- 1 - R IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THIS THE 22ND DAY OF MAY, 2017 PRESENT THE HON’BLE MR.JUSTICE RAVI MALIMATH AND BETWEEN :
THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL NO.1219 OF 2012 Anand S/o Lakshmaiah Aged 29 years C/o Prakash Building Vammadevanahalli Gottigere Post, Begur Hobli, Bannergatta Road, Bengaluru City.
(By Sri N.R.Krishnappa, Advocate) AND :
The State by Yalahanka New Town Police Represented by SPP High Court of Karnataka High Court Building Bengaluru-560 001.
..Appellant ..Respondent (By Sri Vijay Kumar Majage, Additional SPP) This Criminal Appeal is filed under Section 374(2) Cr.P.C praying to set aside the judgment of conviction dated 27.09.2012 / 04.10.2012 passed by the Presiding Officer Fast Track Court-X, Bengaluru City, in S.C.No.83/2009 convicting the appellant/accused No.2 for the offence punishable under Section 302 r/w 34 of Indian Penal Code.
This Criminal Appeal having been heard and reserved for judgment on 04.05.2017, coming on this day, B.A.Patil, J. pronounced the following:
J U D G M E N T This appeal has been preferred by accused No.2 by assailing the judgment and order of conviction and sentence passed by the Fast Track Court No.X, Bengaluru, dated 27.9.2012 in SC.No.83/2009.
2. The brief matrix of the case of the prosecution is that, the complainant Linga Reddy was residing along with his deceased wife Smt.Lakshmi and children in residential quarters at No.318/D West Colony, Railwheel Factory, Yelahanka New Town, Bengaluru. On 13.8.2008, at about 1.00 p.m., accused No.1 came to the house of the complainant along with CW.2-Srinivasa. On seeing accused No.1, complainant identified that, he is the son of his maternal aunt and on that day they had lunch. On 14.8.2008, at about 11.30 a.m., CW.2- Srinivasa who used to reside opposite to the house of the complainant, noticed that, accused Nos.1 and 2 were proceeding towards the house of the complainant. By seeing CW.2, accused No.1 tried to cover his face to avoid to show his face to CW.2. It is further alleged that, thereafter accused Nos.1 and 2 entered into the house of the complainant, at that time deceased Smt.Lakshmi was present in the house, they requested her to provide water for drinking. It is further alleged that when she brought water, accused No.1 pressed her neck and accused No.2 put cloth into her mouth, when she fell down, accused persons tied her neck with a pillow cover cloth and caused the murder. It is further alleged that accused Nos.1 and 2 thereafter took away money from almirah and they also robbed gold ornaments found over the body of the deceased Lakshmi. When the daughter of the complainant came from school, the door was opened, she entered into the house and saw her mother Lakshmi was lying in the passage. She tried to wake her up, immediately she went to neighbouring house and informed one Saraswathi who also tried to wake her up and she noticed injuries on the forehead of the deceased Lakshmi and the ornaments were missing. Thereafter she informed the said fact to the complainant who was in his office. Immediately, the complainant after obtaining the permission from his boss, was proceeding to his house, on the way he saw CW.2 and one Doreraj taking his wife Lakshmi in a car to the hospital. He also went along with them to the hospital, where he noticed that she is dead and the ornaments were missing. At that time, CW.2-Srinivasa told him that he saw accused No.1 who has been brought by him previous day, he along with another person were proceeding towards his house, under the impression that he is his relative, he went to withdraw the amount from ATM counter. On the basis of such allegations, the complaint was filed by the complainant, based on which a case was registered in Crime No.187/2008 for the offence punishable under Section 302 r/w. Section 34 of IPC. After completion of investigation, charge sheet was filed against the accused. Thereafter, the learned CJM, Bengaluru took the cognizance and after following the procedure under Section 207 of Cr.P.C. since the alleged offences are triable by the Court of Sessions, he committed the case to the Sessions Court. Thereafter, the Sessions Court took the cognizance and after securing the presence of accused Nos.1 and 2, after hearing them about charge, charge has been framed, to which accused Nos.1 and 2 pleaded not guilty as such, the trial was fixed.
3. In order to prove its case, the prosecution has got examined PWs.1 to 21 and got marked Exs.P1 to P39 and MOs.1 to 12. After closure of the prosecution case, statement of the accused under Section 313 of Cr.P.C. was recorded. Accused No.2 did not lead any defence on his behalf. During the course of trial, accused No.1 reported to be dead, hence the case against accused No.1 was ordered to be abated on 15.9.2011.
4. After hearing the learned Public Prosecutor and the learned counsel for the accused, impugned judgment came to be passed. Being aggrieved by the same, appellant-accused No.2 is before this Court.
5. We have heard Sri N.R.Krishnappa, learned counsel for the appellant-accused No.2 and the learned Sri Vijaykumar Majage, learned Additional SPP appearing for the State and perused the records.
6. Sri N.R.Krishnappa, the learned counsel appearing for the appellant-accused No.2 would vehemently argue and contend that there is no material evidence to convict the accused-appellant. No description of accused No.2 has been given either in the complaint or in subsequent proceedings. Accused No.2 came into picture only when accused No.1 was apprehended at Bannerghatta. He would contend that the only basis for conviction of accused No.2 is recovery of the gold bangles from his house, but the same has not been proved by the prosecution. He would further contend that the recovery mahazar pancha PW.19 has turned hostile and subsequently he has given go by to his earlier deposition. PW.19 has not identified the gold bangles and the said gold bangles have not been seized by the Investigating Officer at the time of recovery. He would further contend that as per Ex.P35, the said mahazar was drawn on 16.8.2008 in between 10.15 a.m. and 11.15 a.m. and Ex.P36 the recovery mahazar in respect of accused No.1 was drawn in between 11.45 and 12.45. The said document does not disclose the correct timings whether it was in the morning hours or during night hours. He would further contend that when once the recovery has not been proved by the prosecution, then under such circumstances, the accused-appellant is entitled to acquittal. Alternatively, he has submitted that if at all the recovery has been done from the possession of accused No.2, he will be liable for having dishonestly received the stolen property under Section 411 of IPC.
7. He would further contend that as per the case of the prosecution, before the incident, PW.1-complainant has received a phone call from stranger, but the police have not investigated as to whose phone call the complainant has received. He would further contend that though PW.2 has seen accused Nos.1 and 2 proceeding towards the house of complainant by covering their faces, he never questioned eventhough he suspected them. Under such circumstances, the evidence of PW.2 appears to be not natural. He would also contend that the test identification parade has not been conducted, as such the identification of the accused is doubtful and therefore the accused No.2-appellant is entitled for acquittal. In order to substantiate his contention , the learned counsel for the appellant has relied upon a decision of the Apex Court in the case of Prakash Vs. State of Karnataka, reported in 2014(2) AKR 663 (SC). He would also contend that after examination of the Investigating Officer, material witnesses have been examined, as such the accused was not having any opportunity to cross-examine the Investigating Officer. He would further contend that seized articles have not been sent to Forensic Science Laboratory for chemical examination, eventhough it is mandatory. In order to substantiate the said contention, he has relied upon a decision of this Court in the case of Guru @ Gurumallappa Vs. State of Karnataka rep. by Malavalli Rural Police Station, Mandya, reported in ILR 2013 KAR 5293. He would further contend that immediately after the incident, it is PW.6 and the wife of PW.2 who have seen the deceased and thereafter PW.2 and one Doreraj took her to the hospital, but prosecution has not examined the said Doreraj and the wife of PW.2 who are considered to be material witnesses, as such it will be fatal to the case of the prosecution. He would further contend that the Investigating Officer has not produced any material to show that from which phone PW.6 called PW.1, so also the wife of PW.2. He would further contend that, there are contradictions, omissions and improvements in the evidence of PWs.1, 2, 6, 8, 9, 19 and 18. This aspect has not been properly appreciated by the trial Court. The evidence produced does not repose confidence of the Court to convict the accused. On these grounds, he prayed for allowing the appeal.
8. Per contra, Sri Vijaykumar Majage, the learned Additional SPP appearing for the State, justifying the impugned judgment and order of conviction and sentence, would contend that there is corroboration in the prosecution witnesses. All the circumstances have been established by the prosecution. The trial Court after considering the entire evidence, has rightly convicted the accused- appellant. He would also contend that though PW.19, the recovery pancha has not supported the case of the prosecution, he has admitted his signature on Ex.P36 and even the recovery of gold articles from the possession of accused No.2 has been proved by the prosecution. To that extent, there is corroboration of the evidence of PW.18-Investigating Officer who has recovered the gold articles from the possession of the accused. He would further contend that the alleged incident has taken place in between 11.30 a.m. and 12.00 Noon. The complaint is registered at about 1.45 a.m. on the same day and as such there is no question of falsely implicating the accused in the said crime. He would further contend that PW.2 has seen accused No.1 one day earlier to the incident and subsequently on the date of the incident, he has seen accused Nos.1 and 2 near the house of the complainant under the broad light. Under such circumstances, it is not necessary to hold the test identification parade. He would further contend that PWs.8 and 9 are the relatives of accused No.1 and they have seen immediately after the incident by the side of compound wall of residential quarters of Railwheel factory. He would further contend that accused No.2 has left the job on 13.2.2008 thereafter he was absconding and has not attended his duties. This circumstance also indicates involvement of accused No.2 in the crime. He would also contend that since the police officials have been deputed to Yelahanka Police Station and were on duty, as such they can be part and parcel of the investigation. He would also contend that accused have not made out any case, why they have been falsely implicated in the case. Hence, he would contend that the accused-appellant has not made out any good grounds so as to interfere with the impugned judgment and the same has to be confirmed.
9. Keeping in view the aforesaid submissions, let us consider whether the prosecution has proved the guilt of the accused beyond reasonable doubt. PW.1 is the husband of the deceased Lakshmi. He has deposed that CW.2-Srinivasa is residing in front of his house. Accused No.1 Ramareddy is the son of his maternal aunt. He has deposed that on 13.8.2008, in the afternoon when he came for lunch, at that time, CW.2-Srinivasa brought accused No.1 by saying that his relative has come, it was at about 1.15 p.m. He has also deposed that, he identified accused No.1 as his relative and called him inside the house, after talking for a while, they had lunch. Thereafter accused No.1 informed that he has some work at Yelahanka and he wants to go there. PW.1 took him on his Herohonda motorbike, dropped him and went to his office. He has further deposed that on 14.8.2008, at about 8.00 a.m., his wife prepared the breakfast and after having breakfast he sent his children to school and he went to office. At that time, his wife Lakshmi was left alone in the house. He has further deposed that at about 11.45 a.m., or 12.00 Noon, he received a phone call from his daughter by saying that his mother has fallen and immediately after frightened he was proceeding, on the way he met CW.2-Srinivasa and Doreraj who were taking his wife in a car to Railway Hospital. He also joined them. In the hospital, after examination of Smt.Lakshmi, she was declared to be dead. At that time, there were no ornaments on the body of the deceased and there were injuries on her left forehead, both the sides of neck, and abrasion over the body. He has further deposed that, at that time, CW.2 told him that, he saw the person who had come to his house along with accused No.2 and he saw climbing the steps towards his house and at that time accused No.1 covered his face with hands. As he knew accused No.1 as the relative of PW.1, he left them and he went to ATM counter to draw the money. He has further deposed that CW.2 told that when he was near ATM counter, his wife called him over phone and informed him to come early as Lakshmi has fallen. Immediately, he came there and by seeing, he called CW.3 and took her to the hospital. During the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness.
10.(a) PW.2 is the neighbour who is residing in front of the house of PW.1. He has also reiterated the evidence of PW.1.
(b) PW.3 is the pancha to inquest mahazar at Ex.P23.
(c) PWs.4 and 5 are the panchas to spot mahazar at Ex.P24.
(d) PW.6 is the daughter of PW.1. She has deposed that after coming from the school, she noticed deceased Lakshmi fallen in the passage, immediately she called wife of CW.2 who in turn informed PW.2 over phone. She has also deposed about the gold articles which the deceased used to wear.
(e) PW.7 is the Assistant Engineer who prepared the sketch of scene of offence as per Ex.P25.
(f) PW.8 is the relative of PW.1 and accused No.1.
He has deposed that due to some work he had been to Yelahanka and after finishing his work, when he was proceeding near the residential quarters of Railwheel Factory by the side of compound, near Annapurneswari Hotel, he saw accused Nos.1 and 2 going hurriedly being frightened. He has further deposed that, thereafter accused Nos.1 and 2 went in an autorikshaw. It was about 12.00 noon and thereafter they went to the house of PW.1 and there he came to know about the incident explained by PW.1.
(g) PW.9 is also the relative of accused No.1. He has also deposed that he is doing real estate business. On the date of incident at about 12.00 Noon, in front of Annapurna Hotel, when he was proceeding outside the compound of Railwheel Factory, accused Nos.1 and 2 were coming and after seeing the same, he called accused No.1 but being frightened they went in an autorikshaw. Thereafter they went to the house of PW.1 and came to know about the incident.
(h) PW.10 is the doctor who conducted the autopsy over the dead body of deceased Lakshmi. Post mortem report is at Ex.P26.
(i) PW.11 is the Police Constable who carried FIR to the jurisdictional Court.
(j) PW.12 is the doctor who was working in the Railway Hospital, Yelahanka where the deceased was taken in a car. After examination, he declared her dead and has given the report as per Ex.P28. He has deposed that if a person having nail in his fingers, if he presses the neck, the injuries found over the neck of the deceased can be caused and the tongue will be swollen.
(k) PW.13 is the PSI who has apprehended accused Nos.1 and 2 and produced before the Police Inspector as per Ex.P30.
(l) PW.14 is the pancha of seizure mahazar of the amount from the accused Nos.1 and 2 as per Ex.P3.
(m) PW.15 is the Police Constable who carried the dead body and collected the clothes of the deceased and produced before the Investigating Officer as per Ex.P32.
(n) PW.16 is the Head Constable who accompanied PW.13 to apprehend the accused persons.
(o) PW.17 is the Police Inspector who investigated the case and filed the charge sheet against the accused.
(p) PW.18 is the Police Inspector who partly investigated the case.
(q) PW.19 is the recovery pancha of gold articles at the instance of accused Nos.1 and 2 as per Exs.P35 and P36.
(r) PW.20 is the photographer who took the photographs of the body of the deceased.
(s) PW.21 is the operator of JCB. He has deposed that on 14.8.2008, he had been to the room of one Deppak to sleep, at that time, accused No.1 one Jawaraiah and himself were there. Accused No.1 came at about 7.00 p.m. and at that time, accused No.1 was frightened and said Deepak asked why he has been frightened and after the dinner, they slept.
11. The entire case rests on circumstantial evidence. There are no eyewitnesses. It is well established principles of law that, if a case rests on circumstantial evidence, all the circumstances are to be linked with one another and the Court will be in a position to see the chain of events and if the chain of events and important links have been established by the prosecution, then it is said to have been proved. This proposition of law has been laid down in the case of Shaikh Abdul Hameed and another Vs. State of Madhya Pradesh, reported in AIR 1998 SC 942 (in paragraph-8), which reads as under:-
“8. We have considered the circumstantial evidence in this case and find that all the links of chain of circumstances are unbroken and complete. We are, therefore, of the opinion that circumstantial evidence is consistent with the guilt of the two accused. The only conclusion from the established circumstances in the case before us is that it were the appellants who committed the murder of three deceased persons and were rightly convicted.”
12. It is also well established principles of law that the prosecution has to establish that the circumstances proved lead to one and only conclusion towards guilt of the accused. The evidence produced must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The said dictum is laid down in the case of Rukia Begum Vs. State of Karnataka, reported in AIR 2011 SC 1585 (paragraph- 10), as under:-
10. “No doubt it is true that for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in fanciful manner. In order to sustain conviction circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard and fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case. Here in the present case the motive, the recoveries and abscondence of these appellants immediately after the occurrence point out towards their guilt. In our opinion, the trial court as also the High Court on the basis of the circumstantial evidence rightly came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt so far as these appellants are concerned.”
13. Keeping in view the above proposition of law, whether the prosecution has established all the circumstances, so as to bring home guilt of the accused beyond reasonable doubt.
14. The first and foremost contention of the learned counsel for the appellant is that, the circumstance of recovery at the instance of accused No.2 is not proved as there is no material evidence to convict the accused. The recovery evidence which has been relied upon by the trial Court for the purpose of convicting the accused is not trustworthy and reliable. He brought to our notice the evidence of PW.19 and thereby he submitted that though during the course of examination-in-chief he has deposed that along with police, accused No.2 took him to his house and there he produced two gold bangles. He has deposed that along with the said bangles, he was also having a mangalya chain, another chain with black beads, also ear-studs and the same were seized by drawing a mahazar as per Ex.P36. Subsequently during the course of cross-examination, he has completely given ‘U’ turn to his earlier version and as such the said witness has been treated as hostile and the learned Public Prosecutor has cross-examined the said witness. In that light, he submitted that the said evidence is not trustworthy and reliable so as to prove the recovery.
15. We have cautiously and carefully gone through the evidence of PW.19 and Exs.P35 and P36. Subsequently, this witness has turned hostile. But on going through the records, it is clear that the witness came to be examined on 23.01.2012 and on the same day the learned counsel for the accused has cross- examined the said witness. During the course of cross- examination, it has been elicited from the mouth of this witness that in the house of accused No.2 police and accused No.2 went inside and the witness has also gone along with them and at that time accused No.2 has produced two gold bangles and one mangalya chain. So far as this part of the evidence is concerned, which has been elicited during the course of cross-examination corroborates the evidence of PW.19 in examination-in- chief. When the said aspect has been elicited by the accused during the course of cross-examination, then under such circumstances, the said evidence can be relied upon by this Court with the corroboration of evidence of PW.18, the Investigating Officer. On going through the evidence of PWs.19 and 18 as well as Ex.P36 it clearly indicates that two gold bangles and a mangalya chain has been recovered from the possession of accused No.2. There is full corroboration in the prosecution evidence to substantiate the said fact. It is well established principles of law that the deposition of hostile witness can be relied upon at least up to the extent he supported the case of the prosecution. This proposition of law has been held in the case of Paramjit Singh @ Pamma Vs. State of Uttarakhand, reported in 2010 SAR(Crl) 882. It is also well established principles of law that evidence of hostile witness cannot be discarded as a whole and relevant parts thereof which are admissible in law can be used either by the prosecution or by the defence. This proposition of law has been held in the case of Birju Vs. State of Madhya Pradesh,, reported in (2014) 3 SCC 421, wherein it is observed in paragraph-9 as under:-
“9.PWs.1 to 4 and 7 fully and completely supported the case of the prosecution. PW.1, the grandfather of the child, PWs.2, 3, 4 and 7 have depicted an eye-to-eye picture of what transpired on the fateful day. Their version is consistent and highly reliable. The eyewitnesses’ version is fully corroborated with the postmortem and FSL reports. PW.6, of course, has been declared as hostile, but the evidence of a hostile witness cannot be discarded as a whole and the relevant parts thereof, which are admissible in law, can be used, either by the prosecution or the defence. Reference may be made to the judgment of this Court inC.Muniappan Vs. State of T.N., reported in (2010)9 SCC 567.”
In the light of the above dictum laid down by the Apex Court to the extent of recovery of two gold bangles and one chain from the possession of accused No.2 has been proved by the prosecution.
16. PW.19 was examined on 23.1.2012.
Subsequently the said witness has been recalled on 23.2.2012, i.e., after one month of earlier examination and at that time during the course of cross-examination, he has completely given ‘U’ turn to his earlier version. When a witness has been recalled and cross-examined and at that time, if he turns hostile, then under such circumstances, it can be inferred that the witness might have been own over or that he might have been pressurized with some consequences and as such he might have turned hostile. Keeping in view the above aspect, if we analyze the evidence of PW.19 to the extent of recovery, we found that there is corroboration and consistency in material particulars.
17. At this juncture, the learned counsel for the accused-appellant submitted that if the said gold articles are recovered from the possession of accused No.2, then under such circumstances, the accused is liable only for the offence for having dishonestly received the stolen property under Section 411 of IPC. We have cautiously and carefully scanned the entire evidence. But no where the accused-appellant has made out such case. Hence, the said contention of the learned counsel for the appellant-accused No.2 cannot be accepted. The said contention is without any foundation. It is just only with an intention to reduce the punishment at last moment arguments.
18. Accused No.2 has also not explained under Section 313 of Cr.P.C., as to under what circumstances he was in possession of gold articles belonging to the deceased Lakshmi at the time of recovery. PW.6 the daughter of the deceased has deposed about the gold articles which the deceased used to wear and immediately after the incident, they were missing from the body of the deceased and were recovered from the possession of accused No.2. In the absence of any explanation, an adverse inference can be drawn against the accused to the effect that after causing the murder of the deceased, they have taken away the gold articles and cash from the house of PW.1.
19. The second circumstance on which the prosecution has relied upon is that on 13.8.2008 accused No.1 came to the house of the complainant at about 1.30 p.m. and he had lunch and thereafter he went along with the complainant on his motorbike. This circumstance is not disputed by the learned counsel for the accused. It is also not disputed that accused No.1(since dead) was the relative of the complainant and on the way he met PW.2- Srinivasa and PW.2 was also acquainted with him.
20. The next circumstance is that at about 11.30 a.m. accused Nos.1 and 2 were present near the house of the complainant and were proceeding towards the said house and at that time PW.2 who has come to his house to take ATM card to withdraw the amount, has seen them and even he heard the sound of calling bell made by accused Nos.1 and 2. Immediately thereafter PW.6 within a short span of period came from school, she saw her mother deceased Lakshmi lying in the passage and immediately thereafter she called the wife of PW.2, who in turn called PW.2 and immediately he has come and noticed that the deceased Lakshmi has fallen in the passage with injuries and thereafter he along with one Doreraj has taken her to the hospital. On going through the said circumstances, it indicates that accused Nos.1 and 2 went to the house of the complainant, by noticing that the deceased was alone in the house, they pressed the calling bell and when the deceased opened the door, they requested for providing drinking water and when she turned to bring the water, they committed the alleged offence and they have taken the cash from the almirah as well as gold articles found over the body of the deceased. There is a consistency in the evidence of PW.2 for having seen accused Nos.1 and 2 proceeding towards the house of the complainant immediately prior to the alleged incident. During the course of cross- examination, the accused persons have not made out any case why earlier to the incident they were there near the house of the complainant. In the absence of any such explanation the only inference that can be drawn is that it is the accused who have committed the alleged offence, that too when the gold articles and cash have been recovered from the possession of the accused.
21. The next circumstance on which the prosecution has relied upon is that, immediately after the incident accused Nos.1 and 2 were proceeding by the side of the compound of residential quarters of Railwheel Factory. PW.8-K.Srinivasa has deposed that on 14.8.2008 he and his relative have gone to Yelahanka for business purpose. While returning, near the residential quarters of Railwheel Factory in between 12.00 Noon and 12.15 p.m. he saw both the accused coming out from the residential quarters compound being frightened. He has also seen both the accused going hurriedly in an autorikshaw. So also PW.9 who is relative of accused No.1 has deposed that he is doing real estate business. On the date of the incident, when he was proceeding in front of Annapurna Hotel, he saw accused Nos.1 and 2 proceeding outside the compound of the residential quarters of Railwheel Factory. He has deposed that he called accused No.1, but being frightened, they went hurriedly in an autorikshaw.
It was about 12.00 Noon. Admittedly, the incident has taken place in the house of the complainant in between 11.30 a.m. and 12.00 Noon and at about at 11.30 a.m.
PW.2 has seen both the accused near the house of the complainant and at about 12.00 Noon PWs.8 and 9 have seen both the accused coming out of the compound of the residential quarters of Railwheel Factory and at that time they were frightened. In this behalf also, there is a corroboration in the evidence of PWs.8 and 9, which gives a link to the evidence of PW.2. During the course of cross-examination of PWs.8 and 9, nothing has been elicited as to why they are depositing as against the accused, though they are relatives. In that light, the evidence of PWs.8 and 9 appar to be trustworthy and reliable.
22. The last circumstance which the prosecution relying upon is that of evidence of PW.21. PW.21 is the Operator of JCB. On 14.8.2008 he had been to the room of one Deepak to sleep and at that time accused No.1 Deepak, Jawaraiah and himself were present in the room and accused No.1 was frightened. Deepak asked accused No.1 as to why he was frightened. Subsequently they all slept. During the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness.
23. On going through chain of all the events as narrated above, it clearly indicates that it is accused Nos.1 and 2 who have committed the alleged offence. Though the prosecution has not specifically made out any case about the motive, on careful consideration of the material on record during the course of cross- examination, it has been elicited that the father of accused No.1 has borrowed some money from PW.1 so also brother of accused No.1. The complainant insisted for repayment of the said money. In this behalf, what has not been proved by the prosecution has been proved by filling up the link during the course of cross- examination. It is well established principles of law that motive is a doubled edged weapon which can be used as a shield or sword.
24. As referred to by us supra, if a case rests on circumstantial evidence, all the circumstances if they are so linked and it is complete chain and has not left any other hypothesis, than that of the guilt of the accused, then, it can safely be held that the prosecution has established and proved the case against the accused. It is said men may lie but not the circumstances. In that light, all the circumstances point out the guilt of the accused, no other inferences are there to give benefit of doubt to the accused. It is well established principles of law that doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common-sense. It must grow out of the evidence in the case. What is proved beyond reasonable doubt has been eloquently explained by the Apex Court in the case of State of U.P. Vs. Krishna Gopal & another, reported in AIR 1988 SC 2154 (paragraph-13), which is as under:-
“There might also be some justification for the grievance of the appellant that the High Court had preferred some observations in the medical evidence – which Sri Prithviraj characterized as merely conjectural answers – to the other categoric answers by the very medical witnesses themselves. Sri Prithviraj also submitted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye- witnesses’ account which had to be tested independently and not treated as the “variable” keeping the medical evidence as the “constant”.
It is trite that where the eye-witnesses’ account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses’ account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the ‘credit’ of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to ‘proof’ is an exercise particular to each case. Referring to of probability amounts to ‘proof’ is an exercise the inter- dependence of evidence and the confirmation of one piece of evidence by another a learned author says: (See “The Mathematics of Proof II” : Glanville Williams: Criminal Law Review, 1979, by sweet and Maxwell, p.340(342)).
“The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one- piece of evidence may confirm the other.”
Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common- sense. It must grow out of the evidence in the case.
The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element, in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice.”
25. During the course of arguments the learned counsel for the appellant has contended that the wife of PW.2 and Doreraj who have seen the deceased immediately after the incident have not been examined by the prosecution and as such an adverse inference can be drawn against the story of the prosecution. It is well established principles of law that it is not necessary for the prosecution to examine all the witnesses quoted in the charge sheet. The material witnesses so as to prove the case of the prosecution are sufficient. So also it is discretion of the prosecution which witness has to be examined by them to substantiate its case. Only an adverse inference can be drawn if it is unnatural and not probable and non-examination of such witness will take away the case of the prosecution. Such circumstances are not existing in the instant case. In the instant case, PW.2 has seen the accused earlier to the incident and subsequently he has also seen proceeding towards the house of the complainant and thereafter they came back and seen the deceased fallen in the passage with the injuries. The said aspect if it substantiates the case of the prosecution, then under such circumstances, non- examination of wife of PW.2 and one Doreraj does not affect the case of the prosecution in any manner.
26. Another contention taken up by the learned counsel for the appellant-accused No.2 is that test identification parade has not been conducted by the prosecution. Ordinarily identification of an accused for the first time in Court by a witness should not be relied upon in order to convict the accused without there being any corroboration of test identification parade. In the absence of test identification parade the factum of recognition and placement of the name in the FIR practically do away with the requirement of test identification parade. On going through the complaint at Ex.P1 it indicates that the alleged incident has taken place between 11.00 a.m. and 12.00 Noon, the complaint came to be filed at about 1.45 p.m. in which the name of accused No.1 along with another person is appearing. Under such circumstances, it is not necessary to hold test identification parade. Be that as it may, when the witnesses knew the accused before the incident and if they were acquainted with each other, then under such circumstances it is not necessary to conduct test identification parade. On careful perusal of the evidence of PW.2, recorded on 21.6.2010, during the course of cross-examination, he has identified accused Nos.1 and 2. Even it is the specific case of the prosecution that PW.2 took accused No.1 on 13.8.2008 to the house of the complainant and subsequently on 14.8.2008 he has seen accused Nos.1 and 2 in the broad light, proceeding towards the house of the complainant and thereafter on 5.1.2010 he has identified accused No.2 before the Court. It indicates that on the basis of acquaintance of accused Nos.1 and 2 he has identified them. Under the aforesaid facts and circumstances, non-conducting of test identification parade will not be fatal to the case of the prosecution. This proposition of law has been laid down in the case of Sarwan Singh Vs. State of Punjab, reported in AIR 2002 SC 3652. By keeping in view the above proposition of law and the evidence on record, we are of the considered view that the contention raised by the learned counsel for the appellant does not deserve any consideration.
27. The learned counsel for the appellant has contended that there are contradictions, omissions and improvements in the statement of the witnesses and the same have not been properly considered and appreciated by the trial Court. It is true that if there are material contradictions, it will take away the case of the prosecution, then under such circumstances, definitely the Court has to rely upon such contradictions and acquit the accused. But unfortunately in this case, no such contradictions, omissions and improvements have been proved in the evidence as contemplated under the law. In order to prove the contradictions, the statement must be marked and the said marked statement must be read out to the Investigating Officer. In this connection, it is relevant to refer to the decision of the Apex Court in the case of V.K.Mishra & another Vs. State of Uttarakhan & another, reported in (2015)9 SCC 588, wherein the Apex Court in paragraphs 14 to 19 has observed thus:-
“14. Mr.K.T.S. Tulsi, learned Senior Counsel for the appellants submitted that FIR contains only allegations of torture and cruel behaviour on the part of the appellants towards the deceased and in his statement recorded by the police under Section 161 CrPC, PW 1 had not stated anything about the alleged dowry demand whereas in his statement recorded by the police PW 1 had only stated about many restrictions imposed on his daughter due to which Archana felt suffocated. Contending that there were no allegations of cruelty in connection with dowry demand or any such conduct of the appellants which could have driven Archana to commit suicide either in the FIR or in the statement of PW 1 recorded on the next day by the investigating officer, the learned Senior Counsel urged and tried to persuade us to look into the statement of PW 1 recorded under Section 161 CrPC.
15. Section 161 CrPC titled “Examination of witnesses by police” provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 CrPC can be used at any trial are indicated in Section 162 CrPC. Section 162 CrPC reads as under:
‘162. Statements to police not to be signed: Use of statements in evidence.-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid any part of his statement if duly proved may be used by the accused, and with the permission of the court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
Explanation .-An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.’ 16. Section 162 CrPC bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) CrPC can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) CrPC. The Statements under Section 161 CrPC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the re- examination of the witness if necessary.
17. The Court cannot suo moto make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 CrPC “if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross- examination and also during the cross- examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.
18. Section 145 of the Evidence Act reads as under:
‘145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.’ 19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction.”
28. Keeping in view the above proposition of law of the Apex Court, on careful examination of the evidence produced, it does not pass the above test and the said exercise has not been done to bring the contradiction on records as contemplated under law. In the light of the above discussion, the said contention of the learned counsel for the appellant is not acceptable.
29. It is submitted by the learned counsel for the appellant that before examining the material witnesses the Investigating Officer came to be examined as PW.18 and thereafter the recovery witnesses and other witnesses have been examined and as such the accused- appellant was deprived of the right of cross-examination of the Investigating Officer, in accordance with law. Under the normal circumstance, the said method is not advisable. But however, the accused-appellant was having an opportunity, if at all he was intending to cross- examine PW.18, then under such circumstances, he could have filed an application for recalling of PW.18. Even the records indicate that after the cross-examination and after examination of other witnesses, accused has filed application for recalling the witnesses and thereafter he has cross-examined such witnesses. It indicates that he was also knowing such procedure. If accused has not used his best opportunity provided to him, then under such circumstances, the principles of natural justice and fair trial is not going to be affected. In that light also, there is no substance in the said contention.
30. Though the learned counsel for the appellant has urged several other grounds like PW.1 received a phone call from a stranger and it has not been traced during the course of investigation and how PW.2 has come out of the office during the office hours without there being any permission and seized articles have not been sent to Forensic Science Laboratory are all of not much importance when the other circumstances clearly point out the guilt of the accused beyond reasonable doubt. Hence, the minor discrepancies are to be ignored that too, when the accused-appellant has been involved in a serious offence of committing murder of an innocent lady only for the purpose of gain. In that light, the said submissions cannot be accepted.
31. In view of the aforesaid discussion made by us at length, we are of the considered opinion that the appellant-accused No.2 has not made out any good grounds to interfere with the impugned judgment. We have carefully and cautiously gone through the impugned judgment. We found that there is no irregularity or illegality in the impugned judgment so as to interfere with the same. Hence, the same deserves to be confirmed.
Accordingly, appeal is dismissed.
SD/- JUDGE SD/- JUDGE *ck/-