IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR. JUSTICE K. NATARAJAN CRIMINAL APPEAL No.1848 of 2017 BETWEEN SIMON BENEDICT @ KAREEM SAI @ MOOSA, S/O. BENEDICT TITOOS, AGED ABOUT 20 YEARS, R/O. CHANDRABALA SRIVATSAVA, MAGADA COLONY, KURJI POST, SUDHAKUTH ASHRAMA, PATNA DISTRICT, AND STATE.
(BY SRI R. SRINIVASA GOWDA, ADVOCATE) AND STATE OF KARNATAKA, BY SUBRAMANYAPURA POLICE STATION, BANGALURU CITY, HIGH COURT OF KARNATAKA, AT BANGALORE – 560 001.
(REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR) ... APPELLANT ... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 01.09.2017 AND ORDER OF SENTENCE DATED 04.09.2017 PASSED BY THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN S.C.No.1590/2011- CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302 AND 393 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 06-02-2019 AND COMING ON FOR PRONOUNCEMENT, THIS DAY, K. NATARAJAN J., PRONOUNCED THE FOLLOWING:-
J U D G M E N T The appellant is the sole accused in S.C.No.1590/2011 on the file of the Principal City Civil and Sessions Judge, Bengaluru, in which, by judgment dated 01.09.2017, he was found guilty and convicted for the offences punishable under Sections 302 and 393 of IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs.10,000/- for the offence punishable under Section 302 of IPC, in default, to undergo simple imprisonment for six months; and he was further sentenced to undergo rigorous imprisonment for five years with fine of Rs.10,000/- for the offence punishable under Section 393 of IPC, in default, to undergo simple imprisonment for six months.
2. Heard Sri R. Srinivasa Gowda, learned counsel for the appellant and Sri Vijayakumar Majage, learned Additional State Public Prosecutor appearing for the respondent-State and perused the records.
3. Before adverting to the arguments urged by the learned counsel for the appellant, it is worth to mention the factual matrix of the prosecution case, which is as follows;
PW.2-Ganesh S/o Chandrappa filed a report to the Subramanyapura Police on 29.09.2011 as per Ex.P.1 alleging that his father Chandrappa was working as a Security Guard in the ATM Unit of Corporation Bank, Uttarahalli main road, since two years prior to the date of incident. On 28.09.2011, at about 9.30 p.m., his father left the house for attending the duty and on 29.09.2011, at about 6.00 a.m., he came to know through others that his father was murdered near the ATM of Corporation Bank. Immediately, he went to the spot and saw the dead body of his father lying in a pool of blood with cut injuries on his neck and other parts of his body. The Police came to the spot, shifted the dead body to the hospital and submitted the report. Based upon the report, the Police registered a case in Crime No.666/2011 for the offences punishable under Sections 302 and 393 of IPC and the Police also apprehended the accused within one hour. It appears that, from 29.09.2011, the accused is in judicial custody. It is revealed in the Investigation that the accused attempted to rob the ATM and when the deceased tried to prevent him, the accused is said to have murdered the deceased and after completion of the investigation, charge sheet against the accused came to be filed. The Trial Court, after receiving the records from the Committal Court, secured the presence of the accused from the jail. After hearing the counsels, framed the charges against the accused for the said offence. The accused denied the charges. Therefore, the accused was put on trial. The prosecution in all examined 26 witnesses as PWs.1 to 26, got marked material documents as per Exs.P.1 to P.30 and also the material objects as MOs.1 to 28. After closing of the evidence, the accused was also examined under 313 Cr.P.C. The incriminating evidence against the accused was read over to him. The case of the accused was one of total denial, but not let in any defence evidence. After hearing both side, the Trial Court found the accused guilty of the offence under Sections 302 and 303 of IPC and convicted and sentenced the accused to undergo the imprisonment as stated supra.
4. Learned counsel for the appellant/accused contended that the prosecution evidence is based upon circumstantial evidence, that there is no eyewitness to the incident. The entire evidence of the prosecution rests upon circumstantial evidence, the CC TV footage caught in the ATM camera and the accused was arrested within one hour from the occurrence of the incident, the knife was recovered at the instance of the accused, which was blood stained and the blood stained clothes of the accused were said to be seized. There is no proper connecting evidence to implicate the accused in this case. There are lot of contradictions and omissions in the evidence of the prosecution witnesses. The Trial Court has erred in holding the accused guilty of the said offence. It is also contended that, at the time of commission of offence, the assailant has applied some powder on his face. Hence identifying the accused was doubtful. Therefore, it is contended that identification of the accused by the witnesses in the Court without any identification parade is not acceptable and, therefore, prayed for setting aside of the judgment of conviction and sentence.
5. Per contra, learned Additional State Public Prosecutor strenuously argued that, the accused in order to rob the ATM, entered into the ATM cabin, tried to break open the ATM machine. When the deceased Chandrappa tried to prevent the accused, at that time the accused has brutally murdered him and fled away. There is recovery of weapon at the instance of the accused and also blood stained clothes of the accused has been seized. The same was sent to Forensic Science Laboratory (FSL) and the blood stains found on the clothes of the accused matched with the blood group of the deceased, which clearly indicates involvement of the accused in the offence. Apart from that, PWs.1, 3 and 4, who are the Bank Officials have seen the accused in the CC TV footage and thereafter, they identified the accused in the Police Station and later in the Court. There is no enmity between the accused and the Bank Officials to falsely implicate the accused in the case. The Police have arrested the accused immediately after the incident, within a span of one or two hours and after due investigation, they have filed the charge sheet. It is also contended that, the witnesses examined by the prosecution goes to show that the accused had purchased hammer and iron-rods from the shop. The shop owners have supported the prosecution case. The accused has also worked with PW.5 in some other name, who also gave evidence before the Court. All the witnesses have categorically supported the case of the prosecution and the prosecution has proved the case beyond all reasonable doubts and there is no illegality committed by the trial Court while appreciating the evidence and the same does not call for interference by this Court. Hence, prayed for dismissal of the appeal.
6. After hearing learned counsel on both sides, we would like to have a bird’s eye-view on the evidence placed on record heading the prosecution, which shows that, PW.1-K.G. Shenoy, who is the General Manager, Corporation Bank, Rajajinagar, Bengaluru, has deposed before the Court that on the date of incident i.e. on 29.09.2011 at about 7.15 a.m. when he was in the house, he received a phone call from CW.2 i.e. PW.3- M.K.Gopinath, Manager of the Corporation Bank that the ATM Security Guard has been murdered. Immediately, he went to the spot at 8.45 a.m. By that time, the Police and public assembled at the spot. He saw the dead body of the security guard in the ATM passage and found injuries on the dead body and also blood stains. He also witnessed that, ATM machine was broke open and some parts of the ATM machine were removed. He also found the hammer, iron-rod, screw driver and a sharp object like knife, on the spot, then he went to the branch office to view the monitor of the CC TV of ATM. The Branch Manager opened the monitor with the Security Manager, who showed him the footage or clippings of the CC TV, where they saw the footage of one person/young fellow entering the ATM center by crawling and had applied some white powder on his face, and was carrying a shoulder bag, thereafter, he switched off the AC and also tried to break open the ATM machine. They saw that person also switching off the lights and he went away from the ATM centre. They also observed some movements inside the ATM centre after the light was switched off. He further deposed that, at 11.15 a.m. Subramanyapura Police summoned him to the Police Station. He had been to the Police Station at 12 noon where the Police shown the accused to him. He identified the said person as the assailant who was seen by him in the CC TV footage. This witness also identified the accused in open court and says that the same person was seen in the Police Station as well as in the CC TV footage. This witness also identified seizure of hammer, iron-rods, a shoulder bag and ATM parts as MOs.1 to 4.
PW.2-Ganesh, who is the son of deceased Chandrappa is a daily wager in LIC. This witness has spoken as stated in complaint Ex.P.1 that the ATM machine is situated in the Corporation Bank. He has stated that his father was working as a Security Guard at the ATM of Corporation Bank, Uttarahalli since two years prior to the date of incident. He has stated that his father left the house at 9.30 p.m. for the night duty on 28.09.2011 and on the next day morning, at about 6.00 a.m., he came to know through others that his father was murdered in the ATM of Corporation Bank. He went to the spot and saw the dead body of the father which was lying close to the ATM. He found his neck had cut injury. Then, the Police shifted his father’s dead body to the hospital. He gave the complaint to the Police as per Ex.P.1. This witness speaks about only filing of the complaint to the Police to set the criminal law into motion. He came to know about the incident through others and he went to the spot and saw the dead body.
PW.3-M.K.Gopinath was the Branch Manager of the Corporation Bank, Uttarahalli Branch, when the incident took place. He has stated that the working hours of the Bank is from 10.00 a.m. to 5.00 p.m. and the ATM machine was installed on 03.12.2009. The loading of the currency notes to the ATM machine was outsourced to M/s. Euro Net Corporation. The same was supervised by Sri A P Malhotra, Deputy General Manger, Head Office, Mangalore. The security service was provided by A-Top Security Services and the deceased Chandrappa was deputed as a Security Guard by A-Top Security Services to their Bank. On the date of the incident, the deceased Chandrappa was the Security Guard provided to the ATM, Corporation Bank. The said Chandrappa was working in the night shift from 10.00 p.m. to 6.00 a.m. on the following morning. He further speaks about the installation of CC TV camera in the cabin of the ATM, Corporation Bank. Three CC TV cameras were installed in the Branch. The images captured in the said CC TV cameras were viewed in a monitor provided in his chamber. He further deposed that, on 29.09.2011 at about 7.15 a.m., he received a phone call from one of the customers informing that the Security Guard Chandrappa has been murdered in front of the ATM machine. He reached the ATM spot and found the dead body of Chandrappa lying in a pool of blood. When he reached the spot, number of people and the Police have arrived at the scene of offence. The ATM was damaged and some attempt was made to rob the amount. The door was opened and the cash dispenser was broken with hammer and iron-rods were lying near the ATM machine. After informing his superior officers, he went to the chamber and replayed the CC TV footage, which revealed the person attempting to commit robbery hit with the hammer on the ATM machine. The CC TV footage also revealed the person entering the ATM cabin and the said person has applied some powder on his face. All the activities of the said person were recorded in the CC TV footage. He further deposed that at 12 noon, he was summoned to Subramanya Police Station, where the Police shown him the person who was in the Police custody and he felt that the accused must be the very same person who was seen in the CC TV footage. He also identified the CD containing the footage as per Ex.P.2, identified the photographs of the dead body as per Ex.P.3 and P.4 and also the hammer as MO.1, iron-rods as MO.2, plastic bag as MO.3 and ATM cash dispenser board as MO.4.
PW.4-Hanumantharao, who is the Field Executive, A- Top Security and Allied Services, has deposed that the deceased Chandrappa was working as a Security Guard in their security agency. On 28.09.2011, the deceased Chandrappa was posted on night duty to guard the ATM belonging to Corporation Bank, Uttarahalli. On the next day i.e. on 29.09.2011 at about 7.30 a.m., he came to know that Chandrappa was murdered in front of the ATM and he went and saw the dead body. He also saw the hammer, iron-rods and a knife lying at the scene of offence. He also witnessed CC TV footage in the Corporation Bank. On the same day, at 12 noon, he was summoned by the Police, where he saw the accused person in the Police Station and he also identifies the accused was a person who appeared in the CC TV camera while committing the offence.
PW.5-Nataraj Nayak is the Sub-contractor in painting works. He has stated that he was working under M/s. Sridevi Constructions of Bengaluru, whose Managing Director was Ravishankar. This witness knows the accused and one Ramesh was working under him as a painter. The accused worked under him for 10 days as painter. He came to know the said Ramesh. Since the attitude of the accused was not good, he sent the accused out of painting work and also deposed that the accused told his name as Sanjay. He further says that in September-October 2011, at 11 p.m., after making payment to his workers and painters, while he was going towards his house, he found the accused standing near the K.R. Hospital. Even though he saw the accused since he has terminated his services, he did not speak to him. After three days, the Police called him to the Police Station where the accused was found in the Police custody. He came to know that the accused had attempted to commit robbery. He also says that he came to know the name of the accused as Simon Benedict @ Kareem, but not Sanjay. He identified the accused that, he has seen the accused in front of K.R. Hospital Bengaluru. So far as this witness is concerned, he never speaks about the circumstance that the accused was working with him but by giving a wrong name and due to his conduct, this witness removed the accused from attending the work.
PW.6-Gangadhar was working as Hotel In-charge/ Room Service at Newlight Hotel in front of K.R.Puram Police Station. He knows the accused whose name is Simon. On 24.09.2011 at about 11 p.m., when he was working in the hotel, the accused came to the hotel, introduced him as a painter and wanted a room for three days. He allotted Room No.109 at Rs.200/- per day for three days. The accused told him that he is working as a painter. He stayed there from 24.09.2011 to 30.09.2011. The accused was addicted to consuming alcohol and that he was smoking and he was sitting outside the hotel thinking of something. Sometimes the accused was coming at night to the hotel and sometimes he was abstaining. He further says that on 30.09.2011, the Police called him to the Police Station. He went to Police Station and saw the accused and came to know that the accused murdered a Security Guard and gave statement to the Police. So far as this witness in concerned, he has stated that the accused stayed in the K.R.Puram Hotel prior to the incident and after completion of the incident.
PW.7-Sarasamma is the wife of the deceased and PW.8-Ramu is another son of the deceased. Both of them came to the spot after knowing about the death of Chandrappa and they spoke about the deceased going out in the night on 28.09.2011 and on the next day morning, the deceased was murdered. These two witnesses identified the deceased and are relatives. There is no much consequence of these witnesses, though they came to know that the accused was the culprit who murdered the deceased.
PW.9-Kantharaju, seizure panch witness has deposed that the Police called him to the Police Station on 29.09.2011 when he was going in front of the Police Station and the accused was in the custody of the Police. The Police showed the accused to him and also showed a watch and some clothes. The Police seized the same under the panchanama Ex.P.6. He has identified MO.5 as Watch, two mobile phones as MOs.6 & 7, a handbag as MO.8, A piece of paper containing resume of the accused as Ex.P.7 and also one more piece of paper of containing personal information of the accused as per Ex.P.8. He also identifies one pair of chappals as MO.9. This witness was treated hostile in respect of Ex.P.6 and after treating him as hostile in the cross-examination by the Public Prosecutor, he has admitted that the Police prepared the panchanama as per Ex.P.6 in his presence. He saw two mobile phones and identified as MOs.7 & 8. The Police seized the same by fixing a slip containing the signature. This witness speaks about the circumstance of recovery of mobile phones, bag, Watch of the accused, resume and chappals in possession of the accused.
PW.10-Ramanjalu another panch witness deposed that, on 30.09.2011, the Police called him to the Police Station. The accused was in the custody of the Police and the accused gave voluntary statement and took the Police near the ATM counter. He also accompanied the Police Inspector and CW.20 went to the Uttarahalli Main Road near the Corporation ATM and also to the shrub in the vacant site near the Corporation Bank and the accused took out one knife from the shrub and handed over the same to the Police. The Police sealed the same under the panchanama. He identified the panchanama as per Ex.P.9 along with the signature on the panchanama. He also identified MO.10 as the knife which was recovered at the instance of the accused. He identifies the weapon as MO.10 and speaks about the recovery of weapon at the instance of the accused.
PW.11- A.Munivenkata Reddy, who is the owner of a building where the ATM is situated, has deposed that he has let out his building and the Corporation Bank has its ATM outlet. There is no dispute in respect of functioning of the Corporation Bank and the ATM outlet in his building.
PW.12-Mohammed Arif, the seller who sold hammer and chisels to the accused, has deposed that he is working in the shop namely, New Bombay Tools, K.R.Market, Bengaluru. In September 2011, a person came and purchased hammer and two chisels from his shop and after two days of murder of one person, the Police came to his shop along with the accused and the accused showed them the shop and he noticed that the accused was the person who purchased the hammer and two chisels from his shop. He also identifies the hammer as MO.1 and Chisels as MO.2. He says that he has told the value of the items as Rs.120/-, but the accused paid Rs.100/-. He also stated that, on 28.09.2011, the accused had purchased the same.
PW.13-C.A.Muneer, another shop owner situated at SJP Road, Bengaluru where the accused was said to have purchased one bag from his shop and thereafter, on 03.10.2011, the accused was brought by the Police and he has identified the accused and he admitted that he has sold MO.3 bag to the accused.
PW.14-Dr.S.R.Jagannath, Associate Professor, Department of Forensic Medicine, KIMS, Bengaluru, had deposed that on 29.09.2011, at the request of Subramanyapura Police, he has collected sample blood of the accused when he was brought to the hospital and at the request of the Police, he has also collected the clothes which the accused was wearing on that day and he identifies the black colour jean pant, black shirt, red banian and sweater. After collecting the blood in a tube, packed and sealed the same and handed over the same to the concerned Police. He identified the letter of the Investigating Officer as Ex.P.11 and deposed that the said articles were seized in front of PW.17-Dr.Shantha Kumar.
PW.15-Lional Joseph Lobo deposed that he is working as a Manager, Customer Support, Thakaral services, Bengaluru and his company supplied CC TV camera to the Corporation Bank, which was installed on 14.09.2009 and also speaks that the CC TV images recorded through CC TV camera can be viewed by the Manager of the Bank through the monitor or desktop in his chamber. He also speaks that, he went to the place of occurrence at 9.30 a.m. and saw the dead body of the deceased out side the ATM counter. The Police and Bank Manager asked him to get the back-up of the CC TV footage and operate the CC TV and show the images. Accordingly, he operated the Digital Video recorder and shown the CC TV footages to the Police. He downloaded the requisite CC TV footages to the desktop of the Manager and transferred the same to Video CD and handed over the same to the Police. He also watched the CC TV images and stated that, he saw the ATM counter being opened. The footage also indicates that one person wanted to damage the ATM counter and the said person could not be viewed in the camera of the ATM screen and that person climbed on the ATM machine and at that time, he could see the face of the person and later the said person switched off the light in the cabin. Later, the Subramanyapura Police called him to the Police Station at about 12 noon and recorded his statement. He stated that he has seen the accused in the Police Station and he also identifies the accused as the person who was seen in the CC TV footage. He also identifies the copy of the CC TV footage as Ex.P.2. He also prepared the report and submitted to the Police as per Ex.P.12. During recording of the evidence, from CC TV footage Ex.P.2, they could not view anything. Thereafter, the evidence of this witness was deferred, later he was recalled. Again, he brought four CDs containing the footages, which were marked as Ex.P.2(i) to (iv).
PW.16-Nataraj, Marketing Executive of a Private Company, Bengaluru, deposed that on 29.09.2011, at the request of the Subramanyapura Police, he went to the place of occurrence near the ATM of Corporation Bank where he saw two iron-rods, one hammer, one knife which had fallen down within the portion of the ATM counter and the same was seized by the Police. He is also said to have seen the dead body of the deceased on the spot. He identified the panchanama as per Ex.P.13 and identified MO.1-hammer and MO.2-iron-rods. He also identifies MO.3-plastic bag and MO.10-knife which were seized near the place of occurrence. He identifies the Shawl as MO.12 and also identifies a button of the shirt, which was seized on the spot as MO.13, the sample blood collected on the spot as MO.14. MO.15 is the pen seized on the spot. MO.4 is one of the components of the ATM machine. He also identifies MOs.3, 11 to 15 found in the ATM counter were seized under the panchanama Ex.P.13.
PW.17-Dr.Shantha Kumar, who conducted autopsy, has deposed that on 19.09.2011, on the request of the Police, he conducted Post-Mortem Examination on the dead body of Chandrappa and he has found incised wound over front and both sides of the neck of the deceased. Stab wound over front of left side of chest and another stab wound present over back of left side of chest, chop wound present over outer aspect of left forearm and multiple small abrasions present over dorsum of left hand and fingers. According to his opinion, the death was due to shock and haemorrhage as a result of multiple injuries and he issued Post-Mortem Examination Report as per Ex.P.14. He also deposed that he has collected black pant with belt, blood stained; yellow coloured banian, blood stained; cement coloured security shirt, blood stained; blue coloured kacha, blood stained and sent to the Investigating Officer. He further deposes that on 22.11.2011, he also examined the weapons sent by the Investigating Officer which are one dagger and one knife and the same was marked as MOs.10 and 16. According to his opinion, the injuries 1 to 5 found on the dead body of the deceased could be caused by Mos.10 and 16 and also deposed that all the injuries found on the dead body of the deceased were ante-mortem in nature. He has identified the same under Ex.P.15. As per the evidence of this witness, the deceased Chandrappa died due to the injuries sustained on his body, which shows that it is a homicidal death. The accused also not disputed throughout the evidence of the prosecution that the death of the deceased is that of a homicidal death.
PW.18-Madhu, PC No.6057, Talaghattapura Police Station, who carried the articles to the FSL, Madivala, Bengaluru, for chemical examination, is the formal witness.
PW.19-R.Manohar, photographer in DCP office, South-End Circle, Bengaluru has deposed that on 29.09.2011, at the request of Police, he visited the ATM of Corporation Bank. He took the photos and handed over the CDs to the Police. He identifies the photo of the deceased as per Exs.P.3 and P.4 and CD as per Ex.P.2. There is no much cross-examination of this witness by the counsel for the accused and this witness was only called to speak about taking the photographs and the CD-Ex.P.2.
PW.20-Rajashekar, Head Constable, has deposed that on 28.09.2011 when he was on patrolling duty in the night hours at about 7.00 a.m., himself and other staff were deputed to apprehend the person, who was involved in the crime and he and his staff apprehended the accused near Swathi Mall, who was found under suspicious circumstance. The shirt worn by the accused and his bag were stained with blood and on enquiry, it was divulged that the accused was staying in Room No.102 of New Light Hotel, K.R.Puram Railway Station, Bengaluru, since last three days. He apprehended the accused and produced him before the Investigating Officer along with the bag and gave a report as per Ex.P.16. In the cross-examination, this witness says that at the time of apprehending the accused, there was no painting on his face. Except the same, there was no much cross-examination in respect of apprehending the accused at that time.
PW.21-Krishna Prakash, Finger Print Expert has deposed that on 29.09.2011 at about 6.15 a.m., on the request of the Police, he visited the place of occurrence along with his staff. He has started examining from the front door of the ATM. He found one chance finger print from inside the ATM. He developed one more chance finger print on the screen of the ATM also found one blood stained shoe near the ATM. After collecting those finger prints, he came to his office and marked the chance finger prints as ‘Q’ and ‘Q1’. He compared the said chance finger prints with the data of finger prints available in his office. The chance finger prints were not tallying with the data found in his office, but on 30.09.2011, the P.I sent one set of finger prints of suspect i.e. Simon Benadict, who is the accused in this case and he compared the suspect finger prints with the chance finger prints ‘Q’ and ‘Q1”. He found right ring finger print tallied with the chance finger print marked as ‘Q’ and he gave opinion as per Exs.P.17 and P.18. Based on his report, his senior has issued a report as per Ex.P.19. The FP record slip was identified by him as per Ex.P.20. There was no much cross- examination of this witness to disbelieve the evidence of this witness that he visited the spot before 8.30 a.m. and he says that DCP was present along with him. At that time he has not taken photograph of the chance finger print at the scene of offence. Normally, the finger prints cannot be photographed as it cannot be visible. Except collecting the finger prints by this witness, there is nothing to disbelieve the evidence of this witness in respect of collecting finger prints. However, matching of finger prints of the accused with the chance finger prints will be discussed a little later.
PW.22-Bhaskar Naik, another panch witness has deposed that on 29.09.2011, the Police summoned him to the Subramanyapura Police Station and the accused was in the Police Station. The Police, after giving alternate clothes to the accused, seized the clothes worn by him, two mobile phones, one pair of chappals, one bag, one Watch, a letter containing the details of the accused and one Resume from the accused. The glass of the Watch was broken. The Watch and the bag were stained with blood. There were also blood stains on the shirt and jeans pant worn by the accused. The Police seized it under the panchanama as per Ex.P.6 and he identified MOs.5 to 9 the materials that were seized on the date. He also identifies T-shirt as MO.17, banian as MO.18 and pant as MO.20. He also identifies the resume and details of the accused as per Exs.P.7 and P.8.
PW.23-Srividya, In-charge Assistant Director, Physics Section, FSL deposed that he received two sealed articles along with the request letter from Biology Section of the Laboratory, on 18.11.2011. He unsealed the articles and examined and found that, Article No.1 contained one button, which is marked as Article No.12 seized by the Investigating Officer and Article No.2 contained one shirt along with eleven stitched buttons, which is marked as Article No.26 seized by the Investigating Officer and according to this witness, one button out of eleven buttons from the shirt marked as Article 26 seized by the Investigating Officer was examined and the said button matched with the single button marked by the Investigating officer as Article 12. Accordingly, she gave a report as per Ex.P.21 and identified the sample seal as Ex.P.22. The single button is identified as MO.21. The shirt identified as MO.19.
PW.24-Shahanaz Fathima, Scientific Officer, FSL, Bengaluru has deposed that on 16.11.2011, she had received 19 sealed articles to the laboratory and she examined those articles and gave opinion as per Ex.P.23 and marked her opinion. The articles 1, 4, 7, 7(a), 8, 9, 10, 17 and 19 to 28 were stained with blood. The presence of blood was not detected over item No. 12 and item nos. 1, 4, 7, 7(a), 8 to 10, 17 and 19 to 28 were stained with human blood. Item Nos. 4, 8 to 10 and 19 to 27 were stained with B-Group blood. The blood grouping of the blood stains on item Nos.1, 7, 7(a), 17 and 18 could not be determined. She identifies MOs.19 and 21 which she had sent to Physics Section for examination and identifies those articles as MOs 3, 5, 8, 9, 11, 12, 16, 17, 18 and 20. She also identifies the blood swab as MO.22, black colour pant as MO.23, shirt as MO.24 and underwear as MO.25, white colour banian as MO.26, the blood swab as MO.27. Except a sole suggestion by the learned counsel for the accused, nothing has been elicited to disbelieve the evidence of this witness.
PW.25-Balegowda, CPI, Kunigal Circle is the Investigating Officer in this case who received the information of the crime, visited the spot and seen the dead body. Thereafter, he has requested to take the sketch and the finger print expert to photograph the spot, obtained the complaint from PW.2 and sent the same for registering the case. Later, he secured panchas, prepared the spot panchanama, seized the articles on the spot, conducted inquest panchanama on the dead body and referred the dead body to the post mortem examination.
He also viewed the CC TV footage in the monitor, arrested the accused, recorded the voluntary statement, seized incriminating articles from the accused and after investigation, he filed the charge sheet.
PW.26-Manjunath S, PSI, also one of the Investigating Officers who conducted part of the investigation deposed that he visited the spot on the direction of the Police Inspector along with the complaint, secured panchas, PW.16 and CW.18, drew the spot panchanama as per Ex. P13 and seized material objects found on the spot as per MOs.1 to 4, 10 to 12, 15, 21 and 22.
7. On overall scrutinizing of the evidence of the prosecution witnesses, the entire evidence of the prosecution witness devolves on the circumstantial evidence. It is not disputed by the accused that the deceased Chandrappa met with an homicidal death due to the injuries sustained by him. The evidence of PWs.1 to 4, 7, 8, 21, 25 and 26 who are panch witnesses, inquest witnesses and evidence of the Investigating Officer goes to show that on 29.09.2011, in the morning hours, the deceased Chandrappa was found murdered in front of the ATM of the Corporation Bank. After the inquest, the body was shifted to the hospital for Post Mortem Examination and the evidence of the Doctor-PW.17 goes to show that the deceased met with an homicidal death due to the injuries sustained by him as per Ex.P14, the Post Mortem Examination Report. Absolutely, there is no dispute in respect of lying of the dead body with injuries in front of the ATM and the deceased having met with an homicidal death due to the injuries sustained by him.
8. As regards connecting the accused with the crime, the prosecution examined PW.1-the General Manager of the Corporation Bank, PW.3-Branch Manager and PW.4- Field Officer who viewed the CC TV footage and saw that a person coming to the ATM, trying to rob the cash by break opening the ATM machine, switched off the AC and later switched off the light. After seeing the appearance of the person entering the ATM on that day, later at 12 Noon, they saw the accused in the Police Station. PWs.1, 3 and 4 have identified that the accused was the person who entered the ATM in the morning hours. The CC TV footage has been taken and marked before the Court as per Ex.P.2. Though, Ex.P.2 was not able to be viewed by the trial Court, subsequently PW.15, who is the supplier of the CC TV Camera to the bank, downloaded the footage in the Manager’s desktop and transferred the same to Ex.P.2-CD, produced four copies of the video CDs as per Ex.P.2 (i) to (iv) and he has categorically stated that he has played and seen it. PW.15 also gave a report as per Ex.P.12 to the Police and identified before the Court and in the cross- examination, it was only suggested that to help the Police, he has given a false certificate as per Ex.P.12. The evidence of this witness clearly corroborates with the evidence of PWs.1, 3, 4, and PW.15 who viewed the CC TV footage and identified the accused as the assailant who attempted to rob the ATM on the date of the incident.
9. Even though the CC TV footage marked as per Exs.P(2)(i) to (iv) were not visible and it was eschewed by the Court below, but PWs.1, 2, 4 and PW.15-CC TV Technical Officer, have all categorically stated that they have viewed the CC TV footage in the chamber of the Branch Manager of the Corporation Bank and they have deposed before the Court that they saw the accused in the CC TV footage. Learned counsel for the accused has not at all disputed the fact that those four witnesses viewed the CC TV footage on the said date and also PW.15 deposed before the Court on 10.06.2015 while producing extra copies, which were under Ex.P(2)(i) to (iv), he has played and seen it. This aspect of the evidence was not at all disputed except suggesting that he has given false certificate as per Ex.P.12. Therefore, from the evidence of these witnesses, the prosecution has established that they saw the accused in the Videograph on the date of the incident and later they have identified the accused in the Court.
10. The other circumstance relied upon by the prosecution is with regard to recovery of blood stained clothes, blood stained knife, shirt button of the accused and the finger print of the accused to connect the accused with the crime.
11. Firstly, we want to discuss about the blood stained clothes of the accused. The evidence of PW.25- Balegowda, Investigating Officer shows that after registering the case, he has secured PW.9-Kantharaju and PW.22-Bhaskar Naik, as panch witnesses, when the accused was in the Police Station, seized two mobile phones, a pair of chappals, a bag, a Watch and a letter containing details of the accused, his resume and shown blood stained clothes to these witnesses under Ex.P.6-
seizure mahazar and PW.22 identified the T-shirt of the accused as MO.17, one Banian as MO.18, one black shirt as MO.19 and one Jeans Pant as MO.20, it is pertinent to note that Ex.P.6-panchanama was prepared by the Investigating Officer in the Police Station after arresting the accused. He found the blood stains on the clothes of the accused. The Investigating Officer has seized two mobile phones, a bag, the details of the accused written in English, his resume and the chappals of the accused under the panchanama. The Investigating Officer referred the accused to PW.14-Doctor for the purpose of seizing blood stained clothes of the accused, T-shirt, banian and Jeans Pant of the accused. But due to confusion, the PW.22 though he has seen the accused in the Police Station and the blood stained clothes of the accused and identified, but the same was not seized in the Police Station under Ex.P.6. But, the Mos.17 to 20 were seized by PW.14- Dr.S.R.Jagannath, who also stated that he has seized the same at the request of Police on 29.09.2011 and he has handed over the same to the Police. The blood stained clothes MOs.17 to 20 were sent to FSL for scientific analysis. PW.24-Shahanaz Fathima, Scientific Officer working in FSL has also given evidence that MOs.19 and 20 i.e. shirt and pant of the accused were stained with human blood of ‘B’ group. As per the evidence of the Investigating Officer, the blood stained clothes of the deceased item Nos.20-24 and the pant, banian and shirt of the accused, item Nos.25 to 27 and cutting of the pant and shirt sent to this witness were found stained with human ‘B’ Group blood, which clearly goes to show that the blood stains found on the clothes of the accused were matching with the blood stains found on clothes of the deceased and the blood group of the deceased. Apart from that, a bag which was seized by the Police as per MO.8 in the Police Station under the panchanama Ex.P.6 in the presence of PW.9, was also subjected to chemical analysis. The said bag and its cutting article No.4 also contains the human blood which is also ‘B’ group blood as per the Serological Report, which clearly goes to suggest that the bag which was found with the accused while apprehending and seized in the Police Station were stained with the blood belonging to the deceased. Thereby, the prosecution established that blood stained clothes of the accused matched with the blood group of deceased, which connect the accused with the crime that he is the perpetrator of the crime.
12. Another incriminating evidence against the accused is, shirt button of the accused seized under the spot panchanama. The Investigating Officer PW.25 seized an hammer, two iron-rods, a knife and parts of the ATM machine at the spot as per MOs.1 to 4 and MO.13, button of the shirt under the panchanama Ex.P.13 in the presence of PW.16. The evidence of PWs.16 and 25 corroborates with the evidence of PW.24, the FSL Officer, who stated on comparing the single button with the shirt buttons found on MO.19 which was seized from the accused through PW.14-Doctor and the button found on the spot MO.13 by the Investigating Officer were similar to each other. This circumstance of seizure of MO.13, one button from the place of occurrence and the buttons found on the shirt of the accused totally 11 buttons in MO.19 and one button was missing, that button matches with other buttons. This part of the evidence is not seriously disputed by the counsel for the accused. PW.23 clearly deposed that the shirt Article-26 marked as MO.19, the button on the shirt MO.13 Article 12 sent by the Investigating Officer were matching with each other and they are similar buttons. The button of the shirt MO.19, which was found on the spot as well as button found on the shirt are similar. This circumstance establishes and connects the accused having committing the offence on that date.
13. The next incriminating circumstance against the accused is, the finger print of the accused found on the ATM machine. PW.21, Finger Print Expert went to the spot along with the Investigating Officer, took up the chance finger prints from the ATM and also the finger prints sent by the Investigating Officer. On comparison, he found the right little finger print of the accused matched with the chance finger print found on the spot. The evidence of PWs.21, 25 and Ex.P.17, 18 and 20 corroborates with each other, which connects the presence of the accused on the spot with the crime. The evidence of this witness is also not seriously disputed by the learned counsel for the accused though this witness admits that he has not taken the photograph of the finger print. Normally, the finger prints are not visible in the photograph and it has to be collected by the finger print expert under a scientific method.
14. Another incriminating circumstance against the accused is, blood stained knife recovered as per the voluntary statement of the accused. The Investigating Officer after arresting of the accused on the voluntary statement, the accused led the Investigating Officer and the panch witness PW.10 near the ATM and in a vacant site near a bush, he took out a knife and handed over the same to the Police which was seized and the said knife was sent to the FSL. That knife was also found with human blood of ‘B’ group as per the evidence of PWs.24 and 23. There is nothing to disbelieve that this recovery is made by the Investigating Officer at the instance of the accused, which is relevant and admissible under Section 27 of the Indian Evidence Act. Thereby, the prosecution is successful in proving the seizure of MO.10-knife, stained with blood; MO.13-button found on the spot belong to the accused similar to the button of the accused found on the shirt MO.19; the blood stains found on MOs.19 and 20 were matching with blood group of the deceased are all the circumstances which goes to indicate that the accused and none other than the accused is the perpetrator of the crime who murdered the deceased Chandrappa on the said date. As per the evidence of PW.17-Doctor who gave the opinion on the weapon that knife could cause the injuries found on the deceased and the Post-Mortem Report. All the above circumstances pointing out towards the accused are without any hypothesis.
15. Learned counsel for the accused argued that the accused was arrested on the same day within an hour of the incident and the accused was in the custody while the Investigating Officer visited the spot and thereafter, the Police set up the case against the accused.
16. On the other hand, learned Additional State Public Prosecutor contended that the accused was staying in a room at K.R.Puram and the presence of the accused near Subramanyapura Police limit is more than 20 to 25 Kms. Away, where he was found in a suspicious manner and blood stains were found on the clothes as well as bag of the accused and he was brought to the Police Station, the Investigating Officer after keeping him in the lock-up has visited the spot and thereafter the Investigating Officer conducted the panchanama, seized incriminating articles on the spot and thereafter came back to the Police Station, recorded voluntary statement and recovered the blood stained knife on the voluntary statement of the accused. The accused was sent to the doctor for seizure of the blood stained clothes. The blood stains were witnessed by PWs.9 and 22 in the Police Station. Therefore, all the incriminating evidence and circumstances against the accused were clearly established by the prosecution. Therefore, it is merely the Police put into swing action succeeded in tracing the accused that cannot be suspected and therefore prayed for dismissal of the appeal.
17. The contention of the learned counsel for the appellant cannot be acceptable for the reason that the evidence of PW.6-Room boy, which shows that the accused took a room for three days from 24.09.2011 to 30.09.2011 paying Rs.200/- per day. He was allotted Room No.9 and the accused was always sitting and thinking of something, some times he was abstaining and subsequently, on 30.09.2011, he has identified when the accused was brought to the hotel by the Police. PW.20 Police Constable who apprehended the accused also stated that when he was apprehending at 7.00 a.m. on 29.09.2011, the accused was found near Swathi Mahal in the Subramanyapura Police limit. On enquiry, he has stated that he was staying in a Hotel in K.R.Puram. Even though the accused was staying at K.R.Puram, which was more than 25 Kms. from Subramanyapura, but the accused has not explained as to what was the purpose for him to visit Subramanyapura in the early morning. Apart from that, the evidence of the ex-employee-PW.5 goes to show that the accused was previously worked under him as a painter for ten days by giving his name as Sanjay and he has also seen the accused near K.R.Puram during September 2011. He has also identified the accused in the Police Station. These circumstances also goes to show that the accused was wandering near the place of occurrence and after making observation, he has planned to rob the Corporation Bank ATM and on the date of the incident when he went inside, before attempting to break open the machine, he has switched off the AC thereafter, the light and tried to break open the ATM machine and when the deceased being the Security Guard obstructed, the accused committed the murder of the Security Guard-Chandrappa and fled away. The evidence of PW.12 shows that the accused had purchased Mos.1 and 2 the hammer and chisels which were seized on the spot and also he has purchased a bag MO.8 from PW.13 which was seized by the Police from the possession of the accused and PWs.12 and 13 have identified regarding selling of these articles to the accused as Mos.1, 2 and 8 which also connects the accused with the crime. Thereby the prosecution is successful in proving all the circumstances against the accused that the accused is the person who committed the murder of the deceased while attempting to rob the ATM on the said date and time as relied upon by the prosecution. There is nothing to disbelieve the evidence of the witnesses relied upon by the prosecution. Therefore, we do not find any illegality or error in the judgment of the trial Court in appreciating the evidence, recording the findings and convicting the accused for the offence under Section 302 and 393 of IPC.
18. We do not find any merit in this appeal and the appeal being devoid of merit is liable to be dismissed. Accordingly, the appeal is dismissed.
SD/- JUDGE SD/- JUDGE mv