Karnataka High Court
Mrs Sharada Urs vs Bharthi Urs Rani W/O Late Mr M G Nagaraju on 17 December, 2015
Equivalent citations: 2016 (2) AKR 177, (2016) 3 KCCR 254
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
®
IN THE HIGH COURT OF KARNATAKA,BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2015
:PRESENT:
THE HON'BLE MR.JUSTICE H.BILLAPPA
:AND:
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO.754/2010
C/W
CRIMINAL APPEAL NO.952/2010
IN CRIMINAL APPEAL NO.754/2010
BETWEEN:
MRS.SHARADA URS,
W/O. LATE MR. JUSTICE
M.P.CHANDRAKANTRAJ URS(RETD.),
AGED ABOUT 75 YEARS,
R/AT NO.1/2, PALACE ROAD,
BANGALORE - 560 001.
...APPELLANT
(BY SRI.ADITHYA SONDHI, SR.COUNSEL FOR
SRI.SRINIVAS.A.R. ADV., SRI.NARENDRA.P.R.ADV.
SRI.KARAN JOSEPH, ADV.,)
AND:
1. BHARTHI URS RANI
W/O. LATE MR. M.G. NAGARAJU,
AGED ABOUT 49 YEARS,
RESIDENT OF NO.16/11,
BINNY CRESCENT CROSS ROAD,
BENSON TOWN,
BANGALORE - 560 046.
2
2. T. MADHUKUMAR,
S/O LATE D.THUKARAM,
AGED ABOUT 36 YEARS,
R/AT NO. 20, 3RD CROSS,
SRIRAMPURAM, BANGALORE.
3. I.N. CHANDRAKANTH,
S/O. N.R.LAKSHMANARAO,
AGED ABOUT 31YEARS,
R/AT. NO. 2146, 2ND STAGE,
RAJAJINAGAR, BANGALORE.
4. STATE BY CENTRAL
CRIME BRANCH,
BENGALURU CITY.
...RESPONDENTS
(BY SRI.C.V.NAGESH, SR.COUNSEL FOR R-1.
SRI.HASMATH PASHA, ADV. FOR R-2 & R-3.
SRI.P.M.NAWAZ, SPP1 FOR R-4.)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 372 CR.P.C. PRAYING TO SET ASIDE THE
JUDGEMENT AND ORDER OF ACQUITTAL DT.27.05.10
PASSED BY THE P.O. FTC-I. BENGALURU IN S.C.NO.
489/04 ACQUUITTING THE RESPONDENTS/ACCUSED
FOR THE OFFENCE P/U/S 120-B, 302. 201 R/W 34
IPC.
********
IN CRIMINAL APPEAL NO.952/2010
BETWEEN:
THE STATE OF KARNATAKA
BY CENTRAL CRIME BRANCH,
BANGALORE CITY.
(REP. BY STATE PUBLIC PROSECUTOR).
APPELLANT
(BY SRI.P.M.NAWAZ, SPP-1)
3
AND
1. SMT. BHARATHI URS RANI,
W/O. NAGARAJA URS,
MAJOR, R/AT NO.64/25,
PARIJATHA NILAYA,
LALITHAMAHAL MAIN ROAD,
MYSORE.
2. T. MADHUKUMAR,
S/. LATE D.THUKARAM,
MAJOR, R/AT NO.J-20,
3RD CROSS, SRIRAMPURAM,
BANGALORE.
3. I.N. CHANDRAKANTH,
S/O. N.R.LAKSHMANARAO,
MAJOR, R/AT NO. 2146,
2ND STAGE, RAJAJINAGAR,
BANGALORE. RESPONDENTS
(BY SRI.C.V.NAGESH.SR.COUNSEL FOR R-1.
SRI.HASMATH PASHA.ADV FOR R-2 & R-3.)
THIS CRL.A. IS FILED U/S.378 (1) & (3) CR.P.C.
BY THE STATE P.P. FOR THE STATE PRAYING TO FILE
AN APPEAL AGAINST THE JUDGEMENT AND ORDER
OF ACQUITTAL DT.27.5.10 PASSED BY THE P.O. FTC-
1, BENGALURU CITY IN S.C.NO.489/04 ACQUITTING
THE RESPONDENTS/ACCUSED FOR THE OFFENCE
P/U/S 120-B, 302, 201 R/W 34 OF IPC.
*****
THESE CRIMINAL APPEALS HAVING BEEN
RESERVED FOR JUDGEMENT ON 19.11.2015,
COMING ON FOR PRONOUNCEMENT OF
JUDGEMENT, THIS DAY, K.N.PHANEENDRA, J.,
DELIVERED THE FOLLOWING:
4
JUDGMENT
Being aggrieved by the judgment of acquittal rendered by the Fast Track Court-I, Bangalore City in SC No.489/2004, the above said two appeals have been preferred.
2. Criminal Appeal No.952/2010 is filed by the mother of the deceased (PW-3 before the Trial Court), whereas Criminal Appeal No.754/2010 has been preferred by the State. The Trial Court has acquitted the accused Nos.1 to 3 (Respondents 1 to 3) herein for the offences punishable under Section 120B, 302, 201 read with Section 34 of IPC vide judgment dated 27.3.2010.
3. At the preliminary stage, the respondents have raised an objection with regard to the maintainability of the appeal preferred by the mother of the deceased (PW- 3 before the trial court) before this Court. However, the said contention has been considered by this court in detail and vide order dated 27.3.2010, this court has held that the appeal is maintainable. Therefore, the above said jurisdictional point has already been 5 answered by this court as noted above. Therefore, there is no need to again delve upon the said point.
4. For easy understanding and to avoid confusion and also repetition of facts, we would like to refer the parties as per their ranks before the Trial Court.
5. Before adverting to deal with the merits of the case, we feel it is just and proper to have the brief facts of the case which are as under:
5.1 Accused No.1 Smt. Bharathi Urs, is no other than the daughter of former Chief Minister of Karnataka late Sri Devaraaj Urs. Accused Nos.2 & 3 are said to be the conspirators with accused No.1. Deceased Chitralekha is the daughter of late Sri Chandrakanta raj Urs former Judge of High Court of Karnataka. A1 and deceased were said to be the close relatives and friends to each other.
5.2 It is the case of the prosecution that A1 had indebted lot of money to the deceased and other persons who are arrayed as witnesses PWs.7, 8 and 10. The 6 deceased had also acted as a facilitator between A1 on the one side and PWs.7, 8 and 10 on the other side to facilitate accused No.1 to avail loan from them. It is alleged that in all, A1 had taken hand loan to the tune of Rs.65 lakhs from the deceased Chitralekha and others. The above said creditors including the deceased started demanding for repayment of money advanced to A-1.
5.3 In this background, the prosecution case is that the accused Nos.1 to 3 have conspired to avoid payment of money and to defraud the deceased and creditors and also they have hatched conspiracy with an ulterior motive to do away with the life of the deceased.
5.4 It is the case of the prosecution that in furtherance of their conspiracy, A1 on the relevant date i.e., on 19.01.2004 along with A2 and A3 have discussed and hatched the plan and particularly on the date of incident, A1 requested the deceased to go over to the premises called Palm Grove Nursery Premises situated near Golf Club, Bengaluru and requested the 7 deceased to go over to the said premises in the evening hours. Accordingly, the deceased went to the said place.
It is alleged, A1 to A3, who were already present there, have caused the death of the deceased particularly A2 and A3 at the instigation and abatement of A1, throttled and strangulated the neck of the deceased and suffocated her and caused the death of the deceased.
5.5 It is further alleged that, thereafter A2 and A3 took the dead body of the deceased and went to Sakaleshpur Ghat area, which is at a distance of more than 200 kilometers from Bengaluru and threw the dead body in a deep valley of the Shiradi Ghat area in order to destroy the evidence in the case.
5.6 The prosecution case begins with the lodging of the missing complaint by the sister of the deceased PW-1(Hema) on 19.01.2004 with the High grounds Police Station, Bengaluru. It came to be registered in FIR No.0029/2004. As they found the deceased missing from the evening of 19.01.2004, they have lodged the complaint on the same night before the police. In fact, 8 the High Grounds police have started investigating the matter on the basis of such missing complaint.
5.7 It is the further case of the prosecution that the Car bearing No.KA-03/MC-1206 belonging to the deceased was found abandoned at a place called Babagudde near Mangalore city. PW-62 Jitendranath, a Police Officer on Special Order went to Mangalore and collected the information about the said car and came back and lodged a regular complaint against three unknown persons for abduction of the deceased as per the report marked at Ex.P-120. On the basis of such report, a regular case was registered in Crime No.51/2004 on the file of the High Grounds Police Station for the offence under section 365 I.P.C and investigation was set in motion.
5.8 Though two investigators have investigated the case at the early stages, but up to 8.03.2004, there was no clue regarding the death of the deceased. PW-68 (B.K.Shivaram) ACP CCB Police has taken up the investigation and subsequently on 8.3.2005, while 9 investigating, he recorded the statements of some of the witnesses particularly PWs.22, 24 25, and 34 and it is the case of the prosecution that they divulged that A1 to A3 and the deceased were last seen together on the evening of 19.01.2004 in the Palm Grove Premises and later, A2 and A3 along with the body of the deceased went out of that premises in the car belonging to the deceased. On the basis of such information, A2 and A3 were arrested and their voluntary statements were recorded by PW-68. On the basis of the voluntary statements of A2 & A3, the dead body of the deceased was recovered at the instance of A2 and A3 from a valley in the Ghat area near Sakaleshpur.
5.9 It is the further case of the prosecution that the police have also recovered some Jewellary belonging to the deceased at the instance of A3. It is also alleged that A1 has made extra judicial confession before PW- 16 and PW-21. On the basis of the thorough investigation on the above said circumstances and other circumstances, the police have laid the charge sheet against A1 to A3 for the above said offences. 10
5.10 In fact, the Accused Nos.1 to 3 were arrested during the course of investigation and they remained in judicial custody till the date of their acquittal by the Trial Court. After securing the presence before the court, the Trial Court has framed charges against the accused for the offences punishable under Section 120B, 302 and 201 read with Section 34 of IPC and put the accused persons on trial. The accused have pleaded not guilty and claim to be tried.
5.11 The prosecution in order to bring home the guilt of the accused persons has examined 68 witnesses as PWs.1 to 68, and got marked Exhibits P-1 to P-179 and got marked material objects MOs.1 to 45. Accused persons have also got marked Exhibits D-1 to D-15. After the conclusion of recording of the evidence of the prosecution witnesses, the court has also examined the accused persons u/s.313 of Cr.PC. and recorded their answers. The accused did not choose to lead any defence evidence on their side and therefore, the court after hearing the detailed arguments of the parties and 11 after evaluating the evidence, materials on record, recorded the judgment of acquittal which is called in question before this Court.
6. It is an admitted fact that the entire case of the prosecution revolves around the circumstantial evidence.
7. We have heard the lengthy and detailed arguments addressed by Sri.Adithya Sondhi, Sr.Counsel Sri.C.V.Nagesh, Sr.Counsel for R-1. Sri.Hasmath Pasha, Adv. for R-2 & R-3 and Sri.P.M.Nawaz, SPP-1 for state. The arguments submitted by the learned counsel Sri Adithya Sondhi and Sri P.M. Nawaz, SPP-1 are almost on the same lines. They questioned the judgment of acquittal before this court on various grounds.
8. It was contended that though the case revolves around the circumstances, the Trial Court has not properly appreciated the circumstances in their proper perspective. Though sufficient materials are available in the evidence of the prosecution to complete the link between one circumstance and another, the Trial Court 12 has mainly persuaded itself with regard to the minor discrepancies here and there in the evidence of the prosecution, has wrongly acquitted the accused persons, though the prosecution has proved the circumstance of last seen together, motive, conspiracy between A1 to A3 and recovery beyond all reasonable doubt. However, giving benefit of certain deficiencies in the prosecution evidence, acquitted the accused. Therefore, this court being the First Appellate Court has to re-evaluate and re-assess the evidence on record and appreciate the circumstances relied upon by the prosecution. The learned counsel for the appellant and the SPP-1 for State request the court to reverse the judgment of the Trial Court and convict all the accused persons for the above said offences.
9. The learned counsel for the respondents have also taken us through the entire cross examination of almost all the witnesses, whereas the learned counsels for the appellants have taken us through the evidence of the prosecution witnesses to cull out the grounds for the reversal of the judgment.
13
10. The learned counsel for the respondents has strenuously contended that normally the appellate court should not interfere with the judgment of acquittal. If the judgment of the Trial Court is not perverse, capricious or bereft of any appreciation of evidence or if the court on the basis of imagination acquitted the accused persons. If the judgment is a reasoned one and based on factual aspects and evidence on record, such judgment should not be interfered with. Further, it is submitted that each and every circumstance projected by the prosecution has been totally destroyed by the defence during the course of cross examination. The circumstances are very weak and stale; no court can convict the accused on the basis of such circumstances. Therefore, the Trial Court has properly appreciated the oral and documentary evidence on record and recording sufficient reasons for its conclusion rendered the judgment of its acquittal, which deserves confirmation by this court rather than reversal. It is further contended that even on the basis of the same materials and evidence on record, this court if come to a definite 14 alternative conclusion, in such an event also, if the conclusion arrived at by the Trial Court is also one of the possible conclusions, the appellate court should not interfere with such acquittal judgment. Therefore, there is no room for this court to interfere with the impugned judgment. Therefore, they prayed for dismissal of both the appeals.
11. After hearing the arguments and going through the materials on record and after re-appreciation and re-evaluation of the evidence on record, the points that would arise for consideration of this court are:
1. Whether the prosecution has proved the alleged offences against the accused beyond all reasonable doubt?
2. Whether the Trial Court has committed any error in acquitting the accused and whether impugned judgment requires reversal?
12. As we have already observed, the entire case revolves around the circumstantial evidence. We can broadly divide the circumstances in the following manner:
15
1. Motive
2. Conspiracy between A1 to A3.
3. Accused and deceased last seen together.
4. Recovery
5. Extra Judicial Confession
6. Homicidal death
13. Before we deal with each circumstance in detail, we would like to gainfully quote two decisions of the Hon'ble Apex Court which are in our opinion, very important to bear in mind while dealing with the case of circumstantial evidence and also as to how the appellate courts have to deal with the judgments of acquittal rendered by the Trial Court.
14. There are any number of decisions rendered by the Hon'ble Apex Court with regard to the circumstantial evidence. In a case reported in Sharad Birdhichand Sarda V/s. State of Maharashtra reported in AIR 1984 SC 1622 wherein the Hon'ble Apex Court has held that the entire responsibility or the onus in circumstantial evidence cases to prove the chain is 16 complete without there being any infirmity or lacuna, is on the prosecution. The condition precedent in the words of the Hon'ble Supreme Court before a conviction can be recorded on the basis of circumstantial evidence is categorized as follows:
1. The Circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
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 done by the accused."17
15. From the above said decision, it is clear that the law relating to circumstantial evidence is well settled by innumerable decisions of the Apex Court. Therefore, while dealing with the circumstantial evidence cases, there is always danger when the conjuncture or suspicion lingered in the mind, may take the place of proof. It is well recognized principle that suspicion however strong it may be, it cannot take the place of proof. Therefore, the courts must be very careful and watchful in order to ensure that the discrepancies, conjunctures, suspicions do not take the place of legal proof.
16. The proof beyond reasonable doubt of all the circumstances projected need not be misunderstood by the courts when the chain is not complete. What the court has to look into is that what are the circumstances that have been proved to the satisfaction of the court, whether the proven circumstances are sufficient to constitute and complete the chain so as to un-erringly point towards the guilt of the accused. Even 18 in certain cases, the sole circumstance was held to be sufficient to hold that the accused is guilty for example 'dying declaration'. Therefore, this court has to consider all the circumstances individually and whether the proved circumstance if any constitute a complete chain undoubtedly and unerringly pointing towards the guilt of the accused against his innocence. In this background, we would like to deal with the circumstances.
17. The Hon'ble Apex Court right from 1963 up to date has consistently laid down a principle as to how the appellate courts have to deal with the cases of acquittal. It is worth to note one of the decisions in this regard reported in 2007(4) SCC 415 between Chandrappa Vs. State of Karnataka, wherein the Hon'ble Apex Court has laid down the following principles.
1. An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. 19
2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
3. Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language"
to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. 20 Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
5. If two reasonable views are possible on the basis of evidence on record and one favorable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court.
18. In view of the above said rulings, it is crystal clear that the appellate court either in the case of conviction or in the case of acquittal has a duty to make a complete comprehensive appreciation of all vital features of the case. The evidence brought on record in its entirety has to be scrutinized with care and caution. It is the duty of a Judge to see that justice is properly administered i.e., the paramount consideration of a Judge. The responsibility bestowed cannot be abdicated or abandoned even remotely or solely for any reason, the appellate court is required to weigh the materials and ascribe concrete reasons logically flow from the requisite analysis of the materials on record. The 21 approach cannot be cryptic, it cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasons in appeal are well depleted that they have to be in detail expressed, the refractive attitude of the Judge must be demonstrable from the judgment itself.
19. The power of the appellate court is equally un- barricaded. However, there is significant difference dealing with the appeals against conviction and acquittal. The order of acquittal normally shall not be interfered with by the appellate courts, where the judgment of the Trial Court is based on evidence and the view taken is reasonable and also a plausible one. The court shall not reverse the decision of the Trial Court merely because the alternative view is also possible.
20. Before adverting to the circumstances, we would like to mention here, so far as the identification of the dead body of deceased Chitralekha is concerned. PWs.1Hema, PW2 Nayan Tara sisters and PW 3 Sharada 22 mother, and PW-5 Ashok Mandanna sister's husband of deceased, have categorically stated that from 19.1.2004, the deceased was missing and from thereafter, she was not to be seen. It is the case of the prosecution that the dead body of the deceased was recovered at the instance of A2 and A3 on 9.3.2004 in a valley situated near Sakaleshpur Ghat. Soon after the detection of the body, the police particularly PW-68 rushed to the spot and PW-5 Ashok Mandanna also accompanied the police and he identified the dead body on the basis of the ornaments found on the dead body which are marked at MOs.25 to 27. PW-12 Adarsh, who is the inquest panch witness, also stated the presence of PW-5 who identified the dead body. The inquest mahazar marked at Ex.P-47 also discloses that the presence of PW-5 and identifying the dead body. Though the dead body was in an advanced stage of decomposition, there is no reason as to why PW-5 who is none other than the brother-in-law of the deceased wrongly identifies the dead body on the basis of the ornaments marked at MOs.25 to 27. There is no evidence as such to doubt the above said 23 circumstances of identification by PW-5. Later, PWs.1 to 3 have also identified MOs.25 to 27 as the ornaments belong to the deceased. No witness has stated or no material has been placed to show that after the recovery of the dead body, the deceased was seen elsewhere or anybody to show that the deceased was alive.
21. In addition to the above said facts, on examination of the evidence of all the witnesses of the prosecution, the accused has also not taken up any defence with regard to the identity of the deceased by PW-5. Even during the course of arguments, the learned counsels appearing for accused Nos.1 to 3 have not raised any serious question with regard to the identity of the corpus of the deceased Chitralekha. In the above said circumstances, we are of the opinion that the dead body recovered in connection with this case was that of Chitralekha.
22. The prosecution has also placed scientific evidence before the court in order to prove the identification of the deceased. PW-66 Dr. N.R.K. Rao, 24 (Retd.) Senior Scientific Officer (Biology), Hyderabad has deposed before the court that, he conducted super imposition test and given his opinion that the skull sent for examination matches with the photographs of Chitralekha supplied to him by the Investigation officer and accordingly he gave his report as per Ex.P-157.
23. PW-67 Sri D.S. Negi, Technical Examiner at Center for DNA, Finger Printing and Digagnostic, Hyderabad has deposed before the court that he received a sealed cover from the Investigating Officer and the sealed parcels containing blood samples of Smt. Sharada Urs. PW3 and Smt. Nayanatara Urs. PW-2 and also another sealed parcel containing the sternum and also another bottle containing scalp skin with hair belonging to the deceased female. After conducting the DNA test, he gave the opinion as per Ex.P-158. He concluded that the blood sample of Smt. Sharada Urs. marked at Ex.A matches with source Ex.C and E which are respectively the DNA of P.W.3 Sharada,the deceased Chitralekha and P.W. 2. Nayana Tara. Therefore, it 25 clearly goes to show that the deceased female is none other than the daughter of PW-3 Smt. Sharada.
24. PW-39 Dr. Raphel Parambi, BDS., has also deposed before this court that deceased Chitralekha was taking treatment for her denture with him and he has issued a letter as per Ex.P-105 that he has treated two teeth of Chitralekha by treating them with ceramic crown. He has further stated that the Investigating Officer has sent the skull and jaw portions of the deceased Chitralekha and he identified them on the basis of the ceramic crown treatment given to the teeth of the deceased. In view of the above said scientific reports also, the prosecution has established the identity of the dead body as that of the deceased Chitralekha.
I. MOTIVE:
25. Now, we will first take up the circumstance of Motive.
26
25.1 The prosecution alleges motive against Accused No.1. As could be seen from the entire materials on record, no motive has been attributed against A2 and A3. It is the case of the prosecution that A1 Smt. Bharathi Urs is a close relative of the deceased and her family and they were also close friends to each other. The accused No.1 often used to take loan from the deceased. The accused No.1 has also taken loan from PWs.7, 8 and 10, who were known to the deceased. It is the further case of the prosecution that the deceased has facilitated the accused No.1 to take loan from PWs.7, 8 and 10 and also she assured PWs.7, 8 and 10 about the security of their money and in that context, it is alleged that PWs.7, 8 and 10 have also advanced lot of money to accused No.1 through the deceased Chitralekha. In this context, the accused had also issued post dated cheques which are marked as Exs.P-2 to P-24 and also 'On demand Promissory notes' which are marked as Exs.P-25 to P-30 and those documents were handed over to the deceased 27 Chitralekha under a letter marked as Exs.P-31, 32 and
34. In all, the accused No.1 was indebted to the tune of Rs.65 lakhs to the deceased and PWs.7, 8 and 10.
25.2 There is no dispute by the accused No.1 with regard to the signatures found on Exs.P-2 to P-30 and also on Ex.P-31, P-32 and P-34. The signatures on Exs.P-2 to P-24 were also fortified by the evidence of PW-61 Syed Asgar Imam, who is a handwriting expert. In view of the admission on the part of accused No.1, with regard to her signature, we do not find any necessity to discuss the evidence of PW-61 Syed Asgar Imam.
25.3 PWs.1 to 3 and 4 have only spoken about the tracing of a sealed cover in the office of the deceased and the same was produced by PW-4 to PW-3 after about three or four days after the alleged incident i.e., missing of deceased Chitralekha.
25.4 As could be seen from the evidence of PWs.7, 8 and 10, they have categorically deposed that PW-7 Para star Jal in the year 2003, gave Rs.10 lakhs 28 by cheque which was credited to the account of accused No.1 and in-turn accused No.1 at one time has given interest of Rs.1,20,000/- but not paid the interest later.
25.5 PW-8 Dinesh Ravi has also stated in the month of January 2003, he advanced Rs.10 lakhs to accused No.1 and during the first year, interest was paid by the deceased for the first time and thereafter accused No.1 did not pay the amount.
25.6 PW-10 Rajesh Begur, an Advocate has also deposed that he advanced totally Rs.21 lakhs and specifically stated that he advanced Rs.20 lakhs and his wife has also advanced Rs.1 lakh to accused No.1. But as could be seen from the tenor of evidence of these witnesses, they categorically stated in the course of their examination in chief and in the course of cross examination, they never had any direct contact with accused No.1 nor had any transaction with accused No.1. In this background, the learned counsel for accused No.1 has submitted that there is no material to show as to whether the amount was actually paid to 29 accused No.1 by the deceased and what were the actual transaction that took place between accused No.1 and the deceased. The deceased is not available to explain about these transactions. As rightly submitted, whether this transaction even if it is assumed as true, is sufficient to hold that accused No.1 had any strong motive to eliminate the deceased. All the transactions are admittedly supported by the cheques and 'On demand Promissory notes' and they were all safe with the deceased. Even if the deceased is eliminated, the cause for recovery of those amounts will not vanish with the deceased and the transaction cannot be washed out. Therefore, as rightly contended by the learned counsel, whether this could act as a motive for elimination of the deceased.
25.7 PW-4 Revathi Rao in her evidence has deposed that as and when the deceased Chitralekha used to go out of the city, she used to execute a Will and keep it in a cover and give it to PW-4 with a direction to handover the said cover if she does not come back within one or two days. In this regard, PW-4 never 30 stated that immediately after the deceased was missing, she did not give cover to the inmates of the house of the deceased Chitralekha. It is also admitted that Chitralekha used to keep the cover in the Almirah and took the keys of the said Almirah along with her. It is admitted by PW-4 that the keys were taken away by the deceased. It is also in the evidence of PW2 and PW-4 that the said cover was not traced when the police broke open the almirah during investigation. PW-4 has also further stated that she gave the cover approximately on 23.01.2004 to PW-1 and even in spite of receiving such cover; the said cover was not given to the police up to 13.2.2004. It is evident from the evidence of PW-4 that she gave that cover containing Exhibits P-2 to P-30 to PW-1 with an intention that the said cover and contents thereon may give a clue with regard to the missing of Chitralekha. But in spite of that the said cover was not opened nor handed over to the police immediately. Even prior to 23.01.2004, PWs.1 to 4 were examined by PW- 49 R.Ramachandran, the first Investigating Officer and 31 at that time, PW-4 never disclosed the existence of any cover being given to her by the deceased.
25.8 In this background, the evidence of PW-2 Nayanatara Urs., also play a dominant role. PW-2 in her evidence has stated that the Investigating Officer PW-49 Sri R. Ramachandra, after receiving of the missing complaint broke open the almirah of the deceased in her office. But they did not find any sealed cover therein, but they found some photographs, complaints etc., but not Exs.P-2 to P-30. In that eventuality, PW-4 has to explain as to how she could find the sealed cover in the said almirah even though it was not traced when the police have broke open the said almirah and found nothing. Therefore, the arguments of the learned counsel that Exs.P-2 to P-30 might have been secured later and planted by means of concoction for the purpose of laying false claim against the accused cannot be easily brushed aside.
25.9 PW-1 Smt. Hema Mandanna has stated that her mother - PW-3 Smt. Sharada Urs, has not 32 disclosed about this cover up to 13.2.2004 and therefore, it creates a serious doubt when PW-4 has categorically stated that she gave that cover so that they can get a clue with regard to missing of Chitralekha as to why PW-3 has not stated about this cover to her own daughter PW-1 till 13.2.2004. In this background, the learned senior counsel Sri C.V. Nagesh drawn our attention to the documents produced before the court marked as Exs.P-2 to P-30, P-31 and P-32.
25.10 We gave our anxious consideration to these documents. It is admitted by PW-1 that Exs.P-2 to P-24 which are the cheques and Exs.P-25 to P-30 are the 'On demand promissory notes' at so many places, the said documents are blank, particularly Exs.P-2 to P- 24 contain the name of the deceased and also signature of accused No.1, they all appears to be post dated. But nobody has spoken to including PWs.7, 8 and 10 that accused No.1, they post dated cheques towards discharge of their debt or liability either to deceased Chitralekha or to PWs.7, 8 or 10. Even Exs.P-25 to P-30 are the blank 'on demand promissory notes' which do 33 not disclose actually in whose favour the said documents were executed, who are all the witnesses and on what date, those documents were executed by accused No.1. Likewise, Ex.P-31 letter also discloses nothing as to whom the said letter was addressed and Ex.P-32 is also a letter which does not disclose anything with regard to the execution of these documents by the accused in favour of the deceased or in favour of PWs.7, 8 and 10. The discrepancy in writings in the cheques and blanks in the documents have remained unexplained, creating serious doubt about the genuineness of the transaction. PWs.1 & 2 have also fortified with regard to breaking open of the almirah by the investigating officer and found nothing. Therefore, it becomes a mystery as to how the cover containing Exs.P-2 to P-32 found out by PW-4.
25.11 PW-49 R.Ramachandran, the Investigating Officer has stated that on 24.1.2004, he went to the house of the deceased, met the mother of the deceased PW-3 Smt. Sharada Urs, who produced the diary of Chitralekha and other documents. But he never sated 34 that PW-30 Srinivas disclosed anything about the cover produced by PW-4 to PW-3. He also states in his evidence that as those diaries and other documents were not helpful, he has not seized the same. Therefore, looking to the above said materials on record, it is very difficult to draw an inference that these documents were kept by the deceased in her almirah and produced by PW-4. More over, in the absence of any material to show that accused No.1 actually indebted to the deceased and PWs.7, 8 and 10, no definite and conclusive inference can be drawn that there was a loan transaction between accused No.1 and the deceased and as well between PWs.7, 8 and 10 and the deceased, though some distorted material is produced. If no conclusive inference can be drawn, the court also cannot with all certainty say that this could act as a motive for the purpose of eliminating the deceased by accused No.1.
26. Apart from the above, the learned senior counsel for the accused No.1 Sri C.V. Nagesh strenuously contended that the prosecution itself has produced sufficient materials to show the alternative 35 motive with some other persons, to eliminate the deceased and the alternative motive which is available on record is strong enough to suggest that the motive attributed to accused No.1 is stale and not worthy for acceptance.
27. It is submitted by the learned counsel that the deceased Chitralekha had intimacy with PW-6 Naval Nariyalwala, and she was closely moving with that person. They had intimacy with each other and they used to go together to various places including foreign countries. This intimacy between PW-6 and the deceased was not tolerated by the wife of PW-6. The wife of PW-6 Smt. Ann, had two brothers by name Pal Fernandez and another by name Ashok Fernandez. They are having connection with the under-world Dons and one of them is a sharp shooter. Smt. Ann and her brothers were not happy with the conduct of deceased moving closely with P.W.6. In this context, there were lots of threatening calls given by some persons to the family members of Chitralekha including Chitralekha. 36 Therefore, there is a strong motive that can be attributed to some other persons.
28. In this regard, on evaluation of the evidence so far as this particular aspect is concerned, PW-1 has admitted in her evidence that she has got her e-mail address, she received certain threatening e-mails from some un-known persons stating that the said person is well wisher of Smt. Ann and her family. PW-1 in her evidence has also admitted that deceased Chitralekha was also receiving such threatening calls to advise the deceased to keep distance from PW-6. It is also admitted that she has received more than 25 e-mails in that regard and all those e-mails were pertaining to the relationship between the deceased and PW-6. She also admitted that she gave those e-mails to High Grounds Police. It is also admitted that the police have secured the presence of PW-6 in this regard and kept him in police station from 19.01.2004 to 20.1.2004. The police did not call her once again with regard to those e-mails, but she does not know whether they made any investigation so far as those e-mails are concerned. It is 37 very clear from the evidence of PW-1 that the deceased Chitralekha and PW-1 were receiving threatening e- mails from the persons who were very much interested in the family of PW-6 and his wife Smt. Ann.
29. PW-68 Sri B.K. Srivaram, ACP, CCB Police, Bangalore, the Investigating Officer, has also categorically admitted with regard to PW-1 and the deceased Chitralekha receiving threatening e-mails with a direction to the deceased to disassociate herself with PW-6. He has also stated that a person by name Arul, who was working as Security Official and terminated by the deceased was threatening the deceased to do away her life.
30. It is also admitted by PW-68, in his cross examination, that a person by name Nithyananda Nayar, the relative of the deceased had lodged a complaint to Vidhana Soudha Police against the deceased in respect of her interference in relation to his property matter. But in spite of these things, he deposes that he did not examine the brother of Smt. Ann by 38 name Sri Ashok Fernandez and others by name Arul and Nithyananda Nayar, as he did not feel it necessary in this regard. He also deposes that the threatening e- mails which were sent to deceased and PW-1 were handed over to him during investigation and on seeing the said e-mails, he admitted that one can make out the source from which person it is sent, but he has neither produced those e-mails before the court nor he has made any investigation so far as these e-mails are concerned and there is no explanation as to why this strong circumstance running against the deceased has not been properly investigated.
30.1 PW-3 Smt. Sharadha Urs, mother of the deceased has also categorically admitted that she has given her statement as per Ex.D-11 stating that her daughter Chitralekha had love affair with PW-6 Naval Nariyal Wala since 10-15 years and PW-6 was married to one Smt. Ann and he had grown up children. She further doubted the brother-in-law of P.W. 6, Sri Ashok Fernandez, who was having criminal background to prevent Chitralekha from having affair with PW-6 might 39 be responsible for missing of Chitralekha. It is also admitted by her that Chitralekha had widely traveled not only within country but also visited various other countries. But she does not know whether she went along with PW-6 to those places. It is very much clear from the evidence of PW-3 that the other persons i.e., PW-6 and his wife and other family members were also not happy with the deceased Chitralekha and that might have also acted as a strong motive against the death of deceased Chitralekha.
30.2 PW-2 Nayanatara Urs, sister of the deceased Chitralekha, has admitted that her deceased sister had been to several places on several occasions with PW-6 and also admitted that the deceased went to London but she does not know whether she went along with PW6 Naval Nariyal Wala or not. She also fortifies the receiving of threatening e-mails from some un-known persons who are interested in the family of Smt. Ann and PW-6. She has also admitted that those e-mails would indicate that the deceased should dis-associate with PW-6. She admitted that the e-mails also indicated 40 about demeaning both Hema Mandanna and Chitralekha stating that they are good for nothing and those e-mails are vulgar and nasty in nature. She has actually gone through those e-mails and handed over the same to the police but the police did not probe into those e-mails.
30.3 PW-49 Ramachandra also deposed about the e-mails. He only says that he has got the information about the e-mails, but those e-mails were not produced to him. The said evidence is contrary to the evidence of these witnesses. Therefore, there is suppression of those material facts before the court with regard to the receiving of the threatening calls and e-mails by the deceased Chitralekha and PW-1. In this background, the evidence of PW-6 play a dominant role with regard to the alternative motive is concerned.
30.4 PW-6, in his evidence has categorically admitted in the course of cross examination that the deceased Chitralekha and himself were moving very friendly with each other and they were almost meeting 41 everyday and they were going for outings, out of Bangalore City on more than one occasion and went to other places in Train, Car and Air and they had been to Ooty, Kerala, Chennai, Mumbai, Thirupathi and various other places in Kerala. They stayed in Hotels and on some occasions in clubs and they went in such manner on several occasions on jolly trips and stayed in restaurants etc., Chitralekha used to come to Airport to receive him as and when he came back to Bangalore from different places. It is specifically admitted that his wife was having knowledge about the friendship between himself and Chitralekha and she was not happy with such friendship and even in spite of that, he continued his friendship with Chitralekha. It is also admitted that since several years, his wife has been forcing him to dis-continue his friendship with the deceased, but still he continued such relationship. He also admitted that due to his relationship, the deceased was receiving threatening e-mails and those e-mails were abusive and derogative and the person who sent those e-mails also disclosed that they are interested in 42 the family of Smt. Ann, wife of PW-6 and for that reason, the deceased was threatened to disassociate herself with PW-6.
31. In this background, he also categorically admitted that his brother-in-law was Paul Fernandez. His co-brother Ashok Fernandez is an accused in a murder case and he is a sharp shooter. It is also admitted that his friendship continued with the deceased till she was found missing. Further, he has admitted that there was lot of bickering in his house on account of his friendship and relationship with the deceased. He has admitted that after the death of the deceased there was no such bickering in his house. He has also admitted that PW-1, Hema Mandanna was also receiving such threatening e-mails from un-known persons. The Police though had these e-mails; they have not investigated in that line. He has further admitted that Ashok Fernandez was also secured by the Police in connection with the case and interrogated. 43
32. Looking to the above said evidence of PW-6, it is crystal clear that because of the relationship between PW-6 and the deceased, the family members of PW-6 and his co-brother and brother-in-law were totally unhappy with the deceased Chitralekha and those persons were also having criminal background. Therefore, it cannot be easily ruled out that there was strong alternative motive and it is established from the evidence on record.
33. Apart from the above, the conduct of the accused No 1 also plays a dominant role in this context. On looking to the evidence of PWs.1 to 4 and even PW-6, in their evidence, it is elicited that immediately after the alleged incident in the Palm Grove Premises, as alleged by the prosecution, accused No.1 did not go anywhere. She stayed in the Palm Grove Premises up to 9.00 PM when PWs.2 & 4 went to Palm Grove Premises and called the accused No.1, she went along with PW-4 to the house of the deceased Chitralekha. After coming know about the missing of Chitralekha, she stayed in 44 the said house on that day and even she was very much present when missing complaint was lodged by PW-1 before the High Grounds Police.
34. It is also a proved fact that the accused No. 1 used to visit the house of the deceased daily consoling PW-3 to the effect that the deceased would come back as she was only missing. Accused No.1 also supplied food to the house of PW-3 on several occasions during the grief period. The conduct of accused No.1 immediately after the incident going to the house, consoling the family members and also regularly going to their house, creates serious doubt in the case of the prosecution with regard to the circumstance of motive alleged.
35. Of course, there is some evidence available that when PWs.1 to 3 have decided to lodge a missing complaint, accused No.1 told them not to lodge any complaint is the best interest of both the families because both the families have acquired lot of status in the society and if missing complaint is filed, that would 45 affect the status as well as it may create serious consequences. Accused No.1 might have told this because of their relationship. It cannot be found fault with.
36. Apart from the above said evidence, we are able to visualize that none of the witnesses who are the kith and kin of the deceased i.e., PWs.1 to 3 and even the close associates of the deceased PW-4 have never stated about any perturbed attitude or any abnormal behavior on the part of the accused on the date of the alleged incident or during those days i.e., from the date of Chitralekha missing and till the dead body of Chitralekha was found near Sakaleshpur Ghat.
37. Looking from the above said facts and circumstances, particularly so far as the motive is concerned, it cannot be said that the prosecution has proved conclusively the factum of motive. Hence, we are of the opinion that the prosecution has not proved the circumstance of motive beyond all reasonable doubt. In a case where the evidence adduced to prove the motive 46 is inadequate and the prosecution has failed to establish the motive beyond reasonable doubt such motive becomes irrelevant. Moreover, when divergent views are possible from the prosecution evidence showing existence of alternative motive, it raises a doubt regarding the existence of motive on the part of the Accused No1. Even otherwise the motive by itself cannot be a decisive factor. It can be used to assess the gravity of the offence, to weigh the conduct and plan of the accused for commission of specific offence. On the sole circumstance of motive no inference can be drawn. It is only an enabling circumstance. On facts, we are of the opinion that the Motive is not proved beyond reasonable doubt.
II. LAST SEEN THEORY:
38. The prosecution wants to prove this circumstance of 'last seen together' by way of two links. It is the case of the prosecution that accused No.1 has contacted the deceased Chitralekha over phone in the morning of the ill-fated day i.e., on 19.01.2004 and requested her to go over to Palm Grove Premises and 47 further in the evening also accused No.1 made a request to the deceased to go over to Palm Grove Premises over phone. It is also the case of the prosecution that accused Nos.1 to 3 have assembled in the Palm Grove Premises much prior to the arrival of the deceased and they have hatched conspiracy to do away with the life of the deceased. Accordingly, the deceased came to the Palm Grove Premises and the witnesses PWs.22, 23, 24 and 25 have actually seen the accused Nos.1 to 3 and the deceased together and they were quarreling with each other at the relevant point of time and PW-25 Lingappa has also seen that Accused Nos.2 and 3 lifted the dead body of the deceased in her Hyundai Car of the deceased bearing registration No.KA-04/MC-1206 and taken away the dead body in the said car from the Palm Grove Premises. Accused Nos.2 & 3 have transported the dead body of the deceased and went to Sakleshpur Ghat area threw the dead body and entered Mangalore. At padil junction near Mangalore, accused Nos.2 & 3 were last seen together by PW-47 and CW-64 and thereafter accused Nos.2 and 3 went to Mangalore and 48 abandoned the said Car near Babagudde and later the same was recovered by the Police. The third limb of last seen theory sought to be proved before the Court was by way of telephonic conversation between PW-1 with the deceased, PW-6 with the deceased and as well accused No.1 with the deceased.
39. The learned counsel for the appellants strenuously contended that though the witnesses have actually seen the accused Nos.1 to 3 and the deceased together in Palm Grove Premises, they have turned totally hostile to the prosecution. Nevertheless, their evidence cannot be totally discarded in view of the statement of PW-22 Shivanna, Office boy and PW-25 Ningappa, Office Cleaner, being recorded through videograph method. Further added to that, the evidence of those witnesses have to be taken with a pinch of salt in order to ascertain whether they are truthful witnesses or not and all the surrounding circumstances including the telephonic conversation, the prosecution has proved this last seen theory. Further, it is contended that PW-47 Shivaprakash, Police Constable 49 of Mangalore Rural Police Station. He is an official witness, who has deposed that he has seen accused Nos.2 & 3 soon after throwing the dead body in the Ghat section and his evidence cannot be discarded merely because he is an official witness. Therefore, it is contended that the Trial Court has not seriously bestowed its attention so far as these aspects are concerned.
40. Per contra, the learned counsel appearing for the respondents/accused Nos.1 to 3 have strenuously contended that the credibility of the above said witnesses have to be tested by means of surrounding circumstances and their background. There is no reason as to why these witnesses have to turn hostile and nothing has been elicited from the mouth of these witnesses except putting the portions of their statements made before the police and got them marked. The evidence of these witnesses is of no avail to the prosecution. Further added to that PW-47 Shivaprakash is untrustworthy for credence, as no test identification parade has been conducted and it is 50 demonstrated that he could not have seen A2 and A3 and he could not have identified them. Therefore, the learned counsels contended that the last seen theory has not been proved in a conclusive manner.
41. Bearing in mind the above said submissions, now we would like to discuss the evidence of PW-22 Shivanna, PW-24 K.S. Jayaraman, PW-25 Ningappa and PW-34 Basavaraj and the materials available on record:
41.1 PW-22 Shivanna, who is an office boy of Palm Grove Nursery, examined before the court has turned totally hostile to the case of prosecution. In the course of cross examination, it is suggested to him that on that particular day, he has seen accused Nos.1 to 3 in the Palm Grove Premises and he served tea and biscuits to the inmates of the said Palm Grove Premises and he saw A1 to A3 were quarreling with each other and A1 abetting A2 and A3 to do away with the life of the deceased and to that extent he has given statement before police as per Ex.P-70(a) to Ex.P-70(g), but he 51 turned hostile to the prosecution denying all those suggestions.
41.2 PW-23 Smt. Kavitha, who was working as Public Relations Officer in the company of Sri Hari Khode. She was deputed to Palm Grove Nursery for some time during the relevant point of time. It is also suggested to her that she was also present when accused Nos.1 to 3 assembled in the Palm Grove Nursery and the accused were often visiting the Palm Grove Prewmises and on that day also she has seen Accused Nos.2 and 3 lifting Chitralekha and putting her in her Car and taking away her from the Palm Grove Premises. The statement alleged to have been made by her as per Ex.P71(a) to (c) was confronted to her but she denied the same and she denied the suggestions made to her.
41.3 PW-24 Sri K.S. Jairam is also another Journalist, who also turned hostile to the prosecution.
In the course of cross examination of this witness, it is suggested that A1 to A3 always used to visit Palm Grove 52 and on 19.01.2004 also from morning 10.00 am he was present in the said Palm Grove and A1 and A2 in the evening also came to Palm Grove and they were talking together and he has also seen A2 and A3 taking away Chitralekha in her Car and etc., and he also denied the said suggestion.
41.4 PW-25 Ningappa, who was working as an office cleaner in the Palm Grove Nursery, was examined before the court in order to prove that on that day he was also present and he saw accused Nos.1 to 3 in the said premises in the evening and he heard accused No.1 and the deceased Chitralekha quarreling with each other and he has heard the screaming voice of Chitralekha and thereafter accused Nos.2 and 3 lifted Chitralekha and put her in her Car and took her in the car at about 7.30 p.m., The suggestions made to him that he has given such statement before police have been denied.
41.5 PW-34 Basavaraj, Security Guard who has examined before the court has also turned hostile. It is 53 suggested to this witness that he was also present on that day at about 6.30 p.m., when the deceased came to the Palm Grove Premises, by that time, accused Nos. 1 to 3 were already present and at about 7.30 p.m., he saw accused No.2 T. Madhukumar brought the Car of the deceased Chitralekha to the portico of Palm Grove Premises and thereafter accused Nos.2 and 3 lifted the deceased Chitralekha and put her in the car and thereafter Madhukumar drove the car away from the Palm Grove Premises. His statement was also confronted to him, but he denied the said suggestion and also having given such statement before police as per Ex.P-94.
41.6 PW-35 Govinda Rao, who is also Security Guard in the Palm Grove Premises, examined before the court has turned hostile. In the cross examination, in the same fashion as that of PW-34 denied the suggestions made to him that he actually on that particular day present and saw accused Nos.2 and 3 took the deceased in her car going away from the Palm Grove Nursery.
54
41.7 PW-36 T.B. Paramesh, another Security Guard, who was working in the Palm Grove Premises has examined before the court. He has deposed that he was also present and saw accused Nos.2 and 3 taking the deceased in her Car in the evening of 19.01.2004. But during the course of cross examination he has turned hostile to the case of prosecution. The portion of his statement marked before police at Ex.P-96 is denied.
42. Looking to the above said evidence of these witnesses, there is absolutely no support to the case of prosecution. What is to be looked into is that in the course of cross examination of these witnesses, except putting suggestions to them, that they are deposing falsehood before the court at the instance of accused No.1 and also Sri Hari Khode in order to help the accused persons, nothing has been elicited in the course of cross examination.
43. However, the evidence of PW-22 Shivanna and PW-25 Ningappa, as contended by the learned counsels for the appellants, their statements were recorded by 55 videograph. Therefore, it is contended that in the course of cross examination of these two witnesses, they have admitted that they have given such statement before police and the said statement is true and correct. Hence, it is strongly canvassed that, though they have turned hostile to the prosecution, their evidence deserves to be accepted to the extent that they have actually seen accused Nos.1 to 3 and the deceased on that day when they were quarreling with each other and thereafter accused Nos.2 and 3 shifted the deceased Chitralekha in her Car.
44. In this background, we have to see what is the effect of the videograph evidence of PW-22 Shivanna and PW-25 Ningappa.
45. These two witnesses at the initial stages when examined in chief, turned hostile and as noted above, the portions of their statements made before police were marked. Subsequently, these two witnesses were again recalled and examined by the prosecution. It is elicited during the course of cross examination that the police 56 have recorded the statement through videograph. The videograph cassette was played before the trial court and showed to the witnesses. After seeing the videograph, they have stated that they have given such statement before the Investigation Officer. The said videograph portion is marked at Ex.P-148. It is also further elicited that the contents of Ex.P-148 are true and correct. The witnesses were further cross examined by the accused and it is elicited that, these two witnesses were kept in the police custody for two days and they were told by the police that the police are going to record their statement through videograph and they have to give statement as instructed by the police and thereafter, the police have prepared the witnesses and recorded their statements.
46. The learned counsel for the appellants strenuously contended that though the witnesses have turned hostile in the examination in chief, but in the course of cross examination they have admitted the contents of their statement made before police. 57 Therefore, the court has to see as to what is the effect of the admission on the part of the witnesses.
47. Before adverting to the legal aspects, it is made clear by both the counsels, that the videograph statements also fall within the category of the statement recorded by the police u/s.161 of Cr.P.C. The learned counsel for the appellants have not brought to our notice about any law, provision, statute or any decision to the effect that the videograph statements recorded u/s.161 of Cr.P.C. has got prominence or preferencial value than the one recorded by the police in writing. In the absence of such materials before the court, we are of the opinion that the statement recorded by the police either in writing or by videograph, of the witnesses falls u/s.161 of Cr.P.C only. No other provision under Cr.P.C. which gives any prominence to the videograph statement of the witnesses. This particular aspect is also categorically admitted and clarified by the Investigating Officer PW-68 Sri B.K. Shivaram to the effect that he has recorded the videograph statement of these two witnesses and reduced the same into writing 58 and those portions are marked before the court in the evidence of these two witnesses. Therefore, it goes without saying that Ex.P-148 stands on par with the portion marked in the statement of the witnesses u/s.161 of Cr.P.C. When once the statement of the witnesses falls u/s.161 of Cr.P.C., the effect and use of such statement has to be looked into by the court. The statutory principle that the statement recorded u/s.161 of Cr.P.C. can only be used for the purpose of contradicting the witnesses as provided u/s.162 of Cr.P.C. and for confronting the witnesses as provided u/s.145 of the Indian Evidence Act is not disputed.
48. In this background, it is worth to note here the decision of the full bench of the Hon'ble Apex Court reported in AIR 1959 SC 1012 between Tahsildar Singh and another Vs. State of Utter Pradesh, which has been consistently followed by the subsequent rulings. We would like to reproduce the relevant paragraphs 11 and 17 of the said judgment, which is reproduced hereunder for easy understanding: 59
"11. It is, therefore, seen that the object of the legislature throughout has been to exclude the statement of a witness made before the police during the investigation from being made use of at the trial for any purpose, and the amendments made from time to time were only intended to make clear the said object and to dispel the cloud cast on such intension. The Act of 1898 for the first time introduced an exception enabling the said statement reduced to writing to be used for impeaching the credit of the witness in the manner provided by the Evidence Act. As the phraseology of the exception lent scope to defeat the purpose of the legislature, by the Amendment Act of 1923, the section was redrafted defining the limits of the exception with precision so as to confine it only to contradict the witness in the manner provided under section 145 of the Evidence Act. If one could guess the intention of the legislature in framing the section in the manner it did in 1923, it would be apparent that it was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said 60 statements were not made under circumstances inspiring confidence. Both the section and the proviso intended to serve primarily the same purpose i.e., the interest of the accused.
17. At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy 'via media', namely, while it enacts an absolute bar against the statement made before a police-officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by Section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction . It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the 61 interest of the accused, and the exception cannot obviously be used to cross the bar.
49. In another ruling of the Hon'ble Apex Court reported in AIR 1999 SC 2161 between State of Kerala Vs. Babu and others. In this case also, the same principle has been re-iterated as to when Section 145 of the Indian Evidence Act permits the court for cross examination of the witnesses as to previous statements in writing in any trial with reference to his previous statement to establish a contradiction and the manner in which such contradictions can be established. Section 155 of the Indian Evidence Act provides that the previous statement of a witness can be made use of during the cross examination of that witness for the purpose of impeaching the credit of the witness. Thus, it is seen it is the right of a party in a trial to use the previous statements of a witness either for the purpose of establishing a contradiction in his evidence or for the purpose of impeaching the credit of the witness. Therefore, it is clear that the accused in a criminal trial has right to make use of the previous statement itself 62 including the statement recorded by the investigating agency during the course of investigation for the purpose of establishing a contradiction in the evidence of a witness or to discredit the witness.
50. In view of the above said rulings, it is crystal clear that the previous statement of the witnesses whether it is recorded by means of reducing it into writing or through videograph method or in any manner recognized under law, that can only be used for the purpose of contradicting the witness or to impeach the credit of the witness. Therefore, it conversely supposes that it cannot be used for the purpose of corroborating the evidence or for the purpose of using it as a substantive evidence.
51. Of course, the evidence of hostile witnesses cannot be out rightly discarded. What is to be looked into is that, apart from the contradictions elicited during the course of cross examination by the prosecution itself, treating some of the witnesses as hostile, then the portions marked in the statement 63 u/s.161 of Cr.PC., cannot take the place of substantive evidence. Therefore, independent of such statement made by the witnesses before the police, if any other factual aspects are elicited and proved through such witnesses, such evidence would only act as substantive evidence recorded by the court and that can be used for the purpose of corroborating the other materials on record. Otherwise, it can be said that even though the witness states that he has stated before police as per the statement recorded u/s.161 of Cr.P.C.,are true and correct, that itself will not take the place of substantive evidence, but the witnesses have to state before the court pertaining to the facts of that particular case. Then only such portion will become substantive evidence.
52. In this background, the conduct of these witnesses have to be tested by surrounding connecting evidence. It is the case of the prosecution that there are three Investigation Officers who have investigated the case. The witnesses who have turned hostile to the prosecution were initially examined by (1) PW-49 Sri R. 64 Ramachandran, the first Investigating Officer, (2) PW-63 Abdul Azim, the second Investigating Officer and (3) PW- 68 Sri B.K. Shivaram, the third Investigating Officer and the same has been admitted by the third Investigating Officer PW-68. In his evidence, he has categorically stated in the course of cross examination to the effect that the earlier Investigating Officers have recorded the statements of 14 witnesses including these witnesses and those statements were handed over to PW-68 but he has taken a decision that those statements were not helpful to the case of the prosecution . Therefore, he has not made those statements as part of the charge sheet. This clearly indicates that these witnesses including PWs. 22 and 25 have not supported the case of the prosecution at the earliest point of time. Therefore, the substantive evidence recorded by the court is substantiated by their previous statements made before the earlier two Investigating Officers. Therefore, their evidence before the court not supporting the case of prosecution is consistent with their previous statements before the previous two Investigating Officers. Therefore, 65 in our opinion, the evidence of these witnesses cannot be in any manner made use of for the purpose of substantiating the statement made by them before police even accepting the portions of statement recorded u/s.161 of Cr.P.C.
53. The learned Sr. counsel for the appellant Sri Adithya Sondhi has further submitted that, the statements of witnesses are recorded through videograph, once the videograph itself is marked before the court, the same has to be looked into by the court and no further proof is required when he categorically admitted that those statements made by him by way of video graph is true and correct. But we are unable accede to such arguments of the learned counsel because it has no legal basis. He has not shown to us that such a statement even if it is marked and accepted by the witnesses which is nothing but part of Section 161 of Cr.P.C. statement can be accepted as substantive piece of evidence. More over as we have already referred to that, the witnesses have categorically stated that those statements were recorded by the Investigating 66 Officer P.W. 68, in duress keeping them in custody for more than two days and they have tutored them to give statement in such a manner. Such act of the investigation is strictly and statutorily prohibited under section 163 of Cr.P.C. which says that - "No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in Section 24 of the Indian Evidence Act, 1872" for the purpose of taking the statement of any witnesses. Therefore, if it is apparently shown on record as per the evidence of the witnesses that they were in threat and in duress at the time of making such statement. The said portion of the evidence in the course of cross examination by the defence has not been further subjected to cross examination by the prosecution. That portion also is a substantive piece of evidence before the court. More so, when the statement of the witnesses have voluntarily by earlier two Investigating Officers have been recorded and they have given their voluntary statement in the peculiar circumstances of this case, it cannot be with all 67 certainty said that the statement made before PW-68 Sri B.K. Shivaram of these two witnesses either by way of videograph method or in writing cannot said to be voluntary in nature. Therefore, such materials also cannot be used as substantive evidence.
54. In order to judge the credibility of a witness, the court should not confine itself to the way in which the witnesses have deposed or to the demeanor of the witnesses but the court has to look to the surrounding circumstances as well as the probability, so that it may be able to form a correct idea of the trustworthiness of the witness. Therefore, the evidence of a hostile witness though need not be rejected in its entirety, but the court should search for the naturality of the evidence and the truthfulness in the statement of the witnesses. In this case, in our opinion, it is conspicuously absent in the evidence of these witnesses. Hence, on the basis of such shaky evidence, the prosecution cannot be said to have proved the circumstance of last seen together beyond doubt.
68
55. Now, coming to the evidence of telephonic conversation with the deceased by some of the witnesses which are discussed hereunder:
55.1 It is the case of the prosecution that on 19.01.2004 the accused No.1 through her mobile No.98444 33300 requested the deceased at 9.44 a.m., by calling her to her mobile bearing No.9845008687 and also called her at 5.19 p.m., to the same number and on that request the deceased went to Palm Grove Premises.
To show this transaction and conversation, the prosecution has relied upon the evidence of PW-30 Srinivas and the call details which are marked as Ex.P- 85 running into six pages from 1 to 6. It is the case of the prosecution that PW-1 Smt. Hema Mandanna in Ex.P-1 Missing complaint has stated that she spoke to the deceased on that day at 6.47 p.m., and deceased told that she was driving her car and she was meeting accused No.1 at Palm Grove Nursery. Again with reference to the same conversation, in the evidence, she has stated that the deceased told her that she was with 69 accused No.1 at 6.47 p.m., in Palm Grove Nursery and she would come back for dinner at 7.30 p.m.. About this conversation PW-30 Srinivas has also stated about the call details marked as Ex.P-89. It is also the case of the prosecution that PW-6 Naval Nariyal Wala is also deposed in his evidence that deceased called PW-6 over phone at 7.50 p.m., on that day and informed she was in Palm Grove Premises and she would meet PW-6 later. PW-6 was having his mobile No.98450 05065. The call details pertaining to this conversation was also marked as Ex.P-83 and PW-29 Stanley, examined to substantiate the same. Further, it is alleged that, accused Nos.1 and 2 conversed with each other in their telephone No.56707687 of accused No.1 and 9845515025 of accused No.2 and this conversation is also supported by the call details Ex.P-87 and P-90. Of course, the prosecution has examined PW-29 Stanley and PW-30 Srinivas in this regard who have specifically supported the case of the prosecution and through them the above said call details are got marked. There is 70 no cross examination so far as these witnesses are concerned by the defence.
55.2 The learned counsel for the appellant contended that when the evidence of the witnesses has not been subjected to cross examination that cannot be ignored by the court and the documents which are marked without there being any objections by the other side they cannot raise any voice with regard to their admissibility. To substantiate this principle, the learned counsel has relied upon the decisions reported in:
1. (2003) 1 SCC 240 between Sarwan Singh Vs. State of Punjab and
2. (2003) 8 SCC 752 between R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and another.
55.3 There is absolutely no dispute about the principle laid down. However, the court cannot ignore the examination in chief of the prosecution witnesses.
whether their evidence even un rebutted can be made use of, for any purpose. If the other circumstances show that those documents are not legally admissible and 71 even if it is admitted in evidence, which go to the basic question of admissibility of the document such documents cannot be looked into.
56. In this background, the legality with regard to these call details have been seriously questioned before this Court by the respondents' counsels. They relied upon the latest pronouncement of the Hon'ble Apex Court reported in (2014) 10 SCC 473 between Anvar Vs. P.K.Basheer and others, wherein the Hon'ble Apex Court in detail has relied upon the provisions under the Indian Evidence Act particularly Section 65-B with regard to the relying on the evidence of electronic record by the courts. It is just and necessary for this court to extract some portion of the said judgment -
"HEAD NOTE - (B) Evidence Act, 1872 - S. 65-B(4) - Secondary evidence of electronic record - producing copy of statement pertaining to electronic record in evidence not being the original electronic record - Mandatory pre - requirement - Held, such statement has to be accompanied by a certificate as specified in S. 65-B(4) -72
Essential ingredients of such certificate, enumerated - Held, such certificate must accompany electronic record like CD, VCD, Pen Drive, etc., which contains the statement which is sought to be given as secondary evidence, when the same is produced in evidence - In the absence of such certificate, secondary evidence of electronic record cannot be admitted in evidence, as in present case.
Electronic record produced for the inspection of the court is documentary
evidence under section 3 of the Evidence Act, 1872 (the Evidence Act). Any documentary evidence by way of an electronic record under the Evidence Act, in view of sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under section 65-B of the Evidence Act. The purpose of these provisions is to sanctify secondary evidence in electronic form generated by a computer. The very admissibility of electronic record which is called as "computer output", depends on the satisfaction of the four conditions prescribed under Section 65-B(2) of the Evidence Act.73
Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
1. There must be a certificate which should identify the electronic record containing the statement;
2. The certificate must describe the manner in which the electronic record was produced;
3. The certificate must furnish the particulars of the device involved in the production of that record;
4. The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and
5. The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
The person concerned occupying the responsible official position concerned need only to state in the certificate that the same is 74 to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc(VCD), pen drive, etc., which contains the statement which is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence.
Electronic records being more susceptible to tampering, alteration, transposition, excision, etc., without such safeguards, the whole trail based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A of the Evidence Act-opinion of Examiner of Electronic Evidence can be sought.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 75 65-B of the Evidence Act are not complied with, as the law now stands in India."
(emphasis supplied)
57. There is absolutely no dispute with regard to these documents i.e., call records noted above or the computer out put and print outs. PW-29 and PW-30 have also categorically admitted that those documents are computer generated print outs. Therefore, it certainly attracts Section 65-B of the Evidence Act.
58. Though the learned counsel for the appellants strenuously contended relying upon the facts in Anwar's case, and submitted that on facts the case is not applicable But we are of the opinion that the factual aspects would play no role in this case because of the simple reason, the factual aspects discussed in any case cannot be termed as precedent, only the law interpreted or laid down by the Hon'ble Apex Court have binding force. Even otherwise, each and every case will have their own facts. The court has to analyze the factual aspects pertaining to that case and it should not 76 venture upon to compare the factual aspects of one case with another case. In this background, we are not readily accepting the arguments of the learned counsel.
59. It is further contended by the learned counsel that the interpretation with reference to Section 65-B of the Evidence act was made as early as in the year 2005 in State (NCT of Delhi) Vs. Navjot Sandhu reported in (2005) 11 SCC 600. But the said ruling has been over ruled in Anwar's case. The learned counsel has further contended that it is only a prospective over ruling. The decision in Anwar's case cannot be made use of, so far as this case is concerned because the trial was already completed so far as this case is concerned. We are also not ready to accept such arguments because of the simple reason that these two decisions noted above rendered at different times, nevertheless, Section 65-B of the Evidence Act was very much in force right from the date of its amendment to the Indian Evidence Act and also introduction of the Information Technology Act. It is a fundamental principle that once the statute is interpreted, that should be understood as on the date of 77 its application. Therefore, when Section 65-B(2) of the Evidence Act was already in existence even as on the date of recording of the evidence by the Trial Court, we are of the opinion that Section 65(B)(2) was in equal force applicable before the Trial Court itself irrespective of any interpretation. The Trial Court also referred to this provision and held that the procedure as contemplated u/s.65(B)(2) of the Act has not been properly followed.
60. The learned State Public Prosecutor-I has contended that when PWs.29 and 30 were examined before the court and they have stated about the above said call details that itself constitute a certificate as per Section 65-B of the Evidence Act. When once the witness is examined, there is no necessity of the certificate in writing. Hence, he also contends that the evidence of PWs.29 and 30 complies the legal requirement.
61. It is the basic fundamental principle that when law requires a particular act to be done in a particular 78 manner, it cannot be accepted even such act is done otherwise than the one recognized by the statute. For example, if a Will is not attested by any witness, then such Will is not admissible even admitted by the parties, in evidence because in the eye of law, it cannot be called as a Will at all. We can also rely upon another illustration where the Transfer of Property Act prescribed that a sale of immovable property worth more than Rs.100/- shall only be made by way of a registered document, but it was made by un-registered document even if the parties give consent for such a document to be marked and request the court to admit the said document, but the courts are debarred from considering that document at all because it is legally inadmissible document, and also that there cannot be any estoppel against the statute. If such principle is applied, section 65-B of the Evidence Act prescribes a particular mode for producing and admitting the documents if such mode is not adopted by the prosecution then such evidence becomes inadmissible and cannot be relied upon by the courts of law. 79
62. PW-29 Stanley, Manager, Tata Tele Service has deposed before the court that he has issued Exs.P-82 to P-87 which are the bills and call lists pertaining to several telephone numbers and he has stated that he has given such statement to the police and it is also stated that those records will be stored in a machine called switch machine and thereafter it would be transferred to the server and computer will generate the call list. Therefore, it is crystal clear that these calls recorded between the parties noted above or recorded in a machine and then transferred to the server and then computer generated copies would be issued. He never stated in his examination in chief itself any certificate being issued in this regard nor he has specifically stated about the fulfillment of the requirement of Section 65- B(2). At least the prosecution would have elicited the contents of the certificate as contemplated u/s.65-B(2) by means of oral evidence from the mouth of this witness. Therefore, by any stretch of imagination, it can be said that these witnesses PWs.29 & 30 have spoken to about such certificate or the contents of Section 65- 80 B(2) of Evidence Act. Therefore, such documents in our opinion are not legally admissible and even if it is admitted, the same cannot be relied upon by the court for any reason.
63. As could be seen from the above said decision in Anwar's case, the court has categorically stated at paragraph 18 that, the Evidence Act does not contemplate or permit the proof of electronic record by oral evidence. The requirements u/s.65-B of Evidence Act are not complied with as the law now stands in India. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act thereafter only Section 45-A of the Evidence Act can be resorted to seek the opinion of the examiner of the electronic evidence. Therefore, the production of the certificate u/s.65-B is sine-qua-no or condition precedent to put the witness into the box to elicit with regard to the genuineness of the said document. Therefore, we are of the opinion that the said documents cannot be relied upon for any purpose as they are not legally admissible documents.
81
64. Even assuming that these documents which are admitted once cannot be questioned later. Let us see what is the sanctity that can be attached to the evidence of PW-1, PW-6 and the conversation between accused Nos.1 and 2 and also accused No.1 and the deceased as per the case of the prosecution.
65. After arrest of accused No.1 on 9.3.2004, it is the case of the prosecution that her voluntary statement was recorded and on 16.3.2004 under Ex.P-55 two mobiles were recovered from her house which are marked at MOs.31 and 32. The sim numbers of those mobiles are 56707687 and 9845533300. After arrest of accused Nos.2, the police have also recovered from accused No.2 on the basis of his voluntary statement under Ex.P-97 a hand set mobile having sim No.98455 1502. Another hand set having sim No.94481 74050, also recovered, but is nowhere connected to this case.
66. PW-37 Jagannath, who is the mahazar witness who supported the case of the prosecution with regard to the recovery of the two hand sets at the instance of 82 accused No.2 and the said telephone numbers are marked at MOs.33 and 34. Though the witness has been cross examined nothing has been elicited that the said telephones were not seized at the instance of accused No.2 or from accused No.1 as stated above. On the other hand, at the time of arguments, it is submitted that PWs.40 and 42 have voluntarily handed over MO.31 Nokia Mobile and MO.32 Motorola mobile belonging to them to the Investigating Officer. PW-40 Yashaswini is no other than the daughter of accused No.1 and PW-42 Suraj is also a close relative of accused No.1. The evidence of PWs.29 and 30 play a dominant role in so far as these aspects are concerned.
67. PW-29 has stated that Mobile No.9845008687 belong to the deceased Dr. Chitralekha Urs and also the telephone bearing No.9845533300 was registered in the name of PW-40 Yashaswini and another mobile phone which was recovered at the instance of the accused No.1 was registered in the name of PW-42 Suraj. The documents also disclose that the said Mobile phones were recovered at the instance of accused No.1. Mobile 83 bearing No.9845515025 belong to one Lakshman Rao CW-42. The documents such as Call list of course discloses that there were two calls to the deceased on 19.01.2004 from telephone No.9845533300 alleged to have been made by accused No.1. But there is no material to show before the court that at that relevant point of time, this telephone number was in actual possession of accused No.1 and she actually telephoned to the deceased. On the other hand, the prosecution itself has led the evidence of PW-40 Yashaswini, who turned hostile to the prosecution, naturally, she being the daughter of accused No.1. Nevertheless, the evidence which remained on record explains as to who actually used the said telephone at the relevant point of time. PW-40 Yashaswini has categorically stated that she was the owner of the said telephone and at no point of time her mother was using the said telephone number. In the course of cross examination, it is elicited that her mother never used the said telephone number for the purpose of calling the deceased on 19.01.2004 which is the positive evidence led by the prosecution. In 84 the course of cross examination by the accused, she has admitted handing over of the said mobile phone to the police and also she has categorically stated that on 19.1.2004 she telephoned to the deceased Chitralekha in the morning and in the evening for the purpose of congratulating her for having purchased a new car. She also deposed that she used to call the telephone bearing No.9845515025 which belong to one Lakshman Rao and used to talk to him. Therefore, it is clearly explained by the prosecution itself that PW-40 is the owner of the said telephone and using the said telephone. So far as the conversation between the accused No 1 and accused No.2 is concerned, the owner of the telephone No.9845515025 Mr. Lakshman Rao has not been examined before the court though cited as a witness CW-42 in order to establish that the said telephone was handed over either to accused No.2 or 3 at any point of time.
68. Further, PW-42 Suraj has also deposed before the court that he has been using his telephone No.9880005999. He never handed over his telephone 85 number to anybody much less to accused No.1. The said telephone is marked at MO-32.
69. Looking to the above said evidence placed on record, the prosecution itself has alternatively established that these telephone numbers do not belong to either accused Nos.1 or 2 and no other evidence is available to show that these cell phones were in exclusive possession of either accused No.1 or 2. at the relevant point of time. Therefore, there is no strong conclusive connecting material to show that the accused No.1 has called the deceased over phone on that particular day and also accused No.1 conversed with the deceased or with accused No.2 over telephone as noted in the call list detailed above.
70. The learned counsel for the appellants strenuously contended that the Palm Grove Premises has also got a landline telephone and from that also, accused No.1 has called the deceased on that day. Even accepting that the Palm Grove Premises has got the landline, but in the absence of any material to show 86 that accused No.1 was very much present in the Palm Grove Premises in the evening between 6 and 7 pm., no inference can be drawn that accused No.1 has telephoned to the deceased or anybody from the Palm Grove Premises.
71. Of course, there is some material placed that PW-1 through her telephone called the deceased on that day in the evening at 6.47 p.m., and the deceased has called PW-6 at 6.50 p.m., to his telephone number. But it is very remote circumstance to come to a definite conclusion that deceased has actually talked with these two persons when she was in Palm Grove Premises. Of course, in Ex.P1 and in the evidence of PW-1 she has stated that the deceased at 6.47 p.m., told her that she was proceeding to Palm Grove Premises to meet accused No.1. But what happened later, no material is available before the court. Even the evidence of PW-6 that deceased told him that she was in Palm Grove Premises is also a remote circumstance to connect the accused No.1 being there and talking with the deceased at that particular point of time. Apart from the above, there is 87 material in the evidence of PW-1 and also in Ex.P-1 that the Airtel telephone number of the deceased was last used within the Rajajinagar Tower Area. Therefore, the said telephone was within the area of the tower situated in Rajajinagar at about 7.30 p.m.. This also creates a serious doubt at 7.30 p.m., whether the deceased was alive and the said telephone was used by her. Further, to eliminate the doubt, the Investigating Officer has not taken any interest to locate the exact place from where the telephones were operated by accused Nos.1 and 2, because the tower locations were not traced particularly to show that accused No.1 telephoned to the deceased in the evening. It is the prosecution case that, the deceased from the Palm Grove Premises also called PW-
6. Therefore, the above said evidence in our opinion is not conclusively established that the deceased was called by accused No.1 between 6.30 p.m. to 7.00 p.m., in the Palm Grove Premises and they were last seen together. The circumstance projected by the prosecution is shrouded with doubts. Those doubts are not clarified by the prosecution. Therefore, this circumstance of last 88 seen that the accused Nos.1 to 3 were last seen together with the deceased is not established beyond all reasonable doubt.
72. It is the case of the prosecution that Accused Nos.2 and 3 were seen together in Padil junction in the car of the deceased. As per the case of the prosecution, accused Nos.2 and 3 after committing the murder of the deceased, shifted the dead body of the deceased from Palm Grove Premises, Bangalore to Shiradi ghat near Sakleshpur and threw the dead body in a valley and thereafter proceeded to Mangalore and at that time, at Padil junction, accused 2 and 3 were seen by PW-47.
73. Let us see whether this circumstance is established beyond all reasonable doubt.
73.1 It is a clear cut case of the prosecution that the death of the deceased occurred in Palm Grove Premises at Bangalore and the dead body was shifted by accused Nos.2 and 3 in her car only. In this regard, the prosecution has strongly relied upon the evidence of PW-68 Sri B.K. Shivaram, the Investigating Officer and 89 the witness PW-47 Shivaprakash. Another witness CW- 64 who is said to have seen accused Nos.2 and 3 in the said Car at Padil junction has not been examined.
73.2 As could be seen from the records, the said car of the deceased was abandoned at Babagudde in Mangalore on 22.1.2004 and it was traced by a police constable PW-48 Sundarachar, attached to Mangalore South Police and the same was informed to Bangalore police i.e., High Grounds Police. In this regard, PW-62 Jitendranath was deputed for the purpose of making enquiries in this regard. He went to the said place and on 28.1.2004, the said car was seized in connection with this case under Ex.P-112. There is no dispute so far as abandoning of this car and seizure of the said car in connection with this case. PW-68 who had been to enquire into the matter, has examined PW-47 Shivaprasad and also examined CW-64 Divakar Rao and recorded the statement and also made all enquiries and he came to know that on the early hours of 20.1.2004 i.e., the next day of the alleged incident, three persons and a lady were found in the said car in 90 Mangalore. Therefore, PW-62 Jitendranath came back and lodged a complaint before High Grounds Police Station as per Ex.P-120. Ex.P-120 also clearly discloses that the said PW-62 has categorically stated that on 22.1.2004, he went to Mangalore along with his staff and during his discreet enquiry, it revealed that a lady along with three persons entered Mangalore city in a Car bearing No.KA-03/MC-1206. He also ascertained about the particulars of the car in which missing lady was last seen before disappearance from Mangalore. He further says that after convincing himself that the same car entered Mangalore on the intervening night of 19/20th January 2004, with a lady and three persons, he personally enquired about the missing lady and persons traveled with her in the above said car. Therefore, he has got every reason to believe and conclude that Kum. Chitralekha had been abducted with an intent to confine wrongfully for some illegal acts. The tone and tenor of this document which is also fully supported by the evidence of PW-62 Jitendranath before the court that the lady was seen with three 91 persons in Mangalore after she alleged to have been abducted from Bangalore. But in the course of evidence of PW-62, he has deviated little bit from Ex.P-120, he deposed that two persons were seen in the said car at Padil junction. Therefore, it is an improvement during the course of his evidence, which has to be considered by this court with other surrounding circumstances.
73.3 As we have said that there is no dispute with regard to the seizure of the car. Therefore, we do not want to delve upon so far as that aspect is concerned.
73.4 The prosecution has relied strongly on the evidence of PW-47 Shivaprakash, who has categorically stated that on 19.01.2004 himself and another person by name Dinesh Rao were on duty at Padil junction Nakabandi on 21.1.2004 from morning hours up to 5.00 am., and they worked there at that place on the intervening night of 19.1.2004 and 20.1.2004. They observed at about 3.00 a.m., a car which came from the Bangalore side and proceeding towards Mangalore. On checking they found two persons in the Car with the 92 help of the battery. They have seen those two persons before the court and identified them as accused Nos.2 and 3. The evidence of PW-47 Shivaprakash and PW-62 Jitendranath directly contradicts the written complaint lodged by PW-62 under Ex.P-120 as narrated supra. It is clear that PW-62 Jitendranath when enquired PW-47, he never receives any information about two persons proceeding in the car and PW-47 has never stated that he can identify those persons in the car. Subsequently, after PW-68 the Investigating Officer takes over the case, he records the statement of PW-47 Shivaprakash and CW-64 and they have stated that they have seen two persons in the car and PW-68 Sri B.K. Shivaram after arrest of accused Nos.2 and 3 shows those two persons to PW-47 Shivaprakash after more than one and half month, and they said to have identified them as accused Nos.2 and 3 as the persons who were proceeding in the said car towards Mangalore.
73.5 In the course of cross examination, P.W.47 has admitted that on that particular day, more than 50 vehicles have passed through the Padil junction and 93 they cannot identify those persons but particularly they say that there was some quarrel between accused No.2 and PW-47 Shivaprakash on that particular day, as accused Nos.2 and 3 were making hurry to pass through the junction. Therefore, he was able to identify accused Nos.2 and 3. But as could be seen from the documentary evidence placed before the court Ex.P-116 which is the book maintained by the police to record the checking of the vehicles which pass through the Padil junction. On perusal of Ex.P-116, except mentioning the car number that passed through Padil junction, nothing has been recorded as stated by this witness that they with the help of the battery, seen the faces of accused Nos.2 and 3 or there was any quarrel between them and therefore, they could specifically identify accused Nos.2 and 3 and further he has not stated anything about these aspects with PW-62 Jitendranath enquired them at the first instance at the earliest point of time on 22.1.2004 or 23.1.2004. Therefore, it creates a serious doubt whether after about 40 - 45 days, can they able to identify accused Nos.2 and 3 as the persons who 94 traveled in the said car at Padil junction. Further added to that, though the Investigating Officer PW-68 has taken charge in the last week of February 2004, he did not record the statement of these witnesses at the earliest point of time, but he recorded the statement on l0.3.2004 and delay is not explained. On 1.3.2004 in fact, these persons have stated to have given statement before some other Police Officer but no such document has been produced. Therefore, it is very difficult to draw an inference that the evidence of PW-47 is trustworthy for acceptance because of the simple reason that there is no disclosure of such things in Ex.P-116, no disclosure at the earliest point of time that PW-68 has examined them and Investigating Officer has not recorded their statement as soon he takes over the investigation and after 15 days he records his statement. It is very difficult to accept that after 40 to 45 days they can identify the accused persons, when they cannot identify any persons who have traveled in more than 50 vehicles on that day.
95
74. Being the Senior Police Officer with rich experience, PW-68 should have conducted the 'Test Identification Parade' so far as accused Nos.2 and 3 are concerned. It is quite natural that about 50 vehicles have passed through at that junction,and different persons traveled in those vehicles PW-47 had never seen accused Nos.2 and 3 prior to that date. Thereafter, it only after 40 to 45 days they were shown isolated, without mixing them with any other person. Therefore, in our opinion, in the absence of test identification parade, showing of accused Nos.2 and 3 to PW-47 by the Investigating Officer PW-68 is in violation of the recognized principles and purpose of test identification parade.
75. It is worth to note here a decision in this regard reported in AIR 1968 SC 938 between Laxmipat Choraria and others Vs. State of Maharashra, wherein the Hon'ble Apex Court at paragraph 21 has observed that -
96
"Identification of suspect by witness - Ability of witness to identify should be tested without showing him the suspect, or his photograph, or furnishing him data for identification - Showing photograph prior to identification makes identification worthless."
In another ruling reported in (1998) 4 SCC 494 between Mohd. Iqbal M. Shaikh and others Vs. State of Maharashtra, wherein the Hon'ble Apex Court has also observed that -
"If the witness knew the accused persons either by name or by face, the question of the police showing him the accused persons becomes irrelevant. If the witness did not know the accused persons by name but could only identify from their appearance then a test identification parade was necessary, so that, the substantive evidence in court about the identification, which is held after a fairly long period, could get corroboration from the identification parade."
But in this case this salutary principle with regard to the test identification parade has not been followed by 97 the Investigating Officer for the reasons best known to him. Therefore, for the above said reasons, it cannot be said that the prosecution has proved this circumstance beyond all reasonable doubt that accused Nos.2 and 3 were seen by PW-47 at Padil junction on 21.1.2004.
76. Apart from the above, PW-49 R.Ramachandran also in his evidence stated that on 14.2.2004 deceased was seen by Manju at Hassan, but on enquiry he could not able to get any information about the same. But no material has been placed whether the said Manju was enquired into by PW-49 or not and who was that Manju, what is his address and whereabouts and whether he has given any statement before police etc., This also creates a serious doubt whether actually any incident has taken place at Bangalore or subsequently at any place. Therefore, we are of the opinion that the prosecution has failed to establish the theory of last seen together as projected before the court.
98
IV RECOVERY:
77. The case of the prosecution is having two limbs. The prosecution wants to connect accused Nos.2 and 3 by way of recovery circumstance. It is the case of the prosecution that after arrest of accused Nos.2 and 3 and on 8.3.2004, the Investigating Officer recorded their voluntary statement as per Ex.P-160 and P-161 respectively and accused Nos.2 and 3 according to their voluntary statement led PW-68 and the panch witnesses to Sakleshpur Ghat area and they have shown the dead body in a valley and on 9.3.2004 in the presence of the panch witnesses, Mahazar was drawn with regard to the recovery of the dead body on the spot which is marked as Ex.P-46. On the next day i.e., on 10.3.2004, the inquest and P.M. of the dead body was conducted as per Ex.P-47.
78. The evidence of the Investigating Officer fortifies this particular aspect. It is stated that PW-68 D.K. Shivaram took up the investigation in this case on 23.2.2004 and after lapse of nearly 15 days i.e., on 99 8.3.2004, he visited the Palm Grove Premises and examined the witnesses PW-22 Shivanna, PW-25 Ningappa and PW-34 Basavaraj along with other witnesses and video recorded the statement of PWs.22 and 25. As we have already discussed, they have turned hostile to the prosecution. It is the prosecution case that, they disclosed about the presence of accused Nos.1 to 3 in the Palm Grove Premises on that day.
Therefore, on 8.3.2004, he secured the presence of accused Nos.2 and 3, arrested them at 11.45 p.m., in the night and recorded their voluntary statement. Here, it creates a serious doubt that though this person has taken the charge on 23.2.2004 itself, by that time, he knew that PW-49 Ramachandra and PW-63 Abdul Azim have already recorded the statements of accused No.2, PW-22 Shivanna and PW-25 Ningappa. But in spite of that he never records the statement of these witnesses immediately after he takes over the charge. But he has not given any explanation as to why he kept quiet from 23.2.2004 to 8.3.2004 without recording the statement of these important relevant witnesses. It is evident from 100 the evidence of PW-49 R.Ramachandran that on 30.1.2004 itself, he secured the presence of accused No.2 and enquired him, but he could not able to get any information from accused No.2. It is also there in the evidence that he suspected accused No.2. Therefore, he examined him in that line.
79. The evidence of PW-63 Abdul Azim, the second Investigating Officer has also stated that on 14.2.2004 he secured the presence of accused No.2 Madhukumar and interrogated him, but he could not get any information from them. Very particularly, the statement of accused no 2 was recorded but not produced before the court. Further, it is also in the evidence of PW-49 R. Ramachandran and PW-63 Abdul Azim that they have recorded the statements of these witnesses who were present in Palm Grove Premises on that particular day particularly, PW-22 Shivanna, PW-25 Ningappa and PW-34 Basavaraj. Peculiarly enough, PW-68 admits that the statements of those witnesses were handed over to him by the previous Investigating Officers, but there was no help to the prosecution therefore he did not 101 produce the same before the court along with the charge sheet. In this background, it creates a serious doubt whether accused Nos.2 and 3 could have given the statement voluntarily as per Ex.P-160 and P-161 when they had already given statement earlier before PW-49 and PW-63 which were not helpful to the prosecution.
80. Another circumstance Ex.P-121 is the report of the police officials particularly Veerappa PW-50, who has apprehended the accused No 2 and 3, from their house and produced before PW-68 creates a serious doubt whether they were arrested on that day at 8.00 pm or not? In this regard, the evidence of PW-65 Mr. K.B. Ramesh who is also a witness to the recovery of dead body at the instance of the accused is important.
81. P.W. 65, has stated that on 8.3.2004 at about 8.00 p.m., he went back to the house after his duty. But prior to that at about 7.30 to 8.00 p.m., he has seen the accused Nos.2 & 3 were brought to the Police Station, he also expresses his doubt that he cannot definitely say whether the accused persons were brought to the 102 Police Station on that day or two days prior to that date and produced before the investigation officer and he cannot specifically say that how many days prior to 8.3.2004, the accused persons were brought to the Police Station however, he admit that, they were brought to the Police Station. This also creates a serious doubt that, the accused persons might have been arrested even prior to 8.3.2004. This also creates a doubt as to whether accused Nos.2 and 3 were forced to give any statement before PW-68. Therefore, it is not clear as to whether their statements are voluntary in nature.
82. Be that as it may, even assuming the said statements are voluntary in nature, let us see whether the recovery of dead body was proved showing that the said place was exclusively within the knowledge of the accused persons.
83. Admittedly, Ex.P-47 is the inquest drawn on 10.3.2004 i.e., on the next day of the detection of the dead body. The learned counsel for the accused drawn 103 out attention to column Nos.3 & 4 of the inquest. Column No.3 refers to who was the person first seen the dead body. At column No.3 it is stated that on 9.3.2004 when the accused Nos.2 & 3 shown the dead body, one Kumar, Babu and Adarsh were present and they saw the dead body at the first instance. Therefore, it is very specifically mentioned that Kumar, Babu and Adarsh are the persons who have seen the dead body shown by accused Nos.2 and 3. According to the prosecution Ex.P-46 is the mahazar drawn at the spot when the alleged dead body was recovered at the instance of the accused persons. In this mahazar, the names of this Kumar, Babu and Adarsh have not been shown as witnesses but one Shekhar Shetty (P.W.11) and Babu S/o.Ganesh (not examined) were shown as witnesses. The learned counsel also brought to our notice that under Ex.P-47 mahazar, the names of Kumar and Babu was subsequently introduced by scratching the name of one Nagaraj. We have carefully examined Ex P47, it is visible to the naked eye that the name of the Nagaraj has been written first and later scratched out and the 104 name of Babu and Kumar has been over written, which is not properly explained by the prosecution. In order to fortify the same, the learned counsel produced the charge sheet copy provided to the accused u/s.207 of Cr.P.C. In that the Investigating Officer has not taken care to score out the name of Nagaraj and writing the names of Kumar and Babu. Even the copy provided to prosecution with learned SPP in this document also the name of Nagaraj finds a place and later over written. Therefore, it creates a serious doubt whether Nagaraj and Adarsh were the persons according to the prosecution were present on 9.3.2004 when the, accused Nos.2 and 3 said to have shown the dead body at the first instance. But those witnesses were not the witnesses to Ex.P-46. Why the names of Shekar Shetty and another person by name Babu son of Ganesh has been introduced or why those witnesses are selected as panchas to Ex.P-46 under which the dead body was recovered. This serious discrepancy is a mystery not explained by the prosecution.
105
84. In this back ground, the evidence of PW-12 Adarsh needs to be examined prior to discussing the evidence of the witnesses to Ex.P-46.
85. PW-12 Adarsh says that, he never went to the spot on 9.3.2004 and he never said that accused Nos.2 and 3 have shown the dead body and that, he was present on that particular point of time, but he says that he was present on 10.03.2004. It is also there in the evidence that the police and others went to that particular spot where the dead body was lying, two persons were already there on the spot and they were holding rope in their hands. The accused persons went there and shown the dead body on 10.3.2004 and thereafter, the police have conducted the inquest proceedings on the dead body. Therefore, it creates a serious doubt as to whether the police were already having knowledge of the dead body even prior to the arrest of the accused and subsequently whether Ex.P- 46 was introduced for the purpose of showing that accused Nos.2 and 3 have shown the dead body. When 106 the names of Adarsh, Kumar and Babu does not find a place as witness to Ex.P-46, it creates a serious doubt as to why some other witnesses were selected for the purpose of this mahazar Ex.P-46.
86. In this back ground, we would like to discuss the evidence of PW-11 Shekar Shetty who is a panch witness to Ex.P-46 and another witness by name Baby, who was not examined. Of course, in the course of examination in chief, itself this witness says that on 8.3.2004 on the intervening night of 8.3.2004 and 9.3.2004 in the night hours at 1.40 or 1.50 a.m., the Investigating Officer PW-68 Sri B.K. Shivaram, called this witness over phone to go over to CCB Station. When he went there, he saw Babu and Kumar, who were present in the said Police Station. As noted already, Babu and Kumar are the witnesses to the inquest proceedings why they were selected even earlier when no dead body was detected by the police is further doubt not explained. He further deposed that accused Nos.2 and 3 were there in the Police Station and all of 107 them left Bangalore at 2.45 a.m., and went to Sakaleshpur in the morning and the accused Nos.2 & 3 near Ghat section about 20 - 25 kilometers away from Shiradi ghat towards Uppinangad shown the place where they have thrown the dead body of Chitralekha into the valley, which was a very deep valley. Thereafter, by tying a rope to a tree all of them went one by one got down to the said valley and accused Nos.2 and 3 have shown the dead body of the deceased lady and the police have conducted the mahazar between 9 to 10.15 a.m.,
87. In the course of cross examination, it is clearly established that this witness is an interested witness. It is elicited that from 1.9.1992 he has been doing the real estate business. PW-13 Ramesh and these witnesses were very close to each other and they were residing in the same area. He also knew the house of the Investigating Officer PW-68. It is also stated that PW-68 was known to him when he was working at Upparpet Police Station as Circle Inspector and prior to that, as Police Inspector of Chickpet Police Station etc., 108 Therefore, it is clear from the evidence that right from the beginning, he states that he has been doing the real estate business, he was in contact with the Investigating Officer PW-68. It is also stated that his phone number was known to PW-68. He also says that his landline number also known to PW-68. On that day, he did not ask why he was called to the Police Station etc., He has also categorically admitted that he was often used to go and meet PW-68 when he was working at Chickpet and Upparpet Police Stations and also in CCB police as ACP. In this background, it is suggested that he is a regular witness to PW-68 and P.W.68 has been using P.W. 11 and PW-13 Ramesh as and when required and both of them were very loyal to PW-68. It is also suggested and denied that, PW-13 has been working as a driver to PW- 68, after the retirement of PW-68 from the service. These suggestions have been denied, but the surrounding circumstances clearly disclose that PW-13 Ramesh and this witness were very close to PW-68. It is also not explained by PW-68 as to why he has selected this witness and some person by name Babu who is not 109 examined, as witnesses to Ex.P-46 and why he took them from Bangalore itself when he clearly knew that they were reaching Sakaleshpur in the morning hours at 8.00 or 9.00 a.m., and no explanation by PW-68 why he has not selected at least one respectable witnesses from the locality itself. Section 100(4) of Cr.P.C is the normal and general procedure to be followed, which says that -
"(4) Before making a search or seizure, the officer or other person about to make it shall call upon two or more independent respectful inhabitants of the locality in which, the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do."
88. This principle is equally applicable so far as search and recovery of any objects. If the inhabitants of the said area or respectable local inhabitants are not available, then by means of giving reasons, the Investigating Officer is at liberty to secure the presence 110 of any other respectable person. Admittedly for Inquest he selected a local person P.W.12 Adarsh. In this background, the Investigating Officer PW-68 has not explained why he has selected PW-11 Shekar Shetty and Babu and why he was not able to secure the presence of any local respectable persons. At least along with these two witnesses when they reached the spot at Sakaleshpur, he would have taken the help of the local people as one of the panch witness. Therefore, looking to the above said circumstances, it creates a serious doubt whether for the purpose of this Ex.P-46, these two witnesses were selected who appear to be the stock witnesses and close intimates of PW-68. Therefore, the evidence of such witness in our opinion cannot be made use of, in the surrounding doubtful circumstances that the police might have known about the dead body lying, even much earlier to the arrest of accused Nos.2 and 3.
89. In this back ground the evidence of P.W. 65 K.B. Ramesh, a police constable who was working under P.W. 68 at that relevant point of time cannot inspire confidence to rely him for this circumstance, as there is 111 every possibility of this witness supporting the investigation officer, and persuasion by P.W. 68 cannot also be ruled out. Moreover he is not a signatory to Ex.P.46. P.W. 11 also never spoke about the presence of this witness at that time.
90. We have carefully perused Ex.P-46, the mahazar alleged to have been drawn at the spot. This Mahazar appears to have not been sent to the Magistrate immediately. Section 102(3) of Cr.P.C. mandates that if any search and seizure have been made and he suspect that the said property is either stolen or which was found under doubtful suspicious circumstances, he shall forthwith report the seizure to the concerned officer and he shall also forthwith report the seizure to the Magistrate having jurisdiction where the property was recovered or seized. Ex.P-46 as rightly contended by the learned counsel appears to have been not sent to the Magistrate till filing of the charge sheet. The other documents particularly, the inquest which was conducted on 10.3.2004 was sent to the Magistrate 112 and it bears the seal and signature of the Magistrate on 11.3.2004. But such an endorsement or signature or the seal is not found on this Ex.P-46. Therefore, it creates a serious doubt as to why this document was not sent to the Magistrate immediately after the recovery of the dead body from the spot. One more irregularity is that, the Investigating Officer on 20.3.2004, has addressed a letter to the Director of CSFL in the forwarding letter wherein it is mentioned the body was recovered on 10.3.2004 and has put his signature and seal on the forwarding note and DCP also signed the said forwarding note and the DCP certified the forwarding note. PW-68, the witness volunteered and states that the date is mentioned as 8.3.2004 wrongly instead of 9.3.2004 by a typing mistake but he has not sought for any clarification in respect of the correction of the date. When in such a serious case and a ghostly incident had happened and a typographical error has been crept in later also it was not corrected, but it cannot be said that inadvertently the said mistake was made. The above said circumstances show that the 113 serious doubt has been created as to whether the dead body was recovered on 9.3.2004 or 10.3.2004 is doubtful. Therefore, forwarding of this letter also creates a serious doubt whether truth has been mentioned in the said letter.
91. Looking to the above said facts and circumstances of the case and the persons Adarsh, Kumar and Babu, have never stated before the court that accused Nos.2 and 3 have shown the dead body but according to the case of the prosecution itself, they are the persons first seen the dead body on 9.3.2004 when accused Nos.2 and 3 have shown the dead body and the witnesses PWs.11, 13 are the close associates of PW-68 and in the circumstances, they could not have been selected as panch witness to Ex.P-46 mahazar. Therefore, it creates a serious doubt as to whether accused Nos.2 and 3 were having exclusive knowledge of the dead body and only at their instance, the dead body was recovered. When such serious doubt is crept in, it becomes the duty of the prosecution to explain the 114 doubt but no where the prosecution is able to explain this particular aspect. When exclusive knowledge of the accused is not proved, Section 106 of the Evidence Act is also not attracted. Of course, the selection of some of the witnesses who have given testimony in other cases or the witnesses or the same witnesses in the earlier occasion with the same Investigating Officer, cannot be a ground to totally reject the testimony of such witnesses as submitted by the learned counsel Sri Adithya Sondhi. But it is not the case here that the witnesses are the witnesses to the earlier cases, but the surrounding circumstances show that those witnesses are the very close associates of the Investigating Officer and circumstances also show doubt regarding their participation at the time of recovery of the dead body as alleged by the prosecution. Therefore, their evidence as we have very carefully scrutinized is not trustworthy for acceptance. Therefore, even assuming that some effort has been made by the investigating agency to show that the dead body was recovered at the instance of A2 and 3, it cannot be said that it is a conclusive circumstance. 115 But, it may at the most raise a strong suspicion which cannot take the place of proof. Hence, we are of the opinion, the circumstance of recovery of the dead body exclusively at the instance of accused Nos.2 and 3 is also not proved beyond all reasonable doubt.
92. Though the learned counsel for the accused have submitted that the marked portion of the voluntary statement of accused u/s.161 of Cr.P.C. has not been specifically re-iterated by the Investigating Officer in his evidence, therefore, the portion u/s.161 and 162 of Cr.P.C. marked as Exhibits cannot be used as substantive evidence, we are not ready to accept such contention because on reading of the evidence of PW-68 though, at one stretch, he has stated about the contents of Ex.P-161and P-162, but whole reading of his evidence, clearly discloses the contents of Ex.P-161 and P-162 is categorically re-iterated by the Investigating Officer. Therefore, such argument is not tenable.
116RECOVERY OF JEWELS AT THE INSTANCE OF A3:
93. The story of the prosecution so far as this circumstance is concerned is that accused No.3 has given his voluntary statement as per Ex.P-162 and the Investigating Officer collected the panch witness and accused No.3 took the police and the panch witnesses to the house on 14.3.2004 and in his house in a smoke- pipe, he had secretly kept the ornaments belonging to the deceased which was stolen by him from the dead body of the deceased at the time of throwing the dead body in the valley and those ornaments were later identified by the kith and kin of the deceased. The prosecution has relied upon the evidence of PWs.13 and 14 and Ex.P-48, the mahazar drawn at the spot coupled with the evidence of PW-68.
94. PW 13 S. Ramesh is a Travels manager, PW-14 is a jeweler at Magadi Road, Bengaluru. The house of accused No.3 where the ornaments were recovered is situated at Rajajinagar, 7th phase, 8th Main road. The prosecution alleged to have recovered MOs.2 to 24 gold 117 ornaments and one wrist watch, different colored stones, Singapore notes etc., It is admitted that PW-13 has been residing in the same road where the Investigating Officer PW-68 was residing. As we have already discussed, PW-11 says that he knew about this witness PW-13 and they were together. Both were known to the Investigating Officer. Accused Nos.2 and 3 were produced on 8.3.2004 at about 11.45 p.m., and on 9.3.2004 after alleged recovery of the dead body, they were produced before the Magistrate at 11.45 p.m., and they were remanded to the police custody till 14.3.2004. No recovery was made at the instance of accused No.3 nearly for a period of five days. If at all the voluntary statement discloses that on 8.3.2004 under Ex.P-161, if it is disclosed about the discovery of the factum of secretly keeping these ornaments by accused No.3 why these ornaments were not recovered at the instance of accused No.3 at the earliest is not properly explained. The evidence of Investigating Officer PW-68 shows that though accused Nos.2 and 3 gave voluntary statement on 8.3.2004, accused No.3 has not specifically stated 118 about the ornaments. But accused No.2 has said that those ornaments were thrown to the river. But subsequently, accused No.3 has again stated about the jewels that he has kept in his house. Therefore, it clearly goes to show that there must be two voluntary statements of accused No.3, otherwise, the subsequent statement of accused No.3 if it is not produced before the court that itself creates a serious doubt whether he gave any further voluntary statement before the police disclosing the said jewels. More over, it is the duty of the investigating officer that immediately after the voluntary statement they should have recovered the said ornaments. In this background, if the evidence of PW-13 is seen, it is admitted by him that he is a Travels Manager and he has been doing that business and he also knew ACP, Shivaram, who was the Circle Inspector of Chickpet Police Station and now he is retired. It is stated that on that day, when the accused took them to his house, there was one lady in the house but the police have not recorded the statement of that lady nor 119 even selected any of the local persons to subscribe the signature to the mahazar.
95. PW-14 Sunil Kumar is a Jeweler. He also does not belong to the said place. In the course of cross examination, he has admitted that his shop is situated near Magadi road Police Station, and he has stated that lot of people will pledge their ornaments in their shop and he has been doing the said business since 16 years. He has also stated that he often goes to the Police Station as a witness for the purpose of weighing the gold ornaments etc., Both the witnesses have stated that a plastic cover was also seized on that day along with the ornaments, but they do not know what happened to the said plastic cover. Looking to the surrounding circumstances, when PW-13 is also a known witness to PW-68 and PW-14, jeweler often visiting Police Station in so many cases, it cannot be said that the investigation was fair enough to conduct recovery in the presence of such witnesses without selecting the local inhabitants. Apart from the above doubtful 120 circumstances, it is clear from the evidence of the prosecution witnesses including kith and kin of the deceased i.e., PWs.1 to 3, PWs.5 & 6, nobody has stated that the deceased was wearing those jewels on the date of the alleged incident except stating in the evidence after the dead body and the jewels were recovered, that the deceased used to wear these ornaments everyday. Even in the Ex.P-1 which is the missing complaint filed by PW-1 Smt. Hema Mandanna, there is no information whether the deceased was wearing any ornaments because it is a missing complaint, it is normally to suspect that if any person has abducted the deceased may be for the purpose of wrongful gain. In such circumstances, it is the duty of the Investigating Officers to elicit whether the deceased was wearing any valuable ornaments or not. PW-49, the first Investigating Officer who has recorded the statements of PWs.1 to 3 on 19.1.2004 and also on 20.1.2004, at least at that time also they never disclose anything about these ornaments. PW-68 has admitted that prior to 14.3.2004 there was no information about it. This is very 121 important because PW-49, PW-63 and PW-68 have recorded the statements of these witnesses. PWs.1 to 4 have categorically stated right from the beginning almost every day they were talking with the Investigating Officer about the progress of the investigation. They never at any point of time even whispered about these ornaments which were with the deceased and on the day she found missing she was wearing these ornaments. Particularly PW-4 Revathi Rao, who was the witness last seen the deceased leaving the office at about 5.00 pm., on that day, she also never stated anything about these ornaments.
96. PW-2 Nayanathara sister of the deceased also admitted that, her statement was recorded on 3.2.2004 and 26.2.2004 and she has admitted that she has never disclosed anything about these ornaments likewise PWs.3 and 4. Therefore, there is absolutely no material to show that deceased was wearing these ornaments at the time when she left the office and these ornaments were there on her body prior to her death. Admittedly, 122 more than one month 25 days from the date of the incident till the date of recovery was lapsed. As rightly argued by the learned counsel, the normal conduct of the accused is to dispose of those articles in order to destroy any evidence against them. They would have sold these items. Particularly when the statement of accused No.2 was recorded by almost all the Investigating Officers, A3 would not have kept these ornaments in his house to create evidence against himself. Therefore, looking from the above said facts and circumstances and the witnesses being selected by the Investigating Officer and the surrounding circumstances, it cannot be with all probability said that the recovery of these ornaments were proved beyond all reasonable doubt. Even assuming that recovery of jewels at the instance of accused No.3 is made, in the absence of establishing the other circumstance of last seen, committing of the murder, throwing of the dead body in to a valley, recovery of the dead body at the instance of the accused, the sole circumstance cannot take the place of proof. It may give 123 rise to strong suspicion. But suspicion itself is not sufficient to draw an inference of proof. Therefore, we are of the opinion that this circumstance of recovery of Jewels is also not in any manner helpful to the prosecution.
V. EXTRA JUDICIAL CONFESSION:
97. The prosecution projected to prove the factum that the accused No.1 after commission of the offence has confessed before PW-16 Hari khode and PW-21 Ravi Shankar shetty that she has committed the murder of the deceased Chitralekha with the help of accused Nos.2 and 3. The prosecution was unable to establish this particular circumstance beyond all reasonable doubt. No semblance of evidence is placed, as these two witnesses have turned hostile to the prosecution. PW-16 Sri Hari Khode has categorically stated that he had not seen the deceased Chitralekha at any point of time, but he had acquaintance with her father. Palm Grove Premises is the name of a building which belongs to LK Trust for which he was one of the trustees. He has specifically stated that at no point of time accused No.1 124 Bharathi Urs. came to disclose anything with regard to commission of illegal act or offence. Though the witness has turned hostile to the prosecution, it is elicited from the mouth of this witness that on 16.1.2004 there was an inaugural function of Arasu Samyuktha Sangha and accused No.1 attended the said function. It is also suggested by the prosecution after treating this witness hostile that, there was a meeting on 19.1.2004 at about 9.00 p.m., and this witness went to Palm Grove Nursery and found accused No.1 was sitting alone in the lawn and on enquiry she revealed that she was waiting for the vehicle and after the meeting he found her moving towards the gate at 9.45 p.m., But all these suggestions have been denied. But the fact suggested by the prosecution shows that on that day there was a meeting in the Palm Grove Nursery and that accused No.1 went there but never seen the deceased or accused Nos.2 or
3. The rest of the statements have been denied during the course of cross examination which are marked as Exhibits P-50, P-50(a) to P-50(d). Further, in the course of cross examination, it is elicited that accused No.1 is 125 affluent and she was owning 25 acres of land at Kallahalli in Hosur Taluk etc.,
98. PW-21 Ravi Shankar shetty has also not stated anything against the accused. His statement marked as Ex.P-69 has been confronted to him suggesting that about one month prior to 24.3.2004 i.e., around Feb.2004, the accused No.1 demanded for Rs.50,000/- from this witness and he gave Rs.10,000/- to her and then disclosed that herself, accused Nos.2 and 3 throttled the neck of Chitralekha and committed her murder and the said suggestion was categorically denied. This witness was not subjected to any cross examination by the accused persons. Therefore, the so called extra judicial confession is of no avail to the prosecution.
VI. HOMICIDAL DEATH OF THE DECEASED:
99. In all the cases of murder, it is the fundamental duty of the prosecution to establish that there was death of the deceased and the death was homicidal death and then to further establish that the 126 accused is responsible for the homicidal death. Therefore, it is a sine-qua-non for the prosecution to prove the homicidal death of the deceased. It is not necessary in all the cases that the prosecution has to establish the homicidal death by way of scientific or medical evidence. It can also be established by other circumstances projected by the prosecution.
100. First let us discuss the medical evidence which is the scientific source relied upon by the prosecution to prove the homicidal death. PW-38 Dr. Devdas has conducted the Post Mortem examination on the dead body and through him, Ex.P-100 and Ex.P-102 were got marked. Admittedly, there is a long gap between the alleged date of offence and the detection of the dead body. We may also say here the corpus-delicti is also in certain cases not necessary to prove the homicidal death. But if sufficient proof is there that the deceased died a homicidal death, it would suffice to come to the conclusion on the basis of the other materials on record.
127
101. PW-38 Dr. P.K. Devadas, in his evidence has stated that he received a request from ACP, CCB on 10.3.2004 to accompany along with him to the place situated between Sakaleshpur, Shiradi Ghats. He went there on that day and he conducted the Post Mortem examination on the dead body of the deceased Chitralekha. It is specifically stated by narrating the external and internal examination of the dead body. He finally gave the opinion that "opinion as to the cause of death could not be given as the cause of death of the deceased could not be formed". He specifically stated that there were no ante mortem injuries or fractures to any of the bones examined by him. Again, he deposes that on 6.5.2004 he received a letter from ACP, CCB, seeking his opinion as to whether the death of the deceased could be possible by suffocation and strangulation. As per Ex.P-103, he gave further opinion that possibility of suffocation due to strangulation leading to death could not be ruled out. Again, in the course of cross examination, it is elicited that, there is 128 no basis for such opinion given by him to the letter written by the Investigating Officer. Therefore, otherwise than the scientific evidence i.e., the Post Mortem report, the FSL report and the opinion as per Ex.P-103, the prosecution has to establish the homicidal death as scientific evidence is conspicuously absent.
102. Of course, if an offence takes place inside the privacy of a premises and the assailants are only the persons who planned and committed the offences at the time and in such circumstances, it would be extremely difficult for the prosecution to lead evidence and to establish the homicidal death of the deceased. Under such circumstances, the court should in detail meticulously look into other circumstances because, the Judge does not preside over the criminal trial merely to see no innocent man is punished. But also to see that guilty man does not escape. Under the peculiar circumstances of a particular case on hand, the court has to decide the homicidal death of the deceased. It all depends upon the facts of each case. There may 129 however be cases, on account of proximity, place and time, in the circumstances, all the accused having been last seen with the deceased and the factum of death is proved, a rational mind may be persuaded to draw a presumption of homicidal death. The accused has to explain as to when he parted with the company of the deceased and how the death occurred etc, or he should own the liability for the homicidal death. Therefore, in peculiar circumstances of each case, the court can exempt the prosecution from proving the homicidal death but the prosecution must with all certainty and conclusiveness should establish that the accused and the deceased were last seen together and thereafter the deceased was never seen by anybody and the dead body was recovered later which was in the advanced stage of decomposition. But in this particular case, as we have already in depth considered the circumstances noted above, the prosecution has not placed any convincing material to come to a definite conclusion that the accused and the deceased were last seen together and accused Nos.2 and 3 were shifted the dead body of the 130 deceased before throwing the same near Shiradi Ghat. When such evidence is conspicuously absent, the court cannot also draw an inference that the prosecution has proved the homicidal death of the deceased beyond all reasonable doubt. Apart from the above, as we have already discussed that, the time of death is not mentioned in the Post Mortem report as such the time of death is doubtful.
103. PW-63 Jitendranath in Ex.P-20 and also in his evidence has conclusively expressed his opinion on the basis of his discreet enquiry that the deceased was seen alive together with three persons in Mangalore on the day subsequent to the date of the alleged murder by accused Nos.1 to 3.
104. PW-49 R.Ramachandra has also deposed that during the course of his investigation, he also got an information from one Manju of Hassan that deceased was seen subsequently in Hassan. Therefore, the above said facts and circumstances creates a serious incurable doubt as to whether the deceased died 131 homicidal death at Bangalore in Palm Grove Premises or anywhere else. When such a doubt is seriously created, it is the duty of the prosecution to remove those clouds. If a clog is created on the prosecution case, it cannot at any stretch of imagination be said that, the prosecution has proved the case beyond all reasonable doubt. At the most, the above said circumstances may create a serious suspicion but the suspicion however strong cannot take the place of proof. Hence, we are of the firm opinion that the prosecution has also not proved the circumstance of homicidal death beyond all reasonable doubt.
105. The learned counsel for the appellants relied upon the decision of the Hon'ble Apex Court reported in (2006) 10 SCC 681 between Trimukh Maroti Kirkan Vs. State of Maharashtra and the respondent's counsel also relied upon a decision of the Hon'ble Apex Court reported in AIR 1975 SC 258 between The State of Punjab Vs. Bhajan Singh and others. The sum and substance of these two decisions is that the conduct of the accused and the accused to plan and commit the 132 murder and dispose of the dead body and under what circumstances homicidal death can be inferred is explained. But as we have discussed, the sum and substance of this particular case, we do not prefer to once again to delve upon the above said two decisions in detail.
106. Before parting with this case, we also refer to some of the important lapses on the part of the investigating agency. The learned counsels who are appearing for the accused persons have also brought to the notice of the Court, the defects or lapses in the investigation. The learned counsel appearing for the appellants Sri Adithya Sondhi has drawn our attention to the ruling of the Hon'ble Apex Court reported in (2010) 9 SCC 567 between C.Muniappan and Others Vs. State of Tamil Nadu. the Hon'ble Supreme Court has observed thus:
"The defects in the investigation itself cannot be a ground for acquittal. Investigation is not the salutary area for judicial scrutiny in a criminal trial. Where suspicion, negligence 133 on the part of the investigating agency or omissions etc., which result in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what extent, it is reliable and whether such lapses affect the dead body of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the propriety of the investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. If prominence is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded."
Bearing in mind the above said guidelines, we would like to discuss the materials on record.
107. The investigation must be fair not only to the victim but also to the accused. It is the fundamental 134 constitutional right of the accused persons to have a fair investigation and fair trial. If the lapses on the part of the Investigating Officer which affects such right of the accused or causes any prejudice to the case of the accused, such lapses are to be seriously viewed by the courts and such lapses which are sufficient to draw an inference of alternative theory projected by the accused or if such lapses are viewed seriously, it affects the valuable right of the accused, then such lapses should not be easily brushed aside or ignored.
108. PW-63 Jitendranath in Ex.P-120 though has stated that after the alleged incident, three persons were seen with the deceased in Mangalore, but conveniently, he improves his version in the evidence that only two persons were seen in that car at Padil junction. But there is no investigation subsequently either by PW-49, PW-62 or PW-68., to ascertain as to whether the discreet enquiry made by Jitendranath is true or they have probed into this particular circumstance in order 135 to eliminate the alternative theory that the deceased was seen alive even subsequent to the alleged incident.
109. PW-49 Sri R. Ramachandra, the first Investigating Officer, did not probe into the above said aspect and he also not probed into the information that he received that the deceased was seen by one Manju at Hassan subsequent to 20.1.2004. The investigation is totally blank so far as this aspect is concerned.
110. PW-62 Abdul Azim though received e-mails received by PW-1 and the deceased, as per the evidence, with regard to the threatening e-mails received by them, has not even cared to investigate from which source those threatening e-mails were received by PW-1 and the deceased and who are the root cause for that and whether it gives any clue with regard to the abduction with regard to the death of the deceased and there is no explanation as to why they have not probed the investigation in that line. It is also not explained during the investigation in the charge sheet that why PWs.49 or 62 have not enquired as to how PW-4 Revathi Rao, has 136 secured the cover produced by her before PW-3 Smt. Sharada Urs, which was kept by PW-3 for a long time. It is also not explained as to why PW-9 and PW-62 could not be able to get that cover when they searched the same almirah of the deceased.
111. PW-68 Sri B.K. Shivaram, the investigating officer, in fact after taking over the investigation, the case has completely taken 'U' turn. It is quite relevant to note here, he has taken up the investigation on 23.2.2004 right from the day one, after taking over the investigation, it appears he acted ingeniously to connect the accused persons to the alleged crime. In our opinion, the investigation lacks fairness.
112. It is admitted by him that he collected all the materials, documents, statements of the witnesses collected and recorded by PWs.49 and 62, but he admits that he has not produced all those things before the court. He also never made any efforts to probe into the threatening e-mails received by PW-1 and the deceased. But he has explained in his evidence that those e-mails 137 were not helpful to the prosecution. Therefore, he has not produced. But it is the fundamental principle of criminal jurisprudence that whether it is helpful or not helpful to the prosecution, but once statement of the witnesses and documents collected during the course of investigation, that should be produced before the court in order to provide opportunity to the accused if necessary to make use of such material. We are of the opinion that it was not fair in not producing the relevant material.
113. It is quiet astonishing that though on 24.2.2004 he has taken up the investigation, but up to 8.3.2004 he has not examined the relevant witnesses particularly, PWs.22, 23, 24, 25, 34 and 35, and no explanation is there in his evidence as to why he kept quiet without examining these witnesses because he suspected that the incident happened in Palm Grove Premises and deceased went to that particular place, accused No.1 was also there at that time as per the statements of PWs.1 to PW-4. It is also quiet un- 138 understandable as to why these prime witnesses were not examined at the earliest point of time and why he selected the date on 8.3.2004 on the date when accused Nos.2 and 3 were arrested by him.
114. Very peculiarly enough, though he has examined so many witnesses, including recording the statement of the accused on 8.3.2004 he never attempted to record the statement of all the witnesses through videograph, he only recorded the statements of the PWs.22, and 25. This also in our opinion amounts to selective conduct of the Investigating Officer in recording such statements.
115. As we have already discussed, almost all the panch witnesses to the recovery proceedings with regard to the recovery of the dead body and also jewels at the instance of accused Nos.2 and 3, the witnesses are very well known and appears to be stock witnesses to the Investigating Officer. There is a serious lapse on the part of the Investigating Officer in violating the provisions u/s.100(4) of Cr.P.C and no explanation is 139 also forthcoming. When a Police Officer violates the mandatory requirement under law, at least he should explain under what circumstances, he was forced to deviate himself from such procedure. The Investigating Officer though he has referred to in the mahazar Ex.P- 46, which is the mahazar drawn for recovery of the dead body at the instance of accused Nos.2 and 3 that, photographs were taken at the spot. But those photographs were not produced before the court and in this regard, the photographer and the video grapher examined before the court as PW-59 Syed Ameer who was the photographer and the Videographer has never spoken that he accompanied the Investigating Officer on 9.3.2004 to the spot and taken the photographs or the videograph. It is also quiet astonishing, that the Investigating Officer has selected to take the photograph and the videograph of the spot on the next day for the purpose of inquest and Post Mortem examination, but why he has not taken the photographs and the videograph when the accused Nos.2 and 3 shown the dead body and specifically detection was made at the 140 instance of accused Nos.2 and 3 and he has also wrongly mentioned under Ex.P-46 that photographs were taken at the time of recovery of the dead body which is falsified by his evidence and also by the evidence of PW-59.
116. We have already referred to the fact that there was tampering of the inquest report. There are no explanation recorded in the inquest report and also the spot mahazar Ex.P-46 as noted above. This tampering of scratching out the name of one Nagaraj and overwriting the name of Kumar and Babu in the inquest at column No.3 and in the copies provided to the accused and the prosecution, the name of said Nagaraj being continued. This is also in our opinion a serious lapse on the part of the Investigating Officer not explaining as to how it occurred in the inquest report.
117. The Investigating Officer has also not ventured to take the photographs or the videograph at the recovery of jewels at the instance of accused No.3. More over, the evidence disclose that on 9.3.2004 itself, 141 they came back to Bangalore in the afternoon after the detection of the dead body and produced the accused before the Magistrate in the night hours at 11.40 p.m., Till that point of time why the Investigating Officer has not ventured to recover the jewels at the instance of accused No.3 upto 14.3.2004 he has not made any efforts to recover the jewels, again selecting the witness at his convenience is also not acceptable.
118. Looking to the above said lapses on the part of the Investigating Officer, it not only damage the case of prosecution case but also shows that accused persons were prejudiced due to such investigation, they had no opportunity to know what the witnesses have said at the earliest point of time when PW-49 and PW- 63 have recorded their statements. The accused person's right has also been infringed because of the selective process in selecting the witnesses and also selecting the mode of recording the statement of the witnesses by photographs and also selecting some statements through video graph. The investigation 142 lapses in this case, in our opinion, cannot be squarely called as mere defects in the investigation, but caused serious damage to the case of the prosecution and the rights of the accused persons. We are also not solely relying upon the defects in the investigation; we are in detail and meticulously considered all the evidence placed for the consideration of the court by the prosecution. As discussed above we have come to the conclusion that none of the circumstances have been proved beyond all reasonable doubt. Therefore, we are of the opinion, the defects in the investigation also one of the added circumstance in favor of the accused.
119. Though the prosecution has examined 68 witnesses, the other witnesses who are not referred to above in the judgment are all unnecessary and insignificant. PW-9 Usman is the driver went in search of deceased, PW-15 spot panch witness at Palm Grove Premises, where nothing was found, PW-17 Rudresh Bank attendant where accused had her bank account. PW-18 and PW-19 are the panchas to the place where mobiles of deceased was thrown into the river and car of 143 the deceased was abandoned. PW-20 recovery panch of MOs.31 and 32, (there is no dispute). PW-27 and PW-28 are the Bank officials to show the bank accounts of accused. PWs.31 and 32 are the Engineers who have drawn the spot sketches. PW-33 a jeweler, turned Hostile. PW-41 driver hostile, PW-43 Panch to seizure of Car (Ex.P-112) not disputed. PW 44 to 46 officers of RFSL. P.W. 50 to 57 and 64 are the police officials who assistant the investigation. P.W. 60 who is the Joint telephone officer spoke about the existence of land line telephone at Palm grove premises. Ex D1 to D14 are the contradiction of the witnesses elicited during cross examination.
120. We have also carefully seen Ex.P-148, the video graphs recorded by the police and the statements of PWs.22 and 25, and also the judgment of the Trial Court. Though the Trial Court has not dealt in detail but considering the material on record has recorded the judgment of acquittal. There is no reason as to why this court has to deviate from the reasons and findings 144 recorded by the Trial Court when such findings are based on the evidence on record and the view taken by trial court is one of the possible views. Therefore, there is no scope for interference with the judgment of the Trial Court.
The appeals are devoid of merit and accordingly, they are dismissed.
Sd/-
JUDGE Sd/-
JUDGE PL*