Karnataka High Court
N. Manjunatha vs The State Of Karnataka on 10 January, 2013
Bench: K.L.Manjunath, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10th DAY OF JANUARY, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE H.S.KEMPANNA
CRIMINAL APPEAL NO.81 OF 2010 (C)
BETWEEN:
N. MANJUNATHA
S/O.NAGRAJU
AGED ABOUT 27 YEARS
PRESENTLY R/AT CENTRAL PRISON
PARAPPANA AGRAHARA
BANGALORE ... APPELLANT
(BY SRI. BALAN FOR S BALAN & ASSOCIATES, ADV.)
AND :
THE STATE OF KARNATAKA
BY RAMNAGAR POLICE STATION
... RESPONDENT
(By Sri: P.M. NAWAZ, ADDL. SPP)
THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION DATED
5.10.09 PASSED BY THE DISTRICT AND S.J., AT
RAMANAGARA IN S.C.NO.36/2007 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S. 302
AND 201 OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, KEMPANNA J, DELIVERED THE FOLLOWING:
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JUDGMENT
The accused has preferred this appeal challenging the legality and correctness of the Judgment and order dt.5.10.2009 passed in S.C.NO.36/2007 by the District & Sessions Judge, Ramanagara, convicting him for the offences punishable under sections 302 and 201 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.5000/- only for the offence punishable under section 302 IPC.
2. The brief facts of the case are:-
It is alleged that on 28.10.2006 in between 4.00 a.m. and 4.30 a.m. the accused secured the deceased Pushpalatha near Ijoor police station by making a call to her cell phone bearing No.9945839612 and took her in the Santro Car bearing No.KA05 P956, offered her a cup of tea mixed with sleeping pills near a tea shop thereafter took her near Mayaganahalli situated on Bangalore-Mysore road and there he intentionally committed murder by strangulating with her veil and thereafter in order to cause disappearance of the evidence of the murder committed, to screen himself 3 from legal punishment took the body in the car near a bridge and there he burnt the same by dousing with petrol and later again carried the said body in the car to a forest land situated within the limits of Kamasamudram Police Station coming within the jurisdiction of Bangarpet Taluk, Kolar District and thereby has committed the aforementioned offence.
2.1. It is the case of the prosecution that the deceased Pushpalatha is the daughter of PW5 Gowramma and wife of PW2 Shivarudraiah. She was working as a woman Head Constable in Ijoor Police Station of Ramanagara Town. She was living with her husband, mother and her two female children in the Police quarters that was allotted to her.
2.2. It is also the case of the prosecution, the accused was working as a Constable at Ijoor Police Station of Ramanagara Town i.e. in the same Police Station where the deceased was working. He was freely associated with the deceased and was talking to her freely. According to the prosecution the accused was 4 addicted to lavish spending and in that direction he was under the desire of making quick money and was also fond of driving cars. As such he was taking the cars belonging to his known persons and was using the same.
2.3. It is the case of the prosecution the deceased seeing the accused moving in the car had an ambition to learn driving. Since she was closely associated, she expressed her desire to learn car driving with the accused and the accused in turn immediately obliged her stating that he would teach her driving of car. But it is the case of the prosecution, hidden aim of the accused was not to teach driving to the deceased, on the other hand, he had an eye on the jewels which the deceased was wearing daily.
2.4. Such being the position, it is the case of the prosecution, the accused came to duty at Ijoor Police Station on the night of 27.10.2006. Like wise PW16 also came to duty on that night. Both of them were deputed for night beat duty on the night of 27.10.2006. 5
Accordingly, they went on night beat duty on the intervening night of 27.10.2006 and 28.10.2006. In the meantime, it is also the case of the prosecution, the accused had talked to the deceased on her cell phone stating that she should come along with him the next day morning to teach her driving of the car. In that direction it is the case of the prosecution he had also secured a car which was in the Garage of PW11 on 25.10.2006 and had parked it near Reliance Petrol Bunk at Ijoor. At about 04.00 or 4.30 a.m on 28.10.2006 the accused and PW16 returned to the Police Station after completing their night beat round. They surrendered the arms which had been entrusted to them at the Police Station. Thereafter, it is the case of the prosecution, the accused called the deceased on her cell phone and asked her to come near the Police Station to teach her driving of the car. Thereafter he went near the Petrol Bunk where he had parked the car bearing No. KA.05.P.956 and fetched the same near the Police Station. In the mean time the deceased who was in the house along with her mother and who was in the 6 habit of going for a regular walk in the morning, on receiving the phone call of the accused woke up, got prepared herself to go for the morning walk, thereafter left the house telling her mother PW5 that she is going for morning walk and also the receipt of the call from the accused. After leaving the house she came near the Police Station. At that point of time, the accused had brought the Santro Car near the Police Station. After the deceased came near the Police Station, the accused took her in the Santro Car and the same was seen by PW16 who had accompanied him the previous might for night beat duty.
2.5. It is further the case of the prosecution after the accused left the Police Station in the car along with the deceased, he drove the same near the tea shop of PW1, there he ordered for two cups of tea. He added sleeping pills, which he had bought from the medical shop of PW23 Shashikumar at Ramanagar the previous day, to the tea cup of the deceased and made her to drink. After deceased took the tea given by the accused she lost her consciousness. Thereafter the accused drove 7 the car towards Bangalore and when it came near Ijoor Circle, PWs. 3 and 4 seeing the accused going in the car, stopped his car. Among them PW4 asked for a lift to Bangalore. The accused refused his request. At that time, both PWs.3 and 4 saw the deceased accompanying the accused in the car. Thereafter, the accused drove the car towards Bangalore and when he came near Mayaganahalli situated on Bangalore-Mysore road, according to the prosecution, he committed the murder of the deceased by strangulating with her veil. Thereafter he drove the car ahead and on the way he went to a petrol pump and purchased petrol in a two litres bottle from PW22. At that time, PW22 saw the deceased in the car driven by the accused. Thereafter the accused drove the car along with the body of the deceased near a bridge situated near Kagganoor village on Sarjapur-Bagalur road coming within the jurisdiction of Bagalur Police Station and there he alighted the body of the deceased, removed all the jewels, doused its face and other parts of the body with petrol and set fire to the same. Thereafter he left the said spot towards 8 Bangalore. On the way he threw the vale with which he had strangulated the deceased. After coming to some distance towards Bangalore, he stopped his car, again retraced the path to the place where he had burnt the body of the deceased, lifted the body from the said place into his car, thereafter drove the car to a forest situated within the jurisdiction of Kamasamudram located in Bangarpet Taluk of Kolar District. There he threw the dead body and drove back to Ijoor. After driving back, he also changed the dress i.e. the uniform which he was wearing as it was soiled and also kept them underneath the seat of the car and also cleaned the car without leaving any trace.
2.6. It is further the case of the prosecution, in the meantime since the deceased who had left the house in the morning for walk did not return, both PW2 and PW5 her husband and mother respectively, searched for her in and around and as she was not traced, ultimately PW2 the husband of the deceased filed a missing complaint as per Ex.P78 before PW41 HC of Ramanagara Town Police Station on 28.10.2006. PW41 9 on receipt of Ex.P78 registered a case in Crime No.59/06 of a missing lady and took up investigation.
2.7. In the meanwhile it is also the prosecution case that a Forest Guard having noticed the unidentified body within the jurisdiction of Kamasamudram Forest area reported the same to Kamasamudram Police. The said Police on the basis of the said report registered a case in Crime No.80/06 for the offences punishable under sections 302 and 201 of IPC against unknown person and took up investigation on 31.10.2006. The said Kamasamudram Police during the course of investigation held inquest over the body of the deceased and also seized the gold ornaments and burnt piece of chudidhar found on the body of the deceased. They also got the photographs of the deceased taken for identification purpose and the body subjected to PM examination at the hands of PW46 Medical officer, who issued PM report as per Ex.P45. Thereafter, the said Police got the body buried as it was not indentified and claimed by any one.
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2.8. It is also the case of the prosecution that on the very day i.e. 31.10.2006 on the complaint filed by PW2 as per Ex.P3 before PW48 - PSI of Ramanagaram police station, a case came to be registered in Crime No.16/06 for the offences u/s.342 of IPC against the accused and issued FIR as per Ex.P60 to the Jurisdictional Magistrate. Thereafter as the investigation revealed that the accused has committed murder of the deceased, PW50 PSI of Ramanagaram police station forwarded a suo-motu report in the case registered earlier requesting to add Section 302 and 201 of IPC and issued an additional report as per Ex.P61 to the jurisdictional Magistrate. Thereafter, PW50 arrested the accused on 1.11.2006, interrogated him and recorded his voluntary statement. Thereafter, PW50 handed over further investigation of the case to PW52 CPI. PW52 taking over the investigation, interrogated the accused and recorded his voluntary statement as per Ex.P66. In pursuance of the same, he drew up first Ex.P4 - panchanama at the place where the dead body had been burnt as pointed out by the accused in the 11 presence of the panchas PWs 2 and 6. In the meantime PW52 received the information from Kamasamudra police about they having registered a case in respect of an unidentified body. He went to the said police station along with the accused, PWs 2 and 6. At the said police station PW2 identified the gold articles and the burnt pieces of Chudidar which had been recovered from the body by Kamasamudra police under the mahazer Ex.P9. The articles that were found on the body of the deceased which was seized by the Kamasamudra police are at MOs 5 to 10. Thereafter, PW52 returned to Ramanagaram along with the accused and PWs 2 to 6. On the very day, PW47 who was investigating the case registered by Kamasamudra police in Crime No.80/06, recorded the statements of PW's 2, 8 and one Chandrappa. Thereafter, PW52 produced the accused before the jurisdictional Magistrate on 2.11.2006 and got him further remanded to police custody till 6.11.2006. After getting him to police custody he again interrogated him and recorded his voluntary statement as per Ex.P67. In pursuance of the same PW 52 after 12 securing the panchas PWs 2 and 6, drew up the panchanama Ex.P11 and Ex.P12 under which he seized MOs 12 and 13 respectively in the presence of PWs 2 and 6. Thereafter on 4.11.2006 in pursuance of the voluntary statement of the accused PW52 sezied the car bearing No.KA05 P 956 under the panchaname Ex.P34. After completing Ex.P34, he also seized MO29 Mangalya under mahazar Ex.P35 in the presence of the panchas. Further continuing the investigation he also seized MO30 Nokia Mobile under Ex.P36 in the presence of the pancha PW15. He also recorded the statement of the said witness. Further continuing the investigation on 5.11.2006 PW52 in pursuance of the voluntary statement of the accused recorded as per Ex.P66 and P.67 as stated earlier, recovered MO14 a necklace under mahazar Ex.P14. Further, he also recovered MOs 15 to 18 and the receipt Ex.P16 from the shop of PW10 under the mahazar Ex.P15 and further, he also recovered MOs 19, 20, 25, 26 under the mahazar Ex.P17 on the very day i.e. 5.11.2006 in the presence of the panchas PWs 2 and 6. Further on 6.11.2006 he also seized MOs 21, 22 13 and 23 under the panchanama Ex.P18 in the presence of the very panchas PWs 2 and 6 which articles had earlier been seized by Kamasamudra police. Thereafter, PW52 returned to the police station along with the accused and after completion of the arrest formalities got him remanded to judicial custody. In the meantime, PW52 during the course of investigation recorded the statements of the witnesses examined on behalf of the prosecution and also cited in the charge sheet. He also got the body exhumed from the place where it was buried by Kamasamudra police. After getting the same identified by PWs 2 and 5, the husband and the mother of the deceased. handed over the same to PW2 who in turn buried the same at his place Janagere. After the body was buried at Janagere, again the body was got exhumed on 18.11.2006 for subjecting to DNA test as per the order of the SubDivisional Magistrate in the presence of the Taluka Executive Magistrate. After completion of the DNA test, received the report as per Ex.P75 which revealed that DNA test conducted was sufficient to hold the source of sternum bone of the 14 deceased is from the biological off-spring of PW5, the mother. Further, the investigating officer had also sent the seized articles in the case for subjecting to chemical examination to FSL office. PW52 during the course of investigation also collected the call details that were made from the cell phone of the deceased and also tried to trace the owner of the cell phone from which the accused was contacting the deceased. On receipt of the call sheets- Ex.P70 from the concerned authority and further on receipt of the relevant documents i.e. post mortem reports, FSL Report, DNA report and other reports connected to the case, on completion of the investigation, he submitted final report against the accused before the Jurisdictional Magistrate. .
2.9. The learned Magistrate thereafter committed the case of the accused to the court of sessions which in turn on receipt of the records secured the presence of the accused, framed the charges against him aforesaid to which the accused pleaded not guilty, but claimed to be tried.
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2.10. The prosecution in support of its case in all examined PWs 1 to 53 and got marked exhibits P1 to P79 and MOs 1 to 33. The accused during the course of examination of the prosecution witnesses, got marked Ex.D1.
2.11. After closure of the prosecution evidence the accused was examined u/s.313 Cr.P.C. He denied all the incriminating circumstances that were put to him found in the evidence of the prosecution witnesses and also submitted that he has no defence evidence to lead. Total denial of the prosecution case is the defence of the accused.
2.12. The learned trial Judge on considering the oral and the documentary evidence on record came to conclusion that the prosecution has established the charge leveled against the accused and accordingly by his judgment and order dated 5.10.2009 convicted and sentenced the accused as aforesaid.
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The accused being aggrieved by the judgment and order of conviction and sentence is in appeal before this Court.
3. Sri. S.Balan, learned counsel appearing for the appellant/accused assailing the impugned judgment and order contended that the same is not based on legal evidence and therefore, it is not sustainable. He contended that the prosecution case rests upon circumstantial evidence. None of the circumstances have been proved by cogent and legal evidence connecting the accused with the alleged murder of the deceased. Despite the same, the trial Judge has come to an erroneous conclusion that the prosecution has established the charge which cannot be sustained.
3.1. In this connection he submitted, the main circumstances relied upon by the prosecution are; the accused having been seen last in the company of the deceased on the date of occurrence, the recoveries that have been made at his instance more particularly the jewels belonging to the deceased. In this connection. 17 the prosecution has examined PWs 1, 3, 4, 16, 20 & 22. Apart from the same, they have also relied upon the testimony of PW5-mother who has testified to the fact of the deceased leaving the house on receipt of the call from the accused in the early hours of 28.10.2006, PW23 from whose medical shop the accused has purchased the sleeping pills and also PW10 from whose shop the gold jewels alleged to have been sold by the deceased have been seized belonging to the deceased. In this connection he submits insofar as PWs 1, 3, 4, 22 and that of PW23, they have all turned hostile to the prosecution.
3.2. Insofar as the recovery of the gold jewels from the shop of PW10 at the instance of the accused, alleged to have been belonging to the deceased, is concerned he submits that the evidence of PW10 does not disclose that the accused has sold the gold jewels of the deceased to him. Further PW2 who is none other than the husband of the deceased does not identify the same as the one belonging to the deceased. However, later he has identified in the court which theory cannot be 18 believed. He further submitted insofar as the evidence of PW5 is concerned, her evidence does not reveal that the deceased left with the jewels which has been seized from the shop of PW10. On the other hand, the evidence on record reveals that Kamasamudra police who recovered the body from the forest on 31.10.2006 have seized some gold jewels found on the body of the deceased apart from half burnt chudidhar. If according to the prosecution the murder was for gain, jewels could not have been found on the body of the deceased when it was recovered by Kamasamudra police on 31.10.2006. Further, the alleged recoveries have not been made on the day the voluntary statement of the accused has been recorded. Though voluntary statement has been recorded on 2.11.2006, the alleged recovery of the gold jewels has been made on 5.11.2006. Having regard to the time at which the statement of the accused is recorded and the recovery is made coupled with the fact that the evidence of PW10 does not disclose that the accused had actually sold the jewels to him as, he has not produced any documents which he claims to have 19 maintained regularly in the course of his business, the alleged recovery also cannot be believed.
3.3. He further pointed out drawing attention of the court to the evidence of PW12 that, on the morning of 28.10.2006 when PW5 came in search of the deceased to the police station and enquired with PW12, PW12 called on the cell phone of the deceased from the land line of the police station and in response to the same the deceased answered to PW12 stating that she would be returning in no time for duty. This call according to the call sheet that has been seized as per Ex.P70 reveals it had been made at about 10 a.m. If according to the prosecution, the accused had administered sleeping pills in the tea offered to the deceased in the early morning itself and committed her murder by throttling her, deceased could not have responded to the call made by PW12 and that by itself indicates that the deceased has been murdered otherwise than the one which has been projected by the prosecution.
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3.4. Apart from this he also contended the relevant material on record more particularly the evidence of the police officer of Ijoor police station reveals that the accused reported to duty on that night at about 8.30 or 9.00 p.m. If according to the prosecution the accused has thrown the body near Kamasamudra which is at a far off place from Ijoor police station, it is unthinkable the accused would have reported to duty on 28.10.2006 and it is another pointer regarding the innocence of the accused. Taking from any angle the evidence pressed into service to connect the accused is not consistent and cogent and the trial Judge without appreciating the same in its right perspective has come to an erroneous conclusion in holding that the prosecution has established the charge leveled against the accused which cannot be sustained. Hence, it be set aside and the accused be acquitted of the charge leveled against him.
4. Per contra, Sri.Nawaz, learned Addl. SPP supporting the impugned judgment and order vehemently contended that the circumstances that have 21 been pressed into service by the prosecution more particularly, the last seen evidence and that of the recovery of the jewels at the instance of the accused have been amply established by placing cogent and reliable evidence. In the cross examination of PW16 nothing has been elicited to discredit his testimony who has stated in his evidence in unequivocal terms that he has seen the deceased going in the company of the accused and the deceased having not been seen thereafter. In this connection, he also submitted the evidence of PW20 also goes to show that the deceased was not to be seen in the police station ever since 28.10.2006 and in view of the evidence of PW20 and that of PWs 2 and 5, the accused has not explained as to the whereabouts of the deceased as he had taken her which only points towards his guilt and nothing else. He further submitted in view of the recoveries that have been made, more particularly the gold jewels MOs 15 to 18 at the instance of the accused from the shop of PW10 would clearly pin point towards the guilt of the accused. He also further submitted the evidence of PW5 22 disclose that the deceased when she left the house, told her mother that she is leaving the house in response to the call received from the accused to her cell phone. This is also corroborated from the call sheet Ex.P70 to show that she had received a call on her cell phone on the early hours of 4.30 a.m. from the mobile phone bearing No.9945397318 which according to the prosecution was the cell phone possessed by the accused.
4.1. He also further submitted that the evidence on record reveal that the soiled uniform clothes of the accused have been seized at his instance which he had kept underneath the car under Ex.P17. Apart from MOs 19 & 20 which is the seat cover net and piece of seat cover, this recovery further points towards the guilt of the accused. Further, he also submitted that at the instance of the accused the veil-MO12 with which he has strangulated the deceased is seized under Ex.P11 and a key chain-MO13 of the house of the deceased is seized under Ex.P12, which seizure has been supported by panch witnesses PWs 2 and 6 among whom PW6 is 23 an independent witness, which is a further indication pointing towards the guilt of the accused as nothing has been brought on record to discard this material. Therefore in view of the last seen circumstance coupled with the recovery that has been made at the instance of the accused, learned Addl. SPP submits it only points towards the guilt of the accused and the learned trial Judge on appreciation of these material in proper perspective has come to the right conclusion in holding that the prosecution has established the charge and therefore, the impugned judgment and order does not suffer from any infirmity calling for interference and therefore, the appeal be dismissed.
5. In the wake of the rival submissions, the evidence and the documents on record, the points that arise for our consideration are :-
1) Whether the prosecution has established that the deceased Pushpalatha has died an homicidal death?
2) If so, whether the prosecution has established that the accused is responsible for the homicidal 24 death of the deceased-Pushpalatha and has caused disappearance of the evidence of murder to screen himself from legal punishment?
3) Whether the impugned judgment and order of the trial Judge calls for any interference?
6. Re.Point No.1 :
The deceased Pushpalatha having died an homicidal death is not seriously disputed before us. It is fortified from the evidence of PW45, who first conducted autopsy and has issued post mortem report as per Ex.P56 and has opined that the death of the deceased is on account of asphyxia as a result of strangulation. The evidence also further reveals that the hyoid bone had been fractured which further fortifies his opinion as to the cause of the death. As already pointed out, the deceased having died an homicidal death is not disputed before us. In view of the evidence of PW45 in the circumstances of the case, we have no hesitation to hold that the prosecution has established that the deceased Pushpalatha has died an homicidal death.25
7. Re.Point No.2 :
The prosecution in order to connect the accused with the alleged murder of the deceased-Pushpalatha have relied upon circumstantial evidence. The circumstances that have been relied upon by the prosecution are :-
i) last seen evidence; ii) recovery; and iii) call details received by the deceased on her cell
phone from the alleged cell phone of the accused bearing No9945397318 in the early morning on 28.10.2006.
i) Last seen evidence :-
It is the case of the prosecution that the accused and the deceased were closely acquainted with each other as they were working in the same police station i.e. Ijoor police station. The deceased was in the habit of going for a regular morning walk. She had expressed her desire with the accused that she should learn driving car as the accused was using the car regularly. In response to the same, the 26 accused had told the deceased that he would teach her driving car. Such being the position it is the case of the prosecution on 28.10.2006 the accused and PW16 returned to the police station at about 4.30 a.m. after completing their night beat duty. Thereafter, the accused contacted the deceased on her cell phone and requested her to come near the police station in order to make her learn driving car. Thereafter, the accused went and fetched the car near the police station on 28.10.2006 by about 4.30 a.m, which he had secured from the garage of PW11 and parked near Reliance Petrol Bunk. The deceased came near the police station after informing her mother that she is leaving for morning walk and also about the call received from the accused. After reaching the police station, she left with the accused in the car and that was seen by PW16, colleague constable. After they left the police station according to the prosecution accused took her to the tea shop of PW1 from where he bought 2 cups of tea. Then he gave one cup of tea to the deceased by adding 27 sleeping pills which he had purchased earlier from the shop of PW23. After taking tea, according to the prosecution, the accused left the tea shop along with the deceased in the car and that was seen by PW1. PW1 who has been examined has turned hostile to the case of the prosecution. He has not stated in his evidence that he has seen the deceased in the company of the accused. Therefore, his evidence is of no avail to the case of the prosecution to show that the deceased was last seen in the company of the accused. Further according to the prosecution when the accused came driving the car near Ijoor circle, PWs 3 and 4 stopped the car. Among them PW4 requested the accused to give him lift to Bangalore to which accused refused and at that time both PWs 3 and 4 saw the deceased in the car along with accused. These two witnesses also have not supported the case of the prosecution and they have denied having seen the accused and the deceased in the car near Ijoor circle. Therefore, the evidence of 28 those two witnesses also is of no avail in any manner to the prosecution.
It is nextly the case of the prosecution that the accused drove the car towards Bangalore and when he was near Mayaganahalli, he committed murder of the deceased by throttling with her veil. Thereafter he drove the car to the petrol bunk from where he bought petrol in a two litres bottle from PW22. At that time according to the prosecution PW22 saw the deceased in the company of the accused. This PW22 has also not supported the case of the prosecution as he has not stated in his evidence that he has seen the accused in the company of the deceased in the car or he having sold petrol on that day. Therefore, that last seen circumstance is also of no avail to the prosecution.
Further it is the case of the prosecution, the accused drove the car near the bridge situated near Kagganoor village located on Sarjapur-Bagalur road and there, according to the prosecution, he alighted the body from the car, removed the jewels and burnt 29 the deceased by pouring kerosene on her face and other parts of the body. After setting fire he drew back towards Bangalore. After coming to some distance he stopped the car and again drove back to the place where he had burnt the body of the deceased. From there he shifted the body to the car and drove the car towards the forest land situated in Kamasamudra police station limits and there he threw the body and returned back to the police station. The said body was recovered by Kamasamudra police on 31.10.2006. At the time they recovered the body from the forest, they noticed MOs 5 to 11 being present on the body of the deceased. They recovered the same. Later, on being shown to PW2, he identified as the one belonging to the deceased.
It is the case of the prosecution after this occurrence, the accused was arrested on 1.11.2006. PW50 PSI interrogated the accused and recorded his voluntary statement as per Ex.P66 on 2.11.2006. On that day PW52 accompanied by the panchas PWs 2 30 and 6 proceeded to the place where the body was initially burnt and there PW52 drew up panchanama as per Ex.P4. Thereafter on being informed by Kamasamudara police PW52 accompanied by PWs 2 & 6 proceeded to the said police station and there PW52 recovered MOs 5 to 11 under the panchanama Ex.P9, MOs 5 to 11 was identified by PW2 as the one belonging to the deceased. Next day i.e. 3.11.2006 the investigating officer recovered MOs 2 & 3 under Exs.P11 and P12. On 4.11.2006 he recovered the car KA 05 P 956 and MO27-plastic bottle under panchanama Ex.P34, MO29-mangalya under the panchanama Ex.P35. Nokia Mobile-MO30 under the panchanama Ex.P36 in the presence of the pancha PW9. Thereafter on 5.11.2006 PW52 recovered firstly MO14-necklace under the mahazar Ex.P14 from the house of his father-in-law. Thereafter, he recovered MOs 15 to 18 under panchanama Ex.P15 from the shop of PW10 and also MOs 19, 20, 25 and 26 under the panchanama Ex.P17 in pursuance of the statement recorded as per Ex.P67 on 5.11.2006 . All 31 these recoveries have made in the presence of PW2 who is none other than husband of the deceased and another independent pancha PW6. It is pertinent to note here according to PW52, he has recorded the voluntary statement of the accused on 2.11.2006. The alleged recovery of MOs 12, 13, 27, 29 and MOs 15 to 18 and MOs 19.25,26 have been made on 3.11.2006, 4.11.2006 and 5.11.2006 respectively.
Among them, the later have been made on 5.11.2006 nearly about 3 days after Ex.P66 came to be recorded. The very fact that the recovery has not been made immediately after recording the voluntary statement, would throw doubt regarding the recoveries alleged to have been made as stated to above by PW52 at the instance of the accused in the presence of the panchas.
Nextly, coming to the recoveries MOs 15 to 18 the gold jewelleries belonging to the deceased from the shop of PW10, according to PW10 the accused had sold MOs 15 to 18 to him. He has admitted in the cross examination that any sale transaction that 32 is done in his shop are entered in his books which he has maintained in the regular course of his business. In this particular case, neither he has produced any books which he has maintained before the investigating officer nor the investigating officer has taken any steps to look into the same or at least to make enquiries and directing him to produce before the Court whenever called upon to do so. Further the evidence of PW10 reveals that he has not made any entries in respect of the transaction which had been made by the accused with him. This would go to show that the theory of the prosecution that the accused had sold the jewels belonging to the deceased to PW10 is doubtful. As already pointed the said recovery is also doubtful because of the delay in making the recovery from the date of recording the voluntary statement.
Apart from the same, PW2 is none other than the husband of the deceased who is the pancha for the recoveries of these MOs. He does not say in his evidence that at the time these articles were seized 33 under the panchanama Ex.P15, he identified the same as the one belonging to the deceased. If according to the prosecution these were the very jewels belonging to the deceased, PW2 would have been the first person to reveal to the investigating officer that they are the jewels of his wife. In the absence of the same in view of what we have adverted to above about the seizure it does not lend any credence to place reliance on the same.
Insofar as the other recoveries are concerned, which have been adverted to above, as they have been made much later to the date of voluntary statement of the accused and as PW2, in his statement recorded by PW47 on 2.11.2006 along with Prabhavathi and one Chandrappa, has stated that he is not aware as to who has committed murder of the deceased and as some one has committed murder of the deceased by which time accused was already in custody of PW52. Here itself we may also mention that PW2 had also filed a complaint on 31.10.2006 before Ramanagaram Town police as per Ex.P60 34 about the deceased having been in wrongful confinement of the accused.
Insofar as PW16 is concerned, who is alleged to have seen the accused in the company of the deceased, his statement has been recorded by the police on 2.11.2006. The evidence on record reveals that the accused has reported for duty on 28.10.2006 at about 8.30 or 9.00 p.m. itself by which time PWs 2 and 5 have been making hectic efforts to trace the whereabouts of the deceased. If according to him deceased was seen in the company of the accused he should have informed immediately to the police, but having not done so and having come out with the said version after the arrest on 2.11.2006. the testimony of PW16 also would also go a long-way to place reliance on his testimony with respect to last seen evidence.
Further, it is the case of the prosecution that the deceased was taken by the accused on the early hours of 28.10.2006 and was administered sleeping pills by about 5.30 a.m. in the tea shop of PW1 at 35 Ijoor. The evidence of PW12 Geetha who is also working as women constable of Ijoor police station reveals that on 28.10.2006, PW5 the mother of the deceased came in search of the deceased and told her that the deceased has not returned to the house after she left for morning walk. Immediately PW12 contacted the deceased on her cell phone from the land line of the police station. This was about 10.00 a.m. on 28.10.2006. In response to the call made by PW12 the deceased answered her call stating that she would attend to her duty. If according to the prosecution the deceased had been administered sleeping pills in the morning at or about 5.30 a.m. in the tea stall of PW1 and thereafter she was murdered near Mayaganahally, it is difficult to swallow the case of the prosecution as gospel truth that the deceased would have responded to the call made by PW12- Geetha, her colleague, from the police station. That goes to show that the claim of the prosecution that the accused had administered sleeping pills after buying tea from the shop of PW1 cannot be believed. 36 Further Ex.P70 is the call sheet obtained by PW52 during the course of investigation which reveals the calls made from the cell phone of the deceased and calls received. On perusal it is seen that she has received calls to her cell phone while she was near Kumbalgodu at about 10.00 a.m. The said Kumbalgodu is about a distance of 25 kms. from Ramanagaram. If that is so, it is highly unthinkable that a lady who had been administered sleeping pills would attend telephone calls at about 10 a.m. on that very day.
Above all this other glaring circumstance going against the prosecution is, accused after committing murder of the deceased by throttling with the veil near Mayaganahalli, took the body near a bridge situated near Kagganoor village on Sarjapur to Bagalur road which is more than 70 to 80 kms. from Ramanagaram and there he set fire to the body after pouring petrol on the face and other parts of the body and burnt the same. After setting fire he returned back to Bangalore and after coming to some distance 37 he stopped the car and again went back to the very place where he had set fire to the body. He lifted the body from the said place to the car, took the same to the forest situated within the limits of Kamasamudra police station which is at a further distance of about nearly 100 kms. from the said spot and there he threw the body and returned back to Ijoor police station and reported for duty at about 8.30 or 9.00 p.m. This in our view is highly unthinkable as argued by the learned SPP that the accused has committed the murder not at the early hours but later. At any rate deceased must have been murdered on that day after sunrise and before sunset. If the accused has thrown the dead body near Kamasamudra which is about 150 to 160 kms from Ijoor, if we accept the argument of the learned SPP, he could not have returned to Ijoor police station on the very day, that too after changing the dress, keeping the car and as by 10.00 a.m., the deceased according to PW12 and call sheet Ex.P70 was alive at 10 a.m. 38 It is the case of the prosecution that the accused was possessing the mobile phone bearing No.9945397318 and it is from that cell phone the accused was contacting the deceased and according to the prosecution he had called the deceased at about 4,.30 a.m. to her cell phone and requested her to come near the police station to teach her learn driving of the car. The police have traced the owner of the said cell phone number. He is PW42 Laxman. This PW42 no doubt has turned hostile to the prosecution. His evidence reveals he has not parted his cell phone to anybody and he is working as a security guard at Bangalore. If according to this witness he has not lent to any one as to how calls could have gone from his cell phone to the cell phone of the deceased is not explained by the prosecution. On the other hand, PW52 has not directed his investigation to get the call details of this cell phone number possessed of Laxman to show that on that day it was in possession of the accused and he has made calls from different places i.e. Ramanagara or 39 from the place near Kumbalgod or from the place he purchased petrol or the place where he alleged to have committed murder or atleast at Bangalore. In the absence of the same, it is difficult to believe that the accused has made calls to the deceased to her cell phone from the cell phone which admittedly belonged to PW42.
One more aspect to be considered is, we find from the evidence on record that the accused has committed the murder for gain. We find that at the time Kamasamudra police recovered the body of the deceased from the forest, they noticed gold and silver jewels on the body of the deceased which are at MOs 5 to 9 which have been seized and later identified by PW2. If according to the prosecution the accused had committed the murder for gain, no accused would have left the jewels on the body of the deceased itself. More than that, the very theory of the prosecution that the accused has burnt the body and thereafter has returned towards Bangalore and again he went back to the place, lifted the half burnt 40 body and carried it to the forest area which is at a distance of about 150 kms from Ijoor police station is unthinkable and we are of the view it is very difficult take the burnt body in the car and carry it to a distance of about 80 kms that too in a broad day light in a road where vehicles and people will be moving up and down.
The other evidence on record is of no consequence as the main evidence regarding the last seen circumstance, recovery and call details that have been pressed into service do not inspire any confidence to place reliance on the same. Thus, in our view tasking from any angle the prosecution has failed to establish all the circumstances to connect the accused with the alleged crime.
The learned trial Judge, in our view, without appreciating the evidence on record in respect of the circumstances pressed into service, has come to an erroneous conclusion in holding that the prosecution has established the charge leveled against the 41 accused which cannot be sustained and consequently, the same calls for interference.
9. In the result for the foregoing reasons we proceed to pass the following:-
ORDER
i) The appeal is allowed;
ii) The impugned judgment of conviction and order of sentence passed on the appellant is set aside. The appellant/accused is acquitted of the charges levelled against him. He is in custody. He is ordered to be set at liberty forthwith if not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE AK/rs