Karnataka High Court
Smt Bharathi vs State Of Karnataka on 23 July, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JULY, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.1318/2015
BETWEEN:
1. Smt. Bharathi
W/o late Sampath Kumar
Aged about 35 years
R/at No.83, Parai Modu Village
Palanatha Beddhi, Viruchipuram
Velur Taluk, Tamil Nadu State.
2. J. Michel Augustin
@ J. Michel Yesu Padam
S/o Jacob Yesu Padam
Aged about 26 years
R/at No.63, Parai Medu,
Palavansathu, Viruchipuram
Velur Taluk, Tamil Nadu State.
3. V. Pannir Selvam @ Selva
S/o Vasudevan
Aged about 27 years
R/at Palavan Satu,
Kuppa Village
Virupakshapuram Taluk
Velur Taluk, Tamil Nadu State.
... Appellants
(By Sri Basavaraju T.A., Advocate)
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AND:
State of Karnataka
By Rajajinagar Police Station
Bangalore City.
Represented by learned
State Public Prosecutor.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section
374(2) of Cr.P.C praying to set aside the judgment
and order dated 13.08.2014 passed by the Presiding
Officer, Fast Track Court-X, Bangalore City in
S.C.No.1497/2010 convicting the appellant/accused
Nos.1, 2 and 5 for the offences punishable under
Sections 302 and 201 r/w Section 34 of Indian Penal
Code.
This Criminal Appeal coming on for hearing this
day, BUDIHAL R.B. J. delivered the following:-
JUDGMENT
This appeal has been preferred by the appellants/accused being aggrieved by the judgment and order of conviction and sentence dated 13.08.2014 passed by the Presiding Officer, Fast Track Court-X at Bengaluru City in S.C.No.1497/2010, wherein the appellants/accused were found guilty for the offences punishable under Sections 302, 201 r/w Section 34 of the IPC.
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2. Brief facts of the prosecution case as per the complaint averments are that earlier PW1 filed the missing complaint as per Ex.P1. It is dated 16.7.2010, wherein it is stated that she is residing in the address mentioned in the complaint along with the family members and she is doing packing work in S.S. Garments. Three years back her marriage was performed with one Mr.Vimal Kumar and the couple were having one male child aged one and half years, her mother's house is in Velur Village of Tamil Nadu State. Her mother Bharathi phoned to her on 15.7.2010 in the morning stating that during night she is coming to her house and after reaching Bengaluru she will phone to the complainant. Her mother has also stated that she does not know the address of the house of the complainant and also asked the complainant to send her husband to pickup her to the house. For that the complainant PW1 told that she will send her husband. Thereafter, during night at 2.00 a.m. her mother phoned to her
- 4- husband's phone No.9738974344 and asked to send the husband of the complainant stating that she is nearby the ESI hospital at Rajajinagar. Then PW1 complainant sent her husband and he proceeded on his two wheeler vehicle Yamaha scooter bearing registration No.KA.14-0045. The husband of PW1 went on the two wheeler, first he went to his friend's house one Arun at Prakashnagar, thereafter he went nearby the ESI hospital and he parked his two wheeler vehicle in front of ESI hospital. The key of the two wheeler is in the vehicle itself, helmet is also at the same place, but the husband of PW1 is not at all come back to the house. Smt.Bharathi mother of the complainant came to the house at about 6.30 a.m. When PW1 asked Smt.Bharathi as to where is her husband, for that Bharathi told to PW1 that he has not at all come to pick up her, then they made a search at all the places, but Vimal Kumar the husband of PW1 was not traced. She filed the complaint for missing of her husband. In the complaint the facial features and other details were
- 5- also given about Vimal Kumar and she requested the police to trace her missing husband. On the basis of the same, the case came to be registered in Crime No.359/2010 for missing of a person. Thereafter, the complainant PW1 gave her further statement on 28.7.2010, wherein she has stated that she has already gave the complaint on 16.7.2010 that her husband at 2.00 a.m. went out of the house and he has not at all come back and on the basis of the same, crime has already been registered for the missing of a man. About three years back she married her husband and it was their love marriage but the mother of the complainant was not liking the said marriage, as the mother of the complainant intended to perform her marriage with accused No.2 Michel. On 16.7.2010 at about 2.00 a.m. her mother phoned to her stating that she is nearby Rajajinagar ESI hospital and she does not know to come to her house and asked the complainant PW1 to send her husband and she will come to the house on his motorbike. Because of this reason the complainant
- 6- herself sent her husband in two wheeler vehicle nearby ESI hospital, Rajajinagar and the two wheeler vehicle of her husband has been traced near the ESI hospital, Rajajinagar and as her mother and friends of her mother have absconded, she came to know that, on 16.7.2010 her mother Bharathi and the friend of her mother one Michel, Prabhu, Paneer Selvam and others kidnapped the husband of the complainant in some vehicle. Therefore, she requested the police to conduct the investigation in the matter and to take legal action against those persons who kidnapped her husband. On the basis of the complaint the process started and the case also came to be registered in crime No.148/2010 for the offence punishable under Section 364 r/w 34 of the IPC.
3. After conducting investigation the Investigating Officer has filed the charge sheet against the accused persons for the offences
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4. After considering the materials and after hearing the learned counsels on both sides, charge was prepared and when the charge was read over and explained to the accused persons, the accused persons pleaded not guilty and claims to be tried in the matter. Accordingly, charge was framed, then the matter was set down for trial.
5. The prosecution in support of its case in all examined 29 witnesses and produced 52 documents with sub-markings and also got marked 10 Material Objects. Then the accused persons were examined under Section 313 of Cr.P.C., the incriminating material was read over to the accused persons by framing the questionnaire and whatever the answers given by each of the accused were recorded in their respective statement.
- 8- On the side of the defence, neither any witnesses were examined nor any documents were got marked.
After hearing arguments of both sides and after considering the materials placed both oral and documentary, the learned Fast Track Court Judge ultimately held that the accused Nos.1 to 3 and 5 are guilty for the said offences and accordingly convicted them and accused No.4 is acquitted from the said charges. Being aggrieved by the judgment and order of conviction and sentence and also challenging the legality and correctness of the judgment and order of conviction on the grounds as mentioned in the appeal memorandum at ground Nos.4 to 36 the appellants/accused Nos.1, 2 and 5 are before this Court in this appeal.
6. We heard the arguments of the learned counsel appearing for the appellants/accused Nos.1, 2 and 5, so also the arguments of the learned Addl. SPP.
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7. Learned counsel for the appellants/accused made the submission that there are no direct witness in this incident and case of the prosecution rests on circumstantial evidence. He made the submission that when the case rests on circumstances, each of the circumstances must be established satisfactorily and if there is any missing link in the said circumstances it will be fatal to the case of the prosecution. Learned counsel made the submission that so far as the alleged motive regarding the property dispute is concerned, no acceptable and worth believable material has been placed by the prosecution. Therefore, the prosecution failed at the first instance itself about the proof of the motive for committing the alleged offences by the accused persons. He also made the submission that even with regard to the recoveries are concerned though it is the contention of the prosecution that accused No.2 gave the voluntary statement, no such voluntary statement got marked during the trial and the
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evidence of the concerned prosecution witness goes to show that even he has given the second voluntary statement also. The voluntary statement is not forthcoming nor accepted during the course of the trial. He also made the submission that with regard to the involvement of the appellants/accused in committing the murder of the deceased Vimal Kumar absolutely there is no material placed on record. It is also his submission that at the instance of the accused No.2 it is stated that the key and the four wheeler said to have been recovered, dead body is also shown by the accused at the instance of accused No.2. The learned counsel made the submission that when all other materials were not at all established by the prosecution, more so the recovery of these things will not establish the case of the prosecution. He further made the submission that looking to the entire prosecution material it will not make out a case of involvement of all these accused persons in committing the alleged offences. So far as the call details are concerned regarding conversation of
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accused No.2 to the mobile phone of the deceased Vimal Kumar the learned counsel made the submission that the prosecution has not examined the Nodal Officer in the case. It cannot be said that the prosecution established about the call details in between the accused and the deceased. Hence he submitted that those materials cannot be relied upon by the Court. It is also his submission that if at all the motive is there, then it cannot be against the accused persons and even with regard to the contention that accused No.2 wanted to marry with PW1, no satisfactory material has been placed by the prosecution. Therefore, in the absence of such material it cannot be assumed by the Court that accused No.1 Smt.Bharathi the mother of the complainant willing to perform the marriage of PW1 with accused No.2 cannot be accepted at all. Hence, the learned counsel submitted that there is no material to convit the accused for the alleged offences and he submitted that the prosecution utterly failed to make out a case in any of the charge beyond all
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reasonable doubt. He further submitted that these materials are not properly considered and appreciated by the Court below and wrongly convicted these appellants accused Nos.1, 2 and 5. Hence, he submitted to allow the appeal and set aside the judgment and order of conviction and sentence passed by the trial Court by acquitting the appellants accused from all the charges.
8. In support of his contention learned counsel relied upon the following decisions.
i) 1996 Crl.LJ 317.
ii) 2005 Crl.LJ 3014.
iii) LAWS (KAR) 2017
iv) AIR 2004 SC 175
v) ILR 1994 KAR 491
vi) AIR 1976 SC 975.
9. Per contra, the learned Addl. SPP made the submission that so far as the motive aspect is concerned, the prosecution has examined PW11 and his evidence clearly goes to show that regarding the
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property there was a dispute and as the complainant PW1 was about to attaining the age of majority thinking that she may claim the share in the property, with that object and as accused No.1 Smt.Bharathi the mother of PW1 was having the illicit connection with accused No.2 she wanted to perform the marriage of PW1 with accused No.2 Michel to grab the property. He also made the submission that regarding Smt.Bharathi accused No.1 making the phone call to PW1 to the mobile phone of deceased Vimal Kumar asking PW1 to send her husband to receive her, as she is not knowing the address of the house of PW1, in this connection learned Addl. SPP made the submission that the call which accused No.1 made to the mobile phone of the deceased Vimal Kumar is concerned, this call is from the mobile phone of accused No.2 Michel and this aspect has been established by the call details produced. PW26 who collected and handed over the call details to PW29. Therefore, he made the submission that the evidence of PWs.26 and 29
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clearly goes to establish that the said phone call though made by accused No.1 Smt.Bharathi, it is from the mobile phone of accused No.2 Michel. He submitted that this aspect has been established by producing the documentary evidence. It is his contention that when the call details were produced and tendered in the evidence during the course of trial, while marking the said document, no objections were raised by the other side. Therefore, the admissibility is concerned there are no objections raised. Hence, he submitted that the conditions under Section 65(B) of the Indian Evidence Act and even according to the full Bench decision of the Hon'ble Supreme Court that when the document and its production and the marking has not at all objected by the other side. The learned Addl. SPP made the submission that now they cannot raise the objection regarding the admissibility of the said document i.e. the call details. He also submitted that the accused No.1 Bharathi calling through the mobile of accused No.2 Michel asking PW1 to send her
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husband, this itself clearly goes to show that when the call was made, the accused No.1 Bharathi was very much present along with accused No.2 and other accused persons. So far as the identification of accused is concerned it is the submission that all those accused persons came nearby the house of the PW1 and they have been seen by PW1 and other witnesses. The witnesses examined in this regard have clearly stated about all the accused along with four wheeler vehicle came nearby the house of PW1. He also made the submission that accused No.1 was also insisting PW1 to accompany them, but PW1 refused to accompany them and in that event the son of PW1 was forcibly taken along with accused. Hence, he submitted that these aspects were spoken by the witness clearly goes to show that the accused persons were having the common object to commit the alleged offence. He also submitted that it is accused No.2 Michel who gave the voluntary statement. The learned Addl. SPP made the submission that it is not necessary that the voluntary statement must not be
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in writing even there can be his voluntary statement before the Investigating Officer. Hence he submitted that it is accused No.2 along with other accused led the police and panch witnesses to the place where the dead body was laying. He submitted that the dead body was traced at the instance of the accused persons. The learned Addl. SPP further made the submission that so far as the deceased is concerned though there is lapse of 15 days and the body was completly decomposed, it was the dead body of Vimal Kumar and the DNA sample test by PW25 clearly shows that the dead body of the Vimal Kumar matched with the blood sample of the mother of the deceased. He also made the submission that the recoveries affected, the DNA report and the motive to grab the property, all these aspects together will clearly make out a case about the involvement of all the accused persons in the case. Hence he submitted that these aspects were taken into consideration by the learned Fast Track Court Judge and he has considered these aspects exclusively. Hence, the
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learned SPP also made the submission that no illegality has been committed by the learned Fast Track Court Judge and he made the submission that there is material placed by the prosecution and the prosecution was able to prove the charges beyond all reasonable doubt. He also made the submission that the panch witness has been examined with regard to recovery of the car and PW13 another witness speaks about the use of the motorbike. Hence he submitted that all these materials clearly establishes the chain of circumstances relied upon by the prosecution in the case. Hence, there is no merit in the appeal. Same is to be rejected.
10. We perused the grounds in the appeal memorandum, judgment and order of conviction passed by the Court below, oral evidence of PWs.1 to 29 and the documents produced by the prosecution before the trial Court. We have also perused the decisions relied upon by the learned counsel for the appellants which are referred above and the
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principles enunciated in the said decisions and also considered the oral submissions made by learned counsel on both sides which are mentioned as above.
11. As submitted, it is admitted fact even according to the prosecution that there are no direct witness to the incident and case of the prosecution rests on the circumstantial evidence. When the case rests on circumstantial evidence, the principle that all the circumstances relied upon by the prosecution must be established to the satisfaction and the circumstances must be exclusively and safely satisfies the link of the chain and there is no circumstances which is reasonably considered that it is consistent with the innocence of the accused and even in the circumstantial evidence Court has to consider the entire material and to see what is the important fact emerging out of such material in missing the link in the chain of circumstances is vitally proved by the prosecution. This has been made clear by the Hon'ble Apex Court in the decision of
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Umedabhai Jadavbhai Vs. State of Gujarath reported in AIR 1978 SC 424.
12. Keeping in view these principles in mind let us proceed to consider the prosecution material placed during the course of the trial to ascertain whether the learned Fast Track Court Judge is justified in accepting the said material and convicting the appellants/accused or the matter requires interference in the hands of this Court in this appeal.
13. Firstly looking to the contents of the missing complaint Ex.P1 wherein it is mentioned by the complainant that her mother accused No.1 informed to her over phone on 15.7.2010 that she is coming to Bengaluru in the evening and she has to send her husband nearby ESI hospital to take her to the house of PW1 as she has not knowing the correct address of the said house and it is also the contents of Ex.P1 as well as the oral evidence of PW1 that accordingly the husband of PW1 proceeded on his two wheeler vehicle to the said place and thereafter
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when PW1 tried to call the mobile of her husband it was switched off and even when she tried to the mobile through which they received the call to the mobile phone of her husband even that mobile was went switched off and there is no response from the other end. About these facts there is evidence of PW1 and regarding the mobile call to the mobile of the Vimal Kumar the husband of PW1 is concerned the prosecution relied upon the documents i.e. the call details which is marked as per Ex.P38.
14. We have perused the document at Ex.P38. The entry in Ex.P38 shows the call from mobile No.9171847174 to mobile No.919738974344 and it is dated 16.7.2010 at 2:13:19AM. This entry shows that there was a call from the mobile phone of accused No.2-Michel to the mobile phone of deceased Vimal Kumar. This clearly shows that though there was call from accused No.1 Bharathi, but it was not from her own mobile phone, but with the mobile phone of accused No.2. This also clearly shows that she used the mobile phone of accused No.2 and it
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also gives an inference that when accused No.1 made phone call to P.W.1, accused No.2 was also very much present along with accused No.1 Bharathi. So far as the document Ex.P38 is concerned the prosecution has examined two witnesses P.Ws.26 and 29.
15. The evidence of P.W.26 shows that from 2009-2011 he served as a Police Inspector in Mahalakshmi police station and he has also deposed that he has also worked as Nodal Officer of three mobile companies in respect of three police stations and at the request of Police Inspector of Rajajinagar police station in connection with Crime No.148/2010 registered for the offences under Sections 364, 302, 201 r/w Section 34 of IPC, he has collected the call details pertaining to mobile phones bearing Nos.9994626553, 9171847174, 9738974344 and land line No.25791631 and produced before the Police Inspector. These four call details are marked at Exs.P38 to P41.
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In the cross-examination when it was asked as to in whose name mobile No.9738974344 is registered, the witness has deposed that he has not at all verified the same. He denied the suggestion that he has created the call details of the said four numbers falsely.
16. The evidence of P.W.26 shows that the said document got marked without any objection. Therefore, when once objections were not raised for admission of the said document in evidence during the course of trial, at the subsequent stage no objection could be raised and it becomes final and such entries can be relied upon by the Court. The said point is made clear in the decision of the Hon'ble Apex Court in the case of RUKMINI NARVEKAR VS. VIJAY SATAREDKAR AND OTHERS reported in AIR 2009 SC 1013 referring to the decision of the Division Bench rendered in 2014. In view of the legal position clarified by the Hon'ble Apex Court in the subsequent decision referring to the
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Division Bench decision, the material produced by the prosecution is admissible in evidence and could be relied upon by the Court.
17. P.W.29 has worked as a Police Inspector in Rajajinagar Police station from June 2009 to 2011. On 30.7.2010, he took further investigation of the case from the PSI-Shivaram. He verified the investigation material done so far and accused No.2 Michel Augustin has been already apprehended and he was in police custody. When he enquired him, he deposed that he has already given his voluntary statement. In his voluntary statement accused No.2 made clear before P.W.29 that by committing the murder of Vimal Kumar, the dead body was carried to the forest area situated in between Hosur and Krishnagiri in Tamil Nadu and it has been burnt and if taken, he will point out the said place. On the basis of his voluntary statement, he sent a requisition to the Court to add the offences under Sections 302 and 201 of IPC, which has been marked as Ex.P45
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and Ex.P45(a) is his signature. Further, accused No.2 was taken to the said forest area along with the staff and also panch witnesses C.Ws.6 and 7 and also the relatives of deceased Vimal Kumar i.e., P.W.1, wife of the deceased, Varalakshmi, mother of deceased and C.W.3 Mangaldas, the father of deceased and also the FSL Officer Praveena accompanied them in a Government Vehicle to the said place. Accused No.2 took them to the Parandapalli forest area at Kaamanadoddi village and asked them to stop the vehicle. From there, he took them in a pathway to some distance in the forest and shown the place at which the dead body was burnt. They saw that the dead body was completely burnt and charred and only teeth were visible. The leaves of the neighbouring plants were also burnt. In the right hand of the dead body they have seen one copper bangle (kadaga) and one half burnt black colour T- shirt. On seeing the same, the relatives of the deceased identified that it is the dead body of Vimal Kumar @ Manju and accordingly, panchanama was
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conducted. The witness identified the panchanama as Ex.P24 and also his signature. He deposed that he collected the mud from below the dead body and also the mud nearby the dead body and the same is marked as M.Os.6 and 7. With the help of the FSL officer, photographs of the dead body and the place where the dead body was lying were taken and they are marked as Exs.P5, P6 and 7 and also as Exs.P8 to P11. The said photographs were taken from the digital camera. Spot mahazar was conducted by him in between 9.30 and 10.30 a.m. and inquest mahazar proceedings were conducted in between 10.45 and 12.45 p.m. The inquest report is as per Ex.P25 and his signatures are marked as Exs.P25(b) and (c). The half burnt banian pieces, T-shirt and also pant and copper kadaga all were seized and they are marked as M.Os.1 to 3. The dead body along with these articles were sent to Medical officer at Hosur for post mortem examination. The signatures on the said documents for having handed over the dead body for medical examination are identified as Exs.P46 and P47. The
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statements of panch witnesses Varalakshmi, Sampath, Mangaldas, D.Sampath and Srinivas were recorded. D.Sampath has also given his statement as per Ex.P44. On coming back to the police station, he sent a requisition to the Court seeking police custody of the accused and also gave the information that he purchased petrol from HP petrol bunk for burning the dead body. It is deposed that from 30.7.2010 to 5.8.2010, accused No.2 was given to the police custody and accused No.4 was brought and produced by the police constable Nos.8873 and 8864. On his arrest, his voluntary statement was recorded and he was produced before the Court. Even in his statement, accused No.4 has stated that he will show the place where the dead body of Vimal Kumar was burnt and as to at which place they had purchased the petrol. Then himself and his staff took accused No.2 to Bhagayam police station limits at Vellore District, Tamil Nadu wherein he showed the Tata Indica car stating that in the said car they had kidnapped deceased Vimal Kumar and transported
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the dead body and burnt the same. He has seized the said car bearing No.TN 23 AW 0799. Then accused No.2 told that he will show the place where another accused Prabhu, S/o Kalaimani is residing and he took them to the house of one Stephen and shown accused No.3-Prabhu. They apprehended accused No.3 at the said place. The mahazar for the seizure of Tata Indica car is marked as Ex.P26 and the photographs of the car are marked as Exs.P12 and P13. On the basis of the information given by accused No.2, they went to the house of wife of accused No.5. There they apprehended accused No.5. Accused No.2 also gave information about the place where accused No.1 Smt.Bharathi is staying. Then over phone they requested Smt.Sowbhagya, WPC to accompany them to Chittoor. From there they went to Chitoor. Accused No.2 took them to Pidaputtu Mandal Lakshmipur village, the relatives house of accused No.1 and there they apprehended accused No.1. On the very same day, they recorded the voluntary statements of accused Nos.1, 3 and 5.
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The motorbike which was left unattended on the road was brought by the police constables who were on beet duty and produced before the SHO Ramesh and it was mentioned in the Station House diary. On coming to know that the said two wheeler belonged to deceased Vimal Kumar, in the presence of panch witnesses the same was seized and marked as Ex.P27 and Ex.P27(a) is his signature. The said vehicle was a Yamaha motorbike bearing No.KA14 L 0045 and at the time of panchanama they have also seized one helmet and key of the said motorcycle and they are marked as M.Os.4 and 5. The photographs of the said two wheeler vehicle are marked as Exs.P2 and P3. In the further examination-in-chief the witness has deposed he has also secured the extract of the SHD dated 16.7.2010 as per Ex.P42 and included along with the documents in the case on hand and his signature is at Ex.P42(a). The said document was pertaining to the seizure of Yamaha bike by the ASI Ramesh who was on duty during the night of 16.7.2010. On 2.8.2010 he sent accused Nos.1, 3
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and 5 to the Court and on 3.8.2010 he secured the call details pertaining to the mobile phones of deceased as well as accused No.2 which are marked as Ex.P38, which bears his signature as per Ex.P38(a). He has also spoken about the further investigation he has conducted in detail.
In the cross-examination, he denied the suggestion that Ex.P35 FIR and Ex.P24 mahazar were created for the purpose of this case. He also denied the suggestion that P.Ws.1 and 3 and C.Ws.3 and 7 were not present at the time of panchanama and that accused No.2 has not at all given any voluntary statements. He also denied the suggestion that Exs.P5 to P11 photographs were not taken at the time of panchanama. It was also suggested to this witness that accused Nos.3 and 4 have not at all given their voluntary statements and the said suggestion was denied by him.
In the further cross-examination, the suggestions made to the witness regarding the investigation done in the case stating that he has not
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at all conducted the investigation etc., were denied by the witness.
In the cross-examination of P.W.29 except making suggestion that he has not at all produced the call details as per Exs.P38 to P41 marked in his evidence, which has been denied by the said witness, nothing has been elicited from the mouth of P.W.29.
18. P.W.1, the complainant who is the wife of deceased Vimal Kumar has deposed in her evidence that when she was studying in 5th standard her father expired. At that time he owned two houses, a godown and a factory. Those properties were earlier in the name of her grand mother and thereafter they came to her father. After the demise of her father, those properties came to her uncle P.W.11-Rajkumar. P.W.11 told her that after she attains the age of 18 years he will give her share in the said properties. Herself and her mother were staying in the house at Srirampura, Bangalore and they were getting rental income for their livelihood. Deceased Vimal Kumar is
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her husband. Her marriage was performed on 20.7.2007 at Annamma temple, Majestic and it was a love marriage and she married with the consent given by her mother. After the marriage she went to the house of her mother-in-law at Prakashnagar. In 2009 she gave birth to a male child. After her marriage she used to go to her mother's house and so also, her mother was coming to her house. As the conduct of her mother was not good, her uncle P.W.11 left her mother in the house of her maternal grand-mother at Chittoor. When P.W.1 was carrying 7 months pregnancy, she went to Chittoor where her mother was staying. At that time, her mother insisted her to get aborted and she was also telling P.W.1 that she should not go back to Bangalore and should not make calls to her husband. As P.W.1 did not talk to her husband for about 4-5 days, her husband registered a case in Srirampuram police station. The police came to P.W.11, the uncle of P.W.1 and informed about the case registered by the husband of P.W.1. Thereafter, P.W.11 informed her
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mother about the complaint filed by the husband of P.W.1 and her mother brought her to Majestic, Bangalore from Chittoor and left there. Then she went to her husband's place and there she delivered a child. When the child was about four months old, they went for a trip to Valangini along with the family members of her husband and at that time her mother-in-law told her that she has seen her mother with one boy in a room at Velangini. She went in search of her mother and at that time, she has seen a child and accused No.2 along with her mother in a room and asked her about the child, for which, her mother told that at Chittor hospital somebody has left the child and that she is looking after the said child. She also asked about accused No.2 Michel, for which, her mother told her that he happens to be her maternal uncle and that she did not know about the said fact till then. Since it was time for her to catch the bus she left the said place. She has also deposed in detail about the phone call that she has received during the midnight of 15.7.2010 at 2.00 a.m. from
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her mother stating that she is waiting near ESI hospital and asked P.W.1 to send her husband. At that time, the husband of P.W.1 went on Yamaha bike near ESI hospital and then when she phoned to mobile phone of her husband, it was switched off and even the mobile phone of her mother was also switched off. At 6.00 a.m. her mother, accused No.2 Michel and accused No.3 Prabhu, whom she has seen in the video conference and accused No.5 Paneer Selvam present before the Court came to their house in a Tata Indica Car. At that time, she asked all of them as to where is her husband. They told that he has not at all come to them. P.W.1 told them that her husband went to pick her mother, for which, they told that he might have gone to his friend's house and asked P.W.1 not to become panic. Then they also told her that she should not tell before anybody that her husband has not come back and asked her to prepare coffee and she gave coffee to them. At that time, her mother received a phone call and the person on the other end was asking P.W.1 and her
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mother gave the mobile phone to her. The said person over phone told her that her husband Vimal Kumar had picked up quarrel with his friend and pushed him down, as such, he has expired and asked P.W.1 to leave the place since police may come in search of her. When she enquired about the whereabouts of the said person, the said call got disconnected. Eventhough she redialed to the said number, she did not get any response. Accused No.1, her mother, insisted P.W.1 that she has to accompany them, as otherwise, police will ill-treat her, for which P.W.1 refused. At that time, her mother told her that she will fall on her feet and requested her to accompany her, for which, P.W.1 told that her husband will not go to such an extent of quarrelling with somebody and that she will not accompany them. Since her child was weeping, P.W.1 went to the kitchen to bring milk. At that time, her mother took the child with her and sat in the car. The child started weeping loudly, at that time, an old neighboring lady came and asked as to why the child
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is weeping. When P.W.1 came out of the house and saw, accused Nos.1, 2, 3 and 5 along with the child were sitting in the car. They told that she has to accompany them, for which, she refused and took back the child from their hands. Then all the four accused persons went away from the place. P.W.1 sent her brother-in-law to verify about the deceased. Her brother-in-law and grand mother of deceased both went to Rajajinagar police station wherein the police have also told that one bike along with the key and helmet were left near ESI hospital. As such, she gave the missing complaint as per Ex.P1 and Ex.P1(a) is her signature. She has also identified the Yamaha bike by seeing the photographs at Exs.P2 and P3. P.W.1 and family members of her husband went to Vellore in search of her husband. They saw that there was nobody in the house and the said house was locked. As such, having raised suspicion on accused Nos.1, 2, 3 and 5, on 28.7.2010 she lodged another complaint as per Ex.P4 and Ex.P4(a) is her signature. She has further deposed that on
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31.7.2010 at 6.00 a.m. she along with her mother-in- law Vani, Shashi, Selvi, Varalakshmi and father-in- law Mangaldas went to Rajajinagar police station. Accused No.2 Michel and police went in another jeep. They all went to the forest near Krishnagiri wherein accused No.2 shown the dead body of her husband. They saw the dead body and on the basis of copper ring (kadaga) in the hand of the deadbody and the clothes, they identified that it was the deadbody of her husband. The body was completely burnt. When accused No.2 took them to show the dead body of her husband, he also told that himself, Bharathi-Accused No.1, Prabhu accused No.3 and accused No.5 all have caused the death of her husband by tying plastic rope to his neck near ESI hospital and from there they have carried the dead body in the car and thereafter, they have burnt the dead body.
In the cross-examination by the defence she deposed that she is not having her own mobile phone. Her mother-accused No.1 when called her over phone on 15.7.2010 at 2.00 a.m. she has not
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informed her about the other persons who were along with her. She knows that her husband went near ESI hospital at Rajajinagar on that day night. On 16.7.2010 when her grand mother and her brother- in-law Ranjith went to Rajajinagar police station, they have seen the helmet, bike and key of the said bike. Her grand mother informed her about the same. She denied the suggestion that accused Nos.1, 3 and 5 have not at all come to her house. She denied the suggestion that she has not at all stated the contents of Ex.P4 and it is created by the police. She denied further suggestion that on 29.7.2010 Rajajinagar police have not obtained statement from her and that police have created the said statement. She denied the suggestion that her mother has not at all asked her to marry Michel and that Michel was also willing to marry her, for which, P.W.1 told that as her marriage is already performed and she is having a son, she cannot marry him, for which, Michel told her that he will look after her son and that she has to desert her husband and go with him, for which she
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did not agree. She has denied the suggestion that it is a created story. She has also denied the suggestion that nothing has happened as deposed by her that they went to Krishnagiri and accused No.2 shown the deadbody of her husband and that she has identified the deadbody as that of her husband on the basis of the copper ring (kadaga) and clothes on the dead body and it is a created story.
19. Looking to the evidence of P.W.1 it clearly shows that four accused persons came to her house and she could identify them since the said accused persons came at 6.00 a.m. in a broad day light and that too immediately they did not leave the place. There were conversations between accused No.1 and P.W.1 asking her to accompany them, which shows that accused have spent some time in the house of P.W.1. Even they took the child of P.W.1 and sat in the car and at that time, she went and snatched the child. Hence, the evidence of P.W.1 clearly shows that accused Nos.1 to 3 and 5 came to the house of P.W.1 in the morning of 16.7.2010.
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20. The evidence of P.W.3 Pratap is important with regard to accused No.2 Michel taking them to forest area and showing the dead body of Vimal Kumar. He has deposed that he knows accused No.2 Michel and that he has seen him in video conference on that day. On 30.7.2010 Rajajinagar police inspector called him and one Shankar to the police station. At that time, accused No.2 was present and thereafter, police took accused No.2 Michel, himself and Shankar in the jeep to Panjarapalli forest and there accused No.2 has shown the deadbody. The said deadbody was lying at a little distance from the main road in the forest. Around the said place there were trees. The deadbody was burnt. Praveena- P.W.1, Varalakshmi and Mangaldas have identified the said deadbody. Police have collected the mud lying below the said deadbody and also the other sample mud. Mahazar was conducted as per Ex.P24 and his signature is as per Ex.P24(a). He has
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identified M.Os.6 and 7, the mud collected from the said place. It was packed and sealed.
In the cross-examination he deposed that on the basis of the copper ring (kadaga) and the shape of teeth he has identified the deadbody as that of Vimal Kumar. He has deposed that Vimal Kumar was wearing the said copper ring (Kadaga) since three years. He denied the suggestion that it was not the deadbody of Vimal Kumar. He denied the suggestion that at the instance of police he is giving false evidence that it is the dead body of Vimal Kumar. He deposed that a portion in one of the lower limb was not burnt, but the other portions were burnt. Police have not read over the contents of the mahazar. He was at the said place, but he does not know what is written in the said mahazar. He denied the further suggestion that he does not know anything about the mahazar and at the instance of police he has put his signature on the said mahazar.
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21. The evidence of this independent witness also supports the case of the prosecution with regard to accused No.2 Michel leading the police and panch witnesses to the place where the deadbody was burnt. It is the case of the prosecution that accused No.1 has planned the alleged act since she was under
the apprehension that the property of her husband may go to her daughter on she attaining the majority and in turn it may go to deceased Vimal Kumar. P.W.1 in her evidence has consistently deposed against her mother and accused No.2 Michel. Further, as per the prosecution case, there was illicit connection between accused No.1 and accused No.2 and they were seen in one room with a child, as deposed by P.W.1. This also clearly shows the close intimacy between accused Nos.1 and 2 and even other accused persons have accompanied accused Nos.1 and 2 to go to the house of P.W.1 immediately after the alleged incident and they were insisting her to accompany them. Further, the phone call received by accused No.1 asking whether Praveena is present
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and then her mother giving the call to her daughter and the said person over phone informing P.W.1 that her husband has picked up quarrel with one of his friends and pushed him, as such, he fell down and expired and that police may come in search of her, these aspects clearly show that it was all created to make P.W.1 to accompany the accused persons, but when P.W.1 did not agree for the same, they took the child of P.W.1 and sat in the car, which clearly shows the intention of accused persons to take P.W.1 along with them.
22. P.W.25-N.Purushothama is the Scientific Officer of DNA Centre. He deposed in his examination-in-chief that on 4.9.2010 the Head Constable 353 of Rajajinagar police station has brought the file pertaining to case No.148/2010 along with sealed cover 1 and 3 to the DNA Centre. Since the seals were intact and were tallying with the case details, he has registered the case as DNA 112/2010. Then as per the direction of the Chief of
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the DNA centre item Nos.1, 2 and 3 were coded. Item No.1- jaw portion of the deceased which was numbered as I436, item No.2-femur bone was numbered as I437 and item No.3 the blood sample of Smt.Varalakshmi was numbered as I438. It is deposed by the witness that item Nos.1 and 2 were tallying with the DNA found in the blood of item No.3. He has confirmed that item Nos.1 and 2 belong to a male human being and it shows that the said person was the son of a person from whom the blood sample of item No.3 was taken. He has submitted the detailed report as per Ex.P37 and P37(a) is his signature.
In the cross-examination it was suggested to this witness that he has created the DNA report, but he denied the said suggestion and also further suggestion that only on the basis of blood sample and bones the relationship between the parents and the children could not be ascertained. As such, even in the cross-examination of P.W.25 nothing worth has
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been elicited to disbelieve his evidence and report given on item Nos.1 to 3.
23. Even the evidence of P.W.7 confirms that it is the deadbody of Vimal Kumar. Therefore, the suggestion made to P.Ws.1 and 3 and other witnesses that it was not at all the deadbody of Vimal Kumar cannot be accepted at all, when it is supported by both oral and documentary evidence.
24. Regarding the voluntary statement said to have been given by accused No.2 Michel is concerned, it is the contention of the learned counsel for the accused referring to the evidence of P.W.29 that accused No.2 might have given some statement earlier, but the said voluntary statement has not been produced and accepted during the course of evidence of P.W.29. In this connection, learned counsel has relied upon the decision referred to above. We have carefully perused the oral evidence of P.W.29 wherein he has stated that accused No.2 Michel Augustin has been apprehended and is in
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police custody. When he was interrogated he told that already he has given his voluntary statement. On this basis, learned counsel contends that there was earlier voluntary statement. However, there is no specific mention in his evidence that the earlier voluntary statement was given in writing. Apart from that, as submitted by the learned Additional State Public Prosecutor, there is no requirement of law that the voluntary statement must be in writing. Even the oral voluntary statement can be made by the accused before the Investigating Officer. Apart from that, the evidence clearly shows that it is accused No.2 who lead the police and panch witnesses to the place in the forest area and shown the place where the dead body was thrown and burnt. This gains support from the evidence of P.W.1 and P.W.3, the independent witnesses and also the evidence of the Investigating Officer. When the said fact has been established, only on the ground that P.W.29 deposed that accused No.2 has told that he has already given the voluntary statement and it has not been produced and marked,
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the entire evidence which otherwise establishes the fact that accused No.2 lead the police and panch witnesses to the said place cannot be rejected by the Court when it has been clearly established with cogent and satisfactory material on the side of prosecution.
25. Considering the above material, the learned Fast Track Judge has held accused Nos.1 to 3 and 5 guilty and convicted them for the above offences. After re-appreciating the entire evidence of the prosecution witnesses, we are of the opinion that the learned Fast Track Court Judge has rightly come to the conclusion in holding that prosecution has proved its case beyond reasonable doubt.
26. We have also perused the decision relied upon by the learned counsel for the appellants and the principles enunciated in the said decision. Though the principle enunciated in the said decision cannot be disputed, it cannot be made applicable to
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the case on hand and it will not come to the aid and assistance of the appellants case. Hence, we do not find any illegality in the judgment and order of conviction and sentence passed. There are no justifiable and valid grounds for this Court to interfere into the judgment and order of conviction and sentence passed.
Hence, appeal filed by the appellants is hereby dismissed confirming the judgment and order of conviction and sentence passed by the learned Fast Track Judge, Bangalore in S.C.No.1497/2010 dated 13.8.2014.
Sd/-
JUDGE Sd/-
JUDGE Ap/bkp