Indian Evidence Act on the principle that it is
- 43 -
the accused who is the only person knowing about the concealment of the incriminating articles and the place where they are hidden. The Hon'ble Apex Court, in the case of Jafarudheen and others vs. State of Kerala [2022 (8) SCC 440) in para Nos.37 and 43 has held as under:
"Recovery under Section 27 of the Evidence Act
37. Section 27 of the Evidence Act is an exception to Sections 24 to 26. Admissibility under Section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offense. Thus, it incorporates the theory of "confirmation by subsequent facts" facilitating a link to the chain of events. It is for the prosecution to prove that the information received from the accused is relatable to the fact discovered. The object is to utilise it for the purpose of recovery as it ultimately touches upon the issue pertaining to the
- 44 -
discovery of a new fact through the information furnished by the accused. Therefore, Section 27 is an exception to Sections 24 to 26 meant for a specific purpose and thus be construed as a proviso.
x x x
43. K. Chinnaswamy Reddy v. State of A.P. as hereunder: (AIR pp. 1792-793, para 9) "9. Let us then turn to the question whether the statement of the appellant to the effect that "he had hidden them (the ornaments)" and "would point out the place" where they were, is wholly admissible in evidence under Section 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. The Sessions Judge in this connection relied on Pulukuri Kotayya v. King-Emperor where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. In that case the Judicial Committee considered Section 27 of the Indian Evidence Act, 1872 which is in these terms:
- 45 -
'27. How much of
information received from
accuse may be proved.-
Provided that, when any fact is
deposed to as discovered in
consequence of information
received from a person accused of
any offence, in the custody of a
police officer, so much of such
information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.' This section is an exception to Sections 25 and 26, which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody, unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under Section 27. The Judicial Committee had in
- 46 -
that case to consider how much of the information given by the accused to the police would be admissible under Section 27 and laid stress on the words "so much of such information ... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact."
In light of this judgment of the Hon'ble Apex Court and perusal of the material on record would clearly establish that the voluntary statement for the recovery of the material objects can be considered.
Accordingly, the recovery of the said materials are said to be made from the house of the accused and the recovery of the same is material circumstance which goes against the accused. The prosecution has
- 47 -
proved beyond reasonable doubt about the recovery of the said materials at the instance of the accused.
(e) Misled the investigation/police in a different direction so that the accused could not be implicated:
25. PWs.4, 5, 11 and PW.12 are the prime witnesses to establish the fact of misleading the prosecution to go on a different track. All the witnesses of the prosecution have mentioned about the lying of MO.1 liquor sachet, MO.2 khara in the house of the deceased. This fact finds importance in the evidence of PWs.4 and 5 who have categorically stated about the purchase of MOs.1 and 2 by the deceased from their petty shop and about paying of Rs.30/- and the said shop is near to the place of incident. It is very interesting that the said sachet was thrown at the place of the incident to give an impression that the said packet has been used by
- 48 -
some other men and the investigation to be taken on a wrong direction to show that some men had entered the house and consumed alcohol and committed the murder. It is also relevant to note that the packet was empty.
26. PWs.11 and 12 the nurse and the doctor who categorically stated about the accused having come to their hospital on the pretext that she had met with an accident and both the witnesses have categorically stated that there were no injuries found on the body of the accused. This is one of the act of the accused trying to show that she was not at the place of the incident, but in the hospital at the relevant date and time of the incident. What creates a doubt in our minds is that the distance between the place of incident and the hospital is about 6.5 km. and takes about 15 minutes to reach the hospital and admittedly the accused was present in the hospital at
- 49 -
1.30 p.m. and the incident had occurred between 12.30 p.m. and 1.30 p.m. The evidence of PWs.4 and 5 about the purchase of the liquor sachet and khara mixture and the evidence of PWs.11 and 12 about the presence of the accused in the hospital and that there was no injury sustained by the accused would clearly establish the fact that the entire circumstance is created by the accused to carry the investigation on a wrong track and to mislead the investigation. The prosecution has established beyond reasonable doubt that the accused has misled the investigation.
(f) Fingerprints found at the place of the incident:
27. PWs.1 to 3 have categorically stated about MO.1 - liquor sachet and MO.2 - khara mixture lying on the cot and the alimirah before conducting of mahazar. PW.29 who conducted the mahazar as per Ex.P-4 has seized MOs.1 and 2 in the presence of
- 50 -
panch witnesses PWs.13 to 15. The said panch witnesses have categorically stated about the presence of the articles at the time of mahazar. PW.29 who conducted the investigation called the finger prints expert to the spot as stated in his evidence and the finger prints on MO.1 and on the almirah were taken at Q.1 to Q.3. The prosecution examined PW.25 the finger print expert who issued Exs.P-33, 34 and 35. PW.28 - the Investigating Officer who conducted the further investigation has collected the finger prints for comparison with the chance prints and sent to PW.25 at Annexures - A1 to A3. The report of PW.25 at Exs.P-34 and P-35 would show that the prints at Q.1 to Q.3 collected on spot tallies with the admitted signatures sent by PW.25 of accused Nos.1 to 3. The relevant portion of the opinion of the finger print bureau at Ex.P-34 (a) reads as under:
- 51 -
"Finger prints : The chance prints marked as Questioned 'Q1', 'Q2' and 'Q3' developed at the scene of crime.
Finger prints : 1) Three Finger print slips (Form Admitted No.214) containing admitted finger prints of all the ten fingers of LAKSHMAMMA @ LAKSHMI obtained before the CPI, Mandya Rural Circle in Cr. No.513/2014 U/S 302 IPC, Dated: 17-09-2014.
Which is recorded vide COID No.KS458 28A 006485 in A.F.I.S. of which Right Thumb Impression, Left Index Finger Impression and Left Thumb Impression on one of the F.P Slip is selected and marked as 'A1', 'A2' and 'A3' Respectively by me and initialed.
OPINION : 1) The chance print marked as 'Q1' is identical with admitted Right Thumb Impression marked as 'A1'.
2) The chance print marked as 'Q2' is identical with admitted Left Index Finger Impression marked as 'A2'.
3) The chance print marked as 'Q3' is identical with admitted Left Thumb Impression marked as 'A3'."
- 52 -
In light of the evidence of PWs.1 to 3, PW.28, PW.29 which corroborate with the evidence of PW.25 clearly establish the fact that the finger prints found on the material and in the place of incident are that of the accused and the prosecution has proved beyond reasonable doubt about the presence of finger prints of the accused leading to the link of chain for committing the offence.
Conclusion :
28. The material on record clearly depicts that the circumstances stated supra at (a) to (f) with regard to trespass by the accused into the house of the deceased, robbery committed by the accused for personal gain and the homicidal death of the deceased attracting the provisions of Sections 450, 302 and 392 of IPC and the circumstances have been established by the prosecution beyond reasonable doubt that the robbery and murder took place on the same
- 53 -
transaction and the accused would be liable for the offence punishable under Sections 450, 302 and 392 of IPC as the prosecution proved the chain of circumstances leading to the involvement of the accused in the homicidal death of the deceased.
29. The judgment relied by the learned counsel in the case of Sridhara @ Sripathi as stated supra is not applicable as in the Sridhara's case there was no evidence leading to the movements of the accused however in the present case on 16/09/2014 when the deceased was alone at home the accused trespassed into the house of the deceased and robbed the money kept in the almirah and a pair of ear-studs and the accused killed the deceased on the said date and in order to mislead the investigation went to the extent of creating material in the place of offence and also made an act of having met with an accident. The prosecution has established by way of leading the
- 54 -
evidence of witnesses about the involvement of the accused in the homicidal death of the deceased and accordingly, learned Sessions Judge, based on the oral and documentary evidence has convicted the accused for the offences punishable under Sections 450, 302 and 392 of IPC for the reasons stated above, the point raised in this appeal is answered in the negative holding that the accused has not made out a case to interfere with the judgment and order of conviction for the offence punishable under Sections 450, 302 and 392 of IPC.
30. In the result, we pass the following:
ORDER
(i) Criminal appeal filed by the accused is dismissed as devoid of any merit.
(ii) The impugned judgment of conviction and order of sentence dated 30/06/2018 passed in S.C.
- 55 -
No.15/2015 on the file of the II Addl. District & Sessions Judge, Mandya, is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE S*