Karnataka High Court
G Venkatesh vs State Of Karnataka on 20 January, 2018
Bench: K.Somashekar, H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20th DAY OF JANUARY, 2018
PRESENT
THE HON'BLE MR.JUSTICE K SOMASHEKAR
AND
THE HON'BLE DR.JUSTICE H. B. PRABHAKARA SASTRY
CRIMINAL APPEAL NO.1191 OF 2012
BETWEEN:
G. VENKATESH
S/O. LATE GANGADHARAPPA,
45 YEARS, GUNDAMMANAVARA VATARA,
SHIDIAGATTA, KOLAR DIST.
NATIVE PLACE: MAGADI ROAD,
NEAR DASARAHALLI MARKET,
BANGALORE. ...APPELLANT
(BY SRI. B.S.PRASAD, ADVOCATE)
AND:
STATE OF KARNATAKA BY
NANJANAGUD TOWN POLICE
REPRESENTED BY SPP. ...RESPONDENT
(BY SMT. NAMITHA MAHESH B.G. HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF THE Cr.P.C, PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT DATED 18.11.2011 PASSED BY THE III ADDL. S.J.,
MYSORE IN SESSIONS CASE NO.155 OF 2011 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC. THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO IMPRISONMENT FOR LIFE AND PAY
FINE OF RS.25,000/-, IN DEFAULT TO PAY FINE, HE SHALL
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UNDERGO S.I. FOR A PERIOD OF 2 YEARS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR DICTATING
JUDGMENT, THIS DAY, Dr. H B PRABHAKARA SASTRY, J.,
DELIVERED THE FOLLOWING:-
JUDGMENT
Being aggrieved by the judgment of conviction dated 18.11.2011 and order on sentence dated 19.11.2011 passed by the III Additional Sessions Judge, Mysuru (hence forth for brevity referred to as the 'Sessions Court') in S.C. No.155/2011 the accused therein who was convicted for the offence punishable under Section 302 of the Indian Penal Code has preferred this appeal. The accused has sentenced to undergo imprisonment for life and to pay a fine of `.25,000/-.
2. In his memorandum of appeal the appellant has taken contentions that the Sessions Court has believed the version of the prosecution even though there was no single eye witness in the case, there is no chain of circumstances established by the prosecution. The court below ignored the fact that not even a single -3- witness has stated that the appellant/accused has caused the alleged offence. The defence taken up by the accused was not properly appreciated. With this the appellant has prayed for setting aside the impugned judgment and order on sentence and to acquit him of the alleged offence.
3. The respondent is being represented by the High Court Government Pleader.
4. Lower court records were called for and the same are placed before this Court.
5. Heard arguments from both side and perused the materials placed before this Court.
6. The summary of the case of the prosecution is that Smt. Munirathnamma, mother of CW.11 Narasimhamurthy were the residents of Shidlaghatta town of Chikkaballapura district. Accused was residing by the side of the house of Munirathnamma and be friended, the deceased when she was coming to the -4- house of CW.20 to watch TV programmes, accused and Munirathnamma used to meet each other occasionally in Shidlaghatta town stating that they can see the places like Mysuru and Nanjanagudu. The accused brought deceased Munirathnamma to Mysuru on 11.02.2011 and both of them stayed at Nandini lodge in Mysuru. Accused wanted to kill Munirathnamma and to rob the gold ornaments. From Mysuru he took the deceased to Nanjanagudu on 12.02.2011 where they visited Srikanteshwara temple and stayed in a room in Prashantha Lodge at Nanjanagudu town on that night. After the deceased went to sleep in the room, the accused committed her murder by slitting her neck with a knife with an intention to take away her gold ornaments. After killing Munirathnamma accused took her gold ornaments like gold gundus, ear stud, nose stud and left the place. On the next day morning the hotel personnel noticed that the door of the room was locked from outside. The said door was not opened by the inmates of the room on the whole next day. On -5- suspicion the hotel personnel called to the cell phone No.9538121945 which number was given to them by the accused at the time of booking the room. The said call remains unanswered, but with a response of 'switched off'. Such repeated calls did not yield any result. As such, the hotel staff intimated the police in the morning on 14.02.2011. When the police visited the lodge in the alleged room they found dead body of a lady lying underneath the cot and the said dead body had also sustained injury on its neck. The complainant police receiving the complaint lodged by the lodge owner registered the same in their station Crime No.27/2011 against one Sri Gurumurthy in whose name the said room was booked, for the offence punishable under Section 302 of the Indian Penal Code. The police during their investigation came to know that the present appellant/accused had booked the said room, but in a false name as Gurumurthy and that he had committed the murder of Munirathnamma with whom he was in love and has robbed her of -6- valuables she was possessing in the form of ornaments on her body. After completion of the investigation the Investigating Officer has laid the charge sheet against the accused for the offence punishable under Section 419 and 302 of the Indian Penal Code. After hearing the parties the Sessions Court has framed charge only for the offence punishable under Section 302 of the Indian Penal Code. Since the accused pleaded not guilty, the prosecution lead its evidence to prove the alleged guilt against the accused. In order to prove its case the prosecution got examined 21 witnesses, as PW.1 to PW.21 and got marked documents at EXs.P1 to P38 and material objects at MO.1 to MO.32. Neither any evidence was lead from the accused side nor any documents were marked from his side. After hearing both side and considering the materials placed before it the Sessions Court by its impugned judgment convicted the accused for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and also to pay a -7- fine of Rs.25,000/-, in default of payment of fine to undergo a simple imprisonment for a further period of two years. It is against the said judgment of conviction and order on sentence the accused has preferred this appeal.
7. Learned counsel for the appellant in his argument submitted that though the case of the prosecution is based entirely on circumstantial evidence, but it has failed to establish every link of the chain, as such, the case of the prosecution ought not have been believed by the Sessions Court. Learned counsel further submitted that the prosecution could not able to establish the relationship between the accused and the alleged cell phone said to have been recovered by the Investigating Officer from the possession of the accused. No reasons are forthcoming in the case of the prosecution as to why did the accused take the deceased for a long distance from Shidlaghatta to Mysuru and from there to -8- Nanjanagudu to fulfill his alleged purpose of robbing gold items from the said lady. Had the accused intended to rob the deceased of her ornaments he could have fulfilled the said purpose at Shidlaghatta itself or at the maximum at Mysuru where both the accused and deceased had stayed in a room in a lodge for a night. Learned counsel further submitted that there is discrepancy in the evidence of the hotel staff to that of the Investigating Officer as to the opening of the door of the room where the dead body was found. The same leads to a suspicion. No test identification parade was conducted as such the identity of the accused has not been proved in accordance with law. He also submitted that the alleged recovery of golden articles also does not inspire any confidence to believe the same. As such, the judgment of conviction passed by the court below solely on the ground of the alleged recovery of the golden articles was bad in the eye of law.
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8. Learned Additional High Court Government Pleader in his argument submitted that undisputedly the death of the deceased was homicidal. The materials placed by the prosecution and the evidence lead by it clearly establish that at the time of death in the lodge at Nanjanagudu, it was only accused and deceased who were inside the room and thereafter the accused had flee from the place. The CDR details also shows that at last the telephone call was made from the cell phone of the deceased to the cell phone of the accused. Further the ornaments robbed from the deceased were also recovered at the instance of the accused. All these aspects clearly and beyond reasonable doubt establishes the guilt against the accused as such it is not warranted to interfering the impugned judgment and order on sentence.
9. Among the 21 witnesses examined by the prosecution PW.1 Prashanth N S is the owner of the Prashantha lodge at Nanjanagudu where the alleged
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incident is said to have taken place. He is also the complainant in the case. This witness in his evidence has stated that on 12.02.2011 accused came to his lodge along with a lady and took room No.104 in the first floor of the building at which time he had given his name and address and also the telephone number. On the next day morning he noticed that the said room No.104 was locked from outside, till evening the door was not opened. On 14.02.2011 in the morning also he noticed that the lock of the room was not opened. Therefore he informed the police. PW.1 has further stated that after his information police came to the hotel lock put to the said room from outside was opened. After entering into the room they noticed that dead body of a lady who had come to the said room along with the accused was found lying and she was murdered. As such, he lodged a complaint with the police as per EX.P1. Thereafter the police prepared a mahazar of the place as per EX.P2 and seized articles available near the dead body as per MO.1 to MO.19.
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He has also stated that the register at MO.20 was submitted by him to the police under a panchanama as per EX.P3. The witness has further stated that one month after the said incident the police had brought the accused to his lodge and at their enquiry he identified the said person as the one who had stayed in their lodge at room NO.104 being accompanied with the lady on the other day. Summoning him to the station the police also drew a panchanama as per EX.P4 seizing a cell phone and a small book from the possession of the accused. The witness has identified those two articles at MO.21 and MO.22. He has also identified the shirt of the accused at MO.23 and stated that police also took photographs in their lodge as per EX.P5 to P12. He was subjected to a detailed cross examination from the accused side wherein he adhered to his original version.
10. PW.2 Srinivas has deposed that he is having a milk booth in front of Prashanth Lodge in
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Nanjanagudu on 14.02.2011 the police had come to the said lodge where he was also summoned. He was present when the police verified the dead body and seized the articles for drawing of panchanama as per EX.P2. He was also a signatory to another panchanama at EX.P30.
11. PW.3 N Rajendra Kumar also has stated that when the police came to Prashanth Lodge at Nanjanagudu on 14.02.2011 he was also present and when the police verified the room NO.104 and prepared a panchanama as per EX.P2 and drew an inquest panchanama as per EX.P13 he was present and put his signature as a witness. He has also stated that on 13.03.2011 the police again called him along with one Raju to the police station where they conducted a physical search of the accused and recovered a mobile phone and a small book from his possession by drawing a panchanama as per EX.P4 for which also he was a pancha. He too has identified those two articles
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at MO.21 and MO.22. The witness has further stated that on 14.03.2011 again he had been to police station from where the accused took him and the police near Prashanth Lodge at Nanjanagudu and after showing room No.104 he took them near Rangappa Choultry behind the temple and from a gutter he took out a knife and a key plate ( a small plate to a key chain) and produced before them. The police drew a writing as per EX.P14 and seized those articles. From there the accused took them near the river stating that it was the place where he threw the mobile phone, but no article could be traced there. He has also stated on 14.03.2011 when accused had taken them to Prashanth Lodge a lock was seized there under a panchanama as per EX.P15. The witness has identified the lock with key at MO.25. He was also subjected to a detail cross examination from the accused side, but he adhered to his original version.
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12. PW.4 Syed Pasha has stated that his auto rickshaw was used for carrying the dead body from mortuary to the burial ground. A panchanama was drawn about seizure of the cloth found on the deceased as per EX.P16 for which he has put his signature. He has also stated one more panchanama regarding the place of the burial was drawn as per EX.P17 for which also he was a signatory.
13. PW.5 Narasimhamurthy who is the son of deceased Munirathnamma in his evidence has stated that he along with his mother and two younger sisters were residing in a rented house belonging to one Sri Gundamma at Sidlaghatta. His father was passed away about 5 years back. The accused whom he has seen was also residing in the same lane (ªÀoÁgÀ) in another house along with wife and children. He has further stated that in February, 2011 one day his mother who had left home has not returned. They were thinking that she has gone to her relatives house.
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They were keeping quite. However two days after Sidlaghatta police summoned him to the police station and getting his mothers' photographs identified through him asked him to go to Nanjanagudu police station. Accordingly when he went to Nanjanagudu police station on the next day police shown him some articles like clothes, chappal and ornaments and asked him to identify. He identified those articles as belonging to his mother. They also shown accused in the police station whom also he identified as resident in the same lane of his house. Witness has further stated that he came to know that his mother was killed for monetary gain. He identified the ornaments and clothes of his mother at MO.5, MO.27 to MO.32 and also at MO.11. He was also subjected to a detail cross examination from the accused side wherein he adhered to his original version.
14. PW.6 Manjunath Prasad has stated that complainant police had summoned him to the police
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station wherein they had shown the accused to him. The said accused took them to a jewelry shop at TB Road, Sidlaghatta and through the owner of the said shop he got produced few ornaments as per MO.29 to MO.31. A pacnhanama as per EX.P18 was also drawn in that place to which he has put his signature.
15. PW.7 Gundamma in her evidence has stated that she knows the accused who was a tenant under her on a monthly rent of Rs.500/-. She has five houses in which one house she is using for herself for occupation and has let out remaining 4 houses. CW.17 and CW.20, the husband and wife were also the tenants under her. She categorically stated that neither PW.5 Narasimhamurthy nor his mother were ever tenants under her. She could not identify the photograph of the dead body of the deceased at EX.P12 and again stated that the lady in the said photograph had never been her tenant. She was not subjected to cross examination.
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16. PW.8 Lakshmi has stated that she has been a tenant under PW.7 Gundamma. She knows deceased Rathnamma who was a tenant under one Kempareddy. The accused is a resident in the same lane where she (PW.8) is residing. In her cross examination she has clearly stated that she has never seen the deceased talking with the accused.
17. PW.9 Krishna Rao Devosi in his evidence has sated that he has been running a shop under the name and style of Bhagyalakshmi Jewelers and Pawn Brokers at T B Road, Sidlaghatta. The accused earlier had come to his shop and pledged golden balls (§AUÁgÀzÀ UÀÄAqÀÄUÀ¼ÀÄ), a pair of ear stud and nose stud. After one month by bringing police along with him he secured those pledged articles to the police who seized them under a seizure panchanama as per EX.P18. He has identified those articles at MO.29 to MO.31.
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18. PW.10 Raghavendra has stated that his father runs home utility articles shop at Nanjanagudu. He also helps his business. One day the police had brought the accused to their shop. Stating that the accused had purchased a knife from his shop. He identified the accused as the one who had purchased a knife from his shop. The witness has identified the knife at MO.26. In his cross examination he has stated that he might have done business on 12.02.2011 in his shop, but he does not remember. However, he stated that since the accused bargained while purchasing the knife he remembers him. At the same time he also admitted a suggestion as true that all the customer visiting his shop would bargain while purchasing the articles. Therefore, when this witness himself says that he does not clearly remember as to whether he has done business in his shop on 12.02.2011 and admits that every customer bargains while purchasing article, his statement that only because the accused had bargained while purchasing the knife he
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remembers him, cannot be trusted. As such, his evidenced is not worth reliable.
19. PW.11 Rangaswamy has stated about he searching in Kapila river near Nanjanagudu about the cell phone said to have been thrown by the accused and not getting the said article.
20. PW.12 Mahesha has spoken about carrying the seized articles in this case to Forensic Science Laboratory at Mysuru.
21. PW.13 Dr. Jayaprakash H M has stated that serving as a medical officer at General Hospital, Nanjanagudu, on 15.02.2011 between 5 to 6.30 p.m. he has conducted post mortem examination at the request of the complainant police on the dead body of a lady in the mortuary of the hospital. Apart from giving the external changes on the body noticed by him about the injuries he has specifically stated that he noticed
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(i) An incised wound placed horizontally just above the thyroid cartilage, about 10 cms. long and 4 cms. deep in the centre which was connected to larynx with 1 cm.
slit. The length extended between the two sterno mastoid muscle with a complete laceration of superficial and deep blood vessels,
(ii) An incised wound placed horizontally at the level of lower 1/3rd of left sterno clido mastoid extending from medial to lateral border of muscle incising muscle and underlying vascular structure i.e., common carotid artery and internal jugular vein. The size of the wound was about 6 x 4 cms.
He opined that death had occurred due to shock and hemorrhage secondary to the injuries sustained by the deceased. He identified the post mortem report at
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EX.P9 as issued by him and further stated that the injuries found on the dad body can be inflicted by using the weapon at MO.26 which was shown to him in the Court. He has also identified the photographs of the dead body at EX.P10 to EX.P12.
22. PW.14 Rajesh has stated that he has been working as a Cashier at Nandini Lodge on the side of the rural bus stand at Mysuru. He had seen the accused earlier. On 25.03.2011 the complainant police had brought the accused to his lodge and on their enquiry and after seeing the camera installed in the lodge he identified the accused as the person who had stated in their lodge along with a lady for a day earlier. At that time he had given his name as Chandrappa and the entry in that regard is shown to be on the date 11.02.2011 in the register of the lodge a copy of which he has identified at EX.P20. He has also identified the receipts said to have been issued by their lodge at EX.P21.
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23. PW.15 Mahesha is the receptionist in the same lodge where PW.14 was working. He has also stated that accused had stayed in their hotel for a night being accompanied that lady. The entries at EX.P20 are the relevant entries in that regard. He has also stated that when any customer comes seeking for an accommodation they would verify their identify after demanding the same from them and get the entries done by those people in the lodge register. However, this witness could not be able to identify the photograph of the deceased shown to him.
24. PW.16 N Nagendra the police constable has stated about he carrying the FIR to the court. PW.17 Vasanth Kumar, another constable has stated that at the request of the Investigating Officer he verified the details about two cell phone contact numbers given to him and submitted his reply as the one contact number pertains to one Nagaraju and the second one to one Sri Vasanth Kumar.
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25. PW.18 Shivakumar has stated that he has not identified the accused as a customer to their shop on the earlier. Even after treating him hostile prosecution could not get any support from him.
26. PW.19 R Krishnegowda another police constable has stated that at the instruction of the Investigating Officer in this case using the departmental camera he has taken the photographs of the place of offence in the Prashanth Lodge at Nanjanagudu as per EX.P5 to P12 and thereafter or another day he has taken few more photographs one near wine store, one near Kapila river and one near a drainage and another one while lifting the knife from the gutter.
27. PW.20 S Siddaraju the Assistant Sub Inspector of the complainant police station has stated that on 14.02.2011 at about 9.30 a.m. he received a complaint from PW.1 Prashanth as per EX.P1. After
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registering the same in their station crime No.27/2011 he submitted FIR to the Court. Thereafter he proceeded to the said lodge and in the presence of panchas drew an inquest panchanama and also a scene of offence panchanama as per EX.P13 and EX.P2 respectively. Thereafter he sent the dead body for post mortem examination and handed over further investigation to their Circle Inspector of Police. He had also drawn a sketch of the scene of offence as per EX.P34.
28. PW.21 Pramod Kumar B the police inspector has stated that while working as the Circle Police Inspector of Nanjanagudu he took up further investigation in this case and continued the investigation. He seized the clothes of the deceased produced before him by drawing a panchanama as per EX.P16 and seized clothes at MO.27 and MO.28 there under requested the officer of the Superintendent of Police to give the details of the contacts with mobile
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No.9538121945. He got suspicion with respect to one of the contact in that list to No.9945345765. Based on that he collected the details about the said phone and one more contact number. He came to know that the contact number given by the accused in the lodge was pertained to the deceased Munirathnamma and the other number bearing 9945345765 was in the name of one Sri N E Nagaraj of Chikkaballapura. He also collected the details of the people stayed in both the lodges at Mysuru and Nanjanagudu. From the informations received by him from the informants he suspected the accused and arrested him on 13.03.2011, recorded the voluntary statement given by the accused and based upon which he recovered the ornaments pledged by the accused in the presence of panchas by drawing a seizure panchanama. He also recovered a knife in the presence of panchas and produced by the accused, by drawing a panchanama as per EX.P14. He searched for the cell phone of the deceased said to have been thrown by the accused in
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Kapila river, but he could not get it. He also took the accused to Prashanth Lodge at Nanjanagudu and through him verified the scene of offence and got the accused identified by the staff of the lodge. He also proceeded to Sidlaghatta as lead by the accused and verified the house of the accused and recorded the statement of few witnesses there. He further visited Nandini Lodge at Mysuru as lead by the accused and got the accused identified by the staff thereat. He also ascertained in his enquiry that accused has given two different names at two different lodges. At Mysuru he has given his name as Chandrappa and in the lodge at Nanjanagudu the accused had identified himself as one Sri Gurumurthy. After completing the investigation he prepared charge sheet against the accused. He was also subjected to a detail cross examination wherein denial suggestions were made to him, but the witness adhered to his original version.
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29. The accused has not denied that PW.1 the owner of the Prashanth Lodge at Nanjanagudu finding a dead body in the room No.104 and inform the police. He has also not denied that the said dead body was sent by the Investigating Officer to PW.13 and getting autopsy done by him on that body. He has also not denied the details of the appearance and injuries found on the dead body by PW.13, the doctor and his medical opinion regarding the cause of death. The accused has also has not denied the identity of the deceased by her son PW.5 as one Munirathnamma as a resident of Sidlaghatta and mother of PW.5. The evidence of the doctor at PW.13 coupled with evidence of Pw.3 pancha to the inquest panchanama at EX.P13 and the evidence of PW.1 the owner of the lodge about the injuries found on the dead body all clearly go to show that deceased was a lady by name Munirathnamma, a resident of Sidlaghatta and her death was a homicidal. The trial Court has rightly held that the death of the
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deceased Munirathnamma was homicidal, which the police also has not denied or disputed.
30. The next question under consideration is whether it was the accused and accused alone, who caused the death of deceased Munirathnamma? In this regard, as already observed, there is no eye witnesses to the incident. The entire case of the prosecution is based upon the circumstantial evidence. The case of the prosecution as observed above is that the accused and the deceased were known to each other and that the accused with an intention to rob the deceased ornaments she was wearing, took her to Nanjanagudu and killed her by slitting her neck by means of knife in the room of lodge at Nanjanagudu. In this regard, the prosecution has relied upon the evidences of the staff of Prashanth lodge and Nandini lodge, the pawn broker, the son of the deceased, the alleged owner of the house, where the deceased was said to be residing at Shidlaghatta. At this juncture, the first doubt
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expressed by the learned counsel for the appellant in his argument is regarding the acquaintance between the accused and the deceased. According to him, accused and deceased were unknown to each other. On this point of evidence of PW5, PW7 and PW8 are of some importance. PW5 the son of deceased has stated in his examination-in-chief that himself with his mother and the accused were tenants at two different houses under one Smt.Gundamma at Shidlaghatta. However, the said Gundamma who is examined as PW.7 though has stated that the deceased was a tenant under her, but categorically stated that neither PW5 nor deceased were at no point of time were tenants under her. She also could not identified the deceased in the photograph at Ex.P12. She was not examined from the accused side. As such, her statement that deceased was never been tenant under her, remains un denied. Simultaneously, PW8 though claims to be a tenant under PW7 Gundamma was also the accused, how she has specifically stated that deceased was a tenant
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under one Kempareddy. She has also stated that she had never seen the accused talking with deceased. Therefore, the evidence of these witnesses makes it clear that the prosecution has failed to establish that the accused and deceased were tenants under a lady i.e., PW7 Gundamma. Thus it creates a doubt as to how can the accused knew the deceased.
31. Secondly a doubt expressed by the learned counsel for the appellant in his arguments is the trustworthiness in the case of the prosecution that the deceased had accompanied the accused to Mysuru and to Nanjanagudu. In that regard, except the evidence of PW1 the owner of Prashanth Lodge at Nanjanagudu, there is no evidence and no other witnesses to the effect that the deceased was accompanied the accused. There is no answer from the prosecution either in the form of evidence or in their argument in this matter that what made the deceased to accompany the accused from Shidlaghatta to Mysuru and from Mysuru to Nanjanagudu and staying with him
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on two night? Neither there is any statement from the prosecution side nor any evidence to the effect that accused wanted to take away the jewels of the deceased. As such, he made her to wear her jewels and to accompany him. Therefore, when the case of the prosecution is that it was a murder for gain, the prosecution was expected to establish the alleged motive from the beginning as to what made the accused to thought deceased would wear jewels if he asks her to accompany him to Mysuru or Nanjanagudu. Thus it remains as a question as to what made the accused to take the deceased to two different places i.e., Mysuru and Nanjanagudu, which is far away place from Shidlaghatta. It is also a question as to why the accused choose to this place and why not he could fulfill his purpose, provided if he had any, at Shidlaghatta itself. Therefore, the prosecution has failed to clear the doubt as to why did the deceased accompanied the accused who was shown to be a person known to her prior to that.
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(a) A doubt further aggravates for the reason that according to the prosecution the accused has given a false name both at Mysuru and Prashanth lodge at Nanjanagudu. At Mysuru lodge, he gave his name as Chandrappa, whereas at Nanjanagudu he identified as one Sri Guru Murthy. At this place one more doubt arises that PW15 Mahesh who was the cashier at Nanjanagudu lodge, Mysuru, in his evidence he has stated that himself has allotted room to the accused in their lodge. He has also stated that when the customer seeking accommodation, they would verify their identify and documents and from them get their address and details and details could their register and also take photograph in the web camera. If that were to be the case, the present accused who is not Chandrappa by his name, again identify himself on the documents showing himself as Chandrappa. Had the accused really given his false identify at both the lodges, the investigating officer should have conducted the investigation in this case on the said aspect also
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and collected materials as of identity proof which the accused is said to have produced at Nanjanagudu lodge, Mysuru before PW15. Therefore, the evidence of P.Ws. 1, 14, 15 on this point further strengthens the doubt.
32. In addition to the above regarding the alleged visit of the accused to Nandini Lodge at Mysuru and further identification of the accused by PW.14 it can be seen that PW.14 claims that he has identified accused brought by the police on the basis of his photograph captured by them in the web camera of their lodge. It is after verifying the said photograph he identified the accused as the one who had stayed in their hotel for a night. On the contrary, PW.21 the Investigating Officer in his cross examination has specifically stated that when he visited Nandini Lodge at Mysuru during his investigation he noticed that the pictures taken in the web camera in that lodge had already been deleted. If the Investigating Officer's
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version is to be believed then the evidence of PW.14 that he identified the accused after comparing his photographs in the web camera proves to be false on its own leg. Thus, the alleged acquaintance of the accused with the deceased and the alleged identification of the accused by PWs.1, 14 and 15 remains skeptical.
33. The third doubt that arises in this case which is rather important doubt is regarding concluding that it was the accused as the one who is involved in the commission of crime. Even according to prosecution the accused had given telephone number at Prashanth Lodge at Nanjanagudu. The said aspect has not been stated by PW.1, the owner of the said lodge, but PW.21, the Investigating Officer in his evidence has stated that the person accompanying the deceased has given the telephone number in the lodge as 9538121945. According to the Investigating Officer he verified the details of the said contact number and
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out of them he suspected a contact number 9945345765 and he collected the details of that particular phone. Nowhere the Investigating Officer has stated as to on what basis he suspected the said telephone number. Even according to the Investigating Officer the said telephone number does not stand in the name of the accused. According to PW.17 as well as the Investigating Officer (PW.21) the said contact number stands in the name of one Sri Nagaraju. According to PW.17 the Investigating Officer had also requested PW.17 to give the details of one more telephone number bearing 9901751446 which proved to be stand in the name of one Vasantha Kumar. Admittedly, the name of the present accused is neither Nagaraj nor Vasantha Kumar. That being the case without enquiring the said Mr. Nagaraj and Mr. Vasanth Kumar what made the Investigating Officer to include the present accused in the case without even knowing his name, identity or whereabouts still remains a question. The
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Investigating Officer (PW.21) in his examination in chief has stated that based upon the mobile phone call details and information received by the informants he suspected the present accused. The said statement in the light of the above reasoning appears to be totally baseless statement. In the absence of any cell phone call details or contact details and in the absence of enquiring the true bearer of the contact numbers which were suspected by the Investigating Officer all of a sudden without any nexus between the cell phone number and the accused, the Investigating Officer has falsely implicated the accused. In order to cover up his latches and to ensure that the accused himself is trapped in the matter. The Investigating Officer has projected a seizure panchanama stating that during the personal search of the accused they recovered a mobile phone with No.9945345765 and a pocket note book. The said seizure does not inspire any confidence to believe it. Even otherwise if the said seizure is taken to be believable still even according to the
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Investigating Officer the said seizure is only after the arrest of the accused by him. the accused was said to have been arrested on 13.03.2011 in his house at Sidlaghatta. As already observed there is no material to show that how did the Investigating Officer came to know about the identity and the address of the accused and how he suspected him and arrested him on 13.03.2011. Therefore without any lead or clue how come the Investigating Officer could go to accused on 13.03.2011 and thereafter recover the alleged mobile from him and from the said mobile, which admittedly does not stand in the name of the accused, he establishes nexus between the accused and the deceased so also the accused and the alleged crime remains a serious doubt unsolved by the prosecution. At this juncture it also cannot be ignored that according to prosecution the death of deceased Munirathnamma has taken place in the intervening night of 12.02.2011 and 13.02.2011 whereas the accused is said to have been arrested on 13.03.2011
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i.e., one month after the incident. During the said period of one month with whom the said mobile phone bearing No.994534565 was is not known. Therefore, the very important link of the alleged crime with the accused has not been established or given a link by the prosecution, beyond reasonable doubt.
34. The next doubt crepts in is about the opening of the door of room NO.104 at Prashanth Lodge, Nanjanagudu after the alleged incident has taken place. According to PW.1 the owner of the said lodge he lodged a complaint with the police on 14.02.2011. It is thereafter the police came there and unlock the lock put to room No.104 and verified it. It is at that time PW.1 came to know that a lady has been murdered in that room. Whereas according to Pw.20 the Investigating Officer in this matter it was only after PW.1 appeared before him and lodged a complaint as per EX.P1. He registered a case in their station Crime No.27/2011, sent FIR to the court as per
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EX.P22 and thereafter visited the Prashanth Lodge. In the said lodge he drew a scene of offence panchanama as well an inquest panchanama on the dead body. In his cross examination he has stated that before he could reach the scene of offence place the doors of the room where the incident had taken place was crept upon. These two statements of PW.1 and PW.20 are contradictory to each other. As already observed, according to PW.1 the owner of the Prashanth Lodge at Nanjanagudu, he lodged a complaint with the police because the doors of the room No.104 was not opened and it was put under lock and key till the morning of 14.02.2011. As such, he lodged a complaint. Thereafter the police went there, opened the lock and then PW.1 came to know about the murder that has taken place in the said room. Subsequently, he gave another complaint to the police which he had identified at EX.P1 which means before PW.1 lodging complaint at EX.P1 though already lodged one more complaint with the police and in the said complaint he had stated
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that the room No.104 had remained under lock and it is only the police who opened the lock. Thus, there is no clarity and no cogent evidence from the prosecution side as to who had opened the lock. If the version of the owner of the lodge is believed it is only after the police came to the spot he came to know about the murder of the lady. On the contrary according to PW.20 the lodge owner himself came and lodged a complaint about the murder. Added to this neither PW.1 nor PW.20 have not clarified as to how did the said lock was opened which was said to have been put by accused. It is not their case that the lodge people had second set of key or a master key. If that were tobe the case nothing had prevented them to open the lock of room No.104 on 13.02.2011 itself when the rented period which was rented only for one day had already been expired by then. Thus it give rise to a suspicion that even if it is assumed that accused was there in that particular room, but by the time the police went there the room was already opened
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without using the key of the accused. Therefore the case of the prosecution becomes more suspectable and makes the evidence of PW.1 not safe to believe and rely upon. As such, the evidence of PW.1 that he had seen the accused in the company of the deceased in their lodge also not safe to be believed upon. This is also for one more reason that had really PW.1 seen the accused in the company of the deceased he would have given the details of the appearance of the accused in his complaint. Though PW.1 has stated in his cross examination that in his complaint he had given the details of the appearance of the person who had occupied the room, but a reading of the said complaint, as admitted by the learned High Court Government Pleader, go to show that no such detail has been mentioned in the complaint except the name of the occupant as one Sri Gurumurthy. The next doubt that creeps in in the case of the prosecution is about the alleged recovery of the knife at MO.26 and its use in the commission of crime. No doubt PW.3 in
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his evidence has stated that accused produced the knife in his presence from a gutter near Ranappa Choultry, but it cannot be ignored that the same person has been a witness for several of the panchanamas drawn on different dates. According to him he was the pancha for the scene of offence panchanama as per EX.P2 drawn on 14.02.2011. He is also a pancha to the inquest panchanama at EX.P13. According to him he was again summoned by the police on 13.03.2011 to their police station and in his presence conducted a search on the person of the accused and drew a panchanama as per EX.P4. He was once again summoned by the police to their police station and from where, according to the witness, accused lead them near Ranappa Choultry and produced a knife from inside the gutter from that place which has identified at EX.P26. Thus, this witness is shown to be a witness for not less than five different panchanamas drawn on different occasions. Even according to this witness it is not that he was present
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at all different places on different dates on his own, when the police were said to have gone there. But according to him repeatedly the police have specifically summoned him to their police station and have used him as a pancha for different panchanamas. Therefore, it is quite clear that he is one of the stock panchanama witness to the said police station and that the police are repeatedly using him as a pancha. Otherwise even according to the prosecution the said Ranappa Choultry which is said to be on the side of a main road is a public place and where the general public will be seen. The police have not used any one among them as panchanama witness, but they have taken this chosen witness for all these five panchanamas. Therefore, his evidence is not safe to be relied upon.
35. Even if it is assumed that a knife was seized in the case still the Investigating Officer was expected to collect the material to show that the accused was in
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possession of the said knife. It is in that regard the prosecution tried to fill the lacuna by examining PW.10 who is said to have sold the said knife to the accused. However, as already observed above PW.10 by stating in his cross examination that he does not remember whether on the alleged date i.e., 12.02.2011 he had done business in his shop and also by stating that all the customer coming to his shop bargains in the matter, his evidence is also not worth relied upon. As such, the alleged recovery of the knife becomes highly skeptical. Added to this even according to prosecution the said knife was not sent to Forensic Science Laboratory and a report in that regard was obtained from them. EX.P38 which is the Forensic Science Laboratory report though mentions about 19 articles examined by it none of those articles is the knife said to have been recovered in this case. No reasons are forthcoming from the Investigating Officer or by the prosecution as to why the said knife which is a very important piece of evidence was not sent for its
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examination to the Forensic Science Laboratory. This also further weakens the case of prosecution.
36. Regarding the alleged recovery of the ornaments at MO.9 to MO.31 are concerned, no doubt PW.9 the owner of the jewelry shop has deposed that the accused has pledged those articles with him. However, the said witness who has categorically stated that in all such transactions he issues receipt to the customers has stated that in the instant case he does not remember whether such a receipt was given to the accused. If that being the case the prosecution was expected to come out with a reason as to why no such receipt was given to the accused. The Investigating Officer atleast should have verified the books of accounts or the registers and other documents maintained by PW.9 and confirmed about the persons of necessary entries evidencing the pledging of the articles at MO.29 to MO.31 with PW.9. Nothing of that attempt was made by the Investigating Officer. As
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such, the alleged recovery and more particularly in the light of other serious doubts that has already crept in this case, as discussed above, becomes doubtful to rely upon.
37. Therefore from the above analysis it is evident that from the first point of establishing that the accused and deceased were knowing to each other even prior to the alleged incident till their alleged travel from Sidlaghatta to Nanjanagudu and about the alleged incident of murder the prosecution case is full of serious doubts which makes it very much unsafe to come to any conclusion holding that it was the accused and accused alone who has committed the alleged murder of Munirathnamma though it is established that the death of Munirathnamma was homicidal, but serious doubts that have crept in the case of the prosecution proves to arrive at a conclusion that it was the present appellant/accused and he alone has committed the said murder of Munirathnamma. As
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such, the benefit of doubt is necessarily to be extended to the accused. The Sessions Court without going in the detail analysis of the evidence of the material witnesses more particularly PWs.1, 7, 9, 10, 14 and 15 has accepted their evidence in examination in chief as the fact and has jumped to a conclusion holding the accused guilty of the alleged offence. Therefore, we have no hesitation to hold that the said finding of the court below is perverse which has lead to an erroneous judgment of conviction passed by it. As such, the said judgment of conviction and order on sentence deserves to be set aside.
38. Accordingly, we proceed to pass the following order.
ORDER This criminal appeal is allowed. The judgment of conviction dated 18.11.2011 and order on sentence dated 19.11.2011 passed by the III Additional Sessions Judge, Mysuru in S.C. No.155/2011 is set aside. The
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accused/appellant is acquitted of the charges punishable under Section 302 of Indian Penal Code. Consequently, the accused/appellant is set at liberty. In case the accused/appellant is serving sentence in the prison, the jail authorities are hereby directed to set him at liberty, provided the accused is not required to be retained in custody in any other case.
Sd/-
JUDGE Sd/-
JUDGE ykl