Karnataka High Court
Iv-Addl. District And Sessions Judge vs Mohan Kumar @ Shashidhara Poojary @ on 15 November, 2017
Bench: Ravi Malimath, John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 15TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REFERRED CASE NO.3 OF 2014
C/W
CRIMINAL APPEAL NO.177 OF 2015
CRIMINAL REFERRED CASE NO.3 OF 2014:
BETWEEN:
IV-ADDL. DISTRICT & SESSIONS JUDGE
DAKSHINA KANNADA DISTRICT,
MANGALURU. ... PETITIONER
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
AND:
SRI MOHAN KUMAR @ SHASHIDARA POOJARY @
SUNDARA RAI
S/O LATE MAILAPPA MUGERA,
AGED ABOUT 50 YEARS,
R/AT BEHIND KANYANA JUNIOR COLLEGE,
KANYANA VILLAGE, BANTWAL TALUK,
PRESENTLY R/AT BARAKE MANE,
BELMA VILLAGE, DERALAKATTE,
MANGALURU TALUK. ... RESPONDENT
(PARTY-IN-PERSON)
2
THIS CRIMINAL REFERRED CASE IS FILED UNDER
SECTION 366(1) OF CR.P.C. FOR CONFIRMATION OF
DEATH SENTENCE AWARDED TO SHRI MOHAN KUMAR @
SHASHIDHARA POOJARY @ SUNDARA RAI S/O LATE
MAILAPPA MUGERA, AGED ABOUT 47 YEARS, R/AT
BEHIND KANYANA JUNIOR COLLEGE, KANYANA VILLAGE,
BANTWAL TALUK, PRESENTLY RESIDING AT BARAKE
MANE, BELMA VILLAGE, DERALAKATTE, MANGALURU
TALUK, BY THE JUDGMENT AND ORDER 21.12.2013
PASSED IN S.C.NO.32 OF 2010 ON THE FILE OF THE IV-
ADDITIONAL SESSIONS JUDGE, DAKSHINA KANNADA
DISTRICT, MANGALURU, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC.
*****
CRIMINAL APPEAL NO.177 OF 2015:
BETWEEN:
SRI MOHAN KUMAR @ SHASHIDHAR POOJARY
@ SUNDARA RAI
AGED ABOUT 55 YEARS,
S/O LATE MAILAPPA MUGERA,
RESIDING AT BEHIND KANYANA JUNIOR COLLEGE,
KANYANA VILLAGE, BANTWAL TALUK - 574 153.
...APPELLANT
(PARTY-IN-PERSON)
AND:
STATE OF KARNATAKA
BY THE DEPUTY SUPERINTENDENT OF POLICE
(B & B) SQUAD, C.O.D., BENGALURU
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, BENGALURU - 560 001.
...RESPONDENT
3
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO SET ASIDE THE ORDER
DATED 18.12.2013, PASSED BY THE IV ADDL.DISTRICT
AND SESSIONS JUDGE, DAKSHINA KANNADA DISTRICT,
MANGALURU, IN S.C.NO.32 OF 2010 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 366, 376, 328, 392, 394, 417, 302, 201
OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO R.I. FOR 5 YEARS AND TO PAY FINE OF
RS.5,000/- AND IN DEFAULT TO PAY THE FINE AMOUNT,
TO UNDERGO SI FOR 1 YEAR, FOR THE OFFENCES
PUNISHABLE UNDER SECTION 366 OF IPC. FURTHER, THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 8 YEARS AND TO PAY
FINE OF RS.5,000/- AND IN DEFAULT TO PAY THE FINE
AMOUNT, TO UNDERGO SI FOR 1 YEAR, FOR THE
OFFENCES PUNISHABLE UNDER SECTION 376 OF IPC.
FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO DEATH PENALTY BY HANGING HIM TILL HIS
DEATH AND FINE OF RS.5,000/- AND DEATH PENALTY IS
SUBJECT TO CONFIRMATION FROM THE HON'BLE HIGH
COURT OF KARNATAKA, FOR THE OFFENCES PUNISHABLE
UNDER SECTION 302 OF IPC. FURTHER, THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 5 YEARS AND TO PAY
FINE OF RS.5,000/- AND IN DEFAULT TO PAY THE FINE
AMOUNT, TO UNDERGO SI FOR 1 YEAR, FOR THE
OFFENCES PUNISHABLE UNDER SECTION 392 OF IPC.
FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR 10 YEARS AND
TO PAY FINE OF RS.10,000/- AND IN DEFAULT TO PAY THE
FINE AMOUNT, TO UNDERGO SIMPLE IMPRISONMENT FOR
2 YEARS, FOR THE OFFENCES PUNISHABLE UNDER
SECTION 394 OF IPC. FURTHER, THE
4
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 3 YEARS AND TO PAY
FINE OF RS.10,000/- AND IN DEFAULT TO PAY THE FINE
AMOUNT, TO UNDERGO SIMPLE IMPRISONMENT FOR 6
MONTHS, FOR THE OFFENCES PUNISHABLE UNDER
SECTION 328 OF IPC. FURTHER, THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR SIX MONTHS FOR THE
OFFENCES PUNISHABLE UNDER SECTION 417 OF IPC.
SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT
FOR 3 YEARS AND TO PAY FINE OF RS.3,000/- AND IN
DEFAULT TO PAY THE FINE AMOUNT, TO UNDERGO
SIMPLE IMPRISONMENT FOR 6 MONTHS, FOR THE
OFFENCES PUNISHABLE UNDER SECTION 201 OF IPC. ALL
SENTENCES SHALL RUN CONCURRENTLY AND THE
APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
****
THIS CRIMINAL REFERRED CASE C/W CRIMINAL
APPEAL COMING ON FOR HEARING THIS DAY, JOHN
MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
JUDGMENT
This criminal appeal and the criminal referred case are arising out of the judgment dated 18.12.2013, passed by the 4th Additional District and Sessions Judge, D.K. Mangaluru in Sessions Case No.32 of 2010, wherein the appellant (hereinafter referred to as 'Accused') has been convicted for the offences punishable under Sections-366, 376, 328, 392, 394, 417, 302 and 201 of IPC. He is 5 sentenced to death for the offence punishable under Section - 302 of IPC and for various terms of imprisonment and fine for other offences. The learned Sessions Judge has made a reference for confirmation of the death sentence as per Section-366 of Cr.P.C.
2. The case of the prosecution as unfolded during trial is as follows:
The deceased Kumari.Sunanda, aged 30 years was a resident of Vaipala Mane, Peravaje Village, Sullia Taluk, Dakshina Kannada District. She was rolling beedies. She was also a member of Women Self-Help Group. In the month of January 2008, during a political Rally, she came in acquaintance with the accused. The accused whose real name is Mohan Kumar, introduced himself to her as Shashidhar. He proposed to marry her. As the deceased was spinster, she agreed for the proposal. Her mother also consented for the same. However, the accused insisted that in order to ward off any hindrance in their future marriage, as has been advised by an astrologer, she 6 had to perform a pooja at Malla Temple at Kasargod. Accordingly, as pre-decided by them, on 11.02.2008 in the morning, the deceased left the house wearing gold ornaments and taking necessary clothes. She told her mother that after performing the pooja, she will return home. But in the evening at about 6.30 p.m., the mother of the deceased received a phone call from the deceased stating that the pooja could not be performed and therefore she would return home only on the following day. At about 8.30 p.m., the cousin sister of the deceased namely, PW-7 Kumari.Harini received a phone call from Mysuru Police Station informing her that they got her number from the mobile phone of a lady who was found collapsed in the KSRTC Bus Stand at Mysuru. On hearing this news PW-6, the mother of the deceased, PW-7 her cousin sister and PW-10 Shri.Ramanna Rai, their neighbor proceeded to Mysuru. On the following day i.e., 12.02.2008 they were shown the deadbody of the 7 deceased in the mortuary. They readily identified the dead body as that of Sunanda.
3. Regarding the incident, PW-14, the ASI, who was on duty in the K.S.R.T.C. bus stand on that day submitted an intimation to PW-16, the PSI of Lashkar Police Station. He registered a UDR case and conducted inquest over the dead body. Thereafter, he got conducted the post-mortem examination and released the dead body to PW-6, the mother of the deceased.
4. On 21.10.2009, PW-32, the Assistant Superintendent of Police, Puttur Sub-Division, who was investigating Crime No.111 of 2009 registered in Bantwal Police Station arrested the accused. On recording his voluntary statement PW-32, came to know the involvement of the accused in various other crimes against ladies and women during the span of last six years. He published the photographs and the news items in newspapers and Television. On seeing the photographs of 8 the accused in the newspaper, PW-7 the cousin sister of the deceased readily identified the accused as the person who had proposed to marry the deceased and at whose instances, the deceased had left the house on the date of the incident. In view of these developments, the mother of the deceased PW-6 lodged a complaint before the Sulia Police as per Exhibit-P6 on 03.11.2009. Based on this complaint, Crime No.244 of 2009 came to be registered against the accused.
5. The investigation was continued by PW-31, the Police Inspector of Sulia Police Station. He obtained the custody of the accused through body warrant. Pursuant to the voluntary statement of the accused, he drew up the Mahazar at Sulia Bus Stand from where the accused took the deceased with him to Mysuru. He drew up the Panchanama at the lodge namely, Sri. Uma Maheshwari lodge, Mysuru, where the accused and the deceased stayed together, immediately prior to the commission of the offence. He also drew up the mahazar at the KSRTC 9 bus stand, where the accused is stated to have administered cyanide to the deceased. At the instance of the accused, he recovered the gold ornaments of the deceased sold by accused to PW-21, Harish Alwa, Ashirvad Finance Jewellers. Further, in the course of the investigation, he incorporated the seizures and other incriminating material seized from the accused by PW-32. On completing the investigation, PW-25 laid the charge- sheet against the accused.
6. On production of the accused, before the trial court, the accused sought to conduct the case by himself in person. On hearing the accused and on considering the material produced by the prosecution, the trial court framed charges under Section-366, 376, 328, 392, 394, 417, 465, 468, 473, 302 and 201 of IPC. The accused denied the charges and claimed to be tried. In proof of the above charges, prosecution examined 35 witnesses and produced in evidence 46 documents as per Exhibit - P1 to P46 and the material objects at MO.1 to MO.35. Though in 10 the judgment the trial court has noted that Exhibits - D1 and D2 have also been marked on behalf of the defence, on verification of the records, we do not find that any such documents having been marked on behalf of the accused during trial. During his examination under Section - 313 of Cr.P.C., the accused took up a defence of total denial and did not choose to enter into defence or to examine any witnesses on his behalf.
7. Upon hearing the learned Special Public Prosecutor and the accused and on considering the oral and documentary evidence available on record by the impugned judgment, the court below found the accused guilty of the above offences. The learned Sessions Judge was of the view that the prosecution has proved the following circumstances namely:
i) The deceased last seen in the company of the accused;
ii) The common stay in the lodge;11
iii) The recovery of gold ornaments belonging to the deceased at the instance of the accused;
iv) The recovery of incriminating materials from the house of the second wife of the accused Smt. Sridevi;
v) The recovery of cyanide billets from the shop of PW-
34, Mohammed;
vi) Identification of the ornaments by the immediate relatives of the deceased Sunanda;
vii) Extra-judicial confession made by PW-5, Eshwar Bhat;
viii) The evidence relating to the modus-operandi adopted by the accused;
ix) Withdrawal of Rs.25,000/- from Vikas Karnataka Grameena Bank, Bellary by the deceased on the date of the incident;
x) The medical evidence and the findings of the Chemical Analyst; and 12
xi) Lastly, the doctrine of confirmation whereby the accused showed the spot from where he picked up the deceased, the place where they stayed together in the lodge at Mysuru, as well as the spot where he administered cyanide to the deceased.
8. The court below was of the opinion that all the above circumstances have been conclusively established by the prosecution and these circumstances establish the guilt of the accused beyond reasonable doubt for all the offences charged against him. While considering the case for imposition of sentence, the court below enumerated the aggravating and mitigating circumstances brought on record by the prosecution and having found that the accused had ingeniously deceived the deceased by impersonation and committed the murder of a helpless lady by administering cyanide and also having regard to the fact that similar modus-operandi was being adopted by the accused in 19 other cases wherein he was facing trial, out of which, he had suffered conviction in two cases on 13 similar charges, was of the opinion that case fell within the category of 'rarest of rarest case' and accordingly imposed the extreme penalty of death sentence and made a reference to this Court seeking confirmation thereof as required under Section - 366 of Cr.P.C.
9. The records of the lower court are secured. As the accused was in custody, the assistance of an Advocate was provided to the accused through Legal Services Authority. However, when the matter was taken up for final hearing, the accused addressed a letter through the Prison Authorities seeking permission to argue the matter personally. The permission was granted.
10. We have heard the accused and the learned Addl.SPP at length and examined the records.
11. The accused contends that his conviction is wholly illegal and unjustified. He submits that initially suspicion was directed against the brother-in-law of the deceased by name Raghunath Poojary, against whom the 14 deceased had given evidence in a Court of law. The mother of the deceased herself had named him during the inquest proceedings. It is only after the arrest of the accused nearly two years after the alleged incident, he has been implicated. The complaint was lodged only after the arrest of the accused. In the said complaint, for the first time the mother of the deceased PW-6 alleged missing of the gold ornaments. But, PW-26, PSI who registered the UDR has unequivocally stated that the ornaments found on the body of the deceased were returned to PW-6 under acknowledgement, making it evident that the allegations of robbery and the subsequent recovery evidence projected by the prosecution is patently false and fabricated to bolster up the false charges framed against the accused.
12. Assailing the very cause of death, the accused would submit that the post-mortem report relied on by the prosecution, does not specify the facts and features noted during the post-mortem examination. On the other hand, the opinion is seen to have been issued based on the FSL 15 report. The FSL report was got up after the arrest of the accused. Original opinion given by PW-20, Dr.Kumar has been deliberately suppressed. The evidence relating to the 'last seen theory' is also fabricated. There is no reliable evidence to show that the accused and the deceased were found together at any point of time or that they stayed in Uma Maheshwari Lodge at Mysuru on the date of the alleged incident. The evidence produced by the prosecution in this regard is unreliable. The prosecution has not produced any document such as Corporation Licence or the employees list maintained in the Labour Department to show the existence of such a lodge or the presence of PW-12 and PW-13 as employees in the said lodge at the relevant time. Likewise the evidence of PW-6, PW-7 also cannot be believed. Their evidence even if accepted, does not prove the last seen circumstance. There is striking discrepancy in the sketch relied on by the prosecution. The place of offence is not proved. The recoveries are planted. No documents are produced to show that the accused was 16 in contact with the deceased over phone. Even though the phone was found at the spot, call details are not procured. The photo of the deceased based on which the deceased is said to have been identified by the witnesses was not produced along with charge-sheet. All these circumstances go to show that a deliberate attempt has been made to create false evidence to secure the conviction of the accused.
13. It is further contended that the trial court has misread the evidence. The material on record is not sufficient to prove any of the circumstances pointing out the guilt of the accused. The punishment imposed by the lower court is also disproportionate to the charges. There is no evidence whatsoever to prove the charge of rape and abduction. The facts proved by the prosecution even if accepted will not make it a 'rarest of rare case'. The trial court has not assigned reasons to award extreme penalty of death. Hence the accused has pleaded for his acquittal 17 and for cancellation of the death sentence awarded by the court below.
14. The learned Addl.SPP has disputed each and every contention urged by the accused. He would submit that the prosecution has proved every circumstance in proof of the charges with cogent and convincing evidence. The fact that the accused and the deceased were seen together is established by the direct testimony of PW-12 and PW-13. It is proved that the accused was in possession of cyanide at the time of his arrest, which goes to show that he was always carrying cyanide with him. The prosecution has also seized billets of cyanide, fake ID cards, rubber stamps, etc., from the house of the second wife of the accused. These were being used by the accused to lure innocent ladies on the promise of either to marry them or to secure them a respectable job.
15. More importantly, the prosecution has proved the sources from which the accused was procuring the 18 cyanide by examining PW-34. The modus operandi adopted by the accused is also proved by examining the victims who survived the attack in the hands of the accused. The extra-judicial confession establishes the motive and thus the prosecution has proved beyond reasonable doubt the circumstances which points to the guilt of the accused. Therefore, no fault could be found with the impugned judgment. The court below has assigned proper and justifiable reasons in support of each of the findings. Even with regard to the award of punishment, the trial court has enumerated the aggravating and mitigating circumstances and by applying the guidelines laid down by the Hon'ble Supreme Court, has held that the facts proved against the accused brought the case within the category of "rarest of the rare case"
and hence, the death penalty awarded by the Lower Court is well-justified and deserves to be confirmed. He further contends that even before the High Court the accused has suffered conviction in R.C.No.5 of 2014, connected with 19 Criminal Appeal No.178 OF 2015. He has been sentenced to imprisonment till the end of his life without remission, which itself indicates that the trial court was justified in imposing the extreme penalty of capital punishment on the accused and therefore there is absolutely no reason whatsoever to interfere with the well considered judgment of the court below.
16. Before embarking upon the merits of the contentions raised by the parties, let us first deal with the contention regarding the cause of death, as any finding thereon would go to the very root of the matter. The case of the prosecution is that the deceased died due to cyanide poisoning. In proof thereof, the prosecution has relied on the evidence of PW-20, the medical officer who conducted the post-mortem examination and issued the opinion as per Exhibit-P27. According to this witness, on 12.02.2008 between 11.35 a.m. and 12.35 p.m., he conducted the autopsy on the dead body of the deceased. He did not find any traces of external injuries. The stomach contents 20 exuded peculiar smell, mucosa was congested and cherry red in color. The blood and viscera were collected and sent for chemical analysis. In his evidence he specifically deposed that he did not furnish any opinion as to the cause of death immediately. On 12.02.2008, on receipt of the FSL report, he furnished his final opinion to the effect that death was due to respiratory failure as a result of consumption of cyanide poison.
17. The contention of the accused is that unlike any other medical opinion, in the instant case the findings such as cyanosed nail beds, odour and colour of the stomach contents do not find place in ExhibitP-27. Therefore, the opinion of PW-20 regarding the cause of death falls short of the legal requirements. In other words the submission of the accused is that the basis for his opinion is not forthcoming in Exhibit P-27 and therefore the opinion given by him cannot be accepted in proof of the cause of death. He would further contend that PW-20 has not furnished the reasons and justifications in support 21 of the conclusion nor does Exhibit - P27 contain any such justifications with regard to FSL report. He contends that the FSL report was obtained only after the arrest to suit the prosecution case. If this report is excluded from consideration, there is no basis for PW-20 to support his opinion. As a result, it has to be held that the prosecution has failed to prove that the deceased died due to cyanide poisoning.
18. This argument in our opinion is totally misconceived and cannot be accepted for the simple reason that PW-20 has not based his opinion on the physical findings noted by him during the post-mortem examination. As stated above, PW-20 has categorically stated in his evidence that he reserved his opinion awaiting the FSL report. No doubt it is true that in order to render the opinion of an expert admissible under Section - 45 of the Evidence Act, the opinion must be backed by reasons and grounds in justification thereof. But in the instant case, the evidence of PW-20 indicates that he furnished his 22 opinion on the basis of the Chemical Analysis report. There is no dispute that on examining the viscera and the blood sent for his analysis PW-27 issued the report as per Exhibit-P28. Exhibit-P28 reads as follows:
"Description of the articles:
1. One sealed glass bottle containing stomach and its contents. Portion of small intestine and its contents.
2. One sealed glass bottle containing portion of liver and kidney.
3. One sealed glass bottle containing blood.
4. One sealed glass bottle containing solution of sodium chloride as preservative.
OPINION Presence of cyanide ions were detected on Exhibit Nos.1, 2 and 3. No poison was detected in Exhibit No.4.
19. The objection raised by the accused that the report was planted after his arrest is wholly unfounded. We 23 have examined this report at Exhibit-P28, as well as the opinion given by PW-20 at Exhibit-P27. Exhibit-P28 is dated 10.10.2008. It was forwarded to the Police Station on 23.10.2008. It bears the signature as well as the seal of the Inspector of the Lashkar Police Station for having received it on 04.11.2008. Reference No. quoted in Exhibit-P28 finds place in Exhibit P-27. A reading of Exhibit - P27 indicates that its was issued on 15.11.2008, making it evident that the said opinion was given much before the arrest of the accused. It is not in dispute that the accused was arrested in Cr.No.111 of 2009 only on 21.10.2009. Therefore, the argument of the accused that Ex-P28 was got up after his arrest and based on the said report, the medical opinion as to the cause of death was procured, cannot be accepted.
20. The question whether it is enough for the chemical examiner merely to state in his report that cyanide was present in the substance sent for his examination and whether the medical officer could base 24 such a report to state his opinion as to the cause of death came up for consideration of the Hon'ble Supreme Court in BHUPINDER SINGH vs. STATE OF PUNJAB, (1998) 3 SCC
513. It was contended therein that the prosecution has failed to establish by evidence the necessary conditions for the proof of murder by poisoning. An argument was advanced that it is not enough for the chemical examiner merely to state in his report that organo- phosphorus compound was present in the substance sent to him for examination. He should have also stated that a lethal dose of the organo-phosphorus compound was detected in the substance sent to him. His report should be full and complete to take place of evidence which he would have given if he were called to court as witness and in the absence of such particulars, the death by poisoning cannot be inferred. By referring to various authorities, it was also contended therein that he must also state the grounds which formed the basis for his opinion. The Hon'ble 25 Supreme Court while negating the contentions, in para 13 of the said judgment has held as under:-
"13. In our opinion, these observations cannot be taken as a rigid statement of law. No hard and fast rule can be laid down as regards the value to be attached to the report of the chemical examiner. Section 293 of the Code of Criminal Procedure provides that the report of scientific experts may be used as evidence in any inquiry, trial or other proceedings of the court. The chemical examiner does not, as a rule, give an opinion as to the cause of death but merely gives report of the chemical examination of the substance sent to him. The report by itself is not crucial. It is a piece of evidence. The only protection to it is that it does not require any formal proof. It is, however, open to the court if it thinks fit to call the chemical examiner and examine him as to the subject matter of the report. The report should normally be forwarded to the doctor who conducted the autopsy. In the instant case, that was done. The doctor who conducted the autopsy was given a copy of the report of the chemical examiner. The doctor in 26 the light of the report gave his opinion that the death of Gian Kaur was by poisoning i.e. organo-
phosphorus compound. The report of the chemical examiner coupled with the opinion of the doctor is, therefore, sufficient to hold that it was death by poisoning."
(Underlining supplied)
21. In the light of this proposition, the argument canvassed by the accused that the opinion rendered by PW-20 regarding the cause of death is defective and cannot be accepted in evidence is liable to be rejected. The facts narrated above clearly indicate that the viscera and the blood were sent for chemical examination. Even though Section 293 Cr.P.C. does not require the examination of the chemical analyst, the prosecution has examined him as PW-27. The Doctor has also been examined and he has deposed about the basis on which he has furnished the opinion. Ex-P27 contains the findings noted during the post-mortem examination. Therefore, we do not find any substance in the contention urged by the 27 accused attacking the validity and genuineness of the medical opinion Ex.P27 as to the cause of death. Hence, the said contention is rejected.
22. Now coming to the charges levelled against the accused, undisputedly, there are no eye witnesses to the incident. The entire case of the prosecution is rested on circumstantial evidence. In a case of murder by poisoning, the prosecution is essentially required to prove that:-
1. The deceased died due to poisoning.
2. The accused was in possession of poison.
3. The accused had an opportunity to administer the poison.
These guidelines were laid down in the case of DHARAMBIR SINGH AND OTHERS VS. STATE OF PUNJAB AND ANOTHER (Criminal Appeal No.98 of 1958, decided on 4-11-1958 (SC). But on reviewing the entire case law on 28 this subject, the Hon'ble Supreme Court in Bhupinder Singh's case supra in para 25 has observed as under:-
"25. We do not consider that there should be acquittal or the failure of the prosecution to prove the possession of poison with the accused. Murder by poison is invariably committed under the cover and cloak of secrecy. Nobody will administer poison to another in the presence of others. The person who administers poison to another in secrecy will not keep a portion of it for the investigating officer to come and collect it. The person who commits such murder would naturally take care to eliminate and destroy the evidence against him. In such cases, it would be impossible for the prosecution to prove possession of poison with the accused. The prosecution may, however, establish other circumstances consistent only with the hypothesis of the guilt of the accused. The court then would not be justified in acquitting the accused on the ground that the prosecution has failed to prove possession of the poison with the accused.29
The Hon'ble Supreme Court has further observed that the insistence on proof of possession of poison with the accused invariably in every case is neither desirable nor practicable. "Murder by poisoning is run like any other murder. In cases where dependence is wholly on circumstantial evidence, and direct evidence not being available, the court can legitimately draw from the circumstances an inference on any matter one way or the other."
23. In the instant case, in order to bring home the guilt of the accused, the prosecution has relied on large number of circumstances which are already listed in the preceding paras of this judgment. The first circumstance pressed into service by the prosecution is the circumstance of the deceased last seen in the company of the accused.
24. In proof of this circumstance, the prosecution has relied on the evidence of PW-6, PW-7, PW-12 and PW-
13. 30
(a) PW-6 is the mother of the deceased. According to this witness, on the date of the incident, deceased left home at about 7.00 a.m. to go to Malla temple, Kasargod. She has specifically stated that about 10 days earlier thereto, the accused had proposed to marry the deceased and he had insisted that before entering into the marriage, she should perform a pooja to ward off any hurdles in their future married life and hence, she permitted the deceased to go to the temple. Accordingly, on the date of the incident, the deceased set out in the morning wearing gold ornaments. She also took a cheque for Rs.25,000/- for encashment, but in the evening, at about 6.30 p.m., PW-6 received a call from her daughter-Sunanda to her landline informing her that she could not perform the pooja in the temple and after performing pooja in the night, she would return home on the next day morning.
31
(b). PW-7, the cousin sister of the deceased has also corroborated the testimony of PW-6 in this regard and has deposed in line with PW6.
In our opinion, the statement made by the deceased informing PW.6 that since the pooja could not be performed in the afternoon, she would return home after performing the pooja at night, becomes relevant under Section 32 of the Indian Evidence Act. This evidence goes to show that on the date of the incident, the deceased left the house to perform pooja at the instance of the accused. The circumstances brought out in the evidence of this witness indicate that at the suggestion of the accused, deceased had worn the gold ornaments and taken her clothings. The place of "pooja" was also suggested by the accused. On her own she did not decide to go to the temple. Naturally the accused accompanied her to the temple. The surrounding circumstances, which we would presently discuss would also go to show that she and 32 accused were together at 6.30 p.m. when she called her mother over phone.
Though the accused has contended that there is no evidence to show that the accused and the deceased were together when they set out to Mysuru on the date of the incident, yet, we find from the records that at the earliest instance, during inquest, PW-6 while giving her statement before the Taluka Executive Magistrate has unequivocally narrated the above facts even though accused was not arrested till then. In her statement during inquest proceedings, she has specifically narrated that on account of the insistence of the accused, deceased-Sunanda left the house to go to temple and at 6.30 p.m. and she called her over phone and informed her that since the pooja could not be performed, she would be returning home next day. This statement, in our view, lends full corroboration to the evidence of PW-6 and PW-7 that on the date of the incident, the deceased had left home at the instance of the accused to perform the pooja. If this evidence is analyzed 33 in the context of the evidence of PW-12 and PW-13, it leaves no manner of doubt that when she called PW-6 over phone, the deceased and the accused were together in Mysuru. The circumstances brought out in the evidence lead to the inference that on the pretext of taking her to the temple, the accused took her to Mysuru.
(c) The above conclusion gets fortified from the evidence of PW-12 and PW-13. PW-12 is the receptionist-cum-manager of Uma Maheshwari lodge, Mysuru. According to this witness, in the second week of February 2008, the accused had come to his lodge alongwith a woman at about 4.00 p.m. They occupied room No.103. He collected an advance of Rs.500/- from the accused. The woman who accompanied the accused was aged between 26 to 30 years. At about 5.30 or 6.00 p.m., accused and the deceased went out. At about 8.00 p.m., accused returned back alone and within 15 minutes thereafter, he vacated the room and collected the balance amount of Rs.150/- from PW-12. He has specifically stated 34 that while occupying the lodge, the accused gave his name as "Shashidhar". Thereafter on 4th December 2009, the accused came to the lodge alongwith the police and at his instance, PW-12 showed the room occupied by the accused and the said lady and a mahazar was prepared as per Ex- P12. In his evidence, he has stated that though the names of the customers were entered in the register, the said register was destroyed during the renovation of the lodge and hence, he was not able to produce the said register, even though a written requisition was given to him by the police to produce the copy of the register hence, he gave a written reply as per Ex-P13. He has further deposed that on 1.4.2010, he was shown the photograph of a woman and he identified it as that of the lady who had come and occupied the said lodge on the date of the incident.
(d) PW-13 is the room-boy of Uma Maheshwari lodge. This witness has corroborated the testimony of PW- 12 stating that the accused had come with a woman in the second week of February 2008 and had occupied Room 35 No.103 and both of them went out of the room around 5.30 or 6.00 p.m. and the accused alone returned back at 8.00 p.m. and within 15 minutes thereafter, he checked out of the lodge. This witness has also stated that seeing the photograph of a woman, he identified her as the person who accompanied the accused on the date of the incident and stayed in the lodge.
25. The evidence of these witnesses is assailed by the accused contending that both these witnesses are propped up by the prosecution after his arrest. It is contended that non-production of the lodge register and the receipts indicate that both these witnesses have deposed to suit the case of the prosecution and therefore, their evidence is not worthy of credence.
26. We have considered the submissions. In appreciating the evidence of PW-12 and PW-13, it is relevant to note that both these witnesses are independent and disinterested witnesses. Nothing has been brought out 36 in the cross-examination to suggest that these witnesses had any motive to depose against the accused or to falsely implicate him. Even though the accused has contended that the documents in proof of occupying the said lodge have not been seized or produced by the prosecution, yet the evidence of these witnesses that the accused had occupied the said lodge alongwith the deceased has not been discredited at all in the cross-examination. Even though the accused has posed number of questions to the witnesses, he has nowhere contended or suggested to PW- 12 and PW-13 that on the date of the incident, he did not stay in the said lodge. Evidence includes both oral and documentary evidence. A fact could be proved either by oral or documentary evidence. As long as the oral testimony is not discredited in the cross-examination and the witnesses are not shown to be false and untrustworthy, merely for want of contemporaneous documents, their testimony cannot be discarded or disbelieved. In the instant case, PW-12 has explained the 37 reason what made him to distinctly remember the identity of the accused and the deceased. He has justified his testimony stating that normally the husband and wife would come together to the lodge and vacate the room together. But, in the instant case, the accused and the deceased came together to the lodge as a couple but within few hours, the accused alone left the room carrying the bag and the baggage, and therefore he distinctly remembers the said fact. We do not find anything unusual in the explanation offered by him in this regard. The trial court has also accepted the evidence of these witnesses. On considering the evidence of these witnesses as a whole coupled with the evidence of PW-6 and PW-7, as discussed above, we are of the view that the prosecution has convincingly established the fact that the accused and the deceased were found together on the date of the incident till they left the lodge together at about 6.00 p.m. The evidence of PW-12 and PW-13 conclusively establish the fact that the accused alone returned to the lodge at 8.00 38 p.m. The further events manifest that the deceased was found collapsed in the KSRTC bus stand at about 7.30 p.m. or 8.00 p.m. Having regard to the time gap between the deceased last seen with the accused and tracing her dead body in the KSRTC bus stand, in the absence of any convincing explanation by the accused as to the cause of her death, the last seen circumstance relied on by the prosecution, stands duly proved. This circumstance, in our opinion, could be taken as one of the prime circumstance connecting the accused to the crime in question.
27. In appreciating the evidence of PW-12 and PW- 13 and the last seen theory propounded by the prosecution, it is also relevant to note that the lodge was situate behind the KSRTC bus stand. The case of the prosecution is that the accused gave cyanide to the deceased and asked her to consume it in the toilet, pass urine and within five minutes to take tea. Apparently on this pretext, the accused took the deceased to KSRTC bus 39 stand. The sequence of events discussed above clearly indicate that knowing fully well that cyanide would result in instant death within three to five minutes, the accused rushed to the lodge by the time the deceased could meet the death. All these circumstances, in our view, lend assurance to the case of the prosecution that the accused was instrumental in causing the death of the deceased by administering cyanide.
28. In order to prove that the accused was in possession of cyanide and that he was always carrying cyanide with him, the prosecution has examined PW-2 a panch witness to the seizure of cyanide from the person of the accused. PW-2 is a panch witness to the seizure mahazar Ex-P1. According to this witness, on 21.10.2009, in his presence, the accused was subjected to personal search in the police station and the police seized a mobile phone without SIM, two small diaries and a small bottle with red cap. In the said bottle, there was white powder 40 which was identified as cyanide and there were two cyanide billets. All these articles were seized and a panchanama was drawn in the police station as per Ex-P1. During his evidence, he identified Mobile phone M.O.1, a black bag M.O.2, a nokia hand set M.O.3, M.O.4 and 5 two dairies, M.O.6 the small bottle with red cap containing cyanide powder and two cyanide billets M.O.7 and cash of Rs.500/- consisting of five notes of 100 denomination namely M.O.8.
29. The fact that the seized cyanide billets and the powder were sent for chemical examination is proved by examining PW-29. PW-29 has issued report Ex-P38 certifying that the articles examined by him viz., M.O.6 and M.O.7 was cyanide powder and cyanide billets. The evidence of PW-2 and the seizure of the above articles is corroborated by the evidence of I.O. PW-32, who effected this seizure. There is absolutely no reason to disbelieve the evidence regarding seizure. It is also relevant to note that 41 the accused was arrested in connection with Cr.No.111 of 2009. Pursuant to the voluntary statement of the accused, the investigating officer therein viz., PW-32 came to know about the involvement of the accused in various other offences. The voluntary disclosure made by the accused before PW-32 has led to various recoveries and incriminating materials, based on which, the prosecution has launched 19 other cases against the accused. All these circumstances lend credence to the evidence of PW-20 and PW-32 that at the time of his arrest, the accused was found in possession of cyanide billets and cyanide powder, thus establishing another important link in the chain of circumstances connecting the accused to the murder in question. This evidence coupled with the evidence of PW- 12 and PW-13 would also go to show that the accused, who was always carrying cyanide had opportunity to administer cyanide to the deceased on the date of the incident.
42
30. The source from where the accused procured this cyanide is also proved by the examining PW-34. According to the prosecution, pursuant to the voluntary statement of the accused, he led PW-32 and the panchas to "Pawan Jewellers" owned by PW-34. The panch witness examined by the prosecution in this regard viz., PW-33 has unequivocally stated before the court that the accused led them to the shop of PW-34 and 10 cyanide billets and liquid used in gold work were seized from the shop of PW-
34. This witness has stood by the case of the prosecution. He was a signatory to the panchanama prepared in the shop as per Ex-P42. He has identified the seized cyanide viz., M.Os 31, 32 and 33. That these articles were examined by chemical analyst during the course of investigation is proved by examining PW-29 in terms of his report at Ex-P38 that M.Os. 31, 32 and 33 were cyanide. PW-34 K. Mohammed, the owner of the shop, no doubt, has turned hostile to the prosecution and has denied having sold any cyanide to the accused. But it is pointed 43 out that PW-34 was dealing with cyanide without any licence and hence a criminal case was registered against him under the provisions of The Poisons Act,1972 and therefore, PW-34 has failed to support the case of the prosecution to save his skin. The fact that a criminal case was registered against PW-34 has been admitted by him in his cross-examination by the Public Prosecutor. Therefore, as rightly submitted by learned Addl. SPP, there was a reason for him to turn hostile to the prosecution case. Nonetheless, from the evidence of PW-33 and PW-32, who participated in the recovery of these M.Os., it stands proved that it was accused who led the investigating team and the panchas to the shop of PW-34. The testimony of PW-32 and the evidence of the Investigating Officer with regard to the recovery is beyond doubt. From this evidence, it stands established that M.Os. 31 to 33 were recovered at the instance of the accused.
31. Further, PW.3 -panch witness to the recovery mahazar Ex.P3 has confirmed in his evidence that the 44 accused took them to the house of his second wife at Deralakatte on 22.10.2009 and produced a plastic bag containing ten cyanide billets, fake rubber stamps and various identity cards. He has identified all these articles namely M.O.11 to M.O.25. This evidence also has not been falsified in the cross-examination. It is also proved in evidence that all the articles seized under Ex.P3 mahazar were immediately forwarded for chemical examination which fact further corroborates and lends credence to the testimony of PW.3 that incriminating articles namely cyanide billets, fake rubber stamps and various identity cards were seized from the house of the second wife of the accused.
32. In addition to the above recovery, the prosecution has pressed into service another important piece of evidence which directly connects the accused to the offence in question. The prosecution has examined PW.21 - the owner of Ashirwad Finance. This witness has categorically stated that he knew the accused since 3 to 4 45 years. The accused had been frequently visiting his shop and introduced himself as a School Teacher. In the month of May or June of 2008, the accused sold a pair of gold bangles weighing 13.50 gms., one necklace of 12.380 gms., one chain weighing 6.470 gms., and one pair ear stud weighing 2.650 gms., for Rs.45,000/-. In respect of the said transaction, on 5.12.2009, the accused once again came to his shop along with the police and at the instance of the accused, he returned the said ornaments. He identified these ornaments as M.O.26 to M.O.29.
33. The accused has disputed the evidence of PW.21 contending that PW.21 has not produced any documents in proof of the sale transaction. The contention of the accused is that the entire recovery is planted and PW.21 is a propped up witness. On assessing the evidence of PW.21, we are not inclined to accept this argument. As already noted above, PW.21 is not a stranger to the accused. The statement made by him on oath indicates that he was knowing the accused since four years prior to 46 the said transaction. This has remained unchallenged. The only suggestion made to this witness in the witness box is that the accused was sitting in the jeep outside his shop during the mahazar. But this suggestion does not falsify the evidence of PW.21 with regard to the fact that the accused had sold M.O.26 to M.O.29 to him for Rs.45,000/- as asserted by PW.21. No circumstances are brought out in the cross-examination to suggest that the recoveries are planted or that he had any motive to depose against the accused that too while parting with huge quantity of gold of the value of Rs.45,000/-. He has also given the reasons for retaining the ornaments in the same form. More over, the testimony of PW.21 and the recovery of these ornaments have been corroborated by the testimony of PW.15 - the panch witness who participated in the recovery. He has categorically stated on oath that the accused led him and another panch to the shop of PW.21. He has asserted in his evidence that the accused identified the owner and the accused disclosed the 47 transaction and at the instance of the accused, the ornaments at M.O.26 to M.O.29 were returned. We do not find any reason to doubt or disbelieve the testimony of these two independent witnesses. The accused has not brought out any circumstances discrediting the testimony of these witnesses. It is proved in evidence that the articles recovered at the instance of the accused are duly identified by the mother of the deceased as well as her cousin-sister of the deceased as belonging to the deceased.
34. The accused has taken up a plea that the entire theory of missing of the gold ornaments is an afterthought. He contends that the mother of the deceased did not complain of any missing ornaments at the earliest instance when she participated in the inquest proceedings. He has placed reliance on the evidence of PW.26 to contend that PW.26 - P.S.I., who registered the UDR case has categorically stated in his chief examination that he returned four rolled gold articles to the mother of 48 the deceased under acknowledgement, which goes to show that the ornaments found on the body of the deceased were returned to PW.6 and therefore, there was no occasion whatsoever for PW.6 to complain of any missing ornaments. The accused would further contend that the allegation of missing of the gold articles was made for the first time in the complaint lodged by PW.6 on 3.11.2009, about 12 days after his arrest on 21.10.2009. All these circumstances go to show that the allegation of missing of the ornaments is patently false and the recoveries projected by the prosecution are fabricated.
35. We do not find any merit in the above contention. On going through the evidence of PW.26, we find that the statement made by him that he returned the gold ornaments to PW.6 is wholly incongruous and inconsistent to the case of the prosecution. Undisputedly, PW.26 was the S.H.O. who registered the unnatural death case based on the death memo submitted by the A.S.I.- PW.14. At that stage, there was absolutely no occasion for 49 PW.26 either to receive the ornaments found on the body of the deceased or to return them to PW.6. It is not the evidence of PW.21 that he returned these articles after the conduct of the post mortem examination. His evidence is silent as to when he returned them to PW.6. No acknowledgement has been produced. On the other hand, the contents of the inquest mahazar Ex.P31 indicate that only a saree, blouse, bra and skirt and innerwear were found on the body of the deceased and they were left in the same condition which were collected by the Medical Officer after the post mortem examination and returned to the concerned. The evidence of PW.26 that he returned four rolled gold articles to PW.6 does not find support from the evidence and the material on record. On the other hand, the contents of the inquest mahazar indicate that except the clothes, no other articles were found on the body of the deceased. It is the consistent case of the prosecution that after the arrest of the accused, the gold ornaments belonging to the deceased were recovered 50 pursuant to his voluntary statement. The prosecution has proved this fact with cogent and convincing evidence. Likewise, the prosecution has also established in evidence that the articles recovered at the instance of the accused have been duly identified as that of the deceased. As a result, we hold that the prosecution has convincingly established this circumstance furnishing another link to the chain of circumstances.
36. Insofar as the delay in intimating the missing of the gold ornaments worn by the deceased on the date of the incident is concerned, though the accused has contended that the details of the said missing articles were disclosed for the first time in the complaint lodged by PW.6 before the police and therefore, the said allegation cannot be given any credence, but in appreciating this contention it is necessary to take into consideration the circumstance in which the so-called written complaint came to be lodged by PW.6. In this regard, it is relevant to note that the information of the commission of a cognizable offence 51 was available with the police at Mysuru when the case was registered by PW.26. Here itself it is important to note that at the earliest instance, while giving her statement before the Taluka Executive Magistrate during the inquest proceedings, the mother of the deceased (PW.6) had specifically named the accused stating that at the instance of the accused, the deceased had left the house carrying cash and the gold and her belongings with her. This infact, in our view, is the first information of the offence committed by the accused. But unfortunately, except registering the case in unnatural death register, the Police at Mysuru appear to have not undertaken any investigation except conducting the formalities of the inquest and the P.M. examination. Even the statement of the mother of the deceased and her other relatives were not recorded and therefore, there was no occasion either for PW.6 or any other relatives of the deceased to complain about the missing of the ornaments. The statements recorded during the inquest proceedings appear to have been 52 confined to the apparent cause of death and except suspecting unnatural death, real cause of death was not known at that point of time. Even the Medical Officer had reserved his opinion as to the cause of death. As the circumstances reveal, the accused remained untraceable until he was arrested after 1 year 8 months from the date of the incident. It is only when the accused was arrested and his photos were displayed in the notice board and the news were flashed in the T.V., the cousin-sister of the deceased namely PW.7 having identified the accused as the person at whose instance the deceased had left the house on the date of the incident, prompted PW.6 to lodge the complaint directly implicating the accused. It is in this complaint at Ex.P6 she has narrated all the details leading to the death of the deceased wherein she has also furnished the details of the gold ornaments worn by the deceased on the date of the incident. Therefore the delay whatsoever in disclosing the details of the missing articles has to be understood in the above background. Having 53 regard to the overall facts and circumstances of the case, in our view, the delay either in lodging the complaint at Ex.P6 or the details of the missing articles narrated therein do not in any way militate against the case of the prosecution nor does it weaken the credibility of the testimony of PW.6 with regard to the identification of gold ornaments worn by the deceased on the date of the incident. Hence, the objection raised by the accused in this regard is rejected.
37. During the course of investigation, Test Identification was conducted by the Tahsildar - PW.17. According to the prosecution, PW.7 - the cousin-sister of the deceased identified the accused in the said Test Identification Parade. This evidence, in our view, does not advance the case of the prosecution to any extent. It is seen that in the complaint lodged by PW.6 on 3.11.2009, she has clearly stated that on seeing the photographs in the newspaper and the news published in the T.V., PW.7 identified the accused as the person who had promised to 54 marry the deceased and at whose instance, deceased had left the house on the date of incident. The evidence of PW.6 and PW.7 go to show that based on this identification, PW.6 was prompted to lodge the complaint specifically implicating the accused. Therefore, the identification of the accused having been made by PW.7 much prior to the test identification conducted by the Tahsildar, in our opinion, this circumstance does not help the prosecution to support its case.
38. The prosecution has also examined PW.5, Archak of Sri.Annapurneshwari Temple to substantiate the circumstance of extra judicial confession said to have been made by the accused after the commission of the offence. The evidence of PW.5 goes to show that on 19.6.2009, the accused came to his temple and asked him to suggest a remedy for expiation of the sins committed by him (Sthree Hathya Dosha Parihara). He further deposed that the accused confessed before him that he had taken a lady by name Anitha to Hassan and had sexual intercourse with 55 her and thereafter, committed her murder by poisoning her. This evidence undisputedly relates to the offence committed by the accused in relation to one Anitha. Nonetheless the evidence given by PW.5, in our opinion, becomes relevant as to the conduct of the accused before and after the commission of the offence. As indicated by PW.5 in his evidence, the accused sought for a remedy for expiation of the sins committed by him namely murders of women. Therefore, in our opinion, the evidence of PW.5 could be relied on in proof of the conduct of the accused before and after the commission of the offences.
39. The prosecution has relied on the evidence PW.1 and PW.4 to throw light on the modus operandi adopted by the accused in carrying out his sinister designs. PW.1 Shanti has deposed before the court that in the year 2009, in January, while she was on her way to S.R. Jewellers, she met the accused. The accused introduced himself as Sudhakara Achary and enquired her about the place of her work. He took her mobile number and 56 thereafter he was in touch with her over phone. This witness has deposed that on 12.04.2009, the accused called to her mobile and asked her to come to Madikeri for an interview in a garment factory. Believing the accused, on 13.4.2009, at about 2.30 p.m., she came to B.C. Road bus stand as instructed by the accused. She has further narrated that the accused instructed her to come to the bus stand wearing gold ornaments and good dress. Accordingly, she left the house informing her parents that she would be going to her friend's house. The accused took her in a bus to Madikeri and on the way, he asked her to wear rolled gold chain brought by him. In the night, he took the gold ornaments worn by her. This witness further stated that while occupying the lodge, the accused furnished his name and address as Sudhakar Achary, S/o. Ramaiah Achary, Kajimane, Nala Post, Karkala Taluk, Udupi District. The accused wrote down the mobile number of PW-1 in the register. In the night, after food, inspite of her objections, the accused committed forcible intercourse 57 on her wearing nirod. Next day morning, he asked her to get ready for the interview and specifically instructed her not to wear any gold ornaments. Thereafter, on the pretext of taking her to the interview, he took her to the KSRTC bus stand at Madikeri. It was about 7.30 a.m. The accused handed over a small bottle which contained some powder and gave her a bottle of water and asked her to go to the toilet and take the said powder alongwith water and to return after passing urine. The accused convinced her that the said medicine had to be taken to stop pregnancy. PW-1 deposed that when she told him that there was no such necessity as he was wearing nirod, the accused told her that during the incident, the said nirod had torn. PW-1 further deposed that she went to the toilet and tasted a bit of the powder and immediately, she felt burning sensation and collapsed on the ground. She lost her consciousness and when she regained consciousness, she found herself in the hospital. She has specifically deposed in her evidence that she did not narrate this incident to the police as it 58 would hamper her family reputation. However, after the incident in question was published in the newspaper, she was emboldened to narrate the events that had taken place with her, to the police.
40. The accused has challenged the version of PW- 1 contending that she is a false witness got up by the police to bolster up the theory of modus operandi projected by it. But in appreciating the evidence of this witness, it is relevant to note that in order to corroborate her oral testimony, the prosecution has examined PW-32 - the Investigating Officer and through him, the register (Ex.P43) and the relevant entries therein at Ex.P43(a) to
(c) maintained in Vinayaka Lodge have been marked. These documents offer ample corroboration to the testimony of PW.1. Even otherwise, on going though her cross-examination, we do not find that the accused has been able to demolish or discredit her version to any extent. The very tenor of the cross-examination suggests that she was a victim at the hands of the accused. Her 59 evidence further establishes the fact that the accused was disguising himself in different names in order to carry out his evil designs.
41. The testimony of PW.1 finds suitable corroboration in the testimony of PW.4. This witness has also narrated the manner in which the accused used to lure the innocent girls. According to her, about six years prior to her examination before the court, one day while she was going for her work, the accused followed her and asked about her occupation. He introduced himself as Ananda Poojari. Even though PW.4 told him that she is married, the accused pressurized her to marry him. She has narrated the incident that took place on 17.6.2009 wherein she saw the accused and another victim namely Anitha standing together in B.C. Road bus stand. Her evidence also goes in support of the prosecution case with regard to the manner in which the accused used to adopt fictitious names and persuade the ladies to accompany him. The identity cards seized from the house of the 60 accused lend corroboration to the testimony of this witness to show that the accused has been using these identity cards to entice innocent girls.
42. The prosecution has examined PW.24 - the Sub-Inspector of Venur Police Station to prove the fact criminal antecedents of the accused. According to this witness, on 8.12.2005 when he was in the Police Station, he was informed that a mob of 100 persons had caught the accused and were questioning him. On going to the spot, he found that the accused was taking a girl in a suspicious manner. When he enquired the accused, the accused disclosed his name as Bhaskar Vittla. He brought him to the Police Station and registered a case against him under sections 109 and 116 of Cr.P.C. Through this witness, the prosecution has marked the copy of the F.I.R. in Cr.No.92 of 2005. Thus the prosecution has produced abundant evidence to prove the various circumstances to bring home the guilt of the accused for the various 61 offences charged against him and also to prove his conduct and motive for the commission of the said offences.
43. It is now well settled that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. There should be no gap left in the chain of circumstances. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the instant case, the circumstances proved by the prosecution, in our opinion, form a complete chain unerringly pointing out the guilt of the accused for the murder of the deceased. It is established beyond pale of doubt that the accused took the deceased with him to Uma Maheshwari Lodge on the date of the incident and at about 7.30 p.m., he took her to KSRTC bus stand and returned alone leaving her to die in the toilet. The circumstance of the deceased last seen with the accused, as already discussed above, in the absence of 62 any explanation by the accused for her unnatural death would lead to an inevitable conclusion that the deceased was put to death by the accused. It is further proved that the deceased died due to consumption of cyanide. The manner in which the poison was administered to the deceased and the place and the time of the incident and the sudden disappearance of the accused from the lodge are suggestive of the fact that the accused administered the deadly poison to the deceased and thereafter, made good his escape by checking out from the lodge.
44. The fact that the accused was found in possession of cyanide billets and that he had stored substantial quantity of cyanide in the house of his second wife has been proved with cogent and convincing evidence. The accused was also found in possession of cyanide at the time of his arrest. If this evidence is considered in the context of the cyanide being found in the stomach of the deceased, it leads to the inference that the death was caused by administering cyanide to the deceased. The 63 possession of poison and the evidence relating to procurement of the poison as proved by examining PW.34 establishes another significant step in proof of the commission of the offence. The circumstances discussed above would clearly indicate that until her death, the deceased was not found in the company of any person other than the accused. Therefore, the possibility of any other person administering poison to the deceased gets ruled out. The recovery of the gold ornaments at the instance of the accused establishes the fact that the murder was committed by him for gain.
45. Though the prosecution has not been able to prove the ingredients attracting the offence under section 376 of Indian Penal Code, yet by examining PW.1 and PW.4, the prosecution has proved the modus operandi adopted by the accused which, in our opinion, proves the conduct of the accused before and after the commission of the offence. The documents seized from the possession of the accused namely the visiting cards containing his 64 photographs but bearing the names of Shashidhar Poojari, Shashidhar Bhandari, S.Anand, Sudhakar Rai, Manohar, K.Sudhakar, Sudhakar Acharya, Sudhakar Kulal, Sudhakar Rao, Sudhakar Kothwari, K.Sanjeev and Mohan Kumar establishes the fact that the accused was using these names to disguise himself in committing the offences charged against him. The accused was found inducing gullible women with the false promise of securing job or getting married and later administering deadly poison and robbing their valuables. Concealing his identity and disguising his person is a clear proof of the guilty intent and the motive of the accused.
46. Thus on overall consideration of all the above facts and circumstances, we are of the considered opinion that the prosecution has proved the guilt of the accused beyond reasonable doubt for the offence under section 302 of Indian Penal Code. The trial court therefore was justified in convicting the accused for the said offence. We do not find any error or infirmity whatsoever in the finding 65 recorded by the trial court on this charge. Even on reconsideration of the material on record, we do not find any reason to differ with the view taken by the trial court. As a result, the conviction of the accused for the offence under Section 302 Indian Penal Code is hereby confirmed.
47. We further hold that the prosecution has successfully proved that the accused committed the above murder with an intent to rob the gold ornaments and the valuables of the deceased. It is proved in evidence that on committing the murder of the deceased, the accused carried away the gold ornaments of the deceased and the same were recovered at the instance of the accused, thereby establishing the ingredients of offence under section 394 Indian Penal Code. Consequently, the conviction of the accused for the said offence is confirmed.
48. In view of the conviction of the accused for the offence under section 394 Indian Penal Code, we are of the view that the charge under section 392 Indian Penal Code 66 being redundant, the accused is liable to be acquitted of the said charge.
49. The circumstances proved by the prosecution also make out the guilt of the accused for the offences under sections 328 and 417 Indian Penal Code. We have already recorded a finding to the fact that the accused was in possession of cyanide. It is also proved in evidence that cyanide was used for the murder of the deceased. As a result, we hold that the prosecution has established the ingredients of the offences under sections 328 and 417 Indian Penal Code. Consequently, the conviction of the accused for these offences is upheld.
50. However, considering the material on record, we are of the view that the prosecution has failed to prove the guilt of the accused for the offences under sections 376 and 366 Indian Penal Code. We do not find any reliable evidence in proof of these charges. The medical evidence is silent about the sexual assault on the 67 deceased. PW-20 has unequivocally admitted in his evidence that he did not examine the private parts of the deceased nor he found any external injuries on the deceased. He has not furnished any opinion leading to an inference that the deceased was subjected to sexual intercourse prior to the murder. The medical evidence does not help the prosecution to substantiate the charge under section 376 Indian Penal Code. Though the circumstance in which the deceased was made to consume poison on the belief that it was a medicine to stop pregnancy would create a strong suspicion that sexual intercourse might have been committed preceding the consumption of poison, yet in the absence of any evidence in proof of rape and forcible sexual assault on the deceased, in our view, this charge is bound to fail.
51. Likewise, the evidence produced by the prosecution does not make out the offence under section 366 Indian Penal Code. Though there is material to show that the accused took the deceased with him on the 68 pretext of marrying her, there is absolutely no evidence that the accused took the deceased with an intent to compel or to have sexual intercourse. As already stated above, the factum of sexual intercourse has not been proved. Even though Section 366 of Indian Penal Code has been invoked, the material on record suggests that it is a clear case of murder for gain. Therefore, having regard to the evidence produced before the court, we hold that the prosecution has failed to establish the offence of abduction under Section 366 Indian Penal Code. As a result, the accused is liable to be acquitted of this charge.
52. For the foregoing reasons, we hold that the accused is liable to be convicted for the offences punishable under sections 302, 394, 328 and 417 of Indian Penal Code. To this extent, the impugned judgment warrants to be affirmed.
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53. In so far as offences under sections 376, 366, 201 and 392 of Indian Penal Code are concerned, the accused is liable to be acquitted of the said charges.
54. We have heard the learned Additional Special Public Prosecutor and the accused on the question of sentence.
55. The accused pleads for setting-aside the death penalty awarded by the Trial Court. He submits that the facts of the case do not fall within the category of "rarest of rare case". Even though numerous charges were framed against him, the material charges under sections 366, 376, 392 and 201 are not proved and therefore, death penalty cannot be maintained. Further he submits that he has divorced his first wife and his third wife has also presented a petition seeking divorce. He has to look after his second wife and therefore, he pleads for a lenient view.
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56. The learned Addl. Special Public Prosecutor has filed a memo furnishing the details of 20 cases registered against the accused. He has narrated the status of each case and the charges framed therein against the accused. He further submits that the accused has conducted himself in a most despicable and mean manner. The charges proved against him indicate that with intent to commit robbery, he lured the deceased on the false promise of marrying her and took her to a remote lodge and administered cyanide to her. Further he submits that the accused was a School Teacher by profession. The witness examined by the prosecution namely PW.16 -the Block Education Officer has produced the service register of the accused which indicates that ever since 2002, the accused continuously remained absent from his duty. From 2004, he was unauthorisedly absent and a departmental enquiry was initiated against him. Only for one day on 2.8.2005 he marked his attendance in the school and from the next day onwards, he remained unauthorisedly absent, as a 71 result, he had to be dismissed from service on 3.11.2009. Learned Addl. Special Public Prosecutor submits that the accused having committed the above offence when he was a Government servant aggravates the offence proved against him. Therefore, there is absolutely no mitigating circumstance to take any lenient view in the matter. The learned Addl. Special Public Prosecutor further submits that the first case was registered against him, in the year 2002 and therefore, he has involved himself in such heinous offences in more than 20 cases. He has already been sentenced to life imprisonment till the end of his life without any remission by this court. He has also suffered conviction in two other cases as mentioned in the memo filed before this court. Therefore, there is absolutely no reason to commute the death sentence imposed by the Trial Court.
57. We have considered the submissions made by the accused as well as learned Addl. Special Public Prosecutor. We find from the impugned order that the trial 72 court has weighed the aggravating and mitigating circumstances and having held that the aggravating circumstances far outweigh the mitigating circumstance has chosen to impose the extreme penalty provided under section 302 Indian Penal Code. The aggravating circumstances recorded by the trial court are as follows:-
1. Offences proved against the accused in S.C.No.32 of 2010, are Sections 366, 376, 328, 392, 394, 417, 302, 201 of I.P.C.
2. Offences proved against the accused in S.C.No.96 of 2010, are Sections 376, 328, 302, 392, 201, 366, 394, 417, 465, 468, 473 of I.P.C.
3. Offences proved against the accused in S.C.No.97 of 2010, are Sections 366, 376, 328, 392, 394, 417, 302, 201 of I.P.C.
4. The accused was a Public servant.
5. The accused has been found guilty of three murders of young, unmarried and innocent women.
6. There was no previous enmity between the parties nor was there grave or sudden provocation which had compelled the accused to take the life of the innocent women.73
7. The murder of three women on different occasion makes this case of extreme culpability.
8. The manner in which the deceased was murdered, the approach and method adopted by the accused disclose the traits of outrageous criminality in the behaviour of the accused and the premeditated action.
This approach of the accused reveals a brutal mind set of highest order.
9. The accused has been charge sheeted for the same offences in twenty cases. At present, in three cases the accused has been found guilty and in other seventeen cases, he is facing trial for the similar offences.
10. In three cases it is proved that the accused is successful in his planning, preparation and commission of crime.
11. The accused being educated, while serving as a Government School Teacher, without showing devotion to duty and remaining absent again and again for considerable period, hatched a plan, chosen the wrong way and cheated, abducted, raped, brutally murdered innocent, unmarried deceased and robbed her cash and golden ornaments for gain and planned for the same act again and again against other victim woman.
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12. The accused designed in such a way for the commission of crime which was beyond the imagination of ordinary prudent man.
13. The crime committed by the accused is so brutal that it pricks or shocks not only the judicial conscience but even the conscience of the society.
58. Further the Trial Court has considered the parameters and the guidelines laid down in the Constitution Bench decision in BACHAN SINGH vs. STATE OF PUNJAB (1980) 2 SCC 684 as well as MACHCHI SINGH & Others vs. STATE OF PUNJAB, 1983 SCC (Cri) 681 and having come to the conclusion that the facts proved against the accused satisfy the parameters laid down in the above decisions, has held that the case in hand qualifies to be a "rarest of rare case". We are in complete agreement with the trial Court. On consideration of the overall facts and circumstances of the case, we are of the view that the facts of this case bear eloquent testimony to the moral depravity of the accused. His repeated 75 involvement in similar offences indicates that he is a hardened criminal. He has no qualm of conscience, no remorse, no compunction, no heart or emotions. Two of the victims who survived his attempts have confronted him in the dock, but he has shamelessly faced them, but could not disprove the venality spewed on him. He is not a first offender but proved to be a maniac and serial killer. Having regard to his previous conduct, we are of the considered view that he is beyond reformation and cannot lead an acceptable life in the society. The material produced before the court indicates that he is involved in more than 20 cases during the span of six years between 2004 and 2010. In all these cases, the common allegation is that the accused has been administering cyanide to the victims and thereafter robbed valuables from their possession, pledged or sold them to make gain. The seizure of large quantity of cyanide powder, fake seals and visiting cards speak for the criminal mind of the accused which is also discussed in the preceding part of the 76 judgment. All these circumstances, in our opinion, makes the instant case different from any other run of the mill case warranting ordinary punishment of simple imprisonment. As per the memo filed by the learned Addl. Special Public Prosecutor, he has already suffered conviction in two cases. Though in Crl.R.C.No.5 of 2014 c/w. Crl.A.No.178 of 2015, this court has altered the death sentence imposed by the Trial Court and sentenced him to incarceration till the end of his life by saving him from the gallows, but having confronted with the similar offences proved against him, we are of the view that giving him a new lease of life would be a travesty of justice. As held by the Hon'ble Supreme Court in STATE vs. NALINI & Others, (1999) 5 SCC 253:
"... the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the 77 manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment."
59. Similar view is expressed by the Hon'ble Supreme Court in a recent decision in RAJ BALA VS. STATE OF HARYANA & OTHERS (2016) 1 SCC 463, wherein the Hon'ble Supreme Court has observed that, "One cannot remain a total alien to the demand of the socio-
cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society 78 waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the 'finest part of fortitude' is destroyed."
60. On considering the overall facts and circumstances of the case, we are of the view that the accused is proved to be a potential threat to the society at large and womenfolk in particular. He has indulged in the most despicable and gruesome murders. His repetitive involvement in the gruesome murders and allied offences has left the society vulnerable at his hands, leaving no more discretion in our hands, to commute the death 79 sentence awarded by the Trial Court. We find that the learned Trial Judge has awarded death sentence after hearing the accused and the prosecution and after assessing the mitigating and aggravating circumstances only after reaching the conclusion that the prosecution has proved the case beyond reasonable doubt. Even after reassessing the entire material and after hearing the accused and the learned Additional Special Public Prosecutor, we do not find any reason to differ from the conclusion arrived at by the Trial Court either in the conviction or in the quantum of punishment awarded by the Trial Court.
61. Thus, on ultimate analysis of all the above facts and circumstances, the gravity and magnitude of the offences proved against the accused, the depraved manner in which he committed the crime, the nature and conduct of the accused, his criminal antecedents, the manner in which the offence was planned and executed against an innocent and helpless woman, the nature of the substance 80 used for the commission of the offence, the repeated involvement of the accused in similar crimes and in view of the fact that the accused is beyond reformation and he is proved to be a menace to the society and a veritable threat and danger to the life and liberty of the womenfolk in particular, we are of the view that the death sentence is the appropriate, just and adequate sentence that deserves to be imposed on the accused for the offence of murder proved against him.
Accordingly, Crl.R.C.No.3 of 2014 under section 366(1) of Cr.P.C. is hereby allowed. The death sentence awarded on the accused for the offence under section 302 of IPC is confirmed.
The Crl.A.No.177 of 2015 filed by the accused is allowed in part. The appellant/accused is acquitted of the charges under sections 366, 376, 392 and 201 of IPC. The conviction and sentence of the appellant/accused for the 81 offences punishable under sections 302, 394, 328 and 417 is confirmed.
Sd/- Sd/-
JUDGE JUDGE
jj.mn.bss.