Karnataka High Court
Subbu @ Subramanya vs State Of Karnataka By on 29 July, 2020
Equivalent citations: AIRONLINE 2020 KAR 1570
Bench: B. Veerappa, Pradeep Singh Yerur
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29th DAY OF JULY, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRIMINAL APPEAL NO.176/2015
BETWEEN:
SUBBU @ SUBRAMANYA,
S/O MADAIAH,
AGED ABOUT 30 YEARS,
RESIDENT OF KALYANA NAGARA,
ASHRAYA HOUSE,
CHIKMAGALUR-577102.
(NOW IN JUDICIAL CUSTODY
CENTRAL PRISON DHARWAD. ...APPELLANT
(BY SRI HASHMATH PASHA, SENIOR ADVOCATE)
AND:
STATE OF KARNATAKA BY
TOWN POLICE,
CHIKMAGALUR-577101.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR) ...RESPONDENT
(BY SRI S. RACHAIAH, HIGH COURT GOVERNMENT
PLEADER)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED:10.12.2014 PASSED
BY THE PRINCIPAL SESSIONS JUDGE, CHIKMAGALUR, IN
S.C.NO.61/13 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF
IPC. AND SENTENCING HIM TO UNDERGO LIFE
IMPRISONMENT AND TO PAY FINE OF RS.30,000/- IN
DEFAULT OF PAYMENT OF FINE, TO UNDERGO
RIGOROUS IMPRISONMENT FOR 3 YEARS, FOR THE
OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT IS COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
Hearing was conducted through video conference and the learned Counsel for the parties agree that the audio and video are proper.
2. The accused, who is in judicial custody for more than 7 years 2 months has filed the present criminal appeal under the provisions of Section 374(2) of the Code of Criminal Procedure (for short, hereinafter referred to as 'Cr.P.C')against the impugned judgment and order of conviction dated 10.12.2014 made in 3 S.C.No.61/2013 by the Principal Sessions Judge, Chikamagalur convicting the appellant-accused for the offence punishable under Section 302 of the Indian Penal Code (for short, hereinafter referred to as 'IPC') and sentencing him to undergo life imprisonment and to pay a fine of Rs.30,000/- in default of payment of fine to undergo rigorous imprisonment for three years.
I - The factual matrix of the case
3. It is the case of the prosecution that the appellant was working as Computer Instructor in Keonics Yuva.Com at Chikmagalur. When the deceased
- Nayana joined for computer training in the said institution, at that time, the present accused was her Computer Instructor. It is alleged that both the appellant-accused and the deceased Nayana fell in love and later the deceased came to know that the accused had already been married to one Pavithra - P.W.8 and therefore, she started avoiding the accused, but the accused was insisting the deceased to love and marry him. Since she was not agreeing, it is alleged that on 4 31.12.2011 at about 2.30 p.m., when P.W.1 and her son
- P.W.16 were there in their house as P.W.16 had come for lunch, at that time, C.W.5-P.W.8 - the wife of the accused called P.W.1 from her mobile Number 8277373085 and informed P.W.1 that accused had quarreled with her and has gone saying that he is going to kill the deceased and asked her to save the deceased Nayana. Immediately, P.W.1 and P.W.16 went to the Zilla Panchayath Office in an auto at about 2.45 p.m. and saw her daughter - the deceased Nayana was sitting on the chair of computer table in the Akshara Dashoha Office and she was murdered by piercing her throat with a sharp edged weapon. Therefore, P.W.1- Hoovamma lodged a complaint written by C.W.26- P.W.17 to the jurisdictional police, who registered a criminal case in Crime No.323/2011 against the accused for the offence punishable under Section 302 of IPC.
5
4. The jurisdictional investigating officer after investigating the matter filed the final report against the accused, who pleaded not guilty and claimed to be tried.
5. While recording the statement under the provisions of Section 313 of the Code of Criminal Procedure, the accused denied the case of the prosecution in toto and contended that one Udupi Ramachandra, has committed the said murder. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 37 and got marked the documents Exs.P.1 to 36(a) and material objects M.Os1 to 24.
6. The learned Sessions Judge considering the evidence of P.Ws.1 to 3, 5 to 8, 10 to 13, 23, 24, 26, 27, 32, 34 to 37 and Exs.P.1 to 16, 18 to 33 and material objects - M.Os. 1 to 24 has recorded a finding that the prosecution has proved that on 31.12.2011 in between 2.15 p.m. and 2.45 p.m. in the office of Akshara Dasoha at Taluk Panchayath, Belur road, Chikmagalur, the 6 accused murdered Kumari Nayana by piercing her throat with a sharp edged weapon and thereby committed the offence punishable under the provision of Section 302 of IPC. Accordingly, by the impugned judgment and order of conviction, convicted the accused punishable for the offence punishable under Section 302 of IPC., and sentenced him to undergo imprisonment for life and to pay a fine of Rs.30,000/- in default of payment of fine to undergo rigorous imprisonment for three years. Hence, the accused has filed the present appeal.
7. We have heard the learned Counsel for the parties to the lis.
II-Arguments advanced by the learned Counsel for the appellant-accused
8. Sri Hashmath Pasha, learned Senior Counsel for the appellant-accused contended that as the complaint - Ex.P.1 lodged by P.W.1-Smt. Hoovamma is not the first information report and as it is hit by the 7 provisions of Section 162 of the Cr.P.C., it is not admissible and cannot be relied upon. He would further contend that P.W.13 - Naveen Kumar is not an eye witness to the prosecution and he is a got up witness by the police through P.W.1-Hoovamma and P.W.16 - Nagesh, and hence, his evidence cannot be relied upon. Non-production of the register of medico legal case and the records of treatment at M.G. Hospital in respect of the deceased and non-examination of the concerned doctor, who treated the deceased, draw an adverse inference against the case of the prosecution and therefore, the impugned judgment and order of conviction/sentence is liable to be set aside.
9. The learned Senior Counsel for the accused- appellant further contended that the earliest version of P.W.2, who was working with the deceased has to be accepted and not the version of P.W.13-Naveen Kumar, who claims to be the eye witness was neither in picture nor an eye witness to the incident and it is only a blind 8 murder as alleged. He would further contend that the evidence of both the witnesses - P.W. 1-mother of the deceased and P.W.16 - brother of the deceased are that, P.W.1 receiving the phone call at 2.30 p.m. on the date of the incident from P.W.8 - Pavithra - wife of the accused, is not proved as the prosecution has failed to produce any material documents including the phone call details. The entire complaint as per Ex.P.1 is based on the information given by P.W.8, as alleged, which is not proved and therefore, it falsifies the case of the prosecution.
10. The learned Senior Counsel further contended that, the fact that accused was apprehended on 22.5.2013 that too after more than one and a half years near the Circle of Syndicate Bank, Chikmagalur, which is a public place on the basis of the information received from P.W.32 - Bank Manager of SBM Branch, IG Road, Chikmagalur as he was absconding, cannot be accepted and no question was put to him while recording his 9 statement under Section 313 of Cr.P.C. He would further contend that recovery of M.Os.1 and 10 under the seizure mahazar Ex.P.20 is not an incriminating circumstance as it has not been established. In Ex.P.5
- the diary alleged to have been written by the accused and Ex.P.7 - letters written by the accused to P.W. 15- H.G. Rajesh, no date is mentioned which were written prior to the incident. Suppressing the genesis of the same, the complaint-Ex.P.1 was lodged. Therefore, he contended that the prosecution has failed to prove its case beyond reasonable doubt with regard to motive that the accused has murdered the deceased.
11. The learned Senior Counsel further contended that the charge framed against the accused was that, on 31.12.2011 in between 2.15 p.m. and 2.45 p.m. in the office of Taluka Panchayathi Akshara Dasoha, Belur road, Chikmagalur, he committed murder intentionally and knowingly causing the death of the deceased Nayana, by piecing a sharp edged weapon on her throat 10 and thereby committed an offence punishable under Section 302 of IPC. The statement of P.W.13 - the alleged eye witnesses recorded under the provisions of Section 161 Cr.P.C., by P.W.37 was only on 25.1.2012 after a lapse of 25 days from the date of the incident and till then, there was no reference in the investigation or in the FIR that he was an eye witness. Therefore, the said alleged eye witness - P.W.13 is a planted witness by the prosecution. He further contended that P.W.13 in his evidence has deposed that on 31.12.2011 at about 12 noon, he had been to Taluk Panchayath to bring the record of rights of his property. After taking the pahani at about 1.30 or 1.45 p.m., when he was taking the coffee in the canteen, at that time, he saw the accused there moving around; One of his friend by name Prathap told him that he would come to Akshara Dashoha Office and thereafter, they could go to Belur. So he went to the Office of Akshara Dashoha at about 2 p.m. and there the deceased was sitting in front of the computer on a chair and the accused was talking with 11 her by standing behind her. When he was near the door of the Office of the Akshara Dashoha, he saw the accused removing the knife and piercing into the neck of deceased Nayana, the blood started oozing and the head had fallen to the left side. In the cross- examination, P.W. 13 has admitted that there were four criminal cases pending against him. He has admitted the suggestion that the place where the record of right is going to be issued in the Taluka Office can be seen from the main road which is towards the right side of Chikmagalur-Belur road and from there at a distance of about 300 feet, there is the office of Akshara Dashoha, which building is different from that of the Taluk Office. Further he also has admitted the suggestions that he has not stated before the police that he went to Akshara Dashoha to meet his friend Prathap and on that day, he took the record of rights; he has not stated before the police that he had not taken the record of rights of Sy.No.722. As such, his testimony in examination-in- chief and in cross-examination being inconsistent and 12 unnatural, the same not ought to have been entertained by the learned Sessions Judge.
12. The learned Senior Counsel for the accused would contend that P.W.17, who is the scribe of Ex.P.1 - the complaint registered at 3.50 p.m. on 31.12.2011 in the jurisdictional police station, has deposed that on 31.12.2011 at about 3.20 p.m., P.W.1 called him over the phone and informed about the murder of the deceased. Immediately he had been to the M.G.Hospital and saw the dead body in the mortuary in presence of the police.
13. Sri Hashmath Pasha, learned Senior Counsel for the appellant-accused further contended that there is time gap between the incident and lodging of the complaint. The said delay is not explained and no document is produced including the register of medico legal case by the concerned doctor and Ex.P.1 - the complaint lodged after the delay of five hours is fatal to 13 the prosecution case in view of the provisions of Section 157 of Cr.P.C. since the report ought to have been sent forthwith. The learned Senior Counsel further contended that Police Constable No.254, who submitted the FIR to the Court has not been examined and thereby, the delay caused has not been explained. Ex.P.9 is the inquest report which is not at all forwarded to the learned Magistrate as contemplated under the provisions of Section 174(2) of Cr.P.C.
14. The learned Senior Counsel for the accused further contended that there is no evidence on record that the accused used M.O.10 - sticker cutting knife to slit the throat of the deceased and mere recovery of the same by P.W.37 does not support the case of the prosecution; and the alleged eye witness - P.W.13 has not identified the said weapon - M.O.10. The doctor - P.W.31 - Senior Specialist in M.G. Hospital, Chikmagalur, who has conducted the postmortem on the dead body of the deceased has opined that the use 14 of M.O.10 is possible, which is in the nature of advice and the same cannot be relied upon as no blood was detected on M.O.10 on reference of the said material object to the Forensic Science Laboratory and on that ground also the impugned judgment and order of conviction against the accused is liable to be set aside.
15. The learned Senior Counsel further contended that since no independent witness from that locality is examined with reference to seizure of M.O.10 - knife and as there is no whisper in the FIR, inquest report - Ex.P.9 as well in the evidence of P.W.1 about seizure of M.O.1 the gold chain, it creates doubt and hence benefit of doubt has to be given to the accused on the basis of discrepancy between oral testimony and documentary evidence of recoveries. Therefore, he sought to allow the appeal by setting aside the judgment and order of conviction and sentence passed against the accused.
15
16. The learned Senior Counsel for the appellant in support of his contentions relied upon the following judgments:
i) State of A.P. Vs. Punati Ramulu
and others reported in 1994
Supp (1) SCC 590;
ii) Pradeep Narayan Madgaonkar
and others Vs. State of
Maharashtra reported in (1995)
4 SCC 255;
iii) Meharaj Singh Vs. State of U.P.
reported in (1994) 5 SCC 188;
iv) Mohd. Aman and Another and
State of Rajasthan reported in
1997(10) SCC 44;
v) Datar Singh Vs. The State of
Punjab reported in 1975 (4) SCC
272;
vi) Murlidhar and others vs. State
of Rajasthan reported in
2005(11) SCC 133;
16
vii) Tomaso Bruno v. State of U.P.,
reported in 2015(7) SCC 178;
and
viii) Malay Kumar Ganguly v. Dr.
Sukumar Mukherjee reported in
AIR 2010 SC 1162.
III - Arguments advanced by the learned HCGP for the State
17. Per contra, Sri S. Rachaiah, learned HCGP sought to justify the impugned judgment and order of conviction and contended that the registration of FIR after the commencement of investigation, will not affect the case of the prosecution; The material objects - M.Os.1 and 10 may loose significance of evidence as the same were recovered after one year; Exs.P.5 and 7 - diary and letters may not be relevant to the case of the prosecution; The testimony of P.Ws.1 to 4, 8, 16, 17 and 27 clearly go to show that the prosecution has 17 proved its case that the accused is involved in murder of the deceased beyond all reasonable doubt.
18. The learned HCGP further contended that the statement of P.W.8 recorded under the provisions of Section 161 Cr.P.C., and the call details obtained by the Investigating Officer as per Ex.P.36 from 1.12.2001 to 4.1.2012 clearly depict that on 31.12.2011 at about 2.31 p.m. and 3.02 p.m. about the involvement of the accused in the murder of the deceased. He would further contend that when once Ex.P.36 is marked before the trial Court without any objection, it is not now open for the accused to raise any objection to its admissibility at an appellate stage. Therefore, the contents of Ex.P.36 has to be looked into. He would further contend that so far as the other circumstances such as:
(i) last seen theory deposed by P.W.27, who is an independent witnesses and also an informant to the police;18
(ii) with regard to motive as per the evidence of P.Ws.1, 15 and 16;
(iii) the conduct of the accused after the incident as spoken to by P.Ws.25, 30 and 33;
(iv) recovery of material object - M.O.20 - Samsung mobile; and also testimony of P.Ws. 23 and 27 clearly goes to show that the accused was involved in the murder of the deceased. Even the evidence of P.Ws.15, 16, 25, 30 and 36 clearly indicates that the accused was involved in murdering the deceased.
Therefore on all the above grounds, he sought to dismiss the appeal filed by the accused.
19. In support of his arguments, the learned HCGP relied upon the following judgments: 19
i) Sambhu Das Alias Bijoy Das and Another -vs- State of Assam reported in 2010(10) SCC 374 head Note A;
ii) Sonu Alias Amar -vs- State of Haryana reported in (2017) 8 SCC 570 para-37;
IV - Points for determination
20. In view of the rival contentions urged by the learned Counsel for the parties, the only point that arises for our consideration in the present criminal appeal is:
"Whether the appellant-accused has made out a case for setting aside the impugned judgment and order of conviction sentencing him to undergo imprisonment for life under the provisions of Section 302 of the Indian Penal Code in the facts and circumstances of the present case?20
21. We have given our anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material including the original records carefully.
V - The findings recorded by the learned Sessions Judge
22. The learned Session Judge has recorded a finding that all the material witnesses are subjected to cross-examination and they have withstood the test of cross-examination. Nothing worth is elicited in the cross-examination of material witnesses to discard their testimony or to dislodge the same. It was tried to canvass that there were some contradictions and inconsistencies in the evidence of the prosecution witnesses. But no major contradictions and inconsistencies were brought out by the defence to show that there were material contradictions going to the root of the case. All the material witnesses, who had supported the case of the prosecution have corroborated 21 the prosecution theory and though they were subjected to cross-examination, their evidence was not dislodged by effective cross-examination. Nothing worth was elicited in their cross-examination so as to say that their evidence before the Court were not believable and trustworthy. It is further held that in the statement recorded under Section 313 of Cr.P.C., the accused has neither explained anything regarding the incriminating circumstances put to him which were found in the evidence of the prosecution witnesses nor has offered any explanation, but has baldly denied the same. It has been further held that the accused has not offered any explanation to the said incriminating circumstances as the circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused. Accordingly, the Sessions Court has proceeded to pass the impugned judgment of conviction sentencing the accused to undergo imprisonment for life and to pay a fine of 22 Rs.30,000/- in default of payment of fine to undergo rigorous imprisonment for three years. VI- Witnesses examined on behalf of the Prosecution
23. In order to re-appreciate the entire oral and documentary evidence on record it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.
24. P.W.1 -C.W.1 - Hoovamma, who is the mother of the deceased Nayana has deposed that in examination-in-chief that, her daughter deceased Nayana had studied the Computer Course in Keonics, Yuva.com and at that time, the accused used to train her in computer basics. Along with the deceased, C.W.6-P.W.5-Komala Naik also used to go for computer training. The accused used to ill-treat her by saying to love him; he used to visit her office and also whenever he used to meet her in the street, he used to ask her to love him and if she is not going to love him, he would 23 kill her. It is her further evidence that her daughter used to tell all the facts to her. About five months prior to the death of her daughter, after coming to know that accused was teasing and forcing her daughter to love him, even though he had already married, they called the accused to their house and she (herself-P.W.1) and her husband advised him and at that time, the accused told them that he would see her. It is her further evidence that, on 31.12.2011 at about 9.45 a.m., when her daughter deceased Nayana left the house to go to her office duty at Zilla Panchayath, she was wearing a jeans pant with belt, white top, white slip, white bra and a waist thread, one gold chain with heart shaped pendent weighing 6-7 gms, a nose ring, artificial ear hangings and a black bangle on the right hand and was carrying lunch box (figure rice). She has further deposed that she owned two mobile sets - One with Airtel Sim Number 9980249453 and another with BSNL Sim Number 8277372405 and her daughter was also having a mobile bearing Number 8123638264. At about 24 2.30 p.m. on 31.12.2011, when she (P.W.1) and C.W.24- P.W.16-brother of the deceased (son of P.W.1), who had come for lunch, were there in their house, at that time, C.W.5 - P.W.8, wife of the accused - Pavithra from her mobile Number 8277373085 called her (P.W.1) to BSNL Mobile i.e., 8277372405 and informed her that the accused by quarrelling with her had gone by saying that he is going to kill the deceased Nayana and he had asked his wife to save the deceased. Therefore, she (P.W.1) immediately with her Airtel Sim Number 8123638264 called to her daughter, but she did not respond. Being afraid, she (P.W.1) and P.W.16 went to Zilla Panchayath Office in an auto at about 2.45 p.m. and there they saw her daughter was sitting on the chair and her neck was fallen to the left side and the blood had scattered on the floor and immediately she called, but she did not respond. She has further deposed that, her daughter's neck had been slit and the blood was oozing from there. Immediately C.W.3- P.W.27, C.W.4-P.W.2, C.W.7-P.W.4 and C.W.8-Smt. 25 Vijaya also came there and with their help, they brought her daughter to M.G.Hospital in an auto and at about 3.15 p.m., the doctor declared that she was dead. She has further deposed that immediately she along with P.W.17-cousin of the deceased went to the Town Police Station to lodge a complaint and she got the complaint written by P.W.17 as per Ex.P.1. After knowing the contents, she has signed the complaint at Ex.P.1(a).
In the cross-examination, to the suggestion - whether she knew that her daughter was loving Udupi Ramachandra, P.W.1 has answered that she doesn't know. C.W.21-Janakamma is her brother's wife. C.W.27 is her brother's son. She has denied the suggestion that her deceased daughter used to call C.W.27 and was sending messages through mobile. Unfortunately, in the present case, Udupi Ramachandra, C.W.21-Janakamma and C.W. 27 brother's wife and brother's son have not been 26 examined by the prosecution. Further in her cross- examination, she has specifically admitted the suggestion that she has not filed any complaint against the accused after coming to know that the accused was forcing her daughter to love and marry him and also she has not informed the said fact to C.W.5-wife of the accused. She has also admitted the suggestion that she was enquired by the doctor when they had taken her daughter to the hospital, but she was not questioned about who had caused injury on the neck of the deceased. She does not know whether the doctor had asked C.W.24-P.W.16 about the injuries sustained by her daughter. She also does not know whether the police were present or not, at the time, when the doctor informed about the death of her daughter. She voluntarily admits that after giving the complaint, she was in the hospital upto 10.30 a.m. and till then, the police had not recorded any statement. She has denied the suggestion that after coming to know about the death of her daughter in the hospital, she had been to 27 the hospital. She has voluntarily deposed that at the time of filing the complaint, she knew the mobile numbers of her daughter and C.W.5-P.W.8. Since she was in shock, she had not observed whether M.O.1 - gold chain was there on the neck of the deceased or not. She also had not asked the police to give M.O.1. She has denied the suggestion that M.O.1 was not belonging to her daughter, but has admitted the suggestion that at the time of filing the complaint, she not stated mobile numbers of herself, C.W.5-P.W.8 and that of her daughter.
25. P.W.2 - C.W.4 - Ninganaika, who was working as First Division Assistant in Akshara Dashoha attached to Zilla Panchayath, has deposed that he knew P.Ws.1, 3, 7, 8, 24 and 25. C.W.9 was working since the year 2004 and 2005 as Assistant Director. The deceased started working as a Computer Operator since 1.4.2010 and she was appointed through Keonics Yuva.com as an outsource employee to them and the 28 salary was also paid by them. He used to go for lunch usually at 1.30 p.m. and would come back about 2.30 p.m. In Akshara Dashoha totally himself, C.W.9 and the deceased were the only three persons, who were working and all were having the key of the office with them. On 31.12.2011 at about 10.00 a.m., he came to the office and deceased was also there. C.W.9 had been to Mallandur to attend a function. Himself and deceased were there in the office. At about 1.30 p.m., before going to lunch, he had asked the deceased whether she is going for lunch or not, to which the deceased replied that she would not go as she had brought the lunch. At that time, the deceased was alone in the office and when he came back at about 2.35 or 2.40 p.m., he saw the deceased sitting on the chair and her head had tilted towards the left side and it appeared to him that the neck had been slit. When he tried to talk to her, she did not talk. Out of fear, he came down and went to the main office and asked them to come and see that somebody had slit the neck of the 29 computer operator. Along with him, C.Ws.7/P.W.4 and 8 came back to the office, by that time, P.W.1 and C.W.24 - P.W.16 were there and C.W.3 - P.W.27 also had come. C.W.3 -P.W.27 called the police through mobile. By the time the police came, P.W.1-P.W.16- C.W.24 took the deceased to the hospital.
P.W.2 has further deposed that his office is having a hall, which is divided by putting almirahs. C.W.9 - P.W.3 used to sit on one side. He and the deceased used to sit on the other side. In order to enter their office, one had to come by coming on the steps. On the back side of the office, there was a sensor road. Their Office had a compound which was about 5 feet in which one Beauty Parlor and Jaya Mithra - the office of the Local Newspaper were there. In Taluk Panchayath there was a canteen.
P.W.2 in his cross-examination has admitted the suggestion that C.W.8 was working as a peon in their 30 office. First, he saw the deceased sitting on the chair with the neck slit. After C.W.3 called over the phone after 5 or 10 minutes, the police came there and enquired him and others about the incident. P.W.1 and C.W.24-P.W.16 came along with the police. He alone had been to the hospital. There the police neither questioned him nor he was called to the police station. C.W.8 has not been examined by the prosecution.
26. P.W.3 - C.W.9 - J.V. Paramesh, who was working as Assistant Director in the Taluk Panchayath and was also attached with Akshara Dashoha has deposed that P.W.2 was working as the First Division Assistant and the deceased was working as computer operator through Keonics Yuva.Com. which had been an outsource to it. He knew the accused, who used to come to their office and other Zilla Pancyath Offices. Apart from any office work, he was also having executive work. Likewise P.W.2 also was attending about 4 to 5 days in a month as an Executive to other Schools. All 31 the three were having keys of the office. He further has deposed that on 31.12.2011, he along with his District Officer had been to Mallandur High School to attend the annual day function. At that time, the deceased and P.W.2 alone were there in the office. On that day at about 3.15 p.m., when he was in the function, P.W.2 called him over phone stating that the computer operator working in their office had been murdered by slitting her neck and she has died and the body was in the hospital.
Further in his cross-examination, P.W.3 has deposed that there is no post of Deputy Director or Joint Director in their office and he has not been examined by the police and he might have come to the hospital at about 4.45 or 6 p.m.
27. P.W.4-C.W.7 - Sharadamma, has deposed that she was working as Second Division Assistant in Taluk Panchayath Office since 2000 behind which, in the first floor, there is a Akshara Dashoha Office. 32 There, P.Ws.2 and 3 and the deceased were working. Deceased was working as a Computer Operator, who died on 31.12.2011. She knew the accused, who used to visit her office whenever any complaints were lodged with the Keonics Yuva.com to attend the problem. That on 31.12.2011 at about 2.35 p.m., she had come to her office and at that time, P.W.2 came by raising hue and cry saying that somebody had slit the neck of the computer operator - Nayana. Immediately herself, C.W.8 went along with P.W.2 to their office where they saw the deceased sitting on the chair and her neck was slit and the blood had fallen on the floor. There P.W.1, C.W.3/P.W.27, C.W.24/P.W.16 and public had also gathered. Thereafter the deceased was taken to the Government Hospital in an auto and she came back to her office. Subsequently, she came to know that the accused had murdered the deceased-Nayana.
In her cross-examination, P.W.4 has admitted the suggestion that, she has not stated before the police that the accused used to attend the computer problems, 33 if it is reported to Keonics Yuva.com. Police have recorded her statement. She has denied the suggestion that she is deposing falsely that, P.W.2 had come near her office and raised hue and cry and thereafter, along with him and C.W.8, she went and saw that the deceased neck was slit, who was sitting on the chair and thereafter, the body was taken to the hospital.
28. P.W.5 - C.W.6 - C.N. Komala Naik, who had undergone Training of Lib. Science has given her version that during the year 2008, she used to go for training of basic computers to Keonics Yuva.com. Along with her, the deceased-Nayana and one Nagesh also used to go the computer training, where the basic aspects were taught by the accused. C.W.19/P.W.15 was the Proprietor of Keonics. Thereafter, she went to Bhadravathi for studying B.Ed. and the deceased started working through Keonics in Akshara Dashoha at Taluk Panchayath. She had come to Chikmagalur in the year 2010 after B.Ed. Thereafter, she went to 34 Mysore to study B.L.I.Sc. It is her evidence that the deceased used to come to her office in the afternoon for lunch. Thereafter, she left to Mangalore for certificate course of Library Science for six months and came back in September, 2011. One day, the deceased had come to her house in the afternoon and asked her to come along with her as she had to bring the salary credit and cash voucher from Keonics Yuva.com where the deceased was talking with C.W.19 - P.W.15 and asked him to return the diary written by the accused in respect of her. In turn, C.W.19/P.W.15 gave the permission to search and if found, asked them to take by giving the key. Thereby they opened the lock of the wardrobes, searched and could not get the diary. Again on one more day, herself and the deceased went to Keonics Yuva.com and at that time, the accused was there inside in the office. When they searched there, they found the said diary written by the accused and in the absence of the accused, they brought it, which was with the deceased. She has further deposed that in the 35 month of November, the deceased brought the said diary and 13 covers and asked her to keep them with her as she could not keep them in her house and also asked her not to see the diary and covers. It is her further evidence that when they had been to bring the diary, the deceased had told her that since already the accused is married, she does not love him. On 31.12.2011, when she had been to Badravathi to attend the convocation and B.Ed. certificate, at that time, she received a phone call informing that the deceased had been murdered by slitting the neck.
In her cross-examination, P.W.5 has deposed that accused and deceased were loving each other. She has denied the suggestion that the diary Ex.P.5 and covers have been seized in her presence by drawing a mahazar and she does not know the contents of Ex.P.5.
29. P.W.6 - C.W.10 - Shivakumar, the friend of the accused has deposed that he knew accused, who is 36 present in the Court. His father was working as ARSI in DR at Chikmagalur. He and accused were studying together in IDSG College at Chikmagalur and as such, he knew him and also his handwriting and signature. They both had finished their Degree in 2002. After his degree, he was doing tailoring work at RG Road and accused was working in Keonics Yuva.com. Due to loss in tailoring business, he closed and went to Bangalore. He was also doing basic computers training at Keonics Yuva.com. Once C.W.19 had asked him to advise the accused since the accused even though married was loving the deceased and intending to marry her. Therefore, he had advised the accused to leave the deceased as he was also having sisters and it is not good. The accused had told him that he was not talking with the deceased over the phone. Next day, one Basavesha informed him about the fact that the deceased was murdered by the accused since the deceased was not agreeing to marry him. He also identified the letters written by accused i.e., Ex.P.7, 37 cover Ex.P.6 and his address marked as Exs.P.6(a) and 7(a) and the signatures of the accused.
In his cross-examination, P.W.6 deposes that he was called by Basavanahalli Police Station where he had been enquired by the police though he was related to the accused, he was not aware of his family affairs; accused never used to tell any family affairs and personal affairs with him and so also, he never used to tell his family affairs and personal affairs to the accused.
30. P.W.7 - C.W.12 - Vijaykumar has deposed that himself and the accused together studied the computer course at Keonics Yuva.com during the year 2004 after completion of PUC. The deceased and accused were friends. They were moving together and hence, he felt that they loved each other. About 2 to 3 months, prior to the death of the deceased, C.W.19/P.W.15 called him and told that between the accused and deceased, some quarrel had taken place 38 and hence asked his advice. He advised the accused to leave such things and to live happily. He has further deposed that on 31.12.2011 after attending the school at about 2.30 p.m. when he had come to Chikmagalur City, one of his friends, Pradeep informed him over the phone that the accused had murdered the deceased. Police also enquired him and at that time, the police had shown him a cover and a letter written by the accused which is marked as Ex.P.8(b). The letter is marked as Ex.P.7(b). He identified the same as he was acquainted with the handwriting of the accused since they were working together at Keonics Yuva.com .
In his cross-examination, P.W.7 has deposed that he does not know the personal affairs of the accused as accused never used to tell his family affairs with him and he also never used to tell accused. Further, he does not remember the day and date when C.W.19/P.W.15 asked to advise him and also the day and date when he advised the accused.
39
31. P.W.8 - C.W.5 - H.E. Pavithra - wife of the accused has given her evidence that she got married to the accused during the year 2006 and at that time, the accused was working in Keonics. When the murder of deceased had taken place, she was pregnant by four months. She was not having in-laws, and brothers and sisters of the accused were staying at Bangalore. It is her further evidence that, about 1 ½ years back, the deceased Nayana died. She was not having any mobile and she does not know the mobile numbers of the deceased and P.W.1. Accused was having his mobile bearing number 9480121158. She does not know the deceased and P.W.1 and also the relationship between the deceased and the accused. Accused used to come to the house for lunch and the police have not recorded her statement.
In her cross-examination, P.W.8 has denied the suggestion that she was having a mobile phone bearing number 8277373085 and also that she knew the mobile number of the deceased as 8123638264. She has also 40 denied the suggestion that about four months prior to the murder, the deceased had called her over her mobile number and had told that she wants to talk with her. She also has denied the suggestion that the accused and the deceased were loving each other and now the deceased had come to know that the accused had married her. She has also denied the fact that the deceased had told her that after coming to know that the accused was married to her, the deceased had left him and asked him to leave him, but the accused instead of leaving, was threatening the deceased that he would kill her. She has also denied the suggestion that the deceased had asked her not to tell the fact of calling her over the phone to the accused and out of fear, she also did not tell the accused about the fact of deceased calling her. She also has denied the suggestion that the accused had quarreled with her and told that the deceased was not heeding to his request and was refusing to love and marry and on that day, he would not leave her and would finish her and by saying so, he 41 went away. She has also denied that at about 1.30 p.m. the deceased called to her mobile and talked with her and at that time, the phone was disconnected; thereafter, she called through her mobile, but the deceased did not receive the call; that she also sent a message 'call me' to the mobile of the deceased and inspite of that the deceased did not call her; since the deceased did not call her, out to fear, she called to the mobile of P.W.1 and had informed that the accused had quarreled with her and by saying that he would not leave the deceased had gone and hence, asked P.W.1 to protect her daughter. Further in her cross-examination, she has deposed that since from the date of the incident, the accused was there along with her in her house at Kalyana Nagar and from there, the police have apprehended and had taken the accused.
32. P.W.9 - C.W. 23 - Fayaz - the panch witness to the inquest mahazar Ex.P.9 has deposed that he knew P.W.1, C.WS.21, 22, 24, 25, the deceased and the 42 accused, who was present before the Court. He has further deposed that on 31.12.2011, he had been to M.G. Hospital Mortuary to see the dead body of the deceased. There the police called him, C.Ws.21 and 22 for treating them as panch witnesses to the inquest and seizure mahazars, which were drawn as Exs.P.9 and 10 and his signatures were taken at Exs.P.9(a) and 10(a). He has admitted that he was residing in front of the house of the deceased and has denied all other suggestions put to him.
33. P.W.10 - C.W.13 - Banashankari B.M., who is younger sister of the accused has deposed that, marriage of the accused was performed with P.W.8 during the year 2006 and C.W.14 i.e., P.W.11 is the father of P.W.8. Earlier, they were living together in Chikmagalur and thereafter herself and two younger brothers went to Bangalore and were staying there. The accused has a degree in Computers. She knew the handwriting and signature of the accused. Usually 43 during the festivals, they used to visit the house of the accused which was in Chikmagalur from Bangalore. On 31.12.2011 by seeing the T.V., she came to know that the accused had murdered the deceased - Nayana while working in the office. When the cover and letter marked as Ex.P.6(c) and Ex.P.7(c), were confronted to her, she admits that the address mentioned in them are her address, but the handwriting and signatures found on them are not of the accused.
In her cross-examination, she has denied the suggestion that the handwriting and signatures found on Exs.P.6(c) and 7(c) belong to the accused. She admits that in Ex.P.5, the photographs at page 39 are that of the accused, but he does not know whether the handwriting found in Ex.P.5 belongs to the accused or not. She has also denied the suggestion that the handwriting found in Ex.P.5 belong to the accused. She further denies that since the accused is her brother, in order to help him, she is deposing falsely and also 44 denies that she has stated before the police as per Ex.P.11. It is her version that after the TV news, she had visited the house of the accused during festivals and at that time, P.W.8 and the accused had treated them. She further admits that after many days, it had come to her knowledge that the accused had been taken from the house.
34. P.W.11- C.W.14 - Eraiah, who is the father- in-law of the accused has given his evidence that P.W.8 is his daughter and during the year 2006, he got married P.W.8 with the accused when the accused was working in Keonics, Yuva.com. The police have not recorded his statement. The covers and letters are confronted to him and are marked as Ex.P.6(d) and Ex.P.7(d) and he denies the handwriting of the accused on them as suggested by the prosecution, but admits the address mentioned on them.
In his cross-examination, P.W.14 admits that the photograph found at page No.39 in Ex.P.5 is that of the 45 accused; the police apprehended the accused about three months back, and he was not knowing whereabouts of the accused prior to his apprehension. Further he admits that the accused after the incident used to visit his house to see the child and wife; that the accused had attended the naming ceremony of his grandson; that before P.W.8 was brought for delivery, accused and P.W.8 were residing in their house, but was not knowing where the accused used to go and come. Further he has denied the suggestion that on 31.12.2011 at about 5.30 p.m., P.W.8 had called him over the phone and told that the police had come to her house; he had come from his village by hiring a jeep and went to the house of P.W.8.
35. P.W.12/C.W.15-Gopalakrishna, a neighbour, identified the hand writing and signatures of the accused on Ex.P.6(e) as Ex.P.6(e)(i) and 7(e)(i). But, in the cross-examination, he has admitted that, "I am not having any personal knowledge as to who are friends of the accused. I never used to tell my family problems to 46 the accused and accused also never used to tell me. I am not having any personal transaction with the accused. I am not having any documents earlier written to me by the accused". The witness denied the suggestion that, he was not having personal knowledge of the handwriting of the accused. He has stated that, "earlier the accused has not written any letters pertaining to his private affairs to me. I have not signed on Exs.P.6(e) and 7(e) when police showed them to me".
36. P.W.13/C.W.2-Naveen Kumar, an eye witness to the incident according to the prosecution, has deposed that, he knows the deceased Nayana and she died about 1 year 8 months back on 31.12.2011. He owns agricultural land at Vasthare village bearing Sy.No.722. He has stated that, "On 31.12.2011 at about 12 noon I had been to Taluk Panchayath office to bring the record of rights of my property. After taking the pahani at about 1.30 or 1.45 pm I was taking coffee in the canteen and at that time, I saw the accused there moving around. One of my friend by name Pratap told 47 me that he will come to Akshara Dasoha office and thereafter, we can go to Belur. I went to the office of Akshara Dasoha at about 2 pm and there deceased was sitting in front of the computer on a chair and the accused was talking with her by standing behind her. When I was near the door of the office of Akshara Dasoha, I saw the accused removing the knife pierced into the neck of Nayana. The blood started oozing and the head fell left side. The accused after committing the said offence came out and by stepping down the steps by jumping the compound wall ran away towards Spencer Road. At the time of alleged incident, the accused was wearing red jerkin. Due to fear, I waited till my friend came and thereafter we went to Belur. Subsequently, in TV, I came to know that Nayana died. Due to fear I did not tell the said fact to any body. Subsequently I came to know that the accused committed the murder of the deceased as she used to love her and after coming to know that the accused is already married, she refused to love and marry. As 48 such, the accused has committed the said offence." In the cross-examination, he has stated that, "Against me there are four criminal cases pending. In one case I was acquitted and three cases are pending. The distance between Vasthare to Chikmagalur is about 10 kms". He has further stated that, "it is true to suggest that the place where the record of right is going to be issued in the Taluk Office is seen from the main road and it is towards right side to Chikmagalur-Belur Road. It is true to suggest that from there at a distance of about 300 ft there is the office of Akshara Dasoha. It is true to suggest that the building of Akshara Dasoha is the different building than the Taluk office. It is true to suggest that in Taluk office the people will be there from morning till evening. On that day about 25 to 30 people were moving around in the Taluk Office. It is true to suggest that I have not stated before the police that I went there to Akshara Dasoha to meet my friend Pratap. On that day I took the record of rights. It is true to suggest that I have not stated before the police that I 49 have not taken the record of rights of Sy.No.722". Witness volunteers that 'I have mentioned only taken the copy of record of rights'. He has further stated that, "it is true to suggest that I have not stated before the police that I had been to Taluk Panchayat office to take the record of rights. I was not having any impediment to tell before anybody the fact, which I have seen in Akshara Dasoha. Further, he has stated that, "I might have gone back to my house at about 4.30 or 5 pm. On that day, I have met my friend Pratap in between 2.15 to 2.30 pm. I know the said Pratap since 20 years. Within 15 minutes after the incident I met Pratap infront of Insurance Office. I also came in front of the insurance office by jumping the compound. I have told the said Pratap what I have seen in the office of Akshara Dasoha. Pratap belongs to Lakshmikanthhalli. The police phoned me on the same day evening but I came on next day to the Rural Police Station, but I do not remember the time. The police might have phoned me at about 6 or 7 pm. I have not called the police. By 50 seeing in the TV, I came to know that the deceased had died. I do not know the name of the father of the accused. In the Rural Police Station, my statement has been recorded in writing". The witness further admitted that, "After seeing the incident myself and Pratap took the coffee and thereafter, after half an hour I went to my village". He has stated that he came from Vasthare in a bus and denied the suggestion that he had not come to Chikmagalur, he had not met his friend Pratap and he has not seen any incident and at the instance of police, he is deposing falsely.
37. P.W.14/C.W.16-Shivanna, has deposed that the accused is his elder brother's son. The witness has further stated that, he used to stay in Bengaluru. The accused and his wife used to stay in Chikmagalur. The accused never used to phone him. C.W.17 has not informed him anything. He does not know the writings of the accused and he is not acquainted with it. Police have not recorded his statement. In the cross- 51 examination, the witness has stated that, "it is false to suggest that my statement has been recorded by the police on 01.03.2012 by showing one cover and one letter. For the purpose of identification, the said cover has been marked as Ex.P.6(f) and the letter is marked as Ex.P.7(f). It is false to suggest that the handwriting found on Ex.P.6(f) and 7(f) are of the accused and I have identified before the police."
38. P.W.15/C.W.19-H.G.Rajesh, Proprietor of AIM Academy and franchise of Keonics Yuva.com, has stated that, "During 2004-2005 accused joined to learn the computer in Keonics. During 2006, accused got married to P.W.8. After completion of the training, accused started working in his institute as a lab assistant. During 2008-09 deceased, P.W.5 and P.W.7 were studying computers. They learnt basic computers and DTP. During April 2010, outsource employment to Akshara Dasoha was given to him and he entrusted that work to deceased to do on behalf of AIM Academy". He has further stated, "During September 2011, P.W.8-wife 52 of the accused called me over phone and asked me whether our institution works on Sunday, as the accused is going out of the house to attend to his duties and whether he is loving anybody. Thereafter, I enquired the accused and by going to his house I advised him. After some days, the deceased called me over phone and told that the accused was loving her and she also told that some documents pertaining to her were kept by the accused in our office and she knows and if key is given she will come and take the said documents." Accordingly, he permitted the accused and P.W.5. They searched and took back the documents. He has further stated that, "On 31.12.2011 at about 3 pm when I was proceeding to go to Puradamma temple at Hassan, one Sadashiva, Taluk Panchayath Manager called me over phone and asked where is Subbu/accused. I told that he may be in the office. After some time again he called and told that the accused by coming over to the office of Akshara Dasoha, inflicted injury to the neck of the deceased". The said 53 Sadashiva, Taluk Panchayath Manager has not been examined by the prosecution. The witness has further stated that, "I searched the contents of the word file in computer. The password was 'Nayana'. In the said word file, another file was there under the name 'my story and my letters'." He has further stated that, "on 31.12.2011 accused has also used the motor bike. On 27.05.2013, the said motor bike has been produced before the police at 10 am. When I had been to the police station, accused and Ramesh (C.W.18) and one more person were there along with police staff. In my presence, accused did not tell anything. Thereafter, the said motor bike has been seized by drawing a mahazar- Ex.P.14 and Ex.P.14(a) is my signature. In the cross- examination, the witness has stated that, "I am not having any personal relation with the accused and vice versa. When Manager-Sadashiva informed me about the incident, I did not ask when the injury has been caused to deceased and at what time." He has further 54 stated that, "it is false to suggest that the accused was not using motor bike-M.O.9".
39. P.W.16/C.W.24-Nagesh, brother of the deceased has stated on oath that, "Deceased was working as a computer operator in Akshara Dasoha since April 2010. She was appointed through Keonics by outsource. During 2008, deceased and myself studied computer in Keonics. Deceased used to tell in our family that the accused has fallen back her and insisting her to love and marry him and she has told that he is married and she is not willing to marry him. Six months prior to the murder my mother, father and myself called the accused to our house and advised him. At that time the accused told that he know what to do to the deceased. We did not inform the said fact to anybody as the prestige of the family was involved." He has further stated that, "On 31.12.2011 at about 2.15 pm he had been to the house for lunch, at that time, his mother (P.W.1) was there in the house. At about 2.30 55 pm, P.W.8-wife of the accused called to the mobile phone of P.W.1 and informed that the accused by quarreling with her has gone out by telling that he will not leave Nayana and asked her to go and protect her." He further stated that, "I know the mobile number of P.W.1, 8 and the deceased. Immediately, two times we tried to the mobile phone of the deceased, but she did not lift. Thereafter, immediately by hiring an auto we went to the office of Akshara Dasoha. When we went and saw, the deceased was sitting on the chair and there was injury to her neck and the head had fallen and the blood was scattered on the floor. Immediately, P.W.2, 4 and P.W.3/C.W.8 also came there, by noticing the injury, myself, P.W.1 and 2 took the deceased to the hospital in an auto. At about 3.15 pm, doctor told the treatment failed and she has died. Thereafter, P.W.1 went to police station to file the complaint. Police have recorded my statement. Accused has committed murder of his sister Nayana as she refused to love and marry him."
56
In the cross-examination, he has stated "I have been examined by the police in the police station. C.W.27 is my mother's brother's son who is not examined. There is no relations in Vasthare from Thirthahalli. When we came to M.G.Hospital at that time also mobile phone of P.W.1 was with her. After seeing the deceased P.W.1 has not called over the phone to anybody. P.W.1 has received many phone calls but I do not remember from whom she has received. I did not tried to inform over the phone by using the mobile of P.W.1 to the police after seeing my sister in the office of Akshara Dasoha. By seeing condition of the deceased in the office, P.W.1 made a hue and cry." He has further deposed that "It is false to suggest that when I was in the house no phone has been received from P.W.8 by P.W.1 and we did not tried to the phone of the deceased and thereafter we have not gone to the office of Akshara Dasoha. After advising the accused we have not called the family members of the accused and told 57 them what the accused is doing towards the deceased. We have not filed any complaint to the police when accused told that he will see my sister after advising him. It is false to suggest that neither myself nor the deceased were not knowing who is the accused. It is true to suggest that I know who is the cause for the murder of the deceased. I do not know if it is suggested to me that my deceased sister used to love one Udupi Ramachandra."
40. P.W.17/C.W.26-Jaijagadish, who is the scribe of Ex.P.1-complaint, has stated that the deceased is his father's sister's daughter. He has stated on oath that, "On 31.12.2011 at about 3.20 pm, P.W.1 called me over phone and informed about the murder of the deceased. Immediately I came to M.G. Hospital and there, in mortuary I saw the dead body. There police opened the bandage over the neck of the deceased and there we found 3 injuries. When we asked P.W.1 she told that the accused used to love the deceased and used to 58 insist her to love and marry and deceased has told the accused that he has got married and she is not willing to marry him and she also told that about 6 months back the accused has been called and advised. P.W.1 also told that while going the accused told after advise that he know what to do to the deceased and thereafter he has committed the alleged offence. Police have recorded my statement. Along with P.W.1, I went to the police station and there I drafted the complaint as per the dictation of P.W.1 as she was in grief. Ex.P.1 is in my hand writing. After writing Ex.P.1 the same was read over to P.W.1 and thereafter she put her signature and thereafter she gave it to the police. I have not signed Ex.P.1 as a scribe. In the cross examination, P.W.17 has stated that, "When I received the phone call from P.W.1 at that time I was there in my house. When I had been to the hospital police as well as many persons were there in the hospital. When I had been to the police station along with P.W.1, at that time, I have not been questioned by the police. It is true to suggest 59 that I have not stated before the police that I received the phone call at 3.20 pm from P.W.1. It is false to suggest that I have written Ex.P.1 not in the police station and it is outside."
41. P.W.18/C.W.28-Damodar, who is the panch witness has stated that on 31.12.2011 at about 8 pm, he was called to the office of Akshara Dasoha to act as a panch and he was shown the place where the deceased had been murdered. After seeing the place, mahazar was drawn as per Ex.P.2 and Ex.P.2(b) is his signature. He has stated that the blood was swabbed with cotton and it was also preserved and the swab washed with cotton on the floor was also separately seized. He has stated that he can identify the said seized articles which are marked as M.O.7 and 8. Ex.P.2 was prepared in the office computer of Akshara Dasoha in the night. In the cross-examination, he has stated that, no written notice was given to him to act as a panch witness and he had not gone to the hospital after coming to know about the 60 murder. The police called him to act as a panch witness.
42. P.W.19/C.W.30-Prasanth Kumar, a panch witness has stated on oath that he has seen P.W.5 and C.W.31 on 17.01.2012 when police called him to the office of CPI. He has stated that P.W.5 produced 13 covers, 14 letters and a diary. P.W.5 told that the said diary was written by the accused and she is producing the same. Ex.P.4 is the mahazar. Exs.P.6 and 7 are the covers and letters produced by P.W.5. In the cross- examination, he has stated that, "it is true to suggest that my house is at a distance of 1 km from the office of CPI. When I was near my house, at that time, police called me to act as a panch witness. No written notice have been given to me to act as panch. The police have not obtained signature on Exs.P.5 to 7 for having seized the same.
61
43. P.W.20/C.W.41-H.L.Basavaraju, Junior Engineer, P.W.D, Chikmagalur, who prepared the sketch of the scene of offence as per Ex.P.15 has stated that, "On the southern side of the Akshara Dasoha building there is Spencer Road and there is a Jai Mithra Printing Press and also a beauty parlour. Both the shops are facing towards southern side." He has stated that Ex.P.15(a) is his signature. In the cross- examination, he has stated that "it is true to suggest that the Spencer Road is adjacent to the Akshara Dasoha compound. I do not know whether a person speaks in the room at Akshara Dasoha which is in the first floor is going to be heard at Spencer Road or not. In the Spencer Road, there is a LIC Office but I do not know the distance. It is true to suggest that it was the only office which was situated on that road."
44. P.W.21/C.W.42-B.C.Basavaraju, who is working as Chief Officer, TMC, Beluru, has stated that, "the Investigating Officer requested to issue khatha 62 extract of the building of Akshara Dasoha and Taluk Panchayath Office. Accordingly, on 22.02.2012 I gave the khatha extract of khata No.2523/2346. The same is marked as Ex.P.16 and Ex.P.16(a) is my signature."
45. P.W.22/C.W.34-Sikander Pasha, a building contractor, who is a witness to the motor bike seizure mahazar-Ex.P.14 has stated that, Ex.P.14(b) is his signature, he identified the motor bike bearing registration No.KA-44/H-2642 marked as M.O.9 and the mahazar was drawn between 10.15 to 10.45 am on 27.05.2013.
46. P.W.23/C.W.33-Mohan, a Mason, resident of Tippu Nagar, Chikmagalur, has stated that, "On 23.05.2013, myself and C.W.32 were called to the office of the CPI, there the accused was also present. The accused told that he will produce the knife which has been used for the purpose of commission of the offence and he will also produce the gold chain belonging to the 63 deceased. Thereafter accused led us to his house situated at Kalyana Nagar and from there the accused took us to Akshara Dasoha office where the deceased used to work. Thereafter, the accused led us to Thippenahalli, Bengaluru, where he lastly resided in the house of C.W.38-Gangamma, who has the tenant under one Chandrappa/C.W.37. Thereafter, accused entered a room and opened the Godrej Almirah and produced a sticker cutting knife by saying that it was the knife which was used for the purpose of commission of the offence. The said knife has been seized and sealed by putting it into a white cloth, marked as M.O.10. In the cross-examination, the witness has stated that "It is true to suggest that P.W.1 has come to the Court today. I am not acquainted with P.W.1. P.W.1 is also staying at Tippu Nagar. On 23.05.2013, police called me to act as a panch witness when I was in my house along with C.W.32. One of the PC came and called me and C.W.32 but I do not know his name. He came to call at about 9 or 9.30 am. It is true to suggest that the office of CPI is 64 about 1 or 1½ km from my room." He has further stated that "It is true to suggest that by the side of the office of the CPI there are shops and residential houses. In Bengaluru also by the side of the house of C.W.38/ Gangamma there are residential houses. I have not dictated the contents of Ex.P.20 (seizure mahazar of chain and knife). When we had been to the house of C.W.38 there are about 4 to 5 local persons also gathered. There were about 6 to 7 police constables present at that time. My statement has been recorded on 26.05.2013 and he has not been requested to sign the documents in the police station." He has further stated that, "It is false to suggest that I have not gone alongwith the accused to the house of C.W.38 and there the accused has not produced M.O.10 from the almirah and the same was not seized by drawing a mahazar as per Ex.P.20."
47. P.W.24/C.W.50-Zeenath, Scientific Officer, Forensic Science Laboratory, Bengaluru, has stated 65 that, "On 12.06.2013 I received the questioned documents and the signatures and standard documents in Crime No.253/2011 from CPI, Town Circle, through PC 205. The said documents were in four sealed covers and the seals were intact with specimen seal and tallied. When I opened the said four sealed covers, the first cover was containing one note book in which the questioned writings and signatures at page No.2 to 43 were asked. The said documents have been marked by the I.O as S1 and S1(1) to S1(46), S1(a) by me." He has further stated that "After comparison of the documents I have come to the opinion that the questioned documents and signatures marked as S1(1) to S1(46), S1(a) with that of standing writings and signatures S2 to S14, R1 to R8 and S2(a) to S14(a), R9 to R16 are all written by one and the same person. In the cross- examination, the witness has admitted that "It is true to suggest that FSL is attached to the police department. There is no such instrument to ascertain the age of the writings to say when the questioned document has been 66 written. It is true to suggest that in the document examined by me, the FSL seal has been put, but it is not containing the dates."
48. P.W.25/C.W.36-Chintamani Prasad, a Priest and business man from Gokarna has stated that, he is owner of New Prasad Lodge and also a Priest. He has stated that "During second week of January 2012, accused came to our lodge and stayed. The accused told that his wife-Lakshmi @ Nayana is dead and he wants to perform the last rituals by leaving the Tharpana. I performed the last rituals as per the request of the accused. The accused who is present before the Court is the same person who requested on that day and who went from our lodge." In the cross- examination, he has stated that, "Police have recorded my statement. Police came about four months back along with accused and at that time, they recorded my statement. It is true to suggest that I have not stated before the police when police came at that time the 67 ledgers have been sent for the purpose of assessing the tax and I have not given the extract of the same and they also recorded the videograph.
49. P.W.26/C.W.48-Imran Khan, who is P.C.414, Traffic Police Station, Chikmagaluru, has stated that when he was on traffic duty near Syndicate Bank Circle at I.G. Road at about 10.30 am, the Manger of SBM called him and told that the accused of Nayana's murder has come to the bank to withdraw the amount. Immediately, he informed the office of CPI, Town Circle, and CW-51 along with his staff came to SBM and apprehended the accused. In the cross-examination, he has stated that "It is true to suggest that the entrustment of duty will be assigned in the police station in the morning to each of the constables. It is true to suggest that I have not stated in my statement before the police that the accused has come to the bank to withdraw the deposited amount."
68
50. P.W.27/C.W.3-Jayakumar who is the Editor of Jayamithra Daily Newspaper, Chikmagalur, has stated that "I know the accused who is present before the Court. He was working in Keonics Yuva.com. I know deceased Nayana. She was working in Akshara Dasoha. I have seen P.W.1 and 16. I know P.W.2, 3, 4 and C.W.8, they were working in Taluk Panchayath. I am editor of Jayamithra Daily local newspaper. My office is situated in Spencer Road which is also called as LIC Road. My office is situated in the premises of the Taluk Panchayath building. One cannot come to my office from Taluk Panchayat office directly, but one has to take a round from the gate from Belur road and thereafter, by coming to LIC Road they have to enter my compound. Everyday I used to go to my office at about 10 am and depending upon the work, I will be there in the office upto 8 pm. He has further stated that, "on 31.12.2011 at about 12 noon some persons by jumping the compound of Taluk Panchayath office which is by the side of my 69 office came to Spencer Road. By the side of the compound there is a staircase leading to Akshara Dasoha office. When I sit in my office which is covered with glass who are moving in the road is visible. At about 2 pm, I saw the accused jumping the compound of Taluk Panchayat to go to Spencer Road. After jumping from the compound took a bag which he had kept on the compound at the time of jumping and thereafter, he saw back and he was in afraiding mood. As I was acquainted with him I noticed the said fact. Thereafter, accused ran towards Belur Road. At that time accused was wearing a red colour jerkin and a pant. After half an hour, I heard a screaming voice from the office of Akshara Dasoha. I immediately went and peeped by crossing the compound. Then I saw P.W.2 was making hue and cry and was weeping. Then I asked what was the matter. He told that somebody has slit the neck of the computer operator who was working in Akshara Dasoha. Immediately after hearing the said news, I also jumped the compound and went to the 70 office of Akshara Dasoha and saw the deceased who was sitting in the chair and the head was slightly bent and the blood was coming from the neck. Immediately I told P.W.2 to phone to police and I also phoned to the police to inform the same. Thereafter police came. Subsequently I also saw P.W.1 and other staff and they took the deceased to the hospital. I also went to the hospital and there I came to know that the said girl died because of the injuries. In the cross-examination, the said witness has stated that, "It is true to suggest that immediately after receipt of the phone, police came to the spot. At that time, the police have not recorded my statement. It is true to suggest that till the police came I was there and thereafter I came down. Police came to the place of incident after 20 minutes after I called over the phone." He has further stated that, "I do not remember whether I have stated before the police that if I sit in my office through glass I can see the persons by jumping the compound going to Spencer Road. I also do not remember whether I have stated before the police 71 that after jumping the compound the accused took the bag and ran towards Belur Road. P.W.2 might have told to me when I asked that somebody has slit the neck of the deceased at about 2 pm or so. I do not remember whether I have stated before the police that I phoned to the police about giving information." He further stated that, "It is false to suggest that I have not stated before the police that the person who jumped the compound is accused/Subramanya. If any loud hue and cry, if it is made in the office of the Akshara Dasoha then only it will be heard to Spencer Road otherwise not. It may be true that the compound wall of Taluk Panchayath is about 7 ft. It is false to suggest that on the said compound there is a barbed wire. I do not know the father of the accused and how much he has studied. I am not having any personal relation with the accused. I am coming to the Court for giving evidence for first time. It is false to suggest that I am deposing falsely without seeing anything only to help the police." 72
51. P.W.28/C.W.20-Gajanana Raikar, working as Accountant in Software Solutions, has stated that, "In the year 2006, I joined the Keonics.Yuva.com as a Teacher. Accused was also taking some basic classes to the students. The deceased joined for computer studies prior to two months when I left the job. At that time, the accused and the deceased were casual like any other students. After leaving Keonics Yuva.com I was having phone contact with the accused. I obtained some loan from the accused in that context also he used to contact. I have returned the amount to the sister of the accused/P.W.10 for some time and I have also paid some amount to the accused. When police enquired me at that time they showed a letter and cover written by the accused. The cover is marked as Ex.P.6(h) and letter is marked as Ex.P.7(h)" The witness identified the writings found on Ex.P.6 as that of the accused. The said writing was marked as Ex.P.6(h)(i). The witness admits that letter marked as Ex.P.7(h)was addressed to him. In the cross-examination the witness admitted 73 that, "I have not received any letters through post written by the accused. Personally I am not having any acquaintance about the personal life of the accused, but I know that he was married. I also never used to tell any of my personal problem to the accused. I do not remember whether any photographs were taken by the police when they saw Ex.P.6(h) and 7(h).
52. P.W.29/C.W.18-Ramesh, an agriculturist, has stated that, "I know the accused, he is my mother's brother's son. I do not know P.W.11, the father of the wife of the accused." A cover and a letter shown to the witness was identified by the witness and he identified that the address mentioned on the cover was that of his address. The same was marked as Ex.P.6(i). The witness has stated that he does not know the hand writing found on Ex.P.6(i). The letter shown to the witness was marked as Ex.P.7(i).
74
53. P.W.30/C.W.37-Chandrappa, who is an agriculturist and running floor mill has stated that he had given his three houses on rent and one house was given to C.W.38-P.W.36 Gangamma on rent for Rs.750/-. He has stated that, "When I asked C.W.38- P.W.36 why she told his name as Kiran, she told that she has given the protection and she is intending to marry him. When police brought the accused at that time, C.W.38-P.W.36 told that he has murdered the deceased. In the cross-examination, the witness has stated that, "It is true to state that I have not stated before the police that C.W.38-P.W.36 told that in her house one Kiran is there and she has given protection to him and intending to marry him. There was no agreement between me and C.W.38-P.W.36 for the house rent." Witness volunteers that he has seen him in TV as well as when police brought him. Police showed the accused when he was brought by apprehending.
75
54.P.W.31/C.W.44-Dr.R.H.Naik, Senior Specialist, M.G. Hospital, who conducted post mortem on the body of the deceased on the requisition through P.C.269 of Town Police Station has stated that, "I conducted the postmortem from 7.10 pm to 9 pm. When I examined the dead body, the rigor mortis was started to set in, in the upper part of the body and upper extremities and that he found four injuries on the body of the deceased. In the cross-examination, the witness has stated that, "All the three injuries which I have mentioned are different in nature. It is false to suggest that the said three injuries are going to be caused with three different types of weapons. It is true to suggest that I have not mentioned the cause of injury No.4 in my postmortem report Ex.P.25. In my opinion/Ex.P.26 by referring the post mortem report I have given my opinion. I am of the opinion that the death is due to haemorragic shock and aspiration as a result of injury to large vessel in the neck."
76
55. P.W.32/C.W.40-Shylaja Vijayakumar, Manager, SBM, I.G.Road, Chikmagaluru, has stated that, "On 02.01.2012, the I.O. gave a requisition to freeze the S.B. account of the accused-Subramanya. Again on 09.05.2012, another requisition was given by the I.O. to freeze the Term Deposit standing in the name of the accused. As per the requisition both the accounts standing in the name of the accused were freezed. On 22.05.2013, the accused appeared in the bank and requested by giving the FD receipt to close the Term Deposit and for making the payment by crediting to his SB account. When I sent the FD receipt to the concerned section the concerned clerk brought it to me for the purpose of approval. At that time, I noticed that the said Term Deposit account has been freezed. As per the instructions earlier given to me by the Investigating Officer immediately, I phoned to the Investigating Officer but the said phone I received it is not reachable. Immediately, I sent one of my staff to call the police who will be there near the circle of Syndicate Bank. 77 Accordingly, P.W.26 who was on traffic duty came to me. I intimated him that the accounts of the said person have been freezed and I am unable to contact the Investigating Officer. In turn he told that he will inform the police. At that time, the accused was waiting outside the bank premises. Within ten minutes, some other police also came and apprehended the accused.
56. P.W.33/C.W.47-Sathish.B.S., the Station House Officer who registered FIR in Crime No.253/2011 as per Ex.P.29, who has stated the effort made to trace the accused and subsequently handed over the investigation to C.W.49-I.O.
57. P.W.34/C.W.52-Kiran, who is doing canteen business in Chikmagaluru, has stated that, on 22.05.2013, himself and C.W.53 were called by the police to SBM, I.G.Road Branch at about 11 am. They also told that they want to search a black bag, which was with him. He can identify the said bag and its 78 contents. M.Os.12 to 24 were marked. Signature was marked as Ex.P.30(a).
58. P.W.35/C.W.51-Nagaraj Annegowda, DCIB Inspector, Incharge investigating officer has stated that he received information from P.W.32-Bank Manager that accused came to bank to draw the amount. P.W.35 apprehended the accused in the bank which is a public place. He has stated that, a portion of the voluntary statement of the accused is marked as Ex.P.31. In his cross-examination, the witness has stated that, "In between 11 to 12 am, I might have intimated to the relatives of the accused about his apprehension. I intimated the arrest of the accused to P.W.11 who was in town at that time. It is false to suggest that the accused has not given voluntary statement as per Ex.P.32. On the night of 22.05.2013, I handed over the further investigation to C.W.49. It is false to suggest that P.W.26 has not informed over phone that the 79 accused is there in SBM, I.G.Road Branch and there, the accused was apprehended.
59. P.W.36/C.W.38-Gangamma, has stated that, "About one year back, accused was introduced by my friend and he stayed for about 5 to 6 months in my house. Accused has not told anything to me while staying. Accused used to go from my house from 7 am and used to come in the evening. When accused stayed in my house he told his name as Kiran. After police brought accused we came to know his name as Subramanya @ Subbu. In the cross-examination, the witness has stated that, "I was not knowing where the accused was working at that time when he was staying in my house. It is false to suggest that accused was not staying and at the instance of police I am deposing falsely. It is true to suggest that my native place is Gubbi. It is false to suggest that I am working at Gubbi."
80
60. P.W.37/C.W.49-C.Madhusudhan, CPI, the investigating officer has stated that he recovered M.O.1- Gold chain, M.O.10-sticker cutter knife at the instance of the accused. He has stated that Ex.P.20 is the seizure mahazar and P.W.20 is the panch witness. In his cross-examination, the witness has stated that on 30.07.2012 he completed the investigation and as the accused was not apprehended, he mentioned that the accused is absconding and submitted the charge sheet. On 22.05.2013, P.W.35-station incharge officer apprehended the accused, enquired him, recorded voluntary statement of the accused and produced him before the Court. He has further stated that, the computer print out containing the call details of the mobile No.918277372405 between 01.12.2011 to 04.01.2012 has been marked as Ex.P.36 which shows that on 31.12.2011 P.W.8-Pavithra has called the complainant. It contains the phone numbers pertaining to P.W.1 and 8. In the cross-examination, the witness has stated that, the call details register produced by 81 him depicts that the complainant's phone is within the tower limits of Siddeshwara village. Ex.P.36 depicts that the mobile calls of the complainant are found in Halaguru, Mudabidre and Mangaluru. Ex.P.36, depicts that on 31.12.2011, two times, i.e., at 2.30 pm and 3.02 pm, the complainant has called the wife of the accused. At that time, the phone of the complainant is found in Siddeshwara tower." The witness has further stated that he does not know from where and from whom the complainant and the wife of the accused have purchased the mobile phone. He has not made detailed enquiry with regard to Ex.P.36. It is false to suggest that Ex.P.36 is a false document created for the purpose of this case. He has further stated that, "It is true to suggest that the contents of the call details will be in order. It is true to suggest that the call register Ex.P.36 produced by me in this case does not contain the call details pertaining to the date 03.01.2012." He has further stated that, in Ex.P.36, the IMEI numbers pertaining to the dates 01.01.2012, 02.01.2012 and 82 04.01.2012 are not forthcoming. So also, the IMEI number pertaining to 31.01.2012 are not visible. He has stated that after getting Ex.P.36, he has not enquired with the complainant or the person who gave the information about the contents of Ex.P.36.
VII - Consideration
61. On careful perusal of the aforesaid evidences adduced on behalf of the prosecution witnesses and documents relied upon, it clearly depicts that the learned Sessions Judge has taken only a portion of the evidence of the prosecution witnesses which are in favour of the prosecution case and proceeded to convict the accused imposing sentence for life imprisonment for the offence punishable under the provisions of Section 302 of IPC. The learned Sessions Judge has sidetracked the evidence of the prosecution witnesses which were in favour of the accused, which is impermissible. The prosecution has mainly relied upon the evidence of P.Ws.1, 2, 13, 16 and 27 wherein they 83 do not disclose the presence of the accused on the date of the incident alleged to have been taken place on 31.12.2011 at 2.30 p.m. at Akshara Dashoha Office wherein the deceased was working. The evidence of P.W.1 - the mother of the deceased is that on receipt of the information over the phone from P.W.8-Pavithra- the wife of the accused that the accused had quarreled with her ( P.W.8) and has gone saying that he is going to kill the deceased, P.Ws.1 and 16 - mother and brother of the deceased, went to the office of Akshara Dashoha where the deceased was working at about 2.45 p.m. She has further stated the prior to six months of the incidence, after she came to know that the accused was teasing and forcing her daughter to love even though he had already got married, she called the accused to their house and herself (P.W.1) and her husband, C.W.24- P.W.16 had advised him and at that time, the accused had told that he would see her. Though the accused had threatened the deceased as well as the family members of the deceased, admittedly, they have not 84 lodged any police complaint against the accused which is admitted by P.W.1 in her cross-examination even after coming to know that the accused was forcing her daughter to love and marry him. P.W.1 had also not informed about the said fact to C.W.6 - P.W.8 - wife of the accused. Even in her evidence, she has not pin pointed the presence of the accused at the spot and that the accused has murdered the deceased.
62. P.W.2, who was working in Akshara Dashoha attached to Zilla Panchayath as First Division Assistant has stated that he, C.W.9 -P.W.3 and the deceased were the only three persons, who were working in Akshara Dashoha Officer and all were having the office key with them. Either in the examination-in-chief or in the cross-examination, he has not whispered the presence of the accused at the spot. He has only stated that when he went back to the office after finishing his lunch at about 2.30 p.m. or 2.45 p.m., he saw the deceased sitting on the chair and her head had fallen on the left 85 side and it appeared that her neck had been slit. It is his further evidence that somebody had slit her neck. P.W.3, who was working as Assistant Director in Taluk Panchayath has also deposed that only deceased, P.Ws.2 and 3 were the only persons who were there in the office and has not stated anything about the presence of the accused at the time of occurrence in the spot. P.W.4 - C.W.7 - Sharadamma, who was working as Second Division Assistant in Taluk Panchayath Office has stated that on 31.12.2011 after the lunch at about 2.35 p.m., she came to her office and at that time, P.W.2 came by raising hue and cry and saying that somebody had slit the neck of the computer operator- Nayana and thereafter, the police, P.Ws.1 and 16 and other public gathered there. When confronted in her cross-examination as to whether she had stated before the police that the accused used to attend the computer problems if it was reported to Keonics Yuva.com, she has admitted the same. P.W.5 - C.W.6 - Smt. C.N. Komala Naik, the friend of the deceased has stated 86 about the diary and letters and also about the love between the accused and deceased. She has neither stated about the presence of the accused at the spot on the date of occurrence nor involvement of the accused in the murder of the deceased.
63. P.W.8-C.W.5 - Pavithra, wife of the accused in categorical terms has stated that she was not having any mobile and she does not know the mobile number of the deceased as well as P.W.1 and she is not aware of the relationship between the deceased and accused. She has further stated that the police have not recorded her statement. In her cross-examination, she has denied the suggestion that she was having a mobile bearing number 8277373085. She has also denied the suggestion that the accused while quarrelling with her had told that the deceased was not heeding to his request and refusing to love and marry and on that day, he would not leave and would finish her, and by saying so, he went away. She has further deposed that since 87 from the date of the incident, the accused was there along with her in her house at Kalyana Nagar and from there, the police have apprehended and taken the accused.
64. The learned Sessions Judge, mainly relying upon the alleged eye witness - P.W.13, who has deposed that when he was having coffee in the canteen at about 1.30 or 1.45 p.m., he saw the accused there moving around. One of his friend by name Prathap had told him that he would come to Akshara Dashoha office and thereafter, they can go to Belur. So he went to the office of Akshara Dashoha office at about 2. 00 p.m. and there he saw the deceased sitting in front of the computer on a chair and the accused was talking with her by standing behind her. When he was near the door of the office of Akshara Dashoha, he saw the accused removing the knife and piercing into the neck of Nayana. The blood had started oozing and the head fell to the left side. He has further deposed that at the time 88 of the alleged incidence, the accused was wearing red jerkin and due to fear, he waited till his friend came and thereafter they went to Belur. Subsequently, he came to know the death of Nayana from the TV Channel. Due to fear, he had not told the said fact to anybody. Subsequently, he came to know that the accused had committed the murder of the deceased as she was in love with him earlier and after coming to know that the accused was married, she refused to love and marry him. As such the accused had committed the said offence. But very strangely in the cross-examination, it is his version that after seeing the incident, he along with Prathap had the coffee and thereafter after half an hour, they went to his village. On careful reading of the evidence of P.W.13 both examination-in-chief as well as cross-examination, it clearly depicts that he has not seen the accused moving around. If he had really seen the accused, what prevented him to inform either his friend Prathap or to the local police and at that time, the presence of P.Ws.1, 2, 16 and 27 is not forthcoming. 89 P.W.13 has admitted in his cross-examination that the Taluk Office and the Office of Akshara Dashoha are in different building and he has not identified M.O.10 - sticker cutting knife. The distance between the office of Akshara Dashoha and the office of the insurance may be about 300 feet. He might have talked about 5 minutes and after meeting Prathap, he went back to Vasthare in the car of the said Prathap, but later in the cross-examination he has given his version that after meeting Prathap, he went to Vasthare in a bus, which is contrary to his own statement earlier made. Further he has stated that he had told the said Prathap what he had seen in the office of Akshara Dashoha, but unfortunately, the said Prathap has not been examined by the prosecution. It is well known that no prudent citizen of the State after witnessing the ghastly incident as alleged would have coffee with his friend Prathap and thereafter, after half an hour, would go to their village which clearly indicates that he is not an eye witness to the incident, but a planted witness by the prosecution 90 at the instance of P.Ws.1 and 16. Therefore, the testimony of P.W.13, who is called as eye witness to the prosecution case cannot be relied upon since he has given two different versions which are contrary to each other and his presence at the scene of offence cannot be relied and also he is not complainant to the incident. In view of the fact that there is inconsistency in the statements given by P.W.13, his evidence has to be discarded as it is not trustworthy to be relied upon. Admittedly the statement of P.W.13 was recorded under the provisions of Section 161 Cr.P.C. by P.W.37 only on 25.1.2012 after a lapse of 25 days from the date of the incident and till then, there was no reference either in the investigation by the Investigating Officer or in the FIR that he was an eye witness to the incident. Therefore, he is a planted witness by the prosecution. None of the prosecution witnesses, particularly P.Ws.1, 2, 3, 4, 15, 16, 17 and 27 in their evidence have stated about the presence of P.W.13 - the alleged eye witness on the date and at the time of the incident. On that 91 ground also the impugned judgment and order of conviction is liable to be set aside.
65. If we consider the evidence of P.Ws.1 and 16, who are mother and brother of the deceased, their earliest version is that about six months prior to the incidence, when they came to know that the accused was teasing and forcing the deceased Nayana to love and marry him, even though he had already got married and when P.W.1 and her husband, C.W.24-P.W.16 had advised him, at that time, the accused had told them that he would see the deceased. As already stated above, in the cross-examination, both P.Ws.1 and 16 have categorically admitted that they have not lodged any police complaint to that effect. It is also not in dispute that both P.Ws.1 and 16 - mother and brother of the deceased when confronted whether they knew that deceased used to love Udupi Ramachandra, both answer that they do not know. P.W.16 has admitted that he knew the culprit who committed the murder of 92 the deceased. Very strangely the said Udupi Ramachandra has not been examined by the prosecution to disprove the said fact. For want of cogent and convincing evidence about the presence of the accused at the scene of crime and his participation in assaulting the deceased, in our view, the prosecution has failed to prove its case beyond all reasonable doubt.
66. It is well settled that when a particular evidence or documents is considered by the learned judge, it should be considered in toto and not a particular portion. Admittedly, in the present case, the learned Sessions Judge as stated supra has taken a portion which is favourable to the prosecution case, ignoring the inconsistencies in the evidence of the witnesses favouring the accused and thereby the learned Sessions Judge has proceeded to convict the accused by imposing sentence for life only on assumptions and presumption without any basis. 93
67. The learned Sessions Judge while recording the statement of the accused under the provisions of Section 313 Cr.P.C., had asked him to explain the incriminating circumstances put to him which are found in the evidence of the prosecution witnesses, the accused except denying in toto, has not offered any explanation to the said incriminating circumstances. The learned Sessions Judge has failed to notice that it is the legal obligation and mandatory for the learned trial Judge to put to the accused every such piece of evidence which appears incriminating against him and reply of the accused shall be sought thereto to establish a direct dialogue between the Court and the accused and grant him an opportunity to answer and explain all incriminating evidence against him, in view of the dictum of the Hon'ble Apex Court in the case of Sanatan Naskar and Another -vs- State of West Bengal reported in (2010) 8 SCC 249. Admittedly in the present case, though number of questions were put to the accused under Section 313 Cr.P.C., statement, he 94 has denied all of them and has stated that he was working in the office of Keonics Yuva.com and has further admitted he was holding his mobile and ultimately, he has stated that he had nothing more to say and has nothing to do with the present case and the prosecution has filed a false case against him. The said explanation offered by the accused has not been considered by the learned Sessions Judge. The accused was arrested on 22.5.2013 which is more than one and a half years at the Syndicate Bank Cirlcle at I.G. Road, which is a public place on the basis of the information of P.W.32 - Shylaja Vijayakumar- SBM Bank Manager. No question was put to the accused while recording the statement under Section 313 of Cr.P.C. in that regard. On that ground also the impugned judgment and order of conviction passed by the trial Court is liable to be set aside.
68. The material on record clearly depicts that the prosecution has neither produced the Medico Legal 95 Case (MLC) register to prove that the deceased had taken the treatment at M.G. Hospital nor the doctors, who treated the deceased have been examined and therefore, an adverse inference has to be drawn against the case of the prosecution. According to the evidence of P.W.1, she had received the phone call at 2.30 p.m. on the date of the incident from P.W.8 which has neither been proved nor any material document is produced including the call details between P.W.1 and P.W.8, and P.W.1 and the deceased. Hence, the very complaint-Ex.P.1 against the accused by P.W.1 based on the information of P.W.8, falsifies the case of the prosecution. It is also not in dispute that P.W.31 - Doctor, who conducted the post-mortem on the dead body of the deceased has opined that the use of M.O.10 is possible, which is in the nature of advisory, cannot be relied upon as no blood stain was detected on M.O.10 on reference of the said material object to the Forensic Science Laboratory (FSL). Admittedly, no independent witness has been examined from the locality with 96 reference to seizure of M.O.10 - Knife and there is no whisper in the FIR and in the inquest report - Ex.P.9 that M.O.1 and M.O.10 were recovered after a lapse of one year which loose significance of evidence. The Akshara Dashoha Office is situated at First Floor behind the Taluk Panchayath Office as admitted by P.W.13 and Ex.P.33 - sketch pertains to Akshara Dashoha Office as stated by P.W.20 - Junior Engineer of P.W.D. P.W.13 and his friend - Prathap are in no way concerned to the Akshara Dashoha Office where the deceased was working. On the aforesaid reasons also, the impugned judgment and order of conviction is liable to be set aside.
69. In a case of circumstantial evidence, motive assumes great significance and importance, for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place of proof. 97 However, the evidence regarding existence of motive which operates in the mind of an assassin is very often, not within the reach of others. The said motive, may not even be known to the victim of the crime. The motive may be known to the assassin and no one else may know what gave birth to such evil thought, in the mind of the assassin. In a case of circumstantial evidence, the evidence indicating the guilt of the accused becomes untrustworthy and unreliable, because most often it is only the perpetrator of the crime alone, who has knowledge of the circumstances that prompted him to adopt a certain course of action, leading to the commission of the crime.
70. Admittedly in the present case, no evidence or material is forthcoming where the evidence is of a circumstantial evidence to link the accused to the incident that occurred as there is no eye witness to find to the incident. Therefore, it is necessary to find out whether the circumstances on which the prosecution 98 relies are capable of supporting the sole inference that the appellant is guilty of the crime of which he is charged. The circumstances, in the first place, have to be established by the prosecution by clear and cogent evidence and those circumstances must not be consistent with the innocence of the accused. For determining whether the circumstances established on the evidence raise but one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstances considered in isolation and divorced from the context of the over all picture emerging from a consideration of the diverse circumstances and their conjoint effect may by themselves appear innocuous. Admittedly in the present case, the circumstantial evidence of P.Ws.13 and 27 have been relied by the learned Sessions Judge, but the prosecution has failed to establish by a clear and cogent evidence and the circumstances involved to implicate the accused in the crime.
99
71. With regard to the time of incident, on careful reading of the evidence of P.W.13, who is the alleged eye-witness and P.W.27, who is the Editor of Jayamithra Daily Local Newspaper, it clearly indicates that he has deposed that some persons by jumping the compound of Taluk Panchayath Office which is by the side of his office had to the Spencer Road and he was in his office which is covered with glass in which it was visible, who are moving on the road. At about 2.00 p.m., he saw the accused jumping the compound of Taluk Panchayath to go to Spencer Road whereas P.W.13 has deposed that the incident occurred at about 2.00 p.m., P.W.2 has deposed that the incident had occurred in between 2.35 and 2.40 p.m. P.W.27 has not stated about the crime and the presence of the accused at the office of the Akshara Dashoha Office on the date of the incident. Therefore, there are variances and inconsistencies in the evidence of P.Ws., 13 and
27. It is the version of P.W.27 that he is not aware of the father of the accused and how much the accused 100 has studied. So also he does not have any personal relationship with the accused. On careful scrutiny of the evidences of P.W.1, 2, 13, 16 and 27, clearly militate against such a conclusion. Thus even if the charges are read along with consistent statement of the accused, it would not in any manner improve the intrinsic value of the evidence led by the prosecution. Suspicion no matter how strong cannot take the place of legal proof.
72. A careful perusal of the complaint - Ex.P.1 lodged by P.W.1, it is complained that the accused was having one sided love with her daughter and in that context about six months prior to the incident, the accused was called by herself and her husband and son
- P.W.16 for advise and therefore on 31.12.2011 on the information given by the wife of the accused - P.W.8 - Pavithra at about 2.15 p.m. that the accused had quarreled with her and stating that he would kill Nayana (daughter of P.W.1) and went away. So when they went to the spot at about 2.45 p.m. they saw that 101 the deceased - her daughter was sitting on the chair and her neck was slit by somebody and thereafter they took her to the hospital. Subsequently, they lodged a complaint written by P.W.17 - Jai Jagadish, which clearly falsifies the version given by P.W.8 - wife of the accused that she was not knowing either P.W.1 or the deceased - Nayana and she never had mobile bearing number 8277373085 and she did not knew the mobile number of the deceased or that of P.W.1. Though Ex.P.36 - the Call Details Register produced by the prosecution, does not depict that mobile No.8277373085 registered in the name of P.W.8, admittedly the authority who has issued Ex.P.36 has not been examined and P.W.37 - the investigating officer has stated that he had not made detailed enquiry with regard to Ex.P.36. During the course of arguments, though an attempt was made by the learned HCGP to the effect that mobile bearing registration number 8277373085 belongs to the brother of P.W.8 - Pavithra, admittedly the brother of P.W.8, - 102 Devaraju H.E. has neither been examined nor any material document is produced. When he has not been examined by the prosecution and there is no pleading or evidence in the entire prosecution, how that mobile was handed over to P.W.8 is not forthcoming. Since P.W.8 has denied that she was having any mobile of such number both in the examination-in-chief and cross- examination, the contention of the learned HCGP about ownership of the mobile number 8277373085 belongs to P.W.8 cannot be accepted.
73. The learned Sessions Judge while considering the evidence adduced by the prosecution witnesses at paragraph-100 of the judgment has recorded that it is true there are some minor contradictions regarding the timings. The eye witness P.W.13 Naveen Kumar has stated in his examination-in-chief that he had seen the accused at about 2.00 p.m. removing the knife and piercing into the neck of Nayana. He has further stated in the cross-examination, that on the day about 25. 30 103 people were moving around in the Taluk Office and before arrival of the Police, he went to Akshara Dashoha Office to meet his friend Prathap. P.W.13 in the cross- examination has deposed that he has not stated before the Police that he had come to Taluk Office to take record of rights of Sy.No.722. Pointing out the discrepancy and minor contradiction found in the evidence of P.W.13, it is canvassed that the evidence of P.W.13 cannot be believed as that of eye witness. The learned Sessions Judge ignoring the inconsistencies and contradictions in the statement of P.W.13, both in examination-in-chief and cross-examination has erroneously proceeded to accept the evidence of P.W.13 stating that P.W.13 has withstood the test of cross- examination and even in the cross-examination his evidence regarding identification of the accused is not dislodged.
74. The learned Sessions Judge ignoring both oral and documentary evidence has recorded a finding at 104 paragraph-109 that no enmity or ill-will has been alleged or proved against the witnesses, who have supported the prosecution case and investigating officer. Under these circumstances, there is no reason for the prosecution witnesses to depose falsely against the accused or for the investigating officer to falsely implicate the accused in this case. Except making a vague suggestion to the investigating officer that the accused has been falsely implicated, no evidence is placed by the defence to show that the accused is falsely implicated for any reason. Accordingly, the burden is on the accused to prove that it is Udupi Ramachandra, who has committed murder of Nayana. Further at paragraph-111, observing that it is true that defence of the accused need not be proved in a criminal trial, erroneously held that, it is necessary the accused should place evidence showing the circumstances creating doubt regarding his involvement in the commission of crime. No such evidence was placed on 105 record. Therefore, the defence of the accused in that regard was not considered.
75. On meticulous examination of evidence on record, it is clear from the evidence of P.Ws.1, 2, 3, 4, 13, 16 and 27 that there are so many omissions and contradictions in the evidence of prosecution witnesses, that the entire fabric of the prosecution case appears to be ridden with gaping holes. It is true that due to passage of time, witnesses do deviate from their police statements as their memory fades to some extent. Reasonable allowance can be made for such discrepancies. But when such discrepancies make the foundation of the prosecution case shaky, the court has to take strict note thereof. On thorough reading of the aforesaid evidences of the prosecution witnesses, the discrepancies are located and the witnesses have discredited themselves. "It is well settled that there is no embargo on the Appellate Court reviewing the evidence upon which an order of conviction is based. The golden 106 thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent."
76. The entire case of the prosecution to implicate the accused is only based on the circumstantial evidence and on the basis of the evidence adduced and documents produced on behalf of the prosecution. The glaring discrepancies in the evidence of P.W.13, who is an eye witness, does not appear to be credible. A number of inconsistencies between his statement to the police under Section 161 Cr.P.C. and his evidence were thrown up in the cross-examination. The contradictions 107 between his evidence and the evidence of the investigating officer make interesting reading. For every inconsistency between his police statement and his evidence in the Court shrouded in mystery. So much for the gaping holes in the prosecution story based on the eye witness account. Doubts arising from the eye witness accounts left too many question marks and too many unexplained circumstances, which contraindicated their acceptance without corroboration. Corroboration was available in the form of a documents, which was not deliberately placed on record by the prosecution.
77. After careful examination of the charge of murder against the accused should show beyond the shadow of reasonable doubt, the shadows are dark enough to eclipse the truth. The learned Sessions Judge has ignored a number of reasonable doubts which legitimately arose on the evidence led by the prosecution and its conduct in suppressing the vital 108 documents and witnesses which clearly indicate that the prosecution has not proved the guilt of the accused beyond all reasonable doubt. Non-explanation of time gap between the incident and the lodging of complaint and non-production of documents including the register of Medico Legal Case by the concerned doctor and Ex.P.1 -complaint lodged after the delay of five hours, are fatal to the case of the prosecution under the provisions of Section 157 of Cr.P.C.
78. The Hon'ble Supreme Court in the case of State of Andhra Pradesh -vs- Punati Ramulu and Others reported in 1994 Supp (1) SCC 590 while considering the provisions of Sections 154 and 162 of Cr.P.C. at paragraphs 5 and 6 has held as under:
"5. According to the evidence of PW 22, Circle Inspector, he had received information of the incident from police constable No. 1278, who was on 'bandobast' duty. On receiving the. information of the occurrence, PW 22 left for the village of occurrence and started 109 the investigation in the case. Before proceeding to the village to take up the investigation, it is conceded by PW 22 in his evidence, that he made no entry in the daily diary or record in the general diary about the information that had been given to him by constable 1278, who was the first person to give information to him on the basis of which he had proceeded to the spot and taken up the investigation in hand. It was only when PW 1 returned from the police station along with the written complaint to the village that the same was registered by the circle inspector, PW 22, during the investigation of the case at about 12.30 Noon, as the F.I.R., Ex. P-1. In our opinion, the complaint, Ex. P-1, could not be treated as the F.I.R. in the case as it certainly would be a statement made during the investigation of a case and hit by Section 162, Cr.P.C. As a matter of fact the High Court recorded a categorical finding to the effect that Ex. P-1 had not been prepared at Narasaraopet and that it had "been brought into existence at Pamidipadu itself, after due deliberation". Once we find that the investigating officer has 110 deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stooped to fabricate evidence and create false clues. Though we agree that mere relationship of the witnesses PW 3 and PW 4, the children of the deceased or of PW 1 and PW 2 who are also related to the deceased, by itself is not enough to discard their testimony and that the relationship or the partisan nature of the evidence only puts the Court on its guard to scrutinise the evidence more carefully, we find that in this case when the bona fides of the investigation has been successfully assailed, it would not be safe to rely upon the testimony of these witnesses either in the absence of strong corroborative evidence of a clinching 111 nature, which is found wanting in this case.
6. Keeping in view these circumstances and being of the opinion that the findings recorded by the High Court while acquitting A-1 to A-3 and A-6 to A-8 are borne out by the evidence and are otherwise also reasonable and sound, we do not find any justification to interfere with the order of acquittal. Consequently the State appeal fails and is dismissed. The respondents are on bail. Their bonds shall stand discharged.
79. The Apex Court in the case of Meharaj Singh
-vs- State of Uttar Pradesh reported in (1994)5 SCC 188 while considering the provisions of Sections 154, 157 and 174 Cr.P.C., at paragraph 12 has held as under:
12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon 112 prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story.
With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory 113 explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report.
The absence of those details is indicative of the fact that the
prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been 114 'ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8.
80. It is also not in dispute that seizure of material objects M.Os.1 and 10 under the mahazar Ex.P.20 is not proved and admittedly, the panch witness
- P.W.23 to the said seizure mahazar is from chickmagaluru. No neighbour from Thippanahalli, Yashavanthapura, Bangalore is examined to prove the recovery of M.Os.1 and 10, gold chain and sticker cutting knife and in the complaint Ex.P.1, there is no reference to gold chain M.O.1, but there is an improvement in the evidence of P.W.1 by deposing that as she was in shock, she did not observe whether M.O.1 was present or not on the neck of the deceased. Therefore, with regard to the alleged seizure mahazar- Ex.P.20 when confronted to the accused, he has told they were kept in the almirah, which were seized, at his instance, cannot be believed and the same cannot be relied upon.
115
81. If the materials objects were seized in the house of the accused at Thippanahalli, Bangalore, no natural independent witness from the said locality has been examined. Therefore, the recovery of M.O.10 cannot be believed as held by the Hon'ble Supreme Court in the case of State of U.P. v. Arun Kumar Gupta reported in 2003 (1) SCC (Crl.) 481 wherein at paragraphs-16 and 17 which reads as under:
"16. In this regard, the prosecution relies on the evidence of PW 4. We have earlier noticed that PW 4 is not a resident in the immediate proximity of the house of the respondent. He belongs to the same biradari of the complainant and lives behind the house of the investigating officer, PW 9. We find no reasonable explanation, why such a person was called to be a witness to the recovery when there were any number of people available and who are residents of the houses in the immediate proximity of the house of the respondent. We also notice from the 116 records that a large number of people were present at the time of the recovery, therefore, the prosecution should have come forward with some explanation, why PW 4 was so selectively chosen to be the witness for the recoveries. We also notice, though the preparation of memos of the recoveries took a long time, still for all the recoveries PW 4 is a common witness. There is also considerable discrepancy in regard to the manner in which PW 4 came to be a witness to the recoveries. From the evidence on record, it is seen that at one place it is stated that PW 4 had come to the house of the respondent on hearing the commotion that took place because of the breaking open of the lock of the house. At another place, we find that the IO, PW 9 had summoned PW 4 from his house to be a witness for the recovery. This discrepancy also adds to the doubt in regard to the evidence of PW 4. Therefore, in our opinion as held by the High Court, it is not safe to rely on the evidence of this witness. PWs 7 and 9 who were police officers are also 117 witnesses, who speak about the recoveries made from the house of the respondent. PW 9 at one point says that all the recoveries in question were made by him and he left the house of the respondent around 11.00 or 11.30 p.m. in the night of 28-5-1988, while PW 7, who was also present at that point of time says that PW 9 was there throughout the night of 28-5-1988 till the morning of 29-5-1988 when the recoveries were completed. Thus we find a material contradiction in the evidence of these two witnesses. From the records, we see that the recoveries of the bloodstained knife and the bloodstained earth were made on 29-5- 1988. And according to PW 9 he had made the recoveries and he had left the place by about 11.30 p.m. in the night. It is not possible to reconcile these two facts. If actually PW 9 was the person responsible for preparing the recovery memos then, the date 29th May does not fit into the prosecution case since according to this witness himself he left at about 11.30 in the night of 28-5- 118 1988. Therefore, there is force in the arguments of the learned counsel for the respondent that these recoveries cannot be believed, more so in the background of the fact that the bloodstained knife and the bloodstained earth were not sent to the serologist. This Court in the case of Lakshmi Singh v. State of Bihar (1976) 4 SCC 394 has stated that: (SCC p. 402, para 14) "14. To add to this another important circumstance is the omission on the part of the prosecution to send the bloodstained earth found at the place of occurrence for chemical examination which could have fixed the situs of the assault. In almost all criminal cases, the bloodstained earth found from the place of occurrence is invariably sent to the Chemical Examiner and his report along with the earth is produced in the court, and yet this is one exceptional case where this procedure was departed from for 119 reasons best known to the prosecution. This also, therefore, shows that the defence version may be true. It is well settled that it is not necessary for the defence to prove its case with the same rigour as the prosecution is required to prove its case, and it is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case which is sufficient to enable the court to reject the prosecution version."
17. From the above decision of this Court, it is clear that in such circumstances when the prosecution fails to send the bloodstained material to the Chemical Examiner, a reasonable doubt arises as to the genuineness of the prosecution case in regard to the recovery of such material. It is also relevant to notice at this stage that the factum of recovery of the bloodstained earth was not put to the respondent when his statement was recorded under Section 313 CrPC."
120
82. As there is no evidence on record to prove that accused used M.O.10 to slit the throat of the deceased, suspicion arises with regard to credibility of the prosecution witnesses. Admittedly, the eye witness- P.W.13 has also not identified M.O.10. As such, mere recovery of the same by P.W.37 cannot be relied upon and will not support the case of the prosecution. The opinion of the doctor - P.W.31 is only a possible which view cannot be relied upon as it is only an advisory. No bloods stains were detected on M.O.10 when it was referred to Forensic Science Laboratory along with Ex.P.5 - diary, Exs.P.6 and 7 -letters and covers which were examined by P.W.24.
83. With regard to M.O.1 - the gold chain, there is no mention either in the contents of first information report or in the inquest report-Ex.P.9, whether the deceased was wearing the gold chain or not, which is inconsistent to the statement of P.W.1 and hence, it is not trustworthy to rely upon the evidence of P.W.1 with 121 regard to seizure of M.O.1 in view of the dictum of the Hon'ble Supreme Court in the case of Mohd. Aman and Another -vs- State of Rajasthan reported in (1997) 10 SCC 44 wherein at paragraph-9 it has been held as under:
"9. To prove the role of Mohd. Yusuf (the other appellant in Criminal Appeal No. 1749 of 1996) the prosecution relied upon the find of his finger print on a glass tumbler and his foot prints in the house of the appellant, recoveries of four silver rings belonging to the wife of the deceased and knife pursuant to his statement. It is rather surprising that even though the investigating agency claimed to have made a searching examination of the house of the deceased on April 14, 1983 and, to have seized on that day sixteen articles, four of which contained finger prints, the glass tumbler containing the finger prints was seized and the foot prints were noticed on April 24, 1983. When considered in the context of the fact that he was in custody of the police at that 122 time the possibility of fabrication of evidence to implicate him as contended by him, cannot be altogether ruled out. This apart, some of the reasons which weighed with us for not accepting the evidence regarding the find of finger prints, namely that there is a missing link between the identity of the articles seized and identity of the articles examined by the Finger Print Bureau and non-production of the glass tumbler during trial also persuade us not to accept the evidence adduced in proof of the above circumstance. So far as the foot prints are concerned, another reason for which we feel it unsafe to accept the evidence led in this regard is that the sample foot prints were not taken before a Magistrate. This apart the science of identification of foot prints is not a fully developed science and therefore if in a given case - unlike the present one - evidence relating to the same is found satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other 123 evidence. That brings us to the evidence relating to the recovery of the four silver rings (Ext. P.5 to P.8) belonging to the wife of the deceased pursuant to the statement made by Mohd. Yusuf. To persuade the Court to hold that the above circumstance stood established the first and the foremost fact which the prosecution was required to prove was that those articles belonged to the wife of the deceased and that they were stolen at the time of the commission of the murder. Having gone through the evidence on record we are constrained to say that the prosecution has not been able to establish those two facts and, therefore, we need not go into the question whether the evidence led by the prosecution relating to their recovery from Mohd. Yusuf is reliable pr not. The First Information Report, that was lodged by Sabir Hussain (P.W. 10), did not give any list of articles that were stolen. He however claimed to have later on given a written statement containing such a list to the Investigating Officer and this statement 124 was exhibited. In our considered view the trial Court was not justified in entertaining the statement as an exhibit because it was hit by Section 162 Cr.P.c. Be that as it may, P.W. 10 and Bano (P.W. 2), another relation of the deceased, testified that within a day or two of the murder they could ascertain what articles were missing from the house. The evidence of these two witnesses on this aspect of the matter cannot be safely relied upon for they admitted that they did not have access to the house till May 1, 1983 as it was in custody of the police and therefore they could not have occasion to know what articles were stolen. Even if we proceed on the assumption that the seized articles belonged to the wife of the deceased the prosecution has led no evidence, either direct or circumstantial, to prove that they were stolen at or about the time when the murder took place. In other words, unless the prosecution conclusively establishes that the articles recovered were stolen whom the murder was 125 committed, and not on an earlier occasion, there would be a missing link in the chain so far as the specific accusation leveled against the accused is concerned. Once it is found that the evidence relating to find of foot prints and finger prints of the appellant and the recovery of the four silver rings cannot be safely relied upon, the proof of the other two circumstance, namely that a blood stained knife was recovered after fifteen days of the incident pursuant to the statement of the accused and that few simple injuries were found on his person on April 20, 1983 when he was arrested would only raise a strong suspicion against him and not a conclusive inference of his guilt. The conviction of Mohd. Yusuf therefore cannot also be maintained."
84. The Hon'ble Supreme Court in the case of Datar Singh -vs- State of Punjab reported in (1975)4 SCC 272 wherein at paragraphs-30 and 31, has held as under:
126
"30 We do not think that the appellant needs the support of any presumption from non-production of any of these witnesses. We also do not think that the prosecution can benefit from the merely suspicious circumstance that the appellant did not surrender or was not traceable for nearly a year. Reliance was placed by the appellant's Counsel on Prakash Mahadeo Godse v. State of Maharashtra(1), to contend that conduct of the accused such as hiding after the offence, by itself, does not conclude matters. Even though the acts there were somewhat different, the same principle would apply here. In any case the super-structure of the prosecution case, based on the testimony of two alleged eye witnesses, having crumbled in the case before us, we find it impossible not to give the appellant the benefit of doubt because of circumstances which could only raise suspicion against him. Sufficient number of very significant features of evidence on record, dealt with by us above, were ignored by the High Court 127 and the Trial Court. Hence, we were compelled to reassess the evidence for ourselves.
31. The result is that we allow this appeal, set aside the convictions of the appellant for murder and as well as for the alleged illegal possession of the gun and we direct that he be released forthwith from custody unless wanted in some other connection."
85. With regard to call details register - Ex.P.36, as already stated supra, the author, who has issued the same has not been examined. In the absence of any material produced to show that P.W.8 had called from her mobile, even though she has denied that she was not having any mobile either in the examination-in-chief or cross-examination, an adverse inference has to be drawn against the case of the prosecution in view of the provisions of Section 114(g) of the Indian Evidence Act, 1872 as held by the Hon'ble Supreme Court in the case of Murlidhar -vs- State of Rajasthan reported in 128 (2005) 11 SCC 133 wherein at paragraph-22 it has been held as under:
"In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir Mohammand Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are "especially within the knowledge of the accused" and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, "especially within the knowledge of the accused." In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution proceeded on the footing that there were eye witnesses to the fact of murder. The prosecution took upon itself the burden of examining 129 Babulal (PW 5) as eye witness.
Testimony of Ram Ratan (PW 7) and Isro (PW 10) shows that their agricultural land was situated in a close distance from the house of Khema Ram.
As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused- appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused-appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW
10), the father of Ramlal. The evidence of Govind (PW 13) also appears to be unnatural, as he had not disclosed the incident to anybody. The High Court has correctly analysed that all the witnesses, namely, Babulal (PW 5), Ram Ratan (PW 7), Isro (PW 10) and Govind (PW 13) are wholly unreliable as their evidence is repleated with 130 contradiction and inherent improbabilities."
86. The Apex Court in the case of Tomaso Bruno v. State of U.P., reported in (2015) 7 SCC 178 at paragraphs-26, 27 and 28 has held as under:
"26. The trial court in its judgment held that non-collection of CCTV footage, incomplete site plan, non-inclusion of all records and sim details of mobile phones seized from the accused are instances of faulty investigation and the same would not affect the prosecution case. Non-production of CCTV footage, non-collection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.
27. As per Section 114 Illustration (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can 131 draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 Illustration (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of the Negotiable Instruments Act, where the court has no option but to draw a statutory presumption, under Section 114 of the Evidence Act, the court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption under Section 114 Illustration (g) of the Evidence Act depends upon the nature of fact required to be proved and its importance in the controversy, the usual mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned, all of which have to be taken into account. It is only when all these matters are duly considered that an adverse inference can be drawn against the party.
28. The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution 132 for the reasons best known to the prosecution, the accused did not invoke Section 233 CrPC and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW 1, PW 12 and PW 13 qua there being no relevant material in the CCTV camera footage.
Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, the prosecution in possession of the best evidence, CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 Illustration (g) of the Evidence Act that the prosecution% withheld the same as it would be unfavourable to them had it been produced."
87. Though the call details Ex.P.36 marked with objection, the admissibility of the said document cannot be questioned at the belated stage, but the authority, who issued the said document, has not been examined. 133 Therefore, the same cannot be considered in the absence of any material produced to prove that there were conversations between P.W.8 and P.W.1 and P.W.8 and the deceased in view of the dictum of the Hon'ble Supreme Court in the case of Malay Kumar Ganguly v. Dr. Sukumar Mukherjee reported in AIR 2010 SC 1162 wherein at paragraphs 48 and 49 it has been held as under:
"48. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross- examination in a court of law.134
49. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken. In a criminal case, subject of course, to the shifting of burden depending upon the statutes and/or the decisions of the superiors courts, the right of an accused is protected in terms of Article 21 of the Constitution of India. The procedure laid in that behalf, therefore, must be strictly complied with. Exts. 4, 5 and 6, in our opinion, are not admissible in evidence in the criminal trial."
88. Though the learned HCGP contended that the registration of first information report started after investigation will not affect the case of the prosecution as held by the Hon'ble Supreme Court in the case of Sambhu Das Alias Bijoy Das and Another -vs- State of Assam reported in (2010)10 SCC 374 wherein it has held that investigation and inquest can start with telephonic information even prior to lodging of formal FIR and it would not affect trial and evidence in Court. 135 Submission that FIR loses its authenticity if lodged after inquest is a general proposition and cannot be universally applied. The prosecution case cannot be dismissed only because there is discrepancy in inquest report. Neither the FIR, nor inquest report nor post- mortem report can be regarded as substantive pieces of evidence. The FIR or inquest report may only be used to contradict or corroborate the maker thereof. It was held that non-mention of accused in inquest report, may not mean that FIR was non-existent prior to inquest. The said judgment has no application to the facts and circumstances of the present case.
89. In order to prove the handwriting of accused at Ex.P.5 - Diary and Exs.P.6 and 7 - covers and letters which are alleged to have written by the accused, the prosecution has relied upon the evidence of P.Ws.5, 6 and 7 but the learned Sessions Judge ignoring the evidence of P.Ws.8, 11, 12 and 14, who have denied the handwriting of the accused has proceeded to convict the 136 accused mainly on the basis of the evidence of P.Ws.1, 2, 13, 16 and 27 which is impermissible. On careful reading of the material on record, it is clear that the evidence of P.W.1 and the contents of Exs.P.1, 5, 6 and 11 letters, the prosecution has failed to prove the motive on the part of the accused beyond reasonable doubt. According to the evidence of P.Ws.1 and 16, that on the date of the incident at 2.30 p.m. P.W.1 received a phone call from P.W.8 - Pavithra informing that her husband has quarreled with her and had gone saying that he would kill the deceased, but the same has not been proved, as P.W.8 has turned hostile. In that circumstance, it is relevant to consider the dictum of the Hon'ble Supreme Court in the case of Vijender -vs- State of Delhi reported in (1997)6 SCC 171 wherein at pargraphs-11 and 26, it has held as under:
"11. The evidence of P.W.5 that Raju gave him the number of the vehicle and the names of the three appellants as the miscreants was not legally admissible for Raju (P.W.4) did not state that he 137 had seen the three appellants to kidnap Khurshid nor did he give the vehicle number in which Khurshid was taken away. In absence of such direct evidence of Raju (P.W.4), the testimony of P.W.5 to that extent would be hit by Section 60 of the Evidence Act. The said Section, so far as it is relevant for our present purpose lays down that oral evidence must, in all cases whatever, be direct; that is to say if it refers to a fact which could be seen it must be the evidence of a witness who says he saw it (emphasis supplied). In the instant case the facts which could be seen were that Khurshid was kidnapped, that the appellants kidnapped him and that he was kidnapped in Car No. DDB 5067 and therefore P.W.4 was the only person (in absence of any other eye- witness) who was legally competent to testify about these facts. Since P.W.4 did not testify to two of the above facts, namely the car number and the persons who kidnapped him, the statement of P.W.5 that he was also told about the above two facts would not be 138 admissible being, 'hearsay', but his testimony that P.W.4 told him that Khurshid was kidnapped would be admissible as corroborative evidence under Section 159 of the Evidence Act. While on this point it need be mentioned that in the facts of the present case Section 6 of the Evidence Act also does not come in aid of the prosecution.
26. As regards the complicity of Vijender in the kidnapping the two circumstances on which the prosecution case now rests after the inadmissible part of the evidence is excluded are, that a key of a Maruti car which could be used for ignition of the engine of the seized car bearing No. DDB 5067 was recovered and he had a motive for the crime. These two circumstances, even taken together, do not prove the involvement of the appellant Vijender in absence of any evidence that Khurshid was kidnapped in the above car. In convicting Vijender the trial Judge however relied upon, apart from the 139 evidence which we have found to be inadmissible, on the presence of hole/tear mark in the shirt of Khurshid and opinion of the expert that it could be caused by fire arms, the recovery of a pistol from him, the purported statement of Baim Singh (P.W. 1), the owner of car No. DDB 5067 that Vijender (the appellant) was the driver of the car and that he was absconding till June 30, 1992 when he was arrested. So far the hole/tear mark is concerned, we have already found that it could not relate to the shirt of Khurshid; and as regards the testimony of P.W. 1 the trial Judge has misread the same for he categori- cally stated that appellant Vijender was not his driver. As regards his abscondance, we find that in his examination under Section 313 Cr.P.C. the only question the trial Judge asked him in this regard (question No. 13) was that on June 27, 1992 P.W. 19 did not find him in his house. Even if we accept the evidence of P.W. 19 to be true still from the absence on a day from the house the trial Judge was not justified 140 in concluding that he had absconded. In any case, abscondance is a weak link in the chain of circumstantial evidence. Lastly, the question whether the motive stands proved or not need not detain us for in absence of any other incriminating circumstance, it is of no moment."
90. It is the further evidence of P.W.1 that she was owning two mobiles one Airtel No.9980249463 and another BSNL No.8277372405, the deceased Nayana was also having mobile bearing No.8123638264 and P.W.8 - Pavithra was having Mobile No.8277373085. To prove that there were calls from the said mobile numbers, the call registers have not been produced to show there was conversation between P.W.8 and P.W.1 and from P.W.1 to the deceased. Therefore, the prosecution has failed to prove regarding the incident that occurred as alleged on 31.12.2011 at about 2.15 to 2.45 p.m. beyond all reasonable doubt. 141
91. When the evidence of P.W.13, who is a witness to the incident is perused, his conduct in non- disclosure of incident till 25.1.2012 is highly abnormal and strange, that too when he was present at the scene of occurrence and it is not natural. But as per his evidence, it was a chance to and his conduct in not informing anyone including the police after the incident and after ascertaining he went away is unnatural. His statement that since his friend Prathap came and after half an hour they went to Belur in a car, who has not been examined in order to corroborate his version that after the incident according to the statement of P.W.13, he i.e., himself and his friend were there having coffee and after half an hour, he went to his village. Therefore, non-disclosure of the incident to anyone cannot be believed. As already stated supra, the accused was arrested on 22.5.2013 in the State Bank of Mysore, Chikmagalur Branch, which is a public place which makes it clear that he was not absconding. P.W.33, who has registered the first information report has not 142 disposed that he apprehended the accused. P.W.37 the investigating officer also has not deposed that on 30.7.2012, he finished his investigation and since he did not find the accused, he had given the report that the accused is absconding and had filed the charge sheet. But the prosecution has failed to prove that the accused was absconding beyond all reasonable doubt.
92. The facts and circumstances of the present case as stated supra create strong amount of serious doubt about truthfulness of the prosecution witness as well as veracity of the eye witness. The prosecution has failed to prove the involvement of the accused beyond all reasonable doubt and he has been falsely implicated in the crime. The conduct of the eye witness - P.W.13 is highly unnatural and we are entertaining a doubt as to the presence of P.W.13 at the time of occurrence. The other oral and documentary evidence adduced and produced by the prosecution has not been proved to 143 show the involvement of the accused in the crime beyond all reasonable doubt.
93. While M.O.10 was seized, the witness was brought from Mangalore. Such seizure of M.O.10 by the Investigating Officer in presence of the witnesses from Mangalore, who are not respectable inhabitants of locality is impermissible in view of the provisions of Section 100(4) of Cr.P.C. Our view is fortified by the judgment of the Hon'ble Supreme Court in the case of Pradeep Narayan Madgaonkar and Others -vs- State of Maharashtra reported in (1995) 4 SCC 255 wherein at paragraphs-8, 9 and 10 it has been held as under:
"8. Thus, it is seen that the explanation given by PW2 and PW 5 for their presence, in front of building No. 93 at the relevant time, is poles apart. Both PW 2 and PW 5 are at variance about the purpose of their visit and have not been able to satisfactorily justify their presence at the site of search, when 144 admittedly they both belonged to and lived in different far of areas. PW 2 admitted that he had been joining police raids earlier also and had acted as a panch witness on various occasions. PW 5 is, on his own admission, a friend and associate of PW 2, for whom he used to work for 7 or 8 years, for payment, after meeting him at a gambling den. It appears to us rather strange that in a busy locality, where the search was to be conducted, the only two 'independent' panches associated by the police party were PW 2 and his friend PW 5, both not belonging to the locality. It appears to be too much of a co-incidence that the raiding party, who had left for "combing operations: in the area of Tilak Nagar on receipt of information regarding the two incidents of firing in that area should meet PW 2 and PW 5 only as the 'respectables' of the 'locality' and request them to join as "independent panches". For very cogent reasons. PW 2 has been disbelieved by the Designated Court itself as was found to be a person available and 145 amenable to police. It appears to us that the services of PW 5 were made available to the police by his friend PW 2, who on the finding of the Designated Court was always available to the police and had been joining the police party during various raids. Obviously no serious attempt was made by the raiding party to associate with them two or more independent and respectable inhabitants of the locality in which the room was located, for reasons best known to them before conducting the search. It is not the case of the prosecution that either no independent respectable witness of locality was available or was otherwise willing to join the raid when contacted. The effort of the police party to paint and portray PW 2 and PW 5 as independent witnesses stands exposed by the Designated Court itself, which found PW 2 to be not a trustworthy witness and a person who was available at the beck and call of the police. In view of the inconsistent versions given by PW 2 and PW 5 146 regarding the purpose of their visit to justify their presence in the area at the time of search, we are doubtful whether the witnesses were at all joined with the raid in the manner alleged by the prosecution. While learned Counsel appearing for the State frankly conceded that he could not press into aid the statement of PW 2 to support the prosecution, he submitted that the evidence of PW 5 was worthy of credence. After going through the statement of PW 5, we have not been able to persuade ourselves to agree with the learned State Counsel.
9. PW 5, whose evidence found favour with the trial court, during his cross-
examination conceded that he had not revealed his correct address to the police officers and had given them a fake address at the time when panchnama Ex.7 was prepared during the search and seizure of the weapons from the appellants from the room. He stated that during his stay in Bombay, he used to reside near one bridge on 147 Flank Road, Gandhi Market and that Gandhi Market is near Kings Circle. He conceded that the room where he was putting up had no number. "However, had given a false address to the police because I was afraid of my life. I had apprehended danger from the police because they were armed. Hence in order to see that my genuine address is not revealed to the police and that they should not contact me on that address, I gave the fake address. I had given such fake address before the drawal of the panchnama Ex. 7". Thus, on his own admission, PW 5 had given a fake address to the police and had concealed his real address when he joined the raid. Thus, from the very start of his association in the raid, PW 5 on his own showing indulged in falsehood and gave false address on the panchnama, Ex.7 and in his statement recorded by the police. It appears that PW 5 has hardly any respect for truth. Can he be considered trustworthy? He is a person who admittedly was amenable to the influence of PW 2 and it was PW 2 who 148 appears to have procured' his services for join as a panch witness. Recalling, his association with PW 2 and his influence upon him, Tushar Nair PW 5 stated that "since I started assisting PW 2 in his business, I stopped staying in the house of my parents. As I was indulging in gambling my parents were not on good terms with me. The parents might have considered me as a bad element. My parents wanted me to give up gambling and they had warned me on that score. My gambling activity was behind the back of my parents and I never informed it to them. My gambling activity came to the notice of my parents through some of my friends. During my gambling activity Ramaji PW 2 was my friend. As a gambling den was nearby Gandhi Market I came in contact with PW 2 Ramaji. PW 2 also used to come to the den for gambling. The gambling den belonged to somebody else and was not my own. I do not know the name of the conductor of the gambling den. I was indulging in the gambling for over 2 to 3 years. I became a friend of PW 2 and 149 started assisting him in his business after my parents threw me out from their house. The gambling den where I was gambling falls within the local jurisdiction of Motunga Police Station".
He further admitted that "on 2.1.91 I had given my fake address to the police a the instance of PW 2", After the raid, he had left Bombay and settled at Raipur. He admitted that neither his mother nor any other relative knew his whereabouts and that except Ramaji PW 2, he had not left his Raipur address with anyone else and that it was Ramaji PW 2 who had given his address to the police, which enabled the police constables to trace him in Raipur and bring him to Bombay after covering a journey for 29 hours by train to give evidence in the case. He admitted that he was a member of a gambling gang and had come into contact with PW 2 during his gambling activities and that his association with PW 2 had started 7/8 years prior to the date of the occurrence and the friendship had developed. Even when he was brought 150 by the police from Raipur to Bombay to give evidence in this case, he had contacted PW 2 Ramaji on 21.6.91 and had remained with him for about half an hour. His statement was recorded in the court on 22.6.91. He further admitted that "I was brought to the Court by the police from Raipur, two police constables named Patil and Shaikh, who were the members of the raiding party, had come to Raipur to bring me to Bombay. I am working as a Manager in one Hotel in Raipur. The name of the Hotel is Megha. I left Bombay some time during the month of April 1991". He admitted that the travel from Raipur to Bombay took about 29 hours and during this period and even after reaching Bombay from Raipur, he throughout remained in the company of the two police constables who had brought him from Raipur to Bombay till he met PW 2 in Bombay.
10. Of course, the mere fact that PW 5 had been a gambler at some point of time or may have been thrown out by his parents from the parental house, 151 may not case a doubt about his "respectability", if he had later on settled down to work in Raipur but a careful perusal of his statement and particularly the glaring contradictions regarding the purpose of his visit to the place of occurrence on the date of the raid and the manner in which he was associated with the conduct of raid coupled with his conduct of giving false address to the police on occasions more than one and his deep association with PW 2, has created an impression on our minds that not only the evidence of PW 5 bristles with inconsistencies and contradictions but also that he cannot be termed as a trustworthy or a truthful witness. His evidence does not bear judicial scrutiny and he appears to as to be a got up witness. It would not be safe, therefore to rely upon his testimony."
VIII - Conclusion
94. For the reasons stated supra, the point raised in the present appeal has to be answered in the 152 affirmative holding that the appellant-accused has made out a case to set aside the impugned judgment and order of conviction sentencing him to undergo life imprisonment for the offence punishable under Section 302 of IPC.
95. Admittedly, the present case is based on circumstantial evidence as the alleged eye witness - P.W.13 relied upon by the prosecution, is not proved as stated supra and the circumstances, from which an inference of guilt is sought to be drawn, should be proved and such circumstances must be conclusive in nature pointing towards the guilt of the accused. There shall be no gap in the chain of circumstances. The learned Sessions Judge has not properly appreciated the evidence and the gap in the chain of circumstances has to be established by the prosecution. Upon consideration of the facts and circumstances of the case, we are of the considered view that, the circumstances and the evidence adduced by the 153 prosecution do not form a complete chain pointing to the guilt of the accused and the benefit of doubt has to be given to the accused and the order of conviction of the accused is liable to be set aside.
"Every human being is answerable to his/her consciousness and cannot escape".
IX - RESULT
96. In view of the above, criminal appeal is allowed. The impugned judgment and order of conviction dated 10.12.2014 made in S.C.No.61/2013 on the file of the Principal Sessions Judge, Chikamagalur, convicting the appellant-accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay a fine of Rs.30,000/- in default of payment of fine to undergo rigorous imprisonment for three years is set aside and the accused shall be released forthwith, if not required in 154 any other case after following the procedure as contemplated under the Standard Operating Procedure including quarantine and in accordance with law.
97. The valuable assistance rendered by Sri Hashmath Pasha, learned Senior Counsel and Sri S. Rachaiah, learned High Court Government Pleader for the State is commendable and is placed on record.
Registry is directed to send a copy of this judgment to the Superintendent of Jail, Central Prison, Dharwad forthwith.
Sd/-
Judge Sd/-
Judge Nsu/1-46 & 82-154 Kcm/46-82