Karnataka High Court
The State By Lashkar vs Sri.K.C.Girisha on 15 September, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
CRL.A No. 2140 of 2016
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 2140 OF 2016 (A)
BETWEEN:
The State by Lashkar Police Station,
Represented by the
State Public Prosecutor,
High Court Building,
Bangalore - 01.
...Appellant
(By Sri. Thejas P., High Court Govt. Pleader)
AND:
Sri. K.C. Girisha,
S/o. Chowdaiah,
Aged about 31 years,
Komeerahalli,
Mandya Taluk
and District-571401.
...Respondent
(By Sri. N.S. Sampangiramaiah, Amicus Curiae)
****
This Criminal Appeal is filed under Section 378(1) and (3)
of Code of Criminal Procedure, praying to grant leave to appeal
against the impugned judgment and order of acquittal dated
25.04.2016 passed by the learned VII Additional Sessions
CRL.A No. 2140 of 2016
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Judge, Mysore, in Sessions Case No.90 of 2011, thereby,
acquitting the respondent/accused of the offences punishable
under Sections 302, 376 and 397 of IPC; set aside the
judgment and order of acquittal dated 25.04.2016 passed by
the learned VII Additional Sessions Judge, Mysore in S.C.No.90
of 2011 thereby, acquitting the respondent/accused of the
offences punishable under Sections 302, 376, and 397; by
allowing this criminal appeal; and convict and sentence the
accused/respondent for the offences punishable under Sections
302, 376 and 397, in accordance with law, in the interest of
justice and equity.
This Criminal Appeal having been heard through physical
hearing/video conferencing hearing and reserved on
28-08-2023, coming on for pronouncement of judgment, this
day, Dr. H.B.PRABHAKARA SASTRY, J., delivered the
following :
JUDGMENT
The State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "the Cr.P.C."), challenging the judgment of acquittal dated 25-04-2016, passed by the learned VII Additional Sessions Judge, Mysuru, (hereinafter for brevity referred to as the "Sessions Judge's Court") in Sessions Case No.90/2011, CRL.A No. 2140 of 2016 -3- acquitting the accused of the offences punishable under Sections 302, 376 and 397 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "the IPC").
2. The summary of the case of the prosecution before the Sessions Judge's Court was that, the deceased victim was a sex worker. On the date 18-09-2010, when she was soliciting customers on S.R. Road, Mysuru, the accused picked her up and brought her to Sri. Vigneshwara Palace Deluxe Lodge, (hereinafter for brevity referred to as "Sri. Vigneshwara Lodge") abutting the Sub-urban Bus Stand, Mysuru, in an autorickshaw belonging to PW-8 - Mohan Kumar. Introducing themselves as husband and wife and had come to visit a temple and making necessary entries in the register maintained by the Lodge, they took a room with number '109' in the said Lodge. They got food and drinks served to their room in the Lodge on that night.
It is further the case of the prosecution that, thereafter both the accused and the deceased victim involved in sex and thereafter between 7:20 p.m. and CRL.A No. 2140 of 2016 -4- 8:30 p.m., on the same day, the accused, with an intention to commit robbery, strangulated the victim with the help of her saree, murdered her and thereafter robbing her golden ear studs and one Nokia cellphone (mobile handset) Model No.1209 and some cash, left the Lodge without giving any information. Thereafter, the accused pledged the golden ear studs with the Pawn Shop by name M/s. Sadhana Bankers, belonging to PW-7 - Jagadeesh Bohara, Mandya. On the next day, i.e. on the date 19-09-2010, at about 7:00 a.m., PW-1 - Shivarama Shetty - the complainant and owner of the Lodge came to his Lodge. At his enquiry about the guests staying in his Lodge, he was informed that the occupants of Room No.109 were not opening the door, however, the Television appeared to be playing. Thinking that the inmates of the room must be sleeping, he waited for some time. Since there was no response and none came out from the said room till 10:30 a.m./11:00 a.m. on the said day, he informed the complainant Police about the same. The complainant Police came to the Lodge in the afternoon CRL.A No. 2140 of 2016 -5- and with the help of a duplicate key, opened Room No.109 only to find the dead body of the victim on the cot. The strangulation mark over the victim's neck was noticed by them. They also noticed empty nirodh condom packet in the room. PW-1 - Shivarama Shetty Lodged a complaint which was registered in Crime No.162/2010. The accused had furnished his name as 'Ravi' concealing his real name of 'Girish', in the Lodge. The Police, after completing the investigation filed charge sheet against the accused for the offences punishable under Sections 302, 201 and 397 of the IPC. However, after hearing both side, the Sessions Judge's Court proceeded to frame an additional charge for the offence punishable under Section 376 of the IPC, dropping Section 201 of the IPC.
3. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all twenty seven (27) witnesses from PW-1 to PW-27, got produced and marked documents from Exs.P-1 to P-39(a) and produced Material Objects from MO-1 to CRL.A No. 2140 of 2016 -6- MO-14. From the accused' side, though no witness was examined, however, three documents were got marked as exhibits from Ex.D-1 to D-3.
4. After hearing both side, the learned Sessions Judge's Court, by its judgment dated 25-04-2016, acquitted the accused of all the offences punishable under Sections 302, 376 and 397 of the IPC. Challenging the same, the appellant - State has preferred the present appeal.
5. The appellant -State is represented by the learned High Court Government Pleader.
6. In view of the fact that the learned counsel for the respondent (accused) failed to appear before this Court on several dates of hearing in spite of granting several opportunities, this Court, by its reasoned order dated 31-07-2023, appointed learned counsel - Sri. N.S. Sampangiramaiah, as Amicus Curiae for the respondent/accused to represent him in this case. CRL.A No. 2140 of 2016 -7-
7. Learned High Court Government Pleader for the appellant State and learned Amicus Curiae for the respondent/accused are physically appearing in the Court.
8. The Sessions Judge's Court's records were called for and the same are placed before this Court.
9. Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Sessions Judge's Court's records.
10. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge's Court.
11. After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:
[i] Whether the prosecution has proved beyond reasonable doubt that in between 7:00 p.m. on the date 18-09-2010 and 8:30 a.m. on the date 19-09-2010, the accused had committed rape upon the victim in Room No.109 of Sri. Vigneshwara Palace Deluxe Lodge situated behind the KSRTC CRL.A No. 2140 of 2016 -8- Rural Bus Stand, Mysuru and thus has committed an offence punishable under Section 376 of the IPC?
[ii] Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, the accused committed the murder of the victim by strangulating her with the saree worn by her, intentionally and knowingly and thus has committed the offence punishable under Section 302 of the IPC?
[iii] Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, the accused had robbed golden ear studs, Nokia Cellphone (mobile handset) and cash from the victim by causing her murder and thereby has committed an offence punishable under Section 397 of the IPC?
[iv] Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?
12. Learned High Court Government Pleader appearing for the appellant-State in his argument submitted that, the nature of death of the victim that it was a homicidal death amounting to murder and that it has taken place on the date, time and place as stated in CRL.A No. 2140 of 2016 -9- the charge sheet are not in dispute. He submitted that though the prosecution could able to prove beyond reasonable doubt that prior to her murder, the victim was subjected to rape by the accused, but, the prosecution could not able to place any evidence in that regard, however, it has led cogent evidence to prove that it was the accused who has committed her murder and robbed her of valuables including the golden ear studs and cell phone and some cash. However, the Sessions Judge's Court did not appreciate the evidence placed by the prosecution in its proper perspective, resulting in it passing the impugned erroneous judgment.
Learned High Court Government Pleader further submitted that even though the accused, who, accompanied by the victim had come to the Lodge and booked Room No.109 had given his false identity in the Lodge, however, the signature of the accused in the register maintained by the Lodge tallies with his hand writing, as per the expert's opinion. The owner and the staff of the Lodge have given their evidence stating that, it was the accused who had come to their Lodge and booked Room CRL.A No. 2140 of 2016
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No.109. Thus, it was the accused who was lastly seen in the company of the deceased victim. As such, it was for the accused to explain as to how the death of the deceased victim has caused.
Learned High Court Government Pleader further submitted that recovery made at the instance of the accused further proves the involvement of the accused and his motive. However, the Sessions Judge's Court disbelieved the version of the 'last seen theory' as well as the recovery made at the instance of the accused. It also disbelieved the Test Identification Parade (TIP) which led it to pass an erroneous judgment.
13. Per contra, learned Amicus Curiae for the respondent (accused) in his argument submitted that the evidence of PW-1, PW-3, PW-4 that they had seen the accused lastly in the company of the victim does not inspire confidence to believe for the reason that, the prosecution has not established that the accused was allotted with Room No.109 in the said Lodge. He submitted that the said room was allotted to CRL.A No. 2140 of 2016
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another customer as could be seen in the arrival register maintained by the Lodge authorities, at Ex.P-26. Therefore, it cannot be believed that the same room was allotted to the accused and the victim. At the same time, the learned Amicus Curiae also submitted that he would not dispute the finding of the dead body of the victim in the Lodge and the nature of her death as homicidal. He further submitted that multiple pairs of slippers said to be present in the room of the Lodge also creates a doubt about the presence of number of occupants in the said room. He submitted that the recovery canvassed by the prosecution is also highly doubtful. Though the prosecution claims recovery of a pair of golden ear studs at the instance of the accused, however, the very same prosecution also mentions the panch finding a pair of small ear studs/gundugalu (a type of balls like small ornament). Therefore, the alleged recovery is highly doubtful. He further submitted that the arrest of the accused on the date, time and place projected by the prosecution also creates a doubt in the mind of the Court.
CRL.A No. 2140 of 2016
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Learned Amicus Curiae also submitted that the Test Identification Parade (TIP) does not get sanctity for the reason that, the accused was shown to the witnesses earlier to taking them for the identification in the Test Identification Parade (TIP). With this, he submitted that, it is appreciating these aspects in their proper perspective, since the Sessions Judge's Court has rightly acquitted the accused of the alleged offences, the impugned judgment of acquittal does not warrant any interference at the hands of this Court.
14. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of accused for the offences punishable under Sections 302, 376 and 397 of the IPC. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law is that, unless his guilt is proved, the accused has to be treated as an innocent person in the alleged crime. Secondly, the accused has already been enjoying the benefit of judgment of acquittal passed under the impugned CRL.A No. 2140 of 2016
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judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate CRL.A No. 2140 of 2016
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Court should not disturb the finding of acquittal recorded by the trial Court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial Court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal CRL.A No. 2140 of 2016
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adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536.
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed by the prosecution in this matter.
15. According to the prosecution, the victim was a sex worker and the accused, as her customer, had brought her to Sri. Vigneshwara Palace Deluxe Lodge located near sub-urban Bus Stand, Mysuru and booked Room No.109 in the said Lodge, on the date 18-09-2010 in the evening. CRL.A No. 2140 of 2016
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The next day afternoon, when the Lodge people getting suspicion as the inmates of Room No.109 did not come out despite these people ringing the calling bell, got the said door of the room opened in the presence of the Police with a duplicate key and noticed the victim was found murdered in the said room by strangulation. However, the accused who had brought the victim to the said Lodge was not found in the said place. Thus, according to the prosecution, the nature of the death of the victim was homicidal and the accused had committed the said death and robbed valuables from her, as such, it is a murder committed by him. It is also the case of the prosecution that before murdering the victim, the accused had committed rape upon her.
Though from the accused' side, the death and the alleged nature of death of deceased victim has not been specifically denied in the argument addressed by the learned Amicus Curiae, however, he denied that the accused had taken the victim to the said Lodge. Hence, even though the nature of death of CRL.A No. 2140 of 2016
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deceased victim is not seriously disputed, the evidence regarding the nature of death of the deceased victim is to be considered first followed by the evidence regarding the accused bringing the deceased to the Lodge on the date 18-09-2010.
16. Among the 27 witnesses examined by the prosecution from PW-1 to PW-27, PW-1, PW-3 and PW-4 are the witnesses related to Sri. Vigneshwara Palace Deluxe Lodge, Mysuru.
17. PW-1 (CW-1) - Shivarama Shetty K. in his evidence has stated that, he is the person running Sri. Vigneshwara Palace Deluxe Lodge which is in front of the Mysuru Bus Stand. He has stated that, the next day of 18-09-2010 (i.e. 19-09-2010), when he came to his Lodge, he was informed that the inmates of Room No.109 have not opened the door. The Television appeared to be put on and was playing in the said room. After waiting for an hour, they rang the calling bell of the said room, however, the door was not opened. Getting suspicion, they informed the same to the complainant Police. The CRL.A No. 2140 of 2016
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Police came in the afternoon and with the help of a duplicate key, opened the door and saw the dead body of a lady. It was looking like using a veil/dupatta, the said lady was strangulated. Injuries were found near the neck. In the spot, he (this witness) noticed drinks bottle, two glasses, a currency card, one beer bottle. In that regard, he has submitted a complaint to the Police, which he has identified at Ex.P-1.
This witness was subjected to a detailed cross- examination from the accused' side. Though several attempts were made in his cross-examination to disprove the case of the prosecution that the accused had brought the victim to the said Lodge, however, no where in his cross-examination it was denied that the victim was found dead in Room No.109 of his Lodge, i.e. Sri. Vigneshwara Palace Deluxe Lodge. On the other hand, it was suggested to the witness that it was somebody else who had strangulated the said Lady by tying her neck, may be with a dupatta, but not the accused. It was also suggested to the witness that the accused had no connection to the CRL.A No. 2140 of 2016
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murder of the said lady. By making the above suggestions, the accused has shown that he has not denied that the dead body of the victim was found in Room No.109 of Sri. Vigneshwara Palace Deluxe Lodge on the date 19-09-2010 and that her death was unusual and unnatural. The accused himself by suggesting to PW-1 has conceded that it was a murder.
18. PW-3 (CW-5) - Rajesh - the room boy at Sri. Vigneshwara Lodge, Mysuru, in his evidence has stated that, when Room No.109 was not opened on the next day morning of its occupation, which, according to this witness was by the present accused along with the deceased victim, at the telephonic information made by his employer, the Police came to the Lodge and with the help of a duplicate key, they opened the door of the said room. All of them saw the dead body of a woman in that room. The witness has stated that, a lady was found murdered in the said room. Though in the suggestion made to this witness, attempts were made to show that the accused had not occupied the said room, however, the statement CRL.A No. 2140 of 2016
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of this witness that in that room a woman was found murdered was not denied in his cross-examination.
19. PW-4 (CW-8) - Dhananjaya - the receptionist at Sri. Vigneshwara Palace Deluxe Lodge, Mysuru, also has stated that, it was the accused who had occupied the said room since the evening of 18-09-2010. The accused had come along with a lady stating that they were tourists. The next day morning, since the door of the said room was not opened even after late in the morning and no response was coming from inside even to the ringing of the calling bell, at the instance of their employer, the complainant Police came and got opened the room with a duplicate key possessed by the Lodge authorities. The witness stated after opening the door, they found a dead body of a lady on the cot with a cloth tied around her neck. Blood stains were found on the bed. They also found beer bottle, food container, glasses, condoms, inner garments, pant, ladies slippers in the place. His evidence that a dead body of a lady with the cloth tied around her neck was found in Room No.109 of their Lodge on the date 19-09-2010 has CRL.A No. 2140 of 2016
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not been specifically and categorically denied in his cross- examination.
Thus from the evidence of PW-1, PW-3 and PW-4, it stands established that the dead body of a lady was found in Room No.109 of Sri. Vigneshwara Lodge in the morning of 19-09-2010. According to them, the death of deceased appeared to be unnatural. Among them, PW-3 has called the said death as a murder.
20. The next witness who speaks about the nature of death of deceased victim is, PW-2 (CW-3) - P. Raju. In his evidence, he has stated that, he is running an S.T.D. Booth in the basement of Sri. Vigneshwara Lodge at Mysuru. The Police had summoned him to Room No.109 of the said Lodge where he noticed that a lady was murdered and her neck was tied with a cloth. Nose stud, bangles, toe ring were found on the body of the deceased victim. A pair of slippers, Nirodh packets, drinks pouch packets, some cloths, mobile phone and one scratch card were also found in the spot. The Police seized them by CRL.A No. 2140 of 2016
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drawing a panchanama in his presence as per Ex.P-4. The witness has identified those articles at MO-1 to MO-11.
In his cross-examination, except suggesting to the witness that he has subscribed his signature to the panchanama in the Police Station, the statement of the witness that he found the body of a murdered lady in the Lodge was not denied in his cross-examination.
21. Ex.P-4, which, according to PW-2, was drawn in his presence is the inquest panchanama. He identifies the dead body with the name of the deceased and after noticing the external condition of the dead body including the scratch marks over the neck, has opined that the nature of the death of the deceased victim was a murder and must have been strangulated by the room mate of the deceased, when the deceased appeared to have resisted a forcible sexual intercourse with her. The contents of the said inquest panchanama at Ex.P-4 have not been specifically denied in the cross-examination of PW-2. CRL.A No. 2140 of 2016
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22. PW-10 (CW-20) - Mukhtar Ahmed in his evidence has stated that he does business in cloth in a lane at Sayyajirao road at Mysuru. The deceased was married to one Sri. Mahadeva, however, she had left his company and had started living with him (this witness). He has stated that the deceased was often visiting the city and spending time there. This witness has further stated that he has seen the dead body of deceased in the Mortuary at K.R. Hospital at Mysuru and was enquired by the Police in that regard. However, he has not stated anything about the nature of death of the deceased.
23. PW-13 (CW-16) - Ningegowda, though has stated that the deceased was his daughter, however, he has stated that she was married to one Mahadeva and since he had left the contact with his daughter, he does not know how she was eking her livelihood. Thus, his evidence was of no avail to the prosecution to show the nature of death of the deceased victim.
24. PW-19 (CW-27) - Dr. Kumar stated that he conducted post-mortem of the deceased on the date CRL.A No. 2140 of 2016
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21-09-2010. He stated that, when he examined the dead body of the deceased lady, he noticed the presence of three finger nail scratch abrasion with pressure abrasions over right, middle and left side of neck, each measuring 2 cm. x 1 cm. He also noticed a circular bite mark over middle of inner aspect of right thigh measuring 5 cm. x 5 cm. He opined that both the said injuries were ante- mortem in nature. The abrasions were red in colour. All the other internal organs of the body were normal in their nature. Smell of alcohol was found. He also stated that blood and viscera were collected and sent to Forensic Science Laboratory (FSL) for their analysis. After seeing their report, he has opined that the blood alcohol was detected at 12.4 mg.% and that the death of the deceased was due to asphyxia as a result of strangulation.
25. PW-21 (CW-31) - Gopala Krishna, the Police Constable has stated that he carried the viscera collected in this matter and also the report to the ACP's Office and from there to the FSL.
CRL.A No. 2140 of 2016
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26. PW-25 (CW-37) - T.B. Rajanna, the then Police Inspector of the complainant Police Station has stated that, he has drawn the inquest panchanama as per Ex.P-4 and has got the post-mortem examination of the dead body done by the Doctor. He collected the post-mortem examination report as per Ex.P-19 on the date 24-09-2010. He sent the viscera along with other articles seized from near the dead body on the date 25-09-2010 to the Regional Forensic Science Laboratory (RFSL) at Mysuru.
The above evidence of the prosecution witnesses confirms the death of the deceased in the intervening night of the date 18-09-2010 and the date 19-09-2010. Undisputedly, the said death was an unnatural death. However, the un-denied evidence of PW-3 that it was a murder and the evidence of PW-1, PW-2, PW-4 mentions that the death of deceased was homicidal in nature. However, the presence of scratch marks in the form of red colour abrasions on the neck of the deceased, presence of cloth tied around the neck of CRL.A No. 2140 of 2016
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the deceased prove that the act of strangulation of the deceased and causing her death was by a human agency and that the death of the deceased was caused intentionally. As such, unhesitatingly, it can be held that the death of the deceased victim was a homicide.
27. The next question to be taken up for consideration is, whether the accused had brought the deceased to the said Sri. Vigneshwara Lodge on the evening of 18-09-2010? In that connection, it is once again the evidence of PW-8, PW-1, PW-3 and PW-4, which are primary evidence.
28. PW-8 (CW-17) - Mohan - the autorickshaw driver has stated that, on the date of the incident, the accused and the deceased boarded his autorickshaw at market gate, Mysuru and got down near sub-urban Bus Stand. The same evening at about 7.45, the deceased had telephoned to him asking him to wait for ten minutes so that she can go to her home in the same autorickshaw. Accordingly he waited for ten minutes. Thereafter, he called to her cellphone, however, the response came as CRL.A No. 2140 of 2016
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'switched off'. He informed the same to the husband of the deceased over the phone. He (husband of deceased) also stated that the deceased had not returned to home by then. Two days later, he (this witness) came to know that the person who had brought the deceased with him in his autorickshaw had murdered her. Seeing the accused in the Court, the witness has stated that the accused was the person who had taken the deceased with him in his autorickshaw from the market gate till near the sub-urban Bus Stand.
In his cross-examination from the accused' side, he gave more details about his acquaintance with the deceased and also about he dropping the accused and the deceased near the sub-urban Bus Stand. He stated that he knows the deceased who was a sex worker and was soliciting customers in public roads. He stated that, many a time, while soliciting the customers, she used to travel in his autorickshaw only. The same was known to the husband of the deceased i.e., Sri. Mukhtar Ahmed (PW-10) also. He also stated that the deceased was CRL.A No. 2140 of 2016
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calling him over phone seven to eight times a day. He has also stated that in the morning he used to pick her up and evening, he used to drop her in the same autorickshaw. It was suggested to the witness from the accused' side that, in case if this witness was not available, then Mukhtar Ahmed himself was dropping the deceased for her to work as a sex worker. By making the said suggestion from the accused' side, they have admitted that the deceased was a sex worker and that this witness (PW-8) was a person very much known to her.
Even though in his cross-examination, it was elicited that the telephone number of the deceased which he has stated in his examination-in-chief was not stated by him before the Police and the said portion was marked as Ex.D-1, still, rest of the part of the evidence given by him would go to show that, this witness has taken the deceased and the accused from near the S.R.S. Market Road and dropped them near the sub-urban Bus Stand at Mysuru. The evidence of PW-8 coupled with the evidence of PW-10 - Mukhtar Ahmed would go to show that the CRL.A No. 2140 of 2016
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deceased was living separately from her previous husband Mahadeva and after deserting him was living with PW-10 and that she was a sex worker too.
29. PW-1 in his evidence has stated that, on the date 18-09-2010, the accused whom he identified in the Court had come to their Lodge, i.e. Sri. Vigneshwara Lodge at Mysuru along with a lady stating his name as 'Ravi' and that the lady as his wife and they were coming from a place near Mandya, requested for a room for their stay on that night. In the said process, it was accused himself who put his signature in the arrival register maintained by the Lodge. To them, Room No.109 was allotted. This witness also stated that after he informing the Police and the Police visiting Room No.109 of their Lodge and he lodging the complaint as per Ex.P-1, one day, the Police had taken him to jail and showed a person (who was before the Court) whom he identified as the accused who had taken the room in their Lodge. He also stated that the Police in the process had seized articles found in the room and also took the register maintained at the reception CRL.A No. 2140 of 2016
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counter in the Lodge by drawing a mahazar which this witness has identified at Ex.P-2.
In his cross-examination, he (this witness) adhered to his original version and gave more details about how his Lodge conducts its business. He has answered all the questions put to him by the defence counsel and shown that, every day, he visits his Lodge and conducts business, in which process, he maintains and verifies the necessary Ledger books and other records and also collects the information about the number of rooms occupied and the occupants from his staff in the Lodge.
In his further cross-examination, though the witness has stated that before going to the jail, the Police had taken him to their Police Station, however, in the very same cross-examination, at a later part, he has stated that, after the Police secured the accused, he was summoned to the Police Station and the Police had shown him (this witness) the accused who was standing in front of the Police Station. It is three to four months thereafter he was taken to the jail.
CRL.A No. 2140 of 2016
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30. PW-3 (CW-5) - Rajesh - the room boy of Sri. Vigneshwara Lodge has stated that, when the accused who is 'Girish' came to their Lodge by giving his name as 'Ravi' along with a lady and took a room, he was present at the spot. The accused stated that he was coming from a village near Mandya. Room No.109 was allotted to him. After going to the room, the accused requested for food to be served to their room. As such, it was him who supplied chicken fried rice and one King Fisher beer to them in the room. The witness has identified the accused in the Court.
In his cross-examination, he has given details of his nature of work including the working condition in the Lodge. Though he stated that along with him, there were three other room boys, however, he also made it clear that, no specific rooms were allotted to each of the room boys. He has stated that there were about twenty five rooms in the Lodge at that time. He also gave the details as to from which Hotel he brought the food and stated that CRL.A No. 2140 of 2016
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by the time he supplied the food and beer to the room of the accused, the time was about 7:30 p.m./8:15 p.m.
31. PW-4 (CW-8) - Dhananjaya, the Receptionist at Sri. Vigneshwara Palace Deluxe Lodge, Mysuru, also has stated that, he had his duty in the said Lodge from 7:00 a.m. to 8:00 p.m. on the date 18-09-2010. In the evening at about 6:15, the accused Girish, identifying himself as Ravi, came to the Lodge with a lady and requested for a room. They stated that they intend to go to a Temple on the next day morning. They were allotted Room No.109. Entries were made in the Ledger Book in which the accused gave his name and address as Ravi, S/o. Chowdaiah, R/o. Kupperahalli, Mandya District. Enquiring the accused, he (this witness) entered the phone number of the accused in the register. A receipt was also given to the accused about the booking of a room in their Lodge. The witness further stated that after the accused and that lady occupied the room, the room boy (PW-3) Rajesh served them with beer, biryani and egg fried rice. The witness stated that by the time he returned after CRL.A No. 2140 of 2016
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having his dinner, his colleague told him that the accused has gone out.
32. After giving the details about they noticing the dead body of the deceased in Room No.109 of their Lodge on the next day, as analysed above, this witness further stated that, few days afterwards, the complainant Police had summoned him to their Police Station and showing the accused, enquired him to identify him. He identified the accused as the one who had come with the lady to their Lodge showing his name as Ravi and booked the room. The witness stated that the Police told him that the correct name of the accused was Girish but not Ravi. He further stated that thereafter the Police brought the accused to their Lodge and at the enquiry by the Police, the accused shown them Room No.109 as the room occupied by himself and the deceased.
33. PW-27 - Smt. Geetha Krishna, the then Tahsildar of Mysuru Taluk in her evidence has stated that, at the request of the Investigating Officer in this matter, she conducted the Test Identification Parade on the date CRL.A No. 2140 of 2016
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20-01-2011 at the Mysuru Prison. Though she had sent summons to five persons, to appear and identify the accused, however, it was only K. Shivarama Shetty (PW-1), Dhananjaya (PW-4) and Rajesh (PW-3) who appeared. As per the procedure, the Test Identification Parade was conducted. In the said Identification Parade, all the three persons who were present i.e. PW-1, PW-3 and PW-4 identified the accused. In that regard, she had prepared a report of the Test Identification Parade (TIP), which she has identified in the Court at Ex.P-38. However, this witness herself could not able to identify the accused in the Court by giving the reason that since it was more than four to five years after she conducted the Identification Parade, as such, she could not identify the accused.
In her cross-examination, several details were asked regarding the conduct of Test Identification Parade and the procedure that was followed by her. The witness has given convincing reply to all those questions put to her. Thus the conduct of Test Identification Parade (TIP) by this CRL.A No. 2140 of 2016
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witness and PW-1, PW-3 and PW-4 identifying the accused in the said TIP stands established.
34. Even though PW-27 has stated that PW-1, PW-3, and PW-4 have identified the accused, however, PW-1 in his cross-examination has stated that the Police had shown the accused to him near their Police Station after the accused was apprehended by them. Therefore, before PW-1 could identify the accused in the Test Identification Parade (TIP), the accused was already shown to him by the Police.
35. PW-4 though in his evidence at one place has stated that the accused was shown to him by the Police in the Police Station before conducting the Test Identification Parade, however, in his cross-examination from the accused' side, a denial suggestion was made to him suggesting to the witness that the Police had not summoned him to the Police Station and shown the accused to him. The witness has not admitted the said suggestion as true.
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36. The evidence of PW-3 - Rajesh, as analysed above, would go to show that, he too has claimed that it was the accused and accused alone who had booked Room No.109 in their Lodge. He has identified the accused in the Court. According to PW-27, he (PW-3) has identified the accused even in the Test Identification Parade (TIP) also. Further, no where in his cross-examination, it was elicited that the accused was shown to him by the Police or by anybody after he claims to have seen the accused in his Lodge till he identified the accused in the Test Identification Parade. As such, the identification of the accused as the very same person who came to their Lodge identifying himself as 'Ravi' and occupying Room No.109 has been strongly stated by this witness, which finds no reason to disbelieve his evidence.
37. Our Hon'ble Apex Court in Udayakumar -vs- State of Tamil Nadu, reported in 2023 SCC OnLine SC 283, while dealing with the importance of Test Identification Parade, was pleased to observe that, holding an identification parade can arise only when the accused CRL.A No. 2140 of 2016
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are not previously shown to the witnesses. The whole idea of a Test Identification Parade is that the witnesses who claim to have seen the culprits at the time of the occurrence are to identify them from the midst of any other persons without any aid or any other source. It further observed that the identification parade does not hold much value when the accused is already shown to the witnesses.
In the very same case, the Hon'ble Apex Court referred to its previous judgment in Sk.Umar Ahmed Shaikh -vs- State of Maharashtra, reported in (1998) 5 SCC 103, wherein it was held at paragraph 8 as below :
"8......... But, the question arises : what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the identification parade in the police station. The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The CRL.A No. 2140 of 2016
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statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made the basis for recording conviction against the accused......"
38. About the allotment of Room No.109 to the accused and the deceased on the date 18-09-2010, the learned Amicus Curiae for the accused expressed his serious doubt stating that, since the said room was allotted to one Sri. Ansar and later to another customer, then how come the same room was allotted to the accused and the deceased on the same day in the evening.
In that connection, the attention of this Court was drawn to the arrival register maintained by the Lodge, which is marked as Ex.P-26.
39. PW-1 - K. Shivarama Shetty, the so-called owner of the Lodge has stated that, regarding the allotment and occupation of Room No.109 of Sri. Vigneshwara Lodge to the accused, an advance receipt (No.418) was issued which he has identified at Ex.P-3(a). The said document shows that a room bearing No.109 in Sri. Vigneshwara Palace Deluxe Lodge was given to one CRL.A No. 2140 of 2016
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Sri. Ravi on the date 18-09-2010 at 6:15 p.m., showing the number of occupants as two.
40. PW-4 - Dhananjaya, the Receptionist of the said Lodge in his cross-examination has stated that on the very same day, i.e. on the date 18-09-2010, the said Room No.109 was occupied by one regular customer by name Sri. Ansar, however, he vacated the said room by 5:45 p.m. While the said room was being cleaned, the present accused, identifying himself as 'Ravi Kupparalli' came to the Lodge requesting for a room, as such, the same room was given to him. This witness was confronted with another receipt bearing No.416 in the same Receipt Book, which is marked at Ex.P-3 and was asked whether the said room is shown to have been allotted in favour of one Sri. Ravi on the date 18-09-2010 at 3:20 p.m. The witness stated that the said room was allotted to another person whose name was also 'Ravi', however his signature in the said receipt (No.416) differs from that of the present accused' signature in Ex.P-3(a) with receipt No.418. The witness further stated that after Mr. Ansar CRL.A No. 2140 of 2016
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vacated the room and it was being cleaned, one more person by name 'Ravi' with two gents came to the Lodge asking for a room. As such, temporarily Room No.109 was given to them. However, they were shifted to another room opposite to Room No.109 at 5:00 p.m. Thus, PW-4 has made it clear that though Room No.109 is shown to have been possessed by three persons i.e. Sri. Ansar, Sri.Ravi and the present accused (Girish) who identified himself as Ravi S/o. Chowdaiah, however, the timing of occupation and the vacation of the room by the said three occupants are different. Further, Sl.No.10 of the arrival register of the Lodge at Ex.P-26 shows that the said Room No.109 was allotted in favour of one Sri.Ravi Nagamangala at 3:20 p.m. Against the same entry, under the column of date and time of departure, it is shown that the said Ravi Nagamangala has vacated the room on the same day at 4:35 p.m. In the same register at Sl.No.12, the entry shows that the very same room bearing No.109 on the same day i.e. on the date 18-09-2010 was allotted to one Sri. Ravi Kupparahalli S/o. Chowdaiah (the present CRL.A No. 2140 of 2016
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accused) at 6:15 p.m. The column regarding date and time of departure has been left blank. Therefore, the evidence of PW-4 stands corroborated by the documentary evidence at Ex.P-3(a) and Ex.P-26 and establishes that by the time Room No.109 was allotted to the accused, it was 6:15 p.m. and that the said room was vacant. As such, the argument of the learned Amicus Curiae that the said room was occupied by other persons also, as such, the accused occupying said room on the same day is doubtful, is not acceptable.
41. The last point of argument of the learned Amicus Curiae disputing the occupation of Room No.109 in the Lodge by the accused was that, the accused' signatures at Ex.P-26(c) and Ex.P-3(a) are shown as that of one Ravi, as such, it is not of the accused (Girish).
42. On the said point, learned High Court Government Pleader for the State submitted that, the analysis of the hand writing and the opinion of the expert was that the said signatures of the accused and the specimen hand writing of the accused tallies. CRL.A No. 2140 of 2016
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43. PW-20 (CW-30) Sri.M.B. Somesh, the Assistant Commissioner of Police in Finger Print Bureau at Mysuru in his evidence has stated that, at the request of the Investigating Officer in this case he has collected the beer bottle, two glass tumblers, one steel plate and one carton box, out of which, he developed/enlarged two chance prints and interchanging the place on plastic sheet took them to his office for its comparison with the stored finger prints, however, he could not get any matchings. On the other hand, the finger prints of the accused that were collected and sent to him tallied with the finger print of an accused in Crime No.69/2004 of Maddur Police Station, Mandya District, which was for the offences punishable under Sections 302 and 201 of the IPC. Thus, his evidence would go to show that the present accused was already an accused with the history of Crime No.69/2004 for the offences punishable under Sections 302 and 201 of the IPC.
44. Another witness whose evidence would be of some avail to arrive at a finding as to whether the accused CRL.A No. 2140 of 2016
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was the one who had occupied Room No.109 at Sri. Vigneshwara Lodge is PW-26 - Dr. Aravindan, the in- charge Scientific Officer at the Forensic Science Laboratory, Documents Section, Bengaluru. The said witness in his evidence has stated that, at the request of the Assistant Commissioner of Police, Mysuru, he has examined thirteen articles sent to him for comparison of the disputed handwriting with the specimen hand writing. He stated that the disputed hand writing was the handwriting of an entry at Ex.P-26(a) in the arrival register of Sri. Vigneshwara Lodge. In twelve other sheets, the specimen handwriting and the signature of Girish (accused) were sent to him. The witness has identified them at Ex.P-26(a)(2). Applying the scientific method and enlarging those handwritings, he made a scientific analysis and came to an opinion that the specimen hand writings and the signature and the disputed signatures are written by the same person. Stating so, he has identified his detailed report and got it marked at Ex.P-34.
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The witness was subjected to a very short cross- examination wherein nothing leading to disbelieve his opinion with respect to comparison of the hand writing could be elicited nor anything could be elicited doubting the credibility of the opinion of this witness, as stated by him in his examination-in-chief.
Thus, the evidence of PW-1, PW-3 and PW-4 and the scientific report at Ex.P-34 and the evidence of PW-26 clearly prove that, it was the accused and accused alone who had taken the deceased with him to Sri. Vigneshwara Lodge on the date 18-09-2010 in the evening at 6:15 p.m. and had occupied Room No.109. Thus, it was the accused and accused alone who was lastly seen in the company of the deceased immediately prior to her death.
45. Admittedly, the prosecution case is based on circumstantial evidence. The strongest circumstance on which the prosecution relies upon to prove the alleged guilt against the accused is the 'last seen theory'. It is the settled principle of law that in a proved criminal case which is based upon circumstantial evidence, the CRL.A No. 2140 of 2016
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prosecution is required to prove every link of the chain and completely prove the chain of circumstances which leads to show that it was the accused and accused alone who has committed the alleged offence.
(a) Our Hon'ble Apex Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 Supreme Court Cases 681 in paragraph 12 of its judgment was pleased to observe that the normal principle in a case based on circumstantial evidence is that, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.
CRL.A No. 2140 of 2016
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It is keeping the above principle in mind, the applicability of the 'last seen theory' to the case on hand is required to be analysed.
As analysed above, the prosecution could able to show that it was the accused and accused alone who was lastly seen in the company of the deceased prior to her death.
The argument of the learned High Court Government Pleader that, since it was the accused who was lastly seen in the company of the deceased immediately prior to her murder, the burden of proving the fact leading to the death of the deceased was especially within his knowledge. As such, under Section 106 of the Indian Evidence Act, 1872, it was for the accused to explain as to how the deceased died, in what manner and at whose act.
(b) In the case of Rajender Alias Rajesh Alias Raju Vs. State (NCT of Delhi) along with the connected matter reported in (2019) 10 Supreme Court cases 623, the Hon'ble Apex Court with respect to Section 106 of the CRL.A No. 2140 of 2016
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Indian Evidence Act, was pleased to observe that Section 106 of the Evidence Act 1872, provides that the burden of proof for any fact that is especially within the knowledge of a person lies upon such person. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the Court to be probable and satisfactory and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. It, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which are specially CRL.A No. 2140 of 2016
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within his/her knowledge and which cannot support any theory or hypothesis compatible with his/her innocence, the Court can consider his/her failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances.
(c) Our Hon'ble Apex Court in the case of Shivaji Chintappa Patil Vs. State of Maharashtra reported in (2021) 5 Supreme Court Cases 626 was pleased to observe that, Section 106 of the Evidence Act does not directly operate against either a husband or a wife staying under the same roof and being last person seen with the deceased. Section 106 does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that question arises of considering the facts of which burden of proof would lie upon the accused.
(d) In Trimukh Maroti Kirkan's case (supra) with respect to the 'last seen theory', more particularly, with CRL.A No. 2140 of 2016
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respect to an offence like murder which is committed in secrecy inside a house, the Hon'ble Apex Court in paragraph 15 of its judgment has observed that, where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
In paragraph 21 of the very same judgment, the Hon'ble Apex Court has observed that, in a case based on CRL.A No. 2140 of 2016
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circumstantial evidence where no eye witnesses' account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.
Further in the very same judgment in paragraph 22, the Hon'ble Apex Court was also pleased to observe that, where the accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. CRL.A No. 2140 of 2016
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(e) In the case of NIZAM AND ANOTHER Vs. STATE OF RAJASTHAN reported in (2016) 1 Supreme Court cases 550 with respect to 'last seen theory', the Hon'ble Apex Court was pleased to observe in paragraph-14 of its judgment as below:
"14. The Courts below convicted the appellants on the evidence of PWs 1 and 2 that the deceased was last seen alive with the appellants on 23-1-2001. Undoubtedly, the "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen."
(f) Referring to several of its previous judgments on the 'last seen theory', the Hon'ble Apex Court in the case of Jabir and others Vs. State of Uttarakhand reported in CRL.A No. 2140 of 2016
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2023 SCC OnLine SC 32 was pleased to observe in paragraph 28 of its judgment that, it has been repeatedly emphasised by the Court that the "last seen" doctrine has limited application, where the time lag between the time the deceased was seen last with the accused, and the time of murder, is narrow; furthermore, the court should not convict an accused only on the basis of the "last seen"
circumstance.
46. In the instant case, by virtue of the analysis made above, it is proved by the prosecution that it was the accused and accused alone who had taken the deceased along with him and occupied Room No.109 in Sri. Vigneshwara Lodge at Mysuru, on the date 18-09-2010.
47. According to PW-4 - the receptionist of Sri. Vigneshwara Lodge, till he left for his home in the night, the accused and the deceased were in Room No.109 of their Lodge as its occupants. PW-4 has stated that he had instructed his successor at the reception counter before leaving the Lodge that the occupants of Room CRL.A No. 2140 of 2016
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No.109 were required to vacate the room on the next day morning at 5 O'clock, as such, the said room was to be given to other occupants, if any, only after 5:00 a.m. on the next day.
48. PW-3 - Rajesh - the room boy in the said Lodge has stated that the accused and the deceased after occupying Room No.109 in their Lodge, had ordered for food and drinks to be served to their room. Accordingly, he served them with two chicken fried rice and one King Fisher beer. It is nobody's evidence including PW-1, PW-3 and PW-4 that after serving food and drinks to the accused and the deceased to their room, either the accused or the deceased had come out from their room as noticed by them, or any other person entering the said room, till they got the door of the said room opened in the presence of the Police with the help of a duplicate key possessed by the Lodge authorities and noticing the dead body of the deceased inside the room. Therefore, the evidence of PW-1, PW-3 and PW-4 leads to one and only inference that it was the accused and accused alone who CRL.A No. 2140 of 2016
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was in the company of the deceased in that room after it was occupied on the date 18-09-2010 at 6:15 p.m. till the accused left that room without notice to any one, including the staff in the Lodge. Therefore, it stands proved that it was the accused and accused alone who was lastly found in the company of the deceased just prior to her death.
49. According to PW-3, the time at which he served the food to the accused and the deceased in the room was between 7:30 p.m. and 8:15 p.m on the date 18-09-2010. According to PW-4, when he came back to his duty on the next day morning i.e. on the date 19-09-2010, he went to Room No.109 at 7 O'clock in the morning and rang the calling bell, however, he did not get any response.
50. PW-1 came to the Lodge on that day (i.e. on 19-09-2010) at 9:00 a.m., to whom PW-4 stated about the non-response from Room No.109 and once again an attempt was made to get the response from Room No.109 at 10.00 a.m. on the date 19-09-2010 by PW-4 in the presence of PW-1. The details of this has come out in the evidence of PW-4. Thus, the evidence of PW-1, PW-3 and CRL.A No. 2140 of 2016
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PW-4 which has come in uniformity when read in its entirety, would go to show that it was the accused and accused alone who was in that room with the company of the deceased after the said room was occupied by them in the evening on the date 18-09-2010. The proximity of time after the room-boy served the food and seen the accused and the deceased lastly which was at 8:15 p.m. on the date 18-09-2010 till 7:00 a.m. on the next day morning i.e. 19-09-2010, when PW-4 noticed that the door of Room No.109 was not opened despite ringing the calling bell, is of a close proximity and in the absence of evidence to suspect the entry of any other person to the said room in the night and in the absence of at least a suggestion made to any of the witnesses among PW-1, PW-3 and PW-4 from the accused' side, it has to be necessarily taken that there was no entry of any other person to Room No.109 on that intervening night of 18-09-2010 and 19-09-2010. Since the offence has taken place in secrecy inside the closed room, the prosecution has discharged its initial burden that it was the accused and accused alone CRL.A No. 2140 of 2016
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who was lastly found in the company of the deceased and removing the possibility of any doubt in the case of the prosecution about any other person than the accused entering Room No.109 in the Lodge, after the accused and the deceased were served with food by PW-3, the room-boy. Therefore, as observed in Trimukh Maroti Kirkan's case (supra), the inmates of the room cannot get away simply by keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer any explanation.
51. The accused, except making a denial suggestion has not attempted to give any explanation at least in the form of suggestions made to any of the prosecution witnesses including PW-1, PW-3, PW-4 and in the cross- examination of the Investigating Officer. In his statement recorded under Section 313 of the Cr.P.C., except stating that the incriminating statements made by the prosecution witnesses against him which were read over to him and explained, as not true, the accused has not at all given CRL.A No. 2140 of 2016
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any explanation as to what happened after he was lastly seen in the company of the deceased by PW-3 - room-boy, while serving food on the night of 18-09-2010. Neither the accused entered the witness-box and got himself examined as a witness nor he examined any one as the witness on his behalf nor even produced any documents from his side. He has only got marked exhibits D-1 to D-3 which were the portions of the statements of some of the prosecution witnesses and a portion in the arrival register at Ex.P-26. However, none of those exhibits in 'D' series would come to the rescue/aid of the accused and in no manner would diminish the evidentiary value led by the prosecution. Therefore, the 'last seen theory' established by the prosecution, though by itself cannot be a conclusive proof, but usually would act as providing an essential link in completing the chain of circumstantial evidence placed by the prosecution.
52. In completing the chain of circumstantial evidence, the prosecution has relied upon the alleged CRL.A No. 2140 of 2016
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recovery said to have been made at the instance of the accused.
53. According to the prosecution, a pair of gold ear studs (MO-1), a cellphone (mobile handset) (MO-4) belonging to the deceased and a room key (MO-12) were recovered at the instance of the accused.
Learned High Court Government Pleader in his brief argument only submitted that the said recovery further strengthens the case of the prosecution, however, he did not submit as to how the said recovery has stood proved by the prosecution.
54. On the other hand, learned Amicus Curiae for the respondent (accused) in his argument submitted that the recovery of a pair of ear stud at MO-1 was doubtful since as per the evidence of PW-2 and PW-22 MO-1 and MO-2 were found on the dead body. Therefore, the question of recovery of MO-1 at the instance of accused does not arise.
Apart from expressing his doubt about the correctness of the evidence with respect to the arrest of CRL.A No. 2140 of 2016
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the accused on the date 20-10-2010, the learned Amicus Curiae also expressed his doubt about the alleged recovery of the cellphone from the possession of the accused.
55. PW-24 (CW-35) - Hirannayya, the then Police Constable of the complainant Police Station has in his evidence stated that, on the date 20-10-2010, based on an information that the suspected accused in this case was available near an underpass at the City Railway Station, Bengaluru, his Inspector (CW-37/PW-25) accompanied by himself, two constables and panchas by name Narendra Jain and Pradeep Kumar went to the place mentioned in the information and apprehended the accused. On enquiry by them, the accused disclosed his name as Girish, Son of Chowdaiah, resident of Kommerahalli village, Mandya Taluk. He was subjected to physical search where the accused was found possessing a mobile set (cellphone) of the deceased victim and a receipt showing the pledging of a pair of ear stud. The same were seized from the accused by drawing a panchanama as per Ex.P-10. The witness has identified the accused in the Court as the one CRL.A No. 2140 of 2016
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from whose possession the cellphone and the Pawn Shop chit were recovered.
56. PW-25 (CW-37)- T.B. Rajanna - the Investigating Officer has also stated that based upon an information given by their informants on the date 20-10-2010, he came to know that the accused was available in Majestic area of Bengaluru, as such, on the same day, in the morning in a private Quallis Car accompanied by his staff and panchas, i.e. Narendra Jain and Pradeep Kumar, they went to Majestic area at Bengaluru and traced the accused near the footpath of the KSRTC Bus Stand underpass. He apprehended the accused and subjected him to physical search. In the said process, they noticed the accused keeping a Nokia make mobile cellphone and a pawn broker slip in his pocket. Seizing the same, a seizure panchanama as per Ex.P-10 was prepared. He also stated that the accused revealed that the said cellphone was belonging to the deceased and the pawn slip was about the pledging of the golden ornaments belonging to the deceased with a Pawn Broker CRL.A No. 2140 of 2016
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by name M/s.Sadhana Bankers at Mandya. The witness stating that he subjected those articles to Property Form (PF), has identified the Property Form at Ex.P-30. He also stated that the accused gave his voluntary statement wherein he stated that in case if he is accompanied he would show the place where he has thrown the keys of the Lodges and also show the Pawn broker, the place and also the person who had given him the mobile set. The relevant portion of the alleged voluntary statement of the accused was marked at Ex.P-31(a). The witness further stated that on the same day between 4:00 p.m. and 4:45 p.m., the accused took out a room key from a public toilet situated on the backside of KSRTC Bus Stand at Mysuru.
A mahazar as per Ex.P-9 was drawn and the said key was seized which was later subjected to Property Form under Ex.P-32. The witness has also stated that on the date 21-10-2010, after obtaining the accused to the Police custody through the Court, he sent the accused with proper escort for his medical examination about his fitness CRL.A No. 2140 of 2016
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to have sexual intercourse. Thereafter, he received a report from the Doctor as per Ex.P-17.
PW-25 - the Investigating Officer further stated that, on the date 25-10-2010, they visited M/s. Sadhana Bankers, a Pawn Broker Shop at Mandya, from there, a type of golden cutting stud gundugalu (a type of ear stud) and a Book containing carbon copies of Sadhana Bankers chits were seized by drawing a panchanama as per Ex.P-8 in the presence of panchas. Stating that he has subjected the seized items to Property Form, he has identified the Property Form at Ex.P-33.
57. PW-4 - Dhananjaya - the Receiptionist in his evidence has also stated that, after the incident, one day, the Police had brought the accused to their Lodge and it was in his (PW-4's) presence, the accused showed Room No.109 stating that it was in the said place he had committed the alleged crime. He also stated that apart from the same, the accused stated that he has committed murder at three more other places. Accordingly, the accused was accompanied by the Police Inspector CRL.A No. 2140 of 2016
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(PW-25), himself and the Car driver to a Lodge called 'Priyadarshini Lodge' at Madduru. There, showing Room No.107 in the first floor, the accused stated that he had committed murder of another lady in the said room. In that regard, the Police drew a mahazar as per Ex.P-5.
PW-4 further stated that the accused also took them to a Jewellery Shop called M/s. Sadhana Bankers where with respect to the accused pledging the gold, a Receipt Book and a pair of golden ear studs were seized by the Police. In that regard, a panchanama was drawn as per Ex.P-8. Apart from identifying the said panchanama, the witness has identified the Receipt Book at Ex.P-6. In his further chief-examination, PW-4 has identified a pair of ear studs at MO-1 as the ear studs recovered at the instance of the accused.
In his cross-examination on the point of the alleged recovery of MO-1 at the instance of the accused, except making a denial suggestion, nothing more could be elicited from him. However, it was not denied in his cross- CRL.A No. 2140 of 2016
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examination that a pair of ear stud at MO-1 was belonging to the deceased.
58. PW-5 (CW-11) Seenu, Cashier of a Bar has stated that, one day, he saw a gathering in front of a bath room located behind the suburban Bus Stand at Mysuru. Out of curiosity, when he went there, he noticed a person (accused) holding a key and a key bunch and showing it to the Police. Identifying the accused in the Court, the witness stated that the accused gave those items to the Police in which regard the Police made a writing and obtained his signature. Accordingly, he signed to that writing. Stating so, the witness has identified the key and key bunch at MO-12 and the seizure panchanama at Ex.P-9.
In his cross-examination from the accused' side, he gave more details as to the seizure of MO-12 in his presence under a panchanama at Ex.P-9. He denied that the panchanama was prepared in the Police Station and his signature was obtained in front of the Police Station. Therefore, the evidence of PW-5 inspires confidence to CRL.A No. 2140 of 2016
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believe about the recovery of key and a key bunch at the instance of the accused. Ex.P-9 reveals that the said key was the key of Room No.109 of the Lodge where the dead body of the deceased was found.
59. PW-6 (CW-9) Narendra Jain and PW-9(CW-10) - Pradeep Kumar stated that, they were present while the Police drew the seizure panchanama at Ex.P-10 on the date 20-10-2010 in the Majestic area at Bengaluru. Both of them stated that, under the said panchanama, a mobile cellphone set and a Pawn Broker's slip were seized from the possession of the accused. Stating so, both of them have identified the said cellphone at MO-4 and the panchanama of the Pawn Brokers slip at Ex-P-6. They have identified the accused also in the Court stating that it was from his possession, those two items were seized by the Police.
Both these witnesses were subjected to a detailed cross-examination from the accused' side. They have given the details as to how they travelled from Mysuru to Bengaluru, at what time they left Mysuru and at what time CRL.A No. 2140 of 2016
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they reached Bengaluru. However, in between the evidence of PW-6 and PW-9, there is some discrepancy as to the mode of conveyance from Mysuru to Bengaluru. While PW-6 has stated that he went along with the Police Inspector in their Jeep from Mysuru to Bengaluru on the date 20-10-2010, however, PW-9 has stated that, they went by train. As observed above, PW-25 has stated that they went in a Quallis Car.
60. The learned Amicus Curiae for the respondent (accused) in his argument highlighted the said aspect stating that there is discrepancy in the evidence of these witnesses (i.e. PW-6, PW-9 and PW-25) regarding the mode of their conveyance from Mysuru to Bengaluru, as such, their evidences are not believable.
61. A careful perusal of the evidence of PW-6, PW-9 and PW-24 and PW-25 would go to show that the alleged discrepancy in the mode of conveyance as to whether the motor vehicle Quallis is a Jeep or a Car is too minor an aspect and would not affect the case of the prosecution CRL.A No. 2140 of 2016
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much regarding the alleged journey of PW-6, PW-9 and PW-25 from Mysuru to Bengaluru on the date 20-10-2010.
62. The learned Amicus Curiae for the respondent (accused) in his argument submitted that, when according to prosecution, a cellphone was recovered from Room No.109 at the time of inquest panchanama, it is not believable that the very same cellphone was recovered from the possession of the accused thereafter.
63. A perusal of the evidence of PW-2 the pancha for the inquest panchanama shows that the witness has stated that, in Room No.109 of Sri. Vigneshwara Lodge, he noticed several of the articles including scratch card, slippers, drinks pouch packet, condoms, few cloths, and a mobile. The deceased was found wearing a nose stud, bangles, toe rings and they were seized in his presence, by drawing a panchanama, which, this witness has identified at Ex.P-4.
64. Ex.P-4 is the inquest panchanama drawn in connection with the dead body of the deceased. Though it CRL.A No. 2140 of 2016
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mentions about the details of the cloths worn by the deceased and the ornaments and other articles like few dress materials, inner garments, slippers, empty beer glasses, brandy pouch packet, airtel recharge card, used and unused condoms, however, it does not mention about the presence of cellphone in Room No.109. There is no mention about the cellphone (mobile hand set) in Ex.P-4. As such, the evidence of PW-2 with respect to the mentioning of a cellphone (mobile hand set) at MO-4 in his evidence is an improvement. The said improvement since has not been considered as an improvement from the accused' side, on the other hand, drawing of the panchanama as per Ex.P-4 and recovery of every article narrated by the witness was denied in his cross- examination, the said variation about the presence and seizure of the mobile from Room No.109 is too minor to affect the case of the prosecution. For that matter, PW-25 the Investigating Officer also in his evidence though has stated about all other articles shown in Ex.P-4 as the articles that were found in Room No.109 of the Lodge and CRL.A No. 2140 of 2016
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stated that a mention about the same is made in the panchanama at Ex.P-4, however, has not stated about the presence of the mobile phone in the said room. As such also, a single word in the evidence of PW-2 about the cell phone [mobile hand set (MO-4)] need not be given due weightage to suspect the drawing of inquest panchanama and seizure of articles that were shown in Ex.P-4. Thus, the argument of the learned Amicus Curiae for the respondent (accused) expressing his doubt about the alleged duplicacy of the cellphone in the matter would not affect the case of the prosecution and would not enure to his benefit.
65. The remaining article, which, according to the prosecution, was said to have been recovered at the instance of the accused is a pair of golden ear stud. As observed above, PW-6 and PW-9 have stated that the said golden articles were seized at the instance of the accused from M/s. Sadhana Bankers. It was based upon a Pawn Broker's slip at Ex.P-6 found in the possession of the accused when he was arrested by the Police on the date CRL.A No. 2140 of 2016
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20-10-2010, the said recovery of the ear studs at MO-1 is said to have been made.
66. PW-6 and PW-9 have stated about they being panchas for the seizure of MO-1 from the Shop - M/s. Sadhana Bankers. Even PW-4 also has stated that, he too was present when a Receipt Book and a pair of ear studs were seized from M/s. Sadhana Bankers.
67. PW-7 (CW-15) - Jagadeesh Bohara - the owner of M/s. Sadhana Bankers in his evidence has stated that, the Police have seized the Pawn Ticket Book (Receipt Book) at Ex.P-7 and a pair of cutting ear stud at MO-1 from his Shop by drawing a panchanama as per Ex.P-8. He has stated that the said ear studs were pledged on the date 20-09-2010, in which regard, a receipt/pawn ticket as per Ex.P-6 was issued from his Shop. Though he did not identify the accused in the Court, however, gave the reason that, the accused may be the one who had pledged the said articles, however, he could not remember the same. Thus, this witness did not specifically deny that it CRL.A No. 2140 of 2016
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was not the accused who had pledged the golden articles at MO-1 in his Shop.
68. PW-12 (CW-23) - Sathish Gupta stated that, at the request of the complainant Police, he weighed and tested a pair of silver toe rings, two golden nose studs, a pair of pilli (ornament to the toe) finger ring made of panchaloha and a golden nose ring. Except two nose studs, the witness has identified all other articles under MO-2. He further stated that the two nose studs can also be put to ears. Thus, he identified those two nose studs also among the articles at MO-2. He has identified his report given to the Police in that regard at Ex.P-14. This witness was not cross-examined from the accused' side. Thus, the evidence of this witness that the articles at MO-2 were valuable articles involving silver and golden articles remains un-denied and un-disputed. This would go to show that the deceased was wearing some valuables upon her at the time of her death. The identification of MO-1, a pair of ear stud showing it as the ear stud worn by the deceased when she occupied Room No.109 along with the CRL.A No. 2140 of 2016
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accused has not been specifically denied from the accused' side. Thus it stands established that the articles at MO-1 were belonging to the deceased. Consequently, the recovery of MO-1 at the instance of the accused also stands established.
69. Learned Amicus Curiae for the respondent (accused) in his argument expressed a doubt that, when one pair of ear stud shown to have been found on the dead body has been seized by the Police, then, how come another pair of golden ear stud be worn by the deceased.
70. In response to the said doubt expressed by the learned Amicus Curiae, learned High Court Government Pleader for the appellant - State submitted that, a pair of golden ear stud at MO-1 are the regular ear studs and one more set of ear studs mentioned in the description are shown as small ear studs and several of the ladies wear the small ear studs above the regular ear studs as they add more attraction and beauty.
CRL.A No. 2140 of 2016
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71. A reading of the inquest panchanama at Ex.P-4 shows that, the deceased was wearing a pair of bugadi (a kind of small ear stud) above the ear studs on her ears. In this region, it is not uncommon that several of the ladies wear two pairs of ear studs, one as the main ear stud on the lobule of the ears and a small ear stud above the lobule which in the local Kannada language called as 'bugadi'. Therefore, the doubt expressed by the learned Amicus Curiae for the respondent (accused) that how come a woman wear two pairs of ear stud at a time finds answer as above. Thus, the evidence of PW-4, PW-6, PW-9, PW-7 and PW-25 clearly proves that the recovery of a pair of ear stud was made at the instance of the accused.
72. The motive attributed by the prosecution is that the accused wanted to make a gain of his company with the deceased in the Lodge, as such, he murdered the deceased and took away the valuables including the golden ear studs belonging to the deceased. None of the witnesses have specifically and categorically stated about CRL.A No. 2140 of 2016
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the motive behind the alleged crime. However, the narration of the events as detailed by the witnesses, more particularly, the evidence which has established that the accused had taken the deceased along with him to Room No.109 of Sri. Vigneshwara Lodge and stayed with her on the night of 18-09-2010 and recovery of the cellphone and ear studs at MO-1 belonging to the deceased at the instance of the accused would go to show that the accused, after taking the deceased who was a sex worker to the said Lodge, probably after accomplishment of his lust, if any, from the deceased, has caused her death by strangulating her and robbed the golden articles at MO-1 and cellphone belonging to the deceased. Thus in the absence of any direct evidence regarding motive, the evidence led by the prosecution witnesses through various witnesses, a clear motive can be inferred for the act of the accused. Therefore, it stands proved that it was the accused and accused alone who has caused the murder of the deceased.
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73. However, the Sessions Judge's Court did not appreciate the evidence placed by the prosecution in this regard, in its proper perspective. It suspected the duplication of the cellphone, the ear studs and also arrest of the accused and thus came to a conclusion that the prosecution could not able to prove the guilt of the accused regarding the offence punishable under Section 302 of the IPC beyond doubt.
74. Since the above reasoning clearly establishes that it was the accused and accused alone who has caused the death of the deceased and robbed the golden articles and the cellphone belonging to her, it has to be held that the prosecution has proved the guilt against the accused for the offences punishable under Sections 302 and 397 of the IPC.
75. According to the prosecution, the accused has committed rape upon the deceased before committing her murder.
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76. Learned High Court Government Pleader for the appellant -State fairly conceded that there is no evidence to prove the alleged guilt of rape. Admittedly, except PW-19 - Dr. Kumar, who conduced post-mortem examination on the body of the deceased, no other prosecution witnesses have whispered about the accused committing rape upon the deceased. Even though PW-19 the Doctor has stated that the deceased was subjected to forcible sex and the evidence of PW-15 (Dr. Chandrashekar T.N.) who has examined the accused shows that the accused was capable of having sexual intercourse, by that itself, it cannot be held that the accused has committed rape upon the deceased. It is also for the reason that, even according to the prosecution, the deceased was a sex worker which has been established in the evidence of PW-8 also.
77. According to the prosecution, the accused took the deceased to the Lodge as a customer of the deceased. Thus, she had accompanied the accused treating him as her customer. Further, the evidence of PW-19 also does CRL.A No. 2140 of 2016
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not say as to how long prior to her death, the deceased was subjected to forcible sex. Under such circumstances, merely because the deceased was said to be a sex worker, it is not safe to conclude that the accused had subjected her to rape prior to committing her murder. Thus, the prosecution though was able to establish the guilt against the accused for the offences punishable under Sections 302 and 397 of the IPC as against the accused, however, it has failed to prove the guilt for the offence punishable under Section 376 of the IPC as against the accused.
In the said process, the Sessions Judge's Court might not have considered the principle laid down by the Hon'ble Apex Court in Trimukh Maroti Kirkan's case (supra) that a judge does not preside over a criminal trial merely to see that no innocent man is punished. The judge also presides to see that a guilty man does not escape or left scot-free. Both are public duties.
78. In the instant case, the Sessions Judge's Court had a duty to ensure that a guilty person would not escape from the clutches of law. From the detailed analysis of CRL.A No. 2140 of 2016
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the evidence made above, since it is proved beyond reasonable doubt that, it is the accused and accused alone who has caused the murder of the deceased and the prosecution could prove the completion of the chain without de-linking any of the links, the accused is necessarily to be held guilty for the offences punishable under Sections 302 and 397 of the IPC, as such, the impugned judgment warrants interference in it only to that extent.
79. Since the Sessions Judge's Court has acquitted the accused of all the offences punishable under Sections 302, 376 and 397 of the IPC, the impugned judgment passed by the said Court warrants interference at the hands of this Court.
Accordingly, we proceed to pass the following:
ORDER [i] The present Criminal Appeal No.2140/2016 stands allowed in-part; CRL.A No. 2140 of 2016
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[ii] The impugned judgment in Sessions Case No.90/2011 dated 25-04-2016 passed by the learned VII Additional Sessions Judge, Mysuru, insofar as it relates to acquitting the accused of the offences punishable under Sections 302 and 397 of the Indian Penal Code, 1860, stands set aside;
However, the impugned judgment in Sessions Case No.90/2011 dated 25-04-2016 passed by the learned VII Additional Sessions Judge, Mysuru, insofar as it relates to acquitting the accused of the offence punishable under Section 376 of the Indian Penal Code, 1860, stands confirmed;
[iii] The Accused - Sri. K.C. Girisha, S/o.
Chowdaiah, Aged about 31 years, Komeerahalli, Mandya Taluk and District- 571401, is convicted for the offences
punishable under Sections 302 and 397 of the Indian Penal Code, 1860;CRL.A No. 2140 of 2016
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To hear on sentence, the matter is passed over.
Sd/-
JUDGE Sd/-
JUDGE BMV* CRL.A No. 2140 of 2016
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HEARING ON SENTENCE
80. Immediately after the pronouncement of the judgment, as desired by both side, heard both side on sentence.
81. Learned Amicus Curiae for the respondent (accused) submitted that, since the accused appears to be a family holder with greater responsibility and till date was enjoying the benefit of judgment of acquittal, most lenient view may be taken in ordering the sentence.
82. Per contra, learned High Court Government Pleader for the appellant -State submitted that, the accused is a habitual offender and is involved in criminal cases involving murder of couple of other women victims also. Hence, the maximum punishment prescribed for the proven guilt be ordered against the accused.
83. It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake. CRL.A No. 2140 of 2016
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84. Though the prosecution contends that the accused is involved in similar type of offences/crimes, however, the prosecution has not placed any material in that regard. By the mere submission of the prosecution that the accused is involved in similar offences cannot be taken that the accused is a convict in those cases. Even though the accused is proved to be guilty for committing the murder of a woman and robbing the valuable articles worn by her, however, the manner of commissioning of the murder and the facts and circumstances of the case would not make it rarest of rare cases attracting the capital punishment.
85. As such, considering the above principle of the sentencing policy, the facts and circumstances of the case on hand and also the alleged mitigating factors, we proceed to pass the following:
ORDER ON SENTENCE [a] The accused - Sri. K.C. Girisha, S/o. Chowdaiah, Aged about 31 years, Komeerahalli, CRL.A No. 2140 of 2016
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Mandya Taluk and District-571401, is sentenced to undergo imprisonment for life and also to pay a fine of a sum of `30,000/- (Rupees Thirty Thousand Only) and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months, for the offence punishable under Section 302 of the Indian Penal Code, 1860;
[b] The accused - Sri. K.C. Girisha, S/o. Chowdaiah, Aged about 31 years, Komeerahalli, Mandya Taluk and District-571401, is further sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of a sum of `10,000/- (Rupees Ten Thousand Only), in default of payment of fine, to further undergo rigorous imprisonment for a period of two months, for the offence punishable under Section 397 of the Indian Penal Code, 1860;
[c] All the sentences shall run concurrently; CRL.A No. 2140 of 2016
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[d] The accused is entitled for the benefit of set-off for the period, if any, undergone by him in judicial custody in the matter, under Section 428 of the Code of Criminal Procedure, 1973;
[ [e] Out of the total fine amount, if any, deposited by the accused, a sum of `35,000/- be paid to the child of the deceased victim, after identifying her necessary details by the District Legal Services Authority, Mysuru and the Sessions Judge's Court, jointly. The remaining sum of `5,000/- be paid to the State.
[f] The accused shall surrender before the learned Sessions Judge's Court within forty five (45) days from today and serve the sentences as ordered above by this Court.
[g] A free copy of this judgment be furnished to the accused immediately by the Registry.
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The Court, while acknowledging the services rendered by the learned Amicus Curiae - Sri. N.S. Sampangiramaiah, for the respondent (accused), recommends an honorarium of a sum of not less than `6,000/- payable to him by the Registry.
Registry to transmit a copy of this judgment along with Sessions Judge's Court's records to the concerned Sessions Judge's Court immediately, for doing needful in the matter.
Sd/-
JUDGE Sd/-
JUDGE BMV*