Karnataka High Court
State Of Karnataka vs Smt Renukamma on 27 November, 2012
Bench: K.L.Manjunath, H.S.Kempanna
1 CRL.A.1060/2007
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF NOVEMBER 2012
PRESENT:
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
CRIMINAL APPEAL No.1060/2007
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY
HIGH GROUNDS POLICE
... APPELLANT
(By Sri : P.M. NAWAZ Addl. SPP.)
AND:
1. SMT. RENUKAMMA
AGE: 48 YEARS
W/O LAKSHMINARAYANAPPA
R/A KONADASAPUR
VIRGONAGAR POST
BUDIGERE CROSS
BANGALORE RURAL DISTRICT.
2 CRL.A.1060/2007
2. ANJANAPPA
AGE:32 YEARS
S/O MARIYAPPA
R/A KONADASAPUR
VIRGONAGAR POST
BUDIGERE CROSS
BANGALORE RURAL DISTRICT.
... RESPONDENTS
(By Sri : SHANKARAPPA FOR
M/S M.T. NANAIA & ASSOCIATES Advs.,)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 378(1) & (3) CR.P.C. PRAYING TO GRANT
LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT
DATED 05/09.02.2007 IN S.C.NO.694/2005 ON THE
FILE OF THE PRESIDING OFFICER FAST TRACT
(SESSIONS) JUDGE-V, BANGALORE CITY-ACQUITTING
THE RESPONDENTS/ACCUSED NO.1 & 2 FOR THE
OFFENCE P/U/S 302 AND 381 R/W SECTION 34 OF
IPC.
This Criminal appeal coming on for admission, this
day, K.L.MANJUNATH, J., delivered the following:
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3 CRL.A.1060/2007
JUDGMENT
The State has preferred this appeal under Section 378(1) and (3) of the Code of Criminal Procedure, aggrieved by the judgment and order of acquittal dated 05/09.02.2007 passed by the Fast Track (Sessions) Judge - V, Bangalore City in S.C.No.694/2005.
2. The Respondents / Accused were tried on the charge for the offences punishable under Section 302, 381 read with Section 34 of IPC. It is the case of the prosecution that, A1 - Renukamma was working as maid servant in the house of deceased Smt.Indu Rajagopalan and Malathirao who were sisters and living together in House No.1073, High Point Apartments, Palace Road, 7th Floor, Bangalore. A2 - Anjanappa is the brother of A1. It is further the 4 CRL.A.1060/2007 case of prosecution that they committed the murder of two sisters Smt.Indu Rajagopalan and Malathirao who were aged and living together in the early morning in between 5.30 am and 10.30 am on 03.04.2004. According to the prosecution, after committing the murder of two sisters, A1 who was working as a maid servant in the house of the deceased and who also had the key of the flat with her opened the door of the flat and informed the watchman and other residents of the apartment about the murder of the two sisters. Later, a written complaint was filed by A1 as per Ex.P22 before PW- 20 Investigating Officer. The case was registered in Case No.143/2004 by High Grounds Police Station, Bangalore. The case was registered against unknown persons. During investigation, the Investigating Officer suspected the hands of A1 and A2 in committing the murder of two sisters for gain 5 CRL.A.1060/2007 and accordingly, they were arrested on 15.04.2005 and voluntary statement of A1 and A2 as per Exs.P34 and P35 were recorded and in pursuance of the same, MOs - 21 and 22 were recovered at the instance of the accused under Exs.P37 and P38. Later, A1 and A2 were subjected to Narco Analysis and Brain Mapping test on 26.04.2005. The same was conducted by PW-21 Dr.Malini. Based on the circumstantial evidence and relying upon the Brain Mapping test, the charge sheet was filed against A1 and A2 before the Jurisdictional Magistrate. Later, the same was committed to Sessions Court.
3. The Sessions Court framed the following charges against the accused:
"That you on 03.04.2004 at about 5.30 to 10.30 p.m. House No.1073, High Point Apartments, Palace Road, 7th Floor, you accused - 1 being maidservant working in 6 CRL.A.1060/2007 the house of Smt.Indu Rajagopalan and Malathirao and you accused - 2 being brother of you accused Smt.Renukamma in furtherance of common intention both of you on 03.04.2004 at about 5.30 to 10.30 p.m. committed murder intentionally causing death of Smt.Indu Rajagopalan and Malathi Rao and thereby committed an offence punishable under Section 302 read with 34 of IPC, within the cognizance of the Court of Sessions.
Secondly, that you on the said place, date and time you accused - 1 Renukamma being maid servant of Indu Rajagopalan and Malathi Rao in the capacity of maid servant you entered into the house No.1023, High Point Apartments, Palace Road belonging to the deceased by using Key with you, both of you with common intention to commit theft by stealing certain properties namely Rs.12,50,000/- which was in possession of deceased Indu Rajagopalan and Malathi Rao, thereby committed an offence 7 CRL.A.1060/2007 punishable under Section 381 read 34 IPC, within the cognizance of this Court".
4. Since, accused pleaded not guilty and claimed to be tried, the prosecution led in evidence by examining PW-1 to PW-21 and got marked Exs.P1 to P45 and MOs 1 to 21 and closed its side.
5. Thereafter 313 statement of the accused was recorded in which the accused denied all the incriminating evidence put them and further they did lead any defence evidence in support of their case. Total denial is the defence of the accused.
6. After hearing the Public Prosecutor and defence counsel, the Sessions Court formulated the following points for its consideration:
i) Whether the prosecution proves beyond all reasonable doubt that, on 03.04.2004 at about 5.30 to 10.30 p.m. 8 CRL.A.1060/2007 House No.1073, High Point Apartments, Palace Road, 7th Floor, accused - 1 being maid servant working in the house of Smt.Indu Rajagopalan and Malathirao and accused - 2 being brother of accused Smt.Renukamma in furtherance of common intention both of them on 03.04.2004 at about 5.30 to 10.30 p.m. committed murder intentionally causing death of Smt.Indu Rajagopalan and Malathi Rao and thereby committed an offence punishable under Section 302 read with 34 of IPC?
ii) Whether the prosecution further proves beyond all reasonable doubt that on the said place, date and time accused -1 Renukamma being maid servant of Indu Rajagopalan and Malathi Rao in the capacity of maid servant entered into the house No.1023, High Point Apartments, Palace Road belonging to the deceased by using Key with them, both of them with common intention to commit theft by stealing certain properties namely Rs.12,50,000/- which was in possession of deceased Indu 9 CRL.A.1060/2007 Rajagopalan and Malathi Rao, thereby committed an offence punishable under Section 381 r/w 34 IPC?
7. After appreciating the entire evidence let in by the prosecution and considering the defence of the accused, the Sessions Court held Points 1 and 2 in 'Negative' and acquitted the accused of the aforesaid offences by its judgment and order dated 05th /09th February, 2007.
8. Challenging the judgment and order of acquittal, the present appeal is filed by the State.
9. We have heard SriP.M.Nawaz, Additional SPP for the State and Mr.Shankarappa for Respondent Nos.1 and 2. According to Additional SPP, though the Prosecution has proved its case beyond all reasonable doubt, the Trial Court without 10 CRL.A.1060/2007 appreciating the evidence led in by the prosecution in its right perspective has committed an error in acquitting the accused. According to him, the prosecution has proved the guilt of the accused by examining the witnesses to show that A1 was working as a maid servant in the house of Indu Rajagopalan and her sister Malathi Rao and it was well within her knowledge that Indu Rajagopalan was a wealthy lady and had disposed of her site and suspecting that she had kept the cash received by her by way of sale proceeds and by making use of the key of the flat, which she possessed with the assistance of her brother A2 committed the murder of both the sisters for gain. According to him, the Sessions Court did not appreciate the recovery of gold ornaments at the instance of the accused pursuant to their statements which have been seized by the police under the mahazars Exs.P37 and P38. 11 CRL.A.1060/2007 He further contends that the evidence of Narco Analysis and Brain Mapping has not been appreciated by the Sessions Court and by discarding the evidence of Dr.Malini, the Trial Court has erroneously acquitted the accused. He further contends that the Trial Court has also committed an error in holding that the Investigating Officer did not investigate the case properly in not proceeding against Parushuram Tehalza to whom Indu Rajagopalan had advanced a loan for Rs.17 Lakhs for interest and that the said Parushuram Tehalza had not returned the principal and interest. Therefore, he requests the Court to re-appreciate the entire evidence and set aside the judgment and order of the acquittal and convict the accused for the aforesaid offences.
12 CRL.A.1060/2007
10. Per contra, learned counsel for the respondents Mr.Shankarappa contends that the Sessions Court has properly appreciated the evidence led in by the prosecution. According to him, the murder is said to have been committed between 5.30 a.m. and 10.30 a.m. on 03.04.2004. It is also the case of the prosecution that A1 and A2 by entering into the house of Indu Rajagopalan at about 5.30 a.m. by opening the door with the key A1 had and after committing the murder of Indu Rajagopalan and Malathi Rao, locked the apartment along with A1 and left the place and again re-opened the doors at about 10.30 a.m. According to him, the prosecution has failed to prove that A1 and A2 had visited the house of Indu Rajagopalan between 5.30 a.m. to 10.30 a.m. and the post-mortem report clearly shows that the stomach of deceased Indu Rajagopalan was found with semi-digested vegetarian food and if it is 13 CRL.A.1060/2007 so, the murder of these two persons could not be at 5.30 a.m. and it must have taken place much earlier to 5.30 a.m., considering this semi-digested food found in the stomach. According to him, no evidence is led in to show that A1 and A2 had entered the house of Indu Rajagopalan at about 5.30 a.m. The prosecution has relied upon the evidence of lift operator. It is also the case of the prosecution that, PW-2 Hemanth Chandangounder a member of this bar who is also residing in the same apartment has clearly stated that no lift operator would be available between 8.00 p.m. to next day 8.00 a.m. and the visitors or the residents of the apartments have to operate the lift on their own, which falsifies the theory of the prosecution that A1 and A2 had visited the house of the deceased persons at 5.30 a.m. 14 CRL.A.1060/2007
11. According to him, the alleged recovery of gold ring and ear studs has not been proved by the prosecution by examining the panchas to the mahazar as per Exs.P37 and P38. It is also his case that Heera Purnaiah the sister of the deceased and niece of the deceased, namely PW-3 Smt.Arathi have also not identified MOs - 2 and 21 as the one belonging to the deceased persons. It is also his case that as per Ex.D1, the Investigating officer having entertained the doubt in regard to the involvement of one Parushuram Tehalza in committing the murder of two persons for the reasons best known to him, did not record the statement of Tehalza or did not subject him for Brain Mapping and Narco Analysis test. He further contended as the Investigating Officer entertained a doubt that since Tehalza has failed to return the amount of Rs.17 Lakhs borrowed by him from Indu Rajagopalan he might be the 15 CRL.A.1060/2007 person who committed the murder of the deceased persons. He further contends that the Sessions Court has rightly disbelieved the version of Dr.Malini PW-21, considering the nature of questionnaire prepared prior to subjecting A1 and A2 for Brain Mapping and also considering the answers given by A1 and A2. In the circumstances, he requested the Court to dismiss the appeal.
12. Having heard the counsel for the parties, what has to be considered by us in this appeal is:
"Whether the prosecution has proved beyond reasonable doubt that the accused persons have committed the murder of Indu Rajagopalan and Malathi Rao on 03.04.2004 between 5.30 a.m. to 10.30 a.m. at House No.1073, High Point Apartments, Palace Road, 7th Floor, Bangalore and have also taken away the Jewels belonging to them?"
16 CRL.A.1060/2007
13. The Homicidal death of the two deceased is not disputed. In order to establish that the accused are responsible for the Homicidal death of the two deceased, the prosecution has mainly relied upon circumstantial evidence. The circumstances pressed into service are:-
a) A1 was working as a maid servant in the house of Indu Rajagopalan and a key was given to her by the deceased and she had nexus to the house at all point of time and that, she was aware of the sale of site by Indu Rajagopalan and was under the impression that cash was kept in the house in question and A1 and A2 being the sister and brother committed the murder of these two persons for gain;
b) Recovery of MOs - 2 and 21 at the
instance of A1 and A2 which proves their
17 CRL.A.1060/2007
involvement in committing the murder of these two ladies;
c) The report of Narco Analysis and Brain Mapping test.
14. According to the prosecution, at the first instance, it is A1 who opened the door at about 10.30 a.m. on 03.04.2004 and having seen the dead bodies of these two ladies, she cried and brought the neighbours' and later, a complaint was lodged before the High Grounds Police by A1 regarding the murder of her master Indu Rajagopalan and Malathi Rao as per Ex.P22. Later, statement of Smt.Heera Poornaiah, the sister of the deceased persons were recorded as per Ex.P1. One year 10 days later, A1 and A2 were arrested by the Investigating Officer suspecting their involvement in committing the murder of the deceased persons and thereafter by 18 CRL.A.1060/2007 recording the voluntary statement of A1 and A2, at their instance MOs - 2 and 21 were recovered under the mahazars Exs.P37 and 38 and subsequently, they were subjected to Narco Analysis and Brain Mapping test.
15. Considering the evidence led in by the prosecution, the Sessions Court has come to the conclusion that the prosecution has failed to prove the guilt of the accused persons. According to the prosecution, the murder of these two ladies has taken place between 5.30 a.m. and 10.30 a.m. on 03.04.2004. Exs.P15 and P16 are the post-mortem reports. Autopsy is conducted by PW-14 Dr.B.Havanur. As per Ex.P15, the post-mortem report of Indu Rajagoplan it reveals that her stomach contains semi-digested rice and greens of 150 grams. The learned Sessions Judge considering the contents 19 CRL.A.1060/2007 of the stomach as reflected in Ex.P15 has come to the conclusion that murder of these two ladies could not have taken place at 5.30 a.m. In addition to that, there is nothing to show that A1 and A2 had entered into the house of the deceased from 5.30 a.m. till 10.30 a.m. because PW-2 Hemanth Chandagounder has deposed that no lift operator would be available between 8.00 p.m. to 8.00 a.m. of the next day. The prosecution has relied upon the evidence of the security to show that the lift operator was there which falsifies the contentions of the prosecution. Therefore, it is clear that the death of these two ladies must have taken place much earlier to 5.30 a.m. of 03.04.2004 considering the semi- digested food in the stomach of Indu Rajagopalan.
16. According to the prosecution, the murder is for gain and to show that A1 and A2 have 20 CRL.A.1060/2007 committed murder for gain, they have relied upon the seizure of MOs - 2 and 21 under Exs.P37 and P38. But, unfortunately, the prosecution has not chosen to examine any of the panch witnesses to mahazar Exs.P37 and P38. In addition to that, the prosecution has failed to prove that MOs - 2 and 21 belonged to the deceased. In this connection, PWs - 1 and 3, the sister and the niece of the deceased have not identified MOs - 2 and 21 as that of the deceased. Therefore, the theory of murder for gain cannot be accepted.
17. Ex.D1 is the letter addressed by the Investigating Officer PW - 20. The said letter is addressed to the Head of Forensic Laboratory, Bangalore, where he clearly states that he suspects the hands of Parushuram Tehalza in committing the murder of these two persons because he was unable 21 CRL.A.1060/2007 to repay the debts payable to Indu Rajagopalan along with interest. Having written such a letter suspecting the hands of Parushuram Tehalza for the reasons best known to PW-20 he has not chosen to investigate the case in the aforesaid direction either by examining Parushuram Tehalza or by subjecting him to for Brain Mapping or Narco Analysis test. No explanation is offered by PW-20 in this regard. When the Investigating Officer suspect the hands of Parushuram Tehalza, it was required for him to proceed in the said direction. In addition to that, if according to prosecution A1 and A2 had committed the murder of the deceased persons, A1 would not have opened door of the flat at about 10.30 a.m. on 03.04.2004. Normally, if the involvement of A1 and A2 were to be there, A1 would not have dared to open the door and on her own lodged a complaint before the police.
22 CRL.A.1060/2007
18. The last piece of evidence relied upon by the prosecution is the report of Brain Mapping and Narco Analysis test. The Hon'ble Supreme Court in Selvi -vs- State of Karnataka (2010) 3 SCC page 01 has held that, such results are not admissible in evidence except that, they can be put to use for a limited purpose as indicated in Section 27 of the Indian Evidence Act, 1872. Therefore, the Sessions Court is justified in disbelieving the report of Narco Analysis Test. In addition to that, the Sessions Court has given several cogent reasons for not accepting the evidence of PW-21 Dr.Malini. In such circumstances, the Appellate Court while considering the appeal against acquittal will not lightly interfere with the findings of the Trial Court. On a careful consideration of the evidence on record, we do not find any infirmity or illegality in the impugned 23 CRL.A.1060/2007 judgment and order calling for interference. Accordingly, we answer the question formulated against the prosecution.
19. In the result, the appeal is dismissed confirming the judgment and order of acquittal passed by the Sessions Court in S.C.No.694/2005 dated 05th / 09th February, 2007.
Sd/-
JUDGE Sd/-
JUDGE dh