IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 24th 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.4 OF 2014 C/W CRIMINAL APPEAL.No.179 of 2015 IN CRIMINAL REFERRED CASE NO.4 OF 2014 BETWEEN:
THE REGISTRAR GENERAL HIGH COURT OF KARNATAKA BENGALURU-560001. ... PETITIONER (By SRI: VIJAYAKUMAR S. MAJAGE, ADDITIONAL SPECIAL PUBLIC PROSECUTOR) AND:
MOHAN KUMAR @ SUDHAKAR K @ SHASHIDHAR POOJARY AGED 52 YEARS S/O LATE MAILAPPA MUGERA R/O BEHIND KANYANA JUNIOR COLLEGE, KANYANA VILLAGE, BANTWAL TALUK DAKSHINA KANNADA DISTRICT ... RESPONDENT (By Sri: MOHAN KUMAR – CONVICT IN PERSON) THIS CRIMINAL REFERRED CASE IS REGISTERED AS REQUIRED U/S.366(1) CR.P.C. FOR CONFIRMATION OF DEATH SENTENCE AWARDED TO MOHAN KUMAR @ SUDHAKAR K @ SHASHIDHAR POOJARY, AGED 47 YEARS, S/O. LATE: MAILAPPA MUGERA, R/O: BEHIND KANYANA JUNIOR COLLEGE, KANYANA VILLAGE, BANTWAL TALUK, DAKSHINA KANNADA DISTRICT, BY THE JUDGEMENT AND ORDER 17/21.12.2013 PASSED IN S.C.NO.97 OF 2010 ON THE FILE OF THE IV-ADDITIONAL SESSIONS JUDGE, DAKSHINA KANNADA MANGALURU, FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
***** IN CRIMINAL APPEAL NO.179 OF 2015 BETWEEN:
SRI MOHAN KUMAR @ SHASHIDHAR POOJARY @ SUDHAKAR K.
AGED 52 YEARS S/O LATE MAILAPPA MUGERA R/AT BEHIND KANYANA JUNIOR COLLEGE, KANYANA VILLAGE, BANTWALTALUK DAKSHINA KANNADA, DISTRICT-574153 ... APPELLANT (By Sri: MOHAN KUMAR – CONVICT-IN-PERSON) AND:
1. STATE OF KARNATAKA BY THE DEPUTY SUPERINTENDENT OF POLICE, (B&B) SQUAD, C.O.D. BENGALURU REP BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, BENGALURU-01 ... RESPONDENT (By SRI: VIJAYAKUMAR S. MAJAGE, ADDITIONAL SPECIAL PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL FILED U/S 374(2) CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED:17.12.13, PASSED BY THE IV ADDITIONAL DISTRICT & SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU, IN S.C.NO.97 OF 2010- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 366,376,328,392,394,417,302,201 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 5 YEARS AND TO PAY A FINE OF RS.5000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR 1 YEAR FOR THE OFFENCES PUNISHABLE UNDER SECTION 366 OF IPC. FURTHER, APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 8 YEARS AND TO PAY A FINE OF RS.5000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR 1 YEAR FOR THE OFFENCES PUNISHABLE UNDER SECTION 376 OF IPC. FUTHER,THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO DEATH PENALTY, BY HANGING HIM TILL HIS DEATH AND FINE OF RS.5000/- AND 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 A FINE OF RS.5000/- IN DEFAULT OF PAYMENT OF FINE TO 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 A FINE OF RS.10,000/- IN DEFAULT OF PAYMENT OF FINE TO 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 A FINE OF RS.1000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR 6 MONTHS, FOR THE OFFENCES PUNISHABLE UNDER SECTION 328 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 6 MONTHS FOR THE OFFENCES PUNISHABLE UNDER SECTION 417 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR 3 YEARS AND TO PAY A FINE OF RS.3000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR 6 MONTHS, FOR THE OFFENCES 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. AND THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
* * * * THIS CRIMINAL REFERRED CASE AND CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, JOHN MICHAEL CUNHA. J., DELIVERED THE FOLLOWING:
JUDGMENT This criminal reference and the criminal appeal are arising out of the judgment dated 17.12.2013 passed by the IV Addl. District & Sessions Judge, Dakshina Kannada, Mangaluru, whereunder the appellant(hereinafter referred to as ‘accused’) is convicted for the offences punishable under sections 366, 376, 328, 392, 394, 417, 302 & 201 Indian Penal Code. He is sentenced to death for the offence punishable under section 302 Indian Penal Code and for the remaining offences, he is sentenced to various terms of imprisonment and fine.
2. The case of the prosecution as unfolded during trial is that the deceased Leela, aged about 32 years was a resident of Allepade, Doppada Palke, Raghavendra Nilaya, Kodambettu village, Belthangady Taluk, Dakshina Kannada. She was unmarried. She was working in a self-employment swasahaya group. She was active in various social organizations. The accused developed intimacy with the deceased and gradually induced her to marry him and to follow him. Believing the accused, she decided to go with him. As per their preplan, on 09.09.2005, the accused took the deceased with him from B.C. Road to Mysuru. Both of them stayed in MTR Deluxe Lodge at Mysuru. In the night, the accused committed forcible intercourse on the deceased. The accused insisted her to take pregnancy preventive medicine to prevent pregnancy and convinced her that immediately after taking the said medicine, she was required to pass urine and drink tea within five minutes so as to avoid any side effects. Accordingly, on 10.09.2005, in the early morning, he took the deceased to the KSRTC bus stand at Mysuru and gave cyanide poison to the deceased. At about 6.00 a.m., the deceased consumed the said poison and was found on a bench struggling with breathlessness. PW-16, a Sweeper in the K.S.R.T.C bus stand having noticed the condition of the deceased poured some water into her mouth. By then, the deceased breathed her last.
3. The Assistant Traffic Inspector, Stand in-charge, Mysuru Bus stand, KSRTC, reported the matter to Lashkar Police Station, Mysuru. As the body was unidentified, an unnatural death case was registered in UDR No.27 of 2015. PW-18-PSI of Lashkar Police Station conducted the inquest over the dead-body as per Ex-P3 and seized the articles found on the dead-body (M.Os 5 to 8). He arranged to take the photographs of the dead-body. The post-mortem was conducted on 14.9.2005. On opening the stomach, the Medical Officer having smelled some foul smell, collected the viscera and the blood and forwarded the same for forensic analysis. On obtaining the FSL report, he certified that the death was due to consumption of a substance containing Organo phosphorus insecticide.
4. In the mean-while, the father of the deceased, PW-
2 lodged a missing person complaint before Venoor Police Station on 28.09.2005. Based on the said complaint, PW- 22-Circle Inspector registered Cr.No.80 of 2005. However, on 29.11.2006, he submitted a ‘C’ report as the culprits could not be traced till then.
5. More than four years after the incident, the accused herein came to be arrested in connection with Cr.No.111 of 2009 registered by Bantwal Rural Police Station. On the basis of the voluntary statement of the accused, the Investigating Officer having come to know the involvement of the accused in large number of cases including the murder of the deceased in the instant case, an information was given to Venoor Police Station. PW-24- PSI of Venoor Police Station, collected the copy of the voluntary statement recorded in Cr.No.111 of 2009. PW-23- CPI of Belthangady Circle obtained the police custody of the accused. The recoveries effected at the instance of the accused in Cr.No.111 of 2009 as well as other material objects relating to the crime in question were incorporated in the present crime. Pursuant to the voluntary disclosure of the accused, a panchnama was drawn at the MTR Lodge, Mysuru where the accused and the deceased stayed together on the eve of the murder of the deceased. Thereafter, the accused showed the place where he administered cyanide to the deceased and a panchanama in this regard was drawn up in the KSRTC bus stand, Mysuru. On completing the investigation, PW-28 Dy.S.P., C.I.D, Bengaluru laid the charge sheet against the accused under Sections 366, 376, 328, 392, 394, 417, 302 and 201 Indian Penal Code and subsequently, an additional charge sheet was also submitted citing some more witnesses in proof of the above charges.
6. The trial court framed charges against the accused for the above offences. The accused denied the charges and claimed to be tried. In proof of these charges, the prosecution examined 34 witnesses as PWs-1 to 34 and produced in evidence the documentary evidence at Exs-P1 to P36 and material objects as M.O.1 to 39. The accused denied all the incriminating circumstances spoken to by the prosecution witnesses and took up the defence of total denial. He did not choose to enter into any specific defence or to examine any witnesses on his behalf.
7. On hearing the learned P.P. and the accused and considering the oral and documentary evidence produced by the prosecution, the trial court found the accused guilty of all the above offences. The impugned judgment reveals that the learned Sessions Judge on analysing the evidence of the prosecution witnesses was of the view that the prosecution has proved the following circumstances viz., :-
1. The deceased was last seen in the company of the accused.
2. Common stay in the lodge.
3. Recovery of the ornaments and articles from the personal search of the accused.
4. Recovery of incriminating materials from the house of the second wife of the accused- Shridevi.
5. Recovery of small billets of cyanide from the shop of K. Mohammed-PW-33.
6. Extra Judicial confession made to PW-21- Eshwar Bhat.
7. The evidence regarding the modus operandi of the accused; and 8. The medical evidence and the evidence of FSL experts.
8. While considering the case for imposition of sentence, the court below enumerated the aggravating and mitigating circumstances and having found that the accused had ingeniously deceived the deceased on the promise of marrying her and committed the ghastly murder by administering cyanide and further having noted that similar modus operandi was being adopted by the accused in 19 other cases in which he was facing trial for similar charges and suffered conviction in two such cases, considered the case as falling within the category of ‘Rarest of rare case’ and imposed the extreme penalty of death sentence and made a reference to this Court for confirmation of death sentence as required under Section 366 Cr.P.C..
9. The records of the lower Court are secured. Initially, 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 in person. Permission was granted. The accused has argued the matter in person. We have also heard learned Addl. SPP.
10. The main and primary contention raised by the accused relates to the cause of death. Referring to the medical opinion given by PW-26, the Associate Professor, Forensic Medicine, Mysuru Medical University, who conducted the post-mortem examination and issued the autopsy report at Ex-P24, the accused would contend that as per the opinion of PW-26, the deceased died due to the consumption of a substance containing Organo Phosphorus Insecticide. The said opinion is based on the FSL report, which fact has been reiterated by PW-26 in his evidence. But the case of the prosecution is that the deceased died due to administration of Cyanide. The charge framed against the accused also indicates that the deceased died due to consumption of Cyanide. Therefore, the medical opinion being contrary to the case set up by the prosecution, the very substratum of the prosecution case is rendered doubtful.
11. Secondly, he contends that his conviction under Sections-302, 366 and 376 of IPC is unsustainable. In support of the charge of murder, the prosecution has relied on the evidence of PWs-4, 5, 6 and 7 as the persons who had last seen the deceased in the company of the accused. But their evidence does not show that any of them had seen either the accused or the deceased together at any time either before the commission of the alleged offence or any time immediately prior thereto. As a result, their evidence could not have been relied in proof of the ‘last seen’ theory as well as the circumstance of the accused and the deceased staying together in the MTR lodge as contended by the prosecution. Therefore, the charge leveled against him for the offence of murder as well as abduction cannot be sustained.
12. The accused would further contend that even though he is charged for the offences of rape, neither the Doctor who conducted the postmortem nor the witnesses examined by the prosecution have spoken about any circumstances constituting the said offence. Therefore, the conviction recorded against him for the offences under Sections-302, 366 and 376 of IPC are illegal and perverse. The findings of the Trial Court are not based on any legal evidence and hence he prays for his acquittal of these charges. With regard to the recovery and identification of the ornaments, the accused has emphatically submitted that none of the recoveries are proved with cogent and convincing evidence. The details of the ornaments were furnished to the Investigating Officer only after the arrest of the accused, indicating that even the recovery evidence is got up by the prosecution to support the false charge. Hence, he has sought for his acquittal of all the charges framed against him.
13. The learned Addl.SPP however would submit that the identity of the dead body is not disputed. The medical opinion conclusively establishes that the deceased died due to consumption of poison. The accused had not challenged the medical opinion given by PW-26 or the further clarification given by PW-27 and PW-29. Therefore, the accused cannot seek to challenge the medical opinion solely on the ground that initially PW-26 has certified the cause of death as due to consumption of Organo Phosphorus Insecticide. All the circumstances relied on by the prosecution in proof of the charges are duly proved by examining the witnesses who had last seen the deceased and the accused together and also the witnesses who participated in the seizure and recovery of incriminating material which directly connect the accused to the offences proved against him. Thus, he prays for dismissal of the appeal and for confirmation of the death sentence awarded by the court below.
14. We have considered the rival submissions and have examined the records. Insofar as the cause of death is concerned, or scrutiny of the evidence of PW-26 and the opinion given by him at Exhibit-P24, we find that PW-26 has based his opinion on the FSL report. The FSL report is marked as Exhibit-P25. It is stated therein that the stomach and its contents and a portion of small intestine which were subjected to Chemical analysis indicated the presence of Organo Phosphorus Insecticide. But in appreciating the opinion of PW-26, it is necessary to take into consideration the further clarification given by the prosecution by examining PW-27 and PW-29.
15. PW-27 is the head of the Department of Forensic Science, Bengaluru Medical College. According to this witness, a further opinion was sought for by the Investigating Officer regarding to the cause of death of one Kumari.Vanitha and Kumari.Leela. Accordingly on verifying the findings noted in the postmortem report relating to the said deceased, he issued his opinion as per Exhibit-P26, which reads as under:
1. ¸ÁzsÁgÀt ªÀÉÄÈPÀlÄÖ ºÀÉÆA¢gÀĪÀ AiÀiÁªÀÅzÀÉà ºÀÉtÄÚ ªÀÄUÀ¼ÀÄ organochloro insecticide ¸ÀÉë zÀgÀÉ 3 jAzÀ 5 ¢£ÀUÀ¼À°è ¸ÁAiÀÄÄvÁÛgÀÉ ºÁUÀÄ organophosphorus insecticide ¸ÀÉë zÀgÀÉ 1/2 UÀAmÉ ¬ÄAzÀ PÀÉ®ªÀÅ ¢£ÀUÀ¼À°è ¸ÁAiÀÄÄvÁÛgÀÉ.
2. Organochloro insecticide CxÀªÁ organophosphorus insecticide ¸ÀÉë zÀ ªÀåQÛAiÀÄ ºÀÉÆÃmÉAiÀÄ°è êÀÉÄJuÉÚ AiÀÄAxÀB ªÁ¸À£ÀÉ EgÀÄvÀÛzÀÉ.
3. PÀÄ. ªÀ¤vÁ ªÀÄvÀÄÛ PÀÄ. °Ã¯Á gÀªÀgÀ PM ªÀgÀ¢AiÀÄ°è peculiar ªÁ¸À£ÀÉ EgÀÄvÀÛzÀÉ DzÀgÀÉ ÃªÀÉÄJuÉÚ AiÀÄAxÀB ªÁ¸À£ÀÉ EgÀĪÀÅ¢®è .
4.Organochloro insecticide CxÀªÁ organophosphorus insecticide ¥ÀzÁxÀð ¸ÀÉë zÀgÀÉ ºÀÉÆÃmÉÖAiÀÄ N¼À¨sÁUÀzÀ°è ¸Àé®à ¥ÀæªÀiÁtzÀ congestion EgÀÄvÀÛzÀÉ.
5. PM 1360 of 04, PÀÄ. ªÀ¤vÁ¼À ºÀÉÆÃmÉAiÀÄ N¼À¨sÁUÀzÀ°è Mucosa severely congested ºÁUÀÄ PM No.783 of 05 PÀÄ.°Ã¯Á¼À ºÀÉÆÃmÉAiÀÄ N¼À¨sÁUÀzÀ°è smell peculiar mucosa congested JAzÀÄ EgÀĪÀ §zÀ¯ÁªÀuÉ ¸ÀÉÈ£ÀÉÈqï xÀgÀBzÀ ¥ÀzÁxÀð ¸ÀÉë zÀgÀÉ DUÀĪÀ ¸ÁzsÀåvÀÉ EzÀÉ.
F JgÀqÀÆ ¥ÀæPÀgÀtzÀ°è ºÀÉÆÃmÉAiÀÄ°è EgÀĪÀ §zÀ¯ÁªÀuÉ ¸ÀÉÈ£ÀÈqï xÀgÀBzÀ ¥ÀzÁxÀð ¸ÀÉë zÀgÀÉ DUÀĪÀ ¸ÁzsÀåvÀÉUÀ¼ÀÄ EzÀÉ.
The English translation of Exhibit-P26 reads as under:
(i) When a woman of normal built consumes Organochloro Insecticide there is likelihood of death taking place within 3-5 days, whereas in case of consumption of Organo Phosphorus Insecticide, death may occur any time after 30 minutes within few days;
(ii) The stomach contents of the person who has consumed Organochloro Insecticide or Organo Phosphorus Insecticide would exude smell like that of kerosene oil;
(iii) In the case of Kumari.Vanitha and Kumari.Leela, it is specifically mentioned in the postmortem reports that the stomach contents did not exude any smell like kerosene oil;
(iv) In case of consumption of Organochloro Insecticide or Organo Phosphorus Insecticide, the inner part of the stomach would be congested. The findings noted in Postmortem Report No. 1360 of 2004 relating to Kumari.Vanitha are that the mucosa was severely congested. In the Postmortem Report No. 783 of 2005, relating to Kumari.Leela it is mentioned that the stomach contents exuded peculiar smell and mucosa-congested. These symptoms are possible in case of consumption of Cyanide. The symptoms noted in both the cases are possible due to consumption of substance like Cyanide.
16. The further opinion of PW-27 has not been challenged in the cross-examination. That apart, the prosecution has examined another expert namely PW-29, who has corroborated the opinion of PW-26 and PW-27, reiterating that the contents found in the stomach of the deceased could be Cyanide or a substance like Cyanide. Therefore, the contention of the accused that the deceased did not die due to consumption of Cyanide cannot be accepted. Nonetheless, in the instant case, having regard to the overall evidence led-in by the prosecution, in our view, the opinion regarding the cause of death may not assume much significance unless the prosecution is able to establish the complicity of the accused in the death of the deceased. Therefore, having regard to the nature of the evidence adduced by the prosecution, the moot question that arises for consideration is whether the prosecution has been able to prove the involvement of the accused in the death of the deceased? In other words, whether the evidence on record is sufficient to establish the guilt of the accused for the murder of the deceased?
17(a) In answering the above question, it is relevant to note that in order to prove the charge of murder, the prosecution has rested its case exclusively on circumstantial evidence. The first and the main circumstance relied on by the prosecution is the circumstance of the deceased and the accused last seen together. In proof of this circumstance, the prosecution has relied on the evidence of four witnesses namely, PWs-4, 5, 6 and 7. We have gone through the evidence of these witnesses.
(b) PW.4 was a Secretary in Dakshina Kannada Jilla Bahuujana Samajawadi Party. According to this witness, about three months earlier to the missing of the deceased, he had seen the deceased and the accused in a public function held by the party at B.C. Road. Thereafter he saw them together in a book release function about 1½ months back.
(c) PW.5 is a honorary secretary of Dr.B.R.Ambedkar Social Service Association. This witness has stated that the deceased was attending the activities of the Sangha and about four/five months prior to her missing, on 2 or 3 occasions, the deceased had come with the accused and at that time, the deceased had introduced the accused to him.
(d) PW.6 has also stated that he saw the accused and the deceased together in a function of Tulanada Sangha about one month earlier to her missing. Likewise, PW.7 has also stated during a book release function in the month of July 2005, he had seen the accused and the deceased together.
(e) Thus, from the evidence of these witnesses, it could be deduced that all of them had seen the accused and deceased together about 2 or 3 months prior to the incident. This evidence in our view does not help the prosecution to advance the last seen theory put forward by the prosecution. It is trite law that the circumstance of last seen can be pressed into service provided, the time gap between the deceased and the accused last seen together and the time when the dead body was recovered was so small, that the possibility of any other person being the author of the crime becomes impossible. In the instant case, the evidence of PWs-4, 5, 6 and 7 even if accepted as true, would at the most go to show that the accused and deceased were acquainted with each other since about 2 or 3 months prior to the incident. But, in the absence of clear evidence to show that any of the above witnesses had seen the accused and the deceased together either on the eve of the incident or soon before the commission of the offence, in our view, the above evidence is of no avail to support the theory of ‘last seen’ circumstance propounded by the prosecution.
18. Another reason which reinforces the above conclusion is the evidence of PW-2, the father of the deceased and PW-3 the brother of the deceased. Their evidence runs counter to the testimony of PW-4 to PW-7. According to PW-2 and PW-3 on 09.09.2005 the deceased was very much present in the house at about 9.30 am and that she left the house stating that she would be going out for a week to attend a training. There is no material whatsoever to show that after she left the house on 09.09.2005, the accused and the deceased were seen together at any point of time till the dead body was found in the KSRTC bus stand, Mysuru. Therefore, the evidence of PWs-4 to PW-7 does not help the prosecution to substantiate the plea of ‘last seen’ put forward by the prosecution.
19. The other witnesses examined by the prosecution to show that immediately prior to the commission of the offence, the accused and the deceased resided together in MTR lodge, are PW-10, the receptionist of MTR Lodge and PW-14 the room boy working in the said lodge. But unfortunately both these witnesses have turned hostile to the prosecution case. PW-10 has not even remotely stated in his evidence that the accused had come with the deceased and stayed together in the lodge on the date of the incident. He has merely deposed about the destruction of the Admission Register maintained in the lodge. The prosecution has not produced even the copies of the Admission Register or any other documents to show that the accused and the deceased occupied the said lodge either on the eve of the commission of the offence or on the early morning of the incident as contended by the prosecution.
20. The room boy, PW-14, has totally denied having seen the accused and the deceased in the lodge. In the cross-examination of both these witnesses, the prosecution has not been able to bring out any circumstance to show that the accused and the deceased either occupied the said lodge or they were seen going together to the KSRTC bus stand immediately preceding the incident. As a result, there is absolutely no evidence whatsoever to prove the circumstance of the ‘last seen’ set up by the prosecution. Barring the evidence of PW-4 to PW-7, PW-10 and PW-14, no other material is produced in proof of this circumstance. As a result, it has to be held that the prosecution has failed to prove this circumstance so as to connect the accused to the offences charged against him.
21. On thorough consideration of the entire material on record, we find that the only circumstance which the prosecution has been able to establish against the accused is that after the arrest of the accused, pursuant to his voluntary statement, the accused took the Investigating Officer and the Panchas to the MTR Lodge and showed the place where he and the deceased stayed together. The panchanama prepared in this regard has been marked in evidence as Exhibit-P5. The panch-witness who participated in the preparation of this panchanama namely, PW-11 has fully supported the case of the prosecution and has deposed on oath that in his presence the accused volunteered to show the place where he and the deceased resided together. Likewise this witness has also stood by the case of the prosecution, that thereafter the accused took them to the KSRTC bus stand and showed the place where the deceased was administered with the Cyanide. The panchanama Exhibit-P6, drawn up at the spot, is also proved by examining PW-11, the Investigating Officer who conducted the panchanama. There is absolutely no reason to doubt or disbelieve the fact that these places were shown by the accused. This evidence no doubt assumes relevance under Section-8 of the Indian Evidence Act, indicating the conduct of the accused and his knowledge, about the place of the commission of the offence. But as the case of the prosecution is based on circumstantial evidence, all the circumstances relied on by the prosecution in linking the accused to the crime require to be established conclusively and all these circumstances must form a chain, which should unerringly point to the guilt of the accused so as to hold him guilty of the charges leveled against him. But in the instant case, as already discussed above except the fact that the accused showed the place of the offence, no other circumstance has been established by the prosecution pointing out his complicity or involvement in the murder of the deceased. The circumstance of the accused pointing out the spot of occurrence may at the most create a grave suspicion but it cannot prove beyond reasonable doubt that the accused caused the death by administering cyanide to the deceased.
22. The trial court appears to have proceeded on the premise that the prosecution has successfully proved the ‘last seen’ theory as well as the factum of the accused showing the place of offence as forming a chain of circumstances pointing out the guilt of the accused. But having meticulously considered the entire evidence, we are of the considered view, that the trial court has misread the evidence of PW-4 to PW-7, as well as the testimony of PW- 10 and PW-14. In our assessment the evidence of the above witnesses is not at all sufficient to establish the factum of the deceased last seen in the company of the accused, nor does this evidence lead to the inference that the accused administered Cyanide to her, as a result of which she died in the KSRTC bus stand as contended by the prosecution. Such a farfetched conclusion cannot be drawn from the material available on record. The above evidence does not establish the ingredients of the offence under Section 302 of IPC. Consequently, we hold that the prosecution has failed to prove the guilt of the accused for the offence punishable under Section 302 IPC.
23. In so far as the charge under Sections-366, 376 and 417 of IPC are concerned, it is the specific case of the prosecution that the accused took the deceased from her residential house on the false promise of marrying her and took her to the lodge and committed forcible intercourse on her. In order to prove these charges, the prosecution has relied on the evidence of the very same witnesses namely PWs-4 to PW-7 and PW-10 and PW-14. But as already stated above, the evidence of PWs-4 to PW-7 and PW-10 and PW-14 do not establish the fact that the accused had taken the deceased along with him on 09.09.2005 or that they stayed together in the lodge. There is absolutely no material on record to show that the accused and the deceased stayed together at any point of time soon before the incident or that she was subjected to rape. PW-26, the medical officer who conducted the postmortem examination has unequivocally stated that he did not find any evidence of sexual violence on the person of the deceased. Therefore, for want of evidence, the charge under Section 366 and 376 and 417 of Indian Penal Code also should fail. Consequently, the accused is entitled to be acquitted of these charges. To this extent, the finding recorded by the trial court being perverse and contrary to the evidence on record are liable to be set-aside.
24. Coming to the charge under Sections 392 and 394 are concerned, on appraisal of the records, we find that the prosecution has adduced reliable and acceptable evidence with regard to the recoveries effected at the instance of the accused. PW-31, the Superintendent of Police, Puttur Sub-Division, Puttur, who was the Investigating Officer in Crime No.111 of 2009, has specifically deposed that during the investigation in Crime No.111 of 2009, the accused was arrested on 21.10.2009 and pursuant to his voluntary statement, he effected various recoveries.
25. The accused has challenged the evidence of PW-31, contending that he was arrested much earlier to 19.10.2009, but records have been built-up to show the arrest having been made on 21.10.2009. The accused would submit that he was illegally kept in Police custody and was subjected to severe torture and his signatures were taken on blank sheets, which have been made use by the prosecution to create the alleged voluntary statements; therefore, the voluntary statement relied on by the prosecution could not be taken into consideration in determining the guilt of the accused or to accept the recoveries relied on by the prosecution. In other words, the contention of the accused is that his voluntary statement has been extracted under duress and compulsion and therefore the same cannot be relied on as incriminating the accused in the alleged offence. He would further submit that third degree torture was meted out to him in the Police station and the same has been evidenced in the CDs, which are marked as Exhibits-D2 and D3, which itself is sufficient to show that the voluntary disclosure relied by the prosecution cannot be accepted in evidence. This argument is considered only to be rejected. The allegation that the accused has been subjected to torture and his signatures have been obtained under duress and force has been canvassed for the first time before this Court.
26. We have perused the records of the trial court.
It is seen therein that soon after arrest, as required under law, he was produced before the Magistrate. There is nothing on record to show that the accused complained of any ill-treatment or torture before the Magistrate. The accused is not a simpleton or an illiterate rustic who is unaware of his legal rights. We have seen the accused arguing the appeal in person. The accused seems to be well-conversant with Law and procedures. Given his background, in the event the accused was subjected to any such torture or ill-treatment as now sought to be contended, in our opinion the accused would have been the first person to take recourse to legal action against any violators of his legal right. In any case, in the absence of any material to substantiate the above allegation, we are not inclined to accept the submission of the accused that his voluntary statement was extracted under threat and compulsion.
27. Even though the accused has referred to the CDs at Exhibits-D2 and D3, we are unable to find any such CDs produced in evidence before the trial court. The Learned Addl.SPP submits that the accused was tried before the same court in Sessions Case No.96 of 2010 and during trial in the said proceedings, these CDs were marked. Various other documents and material objects were also marked in the said proceedings, and the copies thereof were produced in this case, but Exhibits-D1, D2 and D3 mentioned in the annexure to the impugned judgment, were not the part of the documents exhibited in this proceeding. He points out that the Trial Court has erroneously mentioned Ex.D1 to Ex.D3 as the documents exhibited by the accused, which is an apparent error. We have verified the records and we do not find that the accused has either produced or confronted Exhibits – D1 to D3 to any of the witnesses during trial. The court below appears to have listed these exhibits in the Annexure by mistake. These documents are not produced in evidence by either of the parties. Therefore, the arguments of the accused that Exhibits - D2 and D3 would disclose the torture meted out to him cannot be accepted.
28. It is borne on record that after the arrest of the accused, he was subjected to personal search. This fact has been established by examining PW-12 and the Investigating Officer, PW-31. PW-12 has deposed in conformity with the case of the prosecution and has identified the signature on the seizure mahazar, Exhibit-P7 and has also identified the material objects seized from the possession of the accused. It is proved in evidence that MOs 14 and 15, plastic bottles containing Cyanide powder were seized from the possession of the accused at the time of his arrest. Except general denial, no circumstance are brought out in the cross- examination of this witness to disbelieve his evidence as to the seizure of MOs 14 and 15 under mahazar Exhibit-P7 from the possession of the accused.
29. Likewise the panch-witness PW-13 to the recovery mahazar at Exhibit-P9 has also stood by the case of the prosecution and has stated that in the presence of PW-13 and another witness, the accused took them to the house of his second wife at Belma Village, Deralakatte on 22.10.2009 and produced a plastic bag containing 10 Cyanide pieces, one hammer, nine rubber stamps of various Schools and Education Departments and eight golden ornaments, identity cards, visiting cards, SIM cards and mobile phones. The accused has identified all these articles at MOs 17 to 33. This testimony also has not been shaken in the cross-examination. That apart, it has been proved in evidence that all these articles were immediately sent for chemical examination, which fact further corroborates the recovery of articles relied on by the prosecution and lends credence to the testimony of PW-13 and PW-31 that the incriminating articles namely, Cyanide billets, hammer, rubber stamps, identity cards, visiting cards, SIM cards and mobile phones were seized from the house of the accused.
30. The accused has sought to contend that none of the above articles were recovered at his instance. It is the contention of the accused that the Police seized the gold articles belonging to his second wife and the same have been made to appear as having been recovered at the instance of the accused. These gold ornaments at MO1 to MO-4, have been duly identified by PW-2 father of the deceased and PW-3 brother of the deceased as belonging to the deceased.
31. It is not the case of the accused that the articles seized under Exhibit-P9 are his personal belongings. On the other hand, his plea is that the gold ornaments at MOs.1 to MOs.4 belong to his second wife. In appreciating this contentions, it is relevant to note that until the conclusion of the trial, the so-called second wife of the accused did not come forward either to claim the articles or to seek release thereof. The accused has not chosen to examine his second wife, in support of his plea that the gold ornaments belonging to her have been planted in this case. This defence has not been probabalised. Therefore, there is no reason to accept the plea put forward by the accused with regard to the genuineness and the authenticity of the recoveries made at the instance of the accused.
32. Another circumstance which goes against the accused is the recovery of 10 cyanide billets from the Shop of PW-33, Sri Mohammed, pursuant to the voluntary statement of the accused. No doubt, this witness has turned hostile to the prosecution case and even in the cross-examination he has reiterated that he did not sell any Cyanide billets at MOs-35 to 39 to the accused. But as rightly submitted by the learned Addl.SPP, PW-33 was dealing with Cyanide without proper license and hence a criminal case has been registered against him under the provisions of Poisonous Act, therefore, there is nothing unnatural in PW-33 turning hostile to the case of the prosecution. The fact that a criminal case has been registered against PW-33 has been admitted by him in the cross-examination. Therefore, his hostility to the case of the prosecution, has to be viewed in that background. Nonetheless, through the evidence of PW-32 and PW-31, it is proved by the prosecution, that PW-33 was storing Cyanide billets and the accused was purchasing the billets from PW-33. The circumstance brought out in the evidence of the above witnesses indicate that based on the voluntary statement of the accused, the Investigating Team visited the shop of PW-33 and recovered the incriminating material. Thus, the prosecution has established the fact that the accused was found in possession of Cyanide billets and Cyanide powder.
33. In addition to the above circumstances, by examining PW-1 Shanti and PW-20 Sumithra, the prosecution has thrown light on the modus-operandi adopted by the accused in carrying out his sinister designs. PW-1 has deposed before the Court that in the year 2009, somewhere in the month January while she was on her way to S.R. Jewellers, the accused met her and introduced himself as Sudhakar Achari and enquired her about her place of work. He took her mobile number and thereafter he was in touch with her. Further this witness has deposed that on 12.04.2005, the accused called to her mobile and asked her to come to Madikeri for an interview in a garment factory. Believing the accused, on 13.04.2005, at about 2.30 p.m., she left the house informing her parents that she would be going to her friends house. She came to B.C. Road Bus Stand wearing gold ornaments as instructed by the accused. The accused took her to Madikeri in a bus and gave her a rolled gold karimanisara to wear it. In the night he took her to Vinayaka Lodge. He booked a room in the lodge showing his name as Sudhakar Achari, son of Ramayya Achari, resident of Kajimane, Nala Post, Karkala Taluk, Udupi District. The accused wrote down the mobile number of PW-1 in the admission register. In the night after food inspite of her objection, he committed forcible intercourse on her wearing nirodh. Next day morning, the accused asked her to get ready for the interview and instructed her not to wear any gold ornaments. On the pretext of taking her to the interview he took her to KSRTC Bus Stand, Madikeri at about 7.30 a.m., and gave a small plastic bottle containing some powder and a water bottle and Rs.2/- and told her to take the said powder in the toilet and pass urine. The accused convinced her to consume the said powder saying that it was a medicine to stop pregnancy. PW-1 deposed that when she told him that there was no chance of her becoming pregnant as he was wearing nirodh, the accused told her that during the intercourse nirodh had torn. According to PW-1, she went inside the toilet and tasted some powder; she felt burning sensation and giddiness and collapsed in the toilet. When she regained consciousness she found herself in the hospital. PW-1 specifically deposed in her evidence that she did not narrate the said incident to the Police as it would hamper her family reputation, but after the incident in question, on reading the news published in the newspaper, she voluntarily approached the police and narrated her incident to the Police.
34. The accused has seriously challenged the testimony of PW-1 contending that she is a false and got up witness to bolster up the story projected by the prosecution. But in appreciating the evidence of this witness, it is relevant to note that her testimony is suitably corroborated by the production of the document relating to the accused and PW-1 staying together in Vinayaka Lodge. PW-31 the investigating officer has produced this document at Ex.P33(c) and has specifically narrated that during the course of investigation, he recorded the statement of PW-1 and collected the copies of Exhibits P33, P33(a), P33(b) and P33(c) from Vinayaka Lodge. This document lends corroboration to the testimony of PW-1. Merely because PW-1 has failed to initiate any legal action against the accused is not a reason disbelieve her evidence, especially when the witness has come forward to depose against her own character and self-esteem. Therefore, we do not find any reason to accept the contention of the appellant that PW-1 is a got up witness and that she has been set-up to bolster up the charges framed against the accused. The evidence of PW-1 also finds corroboration in the testimony of PW-20, another victim at the hands of the accused who has narrated the modus-operandi adopted by the accused.
35. However, as we have come to the conclusion, that in the instant case, the prosecution having failed to prove the offences of murder, rape and abduction, in our view, the above evidence may not be of serious significance except to the extent of proving the motive and conduct of the accused under section 8 of the Evidence Act. Thus on thorough analysis of the entire material on record, we are of the view that the evidence adduced by the prosecution is sufficient to establish only the circumstance relating to the recoveries of the gold ornaments belonging to the accused as well as the possession of the cyanide and various identity cards, which the accused has been making use to entice unmarried girls and women for illegal purposes. The fact that the gold ornaments belonging to the deceased were recovered from the house of the second wife of the accused has been established as stated above. But in the absence of any evidence to show that the said ornaments were stolen during the commission of the murder of the deceased, in our view the only offence that could be brought home against the accused is under Section – 392 of the IPC. Hence, we are of the view that the accused is liable to be convicted only for the offence punishable under Section -392 of IPC.
36. In our opinion, the circumstance of unexplained possession of gold ornaments belonging to the deceased, in view of illustration (a) to section 114 of the Evidence Act may at the most give rise to an inference that he was either a receiver of stolen property or the person who committed the theft, but it does lead to the conclusion that the theft and the murder had taken place one at the same time. This view has been authoritatively laid down by the Hon’ble Supreme Court as back as in 1956 the case of SANWAT KHAN & Another vs. STATE OF RAJASTHAN, AIR 1956 SC 54. In the said case also, there was no direct evidence whatsoever in proving the participation of the accused in the murder for which the accused were charged. Learned Sessions Judge in convicting the accused therein under section 302 Indian Penal Code, took into consideration the circumstances of the recovery of a gold kanthi and tashak at the instance of accused and the fact that the accused were seen near the place of occurrence on the day previous to the murder. While setting aside the conviction recorded by the learned Sessions Court, the Hon’ble Supreme Court has held as under:
“In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.”
In the said case, the accused were held guilty of the offence under section 380 Indian Penal Code.
37. Similar, if not identical, situation was considered by the Hon’ble Supreme Court in a recent case in RAJ KUMAR alias RAJU vs. STATE (NCT of Delhi), AIR 2017 SC 614 and the Hon’ble Supreme Court following the decision in AIR 1956 SC 54 has observed as under:
12. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e., in the course of the same transaction. No such evidence is forthcoming.
Further the Hon’ble Supreme Court has held that, “However, on the basis of the presumption permissible under illustration (a) of section 114 of the Evidence Act, it has to be held that the conviction of the accused under Section 392 IPC is well- founded.”
38. The case in hand bear striking resemblance to the above two cases. Except the proof of recovery of MOs 1 to 4 and MOs 17 to 33 at the instance of accused, no other evidence is produced by the prosecution to show that robbery and the murder occurred at the same time. Therefore, the conviction of the accused under section 396 cannot be sustained.
39. For the above reasons, we are of the considered view that the prosecution has failed to establish the ingredients of the offences charged against the accused under Section - 302, 376, 366, 201, 328, 394, 417 of IPC.
To this extent, the appeal filed by the accused deserves to be accepted. However, the prosecution having established the ingredients of the offence punishable under Section - 392 of IPC, we hold that the accused is guilty of the offence punishable under Section - 392 of IPC.
ORDER The Criminal Appeal No.179 of 2015 filed by the accused is partly allowed. The conviction of the appellant/accused and the order of sentence passed against him in respect of the offences punishable under Sections - 302, 376, 328, 394, 417 and 201 of IPC is set-aside. The death sentence awarded on the accused for the offence under section 302 of IPC is also set-aside.
ii. Consequently, Criminal RC No.4 of 2014 is rejected.
iii.The conviction and the sentence of the appellant - accused for the offence punishable under Section -392 of IPC is confirmed.
The appellant - accused is entitled for set-off under Section-428 of Cr.P.C., the period of custody already undergone by him.
Sd/- Sd/-
JUDGE JUDGE MN/JJ