IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1604/2015 C/W CRIMINAL APPEAL NO.895/2015 IN Crl.A. No.1604/2015 BETWEEN:
NAGARAJAN @ NAGARAJ S/O LATE KALIAPPAN NADAR AGED 57 YEARS, NO.55, J.E. INDIRANAGARA, SHETTIARPATTI POST VIA RAJAPALYAM, RAJAPALYAM TALUK, TALAVAYIPURAM POLICE STATION, VIRUDHUNAGARA DISTRICT, TAMIL NADU-606357. ...APPELLANT (BY SRI BASAVARAJU T. A., ADVOCATE) AND:
STATE OF KARNATAKA BY VARTHUR POLICE, BENGALURU RURAL DISTRICT, BENGALURU.
REPRESENTED BY LEARNED HIGH COURT GOVERNMENT PLEADER, HIGH COURT BUILDINGS, BENGALURU - 01. ...RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE DATED 09.03.2015 PASSED BY THE PRESIDING OFFICER, F.T.C.-III, BANGALORE RURAL DISTRICT, BANGALORE IN S.C.NO.367/2011 - CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302 AND 380 OF IPC.
IN Crl.A. No.895/2015 BETWEEN:
STATE OF KARNATAKA BY VARTHUR POLICE 560087. ... APPELLANT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP) AND:
NAGARAJAN @ NAGARAJ S/O LATE KALIYAPPAN NADAAR, AGED ABOUT 61 YEARS, R/O NO.55, J. I. INDIRANAGAR, SHETTIYARPATTI POST VIA RAJAPALYAM, RAJAPALYM TALUK, THALAVAHIPURAM POLICE STATION, VIRUDHANAGAR DISTRICT, TAMIL NADU STATE-626117.
(IN JUDICIAL CUSTODY) ... RESPONDENT (BY SRI P. D. SUBRAMANYA, ADVOCATE) … THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377 CR.P.C PRAYING TO MODIFY THE JUDGMENT AND ORDER DATED 09.03.2015 PASSED IN S.C.NO.367/2011 BY THE FTC-III, BENGALURU RURAL DISTRICT BENGALURU IN SO FAR AS IT RELATES TO NOT IMPOSING FINE AMOUNT ON THE RESPONDENT/ACCUSED FOR THE OFFENCE UNDER SECTION 302 OF IPC AND IMPOSE FINE AMOUNT ON THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC IN ACCORDANCE WITH LAW AND THE RESPONDENT/ ACCUSED ARE SENTENCE TO UNDERGO FOR LIFE IMPRISONMENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC AND SHALL UNDERGO S.I. FOR 5 YEARS AND TO PAY A FINE OF RS.5,000/-, IN DEFAULT SHALL UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 380 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS DAY, B.A.PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT Criminal Appeal No. 1604/2015 has been preferred by the accused/appellant and Criminal Appeal No. 895/2015 has been preferred by the State assailing the judgment of conviction and order of sentence dated 9/12.3.2015 passed by the III Fast Track Judge, Bengaluru Rural District, Bengaluru in S.C.No. 367/2011 whereunder the accused was found guilty for the offences punishable under Sections 302 and 380 of IPC and has been convicted for imprisonment for life for the offence punishable under Section 302 of IPC and simple imprisonment for a period of five years and to pay a fine of Rs.5,000/- in default, to undergo simple imprisonment for six months for the offence punishable under Section 380 of IPC.
2. The State has come up in appeal only in respect of sentence not imposing fine as contemplated under Section 302 of IPC.
3. We have heard the learned Counsel Sri Basavaraj T.A., for appellant in Criminal Appeal No.1604/2015, Sri P.D. Subramanya for respondent in Criminal Appeal No.895/2015 and also the learned Additional State Public Prosecutor Sri Vijayakumar Majage for the State.
4. Before considering the submissions made by the learned Counsel appearing for the parties, we want to place on record, the genesis of the case of the prosecution.
5. It is the case of the prosecution that Rajakannan-P.W.1 married the deceased Vijayalakshmi; at the time of the marriage, there were some difference of opinion between the family members of Rajakannan and deceased Vijayalakshmi as it was a love marriage and the deceased was belonging to different caste. As such, the father of P.W.1-Rajakannan was not willing for the said marriage and was opposing. Hence, there was difference of opinion between the accused and P.W.1 and the deceased. It is the further case of the prosecution that subsequently the relationship of the other family members of P.W.1 with the deceased were cordial, but not that of the accused. It is further case of the prosecution that the appellant-accused had also borrowed some loan for the purpose of construction of first floor of his house in his native place from the bank and as such, he was pestering P.W.1, his son Rajakannan to repay the loan or to pay some amount for the purpose of paying the loan. In this behalf, he had grudge against the deceased Vijayalakshmi as she had obstructed P.W.1 in repaying the loan or any amount to the accused-appellant. It is the further case of the prosecution that prior to the birth of the child, P.W.1 had given some gold ornaments to his mother, which she had lost during the journey and as such, the loan was not cleared by the accused. Subsequently, the deceased Vijayalakshmi gave birth to a female child and thereafter, the accused and Vijayalakshmi along with the child were staying together separately. In that light, because of the said motive, on 2.8.2011 at about 1.30 p.m. the accused came to the house of P.W.1 and started quarrelling with the deceased Vijayalakshmi and during that time, he assaulted her with a laptop as well as with chopper and thereafter, he dragged her and the child to the bath room and with an intention to kill them, he poured kerosene and lit fire. It is the further case of the prosecution that when the smoke was coming out of the house of P.W.1, P.Ws.6 to 8, who saw the same and ran towards the said house and at that time, they noticed the accused, who was wearing a white shirt stained with blood and holding a bag, was running out of the said house and when P.W.8 asked him, he informed that there was some galata between the husband and wife and as such, there was a big noise. When they went inside the house, they saw the body of the deceased Vijayalakshmi burning in the bath room and hence, they brought it out. The same was informed to the Police and the Police came to the scene of occurrence and on noticing that the child is still alive, immediately gave a report and the child was taken to the hospital for treatment. It is the further case of the prosecution that the said fact was informed to the husband of the deceased i.e., P.W.1, who immediately came and saw the body of the deceased which was lying inside the house. Thereafter, when he came out, at that time, P.Ws. 6, 7 and 8 informed him that an old man with stains of blood on his shirt, having no hair and aged about 65 years , ran out of the said house. By suspecting that he may be his father (accused), P.W.1 showed the photograph of the said person from his mobile to P.Ws. 6 to 8 and on seeing the said photograph, they identified him and thereafter, he informed the same to P.Ws.2, 4, 5, 10 and other witnesses. Thereafter, P.W.2, who came to the place of incidence went to the police station and lodged a complaint as per Ex.P.12 on the basis of which, the investigation was conducted and charge sheet was filed against the accused.
6. After filing of the charge sheet, the learned Magistrate took cognizance and after following the procedure as laid down under Section 207 of Cr.P.C., committed the case to the Sessions Court. The Session Court after taking the cognizance, secured the presence of the accused, who was in judicial custody and after hearing the Public Prosecutor and the learned Counsel for the accused, the charges were framed and were read over and explained to the accused. Since the accused pleaded not guilty and claimed to be tried, he was tried in S.C.No.367/2011.
7. In order to prove its case, the prosecution examined P.Ws. 1 to 26 and got marked the documents - Exhibits P.1 to 37 and material objects - M.Os. 1 to 17. Thereafter, when the statement of the accused was recorded under Section 313 of Cr.P.C., by putting incriminating material, he has denied the entire prosecution case. Though the accused denied the said questionnaire, he has not led any defence evidence on his behalf.
8. After hearing the learned Counsel for the accused and the learned Public Prosecutor, the trial Court has passed the impugned judgment of conviction and order of sentence. Challenging the legality and correctness of the said judgment, the accused-appellant is before this Court. So also in respect of not imposing fine for the offence punishable under Section 302 of IPC, the State has also preferred an appeal.
9. It is the contention of the learned Counsel, Sri Basavaraju T.A. for the appellant-accused that though P.W.19 visited the scene of occurrence immediately at about 1.45 p.m., he has not secured any witness from the spot nor collected any evidence. Thereafter, he has filed a report as per Ex.P.27 and though the same has been given to the Investigating Officer, no case is registered either against unknown person or person who was identified by P.Ws.6 to 8. He further submitted that the complaint came to be registered at about 8.30 p.m. only after P.W.2 came to the place of incident and as such, there is a delay in lodging the complaint. He further submitted that in the complaint there is no allegation of theft of ornaments and even no such scene was found at the place of the alleged incident. It is further submitted that when there is no allegation of missing of any ornaments on the body, then the said fact has been only implanted on 14.8.2011 only with an intention to connect the accused to the alleged crime. He further submitted that as per P.W.1 evidence of the husband of the deceased, he had given all the gold ornaments to his mother for payment of bank loan and she had lost the same during her journey, then under such circumstance, no ornaments were there in the house and hence, the question of accused-appellant taking away the gold ornaments from the cupboard is over ruled. He also submitted that the owner had informed P.W.1 at about 1.00 p.m. itself about the incident and had asked him to immediately rush to the scene of occurrence and as per the version of the eye witnesses, they have seen the appellant-
accused at about 1.30 p.m. As such, he submitted that when P.W.1 had received the information at 1.00 p.m. and under such circumstance, there is no question of P.Ws.6 to 8 seeing the accused-appellant at the scene of offence at about 1.30 p.m. He further submitted if really they had seen the accused person coming out of the house, then under such circumstance, they might have examined and the same could have been mentioned either in the complaint or in the inquest mahazar which had been subsequently drawn. Under such circumstances the identification of the accused- appellant loses its strength. He further submitted that the ornaments which have been recovered from the possession of the accused-appellant were after 22 days and that too they were belonging to the child of P.W.1. It is the case of the prosecution that P.W.1 had already given all the gold ornaments to his mother and were lost during journey by his mother and in that event, those ornaments belonged to the child have been fabricated and planted to suit this case.
10. The learned Counsel further submitted that the recovery of laptop and chopper are not the material objects used for the purpose of committing the alleged offence. As per the opinion of the doctor, he has opined that the death of the deceased is due to injuries sustained by burn and under such circumstances, there is no connectivity of death of the deceased with chopper and laptop.
11. The learned Counsel further submitted that immediately after registration of the case, P.W.1 in his evidence has clearly deposed that he had sold the house of his father/accused for clearance of five cases which itself goes to show that there was motive in falsely implicating the accused in the alleged offence. He further submitted that immediately after the incident, P.W.1 had informed P.W.4-Kokila- his mother in law and P.Ws.5 and 8 about the incident that had taken place and he further informed them that the deceased had died on account of blast of washing machine which evidence is corroborated by other material. He therefore, submitted that this aspect i.e., that the deceased died on account of blast of washing machine has not been properly considered and appreciated by the trial Court. He further strongly contended that the investigating officer has not examined the washing machine or any technician and no report is placed to find out how the washing machine got bursted. Under such circumstances, the alternative hypothesis cannot be over ruled in this behalf that the deceased died due to blast of washing machine. He further submitted that the evidence of P.Ws.6 to 8 is not consistent. It is further submitted that as per the evidence of P.Ws.6 and 7, the appellant-accused had ran away from the place of occurrence by holding a bag whereas the evidence of P.W.8 goes to show that the accused was coming out of the house by holding a bag and when he questioned as to what happened, the appellant-accused replied that both husband (his son) and wife (daughter- in-law) were quarrelling, and this fact is not stated by P.Ws.6 and 7. Under such circumstances, the said uncorroborated evidence has not been properly and legally considered and properly appreciated by the trial Court. He further submitted that they had seen the accused for the first time and under such circumstances, the investigating officer ought to have held the Test Identification Parade to identify the accused-appellant. He further submitted that the bag which was held by the appellant-accused when he was running out of the house and had been seen by P.Ws.6 to 8 has not been recovered and not got identified. Under such circumstances, the said evidence creates a doubt. In that light, the trial Court ought to have given benefit of doubt to the accused. He also submitted that immediately after coming to know that it was the appellant-accused, who ran out of the house, P.W.1 made a call to the accused and for the first time, the said call rang, but accused did not pick up the said call. Subsequently when he made a second call, the said mobile was switched off. The investigating officer has not collected the call details of the mobile of the accused and P.W.1, and that they have not been placed along with the charge sheet and no explanation has been given in this behalf by the Investigating Officer. If the call details had been produced, it would have made clear to show that the appellant-accused was in Kerala at the relevant point of time. As such, he submitted that there is a lapse on the part of the investigating officer in producing this material evidence before the Court. He further submitted that the wife and daughter of the accused-appellant have clearly stated in their evidence that the appellant went to Kerala by taking clothes and was there and this aspect has not been considered and properly appreciated by the Court below. In this behalf, he submitted that when the accused was apprehended, at that time, no mahazar was drawn at the place of arrest and even no mahazar has been drawn regarding what were the articles which were found at the hands of the accused. It is further submitted that the accused-appellant was apprehended at Bombay when he was in Selvi Lodge and this aspect has not been properly considered and appreciated by the trial Court. He further submitted that the people, who had gathered at the scene of occurrence have not lodged any complaint and the presence of the accused also has not been proved by other witnesses and under such circumstances, the trial Court ought to have given benefit of doubt to the accused. He also submitted that the entire case of the prosecution rests on the circumstantial evidence and it is well settled principle of law that the circumstances which have been relied upon by the prosecution have to be proved and without establishing all the circumstances, the case of the prosecution cannot be said to have been proved and established.
12. The learned Counsel further by relying upon the decision in the case of Shambhoo Sharan Pandey and Another –vs- State of U.P. reported in 2002 Crl.L.J. 2209 submitted that when the witnesses were present at the place of occurrence and if they have not disclosed about the presence of the accused , then in such circumstances, their evidence cannot be relied upon. He also submitted that if the case of the prosecution rests on the circumstantial evidence and if it is the basis, then under such circumstances, there should not be any other hypothesis except guilt of the accused. In order to substantiate his contention, he relied upon the decision in the case of Slim Babamiya Sutar Alias Jamadar –vs- State of Maharashtra reported in 2000 Crl.L.J.2696. He further submitted that the FSL report and other materials which have been produced do not contain the contents of kerosene and there is inconsistency in the evidence of P.Ws.6 to 8 and the FSL reports. Then under such circumstances, it cannot be held that the deceased died because of the assault committed by the accused.
13. The learned Counsel further submitted that the gold articles which were in the bag were recovered from the possession of the accused, then under such circumstances, recording of voluntary statement of the accused, he leading the police and the witnesses for recovery of the said articles is hit by Section 27 of the Indian Evidence Act 1872. In order to substantiate his contention, he relied upon the decision of the Hon’ble Supreme Court in the case of Vijender Devinder Alias Bhinder Mukesh Kumar –vs- State of Delhi reported in LAWS(SC) 1997, 2 27.
14. The learned Counsel also relied upon a judgment of the Hon’ble Supreme Court in the case of State of U.P. –vs- Arun Kumar Gupta reported in AIR 2003 SC 801 to contend that when the prosecution fails to send blood samples and stained material to the chemical examination, reasonable doubt has to be given in favour of the accused and hence, benefit of doubt has to be given to the accused and accused has to be acquitted of all the charges levelled against him. He further submitted that P.W.23, who conducted the autopsy over the body of the deceased and child, did not find any kerosene on their bodies, which itself clearly goes to show that the accused-appellant was not having the intention to kill the child and the alleged incident is an accident. He further submitted that time since death has also not been clearly recorded by the doctor and has not given any definite finding or opinion how they received the injuries and what is the result of the assault committed either by the laptop or machchu then under such circumstances, there are two hypothesis that the deceased might have died due to burn injuries or assault committed by the accused. Therefore, when alternative hypothesis are there, then under such circumstances the case of the prosecution is doubtful and as such, benefit of doubt ought to have been given to the accused. On these grounds, he prayed to allow the appeal by setting aside the impugned judgment of conviction and order of sentence and consequently, to acquit the accused.
15. Per contra, the learned Additional State Public Prosecutor vehemently contended and submitted that there is no delay in lodging the complaint. As could be seen from the evidence of P.W.1, though P.W.1 had come to the place of incidence at about 1.30 p.m. and immediately he had questioned the persons, who were present at the scene of occurrence, to which P.Ws.6, 7 and 8 have described about the physical appearance of the accused-appellant. At that time, P.W.1 showed the photograph of his father which was in his mobile and the witnesses identified that he was the person (Appellant) who had gone out of his house. Subsequently, even when the investigating officer had questioned him, he had clearly stated that the appellant-accused is his blood relative and thereafter, after thinking over the said matter the complaint came to be filed by P.W.2, a case has been registered. He also submitted that P.W.19 had visited the scene of occurrence and has given the report as per Ex.P.27. At that time, no congnizable offence was noticed, but the investigation had not yet been commenced and only after filing the complaint-Ex.P.12, the said investigation has been started. Then under such circumstances, the contention of the learned Counsel for the appellant that a case ought to have been registered under Section 154 of Cr.P.C., does not survive for consideration. He further submitted that there is consistent evidence of P.Ws.6 to 8 which clearly shows the presence of the accused and he also had run out of the said house immediately after the said incident. Hence, the accused appellant has not made out any case or has not come up with any other explanation under what circumstances, the shirt was stained with blood, why he was present at that place before the alleged incident. He further submitted that as per the evidence of P.W.1, the key of the cupboard was not found and it was missing. Hence, a key maker was asked to come and thereafter, after opening of the cupboard on 14.8.2011, he came to know about the missing of the ornaments and thereafter, he has given his further statement that the said gold ornaments were missing from the house subsequently they have been traced from the possession of the accused-appellant. When the gold ornaments of child had been traced from the possession of the accused, the accused had not given any explanation as to under what circumstances the said gold ornaments were in his possession. He further submitted that there is no discrepancy with regard to time of the alleged incident which is given. He also submitted that the evidence of the said witnesses have been recorded after three years. Therefore, under such circumstances there will be minor variations with regard to timing and other material which are not going to be fatal to the case of the prosecution. He also submitted that as per Ex.P.21- FSL report, the kerosene was found on the articles including the articles which had been seized from the accused and under what circumstances the kerosene was found on those articles has not been explained by the accused-appellant. He further submitted that the cause of the death has been clearly stated by the doctor P.W.22 and even P.W.23 has also given his explanation with regard to the death of the deceased was due to burn injuries. There is consistency in the evidence of P.Ws.1, 6, 7, 8 and the doctors who have given the opinion. He further submitted that even the FSL report – Ex.P.21 clearly goes to show that the blood stains which have been found on those articles belongs to Blood Group ‘A’ as well as that of the deceased. The same is corroborated by the evidence of the witnesses. He further submitted though the name of the accused had not been mentioned in Ex.P.12-complaint and enclosed mahazar, but immediately after P.W.1 had shown the photograph of his father from his mobile, the accused had been identified by P.Ws.6 to 8 and then under such circumstances, there is no question of falsely including the accused in this case. He also further submitted that immediately P.Ws. 1 and 3 have shown photograph of their father and the said witnesses have also admitted the said person as accused who ran out of house. Hence, under those circumstances, there is no question of holding any Test Identification Parade. He further submitted that the accused had taken a plea of alibi that in the first instance i.e., on the previous day of the incident, he was at Chennai and on the date and time of the incident in Kerala and after the incident, he had been apprehended at Bombay, but no material has been produced to discharge the said plea. Then under such circumstances, the prosecution case is said to have been proved.
16. The learned State Public Prosecutor further contended that though there is inconsistency in the evidence of P.Ws.1, 5 and 8, in the first instance P.W.1 has informed the fact that the deceased died because of blasting of washing machine but subsequently, he has also informed the fact that his father had assaulted and he had spoiled his life. This evidence has not been challenged during the course of cross-examination. He further submitted there is consistency in the evidence of P.W.6 to 8 which clearly goes to show that the accused was present at the place of incident and under what circumstances he was present at the place of incident has not been explained by the accused and hence, the only inference that can be drawn is that it is the accused, who has committed the alleged offence. He further submitted that there is no material to discard the evidence of the witnesses, who have been examined before the Court below. Therefore, he submitted that the trial Court after considering the entire evidence and material on record has rightly convicted the accused- appellant, who has not made out any good ground to acquit and set aside the impugned judgment of conviction and order of sentence.
17. With regard to Criminal Appeal No.
895/2015, the learned State Public Prosecutor submitted that as per Section 302 of IPC, it is mandatory that fine has to be imposed, if the accused is found guilty and is convicted for the alleged offence and sentenced for imprisonment for life. Therefore, under such circumstances, the trial Court ought to have imposed a fine while sentencing the accused. He further submitted that the fine amount imposed ought to have been given to the relative of victim as compensation. On these among other grounds, he prayed to allow the appeal i.e., Criminal Appeal 895/2015 filed by the State.
18. The learned Counsel on behalf of the accused-respondent in Criminal Appeal 895/2015 submitted that there is no material to substantiate the case of the prosecution. He further submitted that though as per the case of the prosecution, P.Ws.6, 7 and 8 were present at the place of the incident, P.Ws.6 and 7 have deposed that accused had ran away by holding the bag whereas P.W.8 has deposed that when the accused was coming out of the house, he questioned as to what happened, at that time the accused replied that ‘both husband and wife are quarrelling’, this fact is contrary to the evidence of P.Ws.6 and 7. He therefore, submitted that there is no consistency in the evidence of these witnesses.
19. The learned Counsel further by supporting the arguments of the learned Counsel for the appellant- accused, who has argued in Criminal Appeal No.1604/2015 contended that an alternative hypothesis cannot be over ruled and therefore, benefit of doubt has to be given to the accused and he be acquitted of the charges levelled against him. He further submitted that if the accused is acquitted, there is no question of imposing fine. The learned Counsel further submitted that if at all this Court comes to the conclusion to confirm the judgment passed by the trial Court, then under such circumstances, nominal fine may be imposed. On these grounds, he prays to dismiss the appeal filed by the State.
20. We have carefully and cautiously gone through the submissions made by the learned Counsel appearing on behalf of the appellant and also the respondent-State and perused the evidence and other materials which has been produced in this behalf.
21. Before going to discuss in detail the submissions made by the learned Counsel appearing for the parties, we feel it just and necessary to place on record the evidences which has been produced before the Court below in brief.
22. P.W.1 is the husband of the deceased Vijayalakshmi and son of the appellant-accused. He has deposed with regard to earlier relationship between his deceased wife and himself. He has further deposed that there was earlier friendship between himself and his deceased wife. Subsequently they fell in love and thereafter, they have informed the said fact to their parents, earlier his parents did not agree to the love marriage as the caste of the deceased and himself (P.W.1) were different. As such, subsequently during the year 2010 in the month of July, they got married by registering in the Sub-Registrar Office. He has further deposed that except his father, all other family members had cordial relationship with them and his mother and younger brother were staying together with them and after his wife coming to Bangalore, they started living separately. He has also deposed that when he was residing separately, his father – accused/appellant was pestering him to clear the loan which had been taken for the purpose of construction of first floor as he was not having any amount. Hence, he had given some gold ornaments to his mother and asked her to make arrangement for the said amount, but during her journey, she had lost the said gold ornaments in the bus. It is his further evidence that his father had asked him to arrange for the amount as he was not having any amount, but he could not pay amount to his father and as such, there were some altercations between himself and the accused-appellant over the phone. It is his further evidence that on 2.8.2011, when he had been to his work, at about 1.00 p.m. he received a phone call from the owner of his house and he did not give any clue, but only asked him to come back immediately to his house. So when he came to his house along with his friend Gopikrishna. There he found a burnt body of his wife lying in the Hall and the blood was oozing from her head and he also came to know that his female child had been taken to the Vydehi Hospital for First Aid. He has further deposed that by the time, he saw his wife was lying dead, at that time, the neighbours told him that an old man about 55 years with bald head and having white hairs ran out of his house at the time of the alleged incident and his shirt was stained with blood. Immediately, P.W.1 suspected may be it was his father and therefore, he showed them the photograph of his father from his mobile to the said person and immediately, they identified him by seeing the said photograph. Thereafter, he confirmed that it was his father, who had committed the murder of his wife.
Immediately, he also called his father over the mobile. Though it rang in the first instance, it was not picked up and subsequently, when he called again, the said mobile was switched off. Therefore, immediately he also called to the mobile of his mother, she took and answered the call and when he asked about his father- appellant-accused, she told that for the purpose of business, he had been to Kerala. He then explained the alleged incident to his mother and she was shocked by hearing the same. He has further deposed that thereafter he went to the hospital and there he found his daughter was suffering with burn injuries and half of her body was burnt and subsequently on 3.8.2011 she died because of burn injuries. He has also deposed that on 14.8.2011 along with police, he went to his house and as he was not having the key of the cupboard, after making alternative arrangement for the key, he opened the cupboard and verified. At that time, he came to know that the ornaments belonging to the child were missing and he has further deposed that on 22.8.2011 he received a phone call from the police, who informed that his father had been traced and immediately he went to the police station, there he saw his father and then the police showed the gold ornaments which were in the possession of his father. He then identified the said ornaments, as that of his wife and child and he has identified the said ornaments even before the Court. He has further deposed that the accused-appellant was not happy in he getting married with his dead wife – Vijayalakshmi and his father was absent for the said marriage. He has further deposed that when his father asked for money, he had not given and as such, when he was not there in the house, at that time, his father had come and killed his wife and daughter and has taken the ornaments which were kept in the cupboard for money.
23. During the course of cross-examination, it has been elicited that when he met his father and requested about the proposal of his marriage, his father opposed the same and when the said fact was informed, his father called P.W.4-Kokila (mother of the deceased) over the phone and informed that if her daughter (Vijayalakshmi) – deceased is given in marriage to P.W.1, he is going to burn her. He has also admitted the suggestion as true that his mother and his wife were belonging to different caste and his mother had informed him not to marry her. He has also admitted the suggestion as true for the said reason, all the family members of him were opposing the said marriage. He also admitted the suggestion as true that he had pledged the gold ornaments belonging to his family for the purpose of clearance of loan in the bank. He has further deposed that the said loan had been obtained prior to the marriage. He has also admitted the suggestion as true that during the journey, his mother had lost the said gold ornaments. He has also deposed that immediately after receiving the information within 20 minutes, he came to the spot and by the time, he reached the spot his wife had died and when he asked, who is the accused for the said incident, one of the persons, who had gathered there told that somebody, who was aged about 55 years and having no hairs in his head, went out of the house and at that time, he had suspected that it was his father. Therefore, he showed the photograph of his father to the said person and he identified the photo as the same person and when he asked what type of dress, he was wearing, he told that he was wearing white shirt. He has also deposed that the police had come to the place of incident prior to him and he had also given the explanation as to the delay in filing the complaint. When a suggestion was put to him that in June, 2011 all ornaments belonging to the family had been stolen, the same has been denied and all other suggestions which had been put to this witness have been denied. He has also identified the said articles produced before the Court. Except this, nothing has been elicited from the mouth of this witness.
24. P.W.2 – Karthik, a relative of the deceased received the phone call and thereafter he came to the spot and there he noticed that the said Vijayalakshmi had died and thereafter her body was taken to the hospital. There he came to know that the father of Rajakannan had committed the alleged offence and as such, he went to the police station at about 8.20 p.m. and filed a complaint as per Ex.P.12. He has also deposed that on the next day, the Tahsildar also came to the hospital and before that, the police, who had also come to the spot seized one bottle which contained the smell of kerosene, one laptop, one chopper, blood stains from the floor and articles as per Ex.P.13. During the course of cross-examination, nothing has been elicited so as to discard his evidence.
25. P.W.3 – Rajarajan, who is the brother of P.W.1-Rajakannan has also reiterated the evidence of P.W.1 and his evidence has been treated as partly hostile to the prosecution case. During the course of his cross-examination by the Public Prosecutor, he has admitted the fact that his brother - P.W.1 and Vijayalakshmi were loving each other during their college days and when the proposal was made to his father regarding the marriage, the same had been rejected and in that context there was some galata between P.W.1 and his father. He has further admitted the fact that his father-accused had taken a loan of Rupees Four Lakhs from the bank for the purpose of construction of house in the village. He has also admitted the suggestion that in the meanwhile, there was a request by his father to P.W.1 to pay the amount for clearing the loan. He has further admitted the suggestion as true that when he enquired the neighbours about the incident, at that time, they told him that one person ran away from the place of incident and as such, he showed the photograph of his father from his mobile and the same was identified by the said persons. This witness has not been cross-examined by the learned Counsel for the appellant-accused for the reason best known to the accused. The same has remained unchallenged.
26. P.W.4 – Kokila, who is the mother-in-law of P.W.1 has deposed that the deceased is her daughter and the marriage between P.W.1 and the deceased is a love marriage; father of P.W.1-accused was not having any interest to get her daughter married to P.W.1; and father of P.W.1 called her over the phone and informed that he is going to kill her daughter since it would be an inter caste marriage and he is not agreeing for the said marriage.
27. During her cross-examination, it has been elicited that she has not stated before the police that her daughter died because of the burst of washing machine, but still they have recorded. She has further deposed that she came to know that Smt. Vijayalakshmi died because of the blast. Except that, nothing has been elicited in the cross-examination of this witness.
28. PW5 is the sister of PW4. She came to know about the marriage between PW1 and the deceased as it was a love marriage and she also came to know that there was difference of opinion amongst the family of both regarding the said marriage and subsequently PW1 and deceased got registered marriage and thereafter some time deceased stayed at Madras and after marriage, a child was born and they started living together with PW1. She has further deposed that PW1 informed her over phone that deceased died because of the blast of the washing machine. Though during the course of cross- examination many suggestions have been made, the same have been denied by this witness.
29. PW6 is an independent witness. He has deposed that near his house, house of PW8 is also situated and at about 1.30 p.m. they were standing by talking with PWs.7 and 8 near the retail shop and at that time they saw a smoke coming out of the house and immediately they went there and at that time a person came out of the house by wearing a white shirt with stains of blood and he ran away and when they went inside the house, they saw the blood has scattered and a chopper and a kerosene bottle was also lying there. They came to know that the accused by assaulting with macchu on the head of the deceased and has set fire and they also saw the matchstick and other articles and they also saw the body has been burnt and immediately they shifted the body to the main hall and they covered the body with bed sheet and they also saw in the bath room a female child was also suffering with burn injuries and immediately she was taken to the hospital. Though this witness has been treated partly hostile, insofar as the main aspect is concerned the same has been substantiated during the course of examination-in-chief. During the course of cross-examination it has been elicited that on the basis of the stained blood over the shirt he cannot be identified and the said place is the thickly populated place and he cannot see that who is the exact person who ran away from that place. Except that, nothing has been elicited from the mouth of this witness.
30. PW7 has also reiterated the evidence of PW6 and he has also deposed that he has seen a person running out of the house of Shankarappa and he was wearing white shirt which was stained with blood. During the course of cross-examination nothing has been elicited so as to discard his evidence, so also the evidence of PW8. He has also reiterated the evidence of PWs.6 and 7. He has further deposed with regard to the seizure of the laptop, macchu and matchsticks, kerosene bottle by drawing a mahazar as per Ex.P13 and seizure of MOs.1 to 9. During the course of cross- examination it has been elicited that the washing machine has been burst at the place of incident. Except that nothing has been elicited from the mouth of this witness.
31. PW9 is the owner of the house who has gone to the house of PW1 and the deceased.
32. PW10 is the sister of PW1 and daughter of the accused. She has deposed with regard to the accused requesting the brother PW1 to give some amount for discharging the loan which he has taken for the purpose of construction of the first floor.
33. PW11 is the Co-worker who is working along with PW1 and he is pancha to inquest mahazar at Ex.P17, whereunder he has also deposed that the body of the child was in VIMS hospital and was having burnt injuries.
34. PW12 is also a witness for inquest mahazar Ex.P18 whereunder the inquest was conducted over the body of the deceased Vijayalakshmi.
35. PW13 is the Executive Engineer, PWD. He has prepared the sketch as per Ex.P19 at the place of incident.
36. PW14 is the ASI. He has deposed that he has been deputed for the purpose of apprehension of the accused and on 22.8.2011 as per credible information he went near Hosur bus stand and as per the instructions he arrested the accused who was standing there and at that time he was holding the luggage bag and when he verified the bag he found some gold ornaments and immediately he brought him to the police station and produced before the Police Inspector by giving a report as per Ex.P20. The other suggestions which have been made during the course of cross- examination have been denied by this witness.
37. PW15 is the photographer who has taken the photographs at the place of incident and he has also identified the said photographs as per Exs.P6 to P9.
38. PW16 is the Deputy Director, Forensic Lab.
He has examined the articles including the matchsticks and he has given his opinion as per Ex.P21.
39. PW17 is also a Scientific Officer. He has also given FSL report as per Ex.P22.
40. PW18 is the Police Constable who carried seized articles for chemical examination.
41. PW19 is the PSI. After receipt of the information from the people he came to the place of incident and found that the said house was covered with smoke and burnt body of a lady was found and in the bathroom he also saw a four months’ female child suffering with burn injuries and was breathing.
Thereafter, he took the said baby to the Government Hospital and got it admitted and at that time when he made an enquiry with the people he came to know that, a person wearing white shirt and stained with blood ran away from that particular place and he went to the police station and gave the report as per Ex.P27. During the course of cross-examination nothing has been elicited so as to discard this evidence.
42. PW20 is also the Police Constable who carried the FIR to the jurisdictional Court as per Exs.P12 and P28.
43. PW21 is also the Scientific Officer who conducted the examination of the articles sent by the Investigating Officer and has given the report as per Ex.P35.
44. PW22 is the Doctor, who conducted the autopsy over the body of the deceased Vijayalakshmi and has issued the post mortem report as per Ex.P30 and he has also given his opinion as per Ex.P32.
45. PW23 is also the Doctor who conducted autopsy over the body of the child and has issued the post mortem report as per Ex.P33.
46. PW24 is the Head Constable. He watched the dead body of the child and he took the body to Vydehi Hospital and thereafter he carried the said body for the purpose of post mortem.
47. PW25 is the Investigating Officer who registered the case on the basis of the complaint as per Ex.P12 and thereafter, after investigation he filed the charge sheet against the accused.
48. PW26 is the Tahsildar who has conducted inquest over the body of the deceased Vijayalakshmi as per Ex.P18.
49. From the above evidence let us consider whether the prosecution has proved the guilt of the accused beyond all reasonable doubt.
50. On careful consideration of the entire material it is not in dispute that the entire case rests on circumstantial evidence. There are no eyewitnesses to the alleged incident. It is well settled principle of law, where a case rests squarely on circumstantial evidence, the inference of the guilt of the accused can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of the accused or the guilt of any other person. Keeping in view the above said facts and circumstances and the said proposition of law, let us consider whether the prosecution has proved the circumstances which it has relied upon.
51. In order to establish its case the prosecution has relied upon the circumstances that the death of the deceased Vijayalakshmi and the female child is a homicidal death, motive, last seen theory and recovery of the gold articles from the possession of the accused including recovery of the stained shirt. Let us consider the circumstances one by one in order to substantiate the case of the prosecution.
i) Homicidal Death: In order to prove the said circumstance the prosecution has got examined PW1 the husband of the deceased, PW2 the relative of the deceased, PWs.6 to 8, 11, 12, 22 and 23 who have conducted autopsy over the body of the deceased Vijayalakshmi as well as the child. As could be seen from the evidence of PWs.1, 2, 6 to 8 when they visited the place of the incident they saw the deceased has died with burn injuries and they also saw some injuries on the head of the deceased Vijayalakshmi. Even as could be seen from the evidence of PW22 the doctor who conducted autopsy over the body of the deceased, he has clearly deposed that there were second degree burn injuries on her face, neck, chest, stomach, both legs, both hands and he has also found the lacerated wound on the head measuring 5 x 1 cms. and there was also cut injuries about 14 cms. and he has also opined that the said injuries have been caused prior to the death of the deceased and even he has deposed that when he opened the head, the blood was clotted and he has issued the post mortem report as per Ex.P30 and he has also given his opinion as per Ex.P32. Even the evidence of PW23 the doctor who conducted the autopsy over the body of the female child has also deposed that there were burn injuries on chest, stomach and waist, both hands and wrist and other parts of the body and the child has died due to the burn injuries. Even the inquest mahazar Exs.P17 and 18 and in the evidence of PWs.11 and 12 they have substantiated what has been stated in Exs.P17 and 18. By going through all the materials which has been produced clearly goes to show that the deceased Vijayalakshmi and female child died due to the injuries which have been suffered. Even during the course of argument the learned counsel for the appellant has also not seriously disputed the fact that both the deceased died homicidal death. In this behalf the prosecution has clearly established the fact that the death of both the deceased is a homicidal death.
ii) Motive: The second circumstance which the prosecution has relied upon is motive.
52. The prosecution has relied upon two circumstances under which the alleged incident has taken place. The first one is accused was resisting the marriage of PW1 with deceased as she belonging to a different caste and as such he was not liking and there was a galata between PW1 and the appellant/accused. The second circumstance on which the prosecution has also relied upon is that the accused borrowed the loan to construct the first floor at his native place and requested PW1 to give money. First he gave some ornaments, as he was no money. During journey the said ornaments have been lost by his mother and again appellant started requesting to adjust some money and as it was not possible to PW1 to adjust money, it was also objected by the deceased and under the impression that it is the deceased who is objected for payment of the said amount and he was also under the impression that PW1 has given some money to PW4 the mother of the deceased and in that way he was also having some misunderstanding. In that light also he has committed the alleged offence.
53. In order to prove the first circumstance the accused was not inclined so as to PW1 getting married with the deceased, the prosecution has relied upon the evidence of PW1, the husband of the deceased and son of the accused and PW3 the brother of PW1 and son of accused, PW4 the mother of the deceased, PW5 the aunt of the deceased and the sister of PW4 and PW10 sister of PWs.1 and 3. They have consistently deposed that when PW1 informed about the love affair between himself and the deceased, the same was resisted by the members of the family including the appellant/accused and subsequently son of the accused got registered marriage with the deceased and the other members of the family became cordial. The appellant/accused was not happy with the said marriage and even he did not attend the naming ceremony of the child and in this behalf it clearly goes to show that since from the beginning the appellant/accused was not happy about the marriage of his son with the deceased, as she belonging to a different caste. In this behalf, the evidence which has been produced is satisfactorily proved the said motive. Even during the course of cross- examination the same was admitted by the witnesses. When the said evidence has been elicited in this behalf, the first circumstance of motive on which the prosecution is intending to rely upon, has been strongly proved by the prosecution.
54. Even as could be seen from the evidence of PWs.1, 2 and 10 they have categorically deposed before the Court that the accused borrowed a loan to construct the first floor and he requested PW1 to give money and he gave some ornaments as he was not having any money and during the journey some of the ornaments have been lost by the mother and thereafter accused started requesting to adjust the money and the same was objected by PW1 and the accused was under the impression that the deceased is the main cause for not giving any money and in this behalf there was also ill- will and in that light though the prosecution has also proved the said circumstance, by going through entire evidence which has been produced, it clearly goes to show that the prosecution has established the motive for the alleged incident is concerned.
iii) Last seen:- The third circumstance on which the prosecution has relied upon is the last seen theory. In order to substantiate the said fact the prosecution has got examined PW6-Raghu, PW7-Rameshreddy, PW8-Babu. In their evidence they have clearly deposed that on 2.8.2011 at about 1.30 p.m. they were standing near a retail shop by talking and at that time they saw smoke coming from the house of Rangappa and they went immediately to the said place and at that time they saw a person running out of the house by holding a bag and his shirt was also stained with blood. Though during the course of cross-examination it has been elicited that on the basis of the stained shirt it is very difficult to identify the accused person, as could be seen from the suggestions made in this behalf and the evidence led, they have categorically deposed that when PW1 came to the place of incident immediately they also give the description of the person who ran away from that place and on the basis of the description, PWs.1 and 3 suspected that his father might have committed the alleged offence and thereafter he has shown the photographs in the mobile that of his father and at that time the witnesses have identified that he was the person who ran away from that particular place immediately after the incident.
55. When the said fact has been immediately told before PWs.1, 3 and informed to the Police Inspector who visited the said place and who has given the report as per Ex.P27. Even as could be seen from the evidence which has been produced, it clearly goes to show that they have identified the said person who ran away from the said house immediately after the alleged incident.
56. On close perusal of the evidence of PW8, he has deposed before the Court that when he along with PWs.6 and 7 came to the place of incident, he saw a person running out of the house and his shirt was stained with blood and he talked with him, at that time he told that there was some altercation between husband and wife and as such there was a big sound and he ran away from that particular place.
57. When PW8 himself has clearly deposed that he has also talked with said person and he has identified by seeing the photograph in the mobile of PWs.1 and 3. Then under such circumstances, the said fact can be accepted that these witnesses have seen the accused running away from that particular place. No ill- will as against appellant-accused against these witnesses so as to discard their evidence.
58. During the course of argument the learned counsel for the appellant submitted that PW1 in his evidence has deposed that he received the information at about 1.00 p.m. and immediately he came to the place of incident and as per the evidence of eyewitnesses they have seen the appellant at about 1.30 p.m., by the time PW1 came at about 1.00 p.m. the accused was not present. Under the said circumstances, these witnesses seeing the appellant at about 1.30 p.m. is not just and proper.
59. No doubt there is some minor discrepancy is there while deposing the said timings, as could be seen from the evidence of PWs.3, 6, 7, 8 and 19, they have consistently deposed before trial Court that the alleged incident has taken place at about 1.15 p.m. or 1.30 p.m. and when they were talking near retail shop and after noticing the same, they went and have seen the said accused running out of the house with stains of blood on his shirt.
60. On going through the said evidence, the said evidence is natural, credible and consistent. Even in the evidence of all these witnesses, there is corroboration with the timings and running away from the said place. No doubt there are some minor discrepancies in the evidence, those minor discrepancies are not going to take away the evidence which has been given by the said witnesses and it cannot be held that they are telling lie. Even nothing has been suggested with what animosity they are deposing against the accused. PWs.6 to 8 are independent witnesses not related to anybody, under such circumstances their evidence cannot be discarded.
61. Under the said facts and circumstances the evidence which has been produced in this behalf is credible and worthy of credence and same is acceptable.
62. Even it is well settled principles of law that sequence of events which have been stated by the witnesses are little bit changes, then under said circumstances much importance should not be attached to such minor omissions, contradictions and minor discrepancies. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarath reported in AIR 1983 SC 753.
5. It appears that the parents of P.W. 1 as well as parents of P.W. 2 wanted to hush up the matter. Some unexpected developments however forced the issue. The residents of the locality somehow came to know about the incident. And as an alert Woman Social Worker, P.W. 5 Kundanben, President of the Mahila Mandal in Sector 17, Gandhinagar, took up the cause. She felt indignant at the way in which the appellant had misbehaved with two girls of the age of his own daughter, who also happened to be friends of his daughter, taking advantage of their helplessness, when no one else was present. Having ascertained from P.W. 1 and P.W. 2 as to what had transpired, she felt that the appellant should atone for his infamous conduct. She therefore called on the appellant at his house. It appears that about 500 women of the locality had also gathered near the house of the appellant. Kundanben requested the appellant to apologize publicly in the presence of the woman who had assembled there. If the appellant had acceded to this request possibly the matter might have rested there and might not have come to the court. The appellant, however, made it a prestige issue and refused to apologize. Thereupon the police was contacted and a complaint was lodged by P.W. 1 on 19 Sept. 1975. P.W. 1 was then sent to the Medical officer for medical examination. The medical examination disclosed that there was evidence to show that an attempt to commit rape on her had been made a few days back. The Sessions Court as well as the High Court have accepted the evidence and concluded that the appellant was guilty of sexual misbehavior with P.W. 1 and P.W. 2 in the manner alleged by the prosecution and established by the evidence of P.W. 1 and P.W. 2. Their evidence has been considered to be worthy of acceptance. It is a pure finding of fact recorded by the Sessions Court and affirmed by the High Court. Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established: (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded. The present is not a case of such a nature. The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned counsel for the appellant. Over much importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him- perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses.
63. During the course of argument the learned counsel for the appellant/accused also further submitted that these witnesses have seen the appellant/accused for the first time and the Investigating Officer has not conducted the Test Identification Parade in order to identify the accused. We have carefully and cautiously gone through the evidence which has been produced before the Court. PWs.6, 7, 8 have consistently said that the accused running out of the house immediately after hearing the sound from the said house and seeing the smoke from the house and thereafter when PWs.1 and 3 appeared they have given the description of the person who ran away from that place and thereafter it is PW1 showed the photographs through his mobile and at that time they have clearly identified the said person who ran away from that particular place. When PW1 the son of the appellant/accused himself has shown the photographs, they have identified. Under such circumstances it is not necessary that the Test Identification Parade has to be held. It is well settled principle of law that the Test Identification Parade is not going to determine the case of the prosecution in any manner. The Test Identification Parade is only for the purpose of the investigation and to confirm whether the accused person is the same person who has involved in the alleged offence. In this behalf holding or not holding the Test Identification Parade will not make any difference in this behalf. Under the said facts and circumstances, the said contention of the learned counsel for the appellant/accused is not acceptable and the same is hereby rejected.
iv) Recovery:- The fourth circumstance which the prosecution has relied upon is that of recovery of gold articles. In this behalf the prosecution has relied upon the evidence of PW1 the husband of the deceased. In his evidence at paragraphs 11 and 12 he has deposed that on 3.8.2011 he conducted the funeral of his wife and child and on 14.8.2011 along with the police he went to the house and as he was not having the key of the cub- board, he made arrangements to prepare the alternative key and thereafter opened the cub-board and saw the missing of gold articles belonging to the child and he has also given the list of 13 articles which were missing from the said cub-board. He has further deposed that on 22.8.2011 the police called him to the police station and there he saw the appellant/accused and he also saw the said articles were with the appellant/accused.
64. Even PW7 the recovery mahazar pancha has deposed with regard to recovery of the said gold articles from the possession of the accused as per Ex.P16 and the same have been seized from the possession of the accused.
65. PW14 in his evidence also has reiterated what has been stated by PW7 and he has deposed that he has been deputed for apprehension of the accused and when he was searching for the accused, the accused was traced in Hosur bus stand and when he apprehended he was holding a bag and when he verified the said bag, the bag was containing the gold articles and he brought the accused and the said bag to the police station and produced the accused before the Investigating Officer by giving a report as per Ex.P20 and in the said report the said contents are mentioned.
66. PW.25-C.K.Ashwathanarayana is the Investigating Officer. He has deposed that, PW.14 has produced the accused and he secured the panchwitnesses and thereafter, when he verified the bag, he found some gold ornaments and the said gold ornaments have been seized by drawing up a mahazar as per Ex.P.16 and after verifying all the said articles seized under Ex.P16 he found that they are belonging to the female child and the same have been identified by PW.1. By going through all these articles and the said evidence, it clearly go to show that the said articles have been seized from the possession of the accused/appellant. During the course of cross examination of this witness, nothing has been elicited from this witness and no evidence has been led in this behalf to show as to how and under what circumstances the accused came in possession of the said gold articles. Most of the articles are belonging to the female child of PW.1 and deceased Vijayalakshmi. When the said articles have been identified by PW.1 and the same have been seized from the possession of the accused. Under such circumstances, the possession of the said articles with the accused will corroborate the evidence of PW.1 that the said articles have been stolen from the house of PW.1. In this behalf, the prosecution has clearly established the fact that, immediately after the alleged incident, the accused has taken away the gold articles from the cupboard of the house of PW.1.
In this behalf, the evidence which has been led is also sufficient to point out the guilt of the accused. One more circumstance, which has also been relied upon by the prosecution is, recovery of blood stained shirt from the possession of the accused. In this behalf, PW.14 and PW.25 (IO) have also clearly deposed before the court that the blood stained shirt was recovered from the possession of the accused. Though during the course of evidence, the Investigating Officer has deposed that, he has recorded the voluntary statement of the accused and thereafter, the said stained shirt has been produced, as could be seen from the said recovery, the provision under Section 27 is not attracted as argued by the learned counsel for the appellant/accused, when the said shirt has been recovered from the possession of the accused and the accused has also not come up with any other explanation as to how and under what circumstances, that shirt was stained with blood and the same was found in his possession. Non-following of the procedure as contemplated under Section 27 is only irregularity but, it is not illegality so as to throw away the case of the prosecution only on the minor discrepancy which has been done by the Investigating Agency.
67. It is well settled principles of law that, if any lapses or irregularities have been done during the course of investigation, then the accused is not entitled to the said benefit. In this light also, the contentions taken up by the learned counsel for the appellant is not acceptable. One more circumstance which the prosecution has relied upon is, the seizure of the Laptop (MO.9), Chopper (MO.2), the blood samples and swab (MOs. 15 to 17) from the place of incident. In this behalf, the prosecution has relied upon the evidence of PW.25 and PW.21.
68. The Investigating Officer in his evidence has deposed that, he has visited the spot and there, he called the panchwitnesses and he also recovered Articles 1 to 12 from the said place including the laptop (MO.9) and Chopper (MO-2) and the blood samples and swab (MOs. 15 to 17). Said articles have been sent to Chemical examination and in this behalf, the prosecution has also produced the evidence of PW.21- N.N.Gaonkar. In his evidence, he has deposed that he has received the said articles through the police and thereafter, the said articles have been put for chemical examination and he has given report. In his evidence, he has further deposed that Item Nos. 1, 2, 3, 5, 7 to 9 and 10 and 20 were stained with human blood and even he has given his opinion that, Item Nos.1, 2, 3, 8, 10 and 20 were stained with ‘A’ blood group. This evidence clearly goes to show that, the articles have been seized from the place where the alleged incident has taken place and they were also stained with human blood and even it is having ‘A’ blood group. In this behalf also, the said facts have been proved by the prosecution. It is the specific case of the prosecution that the accused person went inside the house and when he asked the deceased to give gold articles and she refused to give the same. At that time, he took the laptop and assaulted on her head and caused injuries and thereafter, he took her body to the bath room, poured kerosene and lit the fire. In this behalf, the injuries found over the body of the deceased also substantiate the said fact. During the course of the argument, learned counsel for the appellant/accused has submitted that the said laptop and chopper are not used for the purpose of commission of the murder. As per the opinion of the Doctor, the injuries sustained by the deceased could not be the chopper injuries found over the body of the deceased and the said laptop was also not found with any damages. Under such circumstances, he requested that the said articles have not been used for the purpose of commission of the said offences. As could be seen from the evidence, which has been produced and the material produced in this behalf, it clearly goes to show that the accused first assaulted the deceased with the laptop and thereafter, he also assaulted with the chopper and took the deceased and by throwing into the bath room, he poured kerosene and lit the fire. In this behalf the doctor has given his opinion that the death is due to burn injuries sustained by the deceased.
69. Taking into consideration the FSL report and other circumstances, which have been produced, clearly go to show that it is also stained with ‘A’ Group Blood. In the said circumstances, the recovery of the gold articles and also the recovery of the blood stained shirt and also the recovery of laptop and chopper from the place of incident would connect the said alleged act to the said case. Taking into consideration the above said facts and circumstances, the prosecution has clearly established this circumstance also.
70. During the course of the argument of the learned counsel for the appellant/accused has vehemently argued and contended that PW.14 has arrested the appellant at Hosur and he was already knowing the ornaments in the bag which were inspected by him. Under such circumstances, the recovery of the said articles said to have been made on the basis of the voluntary statement of the accused is not going to attract the Section 27 of the evidence Act.
71. We have carefully and cautiously gone through the evidence of PWs. 25 and 14. PW.14 has stated that, he has only apprehended the accused at that time, he has noticed bag containing the gold articles. No doubt he has not drawn any mahazar at the place of the alleged apprehension and he has not drawn any mahazar for having seized the said articles. But, as per the report given by him and thereafter, PW.25 (IO) has clearly deposed before the court that, he followed the arrest procedure and thereafter, he secured the panch witnesses and thereafter he seized the gold articles belonging to the said child from the possession of the accused on personal search. So, under such circumstances, Section 27 does not at all come in the way. In this behalf, the submission made by the learned counsel for the appellant/accused is not acceptable.
72. In the above said circumstances, on close scrutiny of the evidence, we are of the considered opinion that the prosecution has clearly established the circumstances, on which the prosecution is intending to rely upon and all the circumstances, which the prosecution has relied, have strongly point out the guilt of the accused. It is well settled proposition of law that men may lie but the circumstances not. When all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person, under such circumstances, it can be safely held that the prosecution has proved the guilt of the accused beyond all reasonable doubt.
73. In sofar as the Criminal Appeal No.895/2015 is concerned, the learned Addl. SPP has submitted that, though the accused has been convicted and sentenced for life imprisonment, but it has not imposed any fine, which is mandatory under Section 302 of IPC. Learned counsel for the accused has submitted that the prosecution has not made out any case for conviction and in alterative, he also further submitted that, if at all this court comes to the conclusion that the fine has to be imposed then, nominal fine may be imposed.
74. We have carefully and cautiously gone through the punishment provision of Section 302 of IPC. The words used in said section are “Death, or imprisonment for life and fine”. In such circumstances, it is the mandatory duty of the court to see that, whenever the accused has been convicted and sentenced under Section 302 of IPC, the accused shall not only be sentenced for imprisonment, but it must be followed with fine.
75. Under the above circumstances, we are of the considered opinion that the contention raised by the learned Addl. SPP appears to be just and proper. In that light, the said appeal is liable to be allowed only to the extent of imposing fine is concerned.
76. Taking into the consideration the above said facts and circumstances, we are of the opinion that, when the accused is found guilty for the offence punishable under Section 302 of IPC, he is not only liable for sentence of imprisonment but, he is also liable for the sentence of fine. Therefore, in connection with the said offence under Section 302 of IPC, we sentence the appellant/accused to pay fine a of Rs.25,000/- and in default to pay the said fine amount, he shall undergo Rigorous Imprisonment for six months.
77. We further order that, out of the said fine amount, Rs.20,000/- is ordered to be paid to PW.1, the husband of the deceased as compensation under Section 357 of Cr.PC. Further, the appellant/accused is also entitled for set off under Section 428 of Cr.PC.
78. We have carefully and cautiously gone through the judgment of the trial Court. The trial Court after considering the facts and circumstances placed on record, has rightly appreciated the oral and documentary evidence on record and the circumstances projected by the prosecution and has rightly come to the right conclusion. Therefore, we find no perversity or illegality in the impugned judgment of conviction. But while sentencing it has erred. As such order of sentence is modified as observed above. Accordingly we pass the following order.
ORDER i) Criminal Appeal No.1604/2015 is devoid of merit and accordingly it is dismissed.
ii) Criminal Appeal No.895/2015 is partly allowed and the sentence is modified as indicated in the body of this judgment.
79. Before concluding the judgment, we place on record the valuable assistance rendered by Sri. Basavaraju T.A., the learned counsel appearing for the appellant/accused in disposal of these appeals.
Sd/- JUDGE Sd/- JUDGE Nsu/- AP KGR*