1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL APPEAL No.944/2016 (C) BETWEEN MR. RAMESH SHIVAPPA MUDGAL SON OF LATE SHIVAPPA MUDGAL AGED MAJOR LAKSHMESHWARA TOWN BASADIBANA STREET SHIRAHATTI TALUK GADAG-582 101 (BY SRI B. S. PRASAD, ADVOCATE) AND STATE OF KARNATAKA BY LASHKAR POLICE STATION LASHKAR MOHALLA MYSURU-570 001 REP BY SPP, HIGH COURT OF KARNATAKA, BENGALURU (BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP) …APPELLANT …RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF Cr.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 22.01.2016 PASSED BY THE V ADDITIONAL DISTICT AND SESSIONS JUDGE, MYSURU IN S.C.NO.305/2011 CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
JUDGMENT 1. The appellant is accused No.1 in S.C.No.305/2011 on the file of the V Additional District and Sessions Judge, Mysuru (in short, ‘trial Court’) wherein, vide judgment of conviction and order of sentence dated 22.01.2016 he was convicted for the offence punishable under Section 302 of IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- with default sentence of one year rigorous imprisonment.
1.1 Though four accused were arraigned, the Trial Court found no evidence in so far as accused Nos.2 to 4 are concerned, therefore, they were acquitted of the charges levelled against them for the offences punishable under Sections 498A, 304B, 302 read with Section 34 of IPC and also under Sections 3 and 4 of Dowry Prohibition Act, 1961. As the Trial Court found sufficient materials as against the appellant (accused- 1), and after appreciating the oral and documentary evidence on record, the Trial Court has recorded the judgment of conviction and sentence as noted supra.
2. It is the case of the prosecution that the deceased by name Latha was given in marriage to the appellant and they lived as husband and wife for some time. At the time of marriage, it is alleged that, accused No.1 and his family members have demanded 4 tola’s of gold and an amount of Rs.2.00 lakhs as dowry. Apart from that, it is also alleged that even after the marriage, they put-forward a further demand of Rs.4.00 Lakhs towards dowry. The accused No.1, in fact, has also been suspecting the fidelity and loyalty of his wife. And even on such suspicion, at one point of time, he got aborted a child. In this background, on the above said motive, it is alleged that on 07.06.2011, the accused persuaded his wife and took her to Mysuru and stayed in a lodge by name Ayodhya Lodge in Room No.304. After staying in the said room on that particular day, the accused mixed Cyanide poison in alcohol and forced her to drink the same. Due to the consumption of the same, she actually suffered giddiness and thereafter, it is alleged that the accused has immersed her head in a bucket containing water in order to ensure the death of the said lady. It is also stated that, the accused has assaulted her and caused severe injuries on her and due to all these factors she succumbed to the injuries and died in the said room of the lodge. After dragging the body to the bathroom and making it lay in the bathroom, he locked the room and went away from the said room.
3. It is the further case of the prosecution that the accused himself called his father-in-law i.e. the father of the deceased, PW.10-Hanumanthappa Kattimani, saying that he has committed the murder of the daughter of PW.10. Suspecting the conduct of the accused, PW.10 informed the same over phone to his friend by name Muniraju to enquire into the matter and report to him. It is the further the case of the prosecution that the said Muniraju has contacted PW.1-Hanumanthu, who is the resident of Mysuru, to enquire into the matter and inform the factual aspects to him. Thereafter, PW.1 had visited the said Ayodhya Hotel, met PW.2-Ganesh Rao and asked whether any couple had come to the Hotel and stayed in Room No.304 and PW.2 in turn told him that in Room No.304 a couple were staying who came to the Hotel on 07.06.2011 and he also informed that they had gone out from the Hotel by keeping open the tap and PW.2 also telephoned to the accused to inform that the tap is open and water is flowing in the said room. But they did not get any proper reply from accused No.1. PW.2, suspecting the foulplay in the said room and the suspicious circumstance explained by PW.1, in fact, informed the Police and the Police have visited the Ayodhya Hotel and in fact, they got broke open the lock put to the said Room No.304 and found the body of the deceased Latha lying in the bathroom. Suspecting the death as homicidal, they sent the dead body to the Hospital after conducting inquest proceedings on the spot and drawing up of the spot mahazar. On registering a case in Crime No.92/2011, on 08.06.2011, for the offences punishable under Section 376, 302, 498A, 304B read with Section 34 of IPC and also under Sections 3 and 4 of the Dowry Prohibition Act, 1961, they proceeded to investigate the case. The accused No.1 was arrested on 08.06.2011 and he was remanded to judicial custody, after recovery of some incriminating articles at the instance of the accused. After thorough investigation, the respondent- Police have laid the charge sheet against the accused persons for the aforesaid offences. The Trial Court after securing the presence of the accused, proceeded to frame charges against them for the aforesaid offences and put the accused persons on trial.
3.1 The prosecution in order to bring home the guilt of the accused has examined as many as 30 witnesses as PWs.1 to 30 and got marked 55 documents as per Exs.P.1 to P.55 and material objects as per MOs.1 to 25.
3.2 The accused was also examined under Section 313 of Cr.P.C., and he was also called upon to adduce defence evidence if any. But, he did not choose to lead any defence evidence. Therefore, after hearing the arguments on both sides, the Trial Court arrived at a conclusion that the present appellant is the culprit and perpetrator of the alleged crime and, therefore, while acquitting other accused persons, the trial court recorded the judgment of conviction and sentence against the appellant (A1), as noted above.
4. We have heard the arguments of Sri B.S.Prasad, learned counsel for the appellant, who has taken us in detail through the evidence of the prosecution witnesses and the material documents and also the material objects on record.
5. We have also heard learned Additional State Public Prosecutor appearing for the Respondent State, who has equally countered the arguments of the learned counsel for the appellant (A1).
6. Before adverting to the submissions made by the learned counsels on each and every circumstance in this case, we feel it just and necessary to have a cursory look at the evidence of the prosecution witnesses.
6.1 PW.1-Hanumanthu, as noted above, is the formal witness, who received the information from one Muniraju to go to Ayodhya Hotel to meet PW.2-Ganesh Rao and he is also the witness to Ex.P.1-mahazar. Though it is styled as the inquest mahazar, it is actually a mahazar, but under the said mahazar, the Police have seized the material objects MOs.1 to 16. There are no much incriminating materials against the accused so far as this witness is concerned except he went to the hotel and saw the dead body at the time of Police conducting inquest proceedings etc. However, he has only stated that he has received information from Muniraju and in turn Muniraju received such information from PW.10- Hanumanthappa Kattimani, the father of the deceased.
6.2 PW.2-Ganeshrao is the star witness to the prosecution. He has stated about the accused and deceased coming to the Hotel, staying there and on 08.06.2011, the accused was not in Room No.304 and the said Room No.304 was locked and Police coming to the spot and conducting the mahazar etc. He has also identified the accused-appellant No.1 before the Court and also identified the dead body of the deceased and Exs.P.3 to P.6, the photographs of the dead body. He has also stated that, he has reported to the Police as per Ex.P.7-complaint on the basis of which, the Police have registered a crime against the accused for setting the criminal law into motion.
6.3 PW.3-Puttegowda and PW.13-Ramachandra both are the inquest panch witnesses drawn by the Police as per Ex.P.9-Inquest Report. Both of them have turned hostile to the case of the prosecution. Though these witnesses turned hostile, we do not find any consequence of the hostility of these witnesses for the simple reason that there is no denial by the accused with regard to the death of his wife in the Hotel, but he has totally denied the allegation made against him. Therefore, the death of the deceased is not in dispute.
6.4 PW.4-Cheluva and PW.5-Mohammed Ali are the witnesses to Ex.P.12-Crime Report under which, the Police have recovered the room key pertaining to Room No.304 of Ayodhya Hotel at the instance of accused No.1. But these two witnesses have also turned back to the prosecution.
6.5 PW.6-Rachappa is another star witness to the prosecution, who has turned hostile. According to the prosecution, this witness was also present along with PW.2 and he has last seen the accused and the deceased in Room No.304 and that he has identified the dead body as per Exs.P.3 to P.6, the photographs and he was also present at the time of investigation and actually broke open the lock put to the said room. So far as the incriminating materials against the accused are concerned, this witness has turned hostile, but for the remaining aspects this witness has supported the case of the prosecution. But, the evidence of PWs. 2 and 6 is totally divergent so far as the facts related to the accused and the deceased going to the Hotel and staying there and thereafter, the accused alone went out from the room by locking the said room.
6.6 PW.7-Shivarudrappa is also the mahazar witness.
According to the prosecution, under Ex.P.17-mahazar, the Police have seized MOs.19 and 20, which are the Mangal Sutra (Thali) of the deceased and also a Nokia mobile at the instance of the accused. Another witness PW.14-Mehaboob Sab was also similarly examined to establish the recovery of the incriminating articles at the instance of the accused. But these two witnesses have also turned hostile to the case of the prosecution case without supporting in any manner.
6.7 PW.8-Yallappa Poojar is also another panch witness to Ex.P.19-Crime Report for recovery of Exs.P.20 and P.24, which are the Invitation Card and photographs pertaining to the marriage of the appellant and the deceased. Again, though this witness has turned hostile so far as the marriage between the deceased the accused is concerned, there is absolutely no denial about the marriage.
6.8 PW.9-Durgappa Sali, PW.10-Hanumanthappa Kattimani, and PW.11-Renuka, (parents of the deceased), PW.15-Huchappa Sandakadh, PW.16- Virupakshappa Kanavi, PW.18-Abdul Rahaman, PW.26-
Durgappa and PW.27-Mudukappa are the witnesses examined to implicate the accused for the offence punishable under Sections 498A of IPC and Sections 3 and 4 of the Dowry Prohibition Act, but including the parents of the deceased i.e. PWs.10 and 11, all these witnesses have given a go by to the prosecution case. So far as the allegations alleged offences against the accused are concerned, these witnesses have never supported the case of the prosecution in any manner. Even there is absolutely no evidence from these witnesses to prove the motive factor projected by the prosecution.
6.8(a). As we have already narrated, the motive projected by the prosecution is that, the accused persons, in demand of dowry, in cash and gold and also suspecting the fidelity and conduct of the deceased, decided to do away with the life of the deceased. The said motive factor in fact has not been supported by the evidence of these witnesses.
6.9. PW.20-Dr. Chandra-Shekar is the person, who conducted the post mortem examination on the dead body of the deceased Latha. He has given his opinion after examining the Forensic Science Laboratory (FSL) Report as per Ex.P.41 that, the death was due to respiratory failure as a result of consumption of alcohol containing Cyanide poison. Coupled with the evidence of inquest witnesses and also the Investigating Officers’ evidence, who have conducted the inquest proceedings as per Ex.P.9 and also the evidence of PW.20-Dr. Chandra Shekar, the death of the deceased was proved to be not natural. The death has occurred due to administering the alcohol containing Cyanide poison. There must be two persons inside the said room and it is established that one person has gone out from room No.304 after locking it. Therefore, the death must have occurred due to the intervention of a person cannot be ruled out. Therefore, we are of the opinion that the prosecution has established the homicidal death of the deceased. There is no need for us to discuss this homicidal death circumstances once again. Some of the other witnesses are PW.21-H.B.Gopalakrishna, who carried Ex.P.46-FIR to the jurisdictional Magistrate and also carried the articles seized in connection with the case to the FSL.
6.10 PW.22–Smt. N.Kruthika is the Scientific Officer, who has given her opinion as per Ex.P.41-FSL Report stating about the presence of Cyanide poison in the stomach of the deceased.
6.11 PW.23-Lingaiah is the Assistant Sub-Inspector of Police, who investigated the matter to some extent. PW.24-G.Omkarappa apprehended the accused and produced him before the Investigating Officer-PW.29 and he is also the witness to Ex.P17, under which MOs.19 and 20 have been recovered.
6.12 PW.25-B.S. Manjunatha swamy is the Tahsildar, who conducted inquest proceedings as per Ex.P.9. There is no need for any further discussion so far as this witness is concerned.
6.13 PW.28-Syed Ansat Imam, Assistant Director of Forensic Science Laboratory, the handwriting expert, who examined Exs.D.1 and D.2, which are the questioned signature writings of the accused herein with reference to the admitted specimen signatures and writings which are marked as Exs.P.50, 51 and 52 with reference to the questioned document Ex.P.8 and gave a report as per Ex.P.51. We would like to discuss the evidence of this witness little later with reference to other evidence on record.
6.14 PW.29-Prabhakar Rao Shindhe and PW.30- Rajanna T.B are the Investigating Officers, who have conducted investigation and PW.29 has submitted the charge sheet against the accused.
7. On careful evaluation of the above said evidence of the prosecution witnesses, as they are the main witnesses which we have to re-appreciate meticulously with reference to the circumstances projected by the prosecution.
8. Before adverting to the same, we would like to refer the submissions made by learned counsels in this regard.
9. Sri B.S.Prasad, learned counsel for the appellant very strongly contended that, the prosecution case revolves around the evidence of PWs.2 and 6. Out of them, PW.6 has turned hostile. PW.2 has deposed about the whole incident which happened in the Hotel and also prosecution relied upon Ex.P.8. It is contended that so far as Ex.P.8 is concerned, it is a doubtful document which is the Ledger of Ayodhya Hotel. He contended that there is absolutely no evidence to show that, this document was legally seized from the custody of PW.2 at that point of time, however, the same has not been subjected to seizure and the same has not been incorporated in the Property Form submitted to the jurisdictional Magistrate. The learned counsel submits that the Investigating Officer has suppressed various materials in connection with this case. Though PW.2 has stated that the CC TV footages were available in the Hotel and the movements of the accused could have been observed by the Investigating Agency, those CC TV footages have not been seized and placed for consideration of the Court. The learned counsel further submits that even though the finger print experts have visited the scene of offence, taken out the finger prints and submitted a report to the Investigating Officer, but surreptitiously the same has not been produced before the Court in order to ascertain exactly, as to what is the opinion given by the experts. So far the as the photographs and videographs are concerned, Section 65B of the Indian Evidence Act has not been complied with. The Investigating Officer has not examined the neighboring room occupiers and there are lot of discrepancies in the evidence of PW.29 and PW.30 with regard to the seizure of the articles. It is also submitted that there is every chance of forcibly taking signature of the accused on Ex.P.8 as well as on Ex.P.50, on which specimen signatures of accused were taken. He also contended that, though the Magistrate has permitted to take signatures of the accused, but the signatures are not taken in accordance with law. Neither attestation nor any mahazar was written and no witness has been examined in this regard to show that the signatures of the accused were taken in accordance with law. He also contended that the call records of the accused, father- in-law of the accused, Muniraju as well as PW.1 have not been collected by the Investigating Officer to show the link between one circumstance to another. He further contended that the evidence of PW.2 contains lot of discrepancies, contradictions and omissions. The same has not been properly appreciated by the Trial Court. He further contended that the Trial Court has mainly relied upon the voluntary statement of the accused and corroboration of the voluntary statement of the accused with other evidence on record, which is totally illegal and it is unknown to the criminal jurisprudence. Therefore, for all these reasons he pleaded for allowing of the appeal and consequently, to acquit the accused-appellant.
10. Learned Additional State Public Prosecutor has equally countered the arguments of learned counsel for the appellant. He has categorically submitted that there is no suggestion to any of the witnesses particularly PW.2, the Investigating Officer and the experts who conducted handwriting comparison as to why and for what reason they give false evidence before the Court by falsely implicating the accused. He further contends that there are serious lapses on the part of the Investigating Agency in not collecting the CC TV footages; not collecting the call records; not following the procedure prescribed under Section 65 of the Indian Evidence Act; not drawing up of any mahazar for seizure Ex.P.8 and not drawing up of any mahazar for the purpose of collecting the specimen signatures of the accused, but in spite of that the prosecution is able to show to the Court that the signature found on Ex.P.8 and the specimen signatures are one and the same and also the prosecution is able to show the uncorrupted evidence of PW.2 wherein, he has specifically identified the accused and the signature found on Ex.P.8 and that the accused and deceased have occupied Room No.304 on the relevant date and time of the incident.
Therefore, the case of the prosecution has been established beyond all reasonable doubt. He further submits that the Trial Court has committed some mistakes in relying upon other portion of the voluntary statement of the accused which ought not to have been done. Nevertheless, the Trial Court has considered the other evidence on record and assigned reasons for drawing inference against the accused. Therefore, he contended that, there is no room to interfere with the judgment of conviction and sentence passed by the Trial Court.
11. On overall analysis of the entire oral and documentary evidence on record, the prosecution has divided this case into several segments. The circumstances which are relied upon by the prosecution are,-
I. Motive, II. Homicidal death;
III. Last seen Theory of the accused and deceased together, dead body of the deceased being found thereafter in Room No.304 of Ayodhya Hotel, the handwriting and signature of the accused in Ex.P.8, handwriting expert report and lastly, IV. Recovery of MOs.19 and 20 at the instance of the accused.
I & II- Motive and Homicidal Death:
i) So far as the circumstance of motive and homicidal death are concerned, we have already discussed that the prosecution has proved the homicidal death, but failed to prove the motive, as the relevant witnesses have not supported the case of the prosecution. Therefore, the main circumstance that remains for consideration are, last seen of the accused and deceased staying together and the evidence of the handwriting experts to connect the accused to the crime incident.
Before adverting to the above said two strong circumstances, we should remind ourselves with regard to, how the prosecution should establish, in the cases where the prosecution mainly relies upon the circumstantial evidence.
In this regard, it is worth to refer a decision of the Hon’ble Apex Court in the case of C. Chengareddy and others Vs. State of A.P reported in (1996) 10 SCC 193, which was also relied on by the Trial Court, wherein the Hon’ble Apex Court has laid down the following principles;
“In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with all hypothesis of the guilt of the accused and totally inconsistent with his innocence……”
Therefore, this Court has to examine the above said circumstances in the light of the above decision of the Hon’ble Apex Court, to examine as to whether there is any lapse on the part of the Investigating Agency and or there any inconsistencies in the evidence of PWs. 2 and 6 before the Court that, they are totally inconsistent with the innocence of the accused. Therefore, in this background we would like to discuss the above said strong circumstances relied upon by the prosecution.
III) Last seen theory:
i) The strong circumstance relied upon by the prosecution is, the last seen theory of the accused and the deceased together. The prosecution has relied upon the evidence of PW.2, PW.6 and the Investigating Officer so as to establish this particular factum.
ii) It is the case of the prosecution that, on the relevant date ie., on 07.06.2011, the accused took his wife–Smt. Latha Mudagal (deceased) along with him under the guise of sight seeing at Mysuru and he took a room in Ayodhya Lodge, where PW.2 was working as a Manager and PW.6 was working as a Room Boy during that particular point of time. So far as the above said two witnesses are concerned, PW.6 has totally turned hostile to the prosecution case and PW.2 has supported the case of the prosecution. Therefore, the evidence of PW.2 play a dominant role in this case on the last seen circumstance is concerned.
iii) Of course, PW.2 in examination in chief has specifically stated that, he was working as a Manager in Ayodhya Lodge during that time and he left the job on 06.03.2012. He further stated that, they maintained a Register, in which usually they will record the details of the customers, who hire rooms in the said Lodge and also they issue receipts for having received money. He also stated that, CCTV cameras are installed near Reception Counter and Corridors where lodge rooms are located and the said cameras will record all the movements of the persons who take room in the said lodge. He further deposed that, PW.6-Rachaiah, the Room Boy took Accused No.1 and the deceased to Room No.304 and also served two plates of Idlis and two liters of mineral water to them and in fact, they also ordered for Fried Rice in the afternoon at about 12.00 noon. P.W.2 further deposed that PW.6-Rachaiah also went to the said room at 12.00 noon to serve fried rice as ordered, he found the room was locked, but he observed that the lights were switched on and the fan was running and water flowing sound was coming from bath room. In fact PW.2 telephoned to the accused to convey about the water flowing in bath room. But the accused told him that, they are near the Zoo Garden and therefore, they will come little later, but Accused No.1 did not come back. At about 5.00 or 5.30 p.m. PW.1- Hanumanthu came to the Hotel and enquired that, any persons from Gadag are staying in Room No.304. For that, PW.2 replies that, two persons are residing in Room No.304 and thereafter that person went off. PW.2 has also stated that there are two keys available to the said room, one was given to the customer and another was with the owner of the lodge. PW.2 got suspicion since the accused did not turn up even after one day, he informed the Police, and on 08.06.2011 the police came to the lodge and broke open the lock put to the said room and found the dead body of the deceased. Thereafter, the police have conducted inquest proceedings on the dead body and registered a case against the accused on the complaint lodged by PW.2 under Ex.P7 Mahazar. It is the case of the prosecution that, the police have also seized the Register- Ex.P8, in which the name, address and signature of the accused and the deceased Latha were found. The witness P.W.2 has identified Ex.P8 as the register maintained in the said lodge and he has also identified the signature of Accused No.1 at Ex.P8(c) and the signature of the deceased Latha at Ex.P8(d). He further deposed before the court that, he was present at the time of inquest proceedings recorded by the police by vediographic method. He also deposed that, the police have also secured the Finger Print Experts and Finger Print Experts have collected the Finger Prints found on the Beer Bottle and other articles in the said room.
iv) On the basis of the above evidence, the prosecution would like to establish the last seen theory. The cross-examination of (P.W.2) would also play a dominant role. Even before adverting to the cross- examination of this witness, the serious lapses which have been occurred in the investigation, requires to be considered by this court. Ex.P7 is the complaint lodged by this witness. In Ex.P7 he has narrated the same factual aspects as stated by him before the court. Apart from that, this witness has also stated in Ex.P7 that, the CC TV Cameras are installed in the lodge and the CC TV has recorded the videograph of the deceased and as well as the accused when they actually came to the Reception counter of the said Hotel, and the cameras have also recorded the movements of the accused nearby his room. He has specifically stated that, in the CC TV Camera it was recorded that the accused was locking the room and suspiciously going out from the said room and he has stated that, he will identify the accused if the accused is shown him once again. But very peculiar enough, the Investigating Officer has not secured the CC TV Footages and no efforts have been made even by the prosecution during the course of evidence to secure CC TV Footages and get it marked before the court so as to remove any doubt in the mind of the court. It is also stated by this witness that Accused No.1 has paid advance amount and this witness has issued receipt for the same. But the said receipt was also not seized by the Investigating Officer so as to compare the same with Ex.P8, the alleged Register said to have been taken from PW.2 by the Investigating Officer. In this context, the cross-examination of this witness has to be looked into. P.W.2 has stated in his cross-examination with regard to collection of Finger Prints by the experts on the materials available in the room. But the Investigating Officer (PW.30) has evasively stated in his evidence that, in spite of their best efforts, they could not able to trace out any Finger Prints on the materials available in the said room. But, Investigation officer also states in his evidence that though the Finger Print Experts have furnished the report, he has not produced the same before the Court for the best reasons known to him. On the other hand, PW.2 has specifically stated that, the Finger Prints have been collected by the experts in the said room. It is further elicited during the course of cross-examination that, there was a direction from the Commissioner of Police to all the Lodges and Hotels in the City that, at the time of providing room to any persons, his/her ID card or atleast xerox copy of the identity card has to be secured to ensure the identity of such person/s. PW.2 has admitted during the course of cross-examination that, though such direction was issued by the Police Commissioner, he has not taken any proof with regard to Identity or Xerox copy of the Identity Card and he has not offered any explanation to that effect. He has specifically stated that, he has not secured the Identity Card or any other documents showing identity of Accused No. 1 on that particular day. When it is mandatory requirement, how he can avoid the same, is also not explained. But he reiterates that, Accused No.1 has not signed Ex.P8 in his presence. A suggestion was made to this witness, that he cannot definitely say whether it is the signature of the accused, but he suspiciously says that, actually the accused has not signed before him. It is suggested to him that, the said signature was not of the accused and the same was concocted and created by the Investigating Officer in collusion with him. When this aspect has been denied, the court has to test the said aspect while considering the document (Ex.P8).
v) It is also stated that, PW.2 has contacted the accused on that particular day and informed over telephone that room lights are switched on and fans are running and also about flowing of water in the bath room. It is also the case of the prosecution that, Accused No.1 after committing the murder of the deceased, informed the same to the father of the deceased (PW.10) and in turn the father of the deceased has informed to one Muniraju over phone about the said aspect and requested him to enquire as to what has happened in Ayodhya Lodge and in turn, the said Muniraju has requested PW.1 over phone to do the said act and PW.1 came to Ayodhya Lodge and enquired about the accused and the deceased. But in order to show these facts, the conversation that has been taken place between the accused and PW.10 and Muniraju, and in turn PW.1 and Muniraju, no call details have been secured by the Investigating Officer and produced the same before the court so as to link the above said circumstances which are staggering against the accused. Non-securing of call details is also another important lapse on the part of the Investigating Officer. It is also a lapse on the Investigating Officer that, while making recovery at the instance of the accused, if the IMEI number of the mobile is traced, the Investigating Officer also could have collected the places and the locations with reference to the movements of the accused. In fact that has also not been done by the Investigating Officer for the reasons best known to him.
vi) In course of cross-examination, it was also suggested to PW.2 that, the footages of CC TV Cameras attached to the said Lodge were not produced because of the reason, that, on that day, Accused No.1 did not accompany the deceased Latha. It was also suggested that, all the photographs and other materials are concocted for the purpose of implicating the accused in to the crime. He also deposed that Police have not seized receipts, CCTV Camera and footages and further to show about availability of these items in the lodge, the Investigation Officer has not collected the receipts for having purchased the CC TV Cameras and about fixing the same in the Lodge. PW.2 subsequently stated that, he was in the said Lodge for a period of nine months and during that point of time, the Investigating Officer never collected any CD or CC TV Footages from the said Lodge. Therefore, the conduct of the Investigating Officer in not collecting the best evidence in this case also creates a doubtful circumstance for not to believe the case of the prosecution.
vii) Sofar as the Receipt Books are concerned, PW.2 has stated that, he has got the Receipt Book in the lodge, but no physical Receipt Book is kept in the Lodge, but they are in the form of computarised receipts in their lodge and also stated that, the said receipt can be downloaded through computer. It is also stated that, on 07.06.2011 itself the Police have downloaded the same and print-outs. Of which were taken and they were given to the Police on 07.10.2011 itself. But, very peculiarly enough, the Investigating Officer has not spoken to about such receipts and not produced them before the court for the reasons best known to him.
The witnesses also stated, that the CC TV Cameras are not only installed in the reception counter, but in every place of the said lodge and near the Lifts also, the CC TV Cameras are fixed so that the Manager or the competent person could see as to what is happening in each and every corridors where the rooms are situated and the CC TV Cameras were always switched on for all 24 hours of the day. He has further stated that, when a person enters the Lodge for the purpose of getting or booking a room, on hire, he must go near the Reception Counter and the Web Camaras which are installed in the Lodge are in turn connected to the Central Computer situated at Reception Counter. He also deposed that, at the time of the persons booking room, the computer will record every movement of a person in CC TV and record the photographs and information about that particular person in the computer maintained at the Reception Counter. Such photographs and the information recorded by the computer at that particular point of time on the particular date have not been obtained by the Police and produced before the court. Here itself a doubt arises that, if every thing is computerized and the information with regard to the address, name, photographs and movements of the persons, who visit the lodge are said to have been recorded in the computer, what was the necessity of maintaining the register as per Ex.P8, is also not clarified by PW.2 or the Investigating Officer. Therefore, it creates a serious doubt with regard to maintaining of Register Ex.P8 as to whether it was actually maintained in the said lodge and whether it was seized by the Police at the relevant point of time. We would like to discuss this point little later after considering the evidence of the said two witnesses ( Manager and (PW.6 and PW.30 [I.O.]).
viii) P.W.2 was also questioned by the defence counsel that, whether he has given photograph of Accused No.1, which was captured by the camera stored in the computer at the time of Accused No.1 booking room.
P.W.2 pleads his ignorance about he giving such information to the Police and he states that he cannot say, whether the Police subsequently at any point of time, have recovered such photographs or not.
ix) It is also elicited from P.W.2 in the course of cross-examination, that on 07.06.2011 till 12.00 noon he did not inform the same to the police in any manner, but at 9.00 p.m., the Police have telephoned to this witness and told that something is happening in Room No.304 and whether this witness knew about the same or not and thereafter, he told the Police that he has been trying to contact Accused No.1, but he is not responding to his telephone calls. So, this clearly discloses that, on 07.06.2011 in the night hours at 9.00 ‘O’ Clock, the Police might have got information about the incident, but they did not go to the said hotel till 10.30 in the morning on 08.06.2011. There is no valid explanation given by the Investigating Officer, though he has received the information about something is happening in Room No.304 of the said lodge, and he did not take swift action to go to the said hotel to ascertain as to what has happened in the said room. PW.2 has further deposed that, some other customers have occupied the room, which was opposite and also adjacent to Room No.304 of the said lodge and the customers were also present in the respective rooms and even when the Police came to the hotel, they were present in their rooms. But, the Investigating Officer has not recorded the statement of any of those persons, who have actually had an opportunity to see the Accused No.1 and the deceased, if actually Accused No.1 had visited the said lodge.
x) Very peculiar enough, P.W.2 has stated that, he was working as a manager in the said lodge. He has stated that the contents of Ex.P8 was not in his handwriting. But, he says that the Police have not recorded the statement of the person who actually recorded the information in Ex.P8. Though, it is stated that the person, who was working as Receptionist in the said lodge has written the said information, but the police have not recorded that person’s statement for the reasons best known to them.
xi) Looking to the evidence of PW.2, though he has categorically stated about identification of Accused No.1, but he neither voluntarily produced the CC TV Footages nor photographs of Accused No.1 recorded in the computer. Further, at one point he states that he was present at that particular point of time. On the Second point of time, he states that one Mr. Arjun, was present and as was the receptionist during that particular point of time, he recorded the contents of Ex.P8.
xii) PW.6-Rachappa is another witness, whose evidence has also been relied upon by the prosecution to prove the last seen circumstance. As we have already narrated, he turned hostile to the case of the prosecution. He totally denied the suggestion of he having identified the accused No.1 at any point of time. However, he says that the Police have visited the said lodge on 08.06.2011 and broke open the lock put to the said room No.304 and got videographed the dead body of the deceased as well as the inquest proceedings. He admitted that he has actually broke open the lock of the said room, but, he denied the presence of Accused No.1 at any point of time in the said Room No.304. But, as per the case of the prosecution, he actually took Accused No.1 and the deceased to the Room No.304 and supplied breakfast to them and thereafter he also went to the said room at 12.00 noon to supply food, as ordered by the Accused No1. But this witness has not supported the case of the prosecution to any extent.
xiii) In the course of cross-examination, no suggestion was made to PW.6-Rachappa even by the prosecutor as to, when Accused No.1 and the deceased went to that particular hotel, and at the time whether PW.2-Ganesh Rao was very much present as Receptionist. Hence, there was no suggestion about the presence of PW.2 at that particular point of time. On the other hand, through out the cross examination of PW.6-Rachappa, the learned Public Prosecutor has suggested that the Receptionist was present at that particular point of time. As we have narrated, PW.2 has stated that one Mr. Arjun was working in the Receptionist Counter in the said lodge at that particular point of time.
xiv) As we have narrated, PW.2 has stated that, one Mr. Arjun was working as Receptionist in the said lodge at that particular point of time. Through out the cross examination of PW.6, it was suggested to him, that, as per the instructions of the receptionist he took Accused No.1 and the deceased to Room No.304 and as per the direction of the Receptionist, P.W.6 supplied the breakfast to the said room. According to P.W.6 everything was instructed by the Receptionist. Therefore, the statement of the said Receptionist ought to have been recorded by the Investigating Officer, regarding the details such as where actually the contents of Ex.P.8 were written and whether the same was maintained in the said hotel or not? PW.6 never identified accused No.1 at any point of time, but he has identified the dead body of the deceased lying in the bathroom of the said room.
xv) Looking to the evidence of PWs.2 and 6, according to the prosecution, both are working in the said hotel. One has turned hostile and another has supported the case of the prosecution. In spite of P.W.2 supporting the case, there are series of lapses as observed by us in the evidence of PW.2 as well as the Investigating Officer. Production of C.C.T.V. footages would have cleared the doubts arose to the Court, if they are taken and produced before the Court. Further, the computer data recorded in the hotel reception ought to have been taken by the Investigating Officer and produced before the Court to clear all the doubts in the case.
xvi) In this context, it is worth to refer the decision of the Hon’ble Supreme Court in the case of TOMASO BRUNO AND ANOTHER v. STATE OF UTTAR PRADESH, reported in (2015) 7 SCC 178, as we feel it just and necessary to brief the factum of the said case as well as the principles laid down. The relevant portion of the said decision reads as under “appellants were foreigners, who are tourists in India, charged with having murdered their companion in a hotel - Prosecution case was based on circumstantial evidence that it were appellants alone, who could do this because all the three were lodged in a single room - As against this, the appellants’ version was that they were out of hotel for a couple of hours while deceased stayed back because he was not well - When they returned, they found deceased in serious condition - Hotel staff was immediately informed - Held, Appellants’ location at material time was crucial to unravel the truth - This could be determined with the help of CCTV recordings in hotel and movement of mobile phones instead of brining this evidence on record, prosecution seeking to explain away that footage was viewed but nothing relevant was found – Held,Omission could not be viewed as simple case of faulty investigation, rather it was case where best evidence had been withheld-This omission coupled with other infirmities in prosecution case held – Held, warranted setting aside of appellants’ conviction - Information Technology, Internet, Computer and Cyber Laws - electronic evidence –use of Highlighted.”
xvii) The principle laid down in the above said case by the Apex Court is that, when best evidence which could have clinched the issue should not be withheld by the prosecution. Further, technology which now pervades every walk of life also provides reliable evidence. Law, too, admits electronic evidence subject to certain precautions. If best evidence has not been produced, adverse inference has to be drawn under Section 114(g) of the Indian Evidence Act. However, it is also cautioned that it all depends upon the nature of evidence and its importance, etc.
xviii) Applying the above said facts and principles laid down by the Apex Court, to the case on hand, accused No.1 and the deceased were in the hotel. According to the prosecution, after committing the murder of the deceased, accused No.1 locked the room and went away from his room. This was recorded in the C.C.T.V. and further, accused No.1 and the deceased went to the said hotel to get a room, even the said movements have been recorded and the same is stored in the computer data. The Investigating Officer has not collected this particular material and placed before the Court to avoid any suspicion in the case of the prosecution. PW.2, in fact, also narrated that, he has viewed the data in the C.C.T.V. footage and found the movements of accused No.1 which has been denied by the defence counsel, by stating that such facts are not proved by producing the best evidence. Therefore, we are of the view that the said conduct of PW.2 and the Investigating Officer throw series of suspicion, which has not been clarified in this particular case.
xix) Now coming to Ex.P.8, is an important document relied upon by the prosecution. According to the prosecution, the Investigating Officer has seized the particular document on 08.06.2011 itself and he has sent the same for an expert’s opinion with reference to admitted signatures and writings of accused No.1. Of course, prosecution has examined the expert, PW.28 - Syed Askar Imam, Assistant Director of Forensic Science Laboratory, in this regard. He has examined Ex.P.8 with reference to the writing as well as signatures of accused No.1 and compared with the specimen writing and signatures sent by the Police for examination. Of course, he has given the opinion that the contents of Ex.P.8, the writing with reference to the name and place of the accused as well as signatures of the accused are compared with the specimen writing and signatures of the accused. He has categorically stated that, questioned writing and questioned signatures of the accused are marked as Exs.D.1 and D.2 and specimen writing and signatures are marked as Exs.P.50, P.51 and P.52. He has stated that the said documents, i.e. writing and signatures of the accused are compared with each other. Relying on the above said material, the learned State Public Prosecutor submits that, strong evidence has been placed before the Court.
xx) In this context, it is necessary to examine the seizure of Ex.P.8 and contents of Ex.P.8 and also specimen signatures and writing said to have been taken by the Investigating Officer xxi) We have carefully seen Ex.P.8, Ex.P.1 – spot mahazar and Ex.P.9 – inquest mahazar. As could be seen from the evidence of Investigating Officer as well evidence of PWs.2 and 6, nowhere in his evidence, PW.2 has stated about Ex.P.8 seized from his custody by the Police at any point of time. Further, PW.29, in his evidence, has stated that, he has secured Ex.P.8 on 8-6-2011 itself. The peculiarity of this case is that, though the Officer found this document, very important but he has not shown that, the said document was seized during the course of investigation. At any point of time, neither Ex.P.1 nor Ex.P.9 contain any information with regard to actual seizure of this document by the Investigating Officer from P.W.2, as to when exactly the document was taken out from Ayodhya Lodge through P.W.2 has not been stated by the Investigating Officer. Further, it is mandatory on the part of the Investigating Officer that, whenever he seizes any material objects or documents during the course of investigation; the same has to be subjected to property form, after producing the said documents and material objects before the jurisdictional Magistrate. He has to obtain the permission of the Magistrate to retain the same for further investigation. In this regard, it is worth to refer to the provisions of Section 102 of the Cr.P.C. which is mandatory in nature and which deals with the above said aspect, which reads as under Section 102, - Cr.P.C. says that, “Sec.102,- Power of Police Officer to seize certain property,- (1) Any Police Officer may seize any property, which is alleged or suspected to have been stolen, or which may found under circumstances which create suspicion of the commission of any offence.”
(2) xxx xxxx xxxx xxxx Sub Cluase (3) of Section 102 of the Cr.P.C. says that,-
“Every Police Officer acting under sub- section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court [or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in Police custody may not be considered necessary for the purpose of investigation], he may give custody thereof to any person on his executing a bond undertaking to produce before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.”
xxii) Therefore, looking to the above said provisions, whenever the Investigating Officer seizes any property or any object, with a suspicion that the same has been used for the commission of the offences, the said material is also relevant for the purpose of proving the case of the prosecution. In such an event, the same has to be reported forthwith to the jurisdictional Magistrate. We also feel worth to refer the provisions of Section 104 of the Cr.P.C., which reads as under, Sec. 104,- Power to impound document , etc. produced, - Any Court may, if it thinks fit, impound any document or thing produced before it under this Code.”
Therefore, the Court has power to impound a document or the material object before itself even without returning the same. In this background, the seizure in this particular case plays a dominant role. Suppose, such an act is not done by the Investigating Officer in not producing the said document or material before the jurisdictional Magistrate forthwith or within a reasonable time after its seizure, it is not an illegality altogether committed by the Investigating Officer. In some occasion, it may amount to seizure depending upon the facts and circumstances of each case. However, it will throw suspicion on the part of the Investigating Officer, if he does not produce the said document or the material before the Magistrate, at the relevant point of time. Admittedly, in this particular case, the said document Ex.P.8 is not subjected to any property form and not produced before the Magistrate at any relevant point of time. Absolutely, there is no material to show that on what date, time and place, this particular document was seized by the Investigating Officer. Of course, the evidence of PWs.9 and 28 show that this document has been tested with the specimen signatures of the accused. When it is not established before the Court with regard to seizure of the particular document, it is very difficult for the Court to hold that, the prosecution can rely upon such a document, where there is a procedural irregularity in seizure of that document.
xxiii) Now coming to the signatures of the accused and specimen writing obtained by the Investigating Officer, admittedly, the accused was arrested on 11-6-2011. The seizure of Ex.P.8 was not shown till that point of time. It is to be presumed though it was seized by the Police Officer, but for the reasons best known to him, he has not brought the same to the notice of the magistrate, and kept this document with him and further, till arrest of the accused, this document was not sent to examination. Only after arrest of the accused, particularly, on 27-6-2011, PW.29, who has taken over the investigation subsequently, has sent this document for an experts opinion. During such intervening period what transpired in the Police Station so far as Ex.P.8 is not explained by PW.30, which was in his custody. Therefore, as rightly contended by learned counsel, the signatures and writing of accused in Ex.P.8 are obtained so as to implicate him cannot be ruled out. In this background, collection of specimen writing and signatures play a dominant role. PW.30, in his evidence, has deposed that, he has arrested the accused. Subsequently, PW.29 has taken the permission of the jurisdictional Magistrate to take the specimen writing and signatures of the accused, who was in jail and it is stated that, on 28.08.2011, he received the information from F.S.L. that the material sent for comparison of the signatures and writing were not sufficient. Therefore, the Assistant Director of F.S.L. requested for some more writing and signatures of the accused. On the basis of said letter, i.e. Ex.P.53, PW.29 has stated that, he has taken the permission of the jurisdictional Magistrate and he has taken the signatures and writing of the accused and sent the same to the expert, which are marked as Exs.P.50(B) to 50(L). In the course of cross-examination, he has categorically admitted that he has not recorded the statement of the Jailer before whom specimen signatures and the writing of the accused were taken. He has also not stated about, any mahazar was drawn in presence of panch witnesses. Therefore, it is suggested to this witness that the said signatures were not taken in the jail also and they were created for the purpose of delaying the case. Therefore, looking to the above said circumstances, the defence taken by the learned counsel for the accused is that, Ex.P.8 was not seized and Ex.P.50 was also not recorded in accordance with law and no explanation has been offered by the Investigating Officer so far as this aspect is concerned. When the procedures contemplated under law have been bloated by the Investigating Officer, it is his duty to explain before the Court as to why he has not followed the procedure. If the reasons assigned by the Investigating Officer are accepted by the Court, then the Court can view irregularity and illegality committed by the Investigating Officer with a lenient view, so as to consider the other specific material on record to ascertain whether prosecution has proved its case. But in this particular case, these two aspects are important circumstances, which the prosecution has relied upon. Except the last seen theory and the signatures and writing of the accused in Ex.P.8, there is absolutely no record on material to connect the accused to the crime. If these two circumstances are doubtful and not proved beyond reasonable doubt, in our opinion, the Court cannot accept the case of the prosecution.
xxiv) With regard to comparison, as we have said, taking into consideration the concoction of the signatures and the writing of the accused in Ex.P.8, the specimen writing and signatures cannot be ruled out because, Ex.P.8 was in the custody of the Investigating Officer when the said document was produced before the Magistrate. In this context, we may also see the provisions under Section 104 of the Cr.P.C., which we have already referred to. If the properties which are produced before the Magistrate are necessary, the Police can retain the same with them and produce them at the time of filing of the charge-sheet or for further investigation of those documents, they shall be kept in the custody of the Court. It is the duty of the Court to examine the properties, which are subjected to property form, as to whether such property/document has to be retained by the Investigating Officer or not. In this context, if Ex.P.8 were to be produced before the Magistrate, and if for any reason, the Magistrate at that particular point of time, finds that there was no necessity for the Investigating Officer to retain such document with him, he can produce the same before the Court, so that at that juncture, there would be an opportunity to the Court to look into the document and decide as to whether that document was required for further investigation or not. In case, if the document was not required, the same may be impounded under Section 104 of the Cr.P.C. Therefore, in this background, non-production of Ex.P.8 within reasonable time creates a series of doubt, about the process of investigation. Therefore, we are of the opinion that, in regard to the above said two circumstances, the prosecution has failed to prove the guilt of the accused. Of course, the Investigating Officer (PW.30) has stated in his evidence that on 11.06.2011, the accused was before him and he arrested the accused and recorded his voluntary statement. We are surprised with regard to recording the statement of the accused and marking of the same as evidence. In this case, an astonishing factor cropped-up in the evidence of PW.30 (IO) is that, the entire marking includes the confession and non- confession contents of the said document. Preparation made by the accused for killing his wife, motive factor narrated by the accused and also recovery with regard to material objects etc. have been marked before the trial Court. We are of the view that, the statement of the accused would have been marked as per Section 27 of the Indian Evidence Act. So though the statement of the accused was confession in nature, the discrepancy of the fact alone to be proved before the Court. It is not that entire case of the prosecution could be proved only on the basis of voluntary statement, which appears to have been accepted by the trial Court. In our opinion, it is a serious error in nature. Of course, the factual discrepancy was a fact from the voluntary statement of the accused only to such extent which led to the recovery of incriminating articles, which can be proved before the Court, but not the statement made by the accused with reference to motive or with regard to any preparation made by him, on the basis of the voluntary statement of the accused. Therefore, it is clear that, the voluntary statement given by the accused cannot be relied upon by the Court, except factual discrepancy of the fact which led to recovery of incriminating articles at the instance of the accused. In this background, we have carefully examined the judgment of the trial Court.
xxv) At various stages, in fact, the trial Court also relied upon the voluntary statement of the accused with reference to the motive and preparation. The trial Court has recorded its opinion with reference to the evidence of PWs.10 and 11, who are the parents of the deceased, who have turned hostile to the prosecution case with reference to the motive and conduct of the accused. The trial Court has stated that these two witnesses have given 161 statement before the Police and have turned hostile to the prosecution. However, the said facts, which are stated by PWs.10 and 11 have been narrated in their statement, therefore, the Court has drawn an inference that the said witnesses have given their statement due to coercion. The prosecution has to stand on its own legs sofar as preparation, motive, participation of the accused in the crime and commission of offence. The Court can rely on the statement of the accused specifically as narrated under Section 27 of the Indian Evidence Act with reference to the discrepancy of the fact and recovery, if any, to be proved on the basis of such discrepancy of fact. Except that, no other statement of the accused is incriminating in nature which could be relied upon, on the basis of such statement.
IV) Recovery of MOs.19 and 20:
i) The recovery of one thali as well as mobile phone which are marked as MOs.19 and 20 are said to have been recovered at the instance of the accused and the witnesses are examined in this context. PWs.7 and 14 have turned hostile so far as this aspect is concerned. We are only left with the Investigating Officer, who was duty bound to say with regard to recovery and on the voluntary statement of the accused. PW.30 (IO) recovered those articles at the instance of the accused.
PWs.7 and 14 have turned hostile so far as recovery aspect is concerned. The evidence of PWs.10 and 11 play a dominant role so far as this aspect is concerned. PW.14, during cross-examination, has deposed that at the time of inquest, the Police have handed over thali to PW.10. PW.10 and PW.11 are none other than the father and mother of the deceased and why they have to turn hostile to the prosecution case. For that, the trial Court in one sentence stated that, they have been persuaded by the accused, therefore, there is absolutely no elucidation on this fact in the cross-examination of PWs.10 and 11 as to how they are swayed by the accused. In the absence of such material, the Court cannot imaginarily draw an inference, though the recovery is at the instance of the accused. Here also, we cannot accept such appreciation of evidence by the trial Court.
12. Looking from any angle, no doubt the prosecution has proved beyond all reasonable doubt with regard to homicidal death of the deceased. But, the prosecution has not come forward to establish the motive factor as well as the last seen theory and also the recovery of MOs at the instance of the accused beyond reasonable doubt. The views expressed by the trial Judge are borne out from the records and appreciation of evidence by the trial Court is only based upon imagination. Therefore, we do not accept the judgment of conviction and order of sentence passed by the trial Court. The reasonable doubts which are expressed by us are not mere doubts, but they are reasonable doubts and if the same is accepted, it will go to the root of the prosecution case and it is strong enough to disprove the case of the prosecution. Therefore, we are inclined to allow this appeal by setting aside the judgment of conviction and order of sentence passed by the trial Court.
13. Before parting with this judgment, we feel it worth to refer here a decision rendered by this Court in Crl.A. No.615/2013 disposed of on 02.11.2018, wherein it is observed that, the electronic evidence is an admissible evidence subject to rider contained in Section 65B of the Evidence Act. Further, if the electronic evidences are available to the Investigating Officer, which are actually not seized and if such electronic evidences are considered as the best evidence which could clinch the issue before the Court and if they are collected, sufficient explanation has to be offered by the Investigating Officer as per certain observations made by us in this particular case with reference to procedural lapses on the part of the Investigating Officer which are not merely followed, by with-holding the best evidence. Therefore, in our opinion, copies of this judgment have to be sent to the Home Secretary to the Government, the Inspector General of Police and the Deputy General of Police for the purpose of circulating the same amongst the Investigating Officers and also to all the Subordinate Courts so that hereinafter, the Investigating Officers have to be very careful whenever they rely upon electronic evidences, and if so, the electronic evidence shall be collected at the earliest and the same should be preserved and protected in a recognized mode, and further, till such electronic evidences/documents are relied before the Court, the same should be kept in safe custody and thereafter, mark the same before the Court, in accordance with law.
With the above observation, we proceed to pass the following order:
ORDER i. The appeal is allowed. Consequently, the judgment of conviction and order of sentence dated 22-1-2016 passed by the V Additional District and Sessions Judge, Mysuru, in Sessions Case No.305 of 2011, is hereby set aside. Appellant/accused No.1 – Ramesh Shivappa Mudgal is hereby acquitted of the charges levelled against him for the offence punishable under Section 302 of the Indian Penal Code;
ii. Appellant/Accused No.1 is ordered to be released from the custody forthwith, if he is not required in any other case;
iii. The Appellant/Accused No.1 has deposited any fine amount, the same is ordered to be refunded to him on proper identification and acknowledgement; and iv. The Registry is hereby directed to communicate the operative portion of this judgment to the concerned Jail Authorities for release of the appellant/accused No.1 forthwith, if he is not required in any other case.
We hereby further observe that, when the electronic evidences/documents are produced before the Courts, the concerned Courts have to take care for protection and preservation of the same in a safe and proper recognized mode and method in the concerned Courts, till the appeal period is over.
Sd/- JUDGE Sd/- JUDGE Mv/KGR/kvk*