IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2019 PRESENT :
THE HON’BLE MR.JUSTICE K.N.PHANEENDRA AND THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1048 OF 2014 BETWEEN:
R. Arun Babu S/o. Late Ramanujam, Aged about 28 years, R/at No.66, Janakiram Nilaya, 4th ‘A’ Cross, Kothanuru Dinne, J.P.Nagara, 8th Phase, Bengaluru-560076.
Native of No.375/37E, Tirumahal Illam, Mahalakshmi, Metapalyam Taluk, Coimbatore-641 302. …Appellant (By Sri. C.H.Jadhav, Senior Counsel for Jadhav Law Associates) AND:
State of Karnataka, By Pulakeshi Nagar Police Station, Bengaluru, Represented by the State Public Prosecutor, High Court Building, Bengaluru-560001. …Respondent (By Sri. I.S. Pramodchandra, SPP-II) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order dated:17/21.10.2014 passed by the Presiding Officer, Fast Track Court –V, Bengaluru, in S.C.No.1523/12 – convicting the appellant/ accused for the offence punishable under Section 302 and 201 of IPC; and the appellant/accused is sentenced to undergo imprisonment for life for the offence punishable under Section 302 of IPC and has to pay a fine of `10,000/- and in default to undergo S.I. for one year; and the appellant/accused is sentenced to undergo imprisonment for the period of seven years for the offence punishable under Section 201 of IPC and has to pay a fine of `5,000/- and in default to undergo S.I. for six months. Both substantive sentences are ordered to be run concurrently and the appellant/accused prays that they be acquitted.
This Criminal Appeal coming on for Hearing this day, Dr.H.B.PRABHAKARA SASTRY, J., delivered the following:
JUDGMENT The present appellant who was accused in S.C.No.1523/2012, in the Court of Fast Track (Sessions) Judge-V, Bengaluru City, (hereinafter for brevity referred to as `trial Court’), has challenged the judgment of conviction dated 17.10.2014 and order on sentence dated 21.10.2014, wherein he is convicted for the offences punishable under Sections 302 and 201 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC’), and sentenced him to undergo imprisonment for life and to pay a fine of `10,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one year for the offence punishable under Section 302 of IPC and to undergo imprisonment for a period of seven years and to pay a fine of `5,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months.
2. The summary of the case of the prosecution is that on 27.8.2012, at 17.55 hours, Smt.Logambal (PW-4), who is also the mother of the deceased Dharani, lodged a complaint before the respondent-police alleging that her last daughter-Dharani was given in marriage to PW-1 Vinayaka, about one year four months prior to the date of the complaint. Her son-in-law Vinayaka was working for SBI Life Insurance, Chamarajpet, Bengaluru. The couple were residing at House No.4, 4th `C’ Street, Jaibharat Nagar, Bengaluru. They were leading a happy marital life. That being the case, at 4.00 p.m. on 27.8.2012, she received an anonymous telephone call informing her that said Dharani had sustained burns due to fire in her bedroom of the house and has died. The complainant expressed her suspicion regarding the death of her daughter.
The said complaint was registered in respondent- police station in UDR No.31/2012. Subsequently, the Investigating Officer (PW-11) during the course of investigation arrived at a conclusion that the said death was a murder and an attempt was made for causing the disappearance of evidence. As such, on 30.8.2012, at 7.15 p.m., PW-11, the Police Inspector of the respondent-police station, suo motto registered a case in their station Crime No.220/2012, for the offences punishable under Section 302, 201 of IPC, against the accused and after submitting the FIR as per Ex.P-16, took up further investigation in the matter. After completion of investigation, the Investigating Officer concluded that the accused was a known person to the deceased and that having dissatisfied about the deceased marrying another person, he entered her house on 27.8.2012 in the afternoon and invited for a sexual favour, since she refused his request, he committed her murder by smothering her and after robbing her of two golden chains, one golden ring and her cell phone, he in order to cause the disappearance of evidence, put fire to her person and caused burns to her and fled away from the scene. Accordingly, he filed the charge sheet against the accused for the offences punishable under Sections 302 and 201 of IPC.
3. Since the accused pleaded not guilty, trial was held, wherein the prosecution got examined twelve witnesses as PW-1 to PW-12 and got marked documents from Exs.P-1 to P-25 and material objects from MO-1 to MO-10. On behalf of the accused, neither any witness was examined nor any documents were marked. After hearing both side, the trial Court by its impugned judgment of conviction dated 17.10.2014 and order on sentence dated 21.10.2014, convicted appellant/accused for the offences punishable under Sections 302, 201 of IPC and sentenced him accordingly. It is against the said judgment of conviction and order on sentence, the appellant/accused has preferred this appeal.
4. The lower Court records were called for and the same are placed before this Court.
5. Heard the arguments from both side and perused the materials placed before this Court.
6. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
7. Among the twelve witnesses examined by the prosecution, PW-1 – Vinayaka is the husband of the deceased. In his evidence, he has stated that after marrying the deceased about one and half years back, both of them were residing at No.4, 4th `C’ Cross, Jaibharat Nagar, Bengaluru. He has seen the accused earlier since he had come to their house about three to four months prior to the incident when his wife had introduced him as her old friend.
The witness has further stated that on 27.8.2012, in the morning at 9.45 a.m., he had been to his office as usual. At that time, his wife Dharani was alone at the home. In the afternoon, at about 3.00 O’Clock, his landlord of the house Sri.Velumani (CW-7) telephoned him and informed him that there was fire incident in his house and his wife is dead. At 4.00 O’Clock, he returned home, by which time, the family members of the parental home of the deceased, landlord and another co-tenant, police and fire brigade staff were present at the home. He saw that his wife was dead and burns were found on the body. A part of the bed was also burnt partially. The ornaments worn by her were found missing, so also, the cell phone that was being used by her. He came to know that his mother- in-law Logambal had lodged a complaint with the police.
The witness has also stated that on 29.8.2012, in the morning at 11.00 O’Clock, when he had been to the house of the incident, he met CW-6 – Innoshkumar and CW-7 – Velumani, his landlord. When enquired with them about the missing of the ornaments worn by his deceased wife, they stated that a frequent visitor to the house who was coming on motorcycle bearing registration NO.KA-03-HF-9737 Honda Shine, had been to their house on the date of the incident in the afternoon at about 12.15 hours and thereafter, he returned at about 1.40 p.m. on the same day. After hearing them, he informed the same to the police.
The witness has also stated that on 31.8.2012, in the afternoon, police summoned him to the police station and shown him the accused. He has recognized the accused as the one who was visiting their house coming on the said motorcycle. The accused who was in the police custody also shown them the ornaments and when enquired about the cell phone, accused has stated that he has thrown it in Sarakki tank. The witness has stated that he has identified the motorcycle since the accused used to come in the same motorcycle. The witness has identified his marriage invitation card and got it marked at Ex.P-1 and photograph of his marriage at Ex.P-2.
Even in his cross-examination, he adhered to his original version.
8. PW-2 Sri Gopalaswamy K., Special Deputy Tahsildar of Bengaluru North, has spoken about he conducting the inquest panchanama at the request of Investigating Officer as per Ex.P-3. He has stated that, he observed the deceased sustaining burns on different parts of her body. He has also stated that during the course of investigation, he has recorded the statements of relatives of the deceased who were present in the spot.
9. PW-3 – Sri B.N.Diwakar, Assistant Sub- Inspector of the respondent-police has stated about he receiving the UDR lodged by Logambal on 27.8.2012 as per Ex.P-4 and preparing first information report based upon it as per Ex.P-5 and also proceeding to the place of occurrence of the offence and drawing scene of offence panchanama in the presence of panchas as per Ex.P-6.
10. PW-4 – Smt.Logambal, the mother of the deceased, apart from stating that deceased was her daughter who was given in marriage to PW-1 Vinayaka, has stated that, after hearing the news of the death of her daughter from her son-in-law Vinayaka, they went to the spot at 3.30 p.m. on the same day. They saw the dead body of her daughter-Dharani, who had sustained burns. Stating that she has given statement in that regard to the police, she has identified the UDR complaint as per Ex.P-4. She also stated that police drew a scene of offence panchanama in her presence as per Ex.P-6.
11. PW-5 – Smt.Shashikala, the elder sister of deceased Dharani also has stated that PW-1 Vinayaka was the husband of the deceased, who were leading a happy married life in that house where the incident has taken place. She also stated that on the date of the incident, in the afternoon, after hearing about the incident from her brother over phone, she accompanied her mother and other sister to the place of the incident where she saw the dead body of her sister Dharani who had sustained burns on her body. She also stated that once she saw the dead body of her sister, she did not find the ornaments worn by her, as well her cell phone. She suspected that somebody had murdered her sister and robbed the valuables from her.
12. PW-6 – Sri G.Lokesh, the Medical Officer at Bowring & Lady Curzon Hospital, Bengaluru, has stated that on 31.8.2012, in the night at 7.53 p.m., he examined the accused in this case and he noticed on his both hands, abrasions measuring 0.5 x 0.2 cm to 0.2 x 0.1 cm. He opined that those injuries can be caused when scratched by another person with a knife. He identified Ex.P-7 as his opinion submitted in that regard to the police.
13. PW-7 – Maradi Rangappa, has stated that being an Assistant Engineer in B.B.M.P. Bengaluru, as at the request of the police, he visited the scene of offence and prepared a sketch of the same as per Ex.P-8 and submitted the same to the Investigating Officer along with his covering letter at Ex.P-9.
14. PW-8 – Sridhar, has stated that at the notice issued to him by the respondent-police on 31.8.2012, he went to the police station, where they shown him the accused. The said accused took him along with police to the bedroom of his house and from an almirah there, took out two golden chains, one golden ring and a cell phone and the key of the motorcycle and produced before them. The police officer tried with the said key to start the motorcycle bearing registration No.KA-03-HF- 9737 and since it started, he satisfied that the said key pertains to the said motorcycle. By drawing a seizure mahazar as per Ex.P-10, the police seized all those articles, which this witness has identified at MO-1 to MO-5.
Even in his detailed cross-examination, the witness adhered to his original version.
15. PW-9 – Innosh Kumar, is the neighbour of PW-1/CW-5 - Vinayaka, has stated that since PW-1 and his wife, who is the deceased, were his neighbours and the tenant under the same landlord, he knows them. He has stated that on 27.8.2012, while he was talking with his landlord Veumani in the afternoon between 12.00 – 12.15 p.m., accused came in a motorcycle and after parking it in front of the house, he went to the first floor i.e. to the house of CW-5 Vinayaka. Even one and half months earlier to that also, he had come to the house of CW-5. The witness noticed his motorcycle bearing registration No.KA-03-HF-9737. After some time, he left the house of CW-5. Thereafter, after about half an hour, his neighbour informed him about smoke coming from the house of CW-5. When himself, joined by CW-7, went there, they noticed that the door was locked from outside. They unlocked the door and went inside and tried to douse the fire, but, the smoke increased, as such, they retracted. At that time, Hoysala police van and fire brigade people came to the place and they doused the fire. He noticed the dead body of the deceased in the place which had sustained burns. Thereafter, they telephoned to the husband of the deceased, who came to the house by 4.00 – 4.30 p.m. The witness also stated that he can identify the person who had visited the said house on the said day. He identified the accused in the Court stating that it was the same person who visited the house of the deceased on the said day.
The witness has further stated that on 29.8.2012, at the enquiry by PW-1 Vinayaka about missing of the ornaments worn by his wife, so also, her cell phone, these people told him about the accused having visited the house on the said day. On 30.8.2012, the police recorded his statement and on the next day i.e., on 31.8.2012, at the request of the police, he visited the police station and identified the accused in the police station. He also stated that police shown him the Bangles, Karimani chain and neck chain, which he has identified. The witness has identified MO-1 to MO-3 in the Court.
16. PW-10 – Dr.K.V.Satish, has stated that at the request of the police, he conducted the post mortem examination on the dead body of deceased Dharani on 28.8.2012. He has stated that, when he examined, he noticed the following two external injuries on the deceased :
“ i. II to III degree burns are seen over inner aspect of both thighs, lower and inner legs, left side of chest, abdomen, inner aspect of both arms, forearms and hands, outer both arms and elbow shows 4th degree burns with post- mortem ruptures.
ii. The burnt area shows blackened cuticle peeled off at places with eschar formations with hard thick skin with areas of redness at most of the places.”
He also stated that, on dissection of the body, he noticed all the organs were intact and congested except lungs. On cut-section of both lungs, he noticed cherry red coloured fluid blood and blood with stomach contains were also seen. The burns as observed by him on the body of the deceased were ante-mortem injuries to the extent of 30 to 35%. He opined that the death was due to shock as a result of burns sustained. Stating that in that regard, he has issued the post-mortem report, has identified the same at Ex.P-12. The witness has also identified the pieces of clothes at MO-6 to MO-10 stating that those were the burnt clothes found on the body of the deceased which he had collected and handed them over to the police.
The witness has also stated that at the specific request of the police regarding the cause of the death, he has given his opinion stating that such injuries found on the deceased were possible if a person is made unconscious and then kerosene is poured and lit fire. In that regard, he had issued a report as per Ex.P-14.
17. PW-11 – S.B.Maheshwarappa, the Investigating Officer in this case has given a detailed account of the investigation said to have been conducted by him in the matter. He has stated about he getting the inquest panchanama drawn by Taluka Executive Magistrate in this case and recording the statements of many witnesses and also collecting call details register extract from the service provider, from which, he could able to get the address of the accused also. He has stated that based upon those details, he suspected the accused and suo motto registered a complaint against the accused.
The witness has further stated that, at his instruction, his staff arrested the accused and produced the accused before him and he recorded the voluntary statement given by the accused during his interrogation, which the witness has identified the said part of the voluntary statement and got it marked as Ex.P-18. He also stated that on 31.8.2012, he summoned panchas and accused took him, as well the panchas, to his house and from his house, he produced one golden mangalya chain, one golden finger-ring, cell phone and a motorcycle and its key, which he seized by drawing a panchanama as per Ex.P-10. The witness has identified those articles at MO-1 to MO-5.
The witness also stated that the accused stated before him that the cell phone of the deceased was thrown by him in a lake at J.P.Nagar and took them to the said spot. However, as there was lot of mud in the said lake, they could not find the cell phone in it. In that regard, he has drawn a panchanama as per Ex.P-22. The witness has also stated, by summoning CW-5, who is the husband of the deceased, to his station, he seized the articles produced by him. The witness also stated about he collecting the post mortem report as per Ex.P-12 and the opinion of the doctor who conducted the autopsy as per Ex.P-14 and also getting the accused examined by the doctor and collecting doctor’s report as per Ex.P-7 and finally concluding the investigation, filed the charge sheet against the accused for the alleged offences.
He was subjected to a detailed cross-examination from the accused side wherein he adhered to his original version.
18. PW-12 – Sri.Murthy, a Nodal Officer at Vodaphone, which is a cell phone service provider, has stated that as per the order of the Court, he has produced the copies of the customer’s application and the copies of the documents submitted by the applicant while applying for the connection with respect to mobile sim card No.9739732525. The witness has identified the said document at Ex.P-23 and stated that the name of the customer is Arun Babu (the accused herein).
The witness has also stated that at the request of the police, he had furnished them the call detail extract for the period between 20.8.2012 to 29.8.2012 as per Ex.P-25. From perusal of the same, it is revealed that on 27.8.2012, the cell phone of the accused was within the location of Jaibharath Nagar tower between 12.32 to 13.28 hours.
19. Learned Senior Counsel for the accused in his argument submitted that admittedly the UDR is against an unidentified person, as such, at the first instance, the accused was suspected in the case. He further submitted that PW-1 – the husband of the deceased in his evidence has stated that he has also filed a complaint in the matter, however, for the reasons best known to it, the prosecution has not produced the said complaint. He also stated that the panchas for the inquest panchanama have opined that the death was caused by accident. The alleged recovery said to have been made at the instance of the accused does not inspire any confidence to believe in it. Learned Senior Counsel vehemently submitted that the evidence of PW-9 that he has seen the accused visiting the house of the deceased and that too, more particularly, on the date of the alleged incident, is totally unbelievable. Learned Senior Counsel further submitted that the delayed recording of the statement of PW-9 and CW-7 and further the non-examination of CW-7 – Velumani, who admittedly is the landlord of the house of the deceased and who also claims that he had seen the accused on the said day, imbibe a serious doubt in the case of the prosecution.
Learned Senior Counsel also submitted that the act of PW-1 that he even after hearing from PW-9 that it was the accused who visited the house on the date of the accident, has not approached the police on 29.8.2012 itself i.e., immediately after he hearing the same from PW-9, would further increase the suspicion in the case of the prosecution.
Finally stating that the prosecution has utterly failed to establish the motive behind the alleged crime, the learned Senior Counsel submitted that the judgment of the trial Court which has been passed by ignoring all these material aspects, is erroneous in its finding.
20. Per contra, learned State Public Prosecutor-II in his arguments submitted that the evidence of PW-1 and PW-4 are consistent and cogent in all respects. The marital relationship of PW-1 with the deceased, their stay in the house where the incident has taken place, the date of the incident, the manner of the death of the deceased, have all been remained undisputed. He further submitted that the clear and cogent evidence of PW-9 that accused was visiting the house of the deceased now and then and that even on the date of the incident and at the alleged time, the accused had visited the house of the deceased, fully supports the case of the prosecution and beyond any reasonable doubt, proves the guilt of the accused. He also added that the evidence of pancha to the recovery who has also supported the case of the prosecution further crystalises that the ornaments pertaining to the deceased were also recovered from the possession of the accused. As such, when the prosecution has proved the recovery of the articles from the possession of the accused, it clearly goes to show that the accused has committed the murder of the deceased for valuables and has robbed the deceased, as such, the judgment under appeal does not warrant any interference at the hands of this Court.
21. The above evidence of prosecution witnesses leads to certain undisputed facts with respect to the accused. It is not in dispute that the deceased Dharani was married to PW-1 Vinayaka for one and half years prior to the date of the incident. The husband-Vinayaka was working as Software Engineer and used to be away from morning till evening, as such, on the date of incident, it was at 9.45 a.m., he had been to his work and it is only after hearing about the incident from PW-9 and his landlord, he returned to home only to see the dead body of his wife in semi-burnt condition. At that time, he also noticed the missing of the ornaments, more particularly, the mangalya chain, a golden chain and a golden ring and also cell phone said to have been worn/used by his wife.
22. Further, it is also not in dispute that the doctor who conducted the autopsy as per Ex.P-12 has opined that the deceased had sustained 30 to 35% of burns which were ante-mortem burn injuries. The medical opinion regarding the death is due to shock as a result of burns sustained. Thus, it is not in dispute that the death of the deceased was an unnatural one.
23. Admittedly, when the complaint was lodged with the police at the first instance, it was in the form of UDR. When the police is said to have began their investigation in the matter and more particularly, after obtaining the opinion of the doctor, who conducted the autopsy, they suspected that it was a homicidal one and accordingly, suo motto registered a complaint for the offences punishable under Sections 302, 201 of IPC. To this extent, facts of the case remains undisputed.
24. The question that arises in the light of the undisputed facts above is whether it is the accused who has caused the said homicidal death of deceased Dharani. According to the prosecution, it is the accused and accused alone. In order to prove that it was the accused and accused alone who has caused the death of Dharani, the prosecution has mainly relied upon two aspects. One is of the alleged seeing of the accused said to be going to the house of the deceased on the alleged date of incident in the afternoon and secondly, the alleged recovery said to have been made at the instance of the accused of the articles at MO-1 to MO-5.
It is PW-9 who has spoken about he seeing the accused going to the house of the deceased Dharani on the date of the incident in the afternoon between 12.00 noon to 12.15 p.m. As observed above, the witness has stated that he has seen the accused coming on his motorcycle bearing registration No.KA-03-HF-9737 and going to the first floor. It is after his return from the said house, about 30 to 45 minutes thereafter, he heard from his neighbour about the smoke coming from the house of the deceased Dharani. Thus, according to PW-9, he has seen the accused visiting the house of the deceased at the time of the incident. PW-9 has also stated that, apart from him, their landlord CW-7 Velumani has also seen the accused going to the house of the deceased since himself and said Velumani were together on that day talking to each other when accused visited the house of the deceased.
In his cross-examination, several questions were put to him to show that his evidence was unbelievable, however, the witness tried to adhere to his original version. Despite the same, it was elicited from the witness about he alleged to have seen the accused visiting the house of the deceased on the date of incident in the afternoon was informed to the husband of the deceased on 29.8.2012 itself when said husband of the deceased enquired him about the missing of the ornaments worn by his wife. About PW-9 not disclosing his alleged knowledge of he having the seen the accused visiting the house of the accused at the earliest to the police, the witness has stated that since he was frightened from the incident, he did not inform police with respect to the same.
25. PW-1- the husband of the deceased in his evidence has stated that on 29.8.2012, in the morning at 10.00 a.m. when he enquired PW-9 Innosh Kumar and CW-7 Velumani about missing of the ornaments worn by his wife at the time of the incident, he was told by them that a person who was visiting their house now and then on a motorcycle bearing registration No.KA-03-HF-9737, had visited the deceased in the afternoon of the date of incident.
The evidence of PW-1 and PW-9 about the alleged visit of the accused to the house of the deceased on the date of the incident in the afternoon requires a detailed scrutiny before accepting the same on its facial value.
26. Admittedly, PW-1 is the husband of the deceased. It is not in dispute that the deceased and her husband were leading a happy married life. According to said PW-1 (husband of the deceased), on 29.8.2012, at 11.00 O’Clock itself he was given knowledge and information by PW-9 and CW-7, who are his neighbor and landlord respectively, about accused visiting his house in the afternoon on the date of incident. Had really be PW-1 was given knowledge and information about the visiting of the accused to his house on the date of the incident by those two witnesses, nothing had prevented PW-1 to immediately go to the police station and pass on the said information to them which was a very very important and vital information for the police to continue the investigation and to find out the real culprit. Admittedly, PW-1 did not go to the police station either on the said day i.e., on 29.8.2012 or on the next day, but, he has given his further statement to the police only on 31.8.2012. No explanation either from PW-1 or from Investigating Officer is forthcoming for PW-1 not disclosing a very vital information to the investigating agency at the earliest. Being the husband of the deceased, in a normal and ordinary course, he was not expected to withheld the vital information said to have been given to him on 29.8.2012 itself, for nearly 48 hours or more. Thus, the very act of PW-1 in keeping silence for such a long time without dissipating the same to the police creates a serious doubt in the case of the prosecution about PW-9 and CW-7 seeing the accused visiting the house of the deceased on the date and at the time of the incident.
Secondly, when the evidence of PW-9, the person who claims to have seen the accused visiting the house of the deceased on the date of the incident, is thoroughly scrutinised, it can be seen that even according to him, he has seen the visiting of the accused to the house of the deceased on 27.8.2012 at 12.00 noon. The incident of death of the deceased and seeing sustaining burns was to his knowledge before 3.00 O’Clock, that was when he, joined by CW-7, informed the same to the husband of the deceased on the said day. Subsequently, he has seen the dead body also at the same time before intimating PW-1 about the death of his wife. In such a situation, from 27.8.2012 till his statement is said to have been recorded by the police on 30.8.2012, he did not disclose about very vital and important information about suspecting the accused. No doubt, PW-9 has attempted to patch-up the said delay by stating that he was under a shock, as such, he did not reveal the same before the police. The said explanation of the witness that he was under a shock is not convincing and acceptable for the reason that the very same witness has informed the very same information to PW-1 on 29.8.2012 in the morning itself. Neither PW-1 nor PW-9 has stated that he was in shock even at that time. Thus, what shock he did not suffer or did not show while revealing to PW-1 about the alleged visit of the accused to the house of PW-1, how and what prevented him from revealing the same before the police either at the same time or earlier to that when police had visited the spot, is not answered by the prosecution in any manner in the case. Thus, the alleged delayed disclosure of PW-9 about the visiting of the accused to the place of the incident on the alleged date of incident, does not inspire confidence to believe.
Thirdly, even according to the prosecution case, as well the evidence of PW-9, apart from PW-9, it was CW-7, the landlord of the house, also had seen the accused visiting the house of the deceased. According to PW-11, the Investigating Officer, he has recorded the statement of said CW-7 – Velumani also on 30.8.2012. For the reasons best known to the prosecution, the said Velumani (CW-7) was not examined as a prosecution witness during the trial. He was one of the very important and material witness whose evidence would have played a vital role in the matter. No reasons are forthcoming for non-examination of the said witness. Thus, the prosecution for the reasons best known to it has not examined an important and material witness who was available to it. Had CW-7 been examined, he could have given the details as to whether he has seen the accused, if so, under what circumstances. Since he has also not examined by the prosecution, it has to be held that an important evidence that was in the hands of the prosecution was not subjected to trial by it. Even otherwise, though PW-9 has to the same effect led his evidence about he having seen the accused going to the house of the deceased on the date of the incident, however, as observed above, his conduct of not disclosing the very important and material information available with him for considerably long time shows that it is not safe to rely upon his sole evidence and to hold that there is evidence to prove the visit of the accused to the house of the deceased at the time of the incident for the purpose of causing the alleged guilt.
27. Thus, we are of the confirmed opinion that even though the prosecution attempted to place the material evidence to show that there are witnesses for having seen the accused lastly visiting the house of the deceased, but, it has failed to prove the same through PW-9 or other evidence placed by it.
28. The second important material upon which the prosecution case relies upon and which the learned counsel for the appellant is also seriously challenging is alleged recovery of MO-1 to MO-5 at the instance of the accused. According to the Investigating Officer i.e., PW-11, when the accused was produced before him and was arrested, the accused gave voluntary statement, a portion of which is marked at Ex.P-18. Thereafter, the Investigating Officer summoned one Sri G.Sridhar and Sri Vishwanath to act as panchas to his police station and accused led them all to his house and from inside his house, he produced a golden mangalya chain, a golden neck-chain, a golden finger-ring, a cell phone belonging to the deceased, a motorcycle and its key. The Investigating Officer seized them by drawing a seizure panchanama as per Ex.P-10 in the presence of panchas.
The said evidence of the Investigating Officer has been corroborated by the evidence of PW-8 - Sridhar. As observed above, the said witness has supported the case of the prosecution and has stated that at the notice issued by the police, he had been to the police station on 31.8.2012, where the accused was shown to him. The said accused led him, CW-24 and the police to his house and from an almirah which was kept inside his bedroom, he produced the articles which he has described as two golden chains, a golden finger-ring, a cell phone, and key of the motorcycle. The motorcycle parked in the ground floor bearing registration No.KA- 03-HF-9737 was started with the said key and the motorcycle was also ascertained as that of the accused which he was using it with the said key. Accordingly, all those articles were seized by drawing a seizure panchanama in his presence, which panchanama he has identified at Ex.P-10. He has also identified copy of the notice issued to him by the police summoning him to the police station at Ex.P-11.
The witness has withstood his searching cross- examination and adhered to his original version. Nothing could be elicited favouring the accused in his cross-examination nor the evidence of PW-8 could be shaken.
29. The golden ornaments seized at the instance of the accused under panchamana at Ex.P-10 have also been identified by the husband of the deceased. The said witness has also identified the motorcycle stating that it was on the same motorcycle, the accused was visiting their house. Thus, the evidence of PW-8 about the recovery of MO-1 to MO-5 is corroborated with the evidence of Investigating Officer regarding recovery and the seized articles have also been identified by other material witnesses, including PW-1 and clearly go to establish that the articles at MO-1 to MO-5 were recovered at the instance of none else than the present accused.
30. The case of the prosecution thus has proved the recovery of MO-1 to MO-5 at the instance of the accused, however, its effort in proving that the visit of the accused to the house of the deceased has been seen by PW-9 and CW-7 has remained unproved. In such a situation, even though the death of the deceased Dharani is proved to be a homicidal, but, in the absence of cogent evidence that the accused visited the said house of the deceased on the date and at the time of the incident and he has committed the homicidal death of the deceased by inflicting ante-mortem burns on her falls short of an evidence for taking it to be a proven fact beyond reasonable doubt.
31. Thus, in this case of missing of an important link in the chain of the evidences which is based upon last seen theory, it is not safe to convict the accused for the alleged offence of murder of the deceased only because the recovery of MO-1 to Mo-5 are said to have been made at his instance. The trial Court without noticing the missing of the link in the chain of events, has believed the evidence of PW-9 that the accused had visited the house of the deceased at the time of the incident, which has led it to come to an erroneous finding holding that the accused is guilty of the offence punishable under section 302 of IPC. Since the said finding now proves to be incorrect and it has been not possible to hold that the prosecution has proved the alleged guilt of the offence punishable under Section 302 of IPC, as well the alleged act of causing any overt act in destroying the evidence or causing disappearance of the evidence, it is not possible to hold the accused guilty of the offences punishable under Sections 302 and 201 of IPC.
32. Even though due to the shortage of evidence in proving the alleged guilt against the accused beyond reasonable doubt, though we are of the opinion that the trial Court convicting the accused for the offences punishable under Sections 302 and 201 of IPC is not justifiable, but, we have not inclined to hold that there is no fault of accused on any counts in the incident. It is for the reason that, as already observed above, the recovery of valuables which were belonging to and possessed by the deceased at the time of the incident were made at the instance and from the possession of the accused, for which, he has not given any convincing explanation.
33. The evidence of PW-1 that when he noticed the dead body on the date of the incident, he also noticed missing of the ornaments worn by her, which included a golden mangalya chain, a neck chain and a golden finger-ring and also cell phone used by her, have all not been seriously denied or disputed from the accused side. Similarly, the inquest panchanama also shows that the witnesses who have given their statements before the Tahsildar, have also stated about the missing of those valuable articles from the possession of the deceased. The evidence of the prosecution witnesses, more particularly of PW-1 that the articles at Mo-1 to MO-3 are the articles belonging to the deceased and worn by her, is also not disputed or denied from the accused side. Thus, it is established that MO-1, MO-2 and MO-3 are the golden ornaments belonging to the deceased.
As already observed above, along with MO-4 and MO-5, it is these three articles i.e., MO-1, MO-2 and MO- 3, were also recovered at the instance of the accused and from his house only. No where the accused has made any attempt to give any explanation as to how these MO-1 to MO-3 came to be found in his possession or how he came in possession of those articles. His only defence throughout the case was of total denial, more particularly, about the articles at MO-1 to MO-3. Except denying that any such recovery was made at his instance, he has not whispered even a single word as to how those articles came to his possession. If not, in the cross-examination of any prosecution witnesses, it was the duty of the accused to disclose his defence with respect to he possessing MO-1 to MO-3, at least, when he was put questions while recording his statement under Section 313 of Code of Criminal Procedure, 1973. When the incriminating evidence of the prosecution witnesses were read over and explained to him, which also included the recovery of MO-1 to MO-3 at his instance and from his house, the accused has only reacted stating that the same is not true. However, when there was evidence by prosecution witnesses that was brought to the notice of the accused, at least then, it was required of him to explain as to how those articles had come to his knowledge. It is also not his case that as an innocent purchaser, he had purchased produced those articles at MO-1 to MO-3. Thus, when he is in possession of certain valuable golden articles, of which, admittedly he is not the owner thereof, then, the entire burden is on his shoulder to give explanation regarding its possession. Since he has failed to given any such explanation in that regard but it has been proved that MO-1 to MO-3 were found in his possession and recovered at his instance and also when it is not his case that he is a bona fide purchaser of any stolen article or a mere user of an article, then, it has to be necessarily inferred that he has stolen those articles and had kept them in his possession. Thus, when the accused has failed to give any explanation about he possessing MO-1 to MO-3 with him, the only presumption that can be arrived at in the circumstances of the case is that he has stolen those MO-1 to MO-3.
34. To arrive at that conclusion, we rely upon a judgment of Hon’ble Apex Court in Goutam Maroti Umale –vs- State of Maharashtra, reported in 1994 Supp (3) SCC 326, wherein the Hon’ble Apex Court was pleased to observe that in a case of circumstantial evidence, the prosecution must prove each of the circumstances and circumstances so proved to form a complete chain. They should be inconsistent with innocence of the accused and also exclude every other hypothesis, however, remote. Holding so, the Hon’ble Apex Court based on the facts of the case before it observed that recovery of ornaments belonging to the deceased at the instance of the accused, though did not connect him to murder, at the most, he can be convicted for the possession of stolen property.
35. In the instant case, as already observed above, though the evidence placed by the prosecution is not sufficient to hold the accused guilty of the offences punishable under Sections 302 and 201 of IPC, but, the recovery of the valuable articles made at the instance of the accused, for which, the accused has failed to give any explanation, including that he was a bona fide purchaser or the user or possessor of the articles, when, infact, those valuables were belonging to the deceased, it has to be necessarily inferred that accused had committed an offence punishable under Section 380 of IPC. Though there are two different and distinct offences, but, the offence punishable under Section 380 of IPC being a lesser offence compared to Section 302 of IPC and the facts and the circumstances of the case would go to show that the evidence led by the prosecution would prove that the accused was found in possession of MO-1 to MO-3 and thus, has stolen the articles, we are of the view that along with acquitting the accused for the offences punishable under Sections 302 and 201 of IPC, the accused deserves to be convicted for the offence punishable under Section 380 of IPC.
36. As observed above, he has not given any explanation about he being in possession of MO-1 to MO-3 even as an innocent purchaser of stolen articles or mere user of the goods. In such a circumstance, the presumption under Section 114 of Evidence Act comes into play and since the accused has failed to give any of his explanation, the only inference that can be drawn is that he has stolen the articles at MO-1 to MO-3.
37. In a similar situation, this Court in Goutham – vs- State of Karnataka, in Criminal Appeal No.889/2014 & connected matters, disposed of on 4.12.2018, has arrived at a similar conclusion. In that case, while setting aside the judgment of conviction for the offences punishable under Sections 302 and 394 of IPC, this Court had convicted the accused for the offence punishable under Section 380 of IPC.
Accordingly, we proceed to pass the following:-
ORDER [i] The appeal is allowed in part;
[ii] The judgment of conviction dated 17.10.2014 and order on sentence dated 21.10.2014, passed by the learned Fast Track (Sessions) Judge-V, Bengaluru City, in Sessions Case No.1523/2012, convicting the accused for the offences punishable under Sections 302 and 201 of IPC and sentencing him for the alleged offences, is hereby set aside. Accordingly, accused is acquitted of the offences punishable under Section 302 and 201 of IPC. However, we convict the accused – R.Arun Babu, S/o late Ramanujam, residing at No.66, Janakiram Nilaya, 4th `A’ Cross, Kothanuru Dinne, J.P.Nagara 8th Phase, Bengaluru – 560 076, native of No.375/37E, Tirumahal Illam, Mahalakshmi, Metapalyam Taluk, Coimbatore-641302, for the offence punishable under Section 380 of IPC.
Heard the learned counsel for the appellant on the sentence also.
Considering the facts and circumstances of the case and the criminality of the guilt proved against the accused, we sentence the accused to undergo imprisonment for a period of seven years and to pay a fine of `15,000/-, in default of payment of fine, the accused shall undergo an additional imprisonment for a period of three months. The accused is also entitled for set off under Section 428 of Cr.P.C.
The Registry to transmit a copy of this judgment along with lower Court records to the trial Court without delay.
An entire copy of this judgment also be delivered to the accused immediately free of cost.
Sd/- JUDGE Sd/- JUDGE bk/