Karnataka High Court
Kuberasingh vs State By Railway Police on 16 December, 2022
Author: B.Veerappa
Bench: B.Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL No.2022/2017
BETWEEN:
KUBERASINGH,
S/O BABUSINGH,
AGED 27 YEARS,
R/O NO.41, F BLOCK,
ASHRAYA EXTENSION,
BOMMANAKATTE,
SHIMOGGA,
SHIMOGGA DISTRICT-577201.
...APPELLANT
(BY SRI KRISHNAPPA N. R., ADVOCATE)
AND:
STATE BY RAILWAY POLICE,
SHIMOGGA,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560001.
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)OF
CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 06.09.2017 AND ORDER OF
SENTENCE DATED 07.09.2017 PASSED BY THE III ADDITIONAL
SESSIONS JUDGE, SHIVAMOGGA IN S.C.NO.101/2016 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 302 AND 201 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present Criminal Appeal is filed by the appellant/accused against the impugned judgment of conviction and order of sentence dated 06.09.2017 made in S.C.101/2016 on the file of the III Additional Sessions Judge, Shivamogga, sentencing the accused to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/, in default, to undergo simple imprisonment for a period of one year for the offence punishable under Section 302 of the Indian Penal and to undergo simple imprisonment for three years and to pay fine of Rs.25,000/-, in default, to undergo simple imprisonment for a period of 6 months for the offence punishable under Section 201 of the Indian Penal Code.
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2. It is the case of the prosecution that, the marriage of the appellant-accused with deceased-Smt.Madhu was performed about six months prior to the date of incident and, at the inception they were leading happy married life. On 23.04.2015, in the early morning, the complainant received the information through the elder sister of the accused regarding missing of Smt.Madhu from the house, since early morning. Immediately the complainant and relatives tried to trace out her. Around 6.00 am the complainant got information about a dead body lying on the railway track near Sominakoppa. The complainant and others went to the spot and found severed body of a woman lying on the railway track. The complainant identified the body as that of his sister-Madhu. On the neck of the dead body they found a nylon rope. Therefore, suspecting it to be a murder, the complainant gave statement before the Sub Inspector, Railway Police, Shivamogga, at about 11.00 am. The railway police registered a case in UDR No.11/2015. Later, the jurisdictional police conducted investigation and filed charge sheet against the accused.
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3. Since the matter was triable by learned Sessions Judge, the learned Magistrate committed the case to the Court of Prl. District and Sessions Judge, Shivamogga. The learned Sessions Judge secured the presence of the accused, framed the Charge for the offences punishable under the provisions of Sections 302 and 201 of Indian Penal Code and read over the same to the accused in the language known to him. The accused pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution in all, examined 20 witnesses as P.Ws1. to 20 and marked the documents Exs.P.1 to P.38 and M.Os.1 to 14. After completion of the evidence of prosecution witnesses, the statement of the accused was recorded as contemplated under the provisions of Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating circumstances adduced against him by the prosecution witnesses. However, the accused did not lead any defence evidence.
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5. Based on the aforesaid pleadings, the learned Sessions Judge framed the following points for consideration.
"1. Whether the prosecution proves beyond all reasonable doubt that accused was married the deceased Smt.Madhu @ Vasantha about 6 months prior to the date 23.04.2015 and led happy marital life for about 2 months and later they started to quarrel each other and she was not allowing him to have sexual intercourse with her and due to the above act of his wife he decided to kill her and to marry another girl, on the back drop of the above he made his wife to believe in his words that they were going to a temple to perform pooja and took her in a two wheeler Hero Splender Pro vehicle bearing No.KA-14-EH-0630 and went near Veterinary College situated at Sominakoppa, Shivamogga and by saying that his friend is coming to show the temple and took near the Shivamogga-Kumsi Railway Track No.67/900-68/000 and phoned to Railway Station and confirmed that Taalaguppa Train is coming at 05.00 a.m. and went near his wife and told her that his friend is coming within a short time and saying so, he caught her from the back and strangulated her neck with a rope and committed murder thereby committed an offence punishable under section 302 of IPC?6
2. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place accused with an intention of causing disappearance of evidence of an offence of murder, had thrown the dead body of his wife Smt. Madhu @ Vasantha on the above said railway track and also had prepared a death note writing that "£Á£ÀÄ ¨ÉÃgÉAiÀĪÀ£À£ÀÄß EµÀÖ¥ÀnÖzÀÄÝ CªÀ£À eÉÆvÉ ºÉÆÃUÀĪÀÅzÁV" with an intention to make believe that his wife by writing such letter had left the house and he also made his family members to believe the same, and thereby he had committed an offence punishable under Section 201 of IPC?"
6. Considering both oral and documentary evidence on record, the learned sessions Judge recorded a finding that the prosecution proved beyond reasonable doubt that the accused married Madhu @ Vasantha about 6 months prior to the date of the incident and led happy marital life for two months and later he started to quarrel with his wife as she was not allowing him to have sexual intercourse. Thereby, he decided to kill his wife and marry another girl. Accordingly, the accused made his wife believe that they were going to a temple to perform pooja and took her in Hero 7 Honda Splendor Pro bike bearing registration No. No.KA-14/EH- 0630 and reached near Veterinary College situated at Sominakoppa, Shivamogga, and stopped the vehicle stating that his friend is coming to show the temple and took her near Shivamogga- kumsi railway track No.67/900-68/000 and phoned railway station and confirmed that Talaguppa train is coming at 5.00 am. Then accused went near his wife, told that his friend is coming within a short time and he caught her from back and strangulated her neck with a rope and killed her and thereby, committed an offence punishable under Section 302 of the Indian Penal Code. Further, with an intention to cause disappearance of evidence, the accused threw the dead body of his wife-Madhu on the railway track and also prepared a death note that," I love some other person and I am going with him" with an intention to make believe that his wife had written such letter, and thereby committed an offence punishable under Section 201 of the Indian Penal Code. Accordingly, the learned Sessions Judge by the impugned judgment of conviction and order of sentence, sentenced the accused to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/- in default, to undergo simple imprisonment for a period of one year 8 for the offence punishable under Section 302 of the Indian Penal and to undergo simple imprisonment for three years and to pay fine of Rs.25,000/-, in default, to undergo simple imprisonment for a period of 6 months for the offence punishable under Section 201 of the Indian Penal Code. Hence, the present Criminal Appeal is filed by the accused.
7. We have heard the learned counsel for the parties to the lis.
8. Sri N.R.Krishnappa, learned counsel for the accused, contended with vehemence that the entire case of the prosecution is based on circumstantial evidence and there are no circumstances proved from the beginning till the end to show the involvement of the accused in the homicidal death of his wife. Thereby, the impugned judgment of conviction and order of sentence cannot be sustained and is liable to be set-aside. He further contended that there are no eye witnesses to prove that accused and deceased left the house at 3.30 am on the unfortunate day. In the absence of any eye witnesses, the conviction cannot be sustained. He further contended that at the first instance, the jurisdictional police 9 registered UDR No.11/2015. Later after deliberation and at the instance of P.W.1-the complainant, the accused has been falsely implicated. P.W.1 -brother of the deceased clearly deposed in his evidence that accused and deceased were in cordial terms and his sister(deceased) was three months pregnant at the time of her death. He does not know what was the reason for the murder. If that is taken into consideration, the non cooperation of the deceased for sexual activities with the accused is not the motive for murder. Therefore, the conviction is liable to be set-aside.
9. Learned counsel further contended that, the learned Sessions Judge proceeded to convict the accused based on assumptions and presumptions and the same cannot be sustained. In support of his contention, he relied upon dictum of the Hon'ble Supreme Court in the case Hanuman Govind, Nargundkar and another vs. State of M.P. reported in AIR 1952 SC 343 to the effect that the opinion on typed document-opinion of expert that a particular letter was typed on particular machine does not fall within the ambit of Section 45 of the Indian Evidence Act and the same is inadmissible. Therefore, the learned Sessions Judge, is not justified 10 in convicting the accused, in the absence of any eye witness to the incident. Therefore, sought to allow the Criminal Appeal.
10. Per contra, Sri Vijayakuamr Majage, learned Addl. SPP while justifying the impugned judgment of conviction and order of sentence passed by the trial Court contended that the circumstances relied upon by the prosecution firmly establish that the perpetrator of the crime is none other than the accused. He contended that the alleged letter said to be written by the deceased proved as it is in the handwriting of accused and in support of the said contention, he relied upon the evidence of PW.19/Scientifc Officer-FSL and his report as per Ex.P37. The evidence of Dr.Veeresh M.R. who conducted post-mortem examination on the dead body of the deceased depicts that the death was due to asphyxia as a result of strangulation. The call details depict that at the relevant point of time, the accused was near the place of incident. The accused has not offered any explanation in the statement recorded under the provisions of Section 313 of the Code of Criminal Procedure as to why he called the Railway Station Master at the odd hours of 3.00 a.m. on the relevant day. He 11 would further contend that the motive for the murder of pregnant wife was that she was not cooperating with the accused for sexual intercourse.
11. Learned Addl. SPP would further contend that as per the FSL report/Ex.P33, there is similarity in the nylon rope which was recovered from the house of the accused and the nylon rope that was found on the neck of the deceased. He would further contend that as per the call detail records, mobile phone of the accused marked as Ex.P32 is in his name and on 23.4.2015 i.e., on the date of the incident at 4.42 a.m. the accused called to landline number of Shimoga Railway Station i.e., 222660. As per the tower location, the accused was present near Sominakoppa and the house of the accused situated at Bommanakatte and Ex.P34(a) and Ex.P36 are the certificates issued by the Nodal Officer as contemplated under Section 65B of the Indian Evidence Act. Based on the oral and documentary evidence on record, the prosecution proved beyond reasonable doubt the involvement of the accused in the homicidal death of the deceased. Therefore, he sought to dismiss the appeal.
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12. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration in the present appeal is:
"Whether the appellant/accused has made out any case to interfere with the impugned judgment and order passed by the trial Court convicting the appellant/accused and sentencing him to undergo Rigorous Imprisonment for life for the offence punishable under Section 302 of IPC and to undergo Simple Imprisonment for three years for the offence punishable under Section 201 of IPC with fine and default clauses, in exercise of the appellate powers of this Court under the provisions of Section 374(2) of the Code of Criminal Procedure in the facts and circumstances of the present case ?"
13. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully.
14. This Court being the appellate Court in order to re- appreciate the entire evidence on record, it is relevant to consider 13 the evidence of the prosecution witnesses and the documents relied upon:
i) PW.1 - Vasudev Singh, who is the brother of the deceased is the complainant and he deposed that the marriage of the deceased Madhu was solemnized with the accused about two years prior to his chief-
examination. On the date of the incident, at about 6.00 a.m. sister of the accused viz., Bindubai has informed him about missing of the deceased from the house and stated that though all efforts are made to trace out his sister, it became futile. Thereafter somebody informed them about the dead body lying on the railway track in between Shivamogga and Kumsi and on the basis of the said information, he visited the place of incident and identified the dead body as that of his sister. He further deposed that the body was separated from the abdomen and the Police were present at the spot and he has given complaint with the Police at the spot itself that somebody killed his sister, on the basis of which the Police have registered 14 the FIR. Thereafter the body was shifted to Mc. Gann hospital, Shivamogga for post-mortem examination. He identified the complaint/Ex.P1 and Ex.P2 to P5/photographs. In the cross-examination, he has deposed that the husband and wife were in cordial terms and her sister was three months pregnant at the time of her death and he does not know what was the reason for her murder. He supported the case of the prosecution.
ii) PW.2 - Latha, sister of the deceased has deposed that the deceased died within one year of her marriage. She was present at the time of the inquest mahazar/Ex.P6 and her signature is at Ex.P6(a). She has further stated that on the body of the deceased, she has noticed one rope on the neck, pink coloured chudidar & pant, white bra and blue colured underwear. The body was separated from the abdomen into two parts. She identified Mos.1 to 6 found on the body of the deceased. She supported the case of the prosecution. 15 In the cross-examination nothing has been elicited to discredit her evidence.
iii) PW.3 - Nagraj Singh, brother-in-law of the deceased deposed that on 23.4.2015 at about 6.00 a.m. he was at Bhadravathi and at that time, PW.1 informed about missing of the deceased. Thereafter, he came to the house of the accused and made efforts to trace her and in the mean time they got information that the dead body found on the railway track. Immediately, they rushed to the place and noticed that the body was of Smt.Madhu. Severed pieces of the dead body were scattered on the track. A rope was found on the neck of the body and then they shifted the body to Government Hospital, Shivamogga, wherein the Taluka Executive Magistrate conducted inquest and recorded his statement. He identified MO.6/rope. He also stated that the Police have taken photographs as per Ex.P2 to P5. In the cross-examination nothing has been elicited to discredit his evidence.
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iv) PW.4 - Shyam Singh is the witness to seizure mahazar.
He deposed that the Police have seized unstained stones and blood stained stones, unstained mud and blood stained mud from the place of occurrence under the mahazar in his presence. He identified the blood stained mud and unstained mud as MOs.7 and 8 and unstained stone and blood stained stone as MOs.9 and 10. He supported the case of the prosecution.
v) PW.5 - Dr. Veeresh M.R. has deposed that as per the requisition of Taluka Executive Magistrate, he conducted post-mortem examination on the dead body of the deceased Madhu on 24.4.2015 and he found 8 articles/items on the body of the deceased. He further deposed that the said articles were handed over in an unsealed cover to the concerned Police. On examination, he found the external injuries as described in the post-mortem report and opined that the death was due to asphyxia as a result of strangulation and issued post-mortem report as per Ex.P8. On examining 17 plastic rope presented before him by the Investigating Officer questioning whether external injury Nos.1 and 2 and corresponding neck injuries could be caused by using such rope to strangulate, he has issued the opinion as per Ex.P9 stating that similar material could be used to accomplish the same objective for compression of the neck. He supported the case of the prosecution.
vi) PW.6-Girish, the Police Constable, Railway Police Station, Shivamogga has deposed that he was deputed by the Investigating Officer to collect the document from the Government High school, Hutta Colony, Bhadravathi, available in the hand writings of deceased where she did her High school study. Accordingly, he obtained Xerox copy of TC, Answer sheets of Physical Education exam of S.S.L.C. and submitted the same before PW.9/CW.26 along with his report. He has identified the documents which were in a sealed cover and same were marked as Ex.P.11. In the cross- 18 examination nothing has been elicited to discredit his evidence.
vi) PW.7-Prakash N.G., the Station Master at Shivamogga City Railway Station, has deposed that on 23.04.2015 at 7.00 a.m., gang man - Anjaneya told before him that a dead body of a lady found on the railway track between Shivamogga and Kumsi Railway station and in this respect, he has given report to the Railway Police as per Ex.P12. He supported the case of the prosecution.
vii) PW.8-Channaveeresha J.S. is the owner of a provision store situated at KHB Colony, Shivamogga. He has deposed that, one year prior to 03.12.2016, the police brought accused near his shop and questioned by showing a note book as to whether he had purchased the said note book from his shop and Police have taken similar type of note book from his shop and drawn mahazar as per Ex.P.13. He supported the case of the prosecution.
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ix) PW.9-Patan D.I. was the then PSI of Shivamogga Railway Police Station. He has deposed that on 23.04.2015 when he was in-charge of Police Station, at about 9.30 a.m. PW.7/CW.24 sent a written information regarding a dead body of a woman found lying on the Shivamogga - Kumsi railway track. Accordingly, he registered a UDR as per Section-174 of the Code of Criminal Procedure and then forwarded first information report to Assistant Commissioner and to his Superior Officers as per Ex.P.12. The UDR information is marked as Ex.P.17. He supported the case of the prosecution.
x) PW.10-Manjunatha is a witness for the seizure mahazar through which the Police have seized a marriage invitation card of the deceased and a notebook said to be containing the letter written by the deceased. He deposed that, on 26.04.2015 the accused took him and the Police to a provision store situated near Railway Gate from where he purchased that notebook. The 20 Police have obtained similar notebook from the said shop and drawn mahazar as per Ex.P13. Further he has deposed that, the Police have taken a photograph at the time of drawing mahazar and same is marked as Ex.P.15. He further deposed that, the accused produced a piece of nylon rope and 2 wheeler vehicle and the Police have seized those articles in his presence under mahazar drawn as per Ex.P.18. He further deposed that on the same day, in the police station the Police have taken the sample handwriting of the accused and drawn a mahazar as per Ex.P.19. He identified the handwriting of the accused, which was obtained by the police in the police station in order to send the same for opinion of handwriting expert. In the cross-examination nothing has been elicited to discredit his evidence.
xi) PW.11-Rajgopal, the then Executive Magistrate of Shivamogga has deposed that on 23.04.2015 on the request of Railway Police of Shivamogga he has visited 21 the Mc.Gann.Hospital, Shivamogga and conducted inquest on the body of Smt. Madhu @ Vasantha, in presence of PW.2 and CW.4 in between 2.30 p.m. to 4.30 p.m. During that time he has noticed that, the body was severed into two pieces. No cross-
examination was made by the defence counsel.
xii) PW.12-Kumaranaika is the witness for the mahazar
drawn as per Ex.P.18. He has stated that on
24.04.2015 the brother of the accused viz., Vijaya
Singh was present in the station and produced a note book and invitation card. He has identified the notebook and invitation and they were marked as Ex.P.24 and P.14. In the cross-examination he has deposed that, he signed those documents at around 11.00 a.m. He supported the case of the prosecution.
xiii) PW.13-G.V.Nayak, who is the Head Constable of Shivamogga Railway Police Station has deposed that on 23.04.2015 he was in-charge of Police Station and at that time, PW.9/CW.26 sent a complaint through 22 PC.270 and he received the same and registered FIR and sent the same to the court and handed over the case file to PW.9 for further investigation. He identified the complaint/Ex.P.1 and FIR/Ex.P.25. He supported the case of the prosecution.
xiv) PW.14-Vijaya Singh, who is the brother of accused has deposed that on the previous night of that incident, they had dinner together and then the accused and deceased went to their bedroom to sleep. On the next day morning, deceased was found missing from the house. On the night, she was present in the house with the accused. He identified the mahazar/Ex.P18. He turned hostile to the case of the prosecution.
xv) PW.15-T.Ashokkumar, who is the Investigating Officer has deposed that on 24.04.2015 he received records from the PSI and conducted further investigation. On 26.04.2015 he summoned the accused to the police station and at the time of enquiry, he confessed before him that he had committed the murder of his 23 wife and in order to destroy the evidence and to mislead the investigation, he created a letter in order to exhibit it as written by the deceased. After completion of investigation, he filed the charge sheet.
xv) PW.16 - Smt. C. Vidya, the in-charge Director of Forensic Science Laboratory, Bengaluru has deposed that on 03.07.2015 she received a requisition with two sealed packs containing 2 ropes which were marked as article NO.1 and 2. She had given report as per Ex.P.33. During the cross-examination, she has stated that both the ropes which she had examined were nylon ropes. She supported the case of the prosecution. xvii) PW.17-Chidanandappa, the Superintendent of Railway Station has deposed that on 22.04.2015 since 9.00 p.m. till morning 7.00 a.m. of 23.04.2015 he was a Station Master/Station Superintendent in Shivamogga Railway station. The landline number of the station is 222660 and in the early morning he received a phone call enquiring at what time, train NO.16227 from 24 Bengaluru to Thalaguppa is arriving to Shivamogga. He answered query informing it would come around 5.00 a.m. The defence counsel has not chosen to cross- examine this witness. He supported the case of the prosecution.
xviii) PW.18 R.K.Patil, the then in-charge Deputy Superintendent of Police, Bengaluru Railway Sub- Division and Nodal Officer of State Railway Police, has deposed that on 26.04.2015 he issued a requisition for call details pertaining to mobile number 9845303892 for the period of 19.04.2015 to 23.04.2015 to the Service Provider for the information. On 28.04.2015 he received the call details record through email, he took the print out of records and forwarded that to PW.15/CW.27 as per Ex.P.32 and to that effect he had issued a certificate under 65-B of Indian Evidence Act. He being a regional Nodal Officer, he was the authorized person to issue documents as per Ex.P.34 and P.36. He supported the case of the prosecution.
25xix) PW.19-Dr. V. Aravindan, who is the Scientific Officer, FSL has deposed that on 25.05.2015 he received a letter from the Deputy Superintendent of Police, Railway Sub-Division, Bengaluru in connection with Cr.No.6/2015 of Shivamogga Railway Police Station along with the documents in a sealed condition. On examination of the material, he opined that the person who wrote the admitted writings marked as S2 to S4 is different from the questioned writings marked as K1 to K7. Further the person who wrote the specimen writings marked as S1 is the author of the questioned document writings marked as K1 to K7; the ink of the questioned writings marked as K7 and ink of specimen writing marked as R1 are different; the ink of questioned writing marked as K1 to K6 and ink used in the specimen writings marked as R1 are one and the same. He issued the report as per Ex.P37. He supported the case of the prosecution. Nothing has 26 been elicited in the cross-examination to disbelieve his evidence.
xx) PW.20-R.P.Ashok, the CPI of Mysore Railway Circle has deposed that on 22.09.2016 he received a report from the SFSL as per Ex.P.33 and on 03.01.2017 he recorded the statement of PW.17/CW.28 and on 22.02.2017 he obtained Ex.P.34, the certificate from PW.18/CW.32 and then he submitted an additional charge sheet against the accused. He supported the case of the prosecution.
Based on the aforesaid material, the learned Sessions Judge proceeded to pass the impugned judgment and order convicting and sentencing the appellant/accused for the offences punishable under the provisions of Sections 302 and 201 of IPC.
15. On careful perusal of the material on record, there is no dispute with regard to the marriage of the appellant/accused with the deceased Madhu and at the inception, they were leading happy married life and on 23.4.2015 in the early morning the complainant 27 received information through the sister of the accused regarding missing of the deceased from the house. Immediately the complainant and his relatives tried to trace the deceased, but at about 6.00 a.m the complainant received the information about a dead body lying on the railway track near Sominakoppa. The complainant and others went to the place and found a severed body of woman lying on the railway track. He identified the dead body as that of his sister Madhu. On the neck of the dead body, they found a nylon rope and thereby suspecting it as a murder, he had given a statement before the Railway Police at the place and on the basis of which FIR came to be registered against unknown person. Before registering the FIR, immediately after noticing the body on Railway track, the Railway Police have registered a case in UDR No.11/15. Thereafter, the jurisdictional Police conducted the investigation and filed the charge sheet.
16. The prosecution mainly relied upon the following four circumstances:
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"1) Alleged letter said to be written by the deceased proved as it is in the handwriting of the accused;
2) The call record details established that at the relevant point the accused was near the place of incident;
3) The death of the deceased is homicidal; and
4) The post incident conduct of the accused."
17. As per the case of the prosecution, the accused has made a plan to project the death of the deceased as a case of missing. Ex.P14 is the note book produced by the brother of the accused (PW.14) and seized under Ex.P18. Though PW.14 being brother of the accused has turned hostile for obvious reason, PW.10/Manjuantha and PW.12/Kumaranaik have supported the case of the prosecution about Ex.P14 & Ex.P15/note books.
18. It is also not in dispute that on the arrest of the accused, Police have obtained the sample handwriting of the accused as per Ex.P20 in presence of PW.10. The Police have 29 collected the answer sheets of the deceased from the Government High School, Bhadravathi as per Ex.P11. All these three admitted, questioned and sample documents were sent to State Forensic Science Laboratory, Bangalore for the opinion of the handwriting expert. After examination of the material, PW.19/Scientific Officer, FSL had issued a report as per Ex.P37 and opined that a person who wrote the admitted writings marked as S2 to S4 is different from the questioned writing marked as K1 to K7. Admitted writing has been obtained from the Government High School, Hutta Colony, Bhadravathi. The letter said to be written by the deceased was the questioned document marked as Ex.P11. Further, it is proved that the handwriting found on the questioned document and sample handwriting of the accused which are marked as K1 to K6 and R1 are one and the same. The relevant portion of the report/Ex.P37 issued by PW.19/Scientific Officer, FSL reads as under:
"MATERIALS EXAMINED
1. Questioned writings and ink in the enclosed portion at index page & in first five sheets of one ruled Note Book "mercury Speed", they are marked as QI to Q6 by the I0 and K1 to K7 by me.30
2. Admitted writings in the enclosed portion said to be of Madhu @ Vasantha in three pages of one answer sheets (four pages) dt:21/9/2011 concerned to Government High School, Hutha Colony, they are marked as S2 to S4 by the I0 and also by me.
3. Specimen writings in the enclosed portion said to be of Kubersingh in one page of one ruled sheets (four pages), they are marked as S1 by the IO and also by me.
4. Specimen writings in the enclosed portion taken in one sheet from the pen sent in Article No.4 for examination of ink, they are marked as R1 by me.
OPINION
1.The person who wrote the admitted writings marked as S2 to S4 did not write the questioned writings marked as K1 to K7.
2. The person who wrote the specimen writings marked as S1 also wrote the questioned writings marked as K1 to K7.
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3. The ink of the questioned writings marked as K7 and the ink of the specimen writings marked as RI are different.
4. The ink of the questioned writings marked as K1 to K6 and the ink of the specimen writings marked as R1 are one and the same."
19. Though the brother of the deceased lodged a complaint about missing, the accused was with the deceased on the previous night as spoken to by the brother of the accused and others, but he has not lodged any complaint to the Police.
20. The prosecution has produced call record details of the mobile phone belonging to the accused, which is as per Ex.P32. As per Ex.P32, the mobile No.9845303892 is in the name of the accused. On the date of the incident i.e., 23.4.2015 at about 4.42 a.m. he did call to land line number of Shivamogga Railway Station i.e., 222660. As per the tower location, the accused was present near Sominakoppa. The house of the accused is situated at Bommanakatte. Accordingly, certificates as per Ex.P34, Ex.P34(a) and Ex.P36 were issued by the Nodal Officer as contemplated under 32 Section 65B of the Indian Evidence Act. Absolutely, there is no explanation on the part of the accused with regard to Ex.P32, the call detail records of the phone belonged to the accused. The evidence of PW.17/Railway Station Superintendent, Shivamogga depicts that on 23.4.2015 in the early morning he received a call to the landline phone No.222660 of the railway station making enquiry about the arrival of train from Bengaluru to Thalguppa. Based on the evidence of PW.17 and Ex.P32, the prosecution has proved that on 23.4.2015 the accused in the early morning at 4.42 a.m. had telephoned the Railway Station and he was near the place where the dead body was found. The accused has not offered any explanation in his statement recorded under the provisions of Section-313 of the Code of Criminal Procedure. In the absence of any explanation offered by the accused, adverse inference has to be drawn against the accused. PW.17/Superintendent of Railway Station and PW.18/Dy.SP who issued the certificate under Section-65B of Indian Evidence Act, have supported the case of the prosecution with regard to call details.
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21. PW.19/Dr. Aravindan, Scientific Officer, FSL, who examined the sealed articles has given his opinion as per Ex.P37 and opined that the person who wrote the admitted writings marked as S2 to S4 did not write the questioned writings marked as K1 to K7 and the person who wrote the specimen writings marked as S1 also wrote the questioned writings marked as K1 to K7.
22. The material on record clearly depicts that dead body of the deceased was found lying on the railway track and it was severed into several pieces. From inquest mahazar and from the evidence of the other witnesses, it has been proved that there was a rope found on the neck of the body. There was a strangulation mark found on the neck. The doctor who conducted postmortem on the body of the deceased is examined as PW.5 and he has stated that the dead body was brought to mortuary in two main parts comprising the head, thorax and upper limbs in one part, and abdomen and lower limbs as another part, and a third small part of a body consisting of stomach, spleen and part of the left kidney as a single mass and amputated part of right foot which were said to be seen away from the body brought separate in a plastic bag. He 34 has noticed several injuries on the body, particularly around the neck at the level of thyroid, cricoid cartilages and upper tracheal rings. He has opined that external injury Nos.1 and 2 and corresponding neck injuries are ante-mortem in nature. The cause of death was due to asphyxia as a result of strangulation as per the postmortem report/Ex.P8. Further on examination of the rope/MO.11, he has opined that external injury Nos.1 and 2 and corresponding neck injuries could be caused by using such rope for strangulation. Therefore, the prosecution has proved that death of the deceased was due to asphyxia as a result of strangulation and the same is homicidal in nature.
23. A careful perusal of the post-mortem report/Ex.P8 clearly depicts that under the column, 'Organs of Generation, External and Internal', it is stated as under:
UTERUS - 13 x 11 x 3.5 cm O/s:-
AN INTACT AMNIOTIC SAC WHICH CONTAINS 10 CM LONG MALE FOETUS 35 Thereby, the accused not only murdered his wife but also caused death of a male foetus in the womb of the deceased at the same time, thereby he has committed heinous crime of double murder.
24. It is well settled that in the case of circumstantial evidence, five principles - panchasheela have to be established by the prosecution beyond reasonable doubt. On re-assessment of the entire oral and documentary evidence on record, this Court is of the considered opinion that from the beginning till the completion of investigation, all the five circumstances have been proved by the prosecution beyond reasonable doubt. When the initial burden is proved by the prosecution, it is the duty of the accused who is the husband of the deceased to offer explanation while recording the statement under the provisions of Section 313 of the Code of Criminal Procedure as to what happened to his wife and why he was at the spot at 4.42 a.m. along with his wife. But, the accused has not given any explanation. Based on the oral and documentary evidence on record, the prosecution established beyond reasonable doubt that the accused has committed the murder of his wife and as a result also caused death of male foetus, thereby the accused 36 has committed the heinous crime. The accused was present at the scene of the crime at the relevant point of time and the alleged letter said to be written by the deceased proved as it is in the handwriting of the accused. This clearly depicts the malicious intention on the part of the accused to mislead the investigation after committing the murder. In view of the above, this Court is of the considered opinion that the trial Court has rightly passed the impugned judgment of conviction and order of sentence. The reasons assigned and the conclusion arrived at by the trial Court are just and proper. The appellant/accused has not made out any case to interfere with the well crafted judgment passed by the trial Court.
25. For the reasons stated above, the point raised in the present criminal appeal is answered in the negative holding that the appellant/accused has not made out any case to interfere with the impugned judgment and order passed by the trial Court convicting the appellant/accused and sentencing him to undergo Rigorous Imprisonment for life for the offence punishable under Section 302 of IPC and to undergo Simple Imprisonment for three years for the offence punishable under Section 201 of IPC with fine 37 and default clauses, in exercise of the appellate powers of this Court under the provisions of Section 374(2) of the Code of Criminal Procedure in the peculiar facts and circumstances of the present case.
26. In view of the above, we pass the following :
ORDER
i) Criminal appeal filed by the appellant/accused is hereby dismissed.
ii) The impugned judgment and order passed by the trial Court dated 6/7-09-2017 made in S.C. No.101/2016 on the file of the III Addl. Sessions Judge, Shivamogga, convicting and sentencing the appellant/accused for the offences punishable under the provisions of Sections 302 and 201 of IPC, is hereby confirmed.
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