IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 12TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL REFERRED CASE NO.5 OF 2014 CONNECTED WITH CRIMINAL APPEAL NO.178 OF 2015 CRIMINAL REFERRED CASE NO.5 OF 2014 BETWEEN:
THE REGISTRAR GENERAL HIGH COURT OF KARNATAKA BENGALURU - 560 001 ... PETITIONER (BY SRI:VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR) AND:
MOHAN KUMAR @ SUNDAR RAI @ ANANDA @ SUDHAKAR KULAL @ SUDHAKAR ACHARYA @ SHASHIDHARA POOJARY @ MANOHAR G @ SHASHIDHAR BHANDARY @ ANAND S @ SUDHAKAR RAI @ SUDHAKAR K @ K SANJEEVA @ SUDHAKAR RAO K @ SUDHAKAR KOTTARI @ RAJ PRAKASH ACHARYA @ SUDHAKAR BELCHADA @ MANOJ @ RAJESH @ CHANDRASHEKAR @ SUDHAKAR GOWDA @ SUDHARKAR POOJARY @ ANAND NAIK AGED ABOUT 46 YEARS S/O LATE MAILAPPA MOGERA R/O BEHIND KANYANA JUNIOR COLLEGE KANYANA VILLAGE BANTWAL TALUK PRESENT ADDRESS:
DOOR NO.2-24, BARIKE HOUSE BELMA VILLAGE MANGALURU TALUK ... RESPONDENT (BY SRI:MOHAN KUMAR – CONVICT-IN-PERSON) THIS CRIMINAL REFERRED CASE IS REGISTERED AS REQUIRED UNDER SECTION 366 (1) CR.P.C. FOR CONFIRMATION OF DEATH SENTENCE AWARDED TO ACCUSED SHRI MOHAN KUMAR @ SUNDAR RAI @ ANANDA @ SUDHAKAR KULAL @ SUDHAKAR ACHARYA @ SHASHIDHARA POOJARY @ MANOHAR G @ SHASHIDHAR BHANDARY @ ANAND S @ SUDHAKAR RAI @ SUDHAKAR K @ K SANJEEVA @ SUDHAKAR RAO K @ SUDHAKAR KOTTARI @ RAJ PRAKASH ACHARYA @ SUDHAKAR BELCHADA @ MANOJ @ RAJESH @ CHANDRASHEKAR @ SUDHAKAR GOWDA @ SUDHAKAR POOJARY @ ANAND NAIK AGED 46 YEARS, S/O LATE MAILAPPA MOGERA, RESIENT OF BEHIND KANYANA JUNIOR COLLEGE, KANYANA VILLAGE, BANTWAL TALUK, PRESENT ADDRESS: DOOR NO.2-24, BARIKE HOUSE, BELMA VILLAGE, MANGALURU TALUK, PASSED BY THE IV ADDITIONAL SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU, BY THE JUDGMENT OF CONVICTION DATED 17/21.12.2013 IN S.C.NO.96 OF 2010 FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
***** CRIMINAL APPEAL NO.178 OF 2015 BETWEEN:
SRI MOHAN KUMAR @ SUNDAR RAI @ ANANDA @ SUDHAKAR KULAL @ SUDHAKAR ACHARYA @ SHASHIDHAR POOJARY @ MANOHAR G. @ SHASHIDHAR BHANDARY @ ANAND S. @ SUDHAKR RAI @ SUDHAKAR K. @ K. SANJEEVA @ SUDHAKAR RAO K.
@ SUDHAKAR KOTTARI @ RAJ PRAKSH ACHARYA @ SUDHAKAR BELCHADA @ MANOJ@ RAJESH @ CHANDRASHEKAR @ SUDHAKAR GOWDA @ SUDHAKAR POOJARY @ ANAND NAIK AGED 50 YEARS S/O LATE MAILAPPA MUGERA RESIDING AT BEHIND KANYANA JUNIOR COLLEGE KANYANA VILLAGE BANTWAL TALUK-574153 PRESENT ADDRES:
DOOR NO.2-24, BARIKE HOUSE BELMA VILLAGE MANGALURU TALUK-575001 ... APPELLANT (BY SRI:MOHAN KUMAR – APPELLANT-IN-PERSON) AND:
STATE OF KARNATAKA BY THE ASSISTANT SUPERINTENDENT OF POLICE PUTTUR SUB-DIVISION, PUTTUR REP BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560001 ... RESPONDENT (BY SRI:VIJAYAKUMAR MAJAGE, ADDITIONAL STATE PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 17.12.2013, PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU, IN S.C.NO.96 OF 2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376, 328, 302, 392, 201, 366, 394, 417, 465, 468, 473 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 5 YEARS AND TO PAY FINE OF RS.5,000/- AND IN DEFAULT TO PAY THE FINE AMOUNT, HE SHALL UNDERGO FURTHER SIMPLE IMPRISONMENT FOR 1 YEAR FOR THE OFFENCES PUNISHABLE UNDER SECTION 366 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 8 YEARS AND TO PAY FINE OF RS.5,000/- AND IN DEFAULT TO PAY THE FINE AMOUNT, SHALL UNDERGO SIMPLE IMPRISONMENT FOR 1 YEAR FOR THE OFFENCE PUNISHABLE UNDER SECTION 376 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO DEATH PENALTY, BY HANGING HIM TILL HIS DEATH AND FINE OF RS.5,000/- THE DEATH PENALTY IS SUBJECT TO CONFIRMATION FROM THE HON'BLE HIGH COURT OF KARNATAKA, FOR THE OFFENCES PUNISHABLE UNDER SECTION 302 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 5 YEARS AND TO PAY FINE OF RS.5,000/- AND IN DEFAULT TO PAY THE FINE AMOUNT, SHALL UNDERGO SIMPLE IMPRISONMENT FOR 1 YEAR, FOR THE OFFENCES PUNISHABLE UNDER SECTION 392 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 10 YEARS AND TO PAY FINE OF RS.10,000/- AND IN DEFAULT TO PAY THE FINE AMOUNT, SHALL UNDERGO SIMPLE IMPRISONMENT FOR 2 YEARS FOR THE OFFENCES PUNISHABLE UNDER SECTION 394 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 3 YEARS AND TO PAY FINE OF RS.1000/- AND IN DEFAULT TO PAY THE FINE AMOUNT, SHALL UNDERGO SIMPLE IMPRISONMENT FOR 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 328 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 417 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 1 YEAR FOR THE OFFENCE PUNISHABLE UNDER SECTION 465 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 3 YEARS AND TO PAY FINE OF RS.2,000/- AND IN DEFAULT TO PAY THE FINE AMOUNT, SHALL UNDERGO SIMPLE IMPRISONEMNT FOR 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 468 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 3 YEARS AND TO PAY FINE OF RS.2,000/- AND IN DEFAULT TO PAY THE FINE AMOUNT, SHALL UNDERGO SIMPLE IMPRISONMENT FOR 6 M0NTHS, FOR THE OFFENCE PUNISHABLE UNDER SECTION 473 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 3 YEARS AND TO PAY FINE OF RS.3,000/- AND IN DEFAULT TO PAY THE FINE AMOUNT, SHALL UNDERGO SIMPLE IMPRISONMENT FOR 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 201 OF IPC. ALL SENTENCES SHALL RUN CONCURRENTLY AND ALL SENTENCES OF IMPRISONMENT SHALL MERGE WITH DEATH PENALTY IN CASE OF CONFIRMATION FROM THE HON'BLE HIGH COURT.
***** THIS CRIMINAL REFERRED CASE AND CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
J U D G M E N T The appellant (hereinafter referred to as ‘accused’) who is sentenced to death by order of IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru in S.C.No.96 of 2010, dated 17.12.2013 / 21.12.2013 for the offence punishable under Section 302 of Indian Penal Code, 1860 (for short ‘IPC’) is in appeal before this Court. He has also challenged his conviction and sentence for various terms of imprisonment and fine for other offences punishable under Sections 366, 376, 392, 394, 328, 417, 465, 468, 473 and 201 of IPC.
2. The case of the prosecution is that, the deceased Kumari Anitha, aged 22 years, was the resident of Kodimane, Borimaru Village, Bantwal Taluk. She was rolling beedies. The accused whose real name is Mohan Kumar calling himself as Sudhakar Kulal, developed intimacy with the deceased, obtained her mobile number and started contacting her. He gradually induced her to marry him and to follow him. Believing the accused who belongs to the same caste as that of the deceased, she decided to go with him. The accused informed the deceased to accompany him by wearing gold ornaments and new clothes. As per their pre-plan, on 17.06.2009 deceased Kumari Anitha went to B.C.Road bus stand wearing gold ornaments. The accused took her in a bus to Hassan and both of them stayed in Sanman Lodge at Hassan. They spent the night together in Room No.23 of the said lodge. It is alleged that the accused had sexual intercourse with the deceased against her will.
3. On 18.06.2009, in the early morning, on the pretext of taking her for an interview, the accused persuaded her to keep her gold ornaments and mobile phone in the room making her to believe that she was required to appear like a rustic woman. He took her to the KSRTC bus stand and insisted her to take some medicine given by him to prevent pregnancy. He convinced her that immediately after taking the said medicine, she was required to pass urine and drink tea within five minutes. Accordingly, the deceased took the cyanide poison given by the accused, went inside the toilet and consumed it. She lost her breath and in that manner the accused committed her murder. Thereafter, the accused returned to the lodge, carried away her gold ornaments and mobile phone and fled away from the spot of occurrence.
4. PW-44 – a cleaner in the KSRTC bus stand having found the door of the toilet room latched from inside, at about 8.00 a.m. alerted the public. The door was broken open and they found the deceased, froth oozing out from her mouth. PW-44 lodged a report before PW-23 – Women Police Sub Inspector of Hassan Police Station and UDR case No.23 of 2009 came to be registered. PW-23 took the photographs of the dead body, conducted inquest as per Ex.P31 in the presence of panchas and the body was forwarded for autopsy. Since the identity of deceased was not established, the body was kept in the mortuary awaiting identification. However, the cold storage unit in the mortuary being not in a working condition the body started to putrefy. Hence, on the requisition of Investigation Officer, PW-26 - Forensic Specialist, Chamarajendra Hospital, Hassan conducted autopsy on the dead body and issued his opinion to the effect that the death was due to respiratory failure as a result of consumption of Organo Phosphorous poison.
5. PW-1 - the brother of deceased lodged a missing person complaint on 20.06.2009. The same was registered as Crime No.111 of 2009. PW-39 formed teams for tracing the culprits. During investigation, the call details made from the mobile number of deceased were monitored. On 21.10.2009 at about 7.00 a.m., the accused was apprehended at B.C.Road bus stand. He recorded the voluntary statement of accused and thereafter produced the accused before PW-43 - the then Assistant Commissioner of Police, Puttur Circle.
6. PW-43 recorded the voluntary statement of accused, pursuant to which the accused showed the place from where the deceased was taken by him to Hassan. The accused also led the Investigating Officer and the panchas to the lodge where accused and deceased stayed together. The extract of lodge register as well as receipt containing the signature of accused were seized. Thereafter, the accused led the investigation team and the panchas to the toilet at KSRTC bus stand and showed the place where he gave cyanide to the deceased. At the instance of the accused, the Investigating Officer recovered cyanide pieces, hammer, nine fake rubber stamps, mobile phone, four sim cards, a plastic bag containing three gold chains with laxmi pendant, three pairs of ear studs and two gold rings and various identity cards containing the photographs of the accused but bearing the name of Shashidar Poojary, Shashidhar Bhandary, S.Anand, Sudhakar Rai, Manohar, K.Sudhakar, Sudhakar Acharya, Sudhakar Kulal, Sudhakar Rao, Sudhakar Kothwari, K.Sanjeev and Mohan Kumar. All these articles were seized. Thereafter, on 24.10.2009 at the instance of accused, gold chain with four corals and white stone laxmi pendent were recovered at Muthoot Finance, Mangaluru. Like wise, the gold ornaments pledged by the accused with Sri.Guru Raghavendra Finance, Mangaluru were also recovered. The seized articles were sent for chemical analysis. In the course of investigation, the Investigation Officer went to the shop of PW-48 – Mohammed, from where the accused is stated to have purchased the cyanide. From the said shop, ten billets of cyanide and vials containing liquid cyanide were also seized. On completing the investigation, the charge-sheet was laid against the accused under Sections 376, 328, 302, 392 and 201 of IPC. Later an additional charge-sheet was filed alleging commission of offences under Sections 366, 394, 417, 419, 465, 468 and 473 of IPC.
7. On production before the Trial Court, the accused sought to conduct the case by himself. On hearing the accused and considering the materials produced by the prosecution, the Trial Court framed the charges under Sections 366, 376, 328, 392, 394, 417, 465, 468, 473, 302 and 201 IPC. The accused denied the charges and claimed to be tried. In proof of the above charges, the prosecution examined 49 witnesses as PWs-1 to 49 and produced in evidence Exs.P1 to Ex.P102(d) and the material objects at M.O.s-1 to 43. In the course of cross-examination of the prosecution witnesses, the accused got admitted the portion of the statement of PW-39 as Ex.D1 and two C.Ds. as Exs.D2 and D3. In his examination under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and did not choose to enter into the specific defence or to produce any further oral and documentary evidence on his behalf.
8. On hearing the learned Public Prosecutor and the accused and considering the oral and documentary evidence available on record, the Court below found the accused guilty of all the above offences. The learned Sessions Judge was of the view that the prosecution has proved the following circumstances, namely:
(i) the deceased last seen in the company of accused;
(ii) common stay in the lodge;
(iii) recovery of ornaments and articles from the personal search of the accused;
(iv) recovery of incriminating materials from the house of the second wife of the accused Smt.Sridevi;
(v) recovery of pledged ornaments from Muthoot Finance, Mangaluru;
(vi) recovery of gold ornaments pledged by the accused with Sri.Guru Raghavendra Finance, Mangaluru;
(vii) recovery of small billets of cyanide from the shop of PW-48;
(viii) identification of the ornaments as belonging to the deceased;
(ix) purchase of rolled-gold karimani and plastic bottle for filling cyanide from PW- 18;
(x) extra-judicial confession;
(xi) identification parade;
(xii) the evidence regarding the modus operandi of the accused;
(xiii) medical evidence and the evidence of expert; and (xiv) lastly, the doctrine of confirmation, whereby, the accused showed the spot from where he accompanied the deceased and the place where they stayed together in a lodge at Hassan as well as the spot where the cyanide was administered to the deceased.
9. The Court below was of the opinion that all the above circumstances conclusively establish the guilt of the accused for all the offences charged against him. While considering the case for imposition of sentence, the Court below enumerated the aggravating and mitigating circumstances brought out in the evidence and having found that the accused had ingeniously deceived the deceased by impersonation and committed the murder by administering cyanide and also having regard to the fact that similar modus operandi was being adopted by the accused in 19 other cases wherein he was facing trial, out of which, he had suffered conviction in two cases on similar charges, was of the opinion that the case fell within the category of “rarest of rare cases” and imposed the extreme penalty of death sentence, and made a reference to this Court for confirmation of the death sentence as required under Section 366 of Cr.P.C.
10. The records of the lower court are secured. As the accused was in custody, the assistance of an Advocate was provided to the accused through Legal Services Authority. However, when the matter was taken up for final hearing, the accused addressed a letter through Prison Authorities seeking to argue the matter personally. The permission was granted. The accused has argued the matter in person. He has also submitted the notes of his arguments which are also placed on record. We have also heard the learned Additional State Public Prosecutor.
11. The main and the primary objection raised by the accused relates to the cause of death of the deceased. Referring to the medical opinion given by PW-26 who conducted the postmortem examination and issued the autopsy report at Ex.P33, the accused has built up an argument that as per the opinion of PW-26 the deceased died due to respiratory failure as a result of consumption of Organo Phosphorous poison. Even in his further opinion at Ex.P34 he has opined with certainty that the death was due to respiratory failure as a result of consumption of Cyanide poison in addition to Organo Phosphorous poison. Thus, PW-26 has confirmed the presence of Organo Phosphorous poison in the stomach of the deceased, which is contrary to the case of the prosecution that the deceased died due to consumption of cyanide. It is the submission of the accused that the prosecution has not produced any positive evidence to show that the deceased died exclusively on account of administration of cyanide, as a result the very substratum of the prosecution case is rendered doubtful.
12(a). This contention is opposed by the learned Additional State Public Prosecutor. He contends that the identity of dead body was not established. Therefore, it was kept in the mortuary. But as the body started decomposing, PW-26 was constrained to conduct the postmortem examination. At the time of conducting postmortem examination, the doctor was not provided with the history of incident. In the said circumstances, having noted the presence of poison in the stomach of the deceased, he issued the opinion as per Ex.P33. However, during the investigation, the investigating agency having come to know the use of cyanide, sought for further opinion from PW-26. Based on the findings recorded by PW-26 in his earlier report, he clarified that the death was caused due to cyanide. The further report issued by PW-26 clearly establishes the presence of cyanide. Therefore, merely because PW-26 has described the substance as “Organo Phosphorous”, it cannot be concluded that the deceased died on account of Organo Phosphorous poisoning.
(b). Further, the learned Additional State Public Prosecutor pointed out that as the body was being decomposed, the viscera could not be collected. The said lapse on the part of the medical officer cannot be taken as a circumstance to disbelieve the report. The further report of PW-26 clearly establishes the presence of cyanide in the stomach of the deceased and therefore, the cause of death having been proved, the contention raised by the accused in this regard is liable to be rejected.
13. We have considered the evidence of PW-26 with reference to the opinion given by him at Ex.P33 and the further opinion at Ex.P33(d). What emerges from the evidence of PW-26 is that the dead body was kept in cold storage for about 3 days. It had started decomposing and hence, on the request of the Investigating Officer, PW-26 conducted the postmortem examination. According to PW-
26 he himself was a Forensic Specialist and he gave his opinion on the basis of the findings noted by him during postmortem examination. He has specifically stated in his evidence that the stomach contained 500 ml of oily fluid having a strong smell of sweetish Organo Phosphorous compound. In his further opinion, he has stated thus:
“With reference to the above subject, I went through the postmortem report once again to note the following:
1. On external examination the finger nail bed were cyanosed.
2. On internal examination the contents of the stomach was sweetish in taste in addition to O.P. smell.
The above two findings is found in cyanosed poison.
The death of this unknown body was due to respiratory failure as a result of consumption of cyanide poison in addition to O.P. poison.”
As the opinion given by PW-26 goes to show that in addition to Organo Phosphorous the presence of cyanide, was also detected in the stomach of the deceased, immediate question that falls for consideration is: “Whether the proximate cause of death is due to consumption of cyanide or due to Organo Phosphorous substance?”
14. In answering the above question, the first thing to be noted is that there is no dispute as to the fact that the deceased died due to poisoning. Undeniably the nature of poison has not been positively identified by subjecting the stomach contents to chemical analysis. PW-26 has admitted that he did not send the viscera or stomach contents for chemical examination. Nonetheless, in his evidence as well as in his report, he has asserted that he himself was an expert in the field and was competent to give opinion as to the cause of death.
15. An expert is one who has special knowledge and skill within the recognized field of expertise and he essentially has to be qualified in that discipline of study. In order to render his opinion admissible under Section-45 of Indian Evidence Act, his opinion must be backed by reasons and the grounds in justification thereof. In the instant case, as already stated above, there is no dispute as to the fact that PW-26 is an expert in the field of forensic science. He has specifically stated the basis on which he has furnished his opinion. He has reiterated in his further opinion that based on the appearance of the finger nail beds as well as the smell and the physical appearance of the stomach contents, he has furnished his opinion. The opinion given by PW-26, in our view, falls within the purview of expert opinion within the meaning of Section 45 of the Evidence Act. He has furnished the grounds and reasons in justification of his final opinion. Therefore, there can be no legal impediment, whatsoever, to rely on the opinion given by PW-26. Nonetheless, an expert is not a witness of fact. His opinion is not conclusive in determining the cause of death. Moreover, PW-26 himself having observed the presence of two substances and having not furnished a clear and definite opinion as to the real cause of death, it is incumbent on the Court to determine the real cause of death with reference to the factual findings noted in the P.M. report and the surrounding circumstances proved in evidence. In this context, it may be useful to refer to the observations made by the Hon’ble Supreme Court in Mahabir Mandal and Others Vs State of Bihar (AIR 1972 SC 1331), that:
“In a number of cases where the deceased dies as a result of poisoning, it is difficult to successfully isolate the poison and recognize it. Lack of positive evidence in this respect would not result in throwing out the entire prosecution case if the other circumstances clearly point to the guilt of the accused.”
16. In the instant case, it is proved by the prosecution that immediately prior to the tracing of the dead body, the accused and deceased were found together in the lodge and both of them had left the lodge at about 5.45 a.m. The accused returned alone to the lodge at 6.00 a.m. The dead body was traced in the toilet at about 8.00 a.m. It is also borne on record that door of the toilet was latched from inside and the door had to be broken open. From this evidence, it can be deduced that the accused alone had an opportunity to administer poison to the deceased. When the deceased was last seen with the accused in Sanman lodge, in the absence of any explanation by the accused for her disappearance or death, in our opinion, the only inference that could be drawn is that the accused alone knew the circumstances leading to her death.
17. The circumstances brought out in the evidence, rule out the theory of suicide or the deceased consuming any poison by herself. As already noted above, the material on record, clearly indicates that immediately preceding the incident, the deceased and the accused were found together in the lodge. There is no evidence of any untoward incident driving her to commit suicide. The evidence of PW.7 indicates that when she and the deceased left the lodge, she was clad in a saree. No material is brought on record to suggest that she had any reason to commit suicide or that she was in possession of any pesticide or any other type of poison immediately preceding the incident. Therefore, the theory of self consumption of poison is completely ruled out.
17(a) It is not the case of the accused that the deceased committed suicide by consuming insecticide. No such suggestion has been made either to PW-26 or any other witnesses and no circumstances are brought out to suggest that the deceased was driven to commit suicide. No bottle or any such thing containing insecticide was found near the scene of occurrence. None of the witnesses have spoken about any smell of insecticide exuding from the mouth of deceased, thereby, ruling out the possibility of the death being caused by consumption of insecticide as noted in Ex.P33. The findings noted in the postmortem report as well as surrounding circumstances noted above would clearly indicate that the death was swift and sudden. There is no evidence whatsoever to show that the deceased had screamed for help which again suggests that the death was quick and abrupt, as in cases of cyanide poisoning. PW.26 has reiterated in his evidence that consumption of 0.05 mg of cyanide could cause death within 2 or 3 minutes. Therefore, merely because PW-26, has noted the presence of Organo Phosphorous substance in his opinion Ex.P.33 it cannot be concluded that the deceased died due to consumption of insecticide. Moreover, PW-26 himself has explained the circumstances in which he had issued the report Ex.P.33. Going by his evidence it is clear that without obtaining any chemical analysis report, he issued the 1st opinion as per Ex.P.33. In his evidence he has impliedly admitted that he issued Ex.P.33 in haste, without careful examination of the symptoms and the findings noted in the P.M. report. But in his further opinion, he having rectified the said error and has justified the said further opinion with cogent reasons, it stands proved that cyanide was found in the stomach of the deceased. This evidence coupled with the circumstances discussed above, would lead to the inevitable conclusion that the deceased died due to consumption or administration of cyanide and not by Organo Phosphorous insecticide as contended by the accused.
18. In view of the conclusion arrived at by us as above, the finding recorded by the Trial Court that the deceased died due to consumption of Organo Phosphorous cannot be sustained. The Trial Court appears to have arrived at the said finding solely on the basis of Ex.P.33. The Trial Court has failed to take into consideration the further opinion as well as the justification given by PW-26 in support of his opinion as per Ex.P33(d). The Trial Court has blindly accepted Ex.P.33 without considering the further opinion and the surrounding circumstances which have direct bearing on the death of the deceased. Therefore, the said finding being contrary to the evidence on record cannot be sustained and is hereby set aside.
19. For the reasons discussed above, we are of the considered view that the deceased met with homicidal death. She was administered cyanide. The other circumstances which we would presently discuss would also lead to the same conclusion. Hence, we hold that the prosecution has proved beyond reasonable doubt that the deceased died due to administration of cyanide.
20. Now, reverting to the charges, in order to prove the complicity of the accused in the murder of the deceased, the prosecution has rested its case entirely on circumstantial evidence. The first and the main circumstance relied on by the prosecution is the circumstance of the deceased last seen in the Company of the accused. In proof of this circumstance, the prosecution has relied on the evidence of PW.2, PW.5 and PW.7.
21. PW.2 Sumithra has deposed that she knows the accused. She is working in S.R.Products as Tailor. Every day, she used to go to work by walk at 9.00 a.m. About 6 years ago, the accused once met her in the afternoon and asked whether she was a teacher and he introduced himself as Ananda Poojary and also enquired about her caste. When PW.2 informed him that she is also Poojary by caste, he offered to marry her. PW.2 informed him that she is already married. Even thereafter, the accused continued to meet her and pestered her to marry him. She has specifically deposed in her evidence that on 17-6-2009 while as usual going for work at about 9.30 a.m., she saw the accused and the deceased standing in B.C.Road bus- stand. By the time she could talk with the deceased both of them got into a bus and proceeded further.
22. PW.5 Ishwar Shetty has deposed that he was working as repairer in Guruprasad Traders. He knows PW.1 as well as the deceased Anitha. On 17-6-2009 between 10.30 a.m. and 11.00 a.m, while going to the hotel to have tea, he saw the accused and the deceased both standing near STD Booth near B.C.Road bus-stand. After about 4 days he came to know about the missing of the deceased.
23. PW.7 M.Kantharaju has stated in his evidence that since 2004 he was working as cashier in Sanman Lodge, Hassan. He has narrated in detail the procedure followed in the lodge for checking-in and checking-out of the customers. According to PW.7 on 17-6-2009, at about 4.45 p.m., the accused came along with a woman asking for a room. The accused disclosed his name as Sudhakar Kulal. He wrote down his name, address and other required particulars in the Register in his own hand writing and paid an advance amount of Rs.500/-. The accused and the said lady occupied Room No.23. On the following day, at about 5.45 a.m., the accused and the deceased went out of the lodge. The lady was seen well dressed. After about 15 minutes the accused returned alone to the lodge and by 6.45 p.m., he vacated the Room on collecting Rs.350/- out of the advance paid by him. PW.7 has further deposed that while vacating the room, the accused took with him a kit bag and a plastic cover. On 25-10-2009, the accused once again came to his lodge along with the police and at the instance of the police he furnished the extract of the Register as per Ex.P-8 and the relevant copy of the Receipt Ex.P-10. He has further deposed that about 15 days thereafter he was called to Puttur police station and on seeing the photograph, he identified the woman shown therein as the lady who had come with the accused and stayed in Room No.23 on the date of the incident. He even identified the clothes of the deceased. Further, he has deposed that while checking-in, the deceased had come to the lodge in Chudidhar but while going out she was wearing a saree.
24. The trial court has believed the evidence of the above three witnesses and has held that the prosecution has proved the last seen circumstance with cogent and convincing evidence. The trial court was of the view that the evidence of the above witnesses is implicitly reliable and truthful and could be accepted in proof of the above circumstance.
25. The accused however, has strongly assailed the above finding contending that the testimony of PW.2 and PW.5 is contrary to each other. It is the submission of the accused that the complainant PW.1, has unequivocally stated in the complaint that the deceased left the house at about 10.00 a.m. PW.5 has stated that he saw the accused and the deceased in the bus-stand at about 10.30 a.m. whereas, PW.2 has deposed that she saw the accused and the deceased while on her way to the job. According to her, she goes to work at about 9.30 a.m. Therefore, it was impossible for her to see them at 9.30 a.m. as stated by her. These contradictions themselves are sufficient to hold that PW.2 is a false witness and her evidence could not have been relied on to support the theory of last seen circumstance. It is the contention of the accused, that if the evidence of PW.2 is eschewed from consideration, there is no other evidence to show that the deceased had accompanied the accused from B.C.Road; as a result, the charge of abduction under Section 366 of IPC as well as all other charges fall to ground. Further, the accused would contend that even the evidence of PW.7 in this regard is not worthy of credit. The trial court has failed to note that in the Mahazar said to have been signed by him at Ex.P-9 this witness has subscribed his signature in Kannada whereas in his deposition he has initialed in English which fact has been ignored by the trial court. It is the submission of the accused that some other person has been examined by the prosecution showing him as PW.7, therefore, no credence should have been given to the testimony of PW.7 and consequently, it should have been held that the prosecution has failed to prove the last seen circumstance connecting the accused to the crime in question.
26. We have considered the objection and have scrutinized the evidence of the above witnesses. In appreciating the evidence of PW 2, it is important to note that this witness has clearly narrated the circumstances in which she came to know the accused. She has unequivocally stated that the accused introduced himself as Ananda Poojary and even offered to marry her inspite of knowing that she was a married lady. This evidence has not at all been challenged in the cross-examination. The cross- examination is confined only with regard to the statement given by PW.2 under Section 164 of Cr.P.C., and an attempt has been made to highlight the discrepancies with regard to the time when PW.2 saw the accused and the deceased together. But, fortunately for the prosecution, in the cross- examination, the accused himself has elicited from the mouth of PW.2 that on the date of the incident, she was late for work and she saw the accused and the deceased together on that day at about 10.00 a.m. Thus, whatever ambiguity in this regard has been cleared in the cross- examination. Even otherwise this witness was examined in 2011, two years after the incident. Therefore, any minor variation in her evidence cannot be taken as a circumstance to doubt the credibility of this witness. In our assessment, the evidence of PW.2 is wholly reliable. This evidence establishes two facts. First, that the accused introduced himself as Ananda Poojary and second, he was seen with the deceased at about 10.00 a.m., and both of them boarded the bus at B.C.Road on the eve of the incident. The evidence of PW.2 does not suffer from any inconsistencies or contradictions as sought to be made out by the accused. Her evidence is in conformity with the averments made in the complaint Ex.P-1. Hence, we do not find any impediment to rely on the testimony of PW.2.
27. Coming to the evidence of PW.7, though the accused has sought to challenge his testimony on the ground of difference in the signature, yet, there is no denial of the fact that the signature found on the Mahazar - Ex.P-9 and the signature on the deposition sheet is not that of PW.7. There is no law that a witness cannot subscribe his signature in Vernacular and English language alike. Unless it is shown that the witness was not in the habit of subscribing his signature in Kannada as well as in English, it is not possible to hold that the deposition sheet was signed by someone other than the witness cited in the charge sheet as contended. Therefore, this plea is also liable to be rejected. In so far as the worth of the evidence of PW.7 is concerned, suffice it to note that the oral testimony of PW.7 is substantially corroborated by the unimpeachable documents produced by the prosecution. The fact that the accused had checked-in the lodge on the relevant date stands confirmed by the Registers maintained by PW.7 in the Lodge. The original Register is produced before the Court. We have perused it. It is seen to have been regularly maintained. Extract thereof is marked in evidence. PW.7 has categorically stated that the entries at Ex.P-8 were made by the accused in his own hand writing which fact has not been disputed by the accused. Even otherwise, Ex.P-8 is seen to have been sent for hand writing analysis. PW.42 has given his opinion that he compared the disputed writing and found them tallying with the specimen hand writing of the accused. This material coupled with the testimony of PW.7 makes it evident that on the previous day of the incident, the accused had checked-in Sanman Lodge and occupied Room No.23. The evidence of PW.7 that on the date of the incident, at about 6.45 a.m. the accused checked out of the Hotel and signed the Register is also established by the production of the Receipt which is marked as Ex.P-10 which again corroborates the testimony of PW.7 with regard to the arrival and departure of the accused from the said lodge.
28. It is significant to note that the testimony of PW.7 that he saw both the accused and the deceased immediately preceding the incident at about 5.45 a.m. has not been falsified in the cross-examination to any extent. As a matter of fact, there is no cross-examination whatsoever on this aspect. PW.7 undoubtedly is an independent and disinterested witness. It is not in dispute that he was a cashier in the said Lodge at the relevant time. His signature finds place both in the Register as well as in the cash receipt issued by him to the accused. Therefore, the presence of PW.7 in the Lodge cannot be doubted. His evidence establishes the fact that the accused and the deceased had checked-into the lodge on the previous evening. On the date of the incident, the accused and the deceased were seen together going out of the lodge at about 5.45 a.m. The evidence of PW.7 conclusively establishes that the accused returned alone at 6.00 a.m. The dead body was traced at about 8.00 a.m. Having regard to the time gap between the deceased last seen with the accused and the tracing of the dead body of the deceased, in the absence of any cogent and convincing explanation by the accused as to the cause of her death, the last seen theory would establish another important link in the chain of circumstances pointing out the nexus between the accused and the crime in question.
29. In appreciating the evidence of PW.7 and the last seen theory propounded by the prosecution, it is also relevant to note that the distance from the lodge and the KSRTC bus stand was hardly 100 ft. The case of the prosecution is that the accused gave cyanide to the deceased and asked her to consume it in the toilet, pass urine and within 5 minutes to take tea in the bus stand. Apparently for this reason, the accused took the deceased to the KSRTC bus stand. The sequence of events discussed above clearly indicate that knowing fully well that cyanide would lead to instant death within 3 to 5 minutes the accused returned to the lodge, by the time she could come out of the toilet. All these circumstances, in our view, lend assurance to the case of the prosecution that the accused was instrumental in causing the death of the deceased by administering cyanide.
30. The next circumstance relied on by the prosecution is the extra judicial confession. In order to prove this circumstance, the prosecution has relied on the evidence of PW.3. PW.3, Sri Ishwar Bhat was an Archak of Sri Annapoorneshwari Temple at B.C.Road. According to this witness, on the following day of the incident at about 10.00 a.m., the accused came to the temple and asked him to suggest a remedy for expiation of the murder committed by him (“Stree Hatya Dosha Parihara”). He further deposed that the accused confessed before him that he had taken a lady by name Anitha to Hassan, had sexual intercourse with her and thereafter committed her murder by poisoning her. PW.3 deposed that he told the accused that there was no expiation for such crimes but asked him to perform Kumkuma Archane. According to PW.3, few days thereafter he came to know through newspapers that the accused was involved in various instances of rape and murder of women by administering poison. On reading this news, he approached the Investigating Officer and narrated the confession made to him by the accused. This witness further deposed that in respect of the above, he has also given his statement before the Magistrate under Section 164 Cr.P.C. and the same has been marked in evidence as Ex.P-6.
31. The evidence of PW.3 is assailed by the accused contending that PW.3 is a got up witness. He has admitted in the cross-examination that the temple was situated behind the Bantwal police station and it was called as Police Line Temple. Because of his acquaintance with the police, he has obliged the police. He is an interested witness and no reliance could be placed on his evidence. Further he would contend that only after the arrest of the accused, the alleged confession has come to the fore, therefore, his testimony does not merit any credence.
32. We do not find any merit in the contention raised by the accused. As already stated above, a reading of the evidence of PW.3 would indicate that he was a respectable person of the locality. That he was an Archak of the said Temple at the relevant point of time has not been disputed. On the other hand, the accused himself has suggested that one Raghavendra Bhat, was the Archak of the said Temple. This suggestion indicates that the accused was acquainted with the affairs of the said Temple. Even otherwise the nature of the disclosure made to PW.3 would indicate that such confession could have been made only to an Archak and not to any other person.
33. In this context, it may be useful to refer to the principles enunciated by the Hon’ble Supreme Court in the matter of appreciating the evidence regarding confession. In the case of SAHADEVAN & ANOTHER vs. STATE OF TAMIL NADU reported in (2012) 6 SCC 403 at para -16, the Hon’ble Supreme Court has stated thus:-.
“16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
[[[ (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.”
34. In the light of the above proposition, if the evidence of PW.3 is analysed, it could be seen that PW.3 is a totally disinterested witness. No circumstances are brought out in his evidence to suggest that he had an axe to grind against the accused. The tenor of the cross examination indicates that the accused was a regular visitor to the said Temple. We do not find anything in his evidence which renders the testimony of PW.3 unreliable or unbelievable. Having regard to his position in the society and the nature of the disclosure made to him, in our opinion, the statement of PW.3 is inherently truthful and deserves credence in proof of the circumstances of the extra judicial confession relied on by the prosecution. This evidence becomes relevant in determining the conduct of the accused before and after the commission of the offence.
35. The other important circumstance relied on by the prosecution to prove the guilt of the accused for the above offences are the various recoveries. According to PW.43, the Investigating Officer, on arresting the accused, he recorded his voluntary statement and pursuant thereto recovered incriminating materials at the instance of the accused. The accused has seriously disputed the recoveries and the voluntary statements attributed to him contending that he was arrested much earlier to 19-10-2009, but the prosecution has built up false records showing that the arrest was made on 21-10-2009. The accused would submit that he was illegally kept in Police custody and was subjected to third degree torture. His signatures were taken on blank sheets which have been made use of by the prosecution to create the alleged voluntary statements. Therefore, none of these voluntary statements could be accepted in support of the recoveries, as the same have been extracted under torture and duress.
36. We have considered this argument and we do not find any substance therein. The theory that the accused was subjected to torture and his signatures were obtained under duress on blank papers has been canvassed for the first time before the appellate Court. We have perused the records of the lower Court. It is seen that soon after the arrest, the accused was produced before the Magistrate. There is nothing on record to show that the accused complained of any ill-treatment or torture by the police before the Magistrate. Accused is not a rustic who is unaware of his legal rights or the legal procedures. We have seen the accused conducting the appeal in person. He seems to be well conversant in legal and procedural matters. Having regard to his background, if in fact the accused was subjected to any torture as now sought to be contended, the accused would have been the first person to take legal recourse against any violation of his legal rights. Therefore, we are not inclined to accept the submission of the accused that the voluntary statements relied on by the prosecution have come into existence under duress and force as sought to be made out.
37. On scrutiny of the records, we find that on the basis of the voluntary statements of the accused various recoveries have been effected. The panch witnesses examined by the prosecution have not only deposed about the recoveries but have also stated about the voluntary disclosure made by the accused agreeing to show the place of the commission of the offence as well as the place where the incriminating articles and the objects were kept by him.
38. It is borne on record that soon after his arrest, the accused was subjected to personal search. This fact has been established by examining PW.9. This witness has deposed in conformity with the case of the prosecution and has identified his signature on the seizure Mahazar Ex.P-11 and has identified the Material Objects seized from the possession of the accused which are marked as MOs. 8 to 14. One of the important recoveries made from the possession of the accused is MO.13 namely, the plastic bottle containing cyanide powder. Except general denial, no circumstances have been brought out in the cross- examination of this witness to disbelieve his evidence as to his participation in the seizure Mahazar - Ex.P-11 and the identification of the articles seized from the possession of the accused. Likewise, PW.14 the panch witness to the recovery Mahazar Ex.P-18, has also stood by the case of the prosecution and has stated that in his presence the accused took them to the house of his second wife at Deralakatte on 22-10-2009 and produced a plastic bag containing 10 cyanide billets, fake rubber stamps and various other identity cards. He has identified all these articles. This evidence also has not been falsified in the cross- examination. That apart, it is proved in evidence that all the articles seized under this Mahazar were immediately forwarded for chemical examination which fact also corroborates the recovery and lends suitable credence to the testimony of PW.14, that incriminating articles, namely, cyanide billets, fake rubber stamps and the various Identity cards were seized from the house of the second wife of the accused.
39. The accused has sought to dispute the recoveries contending that the gold ornaments belonging to his second wife are incorporated in evidence making it to appear to have been seized at the instance of the accused. This argument has no legs to stand. Accused has not produced any material to show that the gold ornaments recovered at the instance of the accused belonged to his second wife. Until the conclusion of the trial, the so called second wife of the accused has not come forward either to claim the properties or to seek release thereof. He has not chosen to examine her in support of his contention that the gold ornaments belonging to her have been seized and produced before the Court. Therefore merely on the basis of the plea set up by the accused the recovery evidence produced by the prosecution cannot be discarded.
40. In addition to the above recoveries, the prosecution has pressed into service another important piece of evidence to directly connect the accused to the offence in question. The prosecution has examined PW.12 the Manager of Muthoot Finance. This witness has unequivocally stated that the accused had come to his shop on 3 or 4 occasions and had pledged various gold articles in his shop. With regard to the articles involved in this case, PW.12 has unequivocally stated that on 19-8-2009 the accused pledged MO.1 gold chain with him and at that time he gave his name as Mohan Kumar. This witness has not only produced the gold ornaments pledged by the accused under the Mahazar Ex.P15 but also produced the copy of the Register ExP14, copy of the declaration Ex.P19 containing the signatures of the accused. The accused has not disputed either his signatures or the factum of the pledge spoken to by PW.12. As such the evidence of PW.12 conclusively establishes that the accused had pledged the chain, MO.1 with PW.12. The prosecution has examined PW.1 the brother of the deceased who has identified MO.1 as belonging to the deceased. There is absolutely no explanation by the accused as to how he came in possession of the gold chain belonging to the deceased. This evidence completely falsifies the plea set up by the accused though belatedly, that the gold ornaments belonging to his second wife were seized by the prosecution. The above evidence, directly implicates the accused to the incident of robbery and murder having taken place at the same time.
41. Further, the prosecution has examined PW.20, another receiver of the gold ornaments. This witness has deposed that on 20-6-2009 the accused pledged MOs 2 to 5 with him. He has produced corroborating documents namely, the copy of the Register containing the signature of the accused as per Ex.P.24 in proof of the pledge. This transaction is also not disputed by the accused. These ornaments are also proved to have been belonging to the deceased. Thus the prosecution has produced clinching evidence to show that the accused committed the murder of the deceased and robbed her gold ornaments and pledged them with the receivers and the same were recovered at his instance thereby establishing another crucial link in the chain of circumstances connecting the accused to the offences charged against her.
42. Another factor which needs to be mentioned is that pursuant to the voluntary statement of the accused, the Investigating Officer as well as the panch witnesses, recovered 10 cyanide billets from the shop of PW.48 Sri Mohammed. No doubt, this witness has turned hostile to the prosecution case and even in the cross-examination, he has maintained that he did not sell any cyanide billets MOs 15 to 19 to the accused. The learned Additional State Public Prosecutor however has pointed out that PW.48 was dealing with Cyanide without any license and hence a criminal case was registered against him under the provisions of the Poison Act and therefore PW.48 has failed to support the prosecution to save his skin. The fact that a criminal case has been registered against PW.48 has been admitted by him in the cross-examination by the Public Prosecutor. Therefore, as rightly submitted by the learned Additional State Public Prosecutor there was a reason for him to turn hostile to the prosecution case. Nonetheless from the evidence of PW.10 who participated in the recovery of these MOs.15 to 19, it stands proved that pursuant to the voluntary statement of the accused, he led the Investigating team and PW.10 to the shop of PW.48.
But for the disclosure made by the accused, there was no occasion for the Investigating Officer to go to the shop of PW.48 and seize the contraband from the shop of PW.48. Merely because, PW.48 did not possess license to vend Cyanide billets the testimony of PW.10 and the evidence of the Investigating Officer with regard to the recovery does not lose its efficacy. From the above evidence, it stands established that MOs 15 to 19 were recovered at the instance of the accused pursuant to his voluntary statements. These MOs. are seen to have been examined by PW.46 which again lends corroboration to the case of the prosecution, that during investigation these articles were seized and they were subjected to chemical examination. All these materials therefore conclusively establish the fact that cyanide billets as well as the other incriminating materials, as discussed above were recovered at the instance of the accused.
43. Though the prosecution has not produced satisfactory evidence in proof of the ingredients of rape attracting the offence under section 376 Indian Penal Code, yet by examining PW-2 and PW-6, the prosecution has thrown light on the modus-operandi adopted by the accused in carrying out his sinister designs. PW-6 Shanti has deposed before the court that in the year 2009, in January, while she was on her way to S.R. Jewellers, she met the accused. The accused introduced himself as Sudhakara Achary and enquired her about the place of her work. He took her mobile number and thereafter he was in touch with her over phone. This witness has deposed that on 12.04.2009, the accused called to her mobile and asked her to come to Madikeri for an interview in a garment factory. Believing the accused, on 13.4.2009, at about 2.30 p.m., she came to B.C. Road bus stand as instructed by the accused. She has further narrated that the accused instructed her to come to the bus stand wearing gold ornaments and good dress. Accordingly, she left the house informing her parents that she would be going to her friend’s house. The accused took her in a bus to Madikeri and on the way, he asked her to wear a rolled gold chain brought by him. In the night, he took the gold ornaments worn by her. This witness has further deposed that even while check-in in the lodge, the accused furnished his name and address as Sudhakar Achary, S/o. Ramaiah Achary, Kajimane, Nala Post, Karkala Taluk, Udupi District. The accused wrote down the mobile number of PW-6 in the register. In the night after food, inspite of her objections, the accused committed forcible intercourse on her wearing nirod. Next day morning, he asked her to get ready for the interview and specifically instructed her not to wear any gold ornaments. Thereafter, on the pretext of taking her to the interview, he took her to the KSRTC bus stand at Madikeri. It was about 7.30 a.m. The accused handed over a small bottle which contained some powder and gave her a bottle of water and asked her to go to the toilet and take the said powder alongwith water and to return after passing urine. The accused convinced her that the said medicine had to be taken to stop pregnancy. PW-6 deposed that when she told him that there was no such necessity as he was wearing nirod, the accused told her that during the incident, the said nirod had torn. PW-6 further deposed that she went to toilet and tasted a bit of the powder and immediately, she felt burning sensation and collapsed on the floor. She lost her consciousness and when she regained it, she found herself in the hospital. She specifically deposed in her evidence that she did not narrate this incident to the police as it would hamper her family reputation. However, after the incident in question was published in the newspaper, she was emboldened to narrate the events that had taken place with her, to the police.
44. The accused has challenged the version of PW-6 contending that she is a false witness got up by the police to bolster up the theory of modus operandi projected by the prosecution. But in appreciating the evidence of this witness, it is relevant to be note that in order to corroborate her oral testimony, the prosecution has examined PW-40 the Medical Officer of Government Hospital, Madikeri who has produced the relevant documents in proof of the fact that on 14.04.2009, PW-6 was brought to the hospital in unconscious condition and she was treated in the said hospital. The fact that the accused and PW-6 Shanti had stayed together in Vinayaka Lodge is proved by examining the receptionist- PW-16. The lodge register Ex.P.21 containing the handwriting of the accused and his signature are also produced in support of the above fact. Therefore, merely on the ground that there was delay in informing this matter to the police or that the witness did not resort to any legal action against the accused cannot be a ground to discard or disbelieve her testimony, especially when PW-6 has deposed against her own character and self-esteem. There was no reason for her to depose against the accused, if infact the incident had not taken place as deposed by her. Therefore, her evidence cannot be brushed aside lightly. Her evidence, in our opinion becomes relevant under Section 7 of The Indian Evidence Act, 1872, as suggestive of the conduct of the accused lending a degree of probability and corroboration to the facts in issue. Her evidence is relevant in proof of the motive and the conduct of the accused. Evidence of similar facts or the crimes committed by the accused may not be relevant in proof of the murder in the instant case, but the said evidence would undoubtedly becomes relevant to prove the motive and the modus operandi in the fact situation of the present case.
45. The documents seized from the possession of the accused viz., the visiting cards printed in various names by which the accused was impersonating himself go to show that using fictitious names, the accused was found enticing gullible womenfolk and unmarried girls with the false promises of securing job or getting married with them and later administering deadly poison and robbing their valuables. Concealing his identity and disguising himself by different names as evidenced in the various identity cards printed with his photographs and the fake letter heads is a clear proof of guilty intention and the motive.
46. Prosecution has examined PW-4 another victim at the hands of the accused who has also narrated the modus operandi adopted by the accused in luring innocent girls and later committing their murder by administering cyanide. According to PW.4 Ratna, she was working as Aaya in City Hospital, Mangalore. The accused met her and asked about her caste. When she told him that she belongs to Kulala community, the accused told her that he also belongs to the same caste and told her that his name is Sundar. He promised to marry her and asked her to come to Dharmastala. Believing the accused, on 27.08.2000, she accompanied the accused to Dharmasthala. But instead of taking her to Dharmasthala temple, she was made to sit on a bridge and was pushed into the water. She raised hue and cry. On hearing her shouts, some local people saved her and thereafter both of them were taken to Dharmasthala police station. She lodged the complaint against the accused. Though the prosecution has not produced any supporting material to show that the complaint as stated by PW-4 was lodged against the accused, yet the testimony of this witness regarding the incident has not been challenged in the cross-examination. Undisputedly, PW-4 and PW-6 are totally disinterested witnesses. But for the previous acquaintance with the accused, they had no reason to concoct a false story and depose against the accused. The incidents narrated by them are in conformity with the overall allegations made by the prosecution, thereby establishing the motive and the modus operandi adopted by the accused in committing similar offences. This evidence, as already stated above, proves the motive and the conduct of the accused.
47. It is now well settled that in a case based of circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. There should be no gap left in the chain of circumstances. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the instant case, the circumstances proved by the prosecution, in our opinion, form a complete chain unerringly pointing out the guilt of the accused for the murder of the deceased. It is established beyond pale of doubt that the accused took the deceased with him to the lodge on the date of the incident and stayed with her in the night and in the wee hours of 18.06.2009, he took her to KSRTC bus stand and returned alone leaving her to die in the toilet. The circumstance of the deceased last seen with the accused, as already stated above, in the absence of any explanation by the accused for her unnatural death would lead to an inevitable conclusion that the deceased was put to death by the accused. It is further proved that the deceased died due to consumption of cyanide. The manner in which the poison was administered to the deceased and the place and the time of the incident and the sudden disappearance of the accused from the lodge are suggestive of the fact that the accused administered the deadly poison to the deceased and thereafter, made good his escape by checking out from the lodge.
48. The fact that the accused was found in possession of cyanide powder and cyanide billets and that he had stored substantial quantity of cyanide in the house of his second wife has been proved with cogent and convincing evidence. The accused was also found in possession of cyanide at the time of his arrest. The possession of poison and the evidence relating to the procurement of poison establishes another significant step in proof of the commission of the offences. If this evidence is considered in the context of the cyanide being found in the stomach of the deceased, it leads to the inference that he caused the death by administering cyanide to the deceased. The circumstances discussed above would clearly indicate that until her death, the deceased was not found in the company of any person other than the accused. Therefore, the possibility of any other person administering poison to the deceased gets ruled out. The recovery of the gold ornaments at the instance of the accused establishes the fact that the murder was committed by him for gain.
49. In a case of murder by poisoning, the prosecution must establish:
i) that the death was caused by poisoning;
ii) that the accused had poison in his possession;
iii) that the accused had the opportunity to administer poison; and iv) a strong motive.
50. In our view, the prosecution has established all these circumstances with proof beyond any manner of doubt, thereby rendering the accused liable for conviction for the offence under sections 302 and 201 of Indian Penal Code. The trial court therefore was justified in convicting the accused for the said offence. We do not find any error or infirmity whatsoever in the finding recorded by the trial court on this charge. Even on reconsideration of the material on record, we do not find any reason to differ with the view taken by the trial court. As a result, the conviction of the accused for the offences under Sections 302 and 201 Indian Penal Code is hereby confirmed.
51. Further, the prosecution has successfully proved that the accused committed the above murder with intent to rob the gold ornaments and the valuables of the deceased. It is proved in evidence that on committing the murder of the deceased, the accused carried away her gold ornaments and pledged them with PW.12 and PW.20 to make monetary gain, thereby establishing the ingredients of offence under section 394 Indian Penal Code. As a result, the conviction of the accused in respect of this charge also requires to be upheld. Accordingly, the conviction of the accused for the offence under section 394 Indian Penal Code is hereby confirmed. In view of the conviction of the accused under section 394 Indian Penal Code, we are of the view that the charge under section 392 Indian Penal Code being superfluous and redundant, the accused is liable to be acquitted of the said charge.
52. The circumstances proved by the prosecution also make out the guilt of the accused for the offence under section 328 Indian Penal Code. We have already recorded a finding that the accused was in possession of cyanide. It is proved in evidence that cyanide was used for the murder of his deceased. As a result, we hold that the prosecution has established the ingredients of the offence under section 328 Indian Penal Code. Consequently the conviction of the accused for this charge is confirmed.
53. It is seen from the records that the prosecution has produced reliable and acceptable evidence to show that with dishonest and fraudulent intention of deceiving gullible women and unmarried girls, the accused made false documents forging the signatures of BEO, and other Government officer as discussed by the Trial Court in Para 118 of the impugned judgment and disguised himself in various names as figured in the different visiting cards seized from his possession thereby attracting the offences under sections 465, 468 and 417 of Indian Penal Code. The act of the accused in concealing his identity and disguising his person renders him guilty of the offences under section 465 and 468 Indian Penal Code. Therefore, the conviction of the accused for the above offences deserves to be maintained. Likewise it is proved beyond reasonable doubt that the accused was in possession of counterfeit seals of Education department and other Government offices. By examining PW-33, PW-34 and PW-35, the prosecution has established that the said seals were fake. In the absence of any explanation for possession thereof, in our opinion, the prosecution has also established the ingredients of offence under section 473 Indian Penal Code. Consequently, we hold that the accused is liable to be convicted for the offences punishable under sections 302, 328, 394, 417, 465, 468 and 473 Indian Penal Code.
54. However, considering the material on record, we are of the view that the prosecution has failed to prove the guilt of the accused for the offences under sections 376 and 366 Indian Penal Code. We do not find any reliable evidence in proof of these charges. The medical evidence is silent with regard to the sexual assault on the deceased. PW-26 has admitted in his evidence that he did not examine the private parts of the deceased. He has not furnished any opinion leading to an inference that the deceased was subjected to sexual intercourse prior to the murder. The medical evidence therefore does not help the prosecution to substantiate the charge under section 376 Indian Penal Code. Though the circumstances in which the deceased was made to consume poison on the belief that it was a medicine to stop pregnancy, would create a strong suspicion that sexual intercourse was committed preceding the admission of the poison yet, in the absence of any evidence in proof of rape or forcible sexual assault on the deceased, this charge is bound to fall.
55. Likewise, the evidence produced by the prosecution does not make out the offence under section 366 Indian Penal Code. Though, there is material to show that the accused took the deceased with him on the pretext of marrying her, there is absolutely no evidence to show that the accused took the deceased with intent to compel her for marriage or to have sexual intercourse. As already stated above, the factum of sexual intercourse has not been proved. Even though Section 366 Indian Penal Code has been invoked, the material on record suggests that it is a case of murder for gain. Therefore, having regard to the evidence produced before the court, we are of the view that the ingredients of Section 366 Indian Penal Code are not attracted to the facts of the case. As a result, the charge under section 366 Indian Penal Code is also liable to be rejected.
56. Thus having ruled on the criminal culpability of the accused, the question now remains to be considered is with regard to the quantum of punishment.
57. We have heard the accused and the learned Addl. SPP on the question of sentence.
58. The accused pleads for setting aside the death sentence and submits that he has to look after his wife and children and on this ground pleads for leniency.
59. The learned SPP however has sought for confirmation of the death sentence. He submits that the accused has conducted himself in a most despicable and deprived manner. He is a potential threat to the society at large and womenfolk in particular. The charges proved against him would indicate that with an intent to commit robbery, the accused lured an innocent girl on the false promise of marrying her and took her to a lodge and administered cyanide and killed her. The manner in which the accused has executed the sinister design itself indicates that he is a hardcore criminal. The facts proved by the prosecution indicate that the accused was a school teacher. He remained unauthorisedly absent from his duty only to pursue his criminal activities. The records speak that he has been charged in as many as 20 cases on similar offences which indicate that the accused has been adopting a common modus operandi in committing all such offences. The learned Addl. SPP further points out the timing and the place of commission of the offence is also a factor to be taken into consideration while determining the sentence in the case on hand. He submits that in all the cases including the case on hand, the accused chose to take the victims in the wee hours, whereby he could escape undetected after commission of the offence. The nature of the substance used for causing death also indicates the depravity and the meanness of the accused and therefore he is not entitled to seek any clemency or leniency. He submits that the trial court has taken into account all these facts and circumstances and has awarded appropriate and just punishment, which does not call for reduction or interference by this Court.
60. We have considered the submissions. We find from the impugned order that the trial court has weighed the aggravating and mitigating circumstances and having held that the aggravating circumstances far outweigh the mitigating circumstance has chosen to impose the extreme penalty provided under section 302 Indian Penal Code. The aggravating circumstances recorded by the trial court are as follows:-
1. Offences proved against the accused in S.C.No.96 of 2010, are Sections 376,328,302,392,201,366,394,417,46 5, 468,473 of I.P.C.
2. Offences proved against the accused in S.C.No.97 of 2010, are Sections 366, 376,328,392,394,417,302,201 of I.P.C.
3. Offences proved against the accused in S.C.No.32 of 2010, are Sections 366,376,328,392,394,417,302,201 of I.P.C.
4. The accused was a Public servant.
5. The accused has been found guilty of three murders of young, unmarried and innocent woman.
6. There was no previous enmity between the parties nor was there grave or sudden provocation which had compelled the accused to take the life of the innocent woman.
7. The murder of three women on different occasion makes this case of extreme culpability.
8. The manner in which the deceased was murdered, the approach and method adopted by the accused disclose the traits of outrageous criminality in the behaviour of the accused and the premeditated action. This approach of the accused reveals a brutal mind set of highest order.
9. The accused has been charge sheeted for the same offences in twenty cases. At present, in three cases the accused has been found guilty and in other seventeen cases, he is facing trial for the similar offences.
10. In three cases it is proved that the accused is successful in his planning, preparation and commission of crime.
11. The accused being an educated, while serving as a Government School Teacher, without showing devotion to duty and remaining absent often and often for considerable period, hatched a plan, chosen the wrong way and cheated, abducted, raped, brutally murdered innocent, unmarried deceased and robbed her golden ornaments for gain and planned for the same act again and again against other victim woman.
12. The accused designed in such a way for the commission of crime which was beyond the imagination of ordinary prudent man.
13. The crime committed by the accused is so brutal that it pricks or shocks not only the judicial conscience but even the conscience of the society.
61. From the above, it can be gathered that the trial court has treated the case as ‘rarest of rare case’, primarily for the reason that all the charges leveled against the accused including the charge of rape and abduction have been proved against the accused and the magnitude of the offence has been amplified on account of three convictions suffered by the accused for similar charges.
62. But as we have come to the conclusion that the prosecution has failed to prove the charge of rape and abduction and his conviction has been confirmed only for the offences punishable under sections 302, 201, 328, 394, 417, 465, 468, 473 Indian Penal Code, though it cannot be denied that the charges proved against the accused are equally serious and abhorrent, but the magnitude of the culpability having been reduced, on account of his acquittal under section 376 and 366 of Indian Penal Code, in our opinion, the sentence also requires to be proportionately reduced commensurate with the offences proved against the accused. In that view of the matter, we are of the considered opinion that the death sentence awarded by the trial court against the accused calls for interference.
63. Nonetheless the case before us cannot be treated as run-of-the-mill case like any other ordinary case. What sets this case apart from any other ordinary crime is that the accused is proved to be a hardened criminal and a serial killer. The learned Addl. SPP has furnished a memo alongwith the list of 20 cases filed against him on similar charges. He has already suffered conviction in three cases and has been awarded death penalty. Apart from the incident in question, two other victims have deposed before the court and have narrated the modus operandi adopted by the accused in commission of these offences.
64. In determining the quantum of sentence, the court is required to bear in mind the crime and the criminal. As held by the Hon’ble Supreme Court in STATE VS. NALINI & Others, (1999) 5 SCC 253:
“… the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenseless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”
65. Similar view is expressed by the Hon’ble Supreme Court in a recent decision in RAJ BALA VS. STATE OF HARYANA & OTHERS (2016) 1 SCC 463, wherein the Hon’ble Supreme Court has observed that, “One cannot remain a total alien to the demand of the socio- cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the ‘finest part of fortitude’ is destroyed.”
66. The plea of the accused that he has to look after his wife and children and therefore, leniency be shown to him cannot be accepted. According to his own submission, he has divorced his first wife. Being a Government servant, he claims to have two wives. Inspite of being a married person, he has been enticing unmarried women on the guise of marrying them. There is no evidence to show that he has been looking after either his wife or his children. Therefore, we are of the view that the said plea cannot be a ground to show any sympathy to the accused.
67. On consideration of the overall facts and circumstances of the case, we are of the view that the facts of this case bear eloquent testimony to the moral depravity of the accused. His repeated involvement in similar offences indicates that he is a hardened criminal. He has no qualm of conscience, no remorse, no compunction, no heart or emotions. Two of the victims who survived his attempts have confronted him in the dock, but he has shamelessly faced them, but could not disprove the venality spewed on him. He is not a first offender but proved to be a maniac and serial killer. Having regard to his previous conduct, we are of the considered view that it is the society which needs protection from the accused. The material produced before the court indicates that he is involved in more than 20 cases during the span of six years between 2004 and 2010. In all these cases, the common allegation is that the accused has been administering cyanide to the victims and thereafter robbed valuables from their possession, pledged or sold them to make gain. The seizure of large quantity of cyanide powder, fake seals and visiting cards speak for the criminal mind of the accused which is also discussed in the preceding part of the judgment. All these circumstances, in our opinion, make the instant case different from any other run of the mill case warranting severe punishment than simple imprisonment. Therefore, we are of the view that the instant case calls for a specific term of incarceration alternative to death penalty. In UNION OF INDIA vs. SRIHARAN @ MURUGAN & OTHERS, (2016) 7 SCC 1, the Hon’ble Supreme Court has held that it is permissible for the High Court to impose a modified punishment providing for any specific term of incarceration or till the end of convict’s life as an alternative to death penalty. Even in the case of SWAMY SHRADDANADA @ MURALI MANOHAR MISHRA vs. STATE OF KARNATAKA, (2008) 13 SCC 767, the Hon’ble Supreme Court having regard to the facts and circumstances proved therein found it appropriate to award sentence till end of life of the convict by interpreting the meaning of life sentence awarded under section 302 Indian Penal Code. Hence, taking into consideration all the above facts and circumstances of the case, we find it just and appropriate to sentence the accused for imprisonment for life with a direction that he shall not be released from prison till the end of his life.
Accordingly, the Crl.A.No.178 of 2015 filed by the accused is allowed in part. The appellant/accused is acquitted of the charges under sections 366, 376 and 392 of Indian Penal Code. The conviction of the accused for the offences under sections 302, 328, 394, 417, 465, 468, 473 and 201 Indian Penal Code is confirmed.
The impugned order of sentence is modified. The accused is sentenced to imprisonment for life till the end of his life without any remission.
Criminal reference case No.5 of 2014 is disposed off terms of the above order.
SD/- SD/-
JUDGE JUDGE *bgn/RSK/mn/-