IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 7TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL REFERRED CASE NO.6 OF 2014 c/w CRIMINAL APPEAL NO.731 of 2014 IN CRIMINAL REFERRED CASE NO.06 OF 2014 BETWEEN:
THE PRESIDING OFFICER, FAST TRACK COURT-XIV BENGALURU. ... PETITIONER (By SMT:NAMITHA MAHESH, HCGP) AND:
SHRI GOVINDARAJU @ GOVINDA @ KUMARA S/O GILI RAMANNA AGED ABOUT 31 YEARS PERMANENTLY RESIDING AT: KALANAKATTE VILLAGE, HIRIYUR POST BHADRAVATHI TALUK SHIMOGA DISTRICT.
PRESENTLY RESIDING AT:
C/O NO. 13-A, 5TH MAIN ROAD NARASIMHA LAYOUT, NANDINI LAYOUT BENGALURU-560096 ... RESPONDENT (By Sri: BASAVARAJU T A, ADVOCATE) THIS CRIMINAL REFERRED CASE IS FILED UNDER SECTION 366 (1) CR.P.C., FOR CONFIRMATION OF DEATH SENTENCE AWARDED TO ACCUSED SHRI GOVINDARAJU @ GOVINDA @ KUMARA, S/O GILI RAMANNA, AGED ABOUT 26 YEARS, PERMANENTLY RESIDING AT KALANAKATTE VILLAGE, HIRIYUR POST, BHADRAVATHI TALUK, SHIMOGA DISTRICT, PRESENTLY RESIDING AT C/O NO.13-A, 5TH MAIN ROAD, NARASIMHA LAYOUT, NANDINI LAYOUT, BENGALURU, PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT – XIV, BENGALURU, BY THE JUDGMENT OF CONVICTION DATED 21.07.2014/23.07.2014 IN S.C.NO.659 OF 2009 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF INDIAN PENAL CODE.
******* CRIMINAL APPEAL NO.731 OF 2014 BETWEEN:
GOVINDARAJU @ GOVINDA @ KUMARA S/O GILI RAMANNA, AGED ABOUT 31 YEARS, PERMANENTLY RESIDING AT KALANAKATTE VILLAGE, HIRIYUR POST, BHADRAVATH TALUK, SHIMOGA DISTRICT-577452 PRESENTLY RESIDING AT:
C/O NO-13-A, 5TH MAIN ROAD, NARASIMHA LAYOUT, NANDINI LAYOUT, BENGALURU-560096. ... APPELLANT (By Sri: T.A. BASAVARAJU, ADVOCATE) AND:
STATE OF KARNATAKA, BY TILAK NAGAR POLICE STATION, TUMAKURU DISTRICT-570 021.
(REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR) ... RESPONDENT (By SMT:NAMITHA MAHESH, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C BY THE ADVOCATE, FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED:21.7.2014/23.7.2014 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT- XIV, BENGALURU CITY IN S.C.NO.659 OF 2009 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 AND 392 OF INDIAN PENAL CODE AND THE APPELLANT/ACCUSED IS SENTENCED TO DEATH, BY VIRTUE OF SECTION 235(2) OF CR.P.C. FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF INDIAN PENAL CODE AND HE SHALL BE HANGED BY HIS NECK TILL HE IS DEAD AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 5 YEARS AND TO PAY A FINE OF RS.10,000-00 IN DEFAULT TO UNDERGO SIMPLE IMPRISONMENT FOR ONE YEAR IN RESPECT OF AN OFFENCE PUNISHABLE UNDER SECTION 392 OF IPC THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
******* THIS CRIMINAL REFERRED CASE AND CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, JOHN MICHAEL CUNHA, J., DELIVERED THE FOLLOWING:
J U D G M E N T This Criminal reference and the criminal appeal are arising out of the judgment dated 21.07.2014 and the order of sentence dated 23.07.2014 passed by the Fast Track Court-XIV, Bengaluru City in S.C.No.659 of 2009 whereby the appellant (hereinafter referred to as ‘accused’) is convicted for the offences punishable under sections 302 and 392 Indian Penal Code and is sentenced to death and rigorous imprisonment for five years and a fine of Rs.10,000/- respectively.
2. The brief facts of the prosecution case as unfolded during trial are as follows:-
The deceased Jayashree and her mother-in-law deceased Sathyabhama were residing at House No.640, 2nd Main, 4th ‘T’ Block, Jayanagar, Bengaluru. Jayashree was working in M/s. Agri Gold Farms Private Limited. The accused who was also working in the same firm, got acquainted with her. He used to help Jayashree to collect pigmy amount and used to regularly visit the house of the deceased. In the month of February 2009, thread ceremony of Jayashree’s son was scheduled and the accused came to know that valuable clothes and ornaments were collected in the house of the deceased. Hence, with intent to commit robbery of the gold ornaments and other valuables, on 20.01.2009 between 1.30 p.m. and 2.00 p.m., the accused entered the house of the deceased. The mother-in-law of Jayashree viz., deceased Sathyabhama was sleeping in the hall. The accused hit Sathyabhama on her forehead with a coconut, pressed a pillow on her face and caused her death by smothering. Thereafter, he assaulted Smt. Jayashree on her forehead and head with a coconut and smothered her with a pillow and robbed the gold ornaments found on the body of the deceased, a mobile handset and the gold ornaments kept in the almirah alongwith silk sarees and stuffed them in a kit bag. When he was about to leave, the daughter of Sathyabhama viz., Smt. Vijayalakshmi returned from school. The accused assaulted on her forehead and smothered her with a pillow and left the house carrying the kit bag containing the gold ornaments silk sarees and the mobile of the deceased.
2(a) PW-8 a relative of the deceased happened to come to the house of the deceased at about 2.00 p.m. She found the dead-bodies of all the above three persons with injuries on their forehead and face. She immediately alerted the neighbourers and information was given to the police. PW-52 – Police Inspector of Tilak Nagar Police Station rushed to the spot. He received a complaint from PW-8 and based on the said complaint, registered a FIR in Cr.No.21 of 2009 under section 302 Indian Penal Code against unknown persons. He conducted inquest over the dead bodies and also drew up the spot mahazar and collected the materials found at the spot of offence including a de-husked coconut found in a steel vessel in the kitchen.
2(b) The further investigation was taken up by PW- 50, the then A.C.P. of Mico layout. In the course of the investigation, he made a requisition to the Deputy General Manager of Airtel to furnish the details of the telephone numbers and the cell number found in a chit, which was seized from one of the rooms at the spot of occurrence. He obtained the finger prints of 20 suspects and forwarded them to the finger print expert to compare them with the chance finger prints obtained at the spot. PW-50 made a requisition to obtain a parallel connection to Cell Nos.9980389903, 9844234557, 9241858460, 9901859565 and 9222943603. He also obtained CDRs of Cell Nos.9980389903 and 9945760392. After verifying the CDRs, he came to know that the SIM No.9980389903 belonging to the accused was inserted into the mobile bearing I.M.E.I.No.351967012915340 belonging to Jayashree. Thus the Investigating Officer having tracked the movements of the accused apprehended him in Mangaluru on 27.01.2009 at Kateel Durga Parameshwari Temple.
2(c) Pursuant to the voluntary statement of the accused, PW-50 recovered the kit bag alongwith the robbed silk sarees and some of the gold ornaments belonging to the deceased. At the instance of the accused, two gold bangles were also recovered. On 31.01.2009, the specimen finger prints of the accused were obtained and the same were sent to finger print expert for comparison with the chance finger prints lifted from the spot of occurrence. On ascertaining that the left thumb of the accused tallied with the chance finger prints found at the spot of occurrence, on recording the statement of the material witnesses with regard to the accused having been last seen in the house of the deceased on the date of the incident, PW-50 laid the charge sheet against the accused alleging the offences under Sections 302 and 362 Indian Penal Code. Subsequently, he moved an application for incorporation of charge under section 392 along with section 302 Indian Penal Code.
2(d) On securing the presence of the accused and on hearing his counsel, based on the material produced by the prosecution, the learned Fast Track Judge framed charges against the accused under sections 302 & 392 Indian Penal Code. The accused having denied the charges, in proof thereof, the prosecution adduced elaborate evidence by examining as many as 52 witnesses as PW1-PW52. The documentary evidence consisting of Exs-P1 to P82 and the material objects at M.O.1 to M.O.123 were also marked on behalf of the prosecution. The accused denied all the incriminating circumstances during his examination under section 313 Cr.P.C. and did not choose to enter into any specific defence.
2(e) On consideration of the oral and documentary evidence produced by the prosecution and the submissions made on behalf of the accused and the prosecution, the trial court by the impugned judgment found the accused guilty of the offence of murder under Section 302 Indian Penal Code as well as under section 392 Indian Penal Code and sentenced him to be hanged by neck till his death for the offence under Section 302 of Indian Penal Code and made a reference to this Court for confirmation of the death sentence as per Section 366 Cr.P.C. The accused has preferred appeal under Section 374(2) of Cr.P.C.
3. We have heard the learned counsel appearing for the accused and the learned HCGP.
4. Sri. Basavaraj T.A., the learned counsel for the appellant/accused contends that the trial court has committed a serious error in convicting the accused under section 302 Indian Penal Code. The case of the prosecution is rested exclusively on circumstantial evidence, but none of these circumstances have been proved by the prosecution with cogent and convincing evidence. In support of the circumstance that the accused was last seen in the house of the deceased, the prosecution has examined PW-13, who has stated that he saw the accused in the house of the deceased at 10.30 a.m., but his evidence is at variance with the of two other witnesses examined by the prosecution viz., PW-14 and PW-24. Therefore, the trial court ought not to have relied on their evidence in accepting the last seen theory set up by the prosecution.
5. With regard to the circumstance of the finger prints relied on by the prosecution, the learned counsel submitted that the original chance finger prints are not produced before the court. There is no clear evidence as to when and how the specimen finger prints of the accused were taken.
The two witnesses examined by the prosecution in proof of the comparison of the finger prints are not the experts within the meaning of Section 45 of the Indian Evidence Act. PW-47 has merely stated that he is acquainted with the signature of Sri.S.N. Nagendra Rao, who issued the opinion at Ex-P45. The other witnesses viz., PW-49 has also not given any evidence with regard to the comparison of the chance finger prints with that of the specimen finger prints of the accused. The opinion relied on by the prosecution viz., Ex-P45 does not contain any grounds in justification of the opinion. Therefore the finding recorded by the trial court on this circumstance suffers from serious illegalities.
6. Disputing the relevancy and the genuineness of the call records relied on by the prosecution, the learned counsel would submit that the evidence relating to the call details even if it is believed, would not lead to the inference that the accused is the author of the crime. This evidence does not prove the complicity of the accused in the murders. In support of his submission, the learned counsel has placed reliance on the following decisions:-
1. AIR 1976 SC 975 (BHAGIRATH vs STATE OF MADHYA PRADESH) 2. 2012 Crl.L.J. 1230 (MADHU vs STATE OF KERALA) 3. (1997) 10 SCC 44 (MOHD. AMAN AND ANOTHER vs STATE OF RAJASTHAN) 4. LAWS(DLH) 2012 12 89 (MADAN MOHAN vs JAWAHAR LAL) 5. LAWS (KAR) 2017 2 1 (PALANI P vs STATE OF KARNATAKA) 6. (1999) 7 SCC 280 (STATE OF H.P. vs JAI LAL AND OTHERS) 7. (2015) 7 SCC 178 (TOMASO BRUNO AND ANOTHER vs STATE OF UTTAR PRADESH) 8. Crl.R.C.No.18 of 2010 D.D. on 20.07.2017 (THE REGISTRAR GENERAL, HIGH COURT OF KARNATAKA, BENGALURU vs VENKATESHA & OTHERS) 9. 2005 Crl.L.J. 3014 (SRIDHARA AND ANOTHER vs STATE OF KARNATAKA) 10. LAWS (MPH) 1989 7 17 (BALI BALMIKI vs STATE OF MADHYA PRADESH) Elaborating on his submission, the learned counsel has further submitted that the recoveries relied on by the prosecution also do not connect the accused to the murder of the deceased. Therefore the conviction recorded by the trial court for the offence under Section 302 Indian Penal Code is wholly illegal and unjustified. The motive has not been established with cogent and convincing evidence. It is the submission of the learned counsel, that the recovery evidence even if accepted, it would only lead to the inference that the accused was involved either in theft or as the receiver of stolen properties which would at the most render him liable for conviction under Section 411 Indian Penal Code. Thus, the learned counsel has pleaded that the conviction recorded by the trial court under sections 302 and 392 Indian Penal Code be set aside and the accused be acquitted of the offences charged against him.
7. Smt. Namitha Mahesh, the learned HCGP has argued in support of the impugned judgment. The learned counsel would submit that the prosecution has let in reliable and convincing evidence in proof of the circumstances establishing the guilt of the accused. The evidence of PW-13 clearly establishes that the accused was very much present in the house of the deceased on the date of the incident. His movements on the said date were tracked through call records and the tower location. The fact that the accused was regularly visiting the house of the deceased has been established through the evidence of the close relatives and neighbours of the deceased. The circumstances proved by the prosecution clearly indicate that the murders were committed by the accused with an intention to rob the gold ornaments and the valuables from the house of the deceased. The very fact that the accused was apprehended by tracking the tower location at Mangaluru itself indicates that the mobile phone belonging to the deceased was being used by the accused which directly establishes the fact that the murders and robbery have been committed simultaneously. Therefore, there is absolutely no error or illegality whatsoever in the findings recorded by the trial court that the accused committed the murders and robbery during a single transaction. The trial court has properly appreciated the evidence and has arrived at a just and right conclusion which does not call for any interference at the hands of this Court.
8. On the question of death sentence, the learned HCGP submits that the accused having committed triple murders for gain and having attacked the helpless ladies and a widow, the case falls within the category of ‘rarest of rare case’. The trial court therefore was justified in awarding the death sentence and hence seeks for dismissal of the appeal filed by the accused and for confirmation of the death sentence awarded by the court below.
9. We have considered the above submissions and have carefully examined the records and the material produced by the prosecution. It is seen that the prosecution has examined large number of witnesses. For the sake of convenience, their evidence is summarized as under:-
The first set of witnesses examined by the prosecution is the relatives and the immediate neighbours of the
Sathyabhama. PW.6 is the husband of deceased Vijayalakshmi. PW.7 is the son of deceased Sathyabhama’s brother. PW.8 is the niece of deceased Jayashree and PW.16 is the daughter of deceased Sathyabhama. Nothing turns out from the evidence of these witnesses except that they reached the spot of occurrence soon after the incident and found various injuries on the bodies of the deceased. None of these witnesses are eye witnesses to the incident. They have deposed about the fact that the accused was acquainted with the deceased Jayashree and that he was frequently coming to their house. In so far as the identification of the gold ornaments of the deceased are concerned, PW.1, and PW.6 have specifically identified the gold ornaments worn by the deceased as well as the gold ornaments which are alleged to have been stolen from the house of the deceased. To this extent, the evidence of these witnesses merits acceptance.
10. PW.2, PW.4 and PW.7 are the panch witnesses to the inquest Mahazars Exs.P-3 to 5. PW.5 is a panch witness to the spot Mahazar-Ex.P2(a) whereunder MOs 59 to 66 were seized during the investigation. These witnesses have stood by the case of the prosecution with regard to the preparations of these Mahazars and have spoken about the contents thereof.
11. To establish the last scene theory, the prosecution has examined PWs.13, 14 and 24. PW.13 K.Jayasimha Murthy has deposed that a week earlier to the incident he had accompanied the deceased Jayashree to Hindupura for purchase of clothes for the marriage of his son and at that time the deceased had also accompanied him and the deceased had requested for the phone Number of his sister by name Prema and hence on the date of the incident he had been to the house of the deceased to furnish her the phone Number of his sister. He reached the house of the deceased between 10.00 a.m. and 10.30 a.m. At that time, he found the deceased Sathyabhama sleeping in the hall and Jayashree was sleeping in the room and one person was sitting in the hall. He enquired Jayashree as to the said person and she told him that he is from her village. As per the instructions of the deceased Jayashree he wrote down the phone Number of his sister Prema on a piece of paper which was lying on the Teapoy and went away. On the same day in the afternoon he came to know about the murder of the deceased. He has further stated that after few days he was taken to Parappana Agrahara Prison and he identified the accused as the person he had seen in the house of the deceased on the date of the incident. In the cross-examination, PW.13 answered that out of fear he did not disclose this fact either to the police or to the relatives of the deceased soon after the incident.
12. PW.14 Nandish is the friend of the accused.
According to this witness, on 20-1-2009 he along with his friend Sunil had been to Garuda Inox Cinema Theatre. At that time, they met the accused at Dosa Camp, III Block, Jayanagar. He has specifically stated that he talked with the accused in the Dosa Camp Tiffin Room.
13. PW.24 Geddappa has deposed that one Muthumanuvalli was staying in his house and through him he came to know the accused. At the instance of Muthumanuvalli, the accused stayed in his house for about 15 days. In his evidence PW.24 has deposed that on 19-1-2009 in the night he saw the accused writing something in a note book. On the following day, at about 10.30 a.m. he went to his work leaving the accused in the house. In the evening at about 7.30 p.m. when he returned home, the accused was in the house and was seen writing something. On the following day, that is on 21st when he was getting ready to go for work, at 10.30 a.m. he saw the accused keeping something in a bag. The accused had come to his house with one bag, but as he saw two bags with the accused, he questioned the accused and the accused told him that he was taking some clothes to his people at home. Thereafter PW.24 went for his work but in the evening by the time he returned home, at about 7.30 p.m. the accused was not seen in the house.
14. The other set of witnesses examined by the prosecution in proof of the circumstance of the Finger Print left by the accused at the spot of occurrence are PW.49, PW.47 and PW.52. PW.47 was the Sub-Inspector working as Finger Print Expert. This witness has deposed that he was working along with CW 65, Sri Nagendra Rao, in the Finger Print Bureau and he is acquainted with the hand writing and the signature of the said Sri Nagendra Rao. According to this witness, Sri S.N.Nagendra Rao, the Police Inspector who was then working as Finger Print Expert expired on 9-12-2010. He has identified the signature as well as the hand writing of the said Nagendra Rao in Ex.P- 45 and has further stated that Q, Q-1, Q-2 and Q-3 noted in Ex.P-45 are the developed prints of the chance finger print witness formed at the spot of occurrence on 20-1-2009. He has further deposed that as per Ex.P-45, the said Nagendra Rao, has opined that 4 chance finger prints were lifted in terms of Ex.P-45, 10 finger prints of the accused were compared with the chance finger print witness at Q, Q-1,Q- 2 and Q-3 and his left thumb was found tallying therewith.
15. PW.49 is another Finger Print Expert working in the office of the Police Commissioner at Bengaluru. This witness has deposed that he was working in the Finger Print Unit along with A.C.P. Thammanna, PI, Nagendra Rao, PI, Ankegowda, HC, Mahadevgowda. On 20-01-2009 at about 2.30 p.m. they received an intimation from the Control Room and accordingly all of them went to the spot of occurrence and inspected the spot. They found three dead bodies lying in the rooms. By using scientific equipments, they searched for finger prints on the doors and two steel almirahs, steel boxes, two telephones and the plastic ornament box and found two chance finger prints on the front door, two finger prints on the steel almirah. These finger prints were marked as Q, Q1, Q2 and Q3 respectively and the same was informed to Tilak Nagar police station. This witness has further stated that late S.N.Nagendra Rao compared these chance finger prints and has issued his opinion as per Ex.P-45.
16. In order to prove the recovery, the prosecution has examined PWs 20, 23, 26, 27, 50 and PW.52. PW.20 has deposed that the accused took him and the other panch witnesses in the police Jeep to the house of PW.23 Nagaraj and at the instance of the accused, PW.23 produced a kit bag. The lock applied to the said bag was opened by the accused. The kit bag contained 10 to 15 sarees, 7 to 8 shirt pieces, 7 to 8 blouse pieces, 4 gold bangles, 2 ear rings and hangings and a necklace, long chain and 7 to 8 big chains and all these articles along with the pass-book, ID card and the pan card contained in the said bag were seized under a Mahazar Ex.P-15. This witness has identified his signature as well as MOs 5 to 56 seized under Ex.P-15. He has further stated that on 12-2-2009, once again he assisted the Investigating Officer for the recovery of two dairies produced by the accused from his house and the same were seized under Mahazar Ex.P-16. The witness has identified these dairies as MOs 83 and 84.
17. PW.23 Nagaraj has stated that on 21-1-2009 the accused had come to his work place and handed over a kit bag to him. Thereafter, on 28-1-2009 the accused came with the police and asked him to return the said bag and accordingly he produced the said bag before the police. The accused opened the lock put to the said bag and the police seized the contents thereof namely, MOs 5 to 56. This witness has identified the kit bag MO 82.
18. PW.26 Ramesh is a resident of Shivamogga.
According to this witness, at the instance of the police he participated in the seizure of mobile phone under a Mahazar Ex.P-18. This witness as well as PW.27 another panch witness to the seizure of the said mobile phones MOs.1 and 2 have turned hostile to the prosecution.
19. PW.11 is another independent panch witness for the recovery of two gold bangles pledged by the accused with PW.12. This witness has stood by the prosecution case and has stated that in his presence, the owner of Kamal Bankers, namely PW.12, produced two gold bangles at the instance of the accused and they were seized under a Mahazar Ex.P-9 drawn in the jewellery shop of PW.12. He has identified the two gold bangles MO 57.
20. PW.12 is the owner of jewellery shop by name Kamal Bankers. This witness has spoken to the fact that the accused had pledged two gold bangles with him and he returned the same. He produced the same before the police at the instance of the accused. He has identified his signature on the Mahazar Ex.P-9 and also MO.57.
21. PW.17 & PW.18 are the panch witnesses to the recovery of the seizure of the blood stained clothes of the accused. According to PW.17, on 30-1-2009 he was requested to act as a panch witness and accordingly he accompanied the accused, another panch and the police to a room situated at Veeraiah Building, Laggere. The room was opened by the owner Sri Veeraiah. The accused went inside and produced a kit bag. It contained sarees, pant, innerwear, sweater, one book and two SIM cards. All these items were seized by the police. This witness has specifically stated that the sweater and the Jeans pant were stained with blood. He identified the Jeans pant as MO 67 and the sweater as MO 68 and also identified the clothes namely, MOs 69 and 70 seized under Ex.P-12. Through this witness the prosecution also got marked the SIM Card cover MO.71. This witness has been partly treated as hostile.
22. PW.50 the Investigating Officer who effected these seizures has also deposed in conformity with the above witnesses and has stated that in the course of the investigation after the arrest of the accused, he recorded the voluntary statement of the accused and pursuant thereto. Pursuant thereof, effected the recoveries as stated by the above witnesses.
23. In addition to the above evidence, the prosecution has examined PW.36, the Doctor who conducted the autopsy on the dead bodies. Through this witness the prosecution has marked the post mortem reports issued by him as per Exs.P-28, 29 and 30 respectively. PW.36 has specifically deposed that on examination of the dead bodies he found lacerations on the foreheads of the deceased and has stated that all the three persons died as a result of asphyxia due to smothering. This witness has further stated that on the request of the Investigating Officer he examined the coconut MO.106 on 21-1-2009 and gave his opinion to the effect that the lacerations noted in the respective post mortem reports are possible to be caused by the said coconut MO 106. He has further stated that at the time of examination of MO 106, he noticed brown stains corresponding to the blood stains on the said coconut MO 106. Regarding the time of death, PW.36 has stated that since the bodies were kept in cold storage, he was not in a position to ascertain the exact time of death.
24. PW.41 was the Scientific Assistant and incharge Scientific Officer at FSL, Bengaluru. According to this witness, she examined MOs 81, 85 to 90, 91 to 97, 98 to 103, 105, 106, 121, 67 to 70 and 72 and issued the certificate as per Ex.P-38 certifying that the presence of blood was detected in item Nos.5, 6, 8, 9, 12, 13, 14, 20, 21, 22, 26, 27, 28, 29, 33, 34, 35, 36, 37, 39, 40 & 41.
Further she has stated that Item Nos. 6, 20, 21 and 22 were stained with ‘A’ group of blood. Item Nos. 13, 26, 27,28,29,33,34,35,36,37,38 and 39 were stained with ‘O’ group of blood. The blood grouping of the blood stains in Item Nos.5, 8, 9, 12, 40 and 41 could not be determined as the results of the test were inconclusive.
25. Another set of witnesses examined by the prosecution to prove the call records and the location of the accused are PW.40, PW.48 and PW.51. PW.40 was the Police Inspector attached to Mico Layout police station at the relevant point of time. According to this witness, he tracked the location of the mobile hand set belonging to the deceased Jayashree and on 27-1-2009 having ascertained that the said hand set was being used near Kateel at Durga Parameshwari Temple, he informed the matter to the Investigating Officer.
26. PW.44 is another Police Inspector working in CCB. This witness has also deposed about the tracking of the phone calls and messages made through mobile No.9741146957, after having ascertained that the hand set was activated by using the SIM of accused on the mobile hand set of the deceased Jayashree. The accused was apprehended and produced before him on 27-1-2009 at about 1.00 p.m.
27. PW.48 is the Nodal officer of Airtel Company working in the Airtel office at Bengaluru. This witness has spoken about the requisition received by him from the Investigating Officer to furnish the call details of mobile No. 994558562 and accordingly he furnished the requisite details under Ex.P-47. He has deposed about the process followed in the office in intercepting the calls, in tracking the locations of the calls from these mobile phones. Through this witness the prosecution has marked the call details at Exs.P-47, 49 and P-50.
28. We have carefully considered the above evidence and have bestowed our anxious thought to the rival submissions made by the parties. The primary contention urged on behalf of the accused is that the circumstances relied on by the prosecution in proof of the charge under section 302 of Indian Penal Code have not been conclusively established as required in a case of circumstantial evidence. On going through the impugned judgment, we find that the Trial Court has relied on the following circumstances in arriving at the guilt of the accused for the offence under section 302 of Indian Penal Code namely:
(i) Accused was last seen in the house of the deceased at 10.30 a.m. on the date of the incident.
(ii) The chance finger prints of the accused on the almirah and doors in the house of the deceased.
(iii) Seizure of the blood stained clothes of the accused pursuant to his voluntary statement.
(iv) The presence of the accused near the place of occurrence soon after the commission of the offence.
29. On consideration of the material on record with reference to the evidence of the witnesses examined by the prosecution in proof of the above facts, we are of the view that the evidence produced by the prosecution in proof of the above circumstances is highly discrepant, doubtful and in our opinion, is not sufficient to prove any of the above circumstances with the standard of proof required in a criminal trial.
30. Coming to the circumstance of the last seen theory is concerned, the material witness examined by the prosecution in proof of this fact is PW.13. As already stated above, the only statement made by him in his evidence is that he saw the accused sitting in the hall in the house of the deceased on the date of the incident between 10.00 a.m. and 10.30 a.m. This statement, in our opinion, is contrary to the very case of the prosecution. According to the prosecution, the offence was committed between 1.30 p.m. and 2.00 p.m. The charge specifically reads that the accused committed the murder and robbery between 1.30 p.m. and 2.00 p.m. Therefore, the evidence of PW.13 that he saw the accused between 10.00 a.m. and 10.30 a.m. does not assume much significance in the absence of any evidence to show that immediately prior to the commission of the offence, accused was seen in the house. Even otherwise, in appreciating the evidence of this witness, it is important to note that PW.13 has categorically admitted in his evidence that he did not disclose this fact either to the family members of the deceased or to the police authorities either on the date of the incident or at any time thereafter until the arrest of the accused. According to him, on the date of the incident at 2.00 p.m., he came to know about the triple murders. If infact he had seen the accused in the house of the deceased as stated by him, in all probability he would have either divulged this information to the family members of the deceased who were on the look out of the real culprit or to the police officials who were investigating this matter. Had PW.13 done this, it would have lend credence to his testimony. But the records reveal that only after the arrest of the accused, the statement of PW.13 came to be recorded. Under the said circumstances, the explanation given by him that due to fear he did not disclose this fact appears to be only a ruse which cannot be accepted. The conduct of PW.13 creates a serious doubt on the veracity of his testimony and leads to the inference that PW.13 is propped up only after the arrest of the accused so as to create a link to the prosecution case.
31. Another important factor which belies the testimony of PW.13 is that PW.24 has unequivocally stated before the court that on the date of the incident, the accused was very much present in his house at 10.30 a.m. PW.24 has even gone to the extent of stating that when he left the house at 10.30 a.m., the accused was still in the house. If the evidence of PW.24 is believed, it is virtually impossible for the accused to have reached the house of the deceased at between 10.00 a.m. and 10.30 a.m. as stated by PW.13. The evidence of PW.24 completely falsifies the last seen theory set up by the prosecution.
32. The surrounding circumstances brought out in the evidence also lead to disbelieve the testimony of PW.13 with regard to the last seen circumstance. It is the specific case of the prosecution that the accused was motivated to commit the murder for gain. If so, as soon as he entered the house much before PW.13 came there at 10.30 a.m., in all probability, the accused would have seized the earliest opportunity to rob the articles from the almirah when the aged ladies were sleeping on the cot, rather than wait till 2.00 p.m. for the arrival of the third victim. According to the prosecution, the accused was well acquainted with the affairs of the family of the deceased. Therefore, it could be inferred that he was also knowing the timings of the arrival of Vijayalakshmi to the house and under such circumstance, he would have made good his escape well before her arrival. All these circumstances, therefore, create serious doubt about the testimony of PW.13 that he had seen the accused in the house of the deceased between 10.00 a.m. and 10.30 a.m. as deposed by him.
33. Even on point of law, the last seen theory can be pressed into service where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any other person other than the accused being the author of the crime becomes impossible. In the instant case, there is ample evidence to show that the spot of occurrence was a residential house which was surrounded by various other buildings and tenements. It was a busy area. It has also come in evidence that a building was under construction on the main road itself. Under the said circumstances, the possibility of any other person gaining access into the house cannot be ruled out. The evidence of PW.13 itself suggests that since both the ladies were sleeping on the cot, he wrote down the telephone number on a slip of paper kept on a teapoy and thereafter, walked out of the house. This evidence suggests that even the doors of the house were kept open. Under the said circumstances, solely on the basis of the evidence of PW.13 that he saw the accused in the house between 10.00 a.m. and 10.30 a.m. on the date of the incident, it cannot be concluded that he was the author of the crime as sought to be made out by the prosecution. On considering the quality of his evidence and for reasons stated above, we are not inclined to accept the evidence of PW.13 as conclusive evidence in proof of the last seen theory propounded by the prosecution. The Trial Court, however, has believed the evidence of PW.13 and has held that the prosecution has proved this fact conclusively so as to connect the accused to the murder of the deceased. On re-appreciating the evidence of PW.13 in the backdrop of the surrounding circumstances as discussed above, in our view, the prosecution has failed to establish this fact with cogent and convincing evidence.
34. In so far as the evidence relating to the finger prints of the accused is concerned, we are of the view that the material produced by the prosecution in proof of this circumstance suffers from glaring defects and serious infirmities rendering this piece of evidence as totally unreliable. In proof of this circumstance, the prosecution has examined PW.47 and PW.49. As already narrated above, PW.47 has merely identified the signature of late Nagendra Rao who issued the opinion at Ex.P45. He has not stated anything about either lifting the chance finger prints from the spot of occurrence or anything about his involvement in the opinion furnished by late Nagendra Rao. The evidence of PW.49 is bald, vague and sketchy. Except stating that he was present along with Nagendra Rao while searching for the chance finger prints at the spot of occurrence and that they traced the chance finger prints which were numbered as Q, Q1, Q2 and Q3, this witness has not deposed anything about the procedure followed either in lifting the chance finger prints or comparison thereof. The evidence of PW.47 and PW.49 by itself does not establish the fact that the finger prints said to have been found at the spot of occurrence were actually lifted from the spot or that they were compared and found to be that of the accused.
35. Even though PW.47 has stated that chance finger prints found at the spot were marked as Q, Q1, Q2 and Q3, the originals are not produced before the court. This is a serious flaw in the case of the prosecution. In the absence of this primary evidence, in our opinion, no credence could be given to the evidence of PW.47 and PW.49 that the finger prints lifted from the spot of occurrence were that of the accused. Non-production of the originals of these finger prints leads to suspect the very existence of these finger prints at the spot of occurrence. Secondly, the formalities that are required to be followed while lifting the chance finger prints from the scene of occurrence have not been followed. No panchanama has been prepared. The articles on which the said chance finger prints are stated to have been found are neither seized nor produced before the court. The photographs or the negatives thereof are also not on record. These defects not only weaken the circumstantial evidence relied on by the prosecution, but also raises a serious doubt about the very existence of the said chance finger prints as contended by the prosecution.
36. Even with regard to the collection of the specimen finger prints, there is no clear and definite evidence. PW.50 – the Investigating Officer has made a blanket statement that on 30.1.2009, the specimen finger prints of the accused were collected. Even the specimen finger prints are not before the court. PW.50 – the Investigating Officer appears to have tried to plug these loop holes by stating in his evidence that in the course of investigation, he got the chance finger prints compared with the finger prints of some twenty suspects; but unfortunately, neither PW.47 nor PW.49 have corroborated the say of Investigating Officer that during the course of investigation, they have either compared the chance finger prints with that of the suspects or that they received the specimen finger prints of the accused for comparison thereof. This is another circumstance to doubt the very case of the prosecution that the chance finger prints were compared with the specimen finger prints of the accused as contended. No doubt, section 4 of the Identification of Prisoners Act 1920 empowers the Investigating Officer to take measurements or photographs of unconvicted persons during investigation, but as observed by the Hon’ble Supreme Court in PRAKASH vs. STATE OF KARNATAKA, (2014) 12 SCC 133, “to obviate any suspicion regarding the circumstances in which the specimen finger print was taken, it is eminently desirable that the finger prints are taken before or under the order of a Magistrate.” In the instant case, the materials produced before the court indicate that none of the formalities that are required for collecting the specimen finger prints have been followed by the Investigating Officer. Apart from the above lapses, none of the witnesses have identified either the chance finger prints or the specimen finger prints as that of the accused. As already noted above, the evidence of PW.47 and PW.49 is conspicuously silent in this regard. Therefore, merely on the basis of the evidence of PW.47 and PW.49 it cannot be held that the chance finger prints which are referred to in Ex.P45 are that of the accused.
37. Even the opinion at Ex.P45 cannot be ascribed any evidentiary value. The law postulates that a person who renders an opinion should possess a special knowledge and expertise in the subject on which he is called upon to give his opinion. In other words, he must be an expert in the field and has to be qualified in that field of studies. An expert is not a witness of fact and his evidence assumes the character of the opinion evidence and therefore he is required to furnish reasons or grounds in support of his opinion which could be tested in the cross-examination. Section 45 of the Evidence Act makes the opinion of an expert admissible in evidence provided the opinion is supported by reasons and justifications. On this point, the Hon’ble Supreme Court in STATE OF HIMACHAL PRADESH vs. JAILAL & Others, (1997) 7 SCC 280 has observed as under:
“An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration alongwith the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.”
(underlining supplied) 38. In the instant case, as already discussed above, PW.47 and PW.49 do not even qualify to be called as experts. They have not deposed about their expertise nor has the prosecution produced any material to the satisfaction of the court to show that the deceased Nagendra Rao was competent to give the opinion as per Ex.P45. It also needs to be mentioned that Ex.P45 does not contain any reasons or grounds in support of the opinion given by late Nagendra Rao. In their evidence neither PW.47 nor PW.49 have narrated the grounds or reasons in justification of the opinion contained in Ex.P45. Therefore, even on this score, the evidence given by PW.47 and PW.49 as well as Ex.P45 relied on by the prosecution in proof of its opinion cannot be ascribed any weight. Consequently, we have no hesitation to hold that even this circumstance has remained substantiated.
39. The next circumstance relied on by the prosecution is the seizure of blood stained clothes of the accused. The panch witnesses who participated in the seizure of these clothes PW.17 and PW.18 have fully supported the case of the prosecution and we do not find any reason to doubt or disbelieve their evidence with regard to the seizure of M.O.67 (jeans pant) and M.O.68 (sweater) at the instance of the accused. This evidence is also suitably corroborated by the testimony of PW.50 who has elaborately stated about the voluntary disclosure made by the accused and the consequent recovery effected pursuant thereto. This evidence undoubtedly is admissible under section 27 of the Evidence Act. But what is relevant to be noted is that these clothes namely M.O.67 and M.O.68 were sent for chemical examination and PW.41 has given her opinion as per Ex.P38. It needs to be mentioned that in her evidence PW.41 the Scientific Assistant and Incharge Scientific Officer, F.S.L., Bengaluru has specifically stated that the jeans pant M.O.67 and the sweater M.O.68 were stained with human blood and she is specific in her evidence that these material objects were stained with “O” group of blood. The very same witness has examined other articles namely clothes of the deceased and has stated that even the clothes of the deceased were stained with human blood.
Interestingly in her evidence she has stated that item Nos.20, 21 and 22 were stained with ‘A’ group of blood whereas the jeans pant and sweater seized at the instance of the accused were stained with ‘O’ group of blood.
40. The case of the prosecution is that all the three murders were committed by the accused. If infact the murder was committed by one and same person, the blood stains found on the clothes of the deceased should have been of same group of blood as that of the stains found on the clothes of the accused. But in the instant case, the clothes of the deceased were found to be stained with both ‘O’ group as well as ‘A’ group blood. This is another circumstance which gives rise to doubt the recovery evidence produced by the prosecution. As a result, even this evidence cannot be taken as conclusive proof of the circumstance connecting the accused to the murder of the deceased.
41. Lastly, the prosecution has relied on the call records as another circumstance to prove the act of robbery. It is the specific case of the prosecution that after commission of the offence, the accused called PW.22- Sri.D.C.Gopala and enquired him about the whereabouts of the deceased. As per the call records produced by the prosecution, this call is stated to have been made at about 5.10 p.m. on 20.1.2009. This has been projected as one of the circumstance to show that soon after the commission of the murder, the accused was found near the place of offence. In our opinion, though the prosecution has endeavored to show that the accused has made various calls from his mobile phone from near the place of occurrence, this evidence, even if accepted, would only create a strong suspicion, but will not lead to an inference that the accused was either present at the spot of occurrence or that he committed the murder. Therefore, even this circumstance, in our opinion, is of no avail to the prosecution in establishing the involvement of the accused in the offence of murder alleged against him.
42. The Trial Court however has accepted the evidence of the prosecution witnesses and has come to the conclusion that the prosecution has conclusively proved all the above four circumstances which unerringly point to the involvement of the accused in the murder of the deceased. But on re-appreciation of the evidence and for the reasons discussed above, we are unable to accept the conclusion arrived at by the Trial Court in this regard. In our opinion, the evidence produced by the prosecution is not sufficient to conclusively establish any of the above circumstances. In our assessment the prosecution is not left with any worthwhile evidence to connect the accused to the murders in question. Therefore, the finding recorded by the Trial Court on the culpability of the accused for the murder of the deceased is liable to be set-aside and accordingly, we set- aside the conviction of the accused for the offence punishable under section 302 of Indian Penal Code.
43. In so far as the other charge under Section 392 Indian Penal Code is concerned, we are of the view that the prosecution has adduced convincing and reliable evidence to prove the fact that after the arrest of the accused, on the basis of his voluntary statement, the gold ornaments and other articles belonging to the deceased at M.Os.5 to 65 were recovered at the instance of the accused. The evidence of the panch witnesses examined by the prosecution in proof of these recoveries deserve to be accepted. We do not find any inconsistency or contradiction affecting the credibility of the testimony of these witnesses, so also the evidence of the Investigating Officer – PW.50 who effected these recoveries. Therefore, we concur with the findings recorded by the court below in this regard, and hold that the prosecution has convincingly established that the gold ornaments and other articles belonging to the deceased, were found in the possession of the accused. But as held by the Hon’ble Supreme Court in RAJKUMAR @ RAJU Vs. STATE (NCT OF DELHI) AIR 2017 SC 614, the above circumstance would at best create a highly suspicious situation, but beyond a strong suspicion nothing else would follow in the absence of any other circumstances which could suggest the involvement of the accused in the offence of murder. Even with the aid of the presumption under section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e., in the course of the same transaction. Since the prosecution has failed to prove that murder and robbery has taken place in a single transaction, in our view, the conviction of the accused under Section 392 of Indian Penal Code cannot be sustained. In view of the recoveries proved against the accused, in our considered opinion, the evidence and material produced by the prosecution would attract the provisions of Section 380 of Indian Penal Code. As a result, the conviction recorded by the Trial Court under Section 392 is liable to be set aside.
For the above reasons, Criminal Appeal No.731 of 2014 is partly allowed.
The impugned judgment of conviction dated 21.07.2014 passed by the Fast Track Court-XIV, Bengaluru City in Sessions Case No.659 of 2009 in so far as convicting the appellant – accused under section 302 of Indian Penal Code is set-aside. Consequently, the death sentence imposed on the accused by order dated 23.07.2014 in Sessions Case No.659 of 2009 is also set aside.
The conviction of the accused under section 392 of Indian Penal Code is modified. The accused Sri.Govindaraju @ Govinda @ Kumara is held guilty of the lesser offence punishable under section 380 of Indian Penal Code. He is convicted for the said offence and he is sentenced to rigorous imprisonment for seven years and a fine of Rs.25,000/-. In default to pay the fine amount, the accused shall undergo simple imprisonment for a further term of one year and eight months.
The accused is entitled for the benefit of set off as provided under section 428 of Cr.P.C.
The records reveal that the accused was arrested on 28.01.2009 and since then he continued in custody. He has already served imprisonment for eight years and eight months, which fact has not been disputed by the learned HCGP.
As the accused has already served the term of sentence including the default sentence for the offence punishable under section 380 of Indian Penal Code as ordered, he is directed to be released forthwith, if not required in any other case.
In terms of this order, Criminal Reference Case No.6 of 2014 stands rejected.
The Registry is directed to communicate the operative portion of the order to the Jail Authorities, Hindalga Jail, Belgaum where the accused is lodged for necessary action.
Sd/- Sd/-
JUDGE JUDGE mn/Rsk/Bss.