Karnataka High Court
Praveen S/O Subramanya Bhat vs State Of Karnataka on 21 June, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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CRL.A No. 100006 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF JUNE, 2022
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CRIMINAL APPEAL NO. 100006 OF 2019 (C)
BETWEEN:
PRAVEEN S/O SUBRAMANYA BHAT
AGE: 24 YEARS, OCC: STUDENT,
R/O: M O165, SAYADRI NAGAR,
BELAGAVI.
...APPELLANT
(BY SMT.ANURADHA DESHPANDE, ADV.)
AND:
STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD,
THROUGH BELAGAVI APMC YARD POLICE.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 16.04.2018
AGAINST THE APPELLANT/ACCUSED FOR THE OFFENCES UNDER
SECTIONS 302 & 449 OF IPC PASSED BY THE II-ADDL. DIST. &
SESSIONS JUDGE, BELAGAVI IN S.C. NO.328/2015 AND AN
ORDER OF ACQUITTAL IN FAVOUR OF THE APPELLANT THEREBY
ALLOWING THE PRESENT APPEAL.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, M.G.S.KAMAL J., DELIVERED THE FOLLOWING.
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CRL.A No. 100006 of 2019
JUDGMENT
1. Present appeal is filed by the appellant/accused aggrieved by the judgment and order dated 16.04.2018 passed in S.C.No.328/2015 on the file of the II Additional District and Sessions Judge, Belagavi (hereinafter referred to as 'the trial Court'), by which the appellant/accused has been convicted and sentenced;
a. To suffer rigorous imprisonment for life for the offence punishable under Section 302 IPC and to pay fine of Rs.5,000/-. In default to pay the said fine, to suffer *rigorous imprisonment for a term of six months; b. To suffer rigorous imprisonment for life for the offence punishable under Section 449 IPC and to pay the fine of Rs.5,000/-. In default to pay the said fine, to suffer *rigorous imprisonment for a term of six months. Case of the prosecution:
2. That the accused had illicit relationship with one Smt.Reena. That the said Smt.Reena was insisting the accused to come as and when she called and had threatened him that if he did not come, she would reveal their relationship to everyone. That despite the accused requesting Smt.Reena not to reveal about their relationship to anyone, as the same would adversely affect his marriage prospects, she did not heed to his requests. Therefore, on 16.08.2015 at about 03:00 a.m., the * * Corrected vide order dated 26.08.2022 Sd/-
(MGSKJ) -3- CRL.A No. 100006 of 2019 accused killed Smt.Reena by assaulting and causing injuries to her neck and other parts of the body with a knife. Since her children Aditya and Sahitya had witnessed accused committing the offence, he killed Aditya by strangulating him with a nylon rope and thereafter drowned his head into a bucket in bathroom. Accused killed Sahitya by strangulating and keeping a pillow on her face and pressing it with his foot.
3. The prosecution examined 25 witnesses as PWs.1 to 25 and exhibited 92 documents as Exs.P1 to P92 and produced 40 material objects as MOs.1 to 40. After the investigation, prosecution filed charge sheet against the accused for the offences punishable under Sections 449, 302 and *201 of IPC. The trial Court on appreciation of evidence, passed the impugned judgment and order sentencing the accused to undergo imprisonment as above.
Submissions of Smt.Anuradha Deshpande, learned counsel for the appellant - accused:
4. Reiterating the grounds urged in the memorandum of appeal, learned counsel in her elaborate submissions emphasized that;
* Corrected vide order dated 26.08.2022 Sd/-
(MGSKJ) -4- CRL.A No. 100006 of 2019 4.1 The prosecution has based its entire case on mere assumptions and surmises and that there is no evidence of any nature whatsoever connecting the crime to the accused.
4.2 That none of the witnesses have deposed about alleged illicit relationship between the deceased-Reena and the accused and it is a story created by PW24-the Investigation Officer.
4.3 That the seizure of material objects as shown in Ex.P3 is contrary to the deposition of the witnesses which clearly establishes fabrication and planting of evidence to falsely implicate the accused.
4.4 That the finger print report by PW23 is incomplete and unreliable as the very source of chance finger prints obtained from the place of incident is not established.
4.5 That the findings in FSL report at Ex.P89 with regard to the foot mark on the pillow and with regard to the shoes allegedly recovered from the accused is unreliable for its inherent defects.
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4.6 That the call details as per Exs.P55 to P60 relied upon by the prosecution apart from being fabricated, are inadmissible for non-compliance with the provisions of Section 65B(4) of the Evidence Act.
4.7 That the entire investigation is replete with falsehood and fabrication of evidence and that the trial Court has not appreciated serious lacunas and defects in the entire prosecution version.
4.8 That there are serious contradictions and inconsistencies in the versions of the witnesses which are not in consonance with the case of the prosecution.
4.9 The trial Court has not addressed various other possibilities found in the case which would establish the innocence of the accused. Hence she submitted that the accused is entitled to be acquitted.
Submissions of Sri.V.M.Banakar, learned Additional State Public Prosecutor:
5. Justifying the judgment and order passed by the trial Court, the learned Additional State Public Prosecutor submitted that:
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5.1 The material evidence produced by the prosecution would indicate only one possibility of the accused committing the offence. The defects in the prosecution, if any would not dislodge the case of the prosecution and enable acquittal of the accused.
5.2 The recovery of the incriminating material evidence at the instance and upon the voluntary statement given by the accused are sufficient enough to sustain the judgment and sentence against the accused. That there are no merits in the case of the prosecution, hence sought for dismissal of the appeal.
6. Heard the learned counsel for the parties. Perused the records. The point that arises for consideration is:
"Whether on the facts and in the circumstance of the case, the trial Court is justified in holding that the prosecution has proved its case beyond reasonable doubt, thereby passing the impugned judgment and order convicting and sentencing the accused to undergo imprisonment for life under Sections 302 and 449 of IPC and to pay the fine as mentioned thereof?"
7. The case of the prosecution is based on the following circumstantial evidence:
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7.1 Illicit relationship between the deceased-Reena and the accused.
7.2 Seizure of 19 items marked as MOs.1 to 20 as per mahazar at Ex.P3 from the place of the incident.
7.3 Arrest of the accused on the night of 16.08.2015 and recovery of a mobile phone - MO21 as per seizure mahazar
- Ex.P17, recording of voluntary statement of the accused as per Ex.P78 and consequent recovery of nine items marked as MOs.29 to 37 as per seizure mahazar - Ex.P37.
7.4 Report dated 20.08.2015 as per Ex.P38 by Dr.Pushpa-PW11, a Medical Officer from Department of Forensic Medicine and Toxicology, Belagavi regarding her inspection of the place of occurrence.
7.5 Finger prints of the accused and the report in this regard by Sharanappa-PW23 as per Exs.P65, P66, P67, P68, P69, P70, P71 and P72.
7.6 Report dated 28.04.2016 of Forensic Science Laboratory as per Ex.P89 regarding blood stained impression of -8- CRL.A No. 100006 of 2019 the foot wear on the pillow-MO5 and comparison of the same with pair of shoes-MO33 seized at the instance of the accused.
7.7 Reports dated 06.10.2015 and 30.10.2015 with regard to use of knife-MO9 and nylon rope-MO3 recovered at the spot as per Exs.P46 and P47.
7.8 Call details collected as per Exs.P55 to P60 indicating last call made by the accused to the mobile phone of the deceased.
7.9 FSL report dated 23.09.2015 with regard to the blood marks found on the 25 material objects as per Ex.P62.
Legal principles:
8. Inasmuch as the entire case of the prosecution is based on the circumstantial evidence and on the opinion/reports of the experts, it is appropriate to outline the settled legal principles in this regard;
On circumstantial evidence:
8.1 The Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 has enumerated five golden principles in para 152 of his judgment as under:
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"152. A close analysis of this decision would show that the following conditions must be fulfilled before case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793: (1984)4 SCC 116: 1973 SCC (Cri) 1033: 1973 Cri LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
On Motive based on circumstantial evidence:
8.2 The Apex Court in the case of Tarseem Kumar V. Delhi Administration reported in 1994 Supp (3) SCC 367 at paragraph 8 has held as under:
"8. Normally, there is a motive behind every criminal act and that is why investigating agency as well as the court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been
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repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question."
On the opinion/reports of the experts:
8.3 The Apex Court in the case of Ramesh Chandra Agrawal V. Regency Hospital Limited and others reported in (2009)9 SCC 709 has held as under:
"20. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions."
In the case of Dayal Singh and others V. State of Uttaranchal reported in (2012) 8 SCC 263 has held as under:
"35.....The Courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that
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the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution...
40..... the purpose of an expert opinion is primarily to assist the Court in arriving at a final conclusion. Such report is not binding upon the Court. The Court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not...."
In the light of aforesaid legal principles, the evidence of the prosecution needs to be appreciated.
Appreciation of Evidence:
Cause of Death:
9. PW11-Dr.Pushpa M.G., has conducted the postmortem of deceased Reena, Aditya and Sahitya. She has given postmortem reports as per Exs.P42, 43, 44 and 45.
9.1 Following are the findings in respect of injuries and cause of death of Reena:
1) Stab injury measuring 3cm x 1.5 cm x cervical vertebrae deep is seen in front of the neck.
2) Stab injury measuring 2cm x 1cm x muscle deep is seen in the lower part of right side of neck.
3) Stab injury measuring 2 cm x 1 cm x clavicle deep is seen over middle of right clavicle.
4) Stab injury is seen measuring 4cm x 1cm x muscle deep, situated over front of right shoulder.
5) Two stab injuries is seen over lower part of right side of neck, joined at one end. The upper stab injury is 3 cm x
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1 cm x vertebrae deep, the lower injury is 3 cm x 1 cm x vertebrae deep.
6) Stab injury measuring 4cm x 2cmx boned is seen on the left angle of mandible.
7) Left ear lobule is cut in the middle, measuring 2 m length.
8) Stab injury measuring 5cm x 1.5cm x vertebrae deep is seen on middle of left side of neck.
9) Two stab injuries are seen below the left ear in upper part of neck making a gaping wound measuring 7cm x 3cmx bone deep.
10) Cut injury is seen over left right finger separating the nail bed from the finger and measuring 3 cm in length. Opinion regarding the cause of death:
9.2 Following are the findings in respect of injuries and cause of death of Aditya:
1) A transverse ligature mark is seen in the lower part of neck seen only anterior measuring 14cm x 0.5cm.
2) Sub-conjunctivae hemorrhage is seen in both the eyes.
Opinion regarding the cause of death:
9.3 Following are the findings in respect of injuries and cause of death of Sahitya:
1) Scalp hair are wet. Fine froth was seen coming out of the nose.
No demonstrable external injuries is seen over the body. Thus, from the above report and from the deposition of PW11, the death of the deceased-Reena, Aditya and Sahitya are proved
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CRL.A No. 100006 of 2019 to be homicidal. Therefore, the next task is to ascertain if the prosecution has established the case against the accused.
10. Before adverting to the evidence produced by the prosecution to bring home the guilt of the accused, it is appropriate to refer to the contents of the complaint which is the genesis of the case.
Complaint:
11. PW1-Hemant Babubhai Dalal, the complainant in this case is the brother of the deceased-Reena. Complaint is at Ex.P1 which briefly states that:
11.1 Deceased-Reena R. Malagatti was married to one Rakesh Malagatti-PW8, having two children, by name Aditya (11 years) and Sahitya (3 years) and was residing at Kuvempu Nagar, Belagavi. Their cousin one Harsha-PW12, was also residing with them;
* 11.2 That on 16.08.2015 at 09:47 a.m. when the PW1 was at home, Rakesh-PW8 called him stating that Reena was not picking up his calls and asked him to go home and see;
* Corrected vide order dated 26.08.2022 Sd/-
(MGSKJ)
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CRL.A No. 100006 of 2019 11.3 That PW1 immediately went to their house and found that the main gate and the main door of the house were locked and Harsha-PW12, whose room in the first floor of the house was also locked from outside, threw the keys. With that PW1 opened the main gate and he tried to open the main door but he could not open as it was locked from inside;
11.4 PW1 went to the terrace of neighbouring house of Smt.Savitha-PW9, from there he peeped into the bedroom window of Reena and found her in the pool of blood, thereafter, he asked Harsha-PW12 to break open the door of his room and come out.
11.5 Harsha-PW12 broke open the door of his room and came down and opened the main door. Thereafter, PW1, Smt.Savita-PW9 and Harsha-PW12 went up to the bedroom of Reena and found her dead body in blood and he searched for the children in the terrace and then found them in the bathroom, which was latched from outside. Aditya's neck was drowned inside the bucket and Sahitya was lying on the floor and they were dead.
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CRL.A No. 100006 of 2019 11.6 PW1 enquired with Harsha-PW12, who told him that he slept at 10:00 p.m. on 15.08.*2015 and when he woke up in the morning at 08:00 a.m., found door of his room was latched from outside;
11.7 Immediately, PW1 called Control Room and narrated the incident and filed the complaint requesting to take action in the matter.
Evidence of the persons who witnessed the place of incident at the first instance:
12. From the contents of the complaint, it appears that the very first persons who went to the place of incident are Hemanth-PW1, Harsha-PW12 and Savita-PW9. Therefore, at the outset, it is appropriate to scrutinize their evidence. 12.1 PW1-Hemanth:
a. In his deposition, PW1 while reiterating the contents of the complaint has further deposed that on the following day, i.e., on 17.08.*2015, Police informed him that the accused killed Reena and children because of his illicit relationship with Reena.
b. In the cross-examination, the PW1 has been suggested that Rakesh-PW8, the husband of the deceased was involved in smuggling activities, by which he had * Corrected vide order dated 26.08.2022 Sd/-
(MGSKJ)
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earned enemies, and the opposite group had warned him not to do business in their area; that the accused had asked Reena to advice her husband not to indulge in illegal smuggling activities which had caused the rift between Rakesh-PW8 and the accused; The witness has pleaded ignorance to these suggestions. PW1 has further stated that on the date of incident, Rakesh-PW8, his elder brother who had come from London with his daughter- Nayana had gone to Goa but he does not remember when he went to Goa.
c. It is to be noted that in his evidence, PW1 has not spoken anything about he having seen any footprints on the steps to the terrace or blood stained boot marks or chappal marks. He has also not spoken anything about he having seen the blood stained pillow with boot marks or the knife or nylon ropes or mobile phone anywhere at the scene of offence. He has stated that on the terrace, there is a teapoy on which there was a glass and a juice bottle. 12.2 PW9-Savita Nitin Birje:
a. PW9 is a neighbour, who in her deposition has stated that on 16.08.2015 at about 10:30 a.m., PW1 came and enquired her about Reena and then they went to her terrace, from there they saw through the bedroom window and suspecting something has happened, they came down and asked Harsha-PW12, to break open his room; Harsh- PW12 came down, thereafter, she, PW1 and PW12 went to the bedroom and found dead body of Reena fallen in the
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pool of blood. The dead bodies of the children were in the bathroom. That on 18.08.2015, she learnt from the Police about the illicit relationship which the accused had with Reena to be the cause of the murder.
b. In the cross-examination, the said witness has stated that her house is situated just about 3' away from the house of incident and the bedroom of Reena is about 7' to 8' above her house. That she did not hear any noise on the night of 15.08.2015. That they could see Harsha- PW12 from the road. That Harsha-PW12 threw the keys through the window by which they opened the door.
c. Even PW9-Savita has not spoken anything about she having seen foot marks, blood stained pillow with boot marks, knife or anything on the terrace or a nylon rope or the mobile phone anywhere at the scene of offence.
12.3 PW12-Harsha Redekar:
a. PW12 who was aged about 17 years purported to be the son of sister of Rakesh-PW8, had been residing in their house since May 2015 and pursuing his 1st year PUC at Gogate College, Belagavi. The said witness has stated that in the first week of August 2015, Rajesh-elder brother of PW8 and his daughter Nayana had come from London and they wanted to visit the place of the grandmother of Nayana at Goa. Therefore, on 14.08.2015, Rakesh-PW8 along with said Rajesh and Nayana went to Goa. That on 15.08.2015, he was sleeping in a separate room while
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Reena, Aditya and Sahitya were sleeping in another room. At 08:30 a.m. when he woke up, wanted to go out of his room, but found his room latched from outside and he called Reena and Aditya but they did not come. Therefore, he sent text message to the mobile of Rakesh-PW8 who called him and told that they must have gone out and to wait till they came. That about 10:00 a.m., PW1 came and he went to the terrace of Savita-PW12 and found half a body of Reena on the bed and remaining half hanging from the bed.
b. That the key bunch was lying in his room which he threw down. With that, PW1 opened the front door but could not open the main door as it was latched from inside. He broke open the door by a toy of Sahitya and came out and opened the main door. Thereafter, himself, PW1-Hemant and PW12-Savita all three of them together went to the bedroom of Reena and found her fallen dead in blood.
c. PW12 has further stated that Police came there alongwith dog squad and finger prints examiners who first inspected the dead body of Reena and thereafter the dead bodies of Aditya and Sahitya. At that time, himself, PW1, his wife Khyati-CW13, Harish-CW14 and Tejal-CW15 were present. Police collected sample blood. Police inspector conducted inquest of dead body of Reena, PSI conducted inquest of dead body of Aditya and ASI conducted inquest of dead body of Sahitya. PW2-Vinod, CW3-Vikram, CW7-
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CRL.A No. 100006 of 2019 Ashoka, CW8-Saleem, CW9-Santosh and CW10-Kashinath were present as panch witnesses. Police recovered 19 items.
d. In the cross-examination, the said witness has deposed that on 14.08.2015, Rakesh-PW8 went to Goa in his own car, but he does not remember what time he left. That when Rakesh-PW8 went to Goa, the business was being taken care of by Nitisha-PW13. On the night of the incident, he did not hear any sound of screaming. That normally the keys of the house used to be with Reena or Rakesh-PW8 and not with him but on that day, the key bunch was in his room. That he had sent a message from his mobile No.9620182362 to Rakesh No.7259800045. From his room, he could see people moving around on the road but he did not call anyone to open the door. e. The door of his room was latched from outside. He broke open the said door by using a toy. The said door was made of wood and steel and he broke it within 10-15 minutes. He does not know where all did the Police take the dog squad. He does not know how many finger print officers had come and what they did. He does not remember if the photographs of the door broken by him were taken, he does not remember if there were foot marks on the passage or the staircase. He does not remember that there was 180 ml. blenders pride bottle. He does not remember where the glass, bottle and
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CRL.A No. 100006 of 2019 cigarette packets were kept. That the accused used to visit their house to meet his uncle Rakesh.
f. That on 17.08.2015, the Police informed him about the accused having illicit relationship with the deceased and he is not personally aware of the same.
g. It is seen that even this witness has not spoken anything about the knife, blood stained pillow with foot print or a nylon rope or mobile phone of the deceased anywhere at the scene of the offence.
Evidence of persons who visited the spot along with the Police:
13. According to the prosecution version, on receipt of the information, the Investigation Officer-PW24 went to the spot and conducted mahazar in the presence of witnesses and had also called forensic experts, fingerprint experts and dog squad. Following are the witnesses:
13.1 PW2-Vinod Ramesh Khatri:
a. He is one of the panch witnesses. According to him, the place of incident was shown by PW12-Harsha; the place of incident was in the first floor; the blood was flowing out of the bedroom in which there was blood stained bed sheet and a pillow and blood was splashed on the walls. There was a mobile phone of Samsung company by the side of the bed of the Reena. Except this, the witness has not
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seen anything in the said room. After coming out of the said room, there was a bathroom in which there was a bucket and a jug. In the passage leading to the bathroom, there was a pillow with blood stained boot marks and a knife. In the terrace, there was a bamboo room in which there were two glasses, a gold flake cigarette packet, a bottle blenders pride and an empty plastic bottle. There was plastic pipe in the terrace and a ladder.
b. The Police seized 19 items namely 1)curl-on bed, 2)bed sheet, 3)pillow cover, 4)2 plastic rope, 5)1 plastic box,
6)white pillow, 7) blue colour bucket, 8) blue colour jug,
9) blue colour box, 10)steel knife, 11)red colour bed sheet, 12)one mobile phone, 13)two glasses, 14)a plastic bottle, 15)a gold flake cigarette packet, 16)empty bottle,
17)180 ml. blenders pride bottle, 18)one plastic pipe and
19)a wooden ladder, marked as MOs.1 to MO19, a seizure mahazar was drawn as per Ex.P3, photographs were taken at every stage marked as Exs.P4 to P16.
c. The said witness has further stated that at 11:00 p.m. on the same day, the Police had called him to the Police station where Mr.Rajendra Narayan Pille-PW4 was also present. Police showed them the accused and seized a mobile phone-MO21 from him which was of white colour of Samsung company and took signature of the said witness on the panchanama Ex.P17.
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CRL.A No. 100006 of 2019 d. In the cross-examination, the said witness has stated that he does not know to read, write or speak Kannada. But he understands a bit. That on the date of incident, he went to the spot at about 03:30 p.m. to 03:45 p.m. and the dead bodies were still at home. The recording of mahazar was commenced at 04:00 p.m. At that time, PSI, Police and CW3 were present. That he does not know the schedule of the property. He does not know to which direction the main door of the house is facing. He does not know which direction the door of the bedroom and bathroom is facing. That he went straight into the bedroom which was on the left side of the stair case and the bathroom was on the right side. That the half of the dead body was on the bed and the remaining half was outside the bed. He could identify the face of the dead body. He went inside the room with the Police. There was a pillow, a mobile phone, a bed sheet and blood stains on the wall, only these things were seized from the bedroom. The witness reiterated that the mobile phone which was seized was on the floor of the bedroom. That there was blood stained pillow with boot or chappal mark thereon in the passage. The knife was also in the passage. But he cannot say the length or width of the knife. That the said knife was completely blood soaked. That on the terrace, the Police seized two glasses, a water bottle, a blenders pride bottle and a plastic pipe but he cannot say the length of the pipe. The said pipe was tied to a steel pipe but he cannot say precisely the length of the pipe. He did
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CRL.A No. 100006 of 2019 not notice any blood mark, foot mark or the hand print on the pipe. There was no blood mark on the pipe or on the terrace. He has not noticed any footmark on the wall from which the pipe was hanging. He does not know the number of SIM cards or memory card in the mobile phone seized at the spot.
e. That the panchanama was prepared between 04:00 p.m. to 08:00 p.m. That the photographs were taken in his presence at every stage. That in photograph at Ex.P12, only one glass is shown and there is no gold flake cigarette packet or blenders pride bottle in the said photograph. That the knife had fallen about 2' away from the pillow in the passage, but he did not remember if the knife and the pillow had fallen before the bedroom while going from the terrace or in the passage near the room. The photograph at Ex.P9 was taken in his presence in which the entire passage between the bedroom and the bathroom is shown and there is no knife in the said photograph. The said witness has stated that the accused was wearing a T-shirt and a jeans pant while he was in the Police station on the same day evening.
f. It is pertinent to note that it is for the first time material objects such as pillow with blood stained boot marks thereon, a knife, a nylon rope, mobile phone, bottle of blenders pride, glass, rope etc., has come into the picture which was not mentioned in the evidence of PWs.1, 9 and
12.
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CRL.A No. 100006 of 2019 13.2 PW11 - Dr.Pushpa:
a. The other relevant witness at this juncture is PW11- Dr.Pushpa M.G., a Medical Officer, who has given report regarding the visit of scene of occurrence as per Ex.P38 dated 20.08.2015. The said witness in her deposition stated that she received a call from the Police station at 10:00 a.m. on 16.08.2015 requesting her to inspect the spot. Accordingly, she went to the spot at 12:30 p.m. and when she went inside the bedroom, she found things scattered and blood spilled on the floor. A blood soaked pillow and foot marks. Dead Body of Reena was on the bed. A nylon rope on the bed. She found dead body of a girl and a boy in the bathroom. As she climbed the second floor, she found a knife wrapped with a red colour bed sheet in a dustbin. That she has given detail report as per Ex.P8.
b. On a perusal of Ex.P38 apart from mentioning what she has stated above, the said report refers to she visiting the spot at 12:30 p.m. and the building having iron grill door at the entrance. She has also mentioned in the report that on entering the first floor immediately towards the left, there is a bedroom from which the broken pieces of wooden door was scattered on the floor on the entrance. The room is seen disturbed.
c. In the cross-examination, the said witness has stated that in the report, there is no mention with regard to the blood stained foot prints. That she has not seen the
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wooden pieces or door latch of the bedroom door. That the pillow was in front of Reena's room door. The blood stained foot mark was not in the centre but on the edge of the pillow. That she has not seen bed, blanket and mosquito net in the room. That she has not mentioned in the report Ex.P38 regarding the blood either on the body of the deceased or on her dress. That she has not mentioned in her report about the blood stains on the nylon rope. That she has not seen which part of the dead body was on which direction of the bed in the room. According to her experience, the assault must have taken place when the body was in a standing position and thereafter it has fallen on the bed. That there were no signs of the deceased running around before her death. That when she saw two dead bodies in the bathroom, she did not find the same having been killed outside and thereafter brought into the bathroom. That the dustbin in which the knife was found was placed near a door which was closed and she has not seen the place around that dustbin. She does not remember the colour, size and the material of the dustbin in which the knife was found and no mention has been made in her report regarding the same. She has not stated in her report if the blood stains of knife in the dustbin was found on any other particles of the dustbin. She has also not mentioned about any blood stains to the dustbin.
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d. It is interesting to note that in her report at Ex.P38, there is no mention with regard to mobile phone, two glasses, 180 ml. blenders pride, juice bottle, cigarette pack, pipe or ladder.
13.3 From the above deposition of PW11, her visiting to the scene of offence as claimed by the prosecution itself is doubtful, as the same is not in consonance with the deposition of other witnesses. No other witness has spoken about her presence at the time of drawing mahazar.
13.4 As seen from the evidence of PWs.2 and 11, a story of discovery of knife and blood stained pillow with foot mark from two different places with completely two different descriptions is introduced. While PW2 has spoken about the knife and pillow found in the passage, PW11 claims to have found the knife wrapped in a red bed sheet thrown in the dustbin on the terrace and the blood stained pillow near the door of the room of the deceased. PW2 has found the mobile, at first instance, near the bed of the deceased and later, on the floor of the bedroom. There is no mention about the mobile in the report at Ex.P38. There is no whisper of any broken door found by PW2 or in Ex.P3 while in Ex.P38, PW11 has stated to
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have found broken wooden piece of the door scattered on the floor. As noted above, there is also serious discrepancies with regard to the very positioning of the dead bodies and their alleged blood stains on the dresses giving rise to serious doubt about the versions of these witnesses.
13.5 Spot sketch:
a. The prosecution has attempted to describe the place of incident with the support of a spot sketch. It is appropriate to refer to the same here for better appreciation of the circumstances. PW14 has prepared the spot sketch at Exs.P48 and P49. The said witness has stated that he received the letter to prepare the spot sketch on 18.08.*2015 and he went to the spot on 22.08.2015 and prepared the sketch as per Exs.P48 and P49. In the cross-
examination, the said witness has stated that the house is facing east. That in Ex.P49 he has not mentioned as to what is situated towards the north of the spot, though according to the witness mentioning of the boundaries is essential to identify the property. Referring to Ex.P48, the said witness states that he has not mentioned about existence of any windows in the bedroom. He admits that to reach the portion shown in the sketch as gallery, one has to go through the place marked as 'D' in the bedroom and thereafter another 'D' marked near the Pooja room and again another 'D' shown at the entrance. He states * Corrected vide order dated 26.08.2022 Sd/-
(MGSKJ)
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CRL.A No. 100006 of 2019 that he prepared the sketch as instructed by the Police. He further admits that he has not mentioned if the doors were of steel or of wood, it was not mentioned about the bamboo palace.
b. The sketch at Ex.P48 becomes pertinent to corroborate the version of PWs.1, 9 and 12 who have spoken that PW12 was inside the bedroom and he could see people moving on the main road and that he threw the key bunch from his bedroom to PW1. Perusal of the sketch at Ex.P48 which does not show any window on the said bedroom and which refers to a space shown as a gallery would create a doubt as to how PW12 could throw the keys from his bedroom when there is no window towards the east and which is apparently obstructed by a gallery. 13.6 Evidence of Finger print expert:
a. The prosecution has claimed that when they visited the spot, they had called the finger print experts to inspect the spot. In this regard, PW23-Sharanappa has been examined. The said witness in his evidence stated that on 16.08.2015 he received the information from the control room to inspect the place of incident. The respondent-
Police had issued requisition as per Ex.P65 to collect the finger prints and to examine. Accordingly, he examined the doors, two glass tumblers, one water bottle, a juice bottle, a whisky bottle, a steel knife, a cigarette pack and found two chance finger prints on the said items which
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CRL.A No. 100006 of 2019 were subjected to examination. Thereafter, on 17.08.2015 the Police had sent two sample finger prints for examination and comparison as per Ex.P66 along with finger prints search slip as per Exs.P67 and P68. On comparison of the chance finger prints with the sample finger prints, he found similarity between one of the chance finger prints with that of the sample finger prints sent for examination and he has submitted a report in this regard as per Exs.P69, P70, P71 and P72.
b. In the cross-examination, the witness has stated that the finger prints found on the glass and steel are called 'chance finger prints' and they are examined by using various methods and in the present case, they had used sliver powder method to collect the chance finger print, but there is no mention regarding the same in the report. He has stated that he inspected the spot along with his other staffs namely Nadaf, Venkatagodi and Athari, but he has not mentioned their names in his report. That the chance finger prints collected at the spot were handed over to the finger print office by his staff, but he has not mentioned in the report the name of the staff. He also does not know if there was any record for having received such chance finger prints. That there is no entry as to the time at which the said chance finger prints was received by his office. Witness says that at 11:00 a.m., the said chance finger prints were received at his office and the same was entered in a register. That he went to the spot
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CRL.A No. 100006 of 2019 at 04:00 p.m. by which time chance finger prints were already collected and taken away. That the said chance finger prints were collected in a room on the first floor of the building and no photographs has been taken in this regard. Referring to Ex.P12-a photograph, the said witness says that the chance finger print was taken from the place shown in the said photograph, but he does not know who has taken the photograph. He further states that two glasses, cigarette pack, knife, whisky bottle were not in the place shown in the photograph-Ex.P12. That he has no document of his visit to the spot on the said date. He admits that the chance finger prints were not taken in the presence of any panch witness and no photographs were taken in this regard.
c. That he collected the chance finger print from the whisky bottle and the glass. He has mentioned regarding the same in the Crime Inspection Report, but he does not know if the same was produced by the Investigating Officer before the Court. He admitted that he has not mentioned as to what time the finger prints were collected. He does not know as to who has given finger print search slip at Ex.P68. Referring to Ex.P71 which consists of right hand pointing finger print, the witness says that he does not know as to who has identified the said mark. He states that there is another chance finger print found on the spot and the same is in his office file and not given to the Police and that the same might
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CRL.A No. 100006 of 2019 belong to some other person. He admits that in his report, he has not stated that the chance finger print was collected from the glass but has stated about the same in the spot inspection report which is not produced before the Court. He has also not stated about another chance finger print found at the spot. He has admitted that generally finger print on the glass would remain for about 15 to 20 days if they are untouched. In some cases, they may even remain up to two to three months depending upon the weather conditions.
13.7 From the deposition of the said witness and on going through the exhibits, it appears that the said witness has gone to the spot at 04.00 p.m. by which time the chance finger prints were already collected and taken by his staff. He has not specifically mentioned in his report, the source of chance finger print which was subjected to examination and comparison with the finger prints of the accused. the prosecution has not examined the persons who purportedly collected the chance finger prints from the scene of offence. This leads to a serious doubt with regard to the very process of collecting the chance finger print from the spot.
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CRL.A No. 100006 of 2019 13.8 Dog squad:
a. PW17 is Maharudra Jagadish Elameli has in his evidence stated that on 16.08.*2017 on receipt of call from the control room, he went to the spot of the incident and on inspection, the dog went through the staircase to the terrace and inside a bamboo room and thereafter went up to the parapet wall and stood there and report in this regard is as per Ex.P52.
b. In the cross-examination, the said witness has admitted that once the dog catches the smell, it will follow the suspect wherever he has gone till the last point. The dog in this case stood only near the parapet wall. That he did not take the dog to a house situated next below the house of the incident. He also admits that if a person jumps over to another house, the smell would continue and the dog would follow, but he did not take the dog beyond the parapet wall.
13.9 From the perusal of this witness, it is highly improbable that the investigation could not be continued further though according to the prosecution there were enough clues and material indications such as ladder, blood stained plastic pipe tied and hanging from a steel pipe of the terrace towards the rear side. Despite these indications, the dog stood near the parapet wall and the investigation was stopped at that. This * Corrected vide order dated 26.08.2022 Sd/-
(MGSKJ)
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CRL.A No. 100006 of 2019 piece of evidence is absolutely of no avail to the case of the prosecution in any manner whatsoever.
14. In the light of aforesaid inconsistency and contradictions in the evidence of PW2, PW11, PW23 and PW17, we need to ascertain if PW24 - the Investigation Officer has been able to connect the dots and establish the links in the chain of events, as regards the versions of the aforesaid witnesses, which is dealt with hereunder while referring to the evidence of PW24.
Recovery of material objects at MOs.1 to 19 at the scene of offence and recovery of MOs.29 to 36 upon the information provided by the accused in his voluntary statement:
15. The prosecution has heavily relied upon recovery of 19 material objects at MOs.1 to 19 at the scene of offence and 8 material objects marked as MOs.29 to 37 apparently upon the information allegedly given by the accused. further the prosecution has relied upon the reports of PW22 and PW25 to establish the link between recovery of facts with the commission of the crime. It is settled law that the courts have to be circumspect in relying upon the voluntary statement of the accused in view of the bar contained under Sections 25 and 26
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CRL.A No. 100006 of 2019 of the Evidence Act. However, Section 27 of the Evidence Act provides rule of exclusion and the bar contained in the said sections. It is also equally a well settled law that part of the information given by a person, whilst in police custody, whether the information is confession otherwise, which distinctly relates "to the fact" thereby discovered but no more, is provable in the proceedings in which he is charged with the commission of offence.
15.1 The Apex Court in the case of Anter Singh vs. State of Rajasthan reported in (2004) 10 SCC 657 has summed up the various requirement of Section 27 of Evidence Act, as under;
"16. The various requirements of the Section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused's own act.
(4) The persons giving the information must be accused of any offence.
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CRL.A No. 100006 of 2019 (5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
15.2 In the light of the above law, it is to be appreciated if the prosecution has established the relevancy of discovered fact connecting it with the crime.
15.3 PW7 Mohammadgouse Badesab:
a. He is a witness to the seizure mahazar at Ex.P37. The said witness has stated that on 17.08.2015 he went alongwith the Police at 11:00 a.m. and the accused led them to his house and took them to a room on the first floor and handed over a plastic bag from which he pulled out following items:
ii) a black colour jerkin - MO29
iii) a grey colour t-shirt - MO30
iv) a jeans pant - MO31
v) a white plastic bag - MO32
vi) black and white coloured canvass shoe/sports shoe - MO33
vii) a pair of hand gloves - MO34
viii) two condom packets - MO35
ix) two books - MO36
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CRL.A No. 100006 of 2019
b. The above items are marked as MOs.29 to 36 and six photos taken at that time marked as Ex.P27 to P32. Thereafter, the accused took them to a place behind a board shown as KLE swimming pool and after searching by the side of the road he picked up a mobile phone of Samsung company which is marked as MO37. The photographs taken there are marked as Exs.P33 and P36. c. In the cross-examination, the said witness has stated that he was not aware as to when did the photographer come to the house. That when they reached the house, there were already 4 to 5 people and another Police jeep was present at the spot. But he does not know if the said jeep had come before they reached the spot or later. He has pleaded ignorance if the photograph at Ex.P28 was taken before he went to the house. He does not know if the photographer was a private person or from the department. He does not know the number of shelves present in the room and he does not know from which self the accused handed over the bag. He does not know what was written on the bag handed over by the accused. He does not know the number and the address of the house which was shown by the accused. He does not know if there was any detail mentioned in Ex.P37 regarding the same. He does not know the schedule of the house shown by the accused. He does not know if anything was written on the t-shirt. He does not know if the t-shirt was blood stained. He does not know the brand name of jeans pant and if there were any blood stains thereon. That no details
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are provided in mahazar in that regard. He admits that in the seizure mahazar, the colour of the boots is shown as black and white. He does not know what was written below the shoe. That there was no blood stains in the shoe mentioned in Ex.P31. They have not taken photographs of hand gloves, condoms or the books. He does not remember how many signature he affixed and before which officer. He does not know how 3 to 4 Police Officer personnel came to the spot. He does not know the spot where the accused took them from his house. He does not know the model of the Samsung mobile phone seized and the same is not mentioned in the mahazar. He does not know the colour of the mobile phone. The Police have not opened the mobile phone at the spot. He does not know if it was a dual SIM mobile. That the Police did not put any SIM to the said mobile in his presence. He does not know the schedule of the place where the mobile was seized. He does not know who wrote the panchanama. d. A perusal of Ex.P37 suggests that the shoes which were seized at item No.4 were of white and blue colour. According to the witness, the colour of the shoe was black and white. Even in Ex.P64, which is an acknowledgment given by the regional forensic science laboratory dated 02.09.2015 at item No.22, the colour of the shoe is shown as white and blue blood stained. But in the photograph at Ex.P31, the colour of the shoe is white and grey stripes with red colour lace.
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CRL.A No. 100006 of 2019 e. From the deposition of the witness who has pleaded ignorance about the address, boundaries, name of the place from where the recoveries are alleged to have been made and also from his statement that already 4 to 5 Police personnel and the photographer were present when he reached the spot, the reliance on the story of prosecution with regard to recovery of MOs.29 to 37 becomes doubtful. Further, it is beyond the comprehension as to why a person who commits such a heinous offence, collects all the incriminating evidence as referred to above and put them in a bag and keep in a bookshelf of his house accessible to everyone. It is also perplexing that when he has kept all the materials in his house in the bookshelf, why did he go far away place to throw the mobile phone. This question has not been answered by the prosecution, thereby creating a doubt with regard to recovery of material objects. It is equally pertinent to notice that according to the witness, he did not notice any blood stains either on the shoes or on the t- shirt and jeans pant handed over by the accused. However, in the report of the forensic examination at Ex.P62, there were blood stains on these items. Regarding Forensic Examination reports :
15.4 The prosecution is relying upon the forensic examination of certain material objects and the reports of PW22 and PW25 in this regard.
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CRL.A No. 100006 of 2019 15.5 In that PW22-Dr.Geetha Lakshmi has stated in her evidence that she received the letter for examination of 25 sealed articles on 02.09.2015 and conducted the test thereon. As per the report at Ex.P62 item Nos.1, 2, 3, 4, 6, 8, 10, 12, 13, 14, 17, 18, 19, 20, 21 and 23 were stained with 'o' blood group. Blood grouping of blood stains on item Nos.9, 11 and 22 could not be determined as the result of test were inconclusive, presence of seminal stains was not detected in item Nos.7 and
26. Item No.9 is a bed sheet, item No.11 is a ladder, item No.22 is a pair of shoes on which according to the report, the blood grouping could not be determined.
15.6 In the cross-examination, the said witness has stated that she received all the articles on 02.09.2015, but she does not remember if it was 17 days of the incident. She has admitted that she has not mentioned identity of the shoes at Sl.No.3. She has also not mentioned in the report the tests conducted with regard to the blood stains and the method adopted for conducting the tests. That she has not mentioned in the report as to the extent of the blood stains found on the material objects. That she has not examined finger prints on the
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CRL.A No. 100006 of 2019 hand gloves mentioned at Sl.No.23. She has not mentioned if the blood group was of a female or of a male.
15.7 The aforesaid deposition read along with Exs.P62, P63 and P64 would suggest that the items were sent for forensic examination after 17 days of the incident while the case of the prosecution is that on the very same day of the incident, expert from the forensic unit had come for inspection of the spot.
15.8 The prosecution has heavily relied upon report of Forensic Science Laboratory as per Ex.P89 in linking the pillow with blood stained boot mark with the boot purportedly recovered at the instance of the accused.
15.9 PW25 has stated that on 23.11.2015 he received two sealed objects namely a pillow and a pair of shoe and he has given opinion that the boot mark found on the pillow tallies with the right boot and the report is as per Ex.P89. The said witness has given the description of the pillow and of the pair of boot. The said pillow is marked as MO5 and the boots are marked as MO33.
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CRL.A No. 100006 of 2019 15.10 In the cross-examination the said witness has admitted that in the report he has only mentioned the boot mark on the one side of the pillow and has not specifically mentioned the particular portion of the pillow; the witness further admitted that in the report he has stated "impression appears to be bloodstained" but could not specifically point out if it was blood; and that there is no report as to if it was blood mark or not. That in the report, there is a mention with regard to "one footwear impression appears to be bloodstain" but he has not specifically mentioned in the report if it was boot mark or chappal mark; that except these two items no other objects were sent for examination. The said witness has further stated that there is no mention in the report as to which portion of the sole of the boot was matching with the impression; that there is no mention in the report as to whether the shoe was of a flat sole or had ridges or with regard to the company mark thereon; that since there are no details about the company in the report, it cannot be said as to which company the boots made of; that similarly there is no mention in the report if the boots were of plastic, leather, or synthetic and also there is no mention if it was ordinary shoe or sports shoe; That there is no mention in
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CRL.A No. 100006 of 2019 the report with regard to the measurement of the boot mark on the pillow; there is also no mention if the shoes were of kids, ladies or gents; that in the report, there is no mention with regard to length and breadth of the shoe though the size of the shoes are normally mentioned on the sole; that the Investigation Officer has not sent the detail description of the shoe; that the impression were compared only through open eyes and they have not been examined through microscope; that a company can manufacture shoes of the same size, same number, same type and they would have worn out by usage but there is no mention regarding the same in the report.
15.11 It is noticed in Ex.P89 the description of article No.2 is given as "colour of shoe is grey, white and with red laced type". As seen from the evidence of PW7 and PW25 i.e., serious contradiction and discrepancy with regard to identity of the shoe. The one which finds mentioned in the seizure mahazar i.e., Ex.P7 is different from the one which is found in the report at Ex.P89. No explanation is forthcoming. Giving rise to serious doubt with regard to this piece of evidence being used by the prosecution to establish the guilt of the
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CRL.A No. 100006 of 2019 accused of he killing Sahitya by strangulating and pressing the pillow by his boot.
15.12 A reading of evidence of PW7, PW22 and PW25 in the light of the law laid down in Ramesh Chandra Agarwal, Dayal Singh and Anter Singh (supra), the prosecution has failed to prove the relevancy of the articles recovered by them allegedly upon the information provided by the accused in his voluntary statement connecting the same to commission of offence.
Evidence of Rakesh Shivalingappa Malagatti-PW8:
16. In the totality of the circumstance of the case, evidence of PW8, the husband and father respectively of deceased Reena, Aditya and Sahitya requires a close scrutiny;
16.1 The said witness has stated that he is carrying on the business of readymade garments and cut piece under the name and style of "Rock On" at Tilakwadi near gate No.1, Belagavi. That he goes to shop everyday and the shop is open between 10:00 a.m. to 09:00 p.m. and was coming home at 02:30 p.m. and going to shop at 06:00 p.m. after taking rest. In his absence, PW13-Nitesh Langarkhande was taking care of the
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CRL.A No. 100006 of 2019 shop. PW12-Harsha Redekar is the son of his sister who is pursuing his PUC in their house. His brother Rajesh had come from London during the first week of August and on 14.08.2015, he, his said brother and his daughter Nayana went to Goa to visit the in-laws of his brother.
16.2 That on 16.08.2015 at about 08:30 a.m. he received a message from the mobile phone of Harsha. His wife and children used to sleep in a separate room and Harsha in another room. That Harsha informed him about his room having been locked and there was no response to his calls by Reena and the children. That he called on to the mobile of his wife and there was no response. That Reena was using three mobile numbers. Since she did not answer the mobile, he informed Hemanth PW1 and asked him to go to the house and who informed him about the incident. That on 16.*08.2015 he came to Belagavi and found the Police in his house. Police had taken the dead bodies to the Mortuary. He gives the description of his house.
16.3 He further states that on 17.08.2015 he learnt from the Police that there was illicit relationship between his wife and the accused and that his wife was insisting the accused to come * Corrected vide order dated 26.08.2022 Sd/-
(MGSKJ)
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CRL.A No. 100006 of 2019 when he was away and had also threatened the accused that she would reveal if she did not come and that apprehending destruction of his marriage prospects, the accused had killed his wife and children.
16.4 He has stated that accused used to visit his house. That on the following day of the incident, Police had recovered a mobile phone and he identified the same to be that of his wife with the SIM card No.9591211928 which is marked as MO37.
16.5 In the cross-examination, the PW8 has stated that the accused used to frequently visit his house, was having tea and was speaking to him his wife and children and also his mother. That the house of the accused was just about one house away, behind his house. That he never suspected accused at any time. That accused had come to his house a few days before the date of the incident and had tea.
16.6 That himself and his brother Rajesh are the only two children to his parents. That Harsha PW12 has been residing with him since May 2015. He does not have any document to show in which college said Harsha was studying. He does not
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CRL.A No. 100006 of 2019 remember the mobile number from which the said Harsha had sent him the message.
16.7 That prior to the date of incident, he had purchased a SIM card in the name of PW13-Nitesh Langarakhande. That there was no difficulty in he purchasing the SIM card in his name. That he purchased the said SIM card to be used by his brother who was to come from London. He does not remember when the said SIM card was purchased by PW13 and when was the said SIM card was activated. He states that the said SIM card was activated about 15 to 20 days prior to the date of the incident in the mobile phone of the deceased. The said mobile is the one he identified before the Court during his examination-in- chief which the Police had shown him in the afternoon of 17.08.2015. He admitted that he cannot say if the said SIM card was fixed in mobile phone at MO37.
16.8 That he has no document to show that he had gone to Goa on 14.08.2015 at 12:30 with his brother and niece. He has no document to show that he stayed in Goa. He does not remember from which mobile number his wife was calling him. He admits that on 15.08.2015 he had received a call at 11:00
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CRL.A No. 100006 of 2019 p.m. That on 16.08.2015 when he called Hemanth PW1 he was in Madagaon of Goa. But he has no document to show the same. After learning about the incident between 09:30 and 10:00 a.m., he came to the spot at 03:30 p.m. He admits the distance between Madagaon and Belagavi was 150 kms.
16.9 That he has two mobile numbers, another in the name of PW13. He admits that there was no SIM card purchased in the name of the deceased. That mobile No.9591211928 and 9986402442 are in his name. That mobile No.9591211928 was purchased in his name and in the address of the place of incident. He does not remember which is the address in which he purchased another mobile number.
16.10 That the accused used to come home to collect money for Ganapati festival and had cool drinks. He had never thought before the incident of accused having illicit relationship with his wife. That when he reached home on 16.08.2015 at 03:30 p.m. dead bodies were not there. He only saw the blood spilled on the first floor of the house and except that he has not seen anything. He did not notice any footmark or boot marks.
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CRL.A No. 100006 of 2019 He has not seen knife or blood stained pillow anywhere in the passage.
16.11 That his mother had passed away on 16.04.2015 in the bathroom and he was not there at home at that place and he had come home between 11:00 to 11:30 p.m. on the said date and she was cremated on the following date. He pleaded ignorance that the neighbours talking about his mother having been murdered. Even when the mother died he was not at home. He denied the suggestion that his opposite group from Mumbai had asked him not to carryon smuggling in the area and it was during this period his mother was died. Similarly, even in the present event, the opposite group had threatened him not to do smuggling and in his absence, they have killed his wife and children and for the same reason being scared, he did not come home till the dead bodies of his wife and children were taken for postmortem. He has reiterated that he learnt from the Police the reason for the killing of his children being illicit relationship which the deceased had with the accused. To a question that when he came at 03:30 p.m. to the spot, accused was present and was assisting the Police in their activities, he has answered that at that time he was inside the house.
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CRL.A No. 100006 of 2019 16.12 Evidence of this witness needs to be read along with the evidence of PW4 and PW13 which is extracted hereunder:
PW4-Rajendra Narayan Pille (a neighbour):
The said witness stated that he carrying on the work of a cable operator and visits every house in the locality for collection of cable money. That on 16.08.2015 he went to the place of incident between 02:00 and 02:30 p.m. and saw the dead body and he witnessed the panchanama at Ex.P19. Again evening of 16.08.2015, the Police had taken his signature on Ex.P20 a seizure mahazar. At 11:00 p.m. of 16.08.2015 the Police had called him to the station while seizing the mobile phone from the accused as seizure mahazar at Ex.P17. In the cross-examination, the said witness has stated that he went to Police Station, he saw the accused in blue jeans pant and grey colour t-shirt. That eight months prior to the date of incident, mother of Rakesh had passed away. That he was aware and also heard from the people that she died under suspicious circumstances and she was cremated hurriedly without lodging any complaint with the Police.
PW13-Nitisha Sadananda Langarakhande:
PW13-Nitisha Sadanada Langarakhande who has stated that on 01.08.2015 elder brother of Rakesh had come from London. Therefore, Rakesh had asked him to
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buy a SIM card in his name and accordingly he gave his election ID card to Rakesh. He learnt that the SIM card No.9591211928 was purchased and the same was activated in the mobile of Reena. That he learnt about the death of wife and children of Rakesh through TV on 29.08.2015 and from the Police. In the cross-examination, the said witness has stated that he only bought the SIM card, but he does not know personally who was using it, though Rakesh had told him that the said SIM card is required for his elder brother Rajesh. He identifies his father's phone No.9491197266 through which his father was communicating with Rakesh.
16.13 From the tenor of the deposition and the manner of answers given by PW8 read along with the PW4 and PW13 following points emerge for consideration:
(i) The purpose of purchasing the SIM cards in his name and in the name of PW13 and activating the same in the mobile of the deceased Reena.
(ii) His absence at the time of death of his mother on 16.04.2015 and absence in the present event and reaching at 03:30 p.m., even after receiving the information at 10:00 a.m. from a distance of about 150 kms.
(iii) Not furnishing the details of the place of his visit at Goa.
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CRL.A No. 100006 of 2019
(iv) Learning about the illicit relationship for the first time from the Police and never suspecting the deceased any time prior to that.
(v) Not noticing anything in the place of incident except blood spilled on the first floor at 03:30 p.m.
(vi) Not explaining the relationship of PW12 and not furnishing the mobile number or the message received from Harsha.
16.14 It is strange, when according to PW8, PW1 and PW12, Nitish was in-charge of business of PW8, he learnt about the incident through Television on 29.08.2015 and the SIM card which was apparently purchased in his name to be used by Rajesh, was activated in the mobile of deceased-Reena.
16.15 The prosecution has not made any investigation with regard to these aspects of the matter. Prosecution has neither examined his brother-Rajesh nor has collected any material evidence of he and his daughter visiting India and going to Goa, gives rise to surprise as on the say of PW8.
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CRL.A No. 100006 of 2019 Call details:
17. The prosecution has relied upon the call details obtained in the matter in establishing the motive circumstance of the case.
17.1 According to PW24-Investigation Officer, he suspected the illicit relationship between the accused and the deceased only based on the calls between them. The Trial Court has also accepted this version of the prosecution. Admittedly, there has been no compliance by the prosecution with regard to the mandatory requirement of Section 65B(4) of the Indian Evidence Act.
17.2 PW21 has spoken about preparing the call details of the mobile phone numbers namely i) 9902299261, ii) 8867875357, iii) 8861163116, iv) 9986402242, v) 9591211928 and vi) 9620932332 for the period between 30.04.2015 to 16.08.2015. As per Ex.P55, P56, P57, P58, P59, P60 and P61. In the cross-examination, the said witness has stated that he had no authority to collect the call details. That he has not produced any letter or mail requesting for obtaining the call details. He also admitted that the call details in respect of mobile phone
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CRL.A No. 100006 of 2019 No.9591211928 is provided only of 15.08.2015 at about 11:54 p.m. and he does not know if the said SIM card was active after 11:55 p.m. of 15.08.2015. That he has given the information regarding the said mobile between 01.08.2015 to 15.08.2015 alone. That in Sl.No.131 and 132 of Page 52, the mobile No.9591211928 is mentioned, but the last two digits "28" are missing. That the address of the receiver of the call is mentioned as Plot No.165, Sahyadri Nagar, Boxite road. Similarly at page 52, Sl.No.76, the same address is mentioned as receiver's address. That mobile No.9591211928 has not been used between 01.08.2015 to 15.08.2015. Though he has given information regarding six mobile numbers, he has not given the information as to in whose name the said SIM cards are obtained. He has not given the information as to mobile No.9591211928 being in the name of PW13-Nitisha Langarakhande. He does not know that once he receives the call details, he cannot delete or insert any other number. He cannot say which were the companies to which these SIM cards belong.
17.3 Learned counsel for the appellant has brought to our notice that there are serious inconsistencies and errors in the case of the prosecution referred to the call details as exhibited
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CRL.A No. 100006 of 2019 at Exs.P55 to 57. In that, she pointed out that the telephone numbers which according to the prosecution belong to the deceased-Reena namely Nos.9986402242, 9591211928 and 9620932332, were in the names of PWs.8 and 13 and there were inter se calls between those numbers. She also pointed out that the Mobile No.91-9511211928, which the prosecution claims to be that of the accused and on which he had received the last call from the deceased, belonged to his mother and the same has not been seized. She also pointed out that the calls at Sl. Nos.131 and 132 between the mobile numbers of the deceased and the accused cannot be relied upon as there appears to be tampering of the documents, as the mobile numbers and the dates are not completely mentioned there. There appears to be incompletion in the prosecution version with regard to the call details.
17.4 Be that as it may, the aforesaid evidence regarding call details is inadmissible in view of the law laid down by the Apex Court in the case of Ravinder Singh @ Kaku vs. State of Punjab (supra), wherein at paragraph 20 it is held as under:
"20. Lastly, this appeal also raised an important substantive question of law that whether the call records produced by the prosecution would
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be admissible under section 65A and 65B of the Indian Evidence Act, given the fact that the requirement of certification of electronic evidence has not been complied with as contemplated under the Act. The uncertainty of whether Anvar P.V. vs P.K. Basheer & Ors (2014) 10 SCC 473] occupies the field in this area of law or whether Shafhi Mohammad v.
State of Himachal Pradesh (2018) 2 SCC 801 lays down the correct law in this regard has now been conclusively settled by this court by a judgement dated 14/07/2020 in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal [ (2020)7 SCC 1) wherein the court has held that:
We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly "clarified" in Shafi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.
Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl) No.9431 of 2011 reported as Shafi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
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CRL.A No. 100006 of 2019 The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4)."
17.5 The Apex Court while laying down the aforesaid law, has taken into consideration the possibility of manipulation, insertion and alteration and fabrication in the piece evidence falling within this category. It is to obviate these possibilities of manipulation, the compliance with the requirement of Section 65B(4) of the Evidence Act is made mandatory for the purpose of admissibility of evidence of this category. In the light of the aforesaid principles of law, the piece of evidence namely Exs.P55 to P60 not having been complied with the law is inadmissible.
Deposition of the Investigation Officer-PW24:
18. We have already noticed serious inconsistencies, gaps, missing links, contradictions in the story of prosecution
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CRL.A No. 100006 of 2019 while dealing with the evidence of PW2, PW11, PW23 and PW17. This brings us to the task of analyzing the evidence of PW24 to ascertain if he has established the links in the chain of events;
18.1 PW24 in his deposition has reiterated the entire process of investigation conducted by him from the date of the incident till filing of the charge sheet. In the cross-examination, the said witness has stated that when he went to the spot around 10:00 a.m., PW1, PW9 and PW12 were present at the spot. He had summoned the finger print experts, FSL experts, dog squad and a doctor from the department of Forensic Medicine and Toxicology, Belagavi and Institute of Medical Sciences, Belagavi.
18.2 PW24 has further deposed that on receiving the complaint at Ex.P1 from PW1 at the spot, he went to the Police Station which is 3 kms., away from the place of incident for registration and thereafter, he returned to the spot at about 01:35 p.m. That during his absence between 12:30 p.m. to 01:30 p.m., he had authorized one PSI to carry on the investigation, but there is no mention about the same in the charge sheet. He further states that during his absence, the
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CRL.A No. 100006 of 2019 finger print officers, dog squad officers, the officers from forensic science laboratory BIMS, and the FSL officer had came and gone. He however denied the suggestion that he was not present when the officers referred to above had visited the spot. Regarding Illicit Relationship:
18.3 In his deposition, PW24 has claimed that since the accused being unmarried was continuously calling the deceased-
Reena, he as an Investigation Officer suspected the accused having illicit relationship with deceased-Reena. He has also stated that he learnt about the illicit relationship through secret sources. Except this, there is no other evidence produced by the prosecution regarding the illicit relationship.
18.4 As noticed above, PW1, PW8, PW9 and PW12 have specifically deposed that they learnt about the motive for the commission of offence being the illicit relationship between the accused and deceased Reena from the Police on 17.08.*2015. In the cross-examination, the said witnesses have categorically stated that they had not suspected anything about the relationship between the deceased and the accused. This is extremely fragile and scanty piece of evidence being merely the * Corrected vide order dated 26.08.2022 Sd/-
(MGSKJ)
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CRL.A No. 100006 of 2019 suspicion of PW24 alone not having been corroborated by any other witnesses cannot be countenanced under any circumstances.
Regarding the scene of offence and recovery of material objects therefrom:
18.5 He has stated that though he found the knife in the terrace but in the inquest panchanama at question No.12, it is mentioned as "some weapon". He admits that PF No.32/15 consists of MOs.1 to 7 and PF No.31/15 consists of MOs.1 to 18 but there is no mention of mobile at MO13 in any of the PFs., and he has not produced PF with regard to the said mobile. He denies the suggestion that mobile at MO13 was not seized and that the same was created for the purpose of the case.
18.6 MO14, the pipe which was touching the neighbouring house has not been produced before the Court.
Though in the photograph at Ex.P12, MO17-namely gold flake cigarette, MO19-blenders pride bottle have not been shown, he denied the suggestion that the said MOs., were created for the purpose of the case. He admits that in the photograph at Ex.P6, there are no boot marks. He denies that MOs.24, 25 and 26
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CRL.A No. 100006 of 2019 being the dress of Aditya did not have any blood stains (note: in the post mortem report, there is no mention with regard to any blood stains found on the dress of Aditya). He states that though the said dress was sent to FSL, he has not seen if there were any blood stains on the said dress. He has not mentioned about the same in the mahazar. Similarly, he has not mentioned in the mahazar about any blood stains in MOs.27 and 28, the dress of Sahitya (note: in the post mortem report of Sahitya, there is no mention with regard to the blood stains on the dress of Sahitya). Regarding Finger Print Officers:
18.7 As regards the evidence of the finger print officer;
PW24 in his deposition has stated that he addressed a letter- Ex.P65 to the Finger Print Unit, but the same does not contain the time at which it was delivered or any response in that regard.
18.8 That though the finger print officer had come to the spot, no mahazar was drawn in his presence. He admits that mobile phone found on the bed of deceased - Reena had not been sent to finger print officers. Similarly, he admits that the
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CRL.A No. 100006 of 2019 knife and plastic pipe were also not sent to the finger print officers.
18.9 Further, he states that on the night of 16.08.2015, he obtained finger prints of the accused. That there is no mention in Ex.P68 regarding the timings of obtaining said finger prints. That he had received only finger prints analysis report as per Ex.P71. To a question if Exs.P68 and P71 are the finger prints taken at the Police station, he has replied that he had sent the finger prints of the accused for the purpose of comparison and after verification and analysis, a report had been given which he has produced. That Exs.P67 and P68 were received in the Police station on 17.08.2015 and that he had sent three copies of finger prints but there are no documents in that regard. He does not remember through whom did he sent the finger prints of the accused for verification and there is no endorsement with regard to the finger prints of the accused having been received by the finger print officer. He admits that between 01:00 p.m., to 02:00 p.m., on the date of incident, the finger print officer Sharanappa must have come to the spot but he does not know from where did he come from. That he has
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CRL.A No. 100006 of 2019 not been given any document by the said officer regarding the mahazar conducted by him.
18.10 When the deposition of PW23 is read with the deposition of PW24, the entire process of obtaining the finger prints of the accused comparing the same with the purported chance finger prints found at the spot and the report submitted thereof appears to be shaky and unreliable. Both PWs.23 and 24 are not clear as to where did they collect the chance finger print reports from. As already noticed, there is serious contradiction regarding the presence of very objects such as glass, 180 ml. blenders pride bottle and knife.
Regarding visit and Inspection of scene of occurrence by Forensic Science Department:
18.11 As regards the presence of PW11-Dr.Pushpa M.G. who has given the report of her visit to the scene of occurrence as per Ex.P38, PW24 has deposed that his requisition as per Ex.P73 addressed to the Forensic Science Department has been received by them only on 02.09.2015. He admitted that no representation has been given by the Department of Regional Forensic Science Laboratory for having visited the spot. He further admitted that in Ex.P38, that there is no mention of his
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presence when the said inspection was being carried on by the Forensic Laboratory Department. He has also admitted that he has not given any requisition to the said officers to inspect the spot.
18.12 The deposition of PW24 of he not being sure about his presence creates a serious doubt with regard to the very inspection being carried out by PW11 and the submission of her report as per Ex.P38.
Regarding Dog Squad:
18.13 Referring to the investigation through the dog squad, PW24-the Investigation Officer has stated that the dogs after running around inside the house went to the terrace and stood near the pole where the pipe had been tied and they did not give instruction to the dog to go further. That the said dog did not go towards the house of the accused or downwards. That they did not take the dog to the neighbouring houses. That though in the mahazar at Ex.P3, there is a mention that a plastic pipe measuring 14' which was tied to a steel pole, was in the east to west direction with blood stains thereon, they did not take any steps to use the dog squad to find out about blood stains or to identify anyone.
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CRL.A No. 100006 of 2019 18.14 The deposition of PW24, a serious questions would arise with regard to the very presence of the dog squad at the place of incident. Though several photographs have been taken and presented by the prosecution, apparently taken while drawing the mahazar at Ex.P3, none of the photographs depict presence of any dog squad. The inaction/inability on the part of the PW17 and PW24 in pursuing the investigation with the help of the so called dog squad, brings cloud on the theory of use of the dog squad to detect the crime and the accused. In other words, the dog squad has been rendered useless in the instant case merely on account of inaction and inability of the investigation team.
Regarding call details:
18.15 He admits that there is no mention in Ex.P55 page 52/142 about the phone calls between accused to Reena and Reena to accused on and from 12.08.2015 and that the last call was on 06.08.2015. That there is mention regarding a phone call from number 91-8867875357 to 91-9986402242 on 04.08.2015 at page 53/71 of Ex.P55. That there is mention about a call from No.9902299261 to 9591211928 at 22-56 hours and 23-54 hours on 15.08.2015 at page 53/119 of
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Ex.P58. He denied the suggestion that the accused had not called deceased Reena yet he was deposing falsely. He admits that mobile No.9902299261 belongs to mother of the deceased and that there have been no phone calls to the said number. That he has not seized the said mobile and the same was still used by the mother of the deceased. He denied the suggestion that except the call from the mobile number of the mother of the accused to the deceased at 22:56 hours and 23:54 hours on 15.08.2015 there have been no other calls at any time.
18.16 He denied the suggestion that the SIM cards and memory card which were seized on body search of the accused as per Ex.P17 have not been produced before the Court. He admits that in Ex.P17 there is no mention of IMEI number. He admits that there is correction of date in Ex.P17. He also admits that except the mobile phone, nothing was seized from the accused during body search. He admits that as per Ex.P79 a letter written to DHO, Belagavi there is no mention of time and also there is no mention as to through whom the said letter was sent. There is no report regarding the said letter having been delivered. CW11 and 12 have not given their consent in writing to assist in mahazar that he has not signed Ex.P80.
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CRL.A No. 100006 of 2019 Regarding his suspicion on Harsha and others:
18.17 He admits that PW12-Harsha had told him regarding he sending the text message to his uncle Rakesh-PW8 and Rakesh-PW18 calling Harsha. But he did not enquire which were the numbers used by Rakesh and Harsha and their conversation and he has not taken their phones. Though he admits that the said aspects were discovered by him at the initial stage of the investigation, he has not collected any call details in that regard.
18.18 That he has not collected any evidence with regard to PW8 going to Goa on the day and at the time of the incident.
That he has not collected the telephone conversation between PW1 and PW8, that he has not collected any material with regard to the relationship between Harsha and Rakesh, he has not collected any evidence regarding Harsha studying in Gogate College, Belagavi. That though Rakesh claims to have gone to Goa in his car, he has not collected any document in that regard.
18.19 That by 10:00 p.m. of 16.08.2015, he got information as to the persons involved in the case through the
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CRL.A No. 100006 of 2019 phone call details and he has not produced any information regarding the same. That apart, he discovered through secret information about the illicit relationship between the accused and deceased-Reena. That there is no document with regard to his investigation between 9:00 p.m. to 11:00 p.m. on the date of the incident. That he arrested the accused at 11:00 p.m. on 16.08.2015; that the accused confessed in the Police jeep about he having committed the offence that they continued to investigate with the mahazar witness, who were there in the morning.
18.20 He admits that in photograph Ex.P36 only mobile phone is shown and there is no SIM card shown therein. Referring to the statement of PW8-Rakesh Malagatti wherein he stated to have identified mobile at MO37 bearing No.9591211928, a question is asked as to when was the said mobile shown to Rakesh, the witness answered that he was shown after sealing of the mobile but he admits that in the statement, there is no reference regarding sealed mobile having been shown to the witness. He denied the suggestion that it is not possible to identify the sealed mobile was that of deceased- Reena.
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CRL.A No. 100006 of 2019 18.21 The evidence of PW24 hardly establishes continuous and unbroken chain of events. Rather they create more doubts and suspicion with regard to the entire process of investigation. A defective investigation and lapses therein undoubtedly enure to the benefit of the accused. Reasoning of the trial Court:
19. The trial Court has assumed the relationship between the accused and the deceased-Reena on the basis of the suggestions made on behalf of the accused during the cross examination of the witnesses. The trial Court has referred to the suggestions made to PW1 regarding accused asking Reena to advice her husband not to indulge in smuggling activities; suggestions made to PW8 regarding accused frequently visiting his house, having tea and being friendly with PW8 his wife deceased Reena and deceased children; suggestions made to PW12 regarding accused having tea with PW8 four days prior to the date of incident; suggestions made to PW23 regarding possibility of finger prints on the glass when the accused had touched the same during one of his visits. Solely based on the aforesaid suggestions made to the prosecution witness, the trial Court has held that the prosecution has proved beyond
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CRL.A No. 100006 of 2019 reasonable doubt with regard to the relationship between the accused and the deceased.
19.1 Regarding the accused visiting the house of the deceased Reena prior to commission of offence, the trial Court has relied upon the call details at Ex.P57 Pg.52/47 and the call dated 15.08.2015 at 22-56-24 hours and 23-54-53 hours between the numbers 9591211928 to no.9902299261 as evidence of deceased calling the accused and same being the proof the accused going to the house of the deceased. This despite the fact of the same being inadmissible in evidence for non prosecution with the provisions of 65B(4) of the Evidence Act as referred hereinabove.
19.2 Referring to the evidence of PW23 and the finger prints purportedly found on glass, water bottle, juice bottle, whisky bottle, steel knife and cigarette pack and the report of PW23 at Ex.P68 the trial Court has come to the conclusion that on the date of incident, accused had gone to the house of Reena and both of them had juice on the terrace and spoken to each other and later had altercation. The trial Court has not adverted
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CRL.A No. 100006 of 2019 to the intrinsic defects and lacunas in the entire process of the finger print examination dealt hereinabove.
19.3 Regarding accused again going to the house of the deceased at 3.00 am the trial Court has relied upon Ex.P78 the voluntary statement of the accused as evidence admissible under Section 27 of the Evidence Act. Further, the trial court has relied upon recovery of the mobile phone of the deceased Reena and MO29 to 32 as per Ex.P37 allegedly at the instance of the accused. The trial Court has also relied upon the boot mark on the pillow and the evidence of PW25-Sri Vidya in this regard. The trial court has not adverted to the depositions of the mahazar witnesses and the evidence of Srividya-PW25 which reveal the entire story of recovery of the material objects and their examination is unreliable.
19.4 The trial Court has relied upon the FSL report as per Ex.P84 and P64 wherein the inspection with regard to 27 MO were made. The trial Court has not taken into consideration that there was no blood grouping of the deceased made. The trial Court has also not referred to the evidence on record that there was no bloodstains found on the dresses of Aditya and Sahitya
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CRL.A No. 100006 of 2019 by any of the witnesses. Even in the post mortem reports of said Aditya and Sahitya at Exs.P44 and 45, there is no mention of blood marks on their dress.
19.5 The trial Court has accepted the theory of prosecution recovering the knife without adverting to the inconsistency and contradiction of witnesses in that there is no reference of the knife been present at the spot in the evidence of PW1, PW9 and PW12 who are the first persons visiting the spot. According to PW2 the knife was found in the passage while according to PW11, the medical officer the knife was found in the dustbin wrapped with red colour bed-sheet on the terrace. No reasoning is given by the trial court with regard to this inconsistency and contradiction in the evidence. Further admittedly the said knife was sent for forensic examination after 50 days of the incident. No explanation is forthcoming for such delay.
19.6 Similar is the evidence with regard to the alleged blood stained foot mark pillow. PW1, PW9 and PW12 have not found any such pillow. PW2 has found the pillow in the passage
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CRL.A No. 100006 of 2019 and PW11 has found the pillow in the room. In the photograph at Ex.P12 there is no pillow or knife found in the passage.
19.7 The trial Court has not discussed anything with regard to the evidence of the dog squad or the process of collecting the finger prints from the spot and the same having been found similar to the sample finger prints of the accused.
19.8 The trial Court seems to have accepted and merely reproduced the evidence of the prosecution without having scrutinized the same in the manner known to law. Conclusion:
20. In the light of the aforesaid principles of law, discussions, appreciations and analysis of the facts and evidence produced by the prosecution, we are of the considered opinion that the story of prosecution with regard to the motive being the illicit relationship between the accused and the deceased Reena is completely unreliable as the same being figment of imagination of the investigation officer-PW24 and except him no other witness has even whispered about the alleged illicit relationship. All the witnesses have categorically stated that they learnt about the said illicit relationship only from PW24 who
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CRL.A No. 100006 of 2019 in his evidence has asserted that he being an investigation officer with his experience suspected such relationship merely because accused being unmarried person was making phone calls to Reena a married woman. This circumstance not having been established by any cogent and acceptable evidence cannot be relied upon.
21. PWs.1, 9 and 12 have not noticed the pillow with blood stained foot marks, the knife and the nylon rope, the mobile phone, 180 ml. blenders pride bottle, two glasses, the cigarette pack and the juice bottle, though admittedly they are the first to visit the spot.
22. The aforesaid items were clearly brought into picture only through the evidence of PW2 and PW11. Even PW2 claims to have found the pillow with blood stained foot mark and the knife in the passage between the bedroom and the bathroom. PW11 found the pillow near the door of the bedroom, the knife wrapped with red bed sheet in dustbin on the terrace. Thus, the entire theory of recovery of these material objects does not inspire the confidence of this Court to be relied upon.
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CRL.A No. 100006 of 2019
23. It is settled law that the cumulative effect of lapses in investigation fortifies the presumption of innocence in favour of the accused. The benefit of doubt arising out of the faulty investigation should accrue to the benefit of the accused (State of Uttar Pradesh V.Wasif Haider and other, (2019)2 SCC
303).
24. As regards the expert evidence, the Courts can rely upon such evidence only as an opinion and the same cannot form substantive piece of evidence. The Expert's evidence placed before the Court needs corroboration with other piece of evidence. In the instant case, the very opinion of P.W.22 and P.W.25 being the Experts has not inspired the confidence of this Court as the very process of examination conducted by them is unreliable.
25. As regards the call details referred to above, apart from the inconsistency found therein, the same are not acceptable in terms of the law laid down by the Apex Court in the case of Ravinder Singh @ Kaku vs. State of Punjab (supra).
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CRL.A No. 100006 of 2019
26. It appears that sheer enormity of gruesome and grotesque murder of Reena and two children appears to have compelled the investigation team to impulsively complete and produce a perfunctory and lopsided investigation report without a basic and common application of mind into the indications and clues which are available on record. Any person of a common prudence would not be able to comprehend the circumstances sought to be established against the accused to hand him over with serious and grave punishment of a life imprisonment. The investigation team appears to have been overenthusiastic in creating the circumstances and trying to fill up and connect the links which they have miserably failed and faulted. The investigation of this nature is merely an ornamental process without rendering any assistance in bringing the real culprit to the book or in the process of dispensation of justice. Investigation into any crime, more particularly crime of this nature, has to be dealt with and conducted with uttermost care, commitment and devotion with one and only object of bringing forth the truth and punishing the real culprit, assuring a sense of protection and confidence in the society at large, which we disappointingly find not having been achieved in the instant case.
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CRL.A No. 100006 of 2019
27. In view of the above, we are of the considered view that the Trial Court is not justified in holding that the prosecution has proved the case beyond reasonable doubt warranting conviction and imposition of sentence of life imprisonment and payment of fine by the accused as has been done in the instant case. In the result, we pass the following:
ORDER The appeal is allowed.
The impugned judgment and order of conviction and sentence passed against the appellant/accused for the offences punishable under Sections 302 and 449 of IPC are hereby set aside.
The accused is acquitted of the charges for the offences punishable under Sections 302 and 449 of IPC.
Accused shall be set at liberty forthwith, if his detention is not required in any other case.
The order with regard to disposal of the properties and 357(A) of Cr.P.C. is hereby maintained.
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Registry shall communicate this order forthwith to the trial Court and the concerned Jail Authorities.
We place our appreciation on record to both Smt.Anuradha Deshpande, learned counsel for the appellant/accused and Sri.V.M.Banakar, learned Additional State Public Prosecutor in assisting this Court in appreciation of the evidence and in coming to the aforesaid conclusion.
Sd/-
JUDGE Sd/-
JUDGE KGK/RSH/BNV