Karnataka High Court
Mr. Manoj Kumar S vs State Of Karnataka on 30 June, 2015
Bench: Vineet Saran, R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE 2015
PRESENT
THE HON'BLE MR. JUSTICE VINEET SARAN
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.1419/2012
BETWEEN:
Mr Manoj Kumar S
S/o A G Suresh
Aged about 29 years
R/at No.19, 1st Floor
5th Main, B Block
Vinayakanagar
Murugeshpalya
Bangalore-560 017. .. APPELLANT
(By Sri Hashmath Pasha, Adv.)
AND:
State of Karnataka
By Airport Police
Bangalore-560 017. .. RESPONDENT
(By Sri K R Keshavamurthy, Addl. SPP)
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This criminal appeal is filed under Section 374(2) CR.P.C praying
to set aside the Judgment and order of convictions and sentences dated
12.12.2012 passed by the XXXII Addl. City Civil and Sessions Judge
and Spl. Judge for CBI Cases, Bangalore in S.C.No.202/2009 -
convicting the appellant-accused for the offences punishable under
Sections 302, 201 of IPC.
This criminal appeal, having been reserved on 12.06.2015 and
being listed for pronouncement today, Budihal R.B., J., delivered the
following:
JUDGMENT
This appeal is preferred by the accused being aggrieved by the judgment and order of conviction dated 12.12.2012 passed in S.C. No.202/2009 by the XXXII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bengaluru, convicting the accused for the offences punishable under Sections 302 and 201 of IPC.
2. The facts leading to filing of the case are that first information was registered under Ex.P.90 in Airport Police Station, Bengaluru City, Crime No.310/2008 on the basis of the information furnished by one Sri. Manoj Kumar Suresh as per Ex.P.91, which was addressed to the Inspector of Police Airport Police Station, Bengaluru wherein it was stated by Manoj Kumar that he was working in the IBM 3 India Private Limited staying at the address mentioned in Ex.P.91 since September 2008, along with his wife Smt. Lakshmi. His wife was also working in the same company as System Engineer. They were married on 28.8.2008. His wife was suffering from viral fever for the last two weeks and was on leave since then. On 7.11.2008, he went to office at 9.30 a.m. and his wife was alone in the house. He returned to the house from work around 7.00 p.m., the door was open, TV was on and he switched on the lights and entered into the house and went towards the kitchen looking for his wife. He found her lying on the floor and when he tried to lift her, he saw bleeding on her head and found her to be dead. Some injuries were found on the neck. She was wearing a gold chain with mangalya, gold bangles, gold bracelet and gold ear rings and he found them all missing. He also found Rs.30,000/- cash missing from the almirah. He also mentioned in the first information that he suspects some one has gained entry into his house and murdered his wife and taken away gold jewellery and cash. Hence, requested the police to investigate and take appropriate action in the matter. 4
3. The police after completion of the investigation, filed charge sheet against the accused i.e, said Manoj Kumar Suresh for the offences punishable under Sections 302 and 201 of IPC. The trial court, framed the charge of the said offences. After conclusion of the trial and also after considering the oral and documentary evidence produced in the case, ultimately, the trial court convicted the appellant-accused for the aforesaid offences. Being aggrieved by the judgment and order passed by the trial court, the appellant has preferred the present appeal challenging the legality and correctness of the same on the grounds as mentioned at ground Nos.4 to 78 of the appeal memorandum.
4. We have heard the arguments of learned Counsel appearing for the appellant-accused and the learned Additional SPP appearing for the respondent.
5. Learned Counsel for the appellant, during the course of the arguments, submitted that the case of the prosecution rests only on the circumstantial evidence and there are no direct witnesses to the incident. Motive as per the prosecution is that the appellant was 5 having illicit connection with one lady Smt. Anuradha Reddy and marriage of the appellant with the deceased was conducted against his will. It is also the submission of the learned counsel that the prosecution based its case stating that the appellant had been to his office on 7.11.2008 and in the middle of the day, he was absent from the office for some time i.e., 1.05 p.m. to 4.17 p.m. and for this, the prosecution based CC TV camera footages and also the photographs Exs.P.23 to P.43. It is his further submission that on the basis of the said CC TV footages and on suspicion, the appellant was taken to the custody by the police. During the course of investigation, as the investigating officer had noticed that the appellant sustained injuries on the hind portion of the palm of his hand, the prosecution wanted to rely on the medical examination report of the appellant to contend that it goes to show his involvement in committing the alleged offences. It is also the story of the prosecution that the single hair found on the palm of the deceased, when compared with the hair of the appellant-accused, which was collected by the police during investigation, was tallying with each other.
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6. It is the contention of the learned counsel appearing for the appellant-accused that the prosecution has relied upon four statements as per Exs.P.91, 101, 102 and Ex.D.1, which are alleged to be the statements of the appellant. So far as these documents are concerned, the contents of the document at Ex.P.91 are not of the appellant. However, his signature on the said document is admitted. So far Exs.P.101 and 102, the contention of the appellant is that he has not at all given such statements before the police. But the police have got prepared such statements in the name of the appellant to show that as if they were given by the appellant himself. The learned counsel submitted that the documents Exs.P.101 and 102 show the same day, but time is not mentioned either on Ex.P.101 or P.102 of recording such statement. For the sake of appreciation of arguments, if it is taken that the appellant has given the statement as per Ex.P.101, what was the necessity for him to give another statement on the very same day as per Ex.P.102. The learned counsel submitted that on 10.11.2008, the police had been to Chennai to the residence of the appellant and brought him to Bengaluru on 11.11.2008. The appellant sustained injuries to his hand and therefore, under the police escort, he was sent 7 to the hospital on 11.11.2008 itself. As the doctor was not available, again he was sent to the hospital on 12.11.2008. Therefore, it is his submission that from 10.11.2008, in the evening, the police were having the custody of the appellant-accused, even though they have not shown on record of his arrest. He submitted that the appellant was under the surveillance of the police and he was not having liberty to move according to his choice. Therefore, it very much amounts to custody of the appellant with the police and he was not produced before the court within 24 hours of his arrest and hence, his detention is illegal detention.
7. The further submission of the learned counsel for the appellant-accused is that so far as Ex.P.102 is concerned, there is no possibility of the appellant giving such detailed statement on 12.11.2008 and the police machinery recording such statement. In this connection, he submitted that the police have shown arrest of the appellant on 12.11.2008 at 11.30 p.m. and the prosecution witnesses have clearly admitted that they took half an hour to complete the arrest formalities, so it crossed the mid night at 12.00. Hence, it is his submission that 8 Ex.P.102 cannot be said to be given by the appellant and also cannot be said to be recorded by the police on 12.11.2008. In addition to the above, the learned counsel also submitted that so far as Ex.P.102 and Ex.D.1 is concerned, there are two possibilities i.e., firstly, the police might have obtained such statement by pressure, coercion or by inducement on the appellant-accused and secondly, that the police might have prepared them and obtained only the signature to make out a case against the appellant. It is his further submission that the contents of Ex.P.102 and Ex.D.1 are in Kannada language. The appellant-accused does not know the Kannada language and he knows only the English and Tamil languages. Even looking to the evidence of the prosecution witnesses, there is no evidence to show that the appellant knew the Kannada language. Hence, he submitted that this is also one of the important circumstances to show that the appellant never gave such statement as per Ex.P.102 and Ex.D.1. The learned counsel further submitted that the alleged voluntary statement under Ex.P.102 and Ex.D.1 is not at all as per the requirements of Section 27 of the Evidence Act and hence, it is not admissible in evidence. Accordingly, the alleged recovery of the articles under the said 9 statement is also not admissible in evidence and it has been wrongly admitted by the trial court.
8. With regard to the injuries sustained by the appellant-accused, learned counsel for the appellant-accused submitted that the defence has already established that the appellant reached his house at 7.00 pm. on 7.11.2008 and after seeing the dead body of the deceased, he became panic and when he was coming out of the house, he fell down in front of the house and sustained injuries to his hand. The learned counsel submitted that the prosecution has failed to establish with satisfactory materials that the said injuries have been caused when the deceased was struggling and that, with her nails, she scratched the hind portion of the palm of the appellant-accused. With regard to the alleged motive, the learned counsel submitted that Smt. Anuradha Reddy has been examined by the prosecution as P.W.25 before the court and her evidence clearly goes to show that there was no sort of illicit connection between herself and the appellant-accused. Therefore, it clearly indicates that the alleged motive is also not proved by the prosecution. With regard to the CC TV camera footages and the documents 10 produced in that connection, they are not proved by the prosecution as per the procedure laid down under Sections 62, 65(a) and (b) of the Evidence Act. The learned counsel made submission that even if the oral evidence of the prosecution witnesses is considered, even then, it goes to show that there are no satisfactory materials placed by the prosecution that the appellant-accused left the premises of the IBM at about 12.55 noon, the time at which the incident alleged to have been taken place. The learned counsel submitted that when the prosecution is relying upon the CC TV camera footages, it ought to have produced all the photographs that were taken for the entire day and further, the evidence of the prosecution witnesses, in this regard, clearly goes to show that only the selected photographs were taken at the instance of the police. Therefore, it indicates that the prosecution has not proved that the appellant-accused left the IBM premises at the relevant point of time.
9. Learned counsel for the appellant-accused further contended that the prosecution has relied upon hair comparison report. In this connection, he made the submission that in the spot mahazar 11 proceedings, which is said to have been conducted by the investigation machinery, there is no mention about M.O.7-hair, which was said to be in the palm of the deceased. He further submitted that even looking to the evidence of the prosecution witnesses and the report submitted, there are no satisfactory materials to show that the hair found in the palm of the deceased and the hair of the accused taken during investigation for comparison, are one and the same. The trial court has also disbelieved story of the prosecution with regard to the hair comparison report. The learned counsel submitted that even the mahazar in respect of the spot and all other recovery mahazars as relied upon by the prosecution have not been satisfactorily proved with cogent and worth believable materials.
10. Learned counsel appearing for the appellant-accused has invited the attention of this Court to the seizure of articles at the spot and also the alleged information given by the appellant and submitted that they were not properly packed and no seals were put. The learned counsel submitted that with regard to the accused having illicit connection with P.W.25 Smt. Anuradha Reddy, from the date of the 12 incident till 14.11.2008, the father of the deceased-P.W.11 has not at all stated before the police about the same. When P.W.11 was called to police station on 14.11.2008, as stated by the prosecution, for the purpose of identifying the gold ornaments of the deceased, then only the police in collusion with P.W.11 started to improve the case of the prosecution that the appellant-accused was having illicit connection with Smt. Anuradha Reddy. The learned counsel lastly made submission that, since the case of the prosecution rests on the circumstantial evidence and as there are no direct witnesses to the alleged incident, the prosecution has to prove each and every aspect, on which it relies, so as to establish the chain of circumstances without there being missing link of the any of the circumstances. He submitted that looking to the prosecution materials, both oral and documentary, reasonable and serious doubt arises as to the case of the prosecution and the prosecution has utterly failed to prove any of the circumstances relied upon by it.. The trial court has not appreciated the materials on record in a proper perspective and wrongly read the evidence and wrongly convicted the accused. The judgment and order of conviction are not in accordance with the materials placed on record and hence, 13 they are not sustainable in law. Hence, the learned counsel submitted to allow the appeal and to set aside the judgment and order of conviction by acquitting the accused.
11. Per contra, learned Additional SPP appearing for the respondent State, during the course of the arguments, submitted that though it is the contention of the appellant-accused that he came to the house at 7.00 p.m. on 7.11.2008, he has not immediately informed the police about the incident, and it is neighbour/owner of the accused i.e., P.W.12, who informed the police over phone at 8.00 p.m. and in response to the phone message, immediately, the police rushed to the spot. Subsequent to that, the appellant-accused gave the information to the police as per Ex.P.91 and the scribe of Ex.P.91 is one Arjun-C.W.7. When the appellant has admitted his signature on Ex.P.91 and its contents, which are written by the friend of the appellant C.W.7-Arjun, now he cannot contend that the contents of Ex.P.91 are not at all stated by him and it cannot be accepted. Regarding the death of the deceased that it is homicidal death, learned Addl. SPP submitted that the evidence of P.Ws.1, 5, 12, 19 and 27 and also the postmortem report 14 clearly show that it is the homicidal death. The learned Addl. S.P.P. further contended that so far as the motive for the appellant-accused to commit the murder of the deceased Laksmi, the appellant was having illicit connection with P.W.25 Anuradha Reddy and the evidence of P.Ws.25 and 11 and also the call details produced in the case would clearly establish that there was illicit connection between the appellant and P.W.25. Except the evidence of P.W.25, 11 and the phone call details, no other materials have been placed by the prosecution. However, the trial court has held that motive is not proved satisfactorily. He submitted that CC TV camera footages and the photographs under Exs.P.23 to 43 with the oral evidence of P.Ws.7, 10 and 28 make it clear that when the appellant went to office in the morning on 7.11.2008, he wore the clothes having the navy blue colour, but in the afternoon on that day, the dress worn out by him was of light blue colour. The evidence on the side of the prosecution that there was change in the colour of the dress of the appellant on the same day at the work place and he was absent from the office for some time, in the afternoon, would clearly show that he left IBM company and came to the house and committed the murder of the deceased. Regarding 15 contention of the learned counsel for the appellant-accused that from 10.11.2008 till the arrest of the appellant at 11.30 p.m. on 12.11.2008, the appellant was detained in illegal custody by the police, the learned Addl. S.P.P. drew the attention of this court to the remand application dated 13.11.2008 marked as per Ex.P.104 and submitted that the appellant was not in illegal custody of the police. With regard to the injuries sustained by the appellant on the palm of his hand, the appellant, during the course of the trial, took the contention that he came to his house, which was on the first floor, at 7.00 p.m., on the date of the incident and after seeing his wife lying dead, he became panic and when he was coming down towards the ground, he fell down in front of the house where there was jelly material and in that process, he sustained the injuries. But, the learned Addl. S.P.P. submitted that looking to Ex.P.101, the statement of the appellant, accused which was made before his arrest by the police, he had stated that in the panic state, he ran down stairs to call for the help and injured himself on his left hand by scratching hard on the gate. So this itself goes to show that the appellant has taken the false contention during the course of the trial that he fell down from the stairs in front of the house and 16 sustained injuries. He further submitted that looking to the oral evidence of P.Ws.12 and 22, who are the panch witnesses to the mahazar Ex.P.72, under which M.O.1-the iron pipe and other incriminating articles were seized, the prosecution has established its case and further, it is supported by the contents of Ex.P.13 the FSL report wherein it was stated that items at Sl. No.17 one jeans pant, Sl. No.18 one banian and Sl. No.21 one kerchief, were stained with AB blood group. So he submitted that all these materials would point out the involvement of the appellant in committing the murder of the deceased. The learned Addl. S.P.P. also made the submission that P.W.26-the investigating officer has clearly stated in his evidence that he had interrogated the appellant-accused in Kannada, Tamil and English languages and the appellant answered the same. So this itself clearly goes to show that the appellant was knowing the Kannada language also and therefore, no adverse inference can be drawn in so far as the voluntary statement under Ex.P.102 which was recorded in the Kannada language. The learned Addl. S.P.P. further made the submission that the evidence of P.W.7 corroborates the CC TV camera footages which shows that the appellant remained absent from his 17 office during the noon time which is further proved through the evidence of Ajaj Pasha P.W.28. Regarding the proof of the documents by way of electronic evidence, he submitted that the decision relied upon by the learned counsel appearing for the appellant-accused is not made applicable to this case. The trial court has taken all these aspects into consideration and rightly came to the conclusion in convicting the appellant-accused. The chain of circumstances has been established by the prosecution. No illegality has been committed nor there is any perverse or capricious view taken by the trial court in coming to such conclusion and there are no valid grounds for this court to interfere with the judgment and order of conviction and hence, submitted to dismiss the appeal.
12. In reply, learned counsel appearing for the appellant-accused submitted that in support of the statement recorded under Section 313 of Cr.P.C., the appellant has also filed his written statement in answer to question No.181 and the said statement becomes part of the records and to be considered as evidence on his side as per section 233(2) of Cr.P.C. It is also submission of the learned counsel that the documents 18 Exs.P.91, 101, 102 and Ex.D.1 are all the documents subsequent to receiving the information by the police in the station house and after the police officer visited the spot and consulted many persons at the spot about the happening of the incident and hence, all the four statements are hit by Section 162 of the Cr.P.C. and they are also not admissible in evidence as per Sections 25 and 26 of the Evidence Act. It is also his submission that even looking to the evidence of the Doctor P.W.6 and the document at Ex.P.17, the prosecution has not established that the injuries sustained by the appellant accused are due to the nail marks. Hence, submitted to allow the appeal and to set aside the judgment and order of conviction under appeal.
13. We have perused the oral evidence of the parties and the documents produced before the Trial Court, the judgment and order of conviction and sentence imposed on the accused by the Trial Court, the grounds urged in the appeal memorandum, the submissions made by the learned counsel for the appellant and the learned Government Advocate during the course of arguments, which are referred above and also the decisions relied upon by both the sides.
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14. Even according to the prosecution case there are no direct witnesses to the incident and case of the prosecution rests on the circumstantial evidence. The circumstances, on which the prosecution based its case, are as under:
i. The motive - The appellant-accused was having illicit connection with one lady by name Anuradha Reddy-PW-25 and that was the reason for the appellant to eliminate the deceased.
ii. The appellant-accused sustained injury to his left hand at the phalanges portion i.e., on the back portion of the palm, which he has not explained properly.
iii. The hair found at the palm of the deceased, marked as per M.O.7, tallied with the hair of the accused taken during investigation, as per the hairs comparison report. iv. The appellant-accused was absent in his office for some period of time in the noon on the date of the incident, which he has not explained properly.20
v. The appellant-accused gave the voluntary statement under Section 27 of the Evidence Act and M.O-1 and M.Os- 16 to 25 were recovered on the voluntary information given by the accused.
15. Let us examine the material placed on record for the proof of said circumstances.
16. Regarding the first circumstance i.e., motive, the material witnesses are PW-25/Smt.Anuradha Reddy and PW-11, the father of the deceased, and the call details, which are said to be between the witness PW-25 and the accused. Perusing the evidence of PW-25, she has deposed in her examination in chief that during the period 2000 to 2005, she did her bachelor degree in Architecture from Bangalore University and she was a Structural Consultant consulting various persons in undertaking the work of constructions, besides she was using to provide the plans for undertaking the work of construction besides providing the estimates. In the year 2007, she did pay her visit to Murugeshpalya for inspecting the work of construction. She has further deposed that she knows accused Manoj Kumar, who was introduced to 21 her through Madhukar, one of her clients. She is having mobile phone bearing No.9900194840 and she knows the mobile number of accused, which is 9880178969. Accused Manoj Kumar was married on 28.08.2008 and she was invited to the said marriage, however, she was not able to attend his marriage. From 2007 to till the date of marriage of accused Manoj Kumar, they were using to talk over the mobile phones. On 06.03.2006, she married Naveen Chandra and in the wedlock, she is having her female child, which born on 25.11.2008.
In the cross-examination by the advocate for the accused, PW-25 has deposed as true that the accused sought her suggestion for construction of his house at Chennai. She admitted as true that she was not having any personal relationship with the accused Manoj Kumar and accused Manoj Kumar was aware that she was married. Accused used to talk to her over the mobile phone regarding his construction of the house and had not talked any other matter over the mobile phone. She admitted as true that, herself and accused were not discussed about their family problems and she was not having any problem, as herself and her husband were cordial. She admitted as true that till today, they are cordial and they are not having any marital problem or any other 22 problem of her family. Herself and accused are not having any extra marital relationship.
17. Looking to the evidence of this witness i.e., PW-25, she has clearly stated that with regard to the construction work of the house of the accused, they used to talk over the mobile phone and not for any other purpose. She has also stated on oath that there was no sort of any extra marital relationship between herself and the appellant-accused. So this evidence of PW-25 remains as it is, as the prosecution has not examined her in the re-examination at least to make a suggestion that, the appellant-accused was having extra marital relationship with her.
18. PW-11/N.Rangan, who is the father of the deceased, has deposed in the examination in chief that after the marriage, his daughter Lakshmi told him that her marital life was not happy. His daughter used to phone to him with the words that accused used to talk with some lady even till the late night and he has taken the said fact to the knowledge of the parents of the accused and even he has advised the accused. He further deposed that deceased Lakshmi told him that accused was having the illegal connection with CW-21/Anuradha 23 Reddy. His daughter also told him that while the accused was talking with CW-21/Anuradha Reddy, she had enquired the accused, who told her that said Anuradha Reddy was married; however, there was no good relation between herself and her husband, therefore, he was talking with Anuradha Reddy to pacify the matter. She was also told that, if it was so, why the accused was talking with the said lady for late night hours, for which the accused was not having any answer. It is also his evidence that on 28.10.2008 his daughter Lakshmi was not feeling well, she had fever. She stayed in his house till 3.11.2008. She availed leave from 28.10.2008 to 7.11.2008. On the day of marriage i.e., on 28.08.2008, the accused received 7 to 8 calls from Anuradha Reddy. He came to know the said fact when he had gone through the call details of the CW-21 and the accused.
In the cross-examination by the advocate for the accused, PW-11 has deposed and admitted as true that on 08.11.2008 while the inquest was conducted by the concerned Police his statement was recorded and he stated before the Police that the accused and the deceased Lakshmi were cordial. He admitted as true that he did not hand over the marriage photo of accused with Lakshmi to the concerned Police and 24 he has also not stated before the Police that his daughter Lakshmi told him that her marital life was not good. He also admitted as true that he is deposing the said fact for the first time before the Court. He admitted as true that he has not stated before the Police that his daughter Lakshmi told him that martial life was not happy and she used to phone to him with the words that the accused used to talk with some lady even till the late night. He admitted as true that he has not stated before the Police that he has taken the said fact to the knowledge of the parents of the accused and even he advised the accused. He also admitted as true that he has not stated before the Police that deceased Lakshmi had told him that the accused was having the illegal connection with CW-21/Anuradha Reddy. He admitted as true that he has not stated before the Police that his deceased daughter Lakshmi also told him that while the accused was talking with CW-21/Anuradha Reddy, she had enquired the accused, who told her that said Anuradha Reddy was married; however, there was no good relation between herself and her husband, therefore, he was talking with Anuradha Reddy to pacify the matter. He admitted as true that he had not come to Bangalore to discuss with the accused for correcting him regarding 25 his relationship with Anuradha Reddy. He admitted as true that as a responsible father it was his duty to immediately come to Bangalore and discuss with the accused for correcting him regarding his relationship with Anuradha Reddy, if it was the fact. He admitted as true that when he received the death message of Lakshmi through the father of the accused, he had not told him regarding the relationship of the accused with Anuradha Reddy. He also admitted as true that till the Police called him to the Police Station regarding identification of the ornaments, he has not suspected the hands of the accused in the murder of his daughter Lakshmi on account of illicit relationship of the accused with Anuradha Reddy.
19. Looking to the evidence of P.W-11, the father of the deceased, it clearly shows that, though it is his contention that during her lifetime, the deceased Lakshmi told him about the illicit relationship between the accused and Anuradha Reddy, but he has admitted that he has not stated about all these facts in his statement before the Police during investigation. So, there is omission with regard to the material particulars. Not only that, he has admitted that, if it is a fact, as a 26 responsible father, he ought to have gone to the house of the accused to correct him and he has admitted that he has not done such exercise. Another important factor is that he has deposed in his evidence that till 14.11.2008 on which day, he was called to the Police Station to identify the gold ornaments, he was not having any sort of suspicion against the accused, because of such illicit connection of the accused with Anuradha Reddy.
20. Therefore, looking to the evidence placed on record by the prosecution, in this connection, there may be call details of deceased Lakshmi as per Ex.P.108, call details of the accused as per Ex.P.110 and call details of Smt.Anuradha Reddy with her mobile phone No. 9900194840, but only on that basis it cannot be inferred that there was such illicit connection between them when PW-25 has specifically stated that she was talking with the accused over the mobile phone about the construction work and deposed on oath that she was not having any extra marital relationship with the accused.
21. We have also perused the decision relied upon by the learned counsel for the appellant-accused in case of RAMGOPAL VS. 27 STATE OF MAHARASHTRA reported in AIR 1972 SC 656 wherein Their Lordships have laid down the proposition that "if in criminal case motive, as a circumstance, is put forward, it must be fully established like any other incriminating circumstances." In the said reported decision, at the end of para No.16, Their Lordships have observed as under:
"It is not possible to hold having regard to the probabilities of the case that the motive alleged by the prosecution is fully established".
In another decision relied upon by the learned counsel for the appellant-accused in case of TANVIBEN PANKAJKUMAR DIVETIA VS. STATE OF GUJARAT reported in 1997 SCC (Cri) 1004 at Synopsis No.F, Their Lordships laid down the proposition as under:
"Criminal trial - Circumstantial evidence - Motive - If evidences of murder are clinching and reliable conviction can be based even if the motive is not established - However, in a case of circumstantial evidence, motive assumes greater importance than in the case where direct evidences are available"28
22. In this case, looking to the materials placed on record, about which reference is already made in detail, we are of the clear opinion that prosecution has failed to establish the alleged motive as against the appellant for committing the said offence. If the case of the prosecution is based on direct evidence, motive may not be significant. But in a case which rests on the circumstantial evidence, motive is more significant and the prosecution has to establish the motive relied upon by it as one of the circumstances.
23. Now let us consider the second circumstance which the prosecution relies upon i.e., the accused sustained injury to the back portion of the palm on the phalanges. Let us examine the evidence placed on record both oral and documentary in this regard.
24. The accused during the course of cross examination of the prosecution witnesses took the defence that, when he came from the office to the house at 7.00 p.m., he noticed that his wife Lakshmi was lying dead. So he became panic and immediately, he came out of the house and climbed down the steps. When he came to the ground floor 29 in front of the house, he fell down where the jelly and the other constructions materials were stored and in that process, he sustained such injury.
25. The Doctor -P.W.6 Bhimappa Havanur is the person who examined the appellant-accused in this case. In his evidence in the examination in chief, P.W.6 has deposed that he received requisition from police inspector from Airport police station. On examination of the said Manoj Kumar, he found injuries Nos.1 to 5 which are mentioned in his deposition. He further deposed that the above injuries may be caused if the finger nail of the lady came into contact. When the Doctor was asked through a letter as to how the above injuries may be caused, he has answered the said letter that such injuries may be caused while coming with the contact of hard surface, mud surface being rubbed and he has issued the wound certificate as per Ex.P.15.
In the cross examination by the advocate for the accused, P.W.6 deposed and admitted as true that he has stated that injury was caused to the accused on the left hand dorsum aspect on 7.11.2008 around 7.30 p.m. at his residence. He has also admitted as true that he has not found 30 the nail marks on the person of the accused during his examination and that, most probable cause of the above injury would be coming with contact of hard surface. He also admitted as true that he has no base to say that the above injuries may be caused by the finger nails.
26. We have perused the document Ex.P.15-injury certificate wherein the doctor P.W.6 has mentioned on page No.4 "the age of the wound is 4 to 5 days. They may be caused by a fall on the hard surface, mud surface or being rubbed on hard surface". So the Doctor has not mentioned that the said injury, which he has mentioned in Ex.P.15, may be caused because of the scratch by nail marks. Even during the course of cross examination, P.W.6 has admitted as true that in Ex.P.15, he has not mentioned that the above injuries may be caused if the finger nails of the lady come into contact. When that is so, what made the doctor P.W.6 to depose before the court, during the course of examination, for the first time, that the said injuries may be caused by nail marks. When he was specifically asked as to how the injuries might have been caused and the time when they have been caused prior to examination, he could have very well stated that one of the probable causes would be by 31 scratch from nail marks. It is no doubt true that in the document Ex.P.101, which is said to be in the hand writing of the accused himself, it is mentioned that in the panic state, he ran down stairs to call for help and he injured himself on his left hand by scratching hard on the gate. It is true that looking to the statement made in Ex.P.101 for sustaining such injury and the defence put forth during the course of examination are not tallying with each other. It can also be said that the accused has not established as to how he sustained the said injury. But that itself will not prove the prosecution case that the injuries on the dorsum aspect of the left hand of the accused are by scratch of the nail marks of the lady. The prosecution has to establish its case by adducing acceptable and satisfactory materials in this regard.
27. Looking to the inquest mahazar proceedings which was conducted on the dead body of the deceased as per Ex.P.21, there is no mention that the nails of the deceased were having the skin particles. In the absence of the said particles, only because the accused has failed to establish in his defence as to how he sustained injury, it cannot be assumed that the prosecution has proved its case so far as the injury on 32 the dorsum aspect of the left hand of the accused that it is because of the scratches of the nail marks of a lady. On the contrary, looking to Ex.P.15 injury certificate, there is no such mention that the injuries are sustained by nail marks of a lady, but the possibility is mentioned by the doctor that they may be sustained by fall on the hard surface, mud surface or being rubbed on the hard surface. The accused has offered some explanation about the said injuries and we have to see preponderance of probabilities so far his explanation is concerned and he need not prove the said defence beyond all reasonable doubts just like the prosecution is supposed to prove its case beyond reasonable doubt. Even in the statement under Section 313 of Cr.P.C., for question No.88 i.e., that the above injuries may be caused on account of the contact of the finger nails of the lady and the doctor issued certificate as per Ex.P.15 and his signature as per Ex.P.15(a), the accused answered as false. So this shows that the appellant-accused denied the reason given by P.W.6 that the said injuries may be on account of the contact of the finger nails of the lady. 33
28. The third circumstance which the prosecution has relied on is that the hair found at the palm of the deceased was tallying with the hair of the appellant-accused taken during investigation. In this regard, the prosecution has relied upon the document hair comparison report, the oral evidence of P.Ws.3, 5, 26, and M.O.7.
29. P.W.3 - Malathi. D, Scientific Officer of the Forensic Science Laboratory, has submitted the report as per Ex.P.14. We have perused the said report, which is with regard to the examination of crime scene, wherein it is mentioned that a female body aged about 27 years measuring about 5'.2'' inches was found lying on the floor of the kitchen in supine position with her head lying towards south west direction. The hands of the deceased were stretched upward and left leg was bent inward, right leg was stretched outward. It is also mentioned in the said report that the palm portion of both the hands was stained with blood. The lower portion of the thumb region of both hands were swollen and decolurised into a pale green. A pool of dried blood was also present beneath her head. A small hair was found sticking to the right hand of the deceased. Few small hairs were also 34 found scattered beside her body. In the said report it is mentioned that the following items were collected and handed over to the investigating officer for further action. A blood stained hair clip found beside the body, hair about 15-20 numbers found on the floor and a single hair found on the right hand of the deceased. In Sl. Nos.3 to 8 in the said report, there is mention about other items.
30. We have also perused the oral evidence of P.W.3 Malathi, In- charge Scientific Officer of FSL, Bengaluru. In her examination in chief, she deposed in detail that she received 24 articles and she has subjected the said 24 articles to Benjudine test, takayama test, electro foretasted test for blood grouping absorption and elution test. She has issued a report regarding examination of the said articles marked as per Ex.P.13 and her signature is Ex.P.13(a). In para No.6 of her deposition, she has deposed that hairs in item Nos.2(3), 2(6), 2(10), 3, 24(1), 24(2) and 24(6) display similar in morphological and microscopic characteristics. They were cut hairs. Accordingly, she furnished her report regarding the hair which is marked as per Ex.P.14 and her signature is Ex.P.14(a). The Assistant Director has counter signed the 35 same as per Ex.P.14(b). The Director also put his signature as per Ex.P.14(c). She has seen article No.2 which is in cloth pocket duly sealed by herself (which was opened before the trial court). She has taken the slides for the examination and kept the hair in the slides. The hair in the slides together marked as M.O.6. She has seen article No.3 which is in cloth pocket duly sealed by herself and it is noted in her deposition that it was opened in her presence before the Trial Court and found single hair. The said hair was taken for the examination and slide was used for the examination and hair and the slide together marked as per M.O.7. She further deposed that based on the colour shaft form shaft thickness, external characters microscopic characters like cuticle, colour, medulla, cortex, madullria diameter, shaft diameter, madullria index. She has arrived into the conclusion that article Nos. 2(3), 2(6), 2(10), 3, 24(1), 24(2) and 24(6) are similar in morphologic and microscopic characteristics. The articles that she has examined are M.Os.6, 7 and 22. During the examination, she has prepared the note.
In the cross examination by learned counsel for the accused, P.W.3 has deposed and admitted as true that now there is no seal of the police on the articles which she has examined. Now the seal of the 36 police are not found on the articles and therefore, she could not compare such seal with the seals found in the sample chip. She has admitted as true that there is a direction to each and every scientific officer to preserve seal of the police on the particular article and she has not put any identification marks on the articles which she has examined. She has further admitted as true that in Exs.P.13 and 14, she has not assigned reasons for her opinion. She has further deposed and admitted that in Ex.P.14, she has not mentioned the date of examination of hairs and she has not mentioned where the articles were kept from the date of receipt till the date of examination. She has admitted as true that the said period was about eight months and in Ex.P.14, she has not mentioned the method of examination for her opinion. She has further admitted as true that during the examination, class characteristics of the hairs only could be achieved and no individual characteristics could be achieved. She further admitted as true that for the examination of the hairs, she has to use the sample hairs and admitted as true that item No.10 was the sample hair. Perhaps, it was not fit for the examination like comparison etc. Based on the scientific method, the sample hairs were required to be collected 37 and further admitted that for the comparison of the particular hair of the particular area, the hair from the particular area is required to be taken. She admitted as true that in Ex.P.14, she has not mentioned morphological characteristics regarding the items shown in the report. She has further deposed that she cannot say whether the hairs were naturally fallen or they were plucked. She admitted as true that if there is natural fall of the hairs, tissue could not be attached. She admitted as true that if the hairs are taken for sample, the tissue could be attached. She admitted as true that she has not conducted chemical examination of the roots of the hairs and further admitted as true that, if the chemical examination is conducted, one could ascertain that tissue attached to the hairs. She has admitted as true that three morphological characters are cuticle, cortex and modulla and that natural falling hairs in the house of its in mates have no significance for the identification. The hairs may fall naturally. The hairs which have plucked by using some force have some significance. She admitted as true that item Nos.2(3), 2(6), 2(10) and 3 could be the hairs of natural fall. Since the sample hair like item No.10 is not fit for the examination, her examination in connection with item No.2(3), 2(6), 2(10) and 3 remain 38 inconclusive. She admitted as true that hairs in item No.2(1), 2(2), 2(4), 2(5), 2(7), 2(8), 2(9) are dissimilar each other in morphological character and admitted as true that in human hairs, special morphological character of modulla is not continuous, fragmented and broken. She admitted as true that in Ex.P.14, she has not mentioned morphological character of item No.2(3), 2(6) and 2(10), 3, 24(1), 24(2) and 24(6). She admitted as true that edges may be traced in the microscopic examination. But, she has not undertaken the edges comparison. If it is put to her that putting up the cuticle of the hair subjecting for chemical decomposition, resistance test is the important test and she would like to say that it is the one of the tests. She admitted as true that she has not undertaken the above test for identification of the hairs and it is the only test in ascertaining the individual identity of the hairs. She admitted as true that in her report, she has not affixed individual identity of the hairs like article Nos.2(3), 2(6) and 2(10) and item No.3 with that of item No.24(1), 24(2) and 24(6). She further admitted as true that she has not conducted electro phorteic and electro focusing test. On conducting the above test, one could identify the proteins and enzymes in the roots of the hair. She admitted that the above test was 39 necessary for individual identification of the hairs. She also admitted as true that since she has not conducted any test of individual identity of the hairs, she did not conduct electro phorteic and electro focusing method.
31. P.W.5 B.C. Ravindra, Scientific Officer from FSL, Bengaluru, in his examination in chief, has deposed that he has undergone the training in examining the scene of occurrence and the collection of physical evidence from such scene. He has given in detail about of the scene of occurrence when he visited the spot and also deposed that a small hair was found sticking on the right hand of the deceased. He further deposed that he also noticed that the hairs were scattered around the body.
In the cross examination by the learned counsel appearing for the accused, P.W.5 deposed and admitted as true that he has not taken the independent panch witnesses to the spot. While he was inspecting the spot, the investigating officer has not simultaneously taken the work of inspection. He admitted as true that he has not handed over his investigation report to the investigating officer in the spot and further 40 admitted as true that he submitted his report as per Ex.P.45 on 07.11.2008 which he had prepared in his office. He further admitted as true that he has not sealed and packed the articles when he has handed over to the investigating officer. He admitted as true that there is possibility of falling of hairs of the inmates on the floor of the house. He has not taken the photographs of palm where the hair was found. He further admitted as true that Ex.P.56 is the photograph of the right hand palm wherein the hair could not be found. However, he volunteers that it cannot be possible to take the photographs of the hair in the palm. On seeing Ex.P.56, he deposed that he could not trace the hair, but he denied the suggestion that no single hair was found on the right hand palm of the deceased.
32. P.W.26 is the investigating officer. During the course of cross examination, he denied the suggestion that he has not incorporated in Ex.P.89-spot mahazar regarding preservation of the hair that was collected from the spot. He denied that he has not given separate numbers to each of the articles that were seized from the spot. He has not given separate number to the hair that was found in the 41 palm of the deceased. However, he has given the same number to the hair that was found in the palm of the deceased and the hair that was collected from the spot.
33. We have also perused the document Ex.P.68 regarding hair examination so also Ex.P.89-spot mahazar. Perusing the spot mahazar and on page No.2 in the last paragraph, there is a reference made about the materials found and at Sl.No.1, it is mentioned as one hair clip which was blood stained, and at Sl. No.2 - hairs found on the floor and also in the hand of the dead body. Perusing the said sport mahazar, no specific mention was made that single hair was found sticking to the right hand of the deceased. We have also perused the photograph of the right hand palm marked as per Ex.P.56, wherein, the said hair is also not seen. Looking to the oral evidence of P.W.3-Dr. Malathi, who has conducted the examination, with regard to the hairs, herself admitted that firstly the articles were not properly packed and sealed. She has also admitted that in the report she has given in this regard, she has not mentioned the reasons for the conclusion she arrived at. It is also her evidence that she has not followed the proper method and procedure 42 which was suggested during the course of cross examination by the learned counsel appearing for the appellant. It is also her admission that her examination with regard to hair comparison is inconclusive. Therefore, perusing the entire materials on records, both oral and documentary about which detailed reference is made, we are of the clear opinion that the prosecution has utterly failed to prove the circumstance that single hair was found on the right hand palm of the deceased and the comparison of that hair with the hairs of the accused collected during investigation were tallying with each other and they are of the same person..
34. The fourth circumstance relied upon by the prosecution to prove its case against the appellant-accused is that the accused who was working in IBM company remained absent from the office during noon time and the CC TV camera footages would show his absence in the office, which is one of the important circumstances to show the involvement of the appellant-accused in committing the alleged offence. 43
35. Let us examine the materials placed on record during the course of the trial such as the evidence of P.W.7 Gangadhar Hegde, P.W.10 Umamaheswaran, P.W.19 P.M. Babu and P.W.28 Ajaj Pasha and also the documents produced at Exs.P.22 to P.43.
36. Perusing the evidence of P.W.7 Gangadhar Hegde, he has deposed in his examination in chief that from May 2001 to March 2011, he was working as a project manager in IBM, EGL, Koramangala Bengaluru. He knows the accused who was working as Sibbal consultant in Mobilink project form 15.9.2008. The office was housed in 5th floor, on 7.11.2008, he was on duty. It was about 10.30 a.m., he found the accused in his desk and at about 1.30 p.m., while he was going to lunch, he had not noticed the accused in his desk. It was about 2.00 p.m., he returned to his desk after usual lunch. However, he had not found presence of the accused in his desk. Even during 3.30 p.m., he was leaving his desk for having tea, he found that the accused was not in his desk. It was about 5.30 or 6.00 p.m., while he was about to leave the office, he found the accused in his desk. He further deposed that on 28.7.2009, on enquiry by the police, he gave his statement and 44 also issued the e-mail copy regarding working of the accused in his section, which is marked as Ex.P.16 and his signature is P.16(a).
In his cross examination, P.W. 7 deposed and admitted as true that he had not produced any documents before the police regarding working of the accused in IBM on 7.11.2008. He admitted as true that for the software engineers, the desk was used to be provided along with the laptop and drawer to the desk with the key of the drawer and the laptop were used to be connected to the IBM server and each engineer was having his separate password. He admitted as true that he was not using to mark the attendance of the employee working under his unit and he was also not noting the movements of such engineers. He further admitted as true that on 7.11.2008, the accused started his work on his laptop connected with the IBM server and the project work that was allotted to the accused was the mobilink of Italy. The accused was sent to Italy and after return, the accused continued his work at IBM office, Benglauru. He had not checked and verified as to how many e- mails were sent by the accused to Italy in connection with his work on 7.11.2008. He has further deposed that he did not know whether the accused sent e-mails to Italy on 7.11.2008 at about 2.30 p.m., 3.00 p.m., 45 3.30 p.m. and 4.00 p.m. He admitted as true that the accused had returned his laptop to the IBM and on going through the laptop, the work of the accused on 7.11.2008 would be ascertained. The entire work of the accused was on the laptop and he was not having any work in writing. He further admitted as true that he had not collected the work of the accused on 7.11.2008 and had not furnished the details of work to the police and also not noted in writing the movements of the accused on 7.11.2008. He admitted as true that food court and canteen are within the premises of IBM. He denied the suggestion that on 7.11.2008, he did not notice the absence of the accused in the office at about 2.00 pm., 3.30 pm. and 5.30 pm. He is not having any documents regarding accused's absence or presence in the office, but it is only his observation in the office. He admitted as true that he had not stated before the police that on 7.11.2008 at about 1.30 p.m., 2.00 pm., 2.30 p.m. and 3.30 pm., he had not noticed the accused in the office. He further admitted as true that he was not having the special reasons for noting the absence of the accused in the office on that day. 46
37. P.W.10 Umamaheswara, Security Manager of IBM, Bengaluru, deposed in his evidence in the examination in chief that he was in charge of his duty in 'D' block, the main door of which was facing towards East. There is access control system for incoming and outgoing system. There is a CC TV camera in the main gate which is recording photos of each and every person who would enter the main gate and who would exit through the said gate. The photo was also using to record time regarding the entry and exit of the particular person. There are eight floors in the said building. Each floor is having the access control system fixed with the CC TV Cameras. All the main doors are fixed with such CC TV cameras. He was using to monitor the above cameras. He knows the accused who was working as software engineer in the EGL 'D' block IBM for about four years from 2004 to 2009. The accused was allotted with ID number. On 8.11.2008 at about 7.30 a.m., while he was in his office, his Manager called to his mobile phone referring the flashing of the article in the news papers regarding the murder of the Lakshmirangan, the wife of the accused. Immediately, he went to the Bowring hospital, where he saw the dead body of Lakshmirangan. P.W.10 has further deposed that 47 on the same day, perhaps on the evening hours, the PSI Anand came to his office and asked him to furnish the particulars regarding the access control CC TV and also enquired him whether the friends of the accused entered the main gate. The said PSI has given a letter to the Asst. Security Manger, Azij Pasha which was sent to the Security Manager Sundaresh and the same was approved for furnishing the details and therefore, himself and Azij Pasha furnished the details. He further deposed that they provided CC TV pictures, contact details of the friends of the accused and he had recorded the CD on the basis of which the photo was taken and he could produce the CD. He himself has taken the photos on the basis of the recording in the CC TV which he could identify. He is having the original photos. He himself has taken the copy of the access control system in three sheets. While perusing the documents, he found that it is the copy taken from the system which he can identify and it is marked as Ex.P.22.
In the further examination in chief, P.W.10 deposed that he had produced CD of the CC TV recorded on 7.11.2008 in which it had recorded the date and time of entry of the accused and his exit. The CD is produced as per M.O.26. He has taken 21 photos which he had 48 produced before the police inspector (for admitting these photographs in evidence and marking, the defence counsel raised objection but however, the Trial Court over ruled the objection stating that they are original taken on the system, as such the objection is over ruled and the said photographs were marked) as per Ex.P.23 to 43. He is seeing the covering letter Ex.P.44 and it bears the signature of Ajaz Pasha as per Ex.P.44(a). The relevant portions in Ex.P.22 are marked as per P.22(a) to 22 (j). He is not remembering to say when the accused had entered in the office on 7.11.2008, on that day at about 9.49 a.m., the accused came inside the IBM, EGL (D) block and went outside at about 1.05 p.m. Again he came inside the IBM, EGL D Block at about 4.17 p.m. and he went outside at about 6.20 p.m. In the deposition of this witness, it is also stated that M.O.26- CD was played before the Court and the witness deposed that the accused could be found in the photos as per Exs.P.23 to 43 and further deposed that while the accused entered the gate of the office in the morning hours, he worn different clothes, while he returned to the office at about 4.17 p.m. He further deposed that in Ex.P.22, first comes month, next comes date, next comes year. According to Ex.P.22, the accused attended his duty at 49 about 9.45 a.m. and he was in the office till 12.55 p.m. and he went outside, returned back to the office at about 4.19 p.m. and he was in the office up to 6.20 p.m. In Ex.P.22, the name of the accused is mentioned. On looking to the photos, he noticed that the accused entered the office in the morning by wearing navy blue pant and it is seen at Ex.P.38, the photo in which one could see wearing of the navy blue pant by the accused. In the evening, while he entered the office, he was wearing sky blue pant.
In the cross examination by learned counsel appearing for the appellant-accused, P.W.10 deposed that he admitted as true that he does not know personally regarding the entry and exit of the particular employee through the premises on 7.11.2008. Perhaps, in the photos at Exs.P.23 to 43, he is not appearing. He admitted as true that prior to 8.11.2008, he does not know the accused and further admitted that CC TV camera was connected to hard disc of the system and 'welcome to IBM' was the password. The CC TV camera was working for 24 hours and the data was availed for 30 days. He further admitted as true that the hard disc was not preserved and he does not know as to who was in charge of the main server on 7.11.2008. He admitted that he has not 50 made the endorsement in the register regarding its verification, perhaps, its working on 7.11.2008. He has not produced CD as per M.O.26 and the photographs as per Ex.P.23 to 43. He admitted as true that continuous image whatever recorded in the CC TV camera were not taken and he has not edited the main server. He deposed and admitted as true that on Exs.P.23 to 43 and on the CD as per M.O.26, it has not been noted as to who has edited the same. He admitted as true that on the photographs as per Ex.P-23 to P-43 and on C.D as per M.O.26, there is no certificate regarding who has prepared; M.O.26 is re-writable C.D. At the time of preparing Ex.P-23 to P-43 and C.D. as per MO.26, the police were present. CW 29/Ajaj Pasha was operating the system for Exs.P-23 to P-43 and C.D as per M.O.26. He admitted that he does not know where the image was touched and retouched; however, he denied the suggestion that in the system while touching the image the colour may be given and it may be turned in any other image. He admitted as true that the control access system would disclose the entry of the person and it would not disclose the exit of the person. He has not put his signature on Ex.P-22. He admitted as true that photographs of the accused was not taken regarding his going out of IBM Campus. 51 In the photographs as per Ex.P-23 to P-43, the parking lot could not be seen. The parking is in the ground floor perhaps abutting to the building. He admitted as true that Ex.P-23 to P-43 are not showing that the accused has reached the parking lot, he took his motor bike and has left the place. The employees were having the facility to enter the cafeteria and food pyramid. He admitted as true that from the exit, one can reach cafeteria and food pyramid of the ground floor and he was not personally monitoring the entry and exit of the accused. He has not seen the entry and exit of the accused on 07.11.2008. The photograph of exit point was not taken. He has seen the copy of the CAS recording as per Ex.P-22, where the timings as per 11.07.20 and 11.41.28, 11.42.46 are mentioned. He admitted that the photographs of the above timings have not taken. Since the above timings are pertaining to the other building therefore, the photographs of the above timings have not taken. He admitted as true that complete photographs of that day has not been produced and he has not seen the accused on that day perhaps he was not having personal knowledge of his wearing of the dress.
52
38. P.W.28 Ajaj Pasha in his examination in chief, has deposed that from 2002-2009, he was working as Assistant Manager, Security Operations, IBM Global Service India Private Ltd. EGL., Bengaluru. In his further evidence, he deposed in detail about fixing of the CC TV cameras in the blocks and about the method of the employees swiping the card by getting the entry into the blocks. He has also spoken about the document Ex.P.22 the details of entry and exit of appellant-accused Manoj Kumar.
In the cross examination, P.W.28 deposed and admitted as true that earlier to 8.11.2008, he had not seen the accused Manoj Kumar and he is seeing the accused for the first time before the court. He deposed that there are four blocks in the IBM building in question, namely A, B, C, D blocks. Food courts are provided within the campus of the said building. One has to exit the block for paying his visit to the food court and the above four blocks though are within the single compound and they are in the different places. Each block is fixed with the CC TV camera with each separate server. He admitted as true that the register is maintained in the control room to record the name and time of the person who was monitoring the server and the monitor, and the said 53 monitor has to record in the register regarding condition of the CC TV, perhaps its working if it is out of work. The said fact would also required to be mentioned in the said register. He has deposed that he cannot say the name of the person who was monitoring the CC TV in the concerned blocks on 7.11.2008. But he has admitted that without going through the register, he cannot say whether the CC TV was working on 7.11.2008 and he has not collected the data in connection with A, B, C and D blocks regarding entry and exit of the accused. He admitted as true that the engineer working in the D block would pay his visit to A, B, C blocks and he was not having the idea as to in what project the accused Manoj Kumar was working on 7.11.2008 and for his works, perhaps, to see his superior, the accused Manoj Kumar was required to pay his visit to A, B, C blocks. He admitted that if a particular person exit D Block and entered the food court, it could not be recorded. He admitted as true that none of the photos in Exs.P.23 to P.43 would show that the accused did pay his visit to the parking lot, did take his motor cycle to quit the building and campus and the above fact was not recorded in the CC TV camera. He admitted as true that photos as per Exs.P.23 to P.43 did not record the continued events and 54 the complete photos in connection with the accused on 7.11.2008 was not taken from the CC TV system. He further admitted as true that some selected movements of the accused on 7.11.2008 were taken as per the request of the police and the hard disk of the system where photos as per Exs.P.23 to P.43 were recorded was not provided to the police. The CD as per M.O. 26 was not edited. But he denied the suggestion that only few movements of the accused that was insisted by the police were recorded in the CD as per M.O.26. He again admitted as true that the entire movements of the accused on 7.11.2008 were not recorded in the said CD. He admitted as true that he had not attested on M.O.26 and Exs.P.23 to P.43 and not certified that he himself had taken the copies from the system. On Ex.P.22-control access, he had not certified that he himself had generated the copies from the system. He admitted as true that on Exs.P.22 to P.43 and on M.O.26, there are no IBM marks. He admitted as true that out of the photos as per Exs.P.23 to P.43, none of the photos would show that the accused did swipe his card at the time of exit and in Ex.P.22 control access system report, the exit point is not stated. He admitted as true that after the entry of each point, there was a lift lobby and on seeing the photo as 55 per Ex.P.22, one could see the entrance. He has seen the photos as per Ex.P.27 where one could see lift lobby. He admitted as true that the time recorded in Ex.P.28 and Ex.P.27 is different. The time recorded in Ex.P.27 is less than the time recorded in Ex.P.28. He admitted as true that there is difference of time while recording the photo in the entrance and while recording the photo in the lift lobby. He admitted as true that in the entry and exit, the photos were used to be recorded according to the timings set in the camera. In the photos as per Exs.P.23 to P.43, different timings were recorded and he had not enquired regarding different recording of time in the different places. He does not know whether Rugey cock system was used to check the timings recorded in each camera. He admitted as true that he has not used such system in ascertaining different timings recorded in different places. There was no such software in his company. Therefore, he did not use such software. If it is put to him that person could not be identified in the photos as per Exs.P.23 to P.43, he would like to say that to some extent, the person could be identified. 56
39. The learned Addl. SPP appearing for the respondent during the course of the arguments submitted that the electronic records produced in the case by the prosecution as per Ex.P.22 and Exs.P.23 to 43 which are taken out from the CC TV, were rightly admitted and relied upon by the trial court. He made the submission that even if there is no certification to the said documents by the person who has generated those documents, even then, by way of secondary evidence, the prosecution is at liberty to give its evidence as per Sections 63 and 65 of the Evidence Act. Therefore, only because of non issuance of certificate to the documents at Ex.P.22 and Exs.P.23 to 43, they cannot be rejected out rightly and the court has to look into those materials in coming to right conclusion in the matter. In support of his contention, the learned Addl. SPP has relied upon the decision in case of STATE (N.C.T. OF DELHI) VS. NAVJOT SANDHU reported in AIR 2005 SC 3820. It is also his submission that if there is any defect by the investigating officer in getting the compliance of the requirements of law, the accused cannot get the benefit of acquittal on that ground. Hence, he submitted that the trial court after considering all these aspects convicted the appellant-accused. In this regard, the learned 57 Addl. SPP has relied upon the decision of the Hon'ble Supreme Court in case of HEM RAJ S/O MOTI RAM VS. STATE OF HARYANA reported in (2014)1 SCC (Crl.) 820. However, the learned counsel appearing for the appellant-accused has also relied upon the decision of the Hon'ble Supreme Court in case of ANVAR P V VS P K BASHEER AND OTHERS reported in 2014 AIR SCW 5695 on the same point. It is his contention that mere production of the documents is not sufficient and its contents are to be proved by giving the acceptable and satisfactory evidence before the Court. So it is his contention that the documents produced by the prosecution under Ex.P.22, Exs.P.23 to 43 and M.O.26-CD were not at all proved except getting them marked during the trial of the case. In this regard, he relied upon the decisions in case of MALAY KUMAR GANGULY VS. SUKUMAR MUKHERJEE AND OTHERS reported in 2010 AIR SCW 769 and in case of NARBADA DEVI GUPTA VS. BIRENDRA KUMAR JAISWAL AND ANOTHER reported in AIR 2004 SC 175.
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40. Before coming to the oral evidence of the prosecution witnesses about the truthfulness of the electronic records i.e., Exs.P22, P.23 to P.43-photos and M.O.26-CD, let us examine the legal position about the admissibility of those documents in evidence.
41. Section 63 to Section 65-B of the Evidence Act read as under:
63. Secondary evidence. - Secondary evidence means and includes-
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copes;
(3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
64. Proof of documents by primary evidence. - Documents must be proved by primary evidence except in the cases hereinafter mentioned.
59
65. Cases in which the secondary evidence relating to documents may be given. - Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:-
(a) When the original is shown or appears to be in the possession or power -
Of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest.
42. Perusal of the provisions under Sections 65A and 65B, it is clear that the said Sections are the special provisions inserted in the Evidence Act by Act No.21 of 2000. In the decision of the Hon'ble Supreme Court in the case of ANVAR P.V. VS. P K BASHEER AND OTHERS reported in 2014 AIR SCW 5695, Their Lordships have laid down the proposition as under:
60
(A) Evidence Act (1 of 1872), Ss.59, 65A, 65B, 63, 65 - Electronic records - Admissibility - Secondary evidence of electronic record - Inadmissible unless requirements of S. 65B are satisfied.
In para Nos.14 to 17, 19, 22 and 23 of the said decision, Their Lordships have observed as under:
14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.61
15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
16. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - Opinion of examiner of electronic evidence.
17. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence act are not complied with, as the law now stands in India.
62
19. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Section 65B of the Evidence Act. That is a complete Code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.
22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position, It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of 63 Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
23. The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits - P4, P8, P9, P10, P12, P13, P15, P20 AND P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.
43. In the case on hand, perusing the documents Exs.P.22, P.23 to P.43 photos and M.O.26-CD, it is an admitted fact, even according to the prosecution, that there is no certification made by the competent person, who generated those documents, regarding the time of the printouts of the documents that were taken out from the computer/CC TV camera. In view of this admitted factual aspect and as per the decision of the Hon'ble Supreme Court, the prosecution has not complied with the requirements of Section 65B of the Evidence Act. Therefore, secondary evidence of electronic record are totally inadmissible in the present case and as such, the electronic records cannot be looked into by the court while appreciating the case of the 64 prosecution. We have also perused the another decision relied upon by the learned Addl. SPP in respect of the Parliament attack case reported in AIR 2005 SC 3820, but the said decision has been considered and over ruled in the subsequent decision by the Larger Bench of the Hon'ble Supreme Court in case of ANVAR P.V. Vs. P.K. BASHEER AND OTHERS reported in 2014 AIR SCW 5695.
44. Even otherwise, looking to the oral evidence of the prosecution witnesses about which we have already made the reference and considering the admission of the witnesses during the course of the trial, it is clear that the prosecution has utterly failed to establish the fact that the appellant-accused left the campus of the IBM and remained absent from 1.05 p.m. till 4.17 p.m. Regarding the oral evidence of P.W.7 that the appellant-accused was not at his desk during the noon time, he has not stated the said fact before the investigating officer during the investigation, but he has admitted and deposed the same for the first time before the court. Though it is the explanation and contention of the appellant-accused that he sent e-mail through his laptop during the said period to Italy, the investigating officer has not 65 collected about all those materials to verify whether it is true or not. Admittedly, according to the prosecution witnesses, there is no CC TV footages with reference to the accused going to the parking lot, taking his vehicle and leaving the IBM campus/building. In view of all these infirmities in the prosecution case, we are of the clear opinion that the prosecution has failed to establish the said circumstance with cogent and satisfactory materials.
45. Coming to the last circumstance of the prosecution case, it is that the accused gave his voluntary statement as per Ex.P.102 and in view of the said voluntary statement, recovery of the material objects i.e., M.O.1-iron pipe and M.Os.16 to 25 i.e., the personal belongings of the appellant-accused and the deceased respectively, were effected.
46. The voluntary statement of the accused which is said to have been given on 12.11.2008 was got marked by the prosecution as per Ex.P.102. With regard to Ex.P.102, it is the contention of the defence that even though no formal arrest was shown, the appellant-accused was very much taken to the police custody from the evening on 66 10.11.2008 itself, he was brought from Chennai to Bengaluru on 11.11.2008, the police themselves got prepared Ex.P.102 and obtained the signature of the accused and as such, he was within the surveillance of the police, the appellant put his signature, because of the fear, threat and coercion by the police. The second contention of the defence is that the appellant-accused is the native of Chennai, Tamil Nadu State knowing only the Tamil and English languages and he was not knowing the Kannada language. Therefore, there is no such statement given by the appellant-accused as per Ex.P.102. The third contention is that as per the prosecution case, the appellant-accused was said to have been arrested on 12.11.2008 at 11.30 p.m. and even according to the prosecution evidence, the police took half an hour for completing the arrest formalities. Therefore, the statement cannot be given on 12.11.2008. We have perused the voluntary statement of the appellant- accused as per Ex.P.102, which is in the Kannada language. In the oral evidence, P.W.26-investigating officer himself has deposed that he does not know that the accused is not having the knowledge of the other languages except English and Tamil. There is no endorsement on Ex.P.102 as to whether the accused has given such statement in English 67 and translated the same into Kannada or whether he has given the said statement in the Kannada language itself. When it is the case of the defence that the appellant-accused does not know the Kannada language and admittedly, as he hails from Tamil Nadu State, it is for the prosecution to place the satisfactory materials to show that the statement under Ex.P.102 is given by the appellant-accused himself voluntarily and at his own volition and there was no any sort of pressure or compelling circumstances for him to give such a statement. But looking to the evidence on record, we are of the opinion that the prosecution has not placed satisfactory materials firstly with regard to the accused's knowledge that he knows reading and writing of the Kannada language. As per the case of the prosecution, Ex.P.101 is also said to be given by the accused. Out of these statements i.e., Exs.P.101 and 102, it cannot be make out, which statement was given earlier and which was given later, as no time was mentioned by the prosecution about the recording of the said statements. Even if it is presumed that the accused has given the statement as per Ex.P.101 in detail, then what was the necessity for him again to give another statement as per Ex.P.102, which is also not been satisfactorily explained by the 68 prosecution. Perusing the document at Ex.P.102, the marked portion in the entire alleged voluntary statement dated 12.11.2008, which is in Kannada, reads as under:
"vÁªÀÅUÀ¼ÀÄ £À£ÀߣÀÄß eÉÆvÉAiÀÄ°è PÉÆÃgÀªÀÄAUÀ® jAUï gÀ¸ÉÛ, Ff¥ÀÄgÀ ¹UÀß¯ï ¤AzÀ JqÀPÉÌ SÁ° ªÉÄÊzÁ£ÀPÉÌ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀgÉ, ºÉÆqÉAiÀÄ®Ä G¥ÀAiÉÆÃV¹zÀ ¥ÉÊ¥ï, ªÉƨÉÊ¯ï ¥sÉÆÃ£ï ¸À»vÀ ¥Áè¹ÖPï PÀªÀgï ©¸ÁQgÀĪÀ eÁUÀªÀ£ÀÄß ªÀÄvÀÄÛ gÀPÀÛzÀ PÀ¯ÉAiÀiÁVzÀÝ ¥ÁåAmï §¤AiÀÄ£ï, ºÁåAqï UËè¸ï, ¸ÀàAeï, PÀaÃ¥ï, PÁgÀzÀ ¥ÀÄr ¸ÀÄwÛzÀÝ ¥ÉÃ¥Àgï ¥ÉÆlÖt ¸À»vÀ §AUÁgÀzÀ ªÀiÁAUÀ®å ZÉÊ£ÀÄ, N¯ÉUÀ¼ÀÄ, ªÀÄvÀÄÛ ¨Áæ¸ï¯ÉÊmï£ÀÄß ªÀÄÄaÑgÀĪÀ eÁUÀªÀ£ÀÄß vÉÆÃj¸ÀÄvÉÛãÉ"
47. Perusing the oral evidence of P.W.26 investigating officer, he has not deposed before the court about the statement Ex.P.102 in the same words said to have been given by the accused. In the oral evidence, P.W.26 has also deposed that immediately at about 11.30 p.m., he has arrested the accused and while he was in his custody, the accused has given his voluntary statement as per "Thavugalu....jagavannu thorisuthene" So this goes to show that while giving the evidence on oath before the court, the investigating officer, who is said to have recorded the statement of the accused, has not stated about the complete information given by the accused. In this 69 connection, learned counsel for the appellant-accused has relied upon the following two decisions of this Court.
1. In the case of VIJAYAKUMAR VS. STATE reported in ILR 1994 KAR 491 wherein Their Lordships have laid down the proposition as under:
"6. Our attention was drawn by the Counsel for the appellant to the manner of recording evidence by the Sessions Court, particularly with regard to most material circumstance of the accused giving information under Section 27 of the Evidence Act leading to the discovery of fact. Our attention was particularly drawn to that part of the testimony recorded by the Trial Court which shows that practically no evidence was given in this behalf by the Investigating Officer. The learned Judge has recorded the evidence as follows:-
"The accused was present in the police station as produced by P.C. 3286 and 2004. I recorded the voluntary statement of the accused, as per Ex.P.17. I arrested the accused and then seized the blood stained shirt and subjected it to P.F. No.71/91 and under Mahazar Ex.P-3."70
2. In the case of M ABBAS, DAKSHINA KANNADA VS. THE STATE OF KARNATAKA, DAKSHINA KANNADA, reported in 1996 CRL.LJ 317 wherein Their Lordships this Court have laid down the proposition as under:
" (A) Evidence Act (1 of 1872), S.27 - Evidentiary value - Murder case - Voluntary statements alleged to have been made by accused persons before police - Alleged recovery of incriminating articles, blood stained clothes and weapon of offence pursuant to said statement -
Investigating Officer not stating as to what were the information given by accused - Alleged voluntary statements of accused cannot be taken. "
48. Therefore, looking to these materials on record we are of the opinion that the prosecution has not at all established the fact that the accused gave his voluntary statement as per Ex.P.102. The said voluntary statement has not fulfilled the requirements of Section 27 of the Evidence Act so also Article 20(3) of the Constitution of India.
49. We have perused mahazar Ex.P-72. Though it is the case of the prosecution that under the said mahazar the accused led the Police 71 and his staff to the spot at Ejipura nearby the signal at Kormangala at about 9.30 a.m. and after alighting from the jeep, he went little ahead, took out one black colour plastic bag from the heap of the grass and took out one iron pipe/MO-1. Then he took the Police nearby Nigruan Mandir stating that he has kept other articles there. The accused alighted from the jeep and went little ahead and took out one black colour plastic cover, after removing stone on the ditch and took out the articles, which are the ornaments and the clothes, which were filled in the said plastic bag, perusing the same, there was one jeans pant of sky blue colour having the blood stains, one white baniyan having blood stains, two hand gloves of light yellow color having blood stains and one sponge blood stained, one white colour kerchief blood stained and there was one paper pocket containing the chilly powder, said articles were seized in the presence of panch witnesses. It is also the prosecution case that the articles were sent for examination to the FSL and report is also received as per Ex.P-13. It is also the prosecution case that as per Ex.P-13 the said articles were having the human blood stains, but perusing the result of the analysis and the opinion of the FSL, it is mentioned that the items 12, 13, 14, 17, 18 and 21 are stained 72 with 'AB' group blood, determined by adopting absorption and elution method. The blood grouping of blood stains in item No.1, 6, 8 15, 16a, 16b, 16c, 20 and 23 could not be determined as the results of the test were inconclusive. Blood in item No.11 was disintegrated; hence, their origin could not be determined. In this regard, prosecution has also examined PW-3, Dr.Malathi, who in her examination in chief deposed about the examination of articles and about the blood stains on the said articles and she has also spoken about she issuing the report as per Ex.P-13. But during the course of cross-examination by advocate for the accused, she admitted as true that now there is no seal of the Police on the articles, which she has examined and now the seal of the Police are not found on the articles; therefore, she could not compare with the seals found in the sample chit and in Exs.P-13 and P-14. She has not assigned the reasons for her opinion. She admitted as true that she has not mentioned the colour of each stain. The colur is the determining factor to ascertain the existence of blood stains. She has not mentioned crystals achieved in Takayam test, and she has not mentioned the time and age of the stains. She admitted as true that absorption and elution test is the single test and in conducting the above test, detection of 73 agglutnogens and agglutinins are the determining factors of the group of the blood and for that test one should use control sample. She further admitted that in each and every blood group including group A and B there must be the components of agglutnogens and agglutinins. She admitted as true that in her report she has not mentioned regarding detection of agglutnogens and agglutinins. She admitted as true that presence of agglutnogens and agglutinins are the determining factors of the group of the blood and in her report she has mentioned that the blood sample in item No.11 was disintegrated; therefore, the origin could not be determined and the blood sample as at item No.11 was not fit for comparison, and since the sample blood was disintegrated her test remains inconclusive. The oral evidence of PW-3/Dr.Malathi itself shows that, according to her, the test she has conducted is inconclusive. When we are of the clear opinion that prosecution has failed to establish that accused has given his voluntary statement as per Ex.P-102. The recovery of the articles, even if, taken to be established, it has no consequence.74
50. In this regard, we are referring to the decision of Hon'ble Supreme Court in case of BHIMAPPA JINNAPPA NAGANUR VS. STATE OF KARNATAKA reported in AIR 1993 SC 1469, wherein Their Lordships have laid down the proposition as under:
"(B) Penal Code (45 of 1860), S.300 - Murder -
Evidence - Statement of eye witnesses inconsistent with medical evidence as to time of death of deceased - Recovery of weapon rendered meaningless in absence of any disclosure statement - Extra judicial confession unreliable - Behaviour of eye-witness found unnatural as she being wife of deceased not trying to nurse him or offering any help which would have shown her presence at time of incident - Conviction set aside.
51. We are also referring to an another decision of the Hon'ble Supreme Court relied upon by the learned counsel for the appellant- accused in case of PRAKASH VS. STATE OF KARNATAKA reported in 2014 AIR SCW 2354 at Synopsis-F as under :
(F) Penal Code (45 of 1860), S.300 - Murder -
Recovery of blood stain clothes - Proof - Blood stain on seized clothes of accused belong to blood group of AB which is of deceased - FSL report stating that blood 75 sample taken from accused was decomposed and therefore its origin and grouping cannot be determined - Possibility that blood stain on seized clothes were his own blood stains - Absence of serological comparison of blood of deceased and accused and blood stains on his clothes renders recovery doubtful.
52. The evidence of the investigating officer-PW-26 shows that, he was the SHO of the Airport Police Station, Bangalore. He deposed that on 7.11.2008 at about 8.00 p.m while he was working as a Police Inspector at airport Police Station, Bangalore, he was the Station House Officer. He did received phone call from PW-12 regarding the death of one lady in the first floor of house No.19, 5th cross Vinayakanagar, Konenaagrahara, Bangalore. He left the Police Station along with his staff perhaps to the place of incident. While he reached the above house No.19, he did notice the gathering infront of the house, he did reached the first floor of the said house, while entered the house noticed the electric lights were switched on, he did notice the accused in the said house. While he had entered the kitchen noticed the dead body of the lady lying in the kitchen, he noticed injuries on the head and neck, the blood was spread on the floor. He had noticed that almirah 76 was opened and the articles were spread on the ground. While he did enquired the accused, who disclosed that, the lady, who was murdered was his wife Lakshmi. Immediately, he directed his staff to not to allow others to enter the house. Immediately, he sent message to his superiors, dog squad, officer of FSL, officer of finger prints, inform the ACP to send the photographer PW-19 Babu. On enquiry, the accused did disclosed that he was the Software Engineer, the deceased Lakshmi was also the Software Engineer, who used to remain in the house on account of her ill-health and he on the unfortunate day at about 9.30 a.m. left to his office, while he returned home at about 7.00 p.m. he notice the dead body of his wife in the kitchen. He lodged written complaint as per Ex.P-91 and endorsed on the same, and put his signature as per P-91(a). While he returned to the Police Station at about 9.30 p.m. he did registered the case. On the basis of Ex.P-91, prepared FIR and sent the original to the ACMM and copies to his superiors.
53. PW-11, N.Rangan, who is the father of the deceased has deposed in his examination in chief at para 6 that on 7.11.2008 while 77 he was in his hose at Chennai, he received the phone call from the father of the accused, who passed the message that his daughter Lakshmi was assaulted by somebody on account of which she died, her belonging were robbed. Then, he called the accused on mobile phone and asked him what was the matter, accused told him that Lakshmi dead and he collected the information of her death from other persons.
54. PW-12/Shivalingappa, who is the neighbour of the accused, has deposed in his examination in chief that he know the accused, who was residing in a rented house at Vinayaka Nagara. He is having his house just behind the rented house of the accused. He know CW11- Raja. On 7.11.2008 at about 7.30 p.m. while he was in his house CW- 11 came to his house and told that the wife of the accused was assaulted by somebody and she had bleeding injuries therefore, he has to pay his visit to the house of the accused. On such information, immediately he had been to the house of the accused and found the wife of the accused was on the ground with injuries on her head. He noticed the presence of the accused just near his wife.
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55. So these materials show that at the first instance i.e., at 8.00 p.m. on 7.11.2008, PW-26 received the information about the death of the deceased and the information was from PW-12. As it is information relating to commission of cognizable offence, the witness PW-26, who was SHO of the Airport Police Station, Bangalore, ought to have mentioned about the said information in the station house diary. In this case, admittedly, the station house diary of the Air port Police Station is not produced before the Court to know as to what was the information given by PW-12 to the Police at the first instance. Though it is stated by PW-26 that immediately after receipt of the said information he sent wireless message to his superior officers about the said information - no documents are produced. The crime is registered on the basis of the complaint Ex.P-91 said to have been given by the accused at the spot and the FIR is not registered on the basis of the information given by PW-12. Persuing the FIR Ex.P-90 at Sl.No.3 regarding occurrence of the offence at clause No.(b) in the column:
information received at P.S. the date is mentioned as 7.11.2008 and the time as 21.30 hours, it means it is said to be received from the accused person at 9.30 p.m. in the night. The evidence of PW-26 also shows 79 that immediately after the receipt of the information he rushed to the spot and requested the dog squad, finger print expert and also requested the photographer to come to the spot immediately and to take the photographs. He visited the spot and seen the dead body. He also deposed that by the time he went to the said house, there was gathering of the people in front of the said house. So, after all these things happened at the spot, subsequently, going to the Police Station and he said to have registered FIR at 9.30 p.m. Under such circumstances, even if it is assumed that appellant-accused gave the complaint as per Ex.P-91, whether that can be considered as complaint and on the basis of which whether the document Ex.P-90 can really be said to be the FIR in the matter. What was the information given by PW-12 at the first instance was not made known to the Court and the entries of SHD are not before the Court. It also raises a reasonable doubt whether really such information was given or not and if given whether names of any persons were mentioned as the assailants of the deceased. We are referring to the decision of the Hon'ble Supreme Court reported in the case of MOHAR SINGH ETC. VS. STATE OF RAJASTHAN 80 AND OTHERS reported in 1998 AIR SCW 2291 wherein Their Lordships have laid down the proposition as under :
Penal Code (45 of 1860), S. 300 Murder- FIR not reliable as it was taken down after inspector visited the site and witnesses were then taken to police station - Dying declaration alleged to be made by deceased to his wife, also not reliable - Acquittal of accused - No interference.
56. Therefore, the document Ex.P-91 said to be the complaint of the appellant-accused cannot be treated as first information in this case.
57. Accused has been examined under Section 313 of Cr.P.C. Perusing question No.93: it is to the following effect:
"PW-7 further stated that on 7.11.2008 at about 11.30 a.m while he was working in the office he found yourself in your desk. What have you to say?
The answer given by the accused is 'True'. "
In question No.94 he was asked to the following effect: 81
"PW7 further stated that on 7.11.2008 at about 11.30 a.m. while he returned to his desk not found yourself in your desk. What have you to say?
The accused answered as 'True'. "
58. The two questionnaire framed by the Court are totally confusing and not assisting the Court; because in both the questionnaire the time mentioned is 11.30 a.m., which is to the effect that the accused was found in his desk and again that he did not found at his desk.
59. Though PW-7 deposed in his evidence that on 7.11.2008 at about 1.30 p.m. while he was returning to his desk he has not noticed the accused in his desk. Though this seems to be an incriminating material as against the appellant-accused, but same was not put to the accused during the course of his examination under Section 313 of Cr.P.C. When that is the case, whether such material can be used against the accused to hold him guilty. In this regard, we are referring to the decision of the Hon'ble Supreme Court relied upon by the learned counsel for the appellant-accused in case of RANVIR 82 YADAV VS. STATE OF BIHAR reported in 2009 AIR SCW 3475 wherein Their Lordships have laid down the proposition as under:
" Criminal P.C.(2 of 1974), S.313 - Penal Code (45 of 1860), S.300 - Examination of accused - Murder case - No incriminating materials were put to accused under S.313 Cr.P.C. - No accusation specifically put in question during examination - It is serious lapse - Conviction of accused - Liable to be set aside. "
60. Since the case of the prosecution rests on the circumstantial evidence, each and every circumstances must be established with cogent, satisfactory and worth believable material so as to form the complete chain of circumstances without there being any missing link so as to suggest that it is the accused and the accused only committed the alleged offence and none-else. And there must be no circumstance which is inconsistent with the innocence of the accused. Perusing the entire material on record, both oral and documentary we are of the opinion that prosecution failed to establish any of the circumstances relied upon by it. The Trial Court wrongly read the evidence and wrongly came to the conclusion in convicting the appellant/accused. The Trial Court ignored the legal aspect involved in the case and 83 proceeded to convict the accused, the judgment and order of conviction passed by the Trial Court is not sustainable in law.
61. Hence, the appeal is allowed. The judgment and order of conviction dated 12.12.2012 passed by the Trial Court in S.C.No.202/2009 is hereby set-aside and the appellant accused is acquitted of the charge leveled against him and he is set at liberty forthwith, if he is not required in any other case.
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