IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR. JUSTICE K. SOMASHEKAR CRIMINAL APPEAL NO. 1275 OF 2015 BETWEEN Karthik @ Karthik Kumar @ Karthik Gowda @ Santhosh, S/o Gopalakrishna, Aged about 25 years, R/at No. 159, 12th Cross, B-Sector, Yelahanka Upanagar, Bangalore, Pin Code – 577 004.
(By Sri. B.V. Pinto, Advocate for Sri. Raju C.N., Advocate) AND ... Appellant State by Dabaspet Police, Bangalore Rural District, Represented by SPP, High Court of Karnataka at Bangalore, Pin Code – 560 001. ... Respondent (By Sri. Vijaykumar Majage, Addl. SPP.) This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the judgment of convicting and order of sentence dated 21.08.2015 passed by the Prl. District Judge, Bengaluru Rural District, Bengaluru in S.C.No. 179/2011 – convicting the appellant/accused for the offence punishable under Section 302, 404 of IPC. There is no need to impose separate sentence for the offence punishable under Section 404 of IPC accordingly the appellant/accused is sentenced to undergo imprisonment for life and to pay fine of Rs. 15,000/- in default of payment of fine shall undergo rigorous imprisonment for 2 years for the offence punishable under Section 302 of IPC. The appellant/accused prays that he be acquitted.
This Criminal Appeal having been heard and reserved for Judgment on 12.12.2018, coming on for pronouncement of Judgment, this day, K.SOMASHEKAR, J., delivered the following:
JUDGMENT This appeal is directed against the judgment of conviction and order of sentence dated 21/24.08.2015 passed by the Prl. Sessions Judge, Bengaluru Rural District in S.C.No.179/2011 convicting the accused for the offences punishable under Sections 302 and 404 IPC, 1860. The accused was sentenced to undergo imprisonment for life and to pay a fine of Rs.15,000/- for the offence punishable under Section 302 IPC with default clause. It was ordered that out of the fine amount, a sum of Rs.5,000/- each shall be paid to PW.1 and PW.4 as compensation under Section 357(1) Cr.P.C. However, the Court below held that in view of provisions of Section 71 of Indian Penal Code, there is no need to impose a separate sentence for the offence punishable under Section 404 of Indian Penal Code.
2. The factual matrix of the appeal is as under:
It is the theory of the prosecution that on 24.12.2010 at about 1.30 p.m under the guise of obtaining loan from a Bank, complainant’s daughter – Premalatha was proceeding with accused Karthik @ Karthik Kumar @ Karthik Gowda @ Santosh. On 24.12.2010 deceased left the house with the accused saying that she would attend a function in Bangalore but she did not return in the evening. Her husband PW.4 – Rajanna had tried to contact her over mobile but the same had been switched off. Since she did not return that night, he told his father-in-law, PW.1. Ramanarasaiah and requested him to trace her in the house of their relatives, but despite of trace made by them she could not be traced. Subsequently, PW.1 – Ramanarasaiah filed a complaint with Nelamangala Police on 29.12.2010 as per Ex.P5 for missing of his daughter and in turn the same was registered by PW.20 being the Head Constable of the said police station. Since Ex.P5 did not disclose any offence nor did it disclose the name of any perpetrator/offender, the FIR was registered in Crime NO.217/2010 against unknown person without mentioning any provision of law.
3. When the things stood thus, PW.11 S.M.Rajanna working as a manager in a choultry at Shivagange of Nelamangala Taluk, got information that the dead body of a female was lying near ‘Olakallu Theertha’ on Shivagange hills. Accordingly, he went there and found the dead body was lying and thereafter, lodged a complaint with Dabaspet Police as per Ex.P14. It is further stated that in the said complaint that some unknown persons might have caused the death of the deceased by crushing her with a stone. It is based upon that complaint, PW.21 - the Assistant Sub-Inspector of Police of Dabaspet Police Station registered a case in Crime No.238/2010 for the offence punishable under Section 302 IPC. Since this complaint also did not disclose the name of the offender, FIR was registered against unknown persons. Subsequent to registration of crime, PW.21 handed over further investigation to PW.39, the Circle Inspector of Police of Nelamangala Circle.
4. PW.39 after taking over the case for investigation conducted inquest over the dead body and thereafter, sent the dead body for post mortem examination. During the course of investigation the Sub-Inspector of Police of Nelamangala Rural Police Station placed the records pertaining to Crime No.217/2010 of that station before the PW.39. He secured PWs.1, 2 and 4 and showed the photographs of the deceased and also the clothes and ornaments which were found on the dead body. On seeing the photographs, clothes and ornaments, PWs.1, 2 and 4 identified the dead body as that of Premalatha being the daughter of PW.1 – Ramanarasaiah. The statement of PWs.1, 2 and 4 led to a suspicion against the perpetrator. Therefore, PW.39 directed his staff to trace the culprit. Accordingly, on 14.1.2011, PW.36 – Sub- Inspector of Police of Thyamagondlu police station traced the accused at Shankarnag park, Yalahanka, Bengaluru and produced him before PW.39. After production of the accused, PW.39 interrogated and recorded his voluntary statement. In pursuance of voluntary statement given by the accused certain recoveries were made. Subsequently, after completing the investigation, having found that the accused with an intention to kill the deceased and then rob the ornaments worn by her, secured her to Shivagange hills and caused her death by dropping a stone on her and carried away the ornaments, cash and a mobile phone which were with her and charge sheet was filed for the offences punishable under Sections 302 and 404 IPC.
5. Subsequent to framing of charges against accused the prosecution in all examined 39 witnesses and got marked Exs.P1 to P63 and material objects M.Os.1 to 22 were marked.
6. Subsequently, the accused was examined as required under Section 313 of Cr.P.C. for enabling the incriminating evidence appeared against him and the accused denied truth of the evidence of prosecution witnesses. During the course of evidence of PW.2, her contradictory statement was got marked as Ex.D1. Subsequent to recording of the 313 of Cr.PC. of the accused, he did not come forward to adduce any defence evidence as contemplated under Section 233 of Cr.P.C.
7. Subsequently, the Court below after hearing the arguments advanced by the counsel on both the sides, convicted the accused for the offences punishable under Section 302 and 404 of IPC. It is this judgment which is under challenge in this appeal.
8. We have heard the arguments addressed by learned counsel for the appellant and learned Addl.SPP for the State. We have perused the entire records.
9. Learned counsel for the appellant/accused contends that the prosecution has placed reliance on the following circumstances to prove its case that is (i) identification of dead body (2) homicidal death of deceased Premalatha (3) last seen together/movement of accused and deceased (4) recovery of jewellary and mobiles belonging to the deceased and identification of ornaments.
10. It is contended that PW.1 being the father of the deceased lodged a complaint before the respondent police on 29.10.2010 and in the complaint it is stated that the deceased left her husband’s house on 24.12.2010 at about 8.30 a.m. in the morning and thereafter she did not return to her husband’s house. PW.2 being the sister of the deceased in her evidence has stated that on 23.12.2010, deceased came to her house and asked her that she wants to attend a function in a friend’s house and asked her to give gold ornaments. Accordingly, she gave her gold necklace to the deceased. She went along with her father to the police station to lodge missing complaint. But this fact was not mentioned in the complaint and she never stated about the gold ornaments. The court below has not considered the inordinate delay in lodging the complaint which is bad in law. The conduct of PW.2 clearly goes to show that she has falsely deposed before the Court.
11. Further, it is contended that PW.3 – Prema who is the colleague of deceased Premalatha has stated before the Court that she was also working along with deceased and had never seen the accused before and she do not know about the death of Premalatha. The evidence of PW.3 clearly shows that there was no relationship with deceased Premalatha and this fact has not been considered by the trial Court and erred in convicting the accused.
12. Further, it is contended that PW.4 - Rajanna who is the husband of the deceased Premalatha has stated that deceased went along with the accused on 24.12.2010 and he identified the accused in the court and so also identified M.Os.6 to 8 and clothes M.Os.1 to 5 and also identified the pulsor motor bike in the police station. He states that he has personally seen his wife and Kavitha moving with the accused on the motor bike. It is contended that PW.4 being the husband of deceased Premalatha did not lodge any missing complaint to the police, only after the arrest of the accused he has created the story and has stated that he knew the accused. Except the evidence of PW.4 there is no evidence to show that accused was moving with the deceased. The deceased was missing from 24.12.2010 from her husband’s house and he did not lodge the complaint and only after lapse of five days, father of the deceased lodged the complaint.
13. It is contended that PW.11 who was working under PW.10 Rudresh to collect parking fees of vehicles entering the Shivagange hills has stated that he has not seen the accused coming along with one lady to Shivagange hill and he has not identified the accused in the police station. But PW.10 stated before the court that he identified the accused along with the deceased. Hence, from the evidence of PW.11 it clearly goes to show that accused had not visited the Shivagange hills along with deceased and the respondent police only with an intention to create last seen evidence, he has been planted as a last seen witness in the above said case.
14. Further it is contended that no test identification parade was conducted by the police to identify the accused and in the charge sheet it is stated that the name of the accused was Santosh but the name of the accused was shown as Karthik.
15. PW.10 – Rudresh has stated that he had seen the accused along with a lady was wearing a red saree on 24.12.2010 and both of them went to the Shivagange hills but in the cross-examination he has clearly admitted to a suggestion that at the time of mahazar he did not inform the police on which day the lady came to the hill. Hence, it is contended that the evidence of PW.10 clearly shows that he was a witness created by the police to give evidence with regard to last seen circumstance. The court below failed to consider this aspect which is bad in law.
16. It is further contended that the IMEI numbers of the mobiles do not tally with the call details as per Ex.P35 and Ex.P38 pertaining to phone numbers 8892800117 and 9844477045. The prosecution has failed to connect the accused with the seized mobiles and the telephone call details.
17. The court below failed to consider that PW.21, the IO had stated that finger print experts visited the spot, collected the finger prints but the same was not produced before the Court and the finger prints did not match with that of the accused. Further PW.24 and PW.26 who were the panchas to the scene of occurrence, deposed before the Court that their signature were obtained as per Ex.P33 but they did not visited the scene of crime along with the accused and as such, the prosecution treated them as hostile witness. The prosecution has not proved the guilt of the accused beyond all reasonable doubt by placing cogent, corroborative and acceptable evidence that this accused alone has committed the murder of deceased by robbing the golden ornaments as on the date of incident.
18. It is contended that recovery of articles jewels MOs. 19 to 22 from the temple is doubtful as PW.31 states that on the first of every month, the articles in the hundi are taken to the head office which is at Rajajinagar. But recovery is not made at Rajajinagar. Further PW.39 – IO has stated that on 29.12.2010 PWs.1, 2 and 4 were shown the cloths of the deceased, he has stated that the said cloths were in a sealed condition before showing the same to the witnesses.
19. Further it is contended that the court below convicted the appellant on the ground that recovery evidence was proved against the appellant but in the complaint nothing has been stated regarding the ornaments that was worn by the deceased and the identification of the ornaments was also not conducted. Except PW.4 nobody speaks about the relationship between the accused and the deceased. The entire case is depending on the circumstantial evidence and there is no last seen evidence and there is no evidence to show exactly when the incident occurred. There are clouds of doubts in the theory projected by the prosecution relating to proving the guilt of the accused. Mere fact that the accused and the deceased were last seen together and that certain recoveries are made at the instance of the accused by themselves are not sufficient to hold the accused guilty.
20. Further it is submitted that the court below grossly erred in convicting the appellant for the offences aforementioned. On a cumulative reading and appreciation of the entire evidence on record, it clearly goes to show that the court below has failed to appreciate the evidence in proper perspective manner. The court below has acted on certain legal and factual presumptions which cannot be sustained and the case of the prosecution suffers from proven improbabilities, infirmities, contradictions and the evidence of the prosecution witnesses cannot be relied upon and it is not worthy of credence. It is settled law that a person can be convicted provided the links in the chain of circumstances connects the accused with the crime beyond reasonable doubt. But in this case, the prosecution has failed to prove the last seen evidence and motive against the accused and even though there was no material to connect the accused to the crime, the court below erred in convicting the appellant/accused for the aforesaid offences. On all these grounds, learned counsel for the appellant/accused seeks intervention of this court by setting aside the judgment of conviction and order of sentence rendered by the trial Court for the aforesaid offences.
21. Per contra, learned Addl.SPP has taken us through the evidence of PWs.1, 2 and 4 who are the material witnesses for the prosecution relating to the identification of dead body of deceased Premalatha and identification of gold ornaments. It is contended that this is a case of circumstantial evidence and the prosecution has established every link in the chain of circumstances and therefore, the charges stand proved. It is contended that the prosecution has relied upon the circumstances to prove the charges. The accused and deceased Premalatha were known to each other and were moving together is also proved by the prosecution. Deceased – Premalatha taking the necklace of her sister on the previous day and moving with the accused on 24.12.2010 wearing that necklace and other ornaments is proved. She did not return to the house on that day and she was found with the accused at Shivagange Hills. Finding of dead body by PW.11 at Shivagange hills is also established by the prosecution. PWs.1, 2 and 4 have identified the deceased by seeing the photographs, cloths and the ornaments. Recovery was also made at the instance of the accused and PW.38 the Doctor who conducted the post mortem examination has opined that the cause of death was due to shock and haemorrhage which was in turn due to head injury. Therefore, the homicidal death of deceased Premalatha is also established by the prosecution. It is contended that the trial Court was right in coming to the conclusion that under the proved circumstances it is the accused who caused the death of the deceased and the charge under Section 302 IPC is established by the prosecution beyond all reasonable doubts. The trial Court while going through the evidence of PW.4 observed that the deceased left the house wearing a few ornaments and they have been recovered at the instance of the accused and accordingly, it held that the charge under Section 404 of IPC is also established. Therefore, the trial Court looking into all these aspects and coupled with the gravity of the charges proved against the accused has rightly convicted the accused person. Therefore, the judgment of conviction and order of sentence passed by the court below does not call for any interference to revisit the same. Hence, it is prayed that the appeal being devoid of merits, the same may be dismissed.
22. In this background it is relevant to go through the evidence placed by the prosecution in order to establish the guilt of the accused. PW.1 – Rama Narasaiah is the father of deceased – Premalatha and he has stated that on 24.12.2010 his son-in-law-PW.4 Rajanna had called him stating that on that at 8.30 AM, deceased – Premalatha left to Bangalore along with one Santosh stating there was a function but did not returned to home and she was also not receiving the mobile call. Hence, he lodged a missing complaint on 29.12.2010 as per Ex.P.5. After 3 to 4 days of lodging the complaint, the police called him and he identified the deceased through photographs at Dabaspet police station and clothes of the deceased were marked as M.O.1 to 5, photographs were marked as per Ex.P1 to P4, ornaments were marked as M.O.6 to 8 were a pair of ear studs, four toe rings, one nose screw. The seizer mahazar is marked as per Ex.P6.
23. PW.2 – Ramamani is the elder sister of the deceased. She has stated before the Court that on 23.12.2010 deceased came to her house and she asked her to give golden ornaments to attend a function in her friend’s house and accordingly, she gave her a gold necklace. On 24.12.2010 her father called her and enquired whether the deceased had come back from the function and told her that deceased had not yet come back. Till 28.12.2010 the deceased could not be traced. She went with her father – PW.1 to lodge complaint and identified her necklace, mangalya chain, mobile and gold ring.
24. PW.30 – Veena is another sister of the deceased – Premalatha and deceased was working in Kanva garments. On 25.12.2010 her father enquired her over phone and asked about Premalatha. On 26.12.2010 around 9.45 p.m. PW.2 tried to contact the deceased over phone, but the call was received by one Santhosh and PW.2 asked that Santhosh to ask the deceased to attend to the call, but the same was disconnected. When she tried to contact the deceased, the call was received by Santhosh and when she asked Santhosh told her that mobile set belonged to him and he did not know any person by name Premalatha. About a week later she came to know through her father that Premalatha was murdered on Shivagange hills.
25. PW.4 - Rajanna is the husband of deceased – Premalatha and he has stated that deceased was working in Kanva Garments and she came in contact with one Kavitha and deceased told him that Kavitha had introduced her to one Santhosh who was working as an engineer in ICICI Bank. The deceased had told him that Santhosh had assured her to get loan as he knew the Manager of ICICI Bank and she should wear ornaments and bear a standard look or otherwise he would purchase ornaments for her and also would assist in opening a shop. He had seen his wife Premalatha and Kavitha moving with the accused on a motorbike and when he took an exception, the deceased told him that accused was like her elder brother and advised her to not do so. On 24.12.2010 deceased left the house with Santhosh saying that she would attend a function at Bengaluru but when she did not returned, he contacted her through phone but the same was switched off. He informed the same to PW.1 who is his father-in-law and a complaint was lodged by PW.1 on 29.12.2010. He has stated that the accused who was present in the Court hall was the very same person who took the deceased with him on that day. On 29.12.2010 the Circle Inspector of Police, Nelamangala Circle summoned PW.1. He along with PW.1, PW.2 went to the station and identified the photographs, clothes and ornaments as that of deceased. Further he came to know that the accused in order to clear of his debts had committed the offence and had done the same thing to Kavitha.
26. PW.3 – Prema is the friend of deceased – Premalatha. She has not identified the accused and she was treated as hostile witness and her statement was marked as Ex.P7. PW.6 – Basavaraju is the owner of the house where PW.4 and deceased were staying and he has stated that he has not seen the accused and he had not seen him visiting the house of the deceased or moving with. He was treated as hostile witness. PW.5 – Bhushan and PW.8 are the friends of the accused and they have turned hostile to the case of the prosecution.
27. PW.11 – Rajanna is the Manager of the chowltry at Shivangange and he has stated in his evidence that two years prior to March 2013 when he tendered evidence in the Court, he came to know that the dead body of a female person was lying near ‘Olakallu Theertha’ and accordingly he went there and saw the dead body and gave complaint as per Ex.P.14 to Dabaspet police and the police had come to the spot and drew the mahazar as per Ex.P13 and he found injuries over the dead body and the police seized a stone – M.O.9 from the scene of crime. He was treated hostile to a limited extent and in the cross-examination he has admitted that police collected sample mud and blood stained mud as per M.O.10 and M.O.11.
28. PW.10 – Rudresh is a contractor who was working in Shivagange Hills to collect toll fee from the visitors and he has stated that on 24.12.2010 the accused had come with a woman who was wearing red sari and both of them went to the hill on a pulsar motorbike. He came to know about the dead body of a female lying near Olakallu theertha and went there, saw the dead body and red sari was found on the dead body. He was treated hostile to a limited extent.
29. PW.22 – Ranganath is the person deputed by PW.10 to collect parking fee at Shivagange, PW.19 – Siddalingaiah, is the maternal uncle of PW.4, PW.29 – Ramachandra, PW.27 – Nagaraj is the Manager working in ICICI Bank, Bommanahalli Branch, all these witnesses have turned hostile to the case of the prosecution.
30. PW.28 – Sheshu Chilakuri is the Nodal Officer of Aircel company and he has identified Ex.P.35, the call details report pertaining to cell number 8892800117 issued by him. PW.34 – K.Rajesh is the Nodal Officer of Idea Cellular company and has issued call details report pertaining to cell number 9844477045 as per Ex.P.38.
31. PW.38 – Dr.Rosy is the medical officer who conducted autopsy over the dead body of deceased Premalatha and issued post mortem report as per Ex.P.40. She has stated that the skull on the right side was crushed and there were contusions on the cheek and both breasts and multiple fractures on the left side of the skull and she has opined that the death was due to shock and hemorrhage due to the head injury sustained by the deceased.
32. PW.17 and PW.23 are the two witnesses to the mahazar Ex.P.27 drawn at the time of burial of the dead body of deceased Premalatha and PW.17 has turned hostile. PW.12- V.Prakash, PW.13 – Ravikumar, PW.14 – Bharathamma and PW.15 – Poojaramaiha are the witnesses to the inquest as per Ex.P.15 and all of them have turned hostile.
33. PW.20 – Chikkanarasimhaiah was the Head Constable in Nelamangala Rural Police Station who had received the complaint as per Ex.P.5 filed by PW.1 stating that Premalatha was missing and he registered a case in Crime No.217/2010 and submitted FIR to the Court as per Ex.P.30. PW.21 – G.C.Nagaraj, the IO has stated that on 25.12.2010 PW.11 went to the Station and gave a complaint as per Ex.P.14 and based on the complaint, registered a case in Crime No.238/2010 under Section 302 IPC and submitted FIR to the Court as per Ex.P.31. He went to the spot and drew the mahazar as per Ex.P.13 and seized M.O.9 and collected sample mud and blood mixed mud in M.O.10 and M.O.11 and thereafter, sent the dead body to the Government Hospital, Dabaspet for post mortem.
34. PW.39 is the IO. He has stated that on 26.12.2010 after taking charge of further investigation from PW.21 he drew the inquest mahazar as per Ex.P.15. After post mortem examination, the clothes, bangles and ornaments found on the dead body were subjected to P.F. He secured PWs.1, 2 and 4 and showed them photographs, clothes and ornaments on the dead body of the deceased and they identified the same as that of deceased Premalatha. The same were seized under mahazar Ex.P.6. On 5.1.2011 he went to Kanva Garments where deceased was working and recorded the statement of PW.9 and seized Ex.P42. Further he secured the call details pertaining to deceased and accused as per Ex.P.35 and Ex.P.38 and recorded statement of PW.3. On 14.01.2011 the accused was traced and he recorded his statement and also recorded statements of CW.54 and CW.57. At the instance of accused, he seized mobile and motor bike under Ex.P.17. M.O.15 and M.O.16 were seized under mahazar Ex.P.19. At the instance of the accused, they went to Santhosh Jewelers and M.O.19 – Mangalya chain was seized under mahazar Ex.P.20. M.O.13 – mobile set was seized under mahazar Ex.P.21. M.Os.20 to 22 are the properties which were recovered from the hundi of Srinivasa Temple in Yalahanka New Town and Ex.P.37 is the mahazar pertaining to it. PW.39 has further stated that at the instance of accused he had been to Indian Motors in Yalahanka and enquired the proprietor to produce documents pertaining to vehicle bearing No.KA.50-J 9089, but no documents was furnished by him. Further, at the instance of accused mahazar was drawn as per Ex.P.33 at Shivagange Hills. After sending properties seized in this case to FSL and after getting the sketch of the scene of occurrence and sending the stone seized in this case to the medical officer for his opinion, securing the call details, ultimately submitted the charge sheet.
35. After going through the evidence adduced by the prosecution witnesses, it is important to analyse and evaluate the evidence on record. The case of the prosecution is that this is a case of circumstantial evidence and the prosecution has established every link in the chain of circumstances in proving the guilt of accused beyond all reasonable doubt. Having gone through the evidence on record, it is relevant to notice the circumstances relied on by the prosecution to prove its case.
36. The first circumstance is that accused and the deceased coming to know each other and moving together. In this regard, the prosecution has relied on the evidence of PWs.2, 3, 4, 6 and 8. To prove this circumstance, the trial Court has relied on the evidence of PW.2, who is the sister of the deceased – Premalatha and PW.4 – Rajanna who is no other than the husband of deceased and they have supported the case of the prosecution. In the cross-examination - PW.2 has denied the suggestion that she has not stated before the police that the deceased and her husband PW.4 were working in the garment factory and deceased was acquainted with Kavitha who was her colleague in Kanva Garments. But she has admitted that she has not stated before the police that accused was acquainted with Kavitha and was introduced through her to the deceased and she has also admitted that she has not stated before the police that accused was proclaiming that he was well-acquainted with a Bank Manager and he can secure loan to the deceased so that she could lead a happy life. It is also brought out in her cross-examination that distance between her house at Bagalgunte and house of deceased at Begur is about 25 kilometers and it is therefore, unlikely that PW.2 had seen the accused and deceased moving together. The court below having held that the evidence of PW.2 does not help the prosecution to establish this circumstance, erred in convicting the accused.
37. In the cross-examination of PW.4 – Rajanna who is the husband of the deceased has denied a suggestion that he has not stated before the police that he knew the accused and he saw the accused for the first time in the Court on 31.07.2012. He has not stated before the police that his wife was working at Kanva Garments and she came into contact with Kavitha and they used to go to the workplace together and that the deceased had told him that Kavitha had introduced the accused to her and that the accused was working in ICICI Bank and he was an Engineer and had assured to get loan as he knew the Manager of that Bank and she should wear ornaments and bear a standard look or otherwise he would purchase ornaments for her and also he would assist her in opening a shop. But contradictory to this statement, PW.39 – the IO has stated that PW.4 has not given a statement before him on the very lines stated in his chief-examination, the substance of the statement given by him is to that effect. The trial Court while relying on the evidence of PW.4 failed to notice the improvement in the version given by this witness before the Court. PW.4 in his cross-examination has even stated that he was angry when he saw Kavitha and his wife deceased Premalatha were with the accused. He was informed that his wife and Kavitha used to go with the accused on Pulsar motorbike and he has admitted the same. PW.4 having seen his wife going with accused on the motor bike but however, in the complaint at Ex.P5 this fact is not mentioned, even though he had also gone to the police station on the same day along with PW.1 – his father-in- law. The trial Court even after noticing that prosecution has not been able to establish the circumstance from the evidence of PW.2 – sister of the deceased, PW.3 – colleague of the deceased, PW.6, the landlord of the house where deceased Premalatha and her husband were staying, PW.8 – a friend of the accused, all of them who have turned hostile to the case of the prosecution, relying only on the evidence of PW.4 – Rajanna, has convicted the accused by holding that the accused and deceased were known to each other and moving together.
38. Another circumstance is the deceased taking necklace from her sister PW.2. On 23.12.2010 deceased had come to her house and telling her that she wanted to attend a function in her friend’s house and asked her to give her gold necklace and accordingly she had given her necklace. But she has not disclosed the same until the police made enquiries with her in this case. This fact was also not mentioned in the complaint and she has admitted in her evidence that she also went along with her father to lodge the complaint but she has never stated about the gold ornaments. Even in the cross- examination of PW.39, he has stated that PW.2 has not stated before him that the deceased had told PW.2 that she wanted to go to the house of her friend for a function. Hence, in this context, it gives an indication that the deceased Premalatha had not approached PW.2 to part with her ornaments. Even in the cross- examination of PW.2 it is elicited that deceased did not tell her where exactly the function was proposed to be held. The Court below having observed these contradictions in the evidence of prosecution witnesses erred in convicting the accused.
39. Yet another circumstance is the deceased leaving her house and going with the accused on 24.12.2010 and not returning thereafter. The prosecution to prove this circumstance has relied upon the evidence of PW.4, who is no other than the husband of the deceased. PW.4 has stated that he saw the accused and deceased moving together. In the cross- examination he has stated that he cannot say the colour of the dress which the accused was wearing when he went with the deceased. But this fact is not mentioned before the IO while recording the statement.
40. With regard to deceased not returning to home and missing from 24.12.2010, the prosecution has relied on the evidence of PW.1, the father of deceased, PW.2, her sister, PW.4, her husband and PW.30, another sister and PW.33, colleague of the deceased. But it is relevant to notice that when deceased Premalatha was missing from 24.12.2010, the complaint as per Ex.P5 was filed by PW.1 only on 29.12.2010. The Court below having noticed that there is inordinate delay in lodging the missing complaint, erred in convicting the accused for the charges levelled against him.
41. Further the prosecution in order to establish the deceased and accused last seen together at Shivagange hills on 24.12.2010 has relied on the evidence of PW.10 and PW.22. Of them, PW.22 has turned hostile to the case of the prosecution. PW.10 – Rudresh was a contractor for collecting toll fee near the entrance gate of Shivagange hills. He has stated that on 24.12.2010 he saw the accused on a Pulsar motorbike coming with a woman wearing red sari at Shivagange Hills. On getting information that a dead body of a female was found near Ólakallu Theertha’, he went there and identified that it was of the woman who had come on that day wearing red sari. In the cross-
examination he has admitted that he has no documentary proof to show that he was working as a contractor at Shivagange hills to collect toll fee. Further he states that at the time of Mahazar as per Ex.P.13, he did not inform the police about he seeing the accused and deceased together on 24.10.2010. The trial Court failed to notice that his entire evidence is an improvement as his statement has not been recorded by the police during investigation and wrongly observed that mere material omission would not persuade the Court to discard his evidence.
42. PW.11 – S.M.Rajanna who was working as a manager in a choultry at Shivagange has stated that on coming to know that the dead body of a female was lying near Olakallu Theertha, he went there and after seeing the dead body gave complaint as per Ex.P.14. But in the cross-examination he has stated that he saw the dead body from a distance of 10 to 12 feet. If he could see it from such a distance, certainly there was every possibility for him to see the injuries on the same. He had given a complaint as per Ex.P.14 on 25.12.2010 to Dabaspet police and case was registered in Crime No.238/2010. He is treated hostile to a limited extent as to who drafted the spot mahazar Ex.P.13 and whether there were any marks on M.O.1 etc.
43. On a missing complaint lodged by PW.1, father of deceased Premalatha on 29.12.2010 as per Ex.P5, case was registered in Crime No.217/2010 in Nelamangala Rural Police and FIR was submitted as per Ex.P.30. On the complaint lodged by PW.11 on 25.12.2010 as per Ex.P.14, case was registered in Crime No.238/2010. Both the crimes were registered in two different police stations but they relate to the same case. PW.39, the IO has stated that after perusal of records, he found that the woman said to be missing and pertaining to that case had similarity with the woman pertaining to this case and noticed that both the cases are one and same. He secured PWs.1, 2 and 4 for identification of the deceased and showed the photographs of the dead body and also the clothes and ornaments found on it and they identified the dead body was that of deceased Premalatha. During the course of cross-examination of PW.39 he has admitted that date is not mentioned on P.F.Ex.P41 which is related to mahazar at Ex.P.5. There is contradiction in the evidence of PWs.1, 2 and 4 and that of PW.39 in the matter of identification of deceased. PW.2 in her cross- examination states that she does not know the name of the police personnel who recorded her statement. Further PW.4 also admits that he is not able to tell the colour of the dress which his wife – deceased Premalatha used to wear. All these material contradictions in the evidence of prosecution witnesses has not been noticed by the Court below while convicting the accused. Therefore in this appeal it requires re-appreciation of the entire evidence on record in a proper perspective manner as this vital circumstance is required to be proved by the prosecution, but the same has not been proved by placing strong circumstances to link that the accused said to have committed murder of deceased by dropping a stone on her head as a result of crush injuries she died.
44. PW.36 – Sub-Inspector of Police of Thyamagondlu Police Station has stated that on 14.01.2011 he traced the accused in Shankarnag Park in Yalahanka and produced before PW.39. The first mahazar was drawn on 16.01.2011 as per Ex.P.17 at the house of the accused. A jeans pant of the accused marked as M.O.12, two mobile sets as M.O.17 and M.O.18 and in addition, a pawn ticket marked as Ex.P.22, quotation was marked as Ex.P.23 and identity cards were marked as Ex.P.24 to P.26. Ex.P.19 is a mahazar dated 16.01.2011 drawn at Mannapuram General Finance Limited. PW.37 is an employee and necklace – M.O.15 and gold ring – M.O.16 were recovered from that shop. All these were recovered at the instance of accused. PW.37 has stated that she does not know the name of the person who wrote Ex.P.19 and she cannot say the date on which she subscribed her signature to Ex.P.19. She further states that accused had come earlier than January 2011 and it is said that no evidence to state as to who gave M.Os.15 and 16 to Manappuram General Finance Ltd. Therefore, it can be said that there are clouds of doubts in the theory projected by the prosecution in order to prove that accused has committed murder of deceased Premalatha with an intention to rob the ornaments worn by her.
45. Ex.P20 is the mahazar drawn at M/s.Santosh Jewelers and PW.35 is the proprietor of that shop. In the cross-examination he has admitted that M.O.14 looks like new one and when the accused exchanged his gold chain by getting a new one its weight, rate etc., were all mentioned and he has admitted that he has signed Ex.P.20 in Yalahanka Police Station. M.O.14 is a mangalya chain. PW.4 – Rajanna being the husband of deceased Premalatha has stated in his evidence that on 24.12.2010 when the deceased left the house she had worn the Mangalya chain. It is not the case of the prosecution that M.O.14 belonged to the deceased. Having regard to the facts and circumstances of the case, the court below failed to notice that prosecution has not established the ownership of the chain. This vital fact is required to be appreciated in a proper perspective manner as there appears to be a camouflage in the theory put forth by the prosecution in order to prove the guilt of the accused.
46. PW.31 – Gajendra Thiwari, Manager of Srinivasa Temple in Yalahanka New Town has spoken about Ex.P.37 mahazar drawn on 17.01.2011. He has stated that M.Os.19 to 22 were recovered under the said mahazar. But PW.32 who is a signatory to Ex.P.37 has stated that he signed Ex.P.37 in the police station. The trial Court has held that from the evidence on record the accused when interrogated gave voluntary statement and took the police and at his instance certain recoveries were made. But the Court below failed to notice the contention urged on behalf of accused that the signature of the accused is found on the mahazars as per Ex.P17, Ex.P19, Ex.P20 and Ex.P21 and they are inadmissible in evidence and only relied on the evidence of PW.16 who is a panch witness and a close friend of PW.1. He has admitted in his cross-examination that both PW.1 and himself were teachers working in different school in Nelamangala Taluk and both of them knew each other. All these material omissions have not been noticed by the Court below and it ought to have discarded the evidence of PW.16. Having gone through the evidence of this witness, it founds to be contradictory to each other to prove the fulcrum of the mahazars drawn in his presence.
47. The Court below has failed to notice the material contradictions in the case put forth by the prosecution that in the complaint Ex.P5 lodged by PW.1, the clothes and the ornaments worn by the deceased when she left the house are not mentioned and who accompanied her is also not mentioned. Since Ex.P5 did not disclose any offence nor did it disclose the name of any offender, the FIR was registered in Crime No.217/2010 without mentioning any provision of law or without naming anyone as the offender. The failure on the part of PW.1 in this regard is fatal to the case of the prosecution. In fact, it was only PW.4 who could have identified the clothes and the ornaments of the deceased and PW.1 could not have identified the same when he had no occasion to see the clothes and the ornaments worn by her when she left the house. This material contradiction has not been appreciated by the Court below in a proper perspective manner as where the case of prosecution is based upon the circumstantial evidence.
48. It is relevant to note here that it is not the evidence of PW.4 that the deceased had worn two necklaces when she left the house, but it is the case of the prosecution that two necklaces were recovered. But PW.4 has specifically stated when the deceased left the house she had worn the Mangalya chain, a ring, a pair of ear studs and one necklace belonging to her sister. But there are inconsistencies and contradictions in the evidence of PW.4 and PW.2 relating to proving the guilt of the accused, that accused committed murder of deceased Premalatha by dropping a stone on her head in order to rob gold ornaments worn by her. Therefore, in this context, it requires re-appreciation of entire evidence of the prosecution.
49. The next limb of the arguments is with regard to the mobile numbers referred to by the witnesses in their evidence. The investigation officer – PW.39 has sated that he collected the call details as per Ex.P.35 and Ex.P.38. It is contended that there was no need for the deceased to have two SIMS. PW.4, who is no other than the husband of deceased Premalatha has stated that Premalatha had one G5 mobile with two SIMS bearing No.9663327042 and 8892800117. The sim number 8892800117 was given to accused. In cross-examination PW.4 states that she was using one sim for incoming calls and another SIM for making calls. Both SIMs were not purchased in the address at T.Begur. His sim was not in his name but the same was purchased by his wife and he does not know in whose name his sim stands. Whereas, PW.19 Siddalingaiah in his evidence states that Aircel number 8892800117 stands in his name and he had given the same to PW.4 Rajanna. In turn PW.4 gave the same to deceased and the deceased gave the same to accused. MO.13 G5 mobile with IMEI No.359113038173892 belonged to deceased with sim No.9663327042. MO.18 Nokia mobile seized from accused with IMEI No.351941031333842 with number 9060009195. This mobile was fitted with sim No.8892800117 and it was used to make correspondence with the deceased. The entire evidence of prosecution witnesses coupled with the evidence of PW.39 relating to linking these circumstances of the murder of deceased by the accused, appears to be clouds of doubts. Therefore, the theory put forth by the prosecution in order to prove the guilt of the accused by linking circumstances between the accused and deceased and also nexus of the deceased with the accused, it cannot said that the prosecution has produced strong material evidence relating to circumstantial evidence that the accused alone committed the murder of deceased Premalatha in order to rob the gold items worn by her. Nothing was recovered from the accused till 16.01.2011 though he was taken to custody on 15.01.2011. There is gap between the two dates and the same can be held against the prosecution.
50. PW.9 is the Deputy General Manager of Kanva Garments. He has stated in his evidence that deceased stopped working from 23.12.2010 and remained unauthorisedly absent since then. In the cross-examination he has stated the IO has collected documents in that regard. But further he has stated that he has not furnished the document, but the accountant has furnished the same and he does not know on what date it was furnished. The Court below failed to notice that the IO ought to have collected necessary records from Kanva Garments where the deceased was working when according to the prosecution she was absent from duty from 23.12.2010 and the same would have added weight to the evidence of PW.9, in not doing so, there appears some clouds of doubts in the theory put forth by the prosecution that accused committed murder of deceased Premalatha on the fateful day.
51. The prosecution has not got identified the motorbike on which the accused and deceased said to have gone to Shivagange hills PW.10 who is a crucial witness in this regard has not spoken anything in this regard. Further the rough sketch prepared by the Engineer – PW.19 is not produced before the Court below and P.C.No.904 who is said to have shown the spot to PW.18 is also not examined. Further, the register maintained in Srinivasa Temple at Yalahanka has not been seized by the IO. The recovery of MOs.19 to 22 from the temple is doubtful as PW.31 – Gajendra Tiwari states that on the first of every month the articles in the hundi are taken to the head office which is at Rajajinagar, but it is pertinent to note that recovery is not made at Rajajinagar. Therefore, all these evidence for the prosecution requires to be appreciated in a proper perspective manner as the entire case of the prosecution is based upon the circumstantial evidence for linking chain of circumstances which has to be established by the prosecution without there being any clouds of doubts by placing cogent, corroborative and acceptable evidence to probabalise that accused had committed murder of deceased Premalatha with an intention to rob the gold ornaments which were worn by her.
52. The court below failed to consider certain circumstances that there is delay in lodging the first information, the voluntary statement of the accused was not produced to the Court till the charge sheet was filed, no investigation was done to ascertain whether the motorbike on which accused and the deceased had gone to Shivagange hills was in a moving condition and further the author of Ex.P.62 FSL report has not been examined, where the report states that articles were sent and received on 1.3.2011 and hence the mixing of cloths of deceased and pant of accused is possible. Therefore, it could be seen that all the links in the chain of circumstances leading to the guilt of the accused are not proved independently beyond reasonable doubt.
53. In the instant case, the Trial Court held conviction against the accused for the offence under Section 404 of IPC based on the evidence of PW.4 that deceased left the house wearing a few ornaments and they have been recovered at the instance of the accused. But keeping in view the evidence placed by the prosecution as stated supra, it is relevant to refer that in so far as the ingredients relating to the aforesaid offence under Section 404 IPC the prosecution has to establish the knowledge on the part of accused. Indirect evidence of circumstantial nature enabling interference of that knowledge could possibly be given without establishing that the prosecution would not be entitled to claim conviction of the accused under Section 404 of IPC, on mere recovery of ornaments belonging to deceased Premalatha and last worn by her. There being no evidence on record pointing out to such a knowledge on the part of the accused, that he robbed the gold items worn by deceased which is the theory set up by the prosecution, conviction of the accused could not be sustained under Section 404 IPC. Under these circumstances, the ingredients of Section 404 IPC cannot be said to have been satisfied even though several witnesses have been examined for the prosecution and mainly relying upon the evidence of PWs.1, 2 and 4 relating to deceased Premalatha wearing gold necklace belonging to her sister PW.2. But those evidence are not satisfactorily placed by the prosecution in order to prove the guilt of the accused. The ingredients of the said offence has not been established by the prosecution by putting forth cogent and consistent evidence to probabalise that the accused had robbed gold items belonging to the deceased and committed murder.
54. The trial Court while concluding held that the accused and the deceased were known to each other and were moving together and the accused caused the death of the deceased and the cause of death was shock and haemorrhage which was in turn due to head injury and therefore, deceased died a homicidal death is established by the prosecution beyond all reasonable doubts. But the Court below has failed to see that prosecution has not proved its case by placing cogent, corroborative and acceptable evidence. Therefore, in this appeal the same has to be re-appreciated in a proper perspective manner as the Court below has misdirected as well as misread the evidence of prosecution in proving the guilt of the accused.
55. Undisputedly the whole case rests upon circumstantial evidence and since there is no eye witness to the alleged act of murder, the trial Court has failed to consider the available evidence while deciding the merits of the case and the conviction shall not be based on such unacceptable evidence. It is a settled position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone can’t discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration. Chain of evidence must be so complete that the circumstances must show that in all probability, the act must have been done by the accused. In case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence, and the circumstances so proved must form a complete chain without giving any chance of surmise or conjecture and must also be consistent with the guilt of the accused. In the facts and circumstances of this case, none of the circumstances relied upon by the prosecution is said to be the probability of the appellant's guilt or involvement in the commission of the crime.
Therefore, for the aforesaid reasons and findings, we are of the opinion that whenever there is doubtful circumstance crept in the case of the prosecution the benefit of such doubt should be given in favour of the accused. The trial Court has not bestowed its attention to analyze the case of the prosecution and has not given the benefit of doubt to the accused. Therefore, we prefer to give such benefit to the accused. Hence, with these observations, we proceed to pass the following:
ORDER Appeal preferred by appellant/accused is hereby allowed. Consequently, the judgment of conviction and order of sentence passed by the Principal Sessions Judge, Bengaluru Rural District, Bengaluru in S.C.No.179/2011 dated 21.08.2015 convicting the accused for the offences punishable under Sections 302 and 404 of IPC is hereby set-aside. The accused is acquitted of the charges levelled against him.
Accused is ordered to be released from the custody forthwith, if he is not required in any other case.
Registry is hereby directed to intimate the concerned Jail Authority to release accused from custody forthwith.
If the accused has already deposited any fine amount, the same is ordered to be refunded to him on proper identification and acknowledgement.
Sd/- JUDGE Sd/- JUDGE DKB