Karnataka High Court
G. V. Malatesh vs State By Sathnur Police on 4 September, 2018
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 04TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.2041 OF 2017
BETWEEN
G. V. MALATESH
S/O G B VENKATESH
AGED ABOUT 24 YEARS
R/O BHIMANAKATE VILLAGE,
K HONNALAGERE POST
KASABA HOBLI
MADDUR TALUK
MANDYA DIST-572130
... APPELLANT
(BY SRI: SYED AKBAR PASHA, ADVOCATE)
AND
STATE BY SATHNUR POLICE
RAMANAGARA DIST
R/P BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE-560001
... RESPONDENT
(BY SRI: I.S.PRAMOD CHANDRA, SPP-II)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND SENTENCE DATED 29.06.2016 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA
TO SIT AT KANAKAPURA IN S.C.NO.53 OF 2010 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 AND 201 OF INDIAN PENAL CODE. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS
IMPRISONMENT FOR LIFE AND TO PAY FINE OF RS.50,000/- IN
DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO FURTHER
RIGOROUS IMPRISONMENT FOR A PERIOD OF 1 YEAR FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF INDIAN PENAL
CODE. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR 7 YEARS AND TO
PAY FINE OF RS.25,000/- IN DEFAULT OF PAYMENT OF FINE HE
SHALL UNDERGO FURTHER RIGOROUS IMPRISONMENT FOR A
PERIOD OF 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 201 OF INDIAN PENAL CODE. ALL THE SENTENCES
SHALL RUN CONCURRENTLY.
*****
THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS
DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant, hereinafter referred to as "accused", has filed this appeal against the judgment of conviction and order of sentence dated 29.06.2016 in S.C.No.53 of 2010. 3
2. By the impugned judgment, the appellant is convicted for the offences punishable under sections 302 and 201 of Indian Penal Code and is sentenced to rigorous imprisonment for life and a fine of Rs.50,000/- for the offence under section 302 of Indian Penal Code and rigorous imprisonment for a period of seven years and a fine of Rs.25,000/- for the offence under section 201 of Indian Penal Code. Both the sentences are directed to run concurrently.
3. The case of the prosecution is that the deceased Kumari.Rekha, aged about 17 years, was engaged to be married to the accused. Their marriage was scheduled to be performed on 10/11.12.2009. In the meanwhile, the accused is stated to have developed relationship with another girl and he sought for postponement of the marriage. In this background, on 05.11.2009, the accused is stated to have took the deceased to Muttatti forest area and committed her murder by strangulating her neck and thereafter, crushed her head with a stone boulder with a view to cause disappearance of the evidence of murder. 4
4. According to the prosecution, on the fatal day, the deceased had left the house on the pretext of attending special classes in her college. Since she did not return home, her grandparents and uncle with whom she was residing made enquiries. When they went to Maddur Police Station, they were directed to approach Satanur Police Station. In Satanur Police Station, the uncle of the deceased (PW.3) was informed that a dead body of a young woman was found in the forest area and he was shown the photograph of the dead body. Since the face was disfigured, he was unable to identify the dead body. Later, he and the father of the deceased (PW.2) were taken to the mortuary at Rajarajeshwari hospital, Bangalore. They identified the dead body as that of the deceased Rekha.
5. In the course of investigation, PW.2 and PW.3 suspected the involvement of the accused herein. The accused was arrested on 10.11.2009. Based on his voluntary statement, a rolled gold chain and a pair of ear stud with lolak and slippers of the deceased were recovered near the spot of occurrence. They were seized under a mahazar. At the instance of the 5 accused, his blood stained clothes were seized and were forwarded for FSL examination. The spot where the clothes, books and the black rexin bag of the deceased were burnt was shown by the accused and a panchanama was drawn at the said spot and burnt materials were seized. On completing the investigation, charge-sheet was laid against the accused for the above offences. The accused denied the charges and faced trial.
6(i) In an attempt to bring home the guilt of the accused, prosecution examined 18 witnesses as PW.1 to PW.18.
6(ii) Amongst them, PW.1 is a witness to the inquest mahazar.
6(iii) PW.2 is the father of the deceased and PW.3 is the uncle of the deceased. Both these witnesses have deposed about the proposed marriage between the accused and the deceased and have clearly stated that even though the date of marriage was fixed and choultry was booked, accused proposed to postpone the marriage which was opposed by them. PW.3 has unequivocally stated before the court that the accused himself took the deceased with him and committed her murder. 6 PW.2 has identified the bra (M.O.1) and the panty (M.O.2) found on body of the deceased.
6(iv) PW.4 and PW.5 are the panch witnesses to the recovery of M.Os.3 to 9 under mahazar Ex.P2.
6(v) PW.6 is the witness to the recovery of M.Os.10 to 12 under Ex.P3.
6(vi) PW.7 Kumari Roopa is the schoolmate and neighbour of the deceased. According to this witness, on 05.11.2009, she had been to her college to attend special classes. At that time, the deceased accompanied her even though the deceased did not have any special class in the college. She further deposed that the deceased disclosed to her that two days earlier thereto, deceased had talked to the accused over phone and they had decided to go to "Shimsha". According to this witness, after reaching school, the deceased went away telling this witness not to wait for her and thereafter, she was not to be seen. 7
6(vii) PW.8 and PW.11 are examined by the prosecution to speak to the fact that the deceased and the accused were last seen together.
PW.8 in his evidence has stated that he saw the accused and deceased near T.B.Circle, going towards Shivapura at about 11.00 a.m. on 5.11.2009.
PW.11 has stated that on 5.11.2009 when he and PW.12 Pramod kumar were going towards Naganadoddi on a bike, near Gananakere, he saw accused taking a lady towards the forest area around 12.00 noon and thereafter, he saw the accused returning alone on his motorcycle at about 3.00 p.m. Accused was wearing black coloured pant, blue shirt and blue jerkin. Girl was wearing chudidar and a bag at the back. According to this witness, he was knowing the accused and on that basis, he could identify the accused. Nothing worthwhile has been elicited in the cross-examination to doubt or disbelieve his evidence.
6(viii) PW.9 Smt.Gowramma is the mother of the deceased. She is a circumstantial witness.
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6(ix) PW.10 Chandrashekara is the mahazar witness to the recovery mahazar Ex.P4 under which M.Os.13, 14 and 15 were seized.
6(x) PW.12 is the panch witness to the spot mahazar Ex.P5. He has turned hostile to the prosecution case.
6(xi) PW.13 is the villager who lodged a report regarding the dead body found in Gananakere. Through him, prosecution has marked the complaint lodged by him at Ex.P8. He has deposed that police conducted the mahazar as per Ex.P5 and seized the stone M.O.6 which way lying at the spot.
6(xii) PW.14 is the mahazar witness to Ex.P4. He has turned hostile to the prosecution case.
6(xiii) PW.15 is another panch witness to Ex.P5. This witness has also failed to support the prosecution.
6(xiv) PW.16 is the Assistant Engineer, PWD, Kanakapura, who prepared the sketch of the scene of occurrence as per Ex.P9.
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6(xv) PW.17 is Dr.Pradeep Kumar.N.V. who conducted the postmortem examination on 10.11.2009 and issued postmortem report as per Ex.P10. According to this witness, the deceased died due to head injuries.
6(xvi) PW.18 is the Investigating Officer who conducted the investigation and laid the charge-sheet.
7. Based on this evidence, trial court was of the opinion that the prosecution has proved all the above circumstances establishing the guilt of the accused beyond all reasonable doubt for the offence of murder as well as for causing disappearance of the evidence of murder and accordingly, convicted the accused for the above offence.
8(i) Learned counsel for the appellant Sri.Syed Akbar Pasha has assailed the impugned judgment contending that the circumstances relied on by the prosecution are not proved. The motive projected by the prosecution is not established. The evidence produced by the prosecution is contrary to the charge framed against the accused. In the charge it is alleged that the 10 accused had developed illicit relationship with another girl which prompted the accused to do away with the deceased. But in the course of trial, the prosecution has given a go by to this theory and evidence is adduced as if the accused intended to postpone the marriage and on that account, he committed the alleged murder. This discrepancy seriously affects the case of the prosecution.
8(ii) With regard to the last seen theory projected by the prosecution, learned counsel would submit that the evidence of PW.8 is unbelievable. The statement of this witness was recorded on 15.11.2009 more than ten days after the alleged incident. There is nothing on record to indicate that during the intervening period, he had disclosed the fact of seeing the deceased and the accused together as narrated in his evidence. He is a propped up witness. Therefore, no reliance could have been placed on the statement of this witness.
8(iii) The other witness examined by the prosecution PW.11 has admitted in his evidence that he and PW.8 are the village elders and they are generally called by the police to settle 11 disputes in the village. Therefore, their evidence is tainted and no credence could have been given to the testimony of this witness in proof of the circumstance of last seen theory projected by the prosecution.
8(iv) Thirdly, with regard to the recovery evidence relied on by the prosecution, the learned counsel contends that the evidence adduced in proof of this circumstance is not clear and cogent. The said recoveries do not connect the accused to the alleged offence. Even though the clothes belonging to the accused are said to have been recovered from his house, there is discrepancy in the evidence of the panch witnesses as to the place from where the said clothes were recovered. As a result, even this circumstance has not been proved by the prosecution.
8(v) The phone which is stated to have been seized from the possession of the accused is not proved to be standing in his name. Call details produced by the prosecution do not connect the accused to the alleged incident. As such, even this circumstance is also of no avail to the prosecution to connect the accused to the alleged incident.
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8(vi) Learned counsel further submits that the trial court ought not to have placed reliance on the FSL report, as the Scientific Officer who issued the said report has not been examined before the court. There was inordinate delay in forwarding the articles for examination by the FSL authorities. The material on record indicates that the Investigating Officer has failed to follow recommended procedure in seizing the articles and forwarding the same for chemical examination. In support of this contention, learned counsel has placed reliance on the decision of this Court in MOHD. SHUKUR, S/O. SHAIK MEHBOOB vs. THE STATE OF KARNATAKA, LAWS (KAR) 2017 3 115 and SHARADA URS vs. BHARTHI URS RANI & Others, LAWS (KAR) 2015 12 226.
9. Refuting the above contentions, learned SPP-II has taken us through the entire evidence let in by the prosecution and submitted that the prosecution has based its case on circumstantial evidence. The circumstance of the deceased and the accused last seen together is established by the evidence of PW.8 and PW.11. The recovery effected at the instance of the 13 accused is also duly proved. These recoveries connect the accused to the alleged offence. Motive is established by the evidence of PW.2 and PW.3 as well as by the surrounding circumstance. Added to that, the conduct of the accused as brought out in the evidence indicates that eventhough he was engaged to the deceased, he did not make any efforts either to trace the accused or to join PW.2 and PW.3 in searching the deceased. On the other hand he was absconding since 09.11.2009. Trial court has appreciated all these materials in proper perspective, therefore, the impugned judgment does not call for any interference by this court.
10. We have bestowed our careful thought to the submissions made at the Bar and have meticulously examined the oral and documentary evidence produced by the prosecution.
11. It is evident from the material on record that the case of the prosecution is rested on circumstantial evidence. The circumstances relied on by the prosecution are, that:
(a) The deceased and the accused were last seen together on the date of the incident.14
(b) The knowledge of the accused about the spot where the bag and the books belonging to the deceased were burnt.
(c) Recovery of the slippers and the ornaments of the deceased at the instance of the accused.
(d) Recovery of the mobile phone from the possession of the accused through which the phone calls were made to PW.3.
(e) The call details with regard to the phone call made through mobile bearing No.9844072232.
(f) The recovery of the blood stained clothes of the accused on the basis of his voluntary statement.
(g) Motive
(h) Conduct of the accused.
12. The fact that the dead body of the deceased was found in the Muttatti forest area is not in dispute. The spot mahazar Ex.P5 and the findings recorded in the inquest mahazar Ex.P1 clearly indicate the condition in which the dead body was found. The clothes of the deceased were removed and she was found wearing only bra and panty. The head of the deceased was disfigured and beyond recognition. The dead body was first 15 noticed by some cattle grazers and a stranger PW.13 lodged a report to the police. Until the dead body was identified by PW.2 and PW.3 the father and uncle of the deceased, the identity of the deceased was not known. There was also no clue about the perpetrator of the alleged offence. However the records indicate that at the time of conducting the inquest mahazar, for the first time, finger of suspicion was pointed at the accused.
13. During the inquest mahazar, PW.2 the father of the deceased and PW.3 the uncle of the deceased have stated that on 05.11.2009, the deceased had left home to go to college and since then, she was not traced. It is relevant to note that during the inquest, in their statements, PW.2 and PW.3 have specifically stated that eventhough the date for the performance of the marriage between the deceased and the accused was fixed, accused was intending to postpone the marriage and was insisting that he would marry the deceased after three years and the same was opposed by PW.2 and his family members. Further, they have stated that while searching for the deceased, they even went in search of the accused and 16 PW.2 has stated that when they went to the house of the accused, they were told that the accused did not return to his house since 9.11.2009. Based on this information, the accused was arrested and based on his voluntary statement, incriminating materials were recovered at the instance of the accused. PW.2 and PW.3 have reiterated the above statements on oath before the Court.
14. Accused has not challenged the above evidence in the cross-examination of the above witnesses. Identity of the deceased is also not disputed. In his examination under Section 313 Cr.P.C, he has taken a stance of total denial and no circumstances are brought on record to suggest that the accused infact wanted to go ahead with the marriage. The material on record clearly indicates that he did not even join the parents and relatives of the deceased in searching her. In the face of this evidence, the argument of the learned counsel that the evidence produced by the prosecution is discrepant to the charge framed against the accused and therefore the prosecution has failed to prove the motive for the commission of the offence, cannot be accepted.
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15. We have perused the charge and we do not find any material discrepancy in the contents of the charge as sought to be made out by the defence. Charge No.1 reads as follows:-
1. ¢B 05.11.09gÀAzÀÄ 15.00 UÀAmÉUÉ PÀ£PÀ ¥ À ÀÄgÀ vÁ®ÆèPÀÄ, ¸ÁvÀ£ÀÆgÀÄ ºÉÆç½, ªÀÄÄvÀÛwÛ gÀ¸ÉÛAiÀÄ UÁt£ÀPg É É CgÀtå¥Àz æ ÃÉ ±ÀzÀ PÀUÀΰêÀÄgÀzÀ §½ ¤Ã£ÀÄ DgÉÆæ ªÀÄÈvÉ PÀĪÀiÁj gÉÃSÁ¼À eÉÆvÉ F »AzÉ ªÀÄzÀÄªÉ ¤²ÑvÁxÀð ªÀiÁrPÉÆArzÀÄÝ, £ÀAvÀgÀ ¨ÉÃgÉÆAzÀÄ ºÉtÂÚ£À ¸Àºª À Á¸À EzÀÝ §UÉÎ gÉÃSÁ½UÉ w½¢zÀÝjAzÀ, ¤Ã£ÀÄ DgÉÆæ ªÀÄzÀÄªÉ ¤gÁPÀj¹zÀ «ZÁgÀz° À è M§âjUÉƧâjUÉ ªÀÄ£À¸ÁÛ¥À GAmÁV, gÉÃSÁ¼À£ÀÄß PÉÆ¯É ªÀiÁqÀĪÀ GzÉÝñÀ¢AzÀ ªÀÄÄvÀÛwÛ PÁr£À ¤dð£À ¥Àz æ ÃÉ ±ÀPÉÌ ªÉÆÃmÁgï ¸ÉÊPÀ¯ï £ÀA. PÉJ.11-Dgï-5846gÀ°è PÀgz É ÀÄPÉÆAqÀÄ §AzÀÄ PÉÆ¯É ªÀiÁrgÀĪÀ PÁgÀt ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 302gÀ£ÀéAiÀÄ zÀAr¸À§ºÀÄzÁzÀ C¥ÀgÁzsª À £ À ÀÄß £À£Àß C¢üPÁgÀ ªÁå¦ÛAiÀÄ°è ªÀiÁrgÀĪÀÅzÁV ¤ªÀÄä ªÉÄÃ¯É DgÉÆÃ¥À EzÉ?
A reading of the above charge makes it evident that since the accused refused to marry the deceased, differences had cropped up and therefore he took the deceased with him and caused her murder. Charge is framed based on these allegations and the ingredients of this charge are satisfactorily proved by the prosecution by examining PW.2 and PW.3. On careful assessment of the evidence of PW.2 and PW.3, we do not have any hesitation to hold that the prosecution has satisfactorily proved the motive on the part of the accused to cause the death 18 of the deceased. Therefore, the contention of the learned counsel for the appellant in this regard is liable to be rejected.
16. Coming to the proof of the circumstances leading to the guilt of the accused, on consideration of the evidences of the prosecution witnesses and the materials produced in support thereof, we find that the prosecution has cogently and convincingly established each and every circumstance relied on by it in support of the charges leveled against the accused.
17. In this context, if we analyze the evidence of PW.8 and PW.11 namely the witnesses examined by the prosecution in proof of the last seen theory, it is relevant to note that PW.8 H.L.Shivanna has stated that he saw the deceased going towards Shivapura at T.B.Circle on the motorcycle of the accused on the date of incident. He has further stated that the deceased was sitting pillion and she was carrying a bag and he saw both of them at about 11.00 a.m. on that day. Eventhough the learned counsel for the appellant has contended that the testimony of this witness cannot be believed as he did not disclose the fact of seeing the deceased and accused together until recording of his 19 statement on 15.11.2009, but a reading of his evidence clearly reveals that this witness has narrated the circumstances in which he happened to see the deceased and the accused together. He has specifically stated that family of the deceased were earlier residing in the same village and that is how he was knowing PW.2 as well as his deceased daughter. He has stated that he was also knowing the accused and was aware of his engagement with the deceased. Therefore, the accused and the deceased were not strangers to PW.8.
18. Eventhough it is contended that PW.8 did not disclose this incident to any one until recording of his statement on 15.11.2009, yet, in the course of cross-examination it is elicited that on the very next day, when he came to know that the parents of the deceased were searching for her, he told some persons who were sitting near Bettadamma Temple that he saw accused and deceased together at about 11.00 a.m. on the previous day. This statement has been elicited in the course of cross-examination by the accused and therefore it lends credence to his evidence. Since PW.8 was residing in a different 20 village, he might not have had an occasion to inform this fact to PW2, but that by itself does not lead to doubt the veracity of his testimony. In the cross-examination, he has asserted that when he went to the Police Station on 10.11.2009, he narrated this fact to the police. Under the said circumstances, if there was any delay on the part of the Investigating Agency to record the statement of the witness, that by itself cannot be a reason to doubt or disbelieve the evidence of the witness especially when the accused has not been able to bring out any circumstance in the cross-examination of PW.8 that he had any motive to falsely implicate the accused or to give false evidence against him. No such circumstances are brought out in the entire cross- examination of PW.8. Therefore, we find his evidence trustworthy and can be accepted in support of the "last seen"
theory propounded by the prosecution.
19. The testimony of PW.8 is duly corroborated by PW.11 - another independent witness examined by the prosecution. This witness is also a resident of Bhuhalli village situated close to the place where the dead body was found. 21 According to this witness, on the date of the incident i.e. on 5.11.2009, at about 12 noon, he saw the accused and a girl going inside the forest. He has further stated that at about 3.00 p.m., he saw the accused alone returning on his bike. He has identified the accused.
20. During the course of his evidence, PW.11 has asserted that the accused was the person who went with the said girl on the date of the incident. Even though in his evidence he has not stated in so many words that the deceased was the girl who accompanied the accused on his motorcycle, but his evidence is relevant to the extent that this witness saw the accused taking a girl on his motorcycle inside the forest area and returning alone on his motorcycle at about 3.00 p.m. According to the prosecution, the deceased was done to death between 1.15 p.m. to 4.00 p.m. as per the certificate issued by PW.17 - Doctor. The evidence establishes the fact that just before the commission of the offence, accused was found near the spot of occurrence. In our view, a cumulative reading of the evidence of PW.8 and PW.11 establishes the fact that on the date of the 22 incident, accused had taken the deceased with him and they were seen together at 11.00 a.m. on the way from T.B.Circle to Shivapura near the college of the deceased. Thereafter, the accused was found taking the girl towards the spot of offence and returning alone and since then, the deceased was found dead. The above evidence in our view, is sufficient to prove the circumstance of the deceased last seen in the company of the accused.
21. Coming to the recovery evidence produced by the prosecution, it is relevant to note that the prosecution has relied on three sets of recoveries namely, (i) the recovery of the half burnt books, rexin bag of the deceased. (ii) Recovery of the mobile phone and (iii) Recovery of the blood stained clothes of the accused.
22. PW.18 - the Investigating Officer has deposed that after the arrest of the accused on 10.11.2009, he recorded his voluntary statement and based on the said voluntary statement, the accused led him and the panchas to an eucalyptus grove in the lands of one Thammanna, Neraluru-Thippuru Road, 23 Arethippur. Further by examining PW.6, the prosecution has established that book pieces, half burnt bag and ash M.Os.10, 11 and 12 were recovered at the instance of the accused under Ex.P3.
23. The fact that the deceased had brought the books with her in a black rexin bag is proved through the evidence of PW.7 -Kumari Roopa who has clearly stated that on the date of the incident, deceased had come to the college carrying the bag. PW.8 an independent witness who has spoken about the "last seen" circumstance has also stated that when he saw the deceased and accused together, he found the deceased carrying the rexin bag on her shoulder. The recovery evidence adduced by the prosecution is admissible under section 27 of the Evidence Act. The recovery mahazar Ex.P3 indicates that the said articles were burnt at eucalyptus grove near Neraluru- Thippur road, Maddur. The said place was exclusively within the knowledge of the accused. The voluntary statement leading to this recovery is marked through Investigating Officer PW.18. Thus the prosecution has convincingly established that the rexin bag and the books which were carried by the deceased were 24 burnt at the place mentioned in Ex.P3. This recovery, in our view, directly connects the accused to the alleged offence under section 201 of Cr.P.C.
24. The other recovery relied on by the prosecution is the recovery of the blood stained clothes of the accused. In proof of this recovery, the prosecution has examined PW.4 and PW.5. These witnesses have clearly stated that the accused produced M.Os.3 to 9 in their presence and the same were seized under mahazar Ex.P2. Both these witnesses are independent and disinterested witnesses. Nothing as elicited in the cross-examination to doubt or disbelieve their testimony. The accused has not denied the fact that these clothes belong to him. It is proved in evidence that the clothes of the deceased as well as other articles seized in the course of investigation were sent for FSL examination and the FSL report in this regard is marked in evidence by Ex.P14. The evidence of PW.4 and PW.5 and the contents of this report clearly indicate that the pant seized from the house of the accused under Ex.P2 contained blood stains. It is certified that pant, banian and shirt and the 25 jerkin of the accused contained human blood. There is no explanation by the accused for the presence of the blood stains on his clothes. The report of FSL Ex.P14 is not disputed or challenged in the course of cross-examination. There is reliable evidence to show that the accused was wearing a black pant (M.O.4) and shirt (M.O.3) and jerkin (M.O.7) on the date of incident as spoken to by PW.11. it is proved in evidence that the clothes recovered at the instance of the accused contained blood stains. In Ex.P14, it is stated that item Nos.1, 4, 5, 6, 8 and 20 namely the stone (M.O.16), shirt (M.O.3), pant (M.O.4), banian (M.O.5), jerkin (M.O.7) and bra (M.O.1) of the deceased contained 'B' blood group. As already stated above, the bra was found on the body of the deceased. The stone was seized from the spot of offence under mahazar Ex.P5. The blood found on the said stone as well as the bra are proved to be of same blood group tallying with the stains found on the clothes of the accused thereby furnishing another link to the circumstances projected by the prosecution connecting the accused to the alleged murder and disappearance of the evidence.
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25. The prosecution has also pressed into service the recovery of the mobile as yet another circumstance connecting the accused to the alleged offence. Even though there is evidence on record to suggest that phone call was received by PW.3 namely the uncle of the deceased in the voice of the deceased, but considering the entire evidence on record, we find that the evidence produced by the prosecution in proof of this circumstance is not acceptable and cogent. Even though the witnesses examined by the prosecution namely PW.5 has spoken about the seizure of this phone M.O.8 from the possession of the accused under mahazar Ex.P2, yet the Investigating Officer has not made any attempt to prove the ownership of the said phone. Except producing the call details at Ex.P13, nothing is brought on record to show that the said phone (M.O.8) either belonged to the accused or that he had made calls through the said phone. No doubt in the call details, the phone number mentioned by PW.3 finds place, but solely on the basis of the said entry, it is not safe to infer that the accused had made phone calls to PW.3 so as to mislead him about the existence of the deceased as sought to be made out by the prosecution. 27 Therefore, in our opinion, evidence produced by the prosecution in support of this circumstance is not sufficient to hold that the phone seized from the possession of the accused was made use of by the accused to talk to PW.3 so as to mislead him about the incident.
26. Nonetheless, the other circumstances proved by the prosecution, as discussed above, in our view, cumulatively form a complete chain establishing the guilt of the accused for the offences punishable under sections 302 and 201 of Indian Penal Code. On reconsideration of the entire material on record, we find that the prosecution has satisfactorily proved that on the date of the incident, the accused and the deceased were last seen together at T.B.Circle going towards Shivapura at about 10.00 a.m. At about 12.00 noon, he was seen going with the deceased into the Muttatti forest area and returning alone at about 3.00 p.m. It is established in evidence he was found near the spot of offence immediately preceding the death of the deceased. In the absence of any explanation by the accused as to when he parted company with the deceased and his non- 28 explanation for his presence near the spot of offence immediately preceding the discovery of the dead body, the above evidence has to be held against the accused. "It is a settled legal position that the law presumes that it is the person who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed." As held in NAVANEETHAKRISHNAN vs. The STATE By Inspector of Police, AIR 2018 SC 2027, "The last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty." In the instant case, the accused having failed to bring on record any material in rebuttal of the above presumption, the last seen circumstance proved by the prosecution has to be held in favour of the prosecution.
27. Added to the above circumstance, the knowledge of the accused about the spot where the books and the rexin bag of the deceased were burnt and the recovery thereof is another 29 circumstance connecting the accused to the alleged offences. Likewise the recovery of the blood stained clothes of the accused and matching of the blood group found thereon with the blood group of the stains found on the stone used for crushing the head of the deceased and the stains found on her clothes forms a complete chain of circumstances establishing the complicity of the accused in the murder of the deceased. The motive and the conduct of the accused in maintaining a total indifference in the face of the death of his betrothed and his disappearance from the house lends full assurance to the case of the prosecution that the accused and the accused alone committed the murder of the deceased. Thus, on overall consideration of all the above facts and circumstances of the case, we do not have any hesitation to hold that the prosecution has proved the guilt of the accused beyond reasonable doubt, rendering him liable for conviction under sections 302 and 201 of Indian Penal Code.
28. On going through the impugned judgment, we find that the trial court has taken into consideration all the facts and 30 circumstances of the case and has appreciated the evidence adduced by the prosecution in proper perspective. The findings recorded by the trial court are based on legal evidence. The accused has taken a general denial in his statement under section 313 Cr.P.C. Eventhough in the course of cross- examination of witnesses the accused has suggested to the witnesses that he had made necessary arrangement for the performance of his marriage scheduled to be held on 10/11.12.2009, but in his statement under section 313 Cr.P.C., he has even denied his engagement with the deceased leading to the inference that at every stage, the accused has set up false defences. Nevertheless, the prosecution having produced positive evidence in proof of the guilt of the accused, we do not have any hesitation to hold the accused guilty of the offences punishable under sections 302 and 201 of Indian Penal Code. On re-appreciation of the entire material on record, we do not find any error or infirmity in the impugned judgment of conviction and the order of sentence passed by the trial court warranting interference in this appeal.
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Accordingly, appeal is dismissed. The impugned judgment and order of sentence is confirmed.
Sd/- Sd/-
JUDGE JUDGE
Bss.