R IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.1520 OF 2007 C/W CRIMINAL APPEAL NO.1596 OF 2007 IN CRIMINAL APPEAL NO.1520 OF 2007 BETWEEN:
1. SRI. A. MAHAVEER SON OF SRI. AMOLAK JAIN AGED ABOUT 40 YEARS RESIDING AT NO.159 NEW COLONY KADIRENAHALLI BANASHANKARI II STAGE BENGALURU.
2. SMT. ASHADEVI WIFE OF SRI. DANARAJ AGED ABOUT 50 YEARS RESIDENT OF NO.182 1ST MAIN ROAD, 2ND STAGE PADMANABHANAGAR BENGALURU. … APPELLANTS (BY SRI. HASMATH PASHA, SENIOR COUNSEL FOR M/S. HASHMATH PASHA AND ASSOCIATES) AND STATE OF KARNATAKA BY CHAMARAJAPET POLICE STATION BENGALURU REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU. … RESPONDENT (BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR-2) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CRIMINAL PROCEDURE CODE AGAINST THE JUDGMENT DATED 19.09.2007 IN SESSIONS CASE NO.335 OF 1991 ON THE FILE OF THE CITY FAST TRACK (SESSIONS) JUDGE, BENGALURU FTC-II,– CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE UNDER SECTION 201 OF INDIAN PENAL CODE AND ACCUSED NO.4 IS CONVICTED OF THE OFFENCES PUNISHABLE UNDER SECTIONS 202 AND 212 OF INDIAN PENAL CODE AND APPELLANT ACCUSED NO.2 IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR 3 YEARS AND FINE OF RS.1,000/- IN DEFAULT SIMPLE IMPRISONMENT FOR ONE MONTH, FOR THE OFFENCE PUNISHABLE UNDER SECTION 201 OF INDIAN PENAL CODE AND APPELLANT/ACCUSED NO.4 IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR 3 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 202 OF INDIAN PENAL CODE AND IS SENTENCED TO SIMPLE IMPRISONMENT FOR ONE YEAR AND FINE OF RS.1,000/- IN DEFAULT SIMPLE IMPRISONMENT FOR ONE MONTH FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 212 OF INDIAN PENAL CODE. BOTH SENTENCES SHALL RUN CONCURRENTLY.
IN CRIMINAL APPEAL NO.1596 OF 2007 BETWEEN SHRI. SANJAY KUMAR JAIN AGED ABOUT 35 YEARS SON OF LATE SRI. M. JAWARILAL JAIN RESIDENT OF NO.3561, 9TH MAIN ROAD KAVERINAGAR BSK II STAGE BENGALURU-560 070. … APPELLANT (BY SRI. HASMATH PASHA, SENIOR COUNSEL FOR M/S. HASHMATH PASHA AND ASSOCIATES) AND STATE OF KARNATAKA BY CHAMARAJAPET POLICE STATION BENGALURU. REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU. … RESPONDENT (SRI. J.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR-2) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CRIMINAL PROCEDURE CODE AGAINST THE JUDGMENT DATED 19.09.2007 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-II, BENGALURU IN SESSIONS CASE NO.335 OF 1991 – CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 397 AND 201 OF INDIAN PENAL CODE AND SENTENCING HIM TO UNDERGO IMPRISONMENT FOR LIFE AND FINE OF Rs.5,000/- IN DEFAULT SIMPLE IMPRISONMENT FOR 3 MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF INDIAN PENAL CODE. FURTHER SENTENCING HIM TO UNDERGO RIGOROUS IMPRISONMENT FOR 7 YEARS FOR THE OFFENCE PUNISHABLE UNDER SECTION 397 OF INDIAN PENAL CODE AND FURTHER SENTENCING HIM TO UNDERGO SIMPLE IMPRISONMENT FOR 3 YEARS AND FINE OF Rs.1,000/- IN DEFAULT SIMPLE IMPRISONMENT FOR ONE MONTH FOR THE OFFENCE PUNISHABLE UNDER SECTION 201 OF INDIAN PENAL CODE. ALL THE SENTENCES SHALL RUN CONCURRENTLY.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.07.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-
JUDGMENT These two appeals are filed against the judgment dated 19th day of September 2007 passed in S.C.No.335/1991 on the file of Fast Track (Sessions) Judge, Bengaluru City, Fast Track Court-II, Bengaluru.
2. Criminal Appeal No.1596/2007 is filed by accused No.1 challenging the judgment of conviction passed against him for the offences punishable under Sections 302, 397 and 201 of Indian Penal Code and sentencing him to undergo imprisonment for life, rigorous imprisonment for seven years and simple imprisonment for three years respectively for the aforesaid offences and to pay fine of Rs.5,000/-, Rs.1,000/- and Rs.1,000/- respectively, and in default, to undergo further simple imprisonment for three months, one month and one month respectively.
3. Criminal Appeal No.1520/2007 is filed by accused Nos.2 and 4 challenging the judgment of conviction passed against them. Accused No.2 is convicted for the offences punishable under Section 201 of Indian Penal Code and is sentenced to undergo simple imprisonment for three years and fine of Rs.1,000/- and in default, simple imprisonment for one month. Accused No.4 is convicted for the offences punishable under Section 202 of Indian Penal Code and is sentenced to undergo simple imprisonment for three months. He is also convicted for the offence punishable under Section 212 of Indian Penal Code and sentenced to undergo imprisonment for one year and fine of Rs.1,000/-. In default, simple imprisonment for one month for the offence punishable under Section 212 of Indian Penal Code.
This Court earlier allowed both the appeals and acquitted the accused persons vide judgment dated 21.04.2010 which was challenged by the State before the Hon’ble Supreme Court in Criminal Appeal No.990-991 of 2012. The same was allowed and the Apex Court set aside the judgment of this Court and remanded the matter to this Court for fresh a consideration. Accordingly, the matter has been taken up for reconsideration.
4. Brief facts of the case are that:-
One Smt.Chukibai, aged about 68 years, was living alone in her house situate at Chamarajpet. She was carrying on the business of pawnbroker in her residence only. Her business was a special business, as it is only other pawn- brokers who were re-pledging the articles got pledged by them with her. Thus, she was having only limited customers who all were well-known pawn-brokers to her. Accused No.1 was one of her customers, accused No.2 is the Uncle and accused No.4 is the Aunt of accused No.1. Accused No.3 was the friend of accused Nos.1 and 2 and he is no more. The case has been abated against him.
5. Smt.Chukibai was keeping the pledged articles in an Almirah in her house and she was opening the door of the house only if her close relatives and her known customers knock the door. Accused No.1 was knowing that an age old lady is residing alone in the house having considerable valuable articles. The said fact influenced him and hence, accused No.1 decided to rob those valuables by murdering Smt.Chukibai. In order to carry out the said ill- idea, on 12.05.1991 at about 20.30 hours, he went to the house of Chukibai. As accused No.1 was a known figure, Chukibai opened the door. Accused No.1 killed her by strangulation, and carried Rs.20,000/- and gold and silver articles in two separate cloth bags to the house of accused No.4 and concealed those articles in the bed room of the house of accused No.4. However, he picked up a small quantity of jewels and by going over to his house handed over those jewels and Rs.15,000/- to his mother. After completing these activities, the fear entered his mind. Then, he approached accused Nos.2 and 3 and sought their help to dispose of the body. Accused Nos.2 and 3 with an intention of getting the robbed articles shared, agreed to help him. They decided to shift the dead body to a distant place and burn it, to screen accused No.1. To carryout the said plan, accused No.3 contacted his friend C.W.-39 Sri.V.N.Sudhan and borrowed his Ambassador Car bearing No.CNO-3040 by misrepresenting that it is required for some urgent work. Then accused Nos.1 to 3 wrapped the dead body in a bed sheet and rug and by placing the dead body in the car, carried it for disposal at 03.00 hours. Before leaving the house, accused No.1 locked the door of the house of Chukibai by using the door lock and carried the lock. Accused Nos.1 to 3 purchased Petrol on the way and carried the dead body beyond Mandya. In the limits of village Kalenahally, they stopped the car and by placing the dead body on the bank of Vishweshwaraiah canal, they set fire to the dead body by pouring petrol at 10.00 hours. Then, they pushed the half burnt body in the canal where water was flowing with considerable force. Thereafter, accused Nos.1 to 3 went to Mysore and gave the car for service and stayed in lodge till evening and then proceeded.
Thereafter, they returned to Bengaluru by borrowing another car from the owner of the garage under the guise of having trial for purchasing it. On 13.05.1991 one Smt.Nemichand, one of the customers of Chukibai came to the house of Chukibai to get the articles pledged by him redeemed. But on finding that the door is locked, he went away by assuming that Chukibai might have gone somewhere. He came again to the house of Chukibai on 14.05.1991 morning and was surprised to see that the door is still locked. He went to the house of Sohan Raj, the brother of Chukibai, to make enquiry. Sohan Raj was surprised to hear that Chukibai is not in the house. He himself and Smt.Sajjan Devi, the daughter of Chukibai, rushed to the house of Chukibai and verified and then Sohan Raj (P.W.4) lodged the report of missing in Chamarajpet Police Station and registered the missing complaint in Crime No.183/1991. Thereafter, Sohan Raj and Sajjan Devi noticed that the Almirah is lying open and the articles kept in the Almirah are missing. Since Chukibai was not traced till 16.05.1991, P.W.4 – Sohan Raj lodged another report by stating that some culprits have robbed and kidnapped Chukibai. On receipt of further report, PSI of Chamarajpet Police Station registered the case in Crime No.183/1991 and started the investigation of the case for the offence punishable under Sections 365 and 392 of Indian Penal Code. Looking to the gravity of the offence, CPI took up further investigation of the case. On 17.05.1991, the customers of Chukibai went in delegation and met CPI. Accused No.1 who was closely following the happenings, followed them. On that day, the behavior of accused No.1 appeared to be little abnormal to CPI. Therefore on suspicion, he detained accused No.1 and interrogated him. Accused No.1 confessed each and everything. On the basis of such disclosure, CPI registered the case against accused Nos.1 to 3, in the very same Crime No.183/1991 for the offences punishable under Sections 302 and 201 read with Section 34 of Indian Penal Code. Accused No.1 carried the Investigation Officer, relatives, panchas pointed out the place where the fire was set to the dead body. There, the Investigating Officer found small burnt pieces of rug and langa of Chukibai. He seized them. Accused No.1 stated that they had pushed the dead body in the canal at the same place. But, the dead body had drowned away. The Investigating Officer and others proceeded ahead, searching the dead body. Finally at a distance of 30-40 kilometers from that place, they found a dead body stuck in the heap of stones. The dead body was removed from the canal and though it had already decomposed, the relatives of Chukibai identified it as of Chukibai. By observing toes, as the dead body was not having the denture, post-mortem was done and the skull was separated. After making superimposition, it was found that the recovered dead body is of Chukibai. Investigating Officer at the instance of accused No.1, recovered the gold and silver articles from the house of accused No.4 as well as from the house of mother of accused No.1 and the car from the garage at Mysore. Such recovery revealed that, accused No.3, with the intention of robbing the valuable articles found in the house of Chukibai, had murdered her, and by robbing the valuable articles of deceased, carried and stored those articles in the house of accused No.4 thereby committed the offence punishable under Sections 302, 397 and 404 of Indian Penal Code. Accused Nos.1 to 3 with the intention of screening accused No.1, the evidence of murder to disappear and thereby they committed the offence punishable under Section 302 read with Section 201 Indian Penal Code. Though accused No.4 came to know that the accused No.1 has committed the offence of murder, kept quite and did not report the matter to the police and thereby committed the offence punishable under Section 212 Indian Penal Code. In addition to that accused No.4 had secretly removed some gold ornaments from concealed bag and had kept them in the Almirah of her house. Accordingly, the Investigating Officer submitted the charge sheet against accused Nos.1 to 4 to make them to face the trial.
6. The offences are triable by the Sessions Court and hence, the case has been committed to the Sessions Court and the Sessions Court has framed the charges against accused Nos.1 to 4. During trial, accused No.3 was reported as dead and hence, case has been abated against him. The accused did not plead guilty to claim the trial. Hence, the prosecution, in order to prove the guilt, has got examined 45 witnesses as P.Ws.1 to 45 and got marked Exs.P.1 to 141 and also 334 material objects. Accused persons were examined under Section 313 of Cr.P.C, wherein they have denied each and every incriminating material. The defence of accused persons was totally denial and they did not choose to adduce any evidence and they only got marked two exhibits, which are contradictory statements appearing in the version of the prosecution witness. The Court below, after hearing the arguments of both learned Public Prosecutors as well as defence counsel, convicted the accused Nos.1, 2 and 4. Hence, both appeals are filed.
7. Accused No.1 filed his separate appeal in Criminal Appeal No.1596/2007 and in this appeal, it is mainly contended that the trial Judge has erred in law in accepting the prosecution evidence and not considered the cross- examination of the witnesses wherein material answers elicited from the mouth of the prosecution witnesses. The learned trial Judge failed to see the several weaknesses and contradictions in the evidence of the prosecution witnesses and the same has been intentionally overlooked. The trial Judge has failed to notice that P.W.4 had categorically admitted in his evidence that earlier to lodging of complaint as per Ex.P.3, he had gone to the house of Chukibai and met her on 13.05.1991 and as such, the question of appellant committing murder on 12.05.1991 does not arise. The trial Judge had accepted the contention of the appellant herein that Chukibai was alive on 13.05.1991 morning in terms of the evidence of P.W.4. At Ex.P.3 besides the statements recorded by the P.W.42 shows Chukibai was missing on 14.05.1991 and trial Judge failed to take note of this fact. Though the Post Mortem Report – Ex.P.121 did not disclose that the alleged dead body belongs to male or female, since the body was beyond any recognition due to decomposition of the urinary organs as well as genitals and the question of identification of the dead body did not arise at all, the Court below without identification of the body has committed an error in convicting the accused.
8. The Court below also failed to take note of the fact that the relatives have visited to the house of Chukibai and alleged voluntary statement was recorded on 17.05.1991 at 7.30 a.m. and only formal recoveries were made on the next day. The evidence of Doctor also does not support the case of prosecution. The body was destroyed without the presence of Deputy Commissioner or Tahasildar of that Village. But, interestingly the Doctor had deposed that the body was laying on the floor when she had arrived to the spot and it was highly decomposed and beyond recognition.
9. The Doctor states that she was unable to conduct post mortem as the body was highly decomposed and beyond recognition. The trial Court failed to notice that Ex.P.11 i.e., alleged recovery of car, which is got up and concocted by the Investigating Officer. The Investigating Officer had made an application to the I Additional C.M.M. Court, Bengaluru on 18.05.1991 at 7.30 a.m. while producing the accused No.1 for further remand on the pretext that the Investigating Officer wanted to recover the Car bearing No.CNO3040. But, Ex.P.11 states that Investigating Officer has already seized the Car on 17.05.1991 itself. Hence, the very judgment is liable to be set aside.
10. Learned counsel contends that the trial Judge failed to consider the material on record that the body was not in a position to identify and recoveries are also not proved at the instance of the accused. In the absence of chain of circumstances, the trial Judge has committed an error in convicting the accused persons. Accused No.4 had moved an application before the Court for the release of the articles. On taking the same into consideration, the trial Judge has come to the erroneous conclusion that accused No.4 also involved in the crime. Mere making an application cannot lead the Investigating Officer to arraign her as accused since she has been arrayed only after filing of the said application. There are material contradictions in the evidence of the prosecution particularly with the finger print, the question of locking the premises of the missing lady Chukibai on 16.05.1991 by the PSI does not arise as per the statement of Investigating Officer and PSI has not sealed the house. The house was already opened. Hence, the opinion of the fingerprint expert does not arise at all and the same has also not been considered by the trial Judge. The trial Judge also failed to notice that P.W.27 – Chandraiah said that he brought the skull and Post Mortem report on 21.05.1991 but P.W.40 – Dr.Anusuya admits that she returned the skull next day i.e., on 18.05.1991 after conducting the post mortem on 17.05.1991. Hence, there is no connectivity and no explanation was forthcoming where the skull was from 18.05.1991 to 21.07.1991 and it was not properly sealed. Hence, the FSL returned the articles on 24.07.1991, which was stated by P.W.33 when there was no FSL facility available in Bengaluru or in Karnataka till 1994, which was admitted by P.W.45. The Investigating Officer and FSL Department did not send the skull for super imposition, which was available at Chennai and Hyderabad and keeping with them for 7 long years and sending the same that even (without the Ex.P.133 - the photo’s of chukibai) and again, after lapse of 16 years, the Doctor was made witness (who is not a part of charge sheet). Earlier report was obtained and after the defence took the defence and completed the trial and the prosecution brought and examined without following the procedure as contemplated in Cr.P.C and if she shown the photos, she can identify but the photo’s were not produced in the Court nor it was part of the charge sheet.
11. The documents given by P.W.45 marked as Exs.P.136 to 141 which were given to the Court on 24.10.2006 after lapse of 16 years. There was no signature and seal of FSL Department. The learned Judge gives much importance to the Report and says the prosecution is mainly rely on the said documents and report of super imposition in his judgment at para No.26 page No.36, which cannot be accepted in the criminal trial and the Court below has erroneously convicted the appellant in the absence of material before the Court.
12. Accused Nos.2 and 4, in Criminal Appeal No.1520/2007, would contend that the trial Judge has committed an error in convicting the accused Nos.2 and 4 and committed an error in convicting these two appellants along with accused No.1. The prosecution did not rely upon any of the evidence that these appellants have joined with accused No.1. The trial Judge overlooked the evidence of P.Ws.4 and 42 inspite of upholding the contention of the defense put forth by them and erroneously comes to the conclusion that accused No.2 helped accused No.1. The trial Judge has failed to notice that P.W.4 had categorically admitted in his evidence that earlier lodging of complaint as per Ex.P.3, he had gone to the house of Chukibai and met her on 13.05.1991. As such, the question of accused No.1 committing murder and accused No.2 helped him in screening the evidence does not arise. The prosecution witnesses have not stated in their evidence with regard to the involvement of these accused persons and trial Court in its own imagination without there being any evidence convicted these appellants, which has caused miscarriage of justice. The trial Court failed to notice that Ex.P.11 which is got up and concocted by the Investigating Officer that the Car has been used to transport the body and Investigating Officer addressed the letter to 1st Additional C.M.M. Court, Bengaluru and going to recover the same. Even though as per Investigating Officer, it was recovered on 17.05.1991 itself. The trial Judge also failed to take note of the fact that the prosecution not examined the owner of the Car bearing No.MEN 7282 in order to prove the charges under Section 201 of Indian Penal Code. There are no any materials before the Court and so also, accused No.4 has been falsely implicated in the case. Accused No.4 has been implicated when she made an application before the Court for the release of the articles and findings urged by the trial Court was unreasonable. Hence, impugned judgment convicting the accused Nos.2 and 4 is illegal, improper and incorrect.
13. The learned counsel for appellants in both the cases, though the separate appeals are filed, in his argument, he vehemently contended that only on suspicion, accused No.1 was arrested and the body which was recovered is not in a position to identify. The prosecution did not place any material that the alleged body, which was recovered, belongs to Smt.Chukibai and there is no any opinion with regard to the cause of death. The super imposition Report is also not helpful to the case of the prosecution and the same was obtained based on the photographs and the same is xerox photograph and not original. The witnesses have also not identified the seized gold and silver articles. The prosecution relies upon the Fingerprint Expert Report and the finger print were taken almost after eight days and there was an infirmity and inspite of that, the trial Judge has committed an error. There is no any material with regard to the place of murder and no evidence to link the chain of circumstances and recovery is also not proved. The Pawnbrokers who have been examined as P.Ws.10 to 20 and their evidence are also not supports the case of the prosecution.
14. The prosecution relied upon only xerox copies of Exs.P26 to P120, which are marked subject to proof and the original receipts have not been produced. The case of the prosecution is that accused No.1 led the investigation officer and pancha witnesses, spot mahazar as per Ex.P10 was conducted on 17.05.1991 in between 12:20 p.m. and 1:15 p.m. On the same day, inquest as per Ex.P1 was conducted between 4.00 and 4:30 p.m. The evidence of witnesses, who have been examined in support of the inquest report and also the spot mahazar, cannot be believed. It is pertinent to note that Ex.P11 – panchanama was held between 5:30 to 6:15 p.m. at Mysuru. Recovery of the ambassador Car was made on 17.05.1991 and remand application was filed on 18.05.1991. The Police sought for custody of the accused on the ground that accused No.1 is required to recover the Ambassador Car and the same is contrary to each other. There is no explanation on the part of the prosecution regarding these contradictions. The Court below also discussed the evidence of PW.44 i.e., investigating officer and has observed that the investigating officer has not given any satisfactory answer to the discrepancy found in the evidence of the witnesses and hence, the evidence of P.W.44 also cannot be accepted.
15. The pawn brokers, who have been examined as PWs.20 to 26, 37 to 39 and 41, have identified some of the articles only based on the bags in which the said articles were kept and not based on any documentary proof, which they were having with regard to pledging of the same with the deceased. Hence, their evidence also cannot be believed.
16. The prosecution relied upon Ex.P15, mahazar of recovery and no mahazar was conducted with regard to the identification of the articles by reopening and resealing of the seized articles. P.W.6, daughter of the deceased, claimed that some of the articles belonged to her mother and the same is without any basis. Accused No.4 is only implicated since he made an application for release of the articles and making of the said application is not an admission. Seizure witnesses i.e., P.W.17 and P.W.44 have spoken about recovery of gold at the instance of accused No.1 from the house of accused No.4 and the said evidence is also not credit worthy. The identity of the jewels is not proved and in their cross-examination, they admitted that they had not collected the receipts for having pledged the articles with the deceased.
17. Learned counsel also would contend that PWs.1, 3, 4, 5, 6, 8 and 9 are relatives of deceased and they have not produced any documentary evidence to show that the articles belonged to deceased and identity of the ornaments is not proved.
18. In support of his contentions, learned senior counsel for the appellant in these appeals has relied upon the judgment rendered by the Hon`ble Apex Court in the case of ASHISH JAIN v. MAKRAND SINGH AND OTHERS reported in (2019) 3 Supreme Court Cases 770, wherein it is observed as follows:
Robbery with murder of deceased in the occupation of money lending and pawning gold and silver ornaments, after entering his house, along with murder of his wife and daughter – involvement of 3 respondent – accused - Case based on circumstantial evidence - Last seen evidence and recovery of stolen property, two main aspects on which case primarily rests, not established - Discrepancies and contradictions in statement of chance witness, present.
The Apex Court has confirmed the acquittal order of the High Court. Learned senior counsel would contend that the judgment is aptly applicable to the case on hand.
19. Learned senior counsel has relied upon the judgment rendered by the Hon`ble Apex Court in the case of SONVIR ALIAS SOMVIR v. STATE (NCT OF DELHI) reported in (2018) 8 Supreme Court Cases 24, wherein the Apex Court has discussed the provisions of Sections 392 and 302 read with Section 34 of the Indian Penal Code, 1860.
Learned senior counsel would contend that in the said case, robbery and murder alleged by the prosecution was based on circumstantial evidence and chain of circumstances was not complete. Hence, the Hon`ble Apex Court held that the guilt was not proved beyond reasonable doubt and reversed the conviction and further reiterated that in a case based on circumstantial evidence, every circumstance would have to be proved beyond reasonable doubt and further chain of circumstances should be so complete and perfect that only inference of guilt of accused should emanate therefrom.
20. Learned senior counsel has relied upon the judgment rendered by the Hon`ble Apex Court in the case of SIRAJUDDIN alias SIRAJ v. STATE OF KARNATAKA reported in (1980) 4 Supreme Court Cases 375, wherein it is observed as follows:
Case rests upon the circumstantial evidence - recovery of jewels of deceased from a pawnbroker, alleged to have been pledged by the appellant - oral testimony of the pawnbroker regarding payment of loan to the accused on the security of the jewels not supported by any entry in his account-books and his evidence otherwise not free from infirmities – held, trial Court’s opinion that the pawnbroker was an unreliable witness could not be lightly ignored - The only circumstance being disproved, charge of murder fails.
21. Further, learned senior counsel relied upon the judgment rendered by the Hon`ble Apex Court in the case of RAJ KUMAR ALIAS RAJU v. STATE (NCT OF DELHI) reported in (2017) 11 Supreme Court Cases 160, wherein it is observed as follows:
Circumstantial evidence - Three circumstances, namely (a) presence of accused at home of the victim, in night previous to incident, (b) unexplained recovery of gold ornaments belonging to deceased from custody of accused persons, (c) accused persons seen in neighbourhood in morning of incident in a perplexed state whether lead to conclusion that prosecution case can be taken to have been proved beyond all reasonable doubts.
In the said case, the Hon`ble Apex Court held that chain leading to the sole conclusion that accused persons only and nobody else had committed crime of murder was not established by three circumstances even if all of such circumstances were assumed to be proved against the accused. However, it was held that crime of robbery under Section 392 of the IPC was established with aid illustration (a) to Section 114 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘the Act’).
22. On the other hand, learned State Public Prosecutor – II would contend that the prosecution mainly relied upon the evidence of the prosecution witnesses. The witnesses, who have been examined before the Court have supported the case of the prosecution. Section 27 of the Act comes to the aid of the prosecution. Since accused No.1 only led the Investigation officer and shown the place where they burnt the body of Chukibai and the place where he dropped her body, Investigation officer as well as pancha witnesses went in search of the body. They found the dead body at a distance of 35 Kilometers from the place where accused No.1 had dropped the body of Chukibai and the same was seized at the instance of accused No.1. It is evident that discovery of fact and also discovery of the body was made at the instance of the accused No.1. P.W.5, who accompanied the Investigation Officer, has identified the dead body of Chukibai. Further, learned SPP - II would contend that burning of the body of Chukibai and dropping of the same in the canal was in the exclusive knowledge of accused No.1 and he only took the investigation officer, panchas and shown the place. Hence, Section 27 of the Act comes to the aid of the prosecution.
23. Learned SPP-II further contended that the witness, P.W.40 – Doctor, who conducted the post mortem on the dead body of Chukibai, has categorically stated about the condition of the dead body and conducting of post mortem as well as collecting of the skull for superimposition test. Doctor, who conducted the superimposition test, has been examined as P.W.45 and she has given the report, which has been marked as Ex.P.131. The evidence of the expert confirms the case of the prosecution that the dead body of Chukibai, which was seized at the instance of the accused No.1 belonged to deceased only. The evidence of P.W.5 coupled with the evidence of PWs.44 and 45 and also the evidence of P.W.40 confirms that dead body belonged to deceased Chukibai.
24. The prosecution also relied upon the evidence of P.W.18, who first spotted the place where the body of Chukibai was burnt and found black spots at the spot.
P.W.1 also found the body and shown the same to the Police. He is a witness to the mahazar. The evidence of P.Ws.1 and 18 corroborates the evidence of the prosecution witnesses. The contention of the learned senior counsel for the appellant/s that the articles were not identified cannot be accepted for the reason that the jewel, which was pledged with the deceased, does not belong to a particular person and the pawnbrokers in turn have pledged the same with the deceased and material objects, which are identified contains gold ornaments and bangles, which are 50 in number. Hence, the very contention of the learned senior counsel for the appellant/s that jewelry has not been identified cannot be accepted. The other contention of the learned senior counsel that the loss of missing articles has not been stated in the complaint cannot be accepted for the reason that the same does not belong to a particular person and the pawnbrokers in turn pledged the same with the deceased and cannot be given the list of missing articles as contended by the learned senior counsel. Learned SPP-II would also contend that P.W.17, supported the case of the prosecution with regard to the seizure of jewels. The owner of the ambassador car in which the dead body of Smt. Chukibai was transported has been examined as P.W.7 and he has clearly stated that he has given car to his friend for sale and from him, it was collected. Learned SPP-II would also contend that P.W.29, who is an employee of the alleged lodge, where the accused was staying on 13.05.1991 also has been examined and he has categorically stated that three accused persons were stayed in the lodge and the said evidence also links to the chain of circumstances.
25. Learned SPP-II in support of his contention, has relied upon the judgment rendered by the Hon`ble Apex Court in the case of EARABHADRAPPA ALIAS KRISHNAPPA v. STATE OF KARNATAKA reported in (1983) 2 Supreme Court Cases 330 regarding Section 27 of the Act, would contend that in order to attract Section 27 of the said Act, condition precedent for applicability of discovery of fact i.e., fact discovered on the ground of prior knowledge of Police about the stolen articles and family members of the deceased categorically identified those articles, the Apex Court held that statement of the accused leading to recovery of the articles is admissible in evidence and also the Court can draw inference under illustration (a) to Section 114 of the Act. In the said case, it is observed:
Illustration (a) to Section 114 of the Indian Evidence Act, 1872, - applicability where murder and robbery forming part of the same transaction – What should be the maximum length of time lapse between the commission of the robbery or theft and recovery of the stolen articles to justify presumption under Illustration (a) to Section 114 of the Indian Evidence Act, 1872.
26. Learned SPP-II would contend that for the applicability of Section 27 of the Act, two conditions are prerequisite, namely, (1) the information must be such as has caused discovery of the fact; and (2) the information must ‘relate distinctly’ to the fact discovered. The fact in the context of Section 27 of the said Act means some concrete or material fact to which the information directly relates. Learned SPP-II referring to this judgment would contend that the body was recovered at the instance of the accused No.1, who led the pancha witness and also the Investigation officer and shown the place where he burnt the body and also where he dropped the body. Hence, Section 27 of the Act attracts the case on hand and also recoveries are made at the instance of the accused and also the vehicle in which the body was transferred was also seized and owner of the vehicle also has been examined. All these facts would lead and link the chain of circumstances. Hence, he prayed this Court to confirm the judgment of the trial Court.
27. Having heard the arguments of learned senior counsel appearing for the appellant/s and the learned State Public Prosecutor - II, the point that arises for our consideration is:
Whether the Court below has committed an error in convicting the accused persons for the charges levelled against them and it requires interference of this Court to acquit them ?
28. Now let us consider the evidence adduced by the prosecution in order to substantiate the charges framed against the accused persons for the charges levelled against them.
29. P.W.1 who is the resident of Yachenahalli wherein the body of the deceased was found and in his evidence, he says that about 6 to 7 years ago, the police came near his land along with some persons and police asked him, whether he had seen any dead body and at that time, he told that there was a dead body at a distance of about 1 ½ furlongs from the said place. He showed the dead body to the police which was in the canal near the slues between the stones. He further says that it was a dead body of a female and he had seen the same for a short time earlier to the arrival of the police. He further says that at the request of the police, he himself with the assistance of a boy lifted the dead body to the bank of the canal. The persons who accompanied the police identified the dead body and subsequently, the Doctor was called and separated the head of the dead body. In the cross-examination, he admits that he went there after the police came and his statement was recorded by the police on the spot itself. It is suggested that he has not seen anything and deposing falsely before the Court at the instance of the police and the same has been denied.
30. P.W.2 is the another resident of Yachenahalli and he also deposed similar lines of evidence of P.W.1. He says that he has signed the mahazar – Ex.P.1. In the cross- examination, it is suggested that he has signed the mahazar at the request of the police without knowing anything and the said suggestion was denied.
31. P.W.3 who is the relative of the deceased. In his evidence, he says that the deceased was doing Pawnbroker business after the death of her husband. Other Pawnbrokers used to pledge articles with the deceased. The articles pledged witness her were being kept in her own house. She used to open the door only after seeing through the ventilator by the side of the main road whenever she heard the knock of the door. That on 14.05.1991 at about 8.00 a.m. he received an information over telephone from Sohan Raj that Chukibai was not found in the house. Hence, he went to the house of Chukibai. When they knocked the door, there was no response. Hence, the same was informed to her daughter and she sent the another key and on opening the door noticed that Chukibai was not in the house and Almirah in the house was opened and Trunk was also opened and the articles were scattered. Hence, Sohanraj has lodged the missing complaint. That on 17.05.1991 at about 8.30 or 9.00 a.m. they were called to the police and found Sohan Raj and also accused No.1. The accused No.1 was also a Pawnbroker and he knew him. The police stated that Chukibai was murdered and the accused No.1 who is going to show the body and they have to identify the same. Hence, they went along with police to Mandya. Accused No.1 showed the place where he was burn the dead body and also showed the place where he dropped the body in the Nala. They found a piece of long skirt of Chukibai and a piece of Blanket which were burnt and they identified the same. Thereafter, the police went ahead in search of the dead body enquiring with the villagers and when they reached about 35 kilometers, a villager told that there was a dead body in the Nala struck in between stone and they went there and saw the dead body. They found the half burnt body and there were no clothes and identified the body as that of Chukibai. The police called doctor and examined the dead body and separated the head from the body and was cremated nearby Nala. That on 20.05.1991, the police called him and they had been to the house of Chukibai and police were searched for finger prints. They found some finger pints on the almirah, a tiffin carrier and a steel tumbler. The police took finger prints and photographs and drawn the mahazar in terms of Ex.P.2(a). This witness was subjected to cross-examination. In the cross- examination, he says that his statement was recorded on 17.05.1991 in the place where the dead body was traced. He further admits that it was on 14.05.1991 that the things were scattered in the house. Nemichand who opened the door of the house. He did not see who closed the door on the said date. He went to the Police Station along with Sohan Raj. Sohan Raj has not stated in the complaint the details as to what were all the properties missing from the house. It is elicited that he has stated before the police that Sohan Raj come along with him for the purpose of identifying the dead body. Further elicited that he has stated before the police that he saw the dead body got struck up in between the stones and that as there were no teeth in her mouth, on the basis of the absence of the said teeth and on the basis of the feet and toes, identified the dead body as that of Chukibai. He further admits that it is partly true to suggest that the face and chest of the said dead body were fully burnt away. He voluntaries that only part of them were bunt. He says that the body was not fully decayed. Its stomach had busted. The intestine had not protruded. Very bad smell was being emitted. It is suggested that the dead boy was fully decayed and the flesh had come out from the skeleton and that the dead body was not in a condition to be identified being that of any specific person and the same has been denied. He admits that if one stands in the police station one could see the house of Chukibai. It is suggested that accused No.1 did not point out any place as the place of burning the dead body and the same was denied. It is suggested that accused No.1 did not state that he threw the dead body into the said Nala and the same was denied. It is elicited that Sohan Raj who stated about the missing of ornaments and further voluntaries that Sohan Raj might have stated about missing of ornaments. It is suggested on that date, no mahazar was made in that house and that he put his signature to the mahazar in the police station and the same was denied. It is further suggested that the dead body found in the Nala on 17.05.1991 was not that of Chukibai and the same has been denied. It is suggested that he deposing falsely to help Sajjan Bai and Maina Bai as they are his relatives and the same was denied.
32. P.W.4, in his evidence, he says that the deceased is his sister and husband of the deceased was also a Pawnbroker. After the death of her husband, Chukibai was living alone in her house and she continued the Pawnbroker business of her husband and Chukibai continued to re- pledge the articles. It is his evidence that on 14.05.1991, on getting the information of missing of Chukibai, he went near the house of Chukibai and found it was locked. Then, he lodged the complaint with the Chamrajpet Police Station that Chukibai was missing in terms of Ex.P.3. He further says that on 16.05.1991, he went to the police station and enquired and he gave further complaint in terms of Ex.P.4. He says that on 17.05.1991, he again called to the police station and went along with relatives and he did not see any other person. The police told him that they would show the dead body. The police in their vehicle and his relatives went to Mandya and police showed a dead body struck in heap of stone in the water. They identified the dead body as that of Chukibai. By seeing the face, they identified it. The police secured a lady doctor and doctor separated the head. He does not know which articles stolen. He was subjected to cross-examination. In the cross-examination, it is elicited that a day earlier to his complaint dated 14.05.1991, he had gone to the house of Chukibai. It was on 14.05.1991, he got the lock one through some of his relatives and after obtaining the key, the lock was opened. He does not know whether the police have drawn the mahazar. He admits in his first complaint, he did not give the description of the ornaments of Chukibai. It is suggested that there were no transaction between accused No.1 and the deceased and the same was denied. He admits that he does not know whether the neighbors of the deceased knows that he is the brother of the deceased. He does not remember whether the dead body of Chukibai had decomposed when they saw it or not. But, he claims that they were able to identify the face. It is suggested that face was not identifiable since it was fully burnt and the same was denied. He says that about 8-10 persons and their relatives assembled there and decided to cremate the body there itself. It is suggested that he does not know whose body was found when they went near the canal and the same was denied. He claims that the deceased was doing pawnbroker business. Hence, he has stated in the Ex.P.4 that ornaments worth lakhs of rupees were missing. He admits that he has no personal knowledge as to how many ornaments and ornaments of what value was there in the house of Chukibai.
33. P.W.5 says that the deceased is the younger sister of his father. He says that the deceased was getting articles re-pledged from the persons of Marvadi Community.
He also acquainted with accused No.1 – Sanjay Kumar as he was doing Pawnbroker’s business and was also pledging articles with the deceased every now and then. But, he came to know that she was murdered about the persons who were re-pledging articles with the deceased. On 14.05.1991, at about 7.00 a.m. Sajjanbai – the second daughter of the deceased contacted him over telephone and enquired about her mother and he replied that he is not aware of it. Thereafter, he himself, his father and some of their relatives went near the house of the deceased and found the door was locked and no response to knocking of the door. After getting the key, when the door was opened, they did not find the deceased in the house. The doors of almirah were opened. After about 30 to 45 minutes, they contacted Maina Bai the first daughter of the deceased who was residing at Bangarpet and enquired about the deceased. She told that the deceased did not visit her house. Thereafter, his father gave a complaint in the Police Station. Again, his father gave one more complaint on 16.05.1991. That on 17.05.1991, the police called to Police Station and when they went, accused No.1 – Sanjayakumar Jain was in the Police Station and at that time, Inspector told them that accused No.1 going to show the dead body of the deceased. The police people along with accused No.1 and a witness Mr.Narasappa went in a Police Van. About 10 to 15 members followed the Police Van in a Car and a Matador Van. The Police Van stopped at a place and they also stopped their vehicles behind it. Accused No.1 pointed out a spot, where the deceased was burnt and also told that body was thrown to the canal. The body was not found. Thereafter, proceeded for about 45 minutes, the villager showed the body and body was removed from the canal with the help of villagers. They identified the dead body of the deceased. They found a portion of the face burnt and the artificial denature of the deceased missing. He identified the dead body after seeing the face, fingers and feet. A lady doctor was summoned and she cut and removed the head of the dead body. After discussion, the body was cremated.
34. In the cross-examination of P.W.5, it is elicited that he did not know personally as to how many books of accounts, Smt. Chukibai had with her in connection with re- pledging business, but she was getting the gold ornaments re-pledged. Further, he has stated that he did not know the names of the persons from whom Smt. Chukibai was getting the gold ornaments re-pledged. It was Mahaveer and Chanchal, grandson and granddaughter of Smt.Chukibai, who were writing accounts in the books of Smt.Chukibai. Occasionally, he himself had seen the said two persons writing the accounts when he used to visit the house of Smt. Chukibai. It is elicited that himself and his father had not mentioned in the complaint that specific number of ornaments with specific description had been missing. He volunteered that at that time, he did not know the details pertaining to the ornaments. It is further elicited that in the complaint filed by his father in the evening of 16.05.1991, there was no mention regarding all the ornaments that had been missing from Smt. Chukibai’s house and their total value. On 17.05.1991 at about 7 or 7:30 a.m., when himself, his father and some customers of Smt. Chukibai had gone to the police station on their own will, Police told them that a customer, who was inside the Police Station, would show him the dead body of Smt.Chukibai. P.W.5 volunteered that the name of the customer is ‘Sanjay Kumar’ and he was identified as accused No.1 before the Court. Accused No.1 was shown to him at about 8 a.m. in the police station. It was village people who showed him the dead body. At the first instance, P.W.5 claimed that face of the dead body was visible and fingers were also visible. It was suggested to him that the body was fully in rotten condition and that it was impossible for him to identify the same. He has denied the said suggestion. Further, it was suggested to him that they did not conduct the cremation themselves and that it was due to the fact that it was not the dead body of Smt. Chukibai and that the Police themselves had conducted cremation. The said suggestion was denied by P.W.5. It was suggested to him that accused No.1 did not tell him that he would show the spot and that he had not at all shown any spot to him. The said suggestion was denied by PW.5.
35. P.W.6 is the daughter of the deceased. In her evidence, she has stated that her father was a pawnbroker and after his death, her mother continued the business, which was carried out by her father as pawnbroker. Only the old customers of her father’s Marwari community used to re-pledge the articles with her mother. It is her further evidence that whenever any customer or any person visited the house of her mother, he/she used to knock at the door of the house and on hearing the knock, her mother was peeping through the window by the side of the door to verify as to who was the person visiting her house and thereafter, she used to open the door. It is her further evidence that her mother was not giving any receipt to the customers and she was doing business orally on trust.
36. P.W.6 further says that Mr.Nemi Chand came to her house and enquired about her mother that she is not in the house and she also accompanied him and her mother was not in the house and thereafter, she brought the duplicate key and on opening the house, she found one cupboard and wooden almirah opened and all the gold and silver articles and cash and also the jewellary belonging to her mother were missing. Her mother used to keep cash of Rs.20 to 25,000/- in the almirah. The Blanket and Bedsheet of her mother were also missing from her bed. The artificial denture of her mother were also found there in the room. Thereafter, her maternal uncle informed the police that her mother was missing. After 2-3 days, the police told that they apprehended the accused No.1. Then, all her relatives went to the Police Station and Sanjay Kumar Jain was also present and he is not her relative. But, he was pledging the articles with her mother. She did not suspect him at that time as accused No.1 was a regular customer of her mother. Her mother used to keep the articles of the customers in separate bags and used to write the name of the customer in the respective bag. The Note Book in which her mother maintained the accounts was also missing. She saw some of the ornaments of her mother, some of the articles pledged with her mother which were shown by the police. Some stolen articles of her mother were not there. Accused No.1 disclosed to the police that he has murdered her mother and her dead body was thrown in the canal near Mandya. Thereafter, police took accused No.1 with them and her relatives followed them in another vehicle. In the afternoon on the next day, her relatives returned and told that the dead body of her mother was cremated. P.W.6 also says that after 8-10 days, she produced the denture of her mother as the police asked her to handover the same as she told the police that she had found the denture of her mother in the house.
37. P.W.6 also says that police was drawn the mahazar and she has signed the Ex.P.5.
38. P.W.6 also says that she can identify the articles of gold and silver. She identifies MOs.1 to 333 and in her evidence, she says that some of them belongs to her mother and some of them are pledged articles.
39. She also identifies the denture as belongs to her mother at MO-334. She says that she gave the same to the police and also she can identify the photograph of her mother. She gave one photograph to the police. On 17th, she came to know about the murder of her mother in Police Station and on 18th in connection with seizure of the properties, the police had gone to Mandya and on 19th there was ceremony in her house. Therefore, she gave the dentures to the police on 20th. P.W.6 further says that notebook contains the pledging of articles and entries were being made by her son Mahaveer and her daughter Chanchal Bai. The said note book has been taken away by miscreants and when taking away the ornaments and other articles. The witness was subjected to cross-examination and it is elicited in the cross-examination that she is also doing the business of pawnbroker and having license. After the death of her father, she has been doing the pawn business and on the strength of the license standing in the name of her father. Further admits that her mother Chukibai was having pawnbrokers license in her own name.
It is suggested that her mother had been issuing receipt in respect of each pledge item to the customers and the same has been denied. But, she admits that in respect of her business, her mother was keeping an account book. It is also elicited that her son and daughter used to go to twice or thrice in a week and used to write the account books. She cannot say how much monthly income was getting from pawnbroker’s business. It is suggested that she has not been doing any pawnbroker’s business and the same was denied. She admits that three years ago, her mother-in-law was also murdered and her mother-in-law was also doing business of getting articles re-pledged by the pledgees. It is elicited that earlier, her mother was living in Mysore Road. It is elicited that accused No.1 had been pledging ornaments with her and the entries have been made by accused No.1 in the accounts books relating to the transactions. It is elicited that accused No.2 had been re-pledging the ornaments with her. She admits that she was living with her mother-in-law. It is elicited that she has stated before the Police that she introduced Sanjayakumar (A-1) to her mother. It is suggested that mother was not doing any business on the basis of trust and the same was denied. It is elicited that she entered the house along with her son Mahaveer and daughter Chanchal. At that time, Sohanraj and others were present. She did not report anything to the police. It is elicited that she has stated before the police about the visit of accused Nos.1 and 2 on 11.05.1991 for redemption of the ornaments and also she has stated before the Police about accused No.1 taking hand loan from her. She has not given any complaint. Others already came to know about the missing of her mother. She does not remember, whether police prepared any writing on 14.05.1991. The police observed that Chukibai was missing on 14.05.1991. The cupboard was kept open. Ornaments and cash were missing. She admits that police visited the entire house including the kitchen and upstairs and entire premises on that date. That on 16.05.1991, she went at about 7.30 or 8.00 clock in the morning. She cannot say from 14.05.1991 to 16.05.1991 with whom key of the house of Chukibai was present during the said period. It is elicited that so far as herself seeing the ornaments for the first time after the incident is concerned. In the Police Station, all the 333 items were shown. When the police showed, some of the items got the chits tagged and some of items did not have such chits. It is elicited that her mother was preserving ornaments of different customers in different bags. When police showed the ornaments, they were in mixed up condition. The police had other things i.e., Rs.15,000/- cash and some gold ornaments. The police who individually separated each item and she examined them with the help of customers chits. The police did not record her statement at the time of identification of the properties by her. The statement was recorded on 19th or 20th of May 1991. It is suggested that when her statement was recorded on 20.05.1991, she has not at all stated the recovery of the ornaments or properties by the police and the same is denied. It is suggested that she did not identify the gold and silver and other properties and the same was denied. When she made the statement and the same was denied. It is her evidence that she has stated before the Police that almarah in the room was opened and there were no bed sheet and woolen Blanket on the bed in the house of Chukibai. It is elicited that accused No.2 had not been doing any business with her mother. It is suggested that she has seen accused Nos.2 and 4 for the first time and the same was denied. She does not know the avocation of accused No.4. But, she claims that she used to come along with mother of accused No.1 to her mother’s house. The properties (ornaments) of silver and gold produced before the Court worth about 13 to 14 k.g. It is elicited that she has not stated before the police, in her statement, that her mother herself was writing in the book relating to the pledging ornaments. It is elicited that in her statement before the police, she has not stated the names of different gold ornaments. She stated that the customers identified the articles and remaining items belongs to her mother. Accused No.1 was doing business with his mother from last 2 to 3 years. The mother used to have the business up to 6 to 6.30 in the evening. Accused No.2 - Mahaveer was not doing any business with her mother, so also accused No.4 – Ashadevi. She further states that she does not remember as to how many times accused No.2 had approached her for pledging the ornaments and for how many times, he has approached her for redeeming the ornaments and what is the total value of the ornaments pledged and redeemed by him. It is elicited that accused Nos.1 and 2 were approaching her almost on every day and sometimes once in two days and some other times twice in a single day for business. She admits that she has not produced the note book of accounts before the police regarding transactions of accused Nos.1 and 2 with her. It is elicited that her mother had been doing re- pledging business for the last 30 to 40 years prior to her death. She states that she has seen customers chits in the police station are that of Dharmichand Maroo, Kanvalal Kokarna, Dharmichand Ghanchi, Nemichand Chowhari and Babulal Hajaji and 4 or 5 others. It is suggested that there were no chits with any of the 332 ornaments and the same was denied. It is elicited that missing of blanket and bed sheet were noticed by her on 14.05.1991 and the same told to Sohan Raj. She did not give the dentures to the police either on 15.05.1991 or on 16.05.1991. She volunteers that she gave the dentures to the police either on 19.05.1991 or on 20.05.1991. It is suggested that on 20.05.1991 or after 20.05.1991, the police gave two dentures to her and that she produced those dentures before the police and the same was denied. It is suggested that there are absolutely no gold and silver ornaments having the chits in the handwriting of pledged customers and the same was denied. It is her evidence that two card size photographs that she has produced before the police. It is suggested that there were no photographs available of Chukibai and the same was denied. It is suggested that she did not give any photographs of Chukibai to the police and the same was denied. It is elicited that she does not remember in which Bank her mother was having the account and she was doing money lending business by having the money in the house itself and mother did not have any account in any Bank. It is her evidence that during the investigation, customers have identified their articles and remaining articles belongs to her mother.
40. P.W.7 is the owner of Ambassador Car. In his evidence, he says that 6 to 10 days prior to the incident, C.W.39 took the car stating that he would sell it and pay the amount to him. When he enquired the C.W.39, he stated that Chamrajpet Police have taken the custody of the car that it was involved in a murder case. He got released the car by filing an application. This witness was not cross- examined.
41. P.W.8 is the grandson of the deceased. He states that accused No.1 had been re-pledging the ornaments with grandmother. He was also a Pawnbroker. The grandmother was opening the door only after peeping through the window and after getting confirmation, she used to open the same. He says that he himself and Chanchal Bai used to go to house of deceased and used to enter the relevant particulars in the note book maintained for that. In the said book, they used to entry the amount paid by Chukibai to the re-pledging customer and the names of those re-pledging customer and description of the articles and dates of re-
pledge the article. She used to keep the ornaments and the cash and notebook in the almirah and cupboard. It is his evidence that on 17.05.1991, accused No.1 was in the Police Station came to know that he committed the murder. It is his evidence that he was in the house of the deceased on 12.05.1991 till 8 p.m. and he wrote the accounts. It is his evidence that he saw accused No.1 – Sanjay Kumar Jain standing infront of the house of Chukibai and he thought that he had come in connection with his business and while seeing him, both of them smiled each other. It is his further evidence that after the death of Keval Chand i.e., husband of Chukibai, shifted her house to Chamrajpet, it was himself and Chanchal Bai who were writing the accounts in respect of all the transaction of re-pledging the ornaments i.e., amount, details of articles, names of customers and dates of pledge. They also writing the dates of release of ornaments and no others were writing accounts except both of them. It is suggested that Chukibai was not doing pawnbroker business at all and the same was denied. It is elicited that L.Sohan Raj was coming often to the house of Chukibai. The missing of Chukibai was informed by Nemichand and they went near the house of Chukibai and she was not in the house and complaint was lodged. He further says that on 12.05.1991, he saw Chukibai for the last time and she was an illiterate. Accused No.1 also belongs to their caste. He has seen the accused No.1 earlier in their community marriages and functions. It is his evidence that Chukibai had not been in the practice of giving receipt to those customers who were pledging the gold ornaments with her. It is elicited that the ornaments like those at MOs.1 to 333 could be there with any pawn broker. He cannot say who pledged the ornaments at MOs.1 to 333 and for what amount and what was the rate of interest. He cannot say the details relating to the ornaments without looking into those chits. In the cross-examination, it is elicited that they do not have any other chits except the chits placed by the police and the Court. It is suggested that he has not stated before the police about opening the lock with key and the same was denied. He admits that he has not given any statement before the police to the effect that if he see the ornaments, he would identify them on the basis of characteristic features. He noticed the missing of articles on 14.05.1991. Sohanraj has given the complaint and one more complaint was given on 16.05.1991. On that day, he has accompanied Sohanraj. He admits that there is no chit attached to any of the ornaments at MOs.1 to 333, written by his grandmother Chukibai. Without looking into the chits, he cannot say which of the customers had written which of the chits and to which of the ornaments. He admits that he did not mention the approximate value of the ornaments and orally, he has stated that the ornaments worth lakhs of rupees have been missing. It is his evidence that he has seen accused Nos.1 and 2 regularly visiting the house of Chukibai now and then. No customer has given any notice to him or to Chanchal Bai or to his mother or his Aunty demanding any ornaments from them. It is suggested that the ornaments at MOs.1 to 333 did not belong to Chukibai and the same has been denied. It is suggested that the ornaments MOs.1 to 333 are the pledged ornaments with accused Nos.1, 2 and 4 by their customers and the same has been denied. It is suggested that there is no link between missing of Chukibai and the accused and the same has been denied.
42. P.W.9 is the son-in-law of the deceased. In his evidence, he states that Chukibai was doing the business of getting the gold ornaments re-pledged with her. The accounts were being written by the son and daughter of Sajjan Bai. Sohan Raj had already lodged a complaint and he noticed that the almirah was empty. It is his evidence that on 17.05.1991, police called to police station and identify accused No.1 in the police station and he took them to the place near Visweshwaraiah Canal and showed the place where he burnt the body and also showed the place where he dropped the body. Thereafter, they went in search of the body and found the body at the distance of 30 to 40 kilometers. They all identified the dead body of Chukibai by examining the fingers of the hands and toes off the legs and the absence of dentures in the mouth which dentures were found in the house of Chukibai. He was subjected to cross-
examination. In the cross-examination, it is elicited that the deceased was not knowing the reading and writing and his wife’s sister’s children namely Mahaveer and Chanchal Bai were writing accounts. On information, they went near the house of Chukibai. It is elicited that they walked about one or two kilometers from the road. They found the half burnt body. The police prepared mahazar at the spot and secured the Doctor. He had seen twenty-thirty times when Mahaveer and Chanchal were writing the accounts. It is suggested that accused No.1 had not led the police either to the first spot or the second spot as stated by him and the same was denied.
43. P.W.10 says that he knows the deceased Chukibai.
She is the younger sister of his mother. Chukibai was residing alone and she continued the business after the death of her husband. He received a phone call on 14.05.1991 and he immediately went near the house of Chukibai and after obtaining the key, the house was opened. When they went inside the house, they saw that almirah and cupboard were opened. Chukibai was not present in the house. He also says that on 17.05.1991, the police called him and they went along with police and also photographer. Accused No.1 showed the place where the dead body was burnt and also dead boy was found at the distance of 30 to 40 kms. The photographer took the photographs. In the cross-examination, it is suggested that on 15.05.1991, they were taken to Mandya from Bengaluru at about 7.30 p.m. and the same was denied. He further stated that on 17.05.1991, they left Bengaluru and reached the spot. The doctor was on the spot nearly for 45 minutes. It is suggested that the doctor had come to the spot, where the dead body was found on 16.05.1991 in the noon but not on 17.05.1991 as stated by him and the same was denied. It is suggested that accused No.1 had not led the team and accused No.1 had not shown the dead body. No mahazars were prepared at those places and he falsely deposing before the Court and the same was denied.
44. P.W.11 is the Police Constable of Mandya Rural Police Station. In his evidence, he says that Bengaluru Police came and took him. The accused showed the direction and accordingly, the jeep was driven and reached a place near Kalenahalli. Accused No.1 led them to a distance of 2 kilometers by walk. He pointed out a place by the side of cannel and noticed something was burnt. A piece of woolen rug and some piece of cloth, which were half burnt, were seized by the police. A mahazar was drawn in terms of Ex.P.10. He has signed it. In the cross-examination, it is elicited that he was not given instruction to write. But, he accompanied Bengaluru Police on oral instruction. Accused No.1 was in the police jeep when other Police Officials came to their police station. Within five minutes, they started from police station. That spot was nearly eight to nine kilometers from the Police Station. It is suggested that Bengaluru Police had not come to their Police Station and that he had not accompanied them to any spot and that later, he signed the mahazar.
45. P.W.12, in his evidence, he says that when he was standing on Mysore Road near his house, the Police Inspector Joyappa called him to accompany him. Accused No.1 was also in that jeep. Accused No.1 led the police to a spot, which was about 15-20 feet away from the canal and pointed out the spot and mahazar was conducted. He has signed that mahazar at Ex.P.10(b). He states that the police took him to Mysore. Accused No.1 traced a garage and one Ambassador Car was seized from that garage and mahazar was drawn. He has signed the mahazar in terms of Ex.P.11(a). In the cross-examination, he admits that he signed only on the mahazars and the signature was not taken to any other papers. He has not acted as panch witness in any other criminal case. He came 2 – 3 kilometers by walk and thereafter, came in a van to Mandya. While going in jeep from Bengaluru, he enquired the name of accused No.1. It is suggested that he has not visited any spot near Mandya or any spot in Mysore and the same was denied.
46. P.W.13 is the resident of Kalenahalli. He says that he was near that place along with his cattle. The accused pointed out a place, where they found some ashes and also some half burnt cloth and woolen blanket pieces. Police drawn Mahazar Ex.P.10, he has signed the same. In the cross-examination, he says that he cannot say the colour of those pieces. There were no other articles on the spot. The police were there till 1.30 p.m. He does not know from that place, the police went to which place.
47. P.W.14 is the Mahazar witness in respect of seizure of gold and silver articles from the house of accused No.4. He states that some ornaments from the house were seized by the police and he was asked to test and weight the said ornaments. He had taken the scale. He had not taken any material for testing. The time was about 7 or 7.30 p.m. He weighed those ornaments. He further says that he can identify those items, which had had weighed if shown to him. The descriptions of the items were mentioned in the Ex.P.12. He signed the Ex.P.12. In the cross-examination, he says that accused No.4 herself voluntarily gave different ornaments of her husband. The witness volunteers that those details are mentioned in the mahazar. He may not be able to repeat the contents of the mahazar. But, on that day, he was present when it was written and to the best of his knowledge the weights and other particulars of the items seized were mentioned in the mahazar. Soon after, he has signed the mahazar, he left that place. The Police Inspector came to his shop and took him and he went in the jeep. It is suggested that he had not accompanied the police to the house of accused No.4 and he has signed it at Police Station and the same was denied.
48. P.W.16 is the workshop owner and he states that police seized the Car by drawing a mahazar in terms of Ex.P.3 and that car was belonging to C.W.21 – Mokthar Ahmed. He can identify the car. In the cross-examination, he admits that he does not know the contents of Ex.P.13.
49. P.W.17 claims that he was called by Police Officials twice i.e., on 18.05.1991 and 19.05.1991. On 19.05.1991 also called to Police Station and they took him and also other panchayathdars to the house of accused No.1. The said house belongs to the mother of accused No.1. Accused No.1 asked his mother to produce the ornaments which he had given to her about five or six days earlier. Accordingly, she has produced the ornaments. The mahazar was drawn in terms of Ex.P.14 while seizing the ornaments. He identifies the signature and also MOs.9 to 14.
[50. That on 18.05.1991, he was called to act as panchayathdar. Accused No.1 was taken by Police Inspector and other panchayathdars. Accused No.1 took them to a bed room situate towards right side of the house and took out certain ornaments which have been kept in two pillow covers beneath a cot. In one pillow gold ornaments weighing about 12 kilograms and in other pillow silver articles weighing about 9 kilograms. The Police Officials opened those pillows and prepared a detailed mahazar. One pillow contained gold ornament to the tune of 310 items. A gold smith was called for the purpose of assessment. He weighed and assessed the articles individually. Each of the articles was kept in a separate polythene cover. Similarly, the silver articles were also weighed and kept separately in bags. A detailed panchanama was done in terms of Ex.P.15 and he has signed the same. He identifies the MOs.15 to 333. In the cross-examination, it is elicited that on 18.05.1991, Mohan Lal and himself went to Police Station. Mohan Lal followed him. Accused No.1 pointed out the house in the presence of Mohan Lal, himself and police party. It is elicited that he does not know as to whether Ex.P.14 the details to the effect that Mohan Lal and himself went to the Police Station and thereafter, he went to Padmanabhanagar house in police jeep. He says that before subscribing his signature to the said panchanama, he read the contents. The police personnel were making notes by typing when the goldsmith was making analysis and weighment. Each of the ornament was having a chit written in Hindi. He does not know as to whether such type of chit had already existed before weighment. The said chits were shown to him. But, he was not able to read the contents of those chits as he does not know reading Hindi. On that day, he did not sign on the chits kept in the cover. He does not remember as to how many bundles of notes were there on that day. It is suggested that Joyappa used to call me as a stock witness to act as a panchayathdar and the same was denied. He does not remember who signed at first to the panchanama dated 19.05.1991. It is suggested that on 16th he had not gone along with the Police Official and the same was denied. It is suggested that on 19th he had not gone with police official to recover the articles and all the articles were recovered on 16th itself and the same was denied. It is suggested that none of the articles seized and the same was denied.
51. P.W.18 is the resident of Kalenahalli. In his evidence, he says that he saw a white Car proceeding from Mysore side. The said Car went towards a group of trees situate by the side of nala and the Car was parked for about 10 to 15 minutes. During the time, when the Car was there, he saw smoke. By that time, he reached the spot and found that a portion of the land had become black and so also a sort of oily foul smell was there. Some of the people who came from the downward direction said that a half-burnt dead body was floating in the nala. In the cross- examination, it is elicited that he did not lodge any complaint about the event which he noticed.
52. P.W.19 says that accused No.1 was there along with police and he identified the witness going near the accused and police took his signature on the mahazar Ex.P.2. In the cross-examination, it is elicited that the door of the house was opened. When he went to the house, police were there inside the house and showed the accused No.1 and told that the said person committed the murder. The contents of the mahazar was read over to him and he has signed and the same was relating to gold ornaments, silver articles and also cash being taken away by the said document. Accused No.1 was also pointed out the place where he committed the murder and the same has been written in Ex.P.2. It is suggested that he has signed Ex.P.2 at Police Station and the same was denied. It is suggested that mahazar was not drawn in his presence and he is falsely deposing and the same was denied.
53. P.W.20, in his evidence, he says that in case of financial distress, he used to pledge the articles with Chukibai. The other persons also used to pledge the articles with Chukibai. He used to raise loan from Chukibai on interest at the rate of 1.50% per month. He used to collect the interest at 1.75%. He had pledged about 21 articles with Chukibai. After the death of Chukibai, he was called by police for enquiry. He went and identified those articles based on the counter files of the receipts given by him to his customers. In his further evidence, he says that he identified the some of the articles in terms of Exs.P.58 to 80 i.e., in total 23 items of gold articles, which were pledged with Chukibai. He further says that he has identified other articles on the basis of the description of the property written in the receipts and police have recorded the statement. In the cross-examination, it is elicited that he has identified the articles pledged by the parties in the Police Station and he has put the signature on them. But, he admits that he has no documents to show that he has re- pledged the articles pledged by the parties and Chukibai was not issuing any receipts. It is suggested that the parties mentioned in Exs.P.58 to 80 have not pledged any articles in his shop and he has concocted the Exs.P.58 to 80 by mentioning fictitious names and the same has been categorically denied. However, he admits that accused was also doing pawnbroker business. It is further suggested that there is a business competition between himself and the accused and the same was denied. Further suggestion was made that he does not know anything about this case and the same also denied.
54. P.W.21, in his evidence, he states that he was pledged the articles with the deceased and he was lending money on a monthly interest at the rate of 1.75% and he used to pledge the articles with Chukibai on a monthly interest of 1.50%. He states that he had pledged 5 or 6 articles with Chukibai. He identified three articles in Guttahalli Police Station and identified MOs.161 so also MO.135 and 135(a) claiming that they are his personal properties. In the cross-examination, he admits that the shop was closed in the year 1991. Till then, he worked and thereafter, he started his own business and not having any documents for having pledged the articles with Chukibai. It is suggested that for the first time, he has seen MOs.161 and 15(a) in the Court and the same was denied. But, he claims that he identified the same in Guttahalli Police Station. He has identified the same in the Court. He admits that if chits are removed, he cannot identify the articles. He further states that when the police have more numbers of gold ornaments, he could not able to identify in the Station.
55. P.W.22, in his evidence, states that he is doing pawnbroker business and lending money and availing money from the deceased Chukibai at the rate of 1.25%. He states that he went and identified the articles which belong to his customers, which were pledged with Chukibai. Pawn ticket is marked as Exs.P.31 and 32 and also he identifies the document Exs.P.33 to 57. He was subjected to cross-examination. In the cross-examination, he admits that Chukibai has not issued receipt in respect of the properties pledged by him. It is suggested that MOs.24, 21, 94, 229, 287, 267, 70, 301, 17, 191, 212, 87, 184, 129, 74, 15, 15(a), 15(b), 15(c), 73, 17, 75, 72, 127, 19 and 125 are not the properties pledged in his shop and they are not his properties and the said suggestion was denied. He states that he has given statement before the police. On the date of giving statement, he has shown the original pawn receipts and thereafter, he gave the photocopies. It is suggested that he has not shown the original pawn receipts and he has not given the photocopies. As such, he cannot say as to what is written in the statement and the same was denied. It is suggested that he has not put the identification marks on the gold ornaments pledged with the deceased Chukibai and the same was also denied.
56. P.W.23, in his evidence, says that they used to pledge the articles with the husband of Chukibai and now, he is no more and after the death, he continued the business with Chukibai. The said Chukibai was not issuing any receipt for having accepted jewels from him. He used to give chit to her. Police called and kept the jewels on the table for the purpose of identification and he identified the ornaments with reference to his pawn book. He was able to identify 16 items out of 25 items lost. He identified the properties i.e., gold ornaments belonging to him and his customer. Chukibai was not issuing the receipts for pledge of the gold articles but she was writing in the register maintained by her. He identifies the signatures on the documents i.e., Exs.P.90 to 106(a). He was subjected to cross-examination. In the cross-examination, he admits that he was issuing receipts to his customer in respect of pledge of articles. He also says that he had borrowed loan from Kevalchand and he has not borrowed loan from Chukibai. But, he was pledged the articles with Chukibai for lower interest. He has given Xerox copies of the pawn receipts to the police and brought back the originals. There were other Marwadi persons in the Police Station. The customers have not given any notice for return of pledged articles and also not filed any complaint against him. It is suggested that he has not identified any gold ornaments and the same was denied. It is suggested that in collusion with P.W.6, he has concocted the documents which he marked and the same was denied. It is suggested that he has identified MOs.110 and 56 as per the direction of P.W.6 and the same was denied.
57. P.W.24 is also another Pawnbroker. In his evidence, he says that he also used to pledge the articles with Chukibai and he pledged the articles of Abdul Ajeej with Chukibai and she was murdered and could not return the same, instead of settled the claim of Abdul Ajeej and identified the Ex.P.26 so also Ex.P.27. He was not subjected to cross-examination by the learned counsel for accused.
58. P.W.25 is also a Pawnbroker. He says that he used to pledge the articles with Chukibai and he was called to Police Station and he went and identified and Exs.P.81 to 89(a) are marked regarding the documents of pledging. In the cross-examination, he states that he was pledging the articles belonging to him and his customers. Chukibai was not issuing receipts and it was pledging on account of mutual understanding. In the cross-examination, it is elicited that he does not remember from which year he starts the business and his customers have not issued any notice for return of the articles and he voluntaries that he has settled their claim.
59. P.W.26 also says that in case of necessity, he used to borrow money from Chukibai. He went and identified seven articles and gave the Xerox copy of pawn tickets to the police. He also identifies the Exhibits 28, 29 and also identifies MOs.73(a), 147, 262 so also Exhibit 30 and identified MO.118. In the cross-examination, he admits that while re-pledging the gold ornaments, they do not get any consent letter from the owners and he has given the Xerox copy of the register to the police.
60. P.W.27 is the Police Constable. In his evidence, he says that he went to Mysore. C.W.70 delivered to him a sealed packet contained skull and also Post Mortem Report and gave report in terms of Ex.P.16. In the cross- examination, he admits that when he brought the said cloth packet, the seals were intact.
61. P.W.28 is the Head Constable. He states that he apprehended the accused – Mahaveer and produced him in the Police Station. In the cross-examination, he admits that he does not know the name of Informant.
62. P.W.29 is the Receptionist of the Hotel. He says that on 13.05.1991, at about 12 noon, the accused Nos.1 and 2 along with another person came to their lodge and obtained the Room No.11 and another person name is mentioned as Azim Beigh and he had signed the arrival register of their lodge. On the same day, they vacated the room and police have brought the accused No.1 to their lodge on 17.05.1991 and he verified the arrival register of the lodge and also identified the accused No.1. They have obtained the Xerox copy of arrival register of their lodge dated 13.05.1991. He was subjected to cross-examination. In the cross-examination, he admits that on 17.05.1991 the owner was not available in the lodge, but he was available at Mysore. There were about 22 rooms in the lodge consisting of ground floor and 1st floor. It is suggested that the P.W.8 came and tortured him to give evidence before the Court and accordingly, he is deposing and the same was denied. It is suggested that he is not at all worked as Receptionist in the Sujatha Lodge, Mysore and the same was denied. Further suggestion was made that the police have not brought the accused No.1 to the said lodge at any time and the same was denied. He states that on that day, one Police Inspector and five police officials came to the said lodge. All of them were in the uniform.
63. P.W.30 is the Head Constable. In his evidence, he says that on 17.05.1991, he was called to take photographs. Accordingly, he went to Station at 9.30 a.m. Accused No.1 was present. Investigating Officer took him and accused and others staff and witnesses to Mandya and accused No.1 took him near Visweshwaraiah Canal where the body was burnt. They found the signs of burning some ashes were there at the spot. He also found the half burnt cloth pieces and he took the photos at the spot. He identifies photos and also negatives as per Exs.P.6 and 7. He also says that from that place, they went about 30 – 40 kilometers and accused led all of them and found the half burnt and decomposed aged women body. As per the instructions of Investigating Officer, he took four photos, which are marked as Exs.P.8 and 9 and also negatives. It is also his evidence that on 20.05.1991 again he was called to Station and he was taken to house No.105, 1st main, Chamrajpete and took the photos of the finger print. He took one photo of Gadredj Almiraiah and other five photos on the Steel Tiffin Carrier. The police also drawn the mahazar in the presence of the public and he developed those photos and given the same with negatives and identifies the Exs.P.17 and 18. He also says that two photographs of finger print was taken and developed and those photos are marked as Exs.P.19 and 20. He was subjected to cross-examination. In the cross-examination, a suggestion was made that he did not go to Chamrajpete Police Station on 17.05.1991 and the same was denied. It is suggested that the Investigating Officer has not taken any of the accused to Mandya District along with him and also he has not taken any photographs near Vishwewaraiah canal and the said suggestions were denied. He says all the four photographs taken by him at Vishwewaraiah canal were given to the Investigating Officer. Out of them, two photographs are marked as Exs.P6 and 7 and other two photographs are not produced before the Court. It is also suggested that on 20.5.1991 he had not at all gone to the house of the deceased for taking the photos and the said suggestion was denied.
64. P.W.31-Head Constable in his evidence says that on 17.5.1991 at about 11 p.m. he was in his house. He was called to the police station and the police Inspector entrusted the third FIR to hand over the same to the Presiding Officer. At that time, the Presiding Officer was residing at I block, Rajajinagar and the distance from the police station to his residence was about 8-10 kms. In the night there was no public conveyance to reach the residence of the Officer and hence, on the next day morning at about 7 a.m. he has submitted the FIR. In this regard, he gave the statement before the Investigating Officer.
65. P.W.32- Engineer, in his evidence, says that he was asked to prepare the sketch of scene of occurrence. Accordingly, in the last week of July 1991, he visited the spot along with the police and prepared the rough sketch of the scene of offence which was shown by Sajjan Raj Jain. Thereafter, he prepared the sketch in terms of Ex.P21 and he identifies his signature. In the cross-examination he admits that he has not sent the rough sketch prepared on the spot along with the neat sketch Ex.P21. It is suggested that he has not at all visited the spot and prepared the rough sketch on the spot and the same were denied.
66. P.W.33 - Police Constable, in his evidence, says that on 24.7.1991, the Police Inspector entrusted the sealed articles to deliver the same to FSL and accordingly, he delivered the said articles to FSL on the same day. The FSL authorities have found one of the item was not properly affixed with seal and hence, returned the same and he brought it back and delivered to the Police Inspector, then the Police Inspector. After putting proper seal, the Police Inspector entrusted the said article to him to deliver the same to FSL and he delivered the same on 30.7.1991. In the cross-examination a suggestion was made that he not at all delivered the said articles to the FSL and he is giving false evidence and the same was denied.
67. P.W.34-CPI, in his evidence, says that on 14.5.1991, at about 3.00 a.m., after completing rounds in the limits of his police station was in the police station. At that time, C.W.41 has appeared before him and gave report and also produced accused Nos.1 and 2, black FIAT car bearing No.MEN 7282. He also produced some ornaments like gold with list and hence, asked to register a C.Mis case and accordingly, he registered C.Mis.47/1991. He enquired accused Nos.1 and 2, for which, accused No.1 disclosed his name as Sanjay Kumar Jain, Pawn broker and accused No.2 disclosed his name as Mahaveer Jain, Pawn Broker, both are residents of Banashankari, Bengaluru. They revealed that they had been to Mysore for selling the ornaments and while returning from Mysore their car developed some defect and therefore, they stopped the car at Mudigere situate at Bangalore-Mysore road. They also revealed that they have purchased the said car at Mysore through one Mustaq Ahmed, Automobile Agent. Both accused Nos.1 and 2 were kept in custody and in the morning, when he came to the police station he further enquired them. C.W.41 took accused Nos.1 and 2 to his office for enquiry and on the same day evening let off accused Nos.1 and 2 after enquiry. On 17.5.1991, when he was in the police station, the Police Inspector of Chamarajpet Circle namely Joyappa came to the police station along with accused Nos.1. When he arrested, accused No.1 was having beard and head full of hairs, but when the Police Inspector Joyappa brought them both accused persons had shaved their heads. After seeing them, he identified accused Nos.1 and 2 as the persons produced by C.W.41 Uthappa. When he was subjected to cross-examination, he admits that on 14.5.1991 at about 11.00 a.m. after he came to the police station C.W.41 took the accused Nos.1 and 2 and the properties to his office for enquiry. While handing over the articles and accused Nos.1 and 2 to the custody of C.W.41, he has not taken any acknowledgements from C.W.41. He admits that he has not confirmed the address given by accused Nos.1 and 2 with any other persons.
68. P.W.35 - Retired Superintendent of Police, in his evidence says that in the night of 13/14.5.1991 he was on night rounds in the limits of his circle. On 14.5.1991 at about 3 a.m. when he was patrolling on Mysore-Bangalore Highway limits of Mudigere village little ahead of Primary Health Centre of the said village he found a FIAT car bearing No.MEN 7282 parked on the road margin. Therefore, he stopped he vehicle and verified the said car and he found two youths sleeping on the back seat of the said car. He woke them up and enquired about their whereabouts, for which, they told they are the residents of Banashankari Layout, Bangalore and revealed their names as Sanjay Kumar Jain and Mahaveer Jain. They have further told that they had been to Mysore and for the purpose of purchasing the said car, they have come on trial run and in the middle, the said car became out of order. On searching the car, he found one cloth bag containing something. On opening the same, he found some old gold ornaments and silver articles in the said bag. They told that they are the articles of their pawn shop. However, having regard to the circumstances under which he found them along with the articles, he suspected their statement and on verifying the information given by them, he brought them to Channapatna Rural police station along with the vehicle by toeing. Then he handed over the said articles and the two persons to the custody of then PSI namely, Venkatesh along with his report. He also directed him to verify the information given by the said persons. He identified accused Nos.1 and 2 present before the Court as the persons who have been handed over to the custody of the PSI along with the car. Then he made necessary entries in his diary and went home. Then on the next day morning at about 11 a.m. he went to office and contacted the Police control Room, Bengaluru and also the PSI Banashankari Police Station. He asked the PSI, Banashankari police station to verify the antecedents of accused Nos.1 and 2 and to pass on the message to him. Then the PSI, Banashankari police station has verified the address and profession of accused Nos.1 and 2 and stated that there are no any adverse reports about the accused and from the police control room also it was confirmed that there is no report of theft of car, gold and silver articles. He has also got confirmed the information given by accused Nos.1 and 2 about the car by contacting the car consultant at Mysore. Therefore, he returned the articles to the accused and let them off. In the cross-examination of this witness it is elicited that accused Nos.1 and 2 were in Channapatna Rural police station. It is suggested that he has not given any report to the PSI, Channapatna Rural Police Station and same was denied. It is further suggested that he has also not given accused Nos.1 and 2 to the custody of the PSI along with articles and the said suggestion was also denied. It is elicited that he has not furnished any documents for having confirmed the reality of statements given by accused Nos.1 and 2.
69. P.W.36 - Finger Print Expert, in his evidence, says that he was trained and worked in different finger print expert’s centre from last 25 years. That on 20.5.1991, he was working in the office of Bangalore Police Commissioner as finger print expert and he had received a call at 9.00 a.m. in connection with Crime No.183/1991 to come and take the finger prints. Accordingly, he went to Chamrajpet police station and along with the Investigating Officer went to the spot i.e., house No.105/2 of Chamrajpet. The Investigating Officer unsealed the door and allowed him to go inside the room. He found scattered things. By using chemicals, he examined the finger prints found on the stainless steel tiffin career. He also found two finger prints on the steel almirah and the same were marked. He did not find any finger prints other than these two articles and he took the photos of the same. During that time, he himself, the Investigating Officer, P.W.30- photographer and relatives of the deceased were there. Accused No.1 was also brought to the spot and mahazar was drawn and he returned to office around 1.30 p.m. and thereafter, sent the report to the Investigating Officer as per of Ex.P22. He identifies his signature as Ex.P22(a). The finger prints were tallied with the finger prints of the accused. He could not tally the finger prints from C to F. He has given the report as per Ex.P23 and identifies the signature as Ex.P23(a). He identifies the photographs of finger prints of accused No.1 as per Exs.P17-P20 and also produced the negatives as per Ex.P17(a) and P8(a).Exs.P19 and 20 are the photographs of left hand index finger and right hand middle finger of accused No.1 and the same are marked as ‘S1’ and ‘S’. The negatives are marked as Ex.P19(a) and 20(a). He also identifies the finger prints of accused No.1 which was sent by the Investigating Officer i.e., Ex.P24. The finger prints which tallies with Exs.P18 and P20 are marked in red line as 1 to 8. He also says that left hand index finger print of the accused and right hand middle finger print of the accused tallies with Exs.P17 and P18. He was subjected to cross- examination. In the cross-examination a suggestion was made that he was not having the required qualification to conduct the finger print examination and give report and the same was denied. However, he admits that he has not obtained any certificate from any University. However, he voluntarily submits that he has passed the All India Finger Print Expert examination conducted by the Central Government. He admits that the Karnataka Government has not appointed him as finger print expert. However, he says that the Chief Officer of the Karnataka Finger Print institution has certified that he is a finger print expert. He admits that he has not produced the certificates with regard to his training in finger print before the Court and that he is not having any difficulty to produce the same. He is not having personal knowledge in what mode the Investigating Officer has sent the articles, but he went to spot on the instructions of his superior. In the movement register he made an entry for having visited the spot. He does not know why Venkatarao, photographer was called to the police station and that he did not enquire with the Investigating Officer regarding the same. On that day, Investigating Officer Krishnappa has sent him and the Head Constable to the place of incident. It is elicited that when they went near the house, it was locked and he cannot tell who removed the lock of the door after they went to the spot. But police have removed the lock of the front door. He found scattered things in the hall i.e., stainless steel tiffin box, steel almirah was kept open and it was empty and some plastic boxes were also lying. He admits that he did not ask the photographer to take the photographs of all the places, but he only instructed to take the photographs of the finger prints. He showed the finger prints to Krishnappa, the Investigating officer and he inturn, told the photographer to take the finger prints. He has shown 7 finger print places found in the hall to the photographer to take the photos. It is suggested that the place which he has shown was collected with dust and the said suggestion was denied. He admits that without the permission of his superior he cannot go and collect the finger prints. He admits that the finger prints will be available for a period of 2-3 days if there is no air and light circulation in the room. He says that finger prints will remain for a longer time on the glass items. He admits that he did not take the finger prints of the accused. He admits that the negatives will be with him till the time of producing the same before the Court. The finger print which he found in the house belongs to a particular person, but cannot tell whether it belongs to a woman or a man and also their age. He further admits that without a specimen finger print he cannot give opinion as to whom does it belong to. He admits that two finger prints cannot be the same at any stage. It is suggested that he was not called to Chamrajpet police station on 20.5.1991 and he did not go to spot and has not taken any finger prints and the said suggestions were denied. It was suggested that he gave the opinion only to help the Investigating officer and the said suggestion was denied. He did not find any blood stains at the spot and also did not find any signs of altercation having taken place at the spot. He also did not find any jewels. He did not find any finger prints on the wall, windows and doors and that he was not aware as to whose finger prints they were when he went to spot. It was suggested that in order to help the Investigating Officer he has created the documents and the said suggestion was denied. He admits that when he was called to the police station he does not know whether accused persons were arrested or not and further he admits that till the visit of the finger print expert the said spot has to be protected.
70. P.W.37 - Pawn Broker, in his evidence, says that he was pledging the gold ornaments of his customers for a lesser rate of interest with Smt.Chukibai. Smt.Chukibai used to write in a register about the ornaments pledged by him, but she was not issuing receipts. She used to tie tags on the ornaments pledged by him with Smt.Chukibai. He came to know that Smt.Chukibai was murdered. The police have shown the ornaments pledged by him with Smt.Chukibai. He has identified two ornaments on the basis of tags and other ornaments were identified by referring to pawn receipts. The police took the photocopies of concerned receipts and returned the receipt books to him. He identified pawn ticket No.4511 issued by him for pledging of one gold lacha with Karimani for Rs.4120/- by Smt.Ikbal Unnisa. Same is marked as Ex.P107. The photocopy of the pawn ticket No.4036 was issued by him for pledging of one gold lacha with Karimani for Rs.2,000/- by Shamee Ulla. The same is marked as Ex.P108. The photocopy of the pawn ticket No.4510 was issued by him for pledging of one pair of gold jhumki and tops for Rs.2060/- by Smt. Ikbal Unnisa. The same is marked as Ex.P109. The witness also identified other receipts which are marked as Exs.P110 and 111. In the cross-examination he says that he has re-pledged the articles with Smt.Chukibai at different times and has given the details to the police regarding the articles pledged by the customers and repledging of the same with Smt.Chukibai. The police have taken xerox copies of receipts and have recorded his statement. The customers have not given any notice to him demanding return of the pledged articles. It is suggested that he has identified the properties as per the instructions of P.W.6 and concocted the documents and the said suggestion was denied. It is suggested that he did not have the pawn receipts with him and also not handed over the xerox copies of said pawn receipts to the police and the said suggestion was denied. It is suggested that he did not pledge M.Os.170, 219, 84 and 182 with him and also he did not repledge the said articles with Smt.Chukibai. The same was denied.
71. P.W.38 is the Pawnbroker. In his evidence, he says that he knew deceased Smt.Chukibai. He was re- pledging the ornaments of the customers of Smt.Chukibai and she was not issuing any receipts. Smt.Chukibai was mentioning the particulars of the properties pledged in a registered maintained by her. He came to know that she was murdered. It is also his evidence that the police informed him to identify the properties belonging to him. Accordingly, he identified the properties which he pledged with Chukibai. But, he could not identify some of the properties. But, he identifies some of the properties on the basis of pawn receipts. The police have taken photocopies of pawn receipts from him. He also identifies signatures in Exs.P.112, 113, 114 and also identifies MOs.82, 224 and 291. He was subjected to cross-examination. In the cross- examination, it is elicited that the articles pledged by customers cannot be re-pledged with others. However, he voluntaries that there was no such rule about the six years back. The police have not shown the register maintained by Smt.Chukibai. He further says that he himself and other 10 to 15 members have gone to the Police Station and while going to Police Station, he had carried the original pawn receipts to the Police Station. The Police have taken the Xerox copies of pawn receipts. But, they have not given the acknowledgement. It is suggested that he has not issued pawn receipts to the customers and he is deposing falsely at the instigation of P.W.6 and the same has been denied.
72. P.W.39 is the another pawnbroker. He reiterates in the line of the evidence of P.W.38 and claims that he had identified some of the properties on the basis of pawn receipts and police have taken the photocopies of the pawn receipts from him. He identifies his signature on Exs.P.115, 116, 117, 118, 119 and 120 and gave details the value of the pledged receipts. He further examined and identifies M.Os.31, 88 to 263 and 304. In the cross-examination, he admits that he has not shown any license or document to the police to show that he was running pawn broker business. When he first time went to Police Station, he told him to get the pawn receipts and books. As such, he had gone for second time with receipts. The police have not given any acknowledgment for having received the photocopies of the pawn receipts. It is suggested that he had not pledged any gold ornaments of his customer with Smt.Chukibai and the same was denied.
73. P.W.40 is the retired lady Medical Officer. In her evidence, she says that she has conducted the Postmortem of the dead body of Smt.Chukibai on 17.05.1991 between 3.45 p.m. to 5.00 p.m. On that time, she noticed that there were no hair over the scalp, face was completely decomposed, mandible joint had loosened and it was coming out, soft parts of the eyeballs were eaten by aquatic animals. The skin over the right part of the chest and left part involving the left breast was burnt. There were no dentures in the mouth cavity. P.W.40 says that skull was separated and the same was handed over to police for super imposition. She also identifies her signature on the Postmortem Report – Ex.P.121(a). Further, she says that it was not possible to give opinion about the cause of death as the dead body was decomposed. The skull found in the said cloth packet M.O.335 was shown to the witness. The witness identified the skull as that of deceased Chukibai. The witness was subjected to cross-examination. In the cross-examination, it is elicited that the body was fully naked and there were no clothes. The body was decomposed and not in a position to identify. The body was laying in the water from 3 to 4 days and the same is not mentioned in the Postmortem Report. The police told her that the body was decomposed and not possible to bring the same to the hospital and hence, she went to the spot. The witness also says that when she went to the spot, she found it was in decomposed state and hence, she did not tell them to shift the body to the hospital. Postmortem was conducted at the spot. It is elicited that she separated the skull for super imposition and suggested to have the super imposition report and the said decision was taken by herself. It is suggested that without the consent of the relatives, the same cannot be removed and the same was admitted. But, she says that she took the oral permission of the relatives. It is elicited that even though the dead boy was decomposed, by seeing the state of decomposition, the jaws and age can be ascertained and she was aged about 60 years. It is suggested that it was the body of male person and not the female and at the instance of police, she gave the report as per the request of police, the same was denied.
74. PW.41, in his evidence, states that he used to repledge the gold articles with Chukibai. He came to know that Chukibai was murdered by a person by name Sanjaykumar, who was repledging the gold articles with Chukibai. He had gone to Chamarajapet Police Station and identified 4 to 5 gold articles pledged by him with Chukibai and also produced Photostat copies of pawn receipts to the Police. He identifies his signature on Ex.P122, 123, 124 and 125. He also identifies M.Os.103, 289, 302 and 102 which are pledged by him with Chukibai. He was not cross examined.
75. PW.42 is the Inspector. In his evidence, he states that on 14.05.1991 he was in the Station. At about 10.15 a.m. Sohanraj came and gave the complaint in terms of Ex.P3. He also deputed Police Staff to search missing Chukibai. That on 16.05.1991 Sohanraj gave another complaint that Chukibai was kidnapped. Based on that report, he registered the case under Section 365 and 392 of Indian Penal Code which is marked as Ex.P4. Thereafter he entrusted the investigation to Circle Inspector. It is also his evidence that in terms of the order of the Circle Inspector on 11.06.1991, he apprehended the accused Azeem Baig at 6.20 p.m. and produced before the Circle Inspector. He was subjected to cross examination. After receiving the complaint in terms of Ex.P3, he himself and his staff went to the house of Chukibai, inspected and also enquired the neighbours and recorded their statements. He did not send the said statements along with charge sheet. He did not receive any complaint other than Sohanraj.
76. PW.43 - Additional Director of FSL in his evidence states that on 02.07.1991 a sealed cover was received for examination and found the burnt pieces of clothes and also Woolen rug pieces, which were subjected to examination. He has given report in terms of Ex.P126. The clothes were returned to the Police after examination. He was subjected to cross-examination. He states that on 02.07.1991, he was permitted to examine the articles by the Director. Accordingly, he examined the same. It is suggested that the Police did not send any material and he has given the report in terms of Ex.P126 at the instance of Police, but the same was denied.
77. PW.44 in his evidence states that he was working as Circle Inspector and he took the further investigation from PW.42. PW.42 locked and sealed the house in which the incident had taken place. That on 17.05.1991 at about 7.30 a.m. the complainant and other 20 persons came to his office and told that they had also pledged certain articles with the deceased and requested to speed up the investigation. At that time, Accused No.1, who was present there, was observing the affairs in the Police Station. On enquiry, he told that he had also pledged some articles with Chukibai. PW.44 asked him to wait outside. The complainant told that earlier accused No.1 used to re-pledge the gold ornaments with the deceased. At that time, he had a long beard and the same has been removed. Thereafter he called accused No.1 and enquired as to why he has removed his beard. He was told that he along with accused No.3 had gone to Thirupathi and got removed the same on 13.05.1991. When he enquired others, it appeared that the same was removed on that day only and hence, subjected him for interrogation, accused No.1 admitted the guilt that he has committed the murder. He also told that gold ornaments were kept in his aunt’s house. He was arrested and his voluntary statement was recorded in terms of Ex.P127. He also told that he has given an amount of Rs.15,000/- and some of the gold and silver articles to his mother. The case was registered for the offence punishable under Sections 302 and 201 read with Section 34 of IPC. He called the relatives of the deceased, photographers and also Panch Narasaiah and explained the voluntary statement of accused No.1 and requested them to join him. Accused No.1 was taken in his jeep and other relatives of the deceased followed him. He took them towards Mandya and in the meanwhile, he went to Mandya Rural Police Station and took the constable along with them. The accused led them near the place of the Canal and showed the place where he has burnt the body of Chukibai. They noticed that the place was black in colour and the burnt pieces of woolen rug, inner wear etc of Chukibai, which were seized. Mahazar was drawn and photos were taken in terms of Ex.P6 and 7a. The mahazar is marked as Ex.P10. He identifies the signature as 10(c). The panch witnesses have also signed the same. He also stated that after burning the body, the same was thrown in the nala. Thereafter they went in search of the body and found the body at a distance of 30 to 35 kms. Photos were taken in terms of Exhs.P8 and 9. Since the said place was within the jurisdiction of Bannur Police station, he enquired whether any case has been registered. He conducted the inquest in terms of Ex.P1. He also recorded the statement of Sohanraj, Uttamchand and Kempegowda who showed the body to them when they were in search of the body. Immediately he called the doctor to the spot since the body was in a decomposed state. He requested the doctor to separate skull and submit the same to their custody. Thereafter body was cremated at the spot.
78. Thereafter, accused No.1 took them to Mysore and pointed out the place where he left his car bearing No.CNO 3040 for repair at Mysore. Mahazar was drawn in terms of Ex.P11. Accused No.1 told that he had borrowed the car from Mukthar Ahamed. He also says that he went to hotel Sujatha and stayed there for some time. He also recorded the statement of Receptionist. He produced the photo copy of the register. He identified accused No.1. He also went to Channapatna Rural Police station and recorded the statement of Inspector Sri Venkatesh. He also identified accused No.1. He registered the case and showed the name of accused Nos.1 to 3 in the F.I.R. and took accused No.1 to his custody, till 22.05.1991. That on 18.05.1991, accused No.1 took him and panchas to the house of accused No.4. He also called the local panchas and found accused No.4 in her house. Accused No.1 went inside the room and removed two bags which were kept beneath the cot. On searching the bags, gold articles were found in one bag and silver items were found in another bag. The same was weighed. The gold ornaments were to the extent of 12 kilo grams and the silver articles were to the extent of 9 kilo grams. Each of the items were weighed and given the number and there were 310 items. The other silver articles were also numbered as 311 to 319. He has drawn the mahazar in terms of Ex.P5. He identifies his signature as Ex.P15 and also identifies the signatures of panch witnesses.
79. That on 19.05.1991, the accused led him and Panchas to house No.31/65 and told that his mother is staying in the said house. Accused No.1 told his mother to hand over the gold articles and the amount he had given. Accordingly, the mother of the accused gave Rs.15,000/- cash and 141 grams gold ornaments. The same was seized by drawing the mahazar in terms of Ex.P14. He also recorded the statement of complainant and other relatives of the deceased. He deputed the staff to apprehend accused Nos.2 and 3. That on 20.05.1991, he called the photographer, the Finger Print Expert and also Panchas and went to the house of the deceased. The lock was opened, seal was removed and accused No.1 went inside the house and showed the place where he committed the murder, so also showed the Almarah wherein the gold articles were kept. The Finger Print Expert took the finger prints on the Almarah and also on the steel carrier. He also drew the mahazar in terms of Ex.P2. He also recorded the statement of daughter of Chukibai. She also produced the denture of Chukibai which was seized. The photo of the deceased was also collected and recorded the statement of witnesses.
80. That on 21.05.1991, in the afternoon, he himself and the staff went and apprehended accused No.2 and his voluntary statement was recorded. That on 22.05.1991, accused Nos.1 and 2 were produced before the Court. He deputed staff to apprehend accused No.3. That on 23.05.1991, he obtained four photos from the photographer which were marked as Exs.P6 to P9. He also received letter from Finger Print Expert, requesting to send the finger prints of the suspected persons and also the persons, who were residing in the house. That on 29.05.1991, he collected the finger prints of accused Nos.1 and 2, so also Sajjan Bai, Myna Bai and Kumari Chanchala and sent the same to Finger Print Expert. That on 30.05.1991, he informed the Investigating Officer that finger prints of accused No.1 tallies with the photos. The report is marked as Ex.P22 and the letter of Finger Print Expert is marked as Ex.P23. He also recorded the statement of Sudhan and Mukthar Ahmed in respect of fiat car bearing No.MEN 7282 and the said car was seized. Sajjan Bai has also produced the Pawn Broker License of Chukibai in terms of Ex.P28. That on 04.06.1991, the Finger Print Expert sent photographs of finger prints. That on 11.06.1991, accused No.3 was apprehended and produced before him. He recorded his voluntary statement. He also called the persons, who have re-pledged the gold articles with Chukibai and some of them have identified the same. That on 26.06.1991, he sent the Police Constable-Puttaswamy to Channapatna Circle Inspector Office and secured the dairy dated 14.05.1991. On 27.06.1991, the half burnt woolen rug and clothes were sent to Forensic Science Laboratory. The Engineer, Public Works Department was requested to prepare the sketch.
The staff was deputed to observe the movements of accused No.4. That on 05.07.1991 he went to the house of accused No.4 along with panchas. While searching the said house, the accused No.4 tried to hide a bundle which was removed from the almarah. On verification, she found 140 grams gold articles and accused No.4 did not give any proper reply and the same were seized by drawing the mahazar in terms of Ex.P12. He felt accused No.4 also participated in the murder and harboring the other accused persons and she was arrested. She was released, since she had obtained the anticipatory bail. He also recorded the statement of witnesses. The Pawn Brokers, who have re-pledged the gold articles with the Chukibai were produced before him. That on 17.07.1991, in terms of the Court order, he released the vehicle. That on 20.07.1991, he sent Police Constable Chandraiah to collect the post mortem report and the scull was also produced. Sajjan Bai also produced the photos of her mother and along with the scull, the said photos were sent to the Forensic Science Laboratory. That on 30.07.1991, the scull, denture and photos were sent to the Forensic Science Laboratory. He has received the report from the Forensic Science Laboratory in terms of Ex.P126. Thereafter, on 08.08.1991, in terms of the Court order, the gold and silver articles were released in favour of Sajjan Bai. After completion of the investigation, he filed the charge sheet against accused Nos.1 to 4. Thereafter, he has received the Super Imposition Report from the Forensic Science Laboratory and the same was produced before the Court in terms of Ex.P131. He also identifies the scull as M.O.335 and denture as M.O.334. The photo copy of the receipts for having re-pledged the gold articles were also produced.
81. In the cross-examination of P.W.44 it is elicited that the Sub-Inspector-Krishnappa gave all the documents of investigation he has done in the case on 17.5.1991, but he did not obtain any receipt for having handed over the documents to him. No complaint was given on 17.5.1991 and looking to the first information report he himself has invoked Sections 302 and 201 r/w Section 34 of IPC. He took custody of accused No.1 on 17.5.1991 at 8.30 a.m. The house of the deceased is at the distance of 100 feet from Chamrajpet police station. He was working as Circle Inspector of Chamrajpet circle from April 1990 to July 1991. That on 17.5.1991 Sub-Inspector Krishnappa did not make any investigation and that he only assisted him. As per the report of Krishnappa, the Sub-Inspector, the house of Chukibai was sealed on 16.5.1991 and he had not conducted any mahazar during that time. On 17.5.1991, he did not visit the house of Chukibai. He did not enquire whether accused No.1 accompanied the complainant Sohanraj to the police station on 14.5.1991. It is elicited that he sent the other twenty persons who were in the police station outside and thereafter, called accused No.1 inside the police station. In the meanwhile, Sohanraj told that accused No.1 had got removed his beard. The other two persons who were with him also confirmed the same. The accused alone came to the police station on 17.5.1991. Based on the second complaint, he apprehended accused No.1. Accused No.1 was produced before the Magistrate on 18.5.1991 and before producing him, third FIR was sent to the Court. Accused No.1 along with accused No.2 were produced before the Court on 22.5.1991 around 11.00 a.m. Accused No.2 was apprehended on 21.5.1991. Accused No.3 was arrested on 11.6.1991. The car was seized on 17.5.1991. It is suggested that mahazar Ex.P11 was created in the station itself and the same was denied. He admits that in the remand application dated 18.5.1991 he has sought the custody of accused No.1 to seize the car bearing No.CNO 3040 and other articles. He admits that in Ex.P3 complaint it is mentioned that on 13.5.1991 around 2.00 p.m. the neighbours of Chukibai have seen her, but they have not given any statement in this regard. He admits that only the accused No.1 had got removed his beard and not others. The conduct of accused No.1 led him to suspect accused No.1. Sajjanbai has produced artificial denture set showing that the same belong to Chukibai and that he has brought the same from the house of Chukibai and it was seized, but no mahazar was prepared to that effect. It is suggested that Sohanraj did not give any statement before him and the same was denied. He admits that on 20.5.1991 he went inside the house of Chukibai and conducted panchanama by calling the photographer and also finger print expert. For the first time he visited the house of Chukibai on 20.5.1991 by removing the lock put by Sub- Inspector Krishnappa. After accused No.1 was taken to custody from the Court, mahazar Ex.P15 was drawn. It is suggested that accused No.4 was made as accused only because she filed an application before the Court for release of the gold articles which were seized from her house and the same was denied. Accused No.1 was called to his office for the third time on 17.5.1991 and he was subjected to interrogation for 15-20 minutes. He took 45 minutes to record his voluntary statement. The voluntary statement Ex.P127 of accused No.1 is in his handwriting and immediately after recording his voluntary statement, he apprehended accused No.1. That on 17.5.1991 at about 10.15 a.m. he left to Mandya in their jeep and relatives of Chukibai also accompanied him in other vehicles. He also took the photographer along with him and also called pancha at around 9.30 a.m. to his office. He did not go to Channapatna police station before going to Mandya and accused No.1 led all of them and showed the place where he has burnt the dead body of Chukibai. He admits that during the time of inquest P.W.1-Kempegowda P.W.1 has stated that the body was stuck in the heap of stones. The body was burnt by the side of the canal. It is suggested that he did not seize the burnt innerwear pieces and woolen rug pieces and the said suggestion was denied. But he says that after receiving the same from the FSL, the said articles were kept in the police station and they are eaten away by rats. The photographer took the photos Ex.P6 to P9 in respect of the spot where the body was burnt. He further says that P.W.1 came and told that the body was in the nala and that he has seen the dead body on 15.5.1991 around 12 noon and did not inform the nearest police station. He also enquired in the Bannur police station as to any case has been registered and he was informed that no case was registered. The inquest mahazar was conducted between 2.30 p.m. to 5.00 p.m. He secured the Medical Officer through sub-Inspector Krishnappa and she came to the spot around 3.30 p.m. and conducted post mortem. They all went in search of the body in a jeep. He also recorded the statement of localites Siddegowda and Kempasidda at the time of inquest. Sohanraj and Uttamsingh have identified the deadbody as belonging to Chukibai. He admits that the body was completely decomposed but denies that it was not in a position to identify. He recorded the statement of P.W.1 who assisted him and his staff in removing the body from the place where it was stuck. He admits that the body was decomposed and hence he did not shift the body to the hospital and instead he called the Doctor to the spot. He requested the medical officer to remove the skull and hand over the same. He also admits that he not only requested the doctor to remove the skull, but also requested to collect the bones. But the Doctor has only removed the skull and did not collect bones and he also did not insist for the same. The body was given to the custody of Sohanraj and they cremated it at the spot. It is suggested that the body which was found in the canal was not that of Chukibai and the same was denied. Further he admits that on the very same day at 5.10 p.m. they left the spot and went to mysuru along with accused No.1 and P.W.12 Narasaiah. Accused No.1 took all of them to garage and showed the place where he left the car. It is suggested that accused No.1 did not take any of them to any spot and also not showed the car and the said suggestion was denied. It is elicited that he has drawn the mahazar of seizure of car as per Ex.P11 in between 5.30 p.m. to 6.15 p.m. It is elicited that accused No.1 took them to hotel where he stayed and he recorded the statement of Receptionist and seized the xerox copy of the register. It is suggested that accused No.1 did not lead them to any hotel and also he did not seize any document in the hotel and the same was denied. It is elicited that he went to Channapatna police station at around 8.45 p.m. and only accused No.1 was with him. It is suggested to him that accused No.2 was also along with him and the same was denied. It is suggested that he did not record the statement of Inspector Venkatesh and the same was denied. It is suggested that accused No.1 only shown to Inspector Venkatesh and the same was denied. He admits that on 13.5.1991 accused Nos.1 and 2 were arrested and they were enquired and released. It is also suggested that the name and address and occupation of accused Nos.1 and 2 was enquired by the Channapatna police and thereafter both of them were released. It is also elicited that accused Nos.1 and 2 were subjected to personal search and found gold and silver articles and the said articles were given to them.
82. After enquiry, Sohanraj told that Chukibai used to wear artificial dentures. It is suggested that Sohanraj and Uttamchand did not identify the body of Chukibai and the same was denied. He admits that on 14.5.1991 Sohanraj gave the missing complaint of Chukibai in Chamrajpet police station and along with the complaint he has given copy of photograph of Chukibai. Sajjanbai has given two photographs of Chukibai of post card size. He did not draw any mahazar while collecting the photographs and does not know prior to that with whom the said photographs were there. On 20.5.1991 sub-Inspector Krishnappa removed the lock of the house of Chukibai when they went to her house and he does not know who gave the key to Krishnappa. Himself, accused No.1 and 8 others went to the house of Chukibai around 10.15 a.m. It is suggested that they have not visited the house of Chukibai and not collected any finger print and the said suggestions were denied. It is elicited that accused No.1 showed the places from where he has stolen the articles in the house of Chukibai. He admits that Narayanappa has not signed the mahazar. It is suggested that accused No.1 has not given any voluntary statement before him and the same was denied. He also says that on 18.5.1991 mahazar was drawn in the house of accused No.4 and has drawn the mahazar as per Ex.P15. It is suggested that Ex.P15 was drawn in the police station and the same was denied. It is suggested that mahazar witness Shivashankar is the permanent pancha of their station and the same was denied. Accused No.1 produced the gold and silver articles in the house of accused No.4 which were kept beneath the cot. It is suggested that M.Os.1 to 319 were not seized and the same was denied. It is suggested that accused No.1 did not take all of them to the house of accused No.4 and not produced the articles and the same was denied. It is suggested that though accused No.4 produced the documents for the articles which were seized in her house, he did not return the said documents and the said suggestion was denied. It is suggested that accused No.1 did not take him and the panchas to the house of accused No.4 and the same was denied. It is suggested that on 19.5.1991 the accused did not take them to the house of his mother Sajjanbai and amount and articles were not seized and the same was denied. He admits that in Ex.P128, the address of Chukibai is mentioned as it is located in Mysore road. He admits that except Ex.P128 he has not produced any document that Chukibai was doing pawn broker business. He admits that he did not record the statement of C.Ws.44 to 60. He admits that he cannot tell the real owner of M.Os.1 to 319 and 325 to 333. He says that he has sent the skull to FSL on 30.7.1991 after receiving the same from Chandraiah, Police Constable. He also admits that it was not sealed and it was sent to the Doctor and got sealed and thereafter sent to the FSL. He admits that during his tenure he did not receive the FSL report and the same was received after 5 years. He also admits that he did not produce the FSL report and the same was produced by Chamrajpet police through Special Public Prosecutor. It is suggested that while sending the artificial denture he did not mention whether it belong to male or female and he admits the same.
83. P.W.45-Deputy Director of DGP office in her evidence says that she has received the sealed cover containing the skull and also two post card size photos belonging to a female. P.W.45 contends that artificial dentures were also sent to FSL. She has conducted super imposition examination over the skull. The skull and the artificial denture were compared with the photographs and anthropometric land marks got completely matched. Hence, she has given the report as per Ex.P131 and she identifies the signature as per Ex.P131(a) and also identifies the signature of the Director as per Ex.131(b). She also identifies the skull as M.O.335 and so also, artificial dentures as M.O.334 saying that both are used for super imposition and compared with photographs. She also identifies Exs.P133 and 134 as photos which were enlarged and submitted for Super Imposition Test. The other photographs are marked as Exs.P136 and 137. In the cross-examination it is elicited that she had been to Madras for doing PhD. between 1990 and 1992. She admits that Ex.P131 was given in the year 1996. She has stated that ESID instrument was installed in the year 1994 and hence, there was a delay in super imposition. Prior to that, they were sending the same to Madras and Hyderabad. It is suggested that skull was not in a good condition since there was a delay in super imposition and hence she could not give proper report and the said suggestion was denied. The photos Exs.P137 to 141 were taken at the time of super imposition. It is suggested that Exs.P137 to 141 and their negatives were not in their office and the same was denied. It is elicited in the cross-examination that in Ex.P131 she did not mention on which date she has taken the super imposition photographs. It is denied that she has not video graphed the procedure of super imposition. It is suggested that she was not competent to do the super imposition and the same was denied. It is elicited that till 1994, the Karnataka Government has not provided super imposition instrument. It is suggested that from 1991 to 1996 they should not have kept the skull and the said suggestion was denied. It is suggested that at the instance of the Investigating Officer she has given the report at Ex.P131 and the same was denied. It is suggested that the skull was not useful to conduct the super imposition test and the said suggestion was denied.
84. Having considered the oral and documentary evidence, the contentions urged by the learned counsel appearing for the accused and the learned State Public Prosecutor-II, this Court has to re-appreciate the material on record.
85. The prosecution case is that the accused No.1 to make wrongful gain committed the murder of Smt.Chukibai and robbed gold and silver articles. It is also the case of the prosecution that accused No.1 kept the gold and silver articles in the house of accused No.4 and given some of the gold articles to his mother and cash of Rs.15,000/-. The accused also took the assistance of accused Nos.2 and 3 to dispose the body of deceased Chukibai and the body was recovered at the instance of accused on his information. The robbed items were also recovered at the instance of the accused in the presence of panch witnesses.
86. The case of the prosecution rests on circumstantial evidence and there is no any direct evidence and hence the Court has to analyse the evidence with regard to the material placed by the prosecution before the Court.
87. In a case of circumstantial evidence there must be a chain link between the incidents and if any link is missing, benefit of doubt goes in favour of the accused. This Court has to examine whether any such chain link is missing to prove the case of the prosecution as contended by the Appellants Counsel.
88. Before considering the material on record, this Court has to form an opinion as to whether the death of Smt.Chukibai is homicidal or not.
89. It has to be noted that there is no any medical evidence before the Court to show that the death of Chukibai is a homicidal death. The peculiar circumstance of the case is that, when the body was recovered it was in a decomposed state and hence, the skull was removed and preserved for super imposition test. The report was also obtained as per Ex.P131. The Expert who has been examined as P.W.45 having examined the dentures and the skull firmly reiterated that the said body belongs to Chukibai. However, cause of death was not known as the body was decomposed. Then Court has to ascertain the same by considering the material on record which is circumstantial.
90. Accused No.1 in his voluntary statement stated that he strangulated Chukibai and thereafter disposed the body. The body was also recovered at the instance of accused No.1 who led the team to the place where he burnt the dead body and thrown the same and thereafter on search of the dead body was found at a distance of 35 kms. in the nala. By that time the body was already decomposed and since the body could not be shifted to the hospital, post mortem was conducted at the spot and was cremated. Hence, this Court has to infer that it is a homicidal death and not natural death.
91. Now let us consider the sequence of events and also the material placed by prosecution in order to prove the guilt of the accused.
92. It is the case of prosecution that when the Investigating Officer found the movements of accused No.1 abnormal, he subjected him to interrogation and during the course of interrogation, accused No.1 confessed that he committed the murder of Chukibai and thereafter disposed her body. His voluntary statement was recorded and thereafter, he led the Investigating Officer, relatives of deceased and panchas to the place where he burnt the body and thrown into the canal. After the search, body was found at a distance of 35 kms. Before appreciating the recovery aspect, we would like to narrate the events in a chronological sequence.
93. The first circumstance is that, accused Nos.1 and 2 were apprehended on 14.5.1991 at 3:00 a.m. by the Channapatna Rural police when both of them were found sleeping in a car. They were brought to the police station and enquired. They revealed their identity as well as their avocation. The Channapatna police got confirmed their address proof and also their avocation and on the next day evening they were released after enquiry. It has to be noted that with regard to this aspect that the Investigating Officer who has been examined before the Court as P.W.44 reiterates in his evidence that he obtained the information from the Channapatna police station. He also recorded the statement of Inspector Venkatesh. The said Venkatesh also identified accused Nos.1 and 2. The said Venkatesh has been examined as P.W.34. In his evidence he reiterates that accused Nos.1 and 2 were apprehended on 14.5.1991 at about 3.00 a.m. by C.W.41 and produced before him along with a FIAT car. Both of them were possessing some ornaments and he registered Crl.Misc.No.47/1991 and kept the said articles in his safe custody in the police station. Both of them told that they purchased FIAT car at Mysore and came in the said car and since the car developed some fault, they were sleeping in the said car. After enquiry, C.W.41 released accused Nos.1 and 2. Later through the Police Inspector of Chamrajpet circle Joyappa, he came to know that both of them were involved in a murder case. Accordingly, he has recorded his statement and has given the details.
94. The evidence of P.W.35 is that C.W.41(P.W.35) who found accused Nos.1 and 2 when he was on patrolling duty on Mysuru-Bengaluru highway and apprehended and produced him before P.W.34 and thereafter making enquiry, they were released. Having considered the evidence of P.Ws. 34 and 35, coupled with the evidence of P.W.44, the Investigating Officer of this case, it is clear that these accused persons were returning in the night of 13.5.1991 from Mysuru to Bengaluru and since their car has developed some trouble, they were taking rest in the car itself and at that time they were subjected to enquiry and apprehended. In the cross-examination of these witnesses except suggesting that they were not subjected to any enquiry by the Channapatna police nothing is elicited.
95. It is pertinent to note that in the cross- examination of P.W.35 a suggestion was made that he has not sent the report to the PSI, Channapatna Rural police station and the said suggestion was denied. It is elicited from P.W.35 that he has not furnished any documents for having confirmed the reality of the statements given by accused Nos.1 and 2 regarding the car and other articles found with them. In the cross-examination of P.W.34 it is suggested that on 14.5.1991 at around 11.00 a.m. after he came to the police station, P.W.35 took accused Nos.1 and 2 and the properties to his office for enquiry. It is further elicited that he has not confirmed the address given by accused Nos.1 and 2 with any other persons and hence, it is clear that accused Nos.1 and 2 were apprehended and they were subjected to enquiry. From the cross-examination of P.W.34 a suggestion was made that P.W.35, on the next day, took accused Nos.1 and 2 and also the properties which were given on the previous day to P.W.34 and hence, it is clear that accused Nos.1 and 2 were returning on the night of 13.5.1991 from Mysuru and they were found at 3.00 a.m. when P.W.35 was on patrolling duty in the highway, they were arrested and subjected to enquiry and thereafter, they were released. No explanation by Accused Nos.1 and 2 in their statement under Section 313 of Criminal Procedure Code about incriminating evidence about their arrest on have not explained anything or produced any incriminating 14.05.1991 by the Channapatna Police.
96. The second circumstance is, accused No.1 made voluntary statement before the Investigating officer on 17.5.1991 at 8.00 a.m. stating that he committed the murder of Chukibai and thereafter, disposed the dead body with the help of Accused Nos.2 and 3 and if he taken, he would show the place where he burnt and thrown the body.
97. This Court has to examine whether Section 27 of the Evidence Act attracts to the case on hand. The contention of the learned counsel for the accused is that Section 27 of the Evidence Act cannot be invoked. In support of his contention he relied upon several judgments, referred to supra. On the other hand, learned Additional State Public Prosecutor-II in support of his arguments has also relied upon several judgments contending that Section 27 of the Evidence Act attracts to the case on hand.
98. In order to attract Section 27 of the Evidence Act condition precedent are, discovery of fact i.e., fact discovered on the information given, recovery of the stolen articles and after accused leading to recovery of articles, whether same is admissible in evidence under Section 27 of the Indian Evidence Act, 1872 and also whether the Court can draw inference under illustration (a) to Section 114 of the Evidence Act.
99. In order to attract Section 27 of the Evidence Act two conditions are pre-requisite i.e., the information must cause discovery of the fact and the information must relate distinctly to the fact discovered. That means, there must be some concrete or material fact to which the information directly relates. Before that we would like to refer the Judgment of the Apex Court in the case of Charandas Swami v. State of Gujarat and another reported in (2017)7 SCC 177, wherein it has been held as follows;
“(B) Evidence Act (1 of 1872), S.27 – Discovery of fact – Murder – Word ‘fact’ used in S.27 not limited to “actual physical material objection” – Disclosure made by accused about location where dead body of deceased was dumped by him – Corroborated by fact that dead body of unknown person recovered earlier from same spot by local police – Dead body on subsequent medical examination found to be none other than deceased – Disclosure made by accused is admissible under Section 27.“ 100. Now let us examine the evidence available before this Court with regard to the discovery of fact and also the recovery.
101. It is the case of the prosecution that the accused made confession statement stating that if he is taken to the place, he would show where he burnt and thrown the dead body of Chukibai. The prosecution in order to prove the discovery of fact examined P.Ws.3 to 5, 9, 11 & 12, 30 and 18, who are the relative witnesses and also independent witnesses who were panchas, photographer and also local witness where the body was recovered.
102. P.W.3 is none other than the complainant. In his evidence he says that on 17.5.1991 at about 8.30 or 9.00 a.m. he was called to the police station and at that time accused No.1 was also in the police station. He knew him. The police told him that accused No.1 revealed that he committed the murder of Chukibai and that he would show the place where he burnt the body and thrown dead body and hence, asked him to come and identify the same. Hence, he himself and other relatives accompanied the police. Accused No.1 led all of them to the place where he had burnt the dead body and also showed a canal where he dropped the body. Since they did not find the body, they went in search of it for about 35 kms and at that place a villager P.W.1 came and voluntarily told that a body was stuck in the heap of stone and that they went and identified the body.
103. P.W.4 who has also accompanied the team also reiterates that accused No.1 himself led the team and showed the place where he burnt the body and thereafter dropped the body in the canal. They went in search of the body and found the same at a distance of 35 kms. and the body was identified.
104. P.W.5 is also the relative of the deceased and he also accompanied the team and also reiterates the evidence of P.Ws.3 and 4. The P.W.9 son-in-law of the deceased also reiterates the same.
105. In the cross-examination of these witnesses it is suggested that accused No.1 did not lead and show any place of either burning the body or dropping the same in the canal and the said suggestions were denied. Their evidence is consistent and they are the signatories to Exhibits P10 and P1.
106. The prosecution also relied upon the evidence of P.W.1 who is the villager and he pointed out the place where the deadbody was lying to the team. P.W.1 in his evidence says that accused No.1 also present along with them when the body was removed from the heap of stones. He is also the attesting witness to the inquest mahazar Exhibit P1.
107. P.W.2, who is also the resident of Yachenahalli gave the evidence in the similar line as that of P.W.1. Apart from these two villagers of Yachenahalli, the prosecution has relied upon the evidence of P.W.12 who was called to the police station and taken along with the police. He was secured when standing on Mysuru road and in his evidence, he says that accused No.1 led the team and accordingly, jeep was driven. Accused No.1 pointed out a place wherein it was noticed that something was burnt. He also says that a piece of woolen rug and pieces of cloth which were half burnt were seized by the police. The police have drawn the mahazar as per Ex.P10 and he attested the same.
108. In the cross-examination he admits that he signed only on the mahazar and his signature was not taken on any other papers. It is suggested that he had not visited any spot and the same was denied. Except the suggestion, nothing worth is elicited.
109. The prosecution also relied upon the evidence of P.W.11 who is the constable of Mandya Rural Police Station and in his evidence he says that investigating officer P.W.44 called him to go to a place, thereafter accused No.1 took them to a place where he burnt the body. The jeep was stopped at a place near Kalenahalli. Thereafter, accused No.1 led them to a distance of 2 kms. by walk and pointed out a place by the side of canal and it was noticed that something was burnt at that place. A piece of woolen rug and some pieces of clothes which were half burnt were seized by them. The police have drawn the mahazar as per Ex.P10 and he also attested the same.
110. The prosecution also relied upon the evidence of P.W.30 photographer who accompanied them and he says that he took the photographs as per Exs.P6 to 9 at the spot.
111. The investigating Officer-P.W.44 also in his evidence categorically says that after recording the voluntary statement of the accused No1, he called the relatives of the deceased, P.W.12 an independent panch witness and the photographer and went to Mandya. He also took P.W.11 who is the police constable of Mandya Rural Police Station. Accused No.1 led the team and showed the place where he burnt the body and thereafter, they went in search of the body and found the body at a distance of 35 kms. The body was in a decomposed state and after securing the doctor head was separated and the same was preserved for super imposition and the body was cremated.
112. In the cross-examination of all these witnesses nothing worth is elicited to come to the conclusion that accused did not lead the team and showed the spot and the witnesses P.Ws.11 and 12 have also affixed the signature on the mahazar Ex.P10 and other witnesses who are the relatives of the deceased i.e., P.Ws.3 to 5 and 9 have also categorically deposed that accused No.1 himself led the team and showed the place where the body was burnt and thrown. Only a suggestion was made that Accused No.1 did not lead and showed the place and the said suggestion was categorically denied.
113. It is pertinent to note that though P.Ws.3 to 5 are the interested witnesses, P.Ws.1 and 2 are not the relatives of the deceased and P.W.1 only showed the body and at that time, accused No.1 was also along with the team. Apart form that, P.W.12 was an independent panch witness and though it was suggested that he was a stock witness of the Chamrajpet police station, the same was denied and nothing worth was elicited in his cross- examination to disbelieve the evidence of P.W.12. P.W.11 who is the Police Constable of Mandya who accompanied the team has also deposed the same. Nothing is elicited in the cross-examination of these witnesses to show that there was enmity between the accused No.1 and themselves. When there was no such enmity, the Court cannot ignore the evidence of these witnesses. The evidence of P.Ws.1 to 5 and P.Ws.11, 12, 18 and P.W.44 is consistent with regard to discovery of the fact and recovery of the body of the deceased and the prosecution was able to prove that the body was recovered at the instance of accused No.1 only. It has to be noted that it was within the knowledge of accused No.1 as to at which place he burnt the body and disposed of the body. The spot mahazar Ex.P10 clearly shows that something was burnt in the place and also half burnt pieces of cloth and rug pieces were found at the spot where they have drawn the mahazar Ex.P.10 and even the witnesses have spoken to about the same. The same was sent to FSL and report was obtained.
114. The learned counsel appearing for the accused would contend that the same was not placed before the Court. On perusal of the material no doubt it is true that the said half burnt pieces of cloth and blanket were not produced before the Court, but the Investigating Officer has given an explanation in his evidence that after receipt of the same from the FSL, it was eaten away by rats and hence it could not be produced before the Court. No doubt, there is a negligence on the part of the Station House Officer in not preserving such an important material and merely because of the negligence on the part of the Station House Officer, the Court cannot ignore the material available before it since the accused who had the knowledge of the place wherein he has burnt the body and thrown the body, himself, led the team and showed the place and only at his instance, the body was recovered. Hence all these material discloses the very act of accused No.1 in committing the heinous offence of murder and disposing the body to screen the evidence.
115. Now let us see the question of law with regard to Section 27 of the evidence Act which reads as follows:
“27. How much of information recieved from accused may be proved – Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.”
116. Having considered the provisions of Section 27 of the Evidence Act it is clear that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, Court has to take note of whether it amounts to a confession or not and also whether it amounts to a discovery.
117. In this regard, we would like to refer to the judgment of the Apex Court reported in the case of Raju Manjhi Vs. State of Bihar reported in AIR 2018 SC 3592. The Apex Court in the judgment held that the confession that accused broke the doors of the house of informant and assailed the inmates with wooden sticks and if any recovery of used polythene pouches of wine, money, clothes, jewelry based on disclosure by the accused and corroborating with his confessional statement and proves his guilt, it is admissible in Evidence Act. We would like to extract the relevant paragraph No.13 of the said judgment, which reads as under:
“13. In the case on hand, before looking at the confessional statement made by the accused – appellant in the light of Section 27 of the Evidence Act, may be taken into fold for limited purposes. From the aforesaid statement of the appellant, it is clear that he had explained the way in which the accused committed the crime and shared the spoils. He disclosed the fact that Munna Manjhi was the Chief/Head of the team of assailants and the crime was executed as per the plan made by him. It is also came into light by his confession that the accused broke the doors of the house of informant with the aid of heavy stones and assaulted the inmates with pieces of wood (sticks). He categorically stated that he and Rampati Manjhi were guarding at the outside while other accused were committing the theft.
The recoveries of used polythene pouches of wine, money, clothes, chains and bangle were all made at the disclosure by the accused which corroborates his confessional statement and proves his guilt. Therefore, the confessional statement of the appellant stands and satisfies the test of Section 27 of the Evidence Act.”
118. The main contention of learned counsel for the appellant in the appeal is that the prosecution did not produce any original receipt for having pledged the articles with the deceased Chukki bai. The prosecution has got marked Xerox copies of the receipts subject to production of original documents but the same are not produced before the Court. Hence, the same cannot be considered.
119. In this regard we would also like to rely upon the judgment of the Apex Court in the case of STATE OF KARNATAKA VS. DEJA K SHETTY (1993 SCC (CRI) 242) wherein the Apex Court has held as hereunder:
“A person who acquires gold jewellery under the given circumstances would never ask for receipt. There is no reason whatsoever for the goldsmith to falsely implicate the respondent-accused specially by surrendering from his own person the gold.
Recovery of stolen ornaments from goldsmith on the basis of disclosure statement made by accused – Articles seized – Goldsmith deposing that accused had sold the ornaments to him – Held, testimony of goldsmith cannot be disbelieved merely because of absence of receipt for purchase.”
120. Further, in the case of STATE OF KARNATAKA VS. SUVARNAMMA AND ANOTHER REPORTED IN 2015(1) SCC (CRI) 663, the Hon’ble Supreme Court held as follows:
“Defective or illegal investigation-unfair conduct of Investigating agency/suppression of material-Inquisitorial role of Court-whether the infirmities in investigation and discrepancies pointed out in the prosecution evidence make out a ground for rejecting the prosecution version-Held, though the Investigating Agency is expected to be fair and efficient, any lapse on its part cannot per se be a ground to through out prosecution case when there is overwhelming evidence to prove the offence-
Evidence Act, 1873-S.165-Judge/Presiding Judge/Court-Held that the alleged suppression or unfair conduct of the Investigating Agency does not absolve the Court of its duty to find out the truth. Though we are governed by the adversarial system, the Court cannot be a mute spectator particularly in criminal cases and shun its primary duty of finding out the truth from the material on record.”
121. In the case on hand also, Xerox documents are recovered from the pawn brokers who have got re-pledged the ornaments. It is the failure on the part of the Investigating Officer in not securing the originals from them. But there are sufficient material before the Court that pawn brokers who have re-pledged the gold articles with the deceased came forward before the Court and identified 39 gold articles which they have pledged. No doubt there are 333 gold articles which were seized at the instance of the accused. It is a peculiar case that the articles which were seized are not pledged by the original owners of the gold articles. The pawn brokers who have got the pledged articles have repledged the same with the deceased. Hence, the Court also cannot secure all the original owners of the articles. The persons who have repledged came forward and claimed the articles as belonging to them. Under the circumstances the Court cannot expect the original receipts. It is emerged in the evidence that Chukki bai was not issuing any receipt when she got pledged the articles. She was making the entries in the register which was maintained by her through her grand children viz., PW.9 and Chanchala Kumari. Hence, the Court cannot expect any documents. It is also emerged in the evidence that the deceased Chukibai continued the business of her husband after his death and hence, each of the re-pledger cannot be summoned and examined in respect of all the MOs.
122. It is also the case of the prosecution that the miscreants have taken the register which the Chukki bai had maintained. It is also the modus operandi of the robbers to take away not only the articles, but also other documents which were kept in the cub-board. Hence, merely non production of the original receipts cannot be a ground to discard the case of the prosecution.
123. We would like to refer the judgment in the case of STATE OF MYSORE VS. NARSINGADU (1973(2) K.L.J.348) wherein this Court has held as hereunder:
“Accused found in possession of ornaments of deceased - presumption under Section 114 of the Evidence Act may be drawn depending upon the circumstances under which the discovery of the fruits of the crime are made with the particular accused, the time gap or the interval and the nature of property involved, especially its quantity and character in the context of early or delayed disposability.”
124. The Apex Court in the case of LIMBAJI AND OTHERS VS. STATE OF MAHARASHTRA [(2001)10 SCC 340] regarding presumption and also with regard to discovery under Section 27 in paragraph Nos. 8, 9, 17, 18 and 28 has held as under:
“8. We are now left with the evidence of recovery of the ornaments of the deceased on the basis of the confessional statement of the accused under Section 27 of the Evidence Act, leaving apart for the time being the aspect concerning injuries inflicted on the deceased. The question then is whether there was discovery of incriminating articles in consequence of information received from the accused in custody and whether such discovery warrants a presumption to be drawn under Section 114 and if so, to what extent that presumption has to be drawn.
III.(9) As the presumption under Section 114 of Evidence Act looms large in this case, a brief discussion on the basic postulates and evidentiary implications of presumption of fact may not be out of place. A presumption of fact is a type of circumstantial evidence which in the absence of direct evidence becomes a valuable tool in the hands of the Court to reach the truth without unduly diluting the presumption in favour of the innocence of the accused which is the foundation of our Criminal Law. It is an inference of fact drawn from another proved fact taking due note of common experience and common course of events. Holmes J. in Greer Vs. US remarked " a presumption upon a matter of fact, when it is not merely a disguise for some other principle, means that common experience shows the fact to be so generally true that courts may notice the truth". Section 114 of the Evidence Act shows the way to the Court in its endeavour to discern the truth and to arrive at a finding with reasonable certainty. Under the Indian Evidence Act, the guiding rules for drawing the presumption are set out broadly in the Section. Section 114 enjoins:
"114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."
Having due regard to the germane considerations set out in the Section, certain presumptions which the Court can draw are illustratively set out. It is obvious that they are not exhaustive or comprehensive. The presumption under Section 114 is, of course, rebuttable. When once the presumption is drawn, the duty of producing evidence to the contra so as to rebut the presumption is cast on the party who is subjected to the rigour of that presumption. Before drawing the presumption as to the existence of a fact on which there is no direct evidence, the facts of the particular case should remain uppermost in the mind of the Judge. These facts should be looked into from the angle of common sense, common experience of men and matters and then a conscious decision has to be arrived at whether to draw the presumption or not.
Among the illustrations appended to Section 114 of the Evidence Act, the very first one is what concerns us in the present case:
"The Court may presume – (a)that a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession."
Taylor in his treatise on The Law of Evidence has this to say on the nature and scope of the presumption similar to the one contained in Section 114 (a) :
"The possession of stolen property recently after the commission of a theft, is prima facie evidence that the possessor was either the thief, or the receiver, according to the other circumstances of the case, and this presumption, when unexplained, either by direct evidence, or by the character and habits of the possessor, or otherwise, is usually regarded by the jury as conclusive. The question of what amounts to recent possession varies according to whether the stolen article is or is not calculated to pass readily from hand to hand.
This presumption which in all cases is one of fact rather than of law, is occasionally so strong as to render unnecessary any direct proof of what is called the corpus delicti. Thus, to borrow an apt illustration from Maule J., if a man were to go into the London Docks quite sober, and shortly afterwards were found very drunk, staggering out of one of the cellars, in which above a million gallons of wine are stored, ‘I think,’ says the learned Judge - and most persons will probably agree with him – ‘that this would be reasonable evidence that the man had stolen some of the wine in the cellar, though no proof were given that any particular vat had been broached, and that any wine had actually been missed.”
V (b). 17. The question then is, applying illustration (a) to Section 114, whether the presumption should be that the accused stole the goods or later on received them knowing them to be stolen. Though the trial court observed that the accused "might have robbed" the ornaments of the deceased after he was murdered by someone else, it found them guilty of the offence under Section 411 IPC only which is apparently self-contradictory. On an overall consideration of the circumstances established, it is reasonable to presume that the accused committed the theft of the articles from the person of the deceased after causing bodily harm to the deceased. The fact that within a short time after the murder of the deceased, the appellants came into possession of the ornaments removed from the person of the deceased and the 1st accused offered one of the stolen articles for sale on that very day and the further fact that the other articles were found secreted to the knowledge of appellants coupled with non-accountal of the possession of the articles and the failure to give even a plausible explanation vis-à-vis the incriminating circumstances would go to show that they were not merely the receivers of stolen articles from another source but they themselves removed them from the person of the deceased. Thus, the presumption to be drawn under illustration (a) to Section 114 should not be confined to their involvement in the offence of receiving the stolen property under Section 411 but on the facts of the case, it can safely go beyond that. In this context, the three-Judge Bench decision of this Court in Sanwath Khan Vs. State of Rajasthan, is quite apposite. While holding that from the solitary circumstance of unexplained recovery of the articles belonging to the deceased from the houses of the accused, the presumption of commission of offence of murder cannot be raised, the Court nevertheless held that they can be convicted of theft under Section 380 I.P.C. which was one of the charges against the accused. Another decision of relevance is Shivappa Vs. State of Mysore. That was a case in which bundles of cloth being carried in carts were looted by twenty persons and the accused were charged for dacoity. Searches which took place within a few days after the incident led to the recovery of large quantities of stolen clothes from their houses. On these facts the Court drew the presumption that the persons with whom the items of clothes were found were the dacoits themselves and the conviction was sustained. Hidayatullah, C.J. speaking for the three Judge Bench observed that: "It is only when the accused cannot be connected with the crime except by reason of possession of the fruits of crime that the presumption may be drawn." Drawing support from these decisions too, we are of the view that by invoking the presumption under Section 114 read with Illustration (a) thereto, the appellants must, as a first step, be held to have committed theft of ornaments which were removed from the person of the deceased and that they are not mere receivers of stolen property. Theft is a component of the offence of robbery and theft becomes robbery, if, in order to the committing of theft, the offender causes or attempts to cause death, hurt or wrongful restraint or instils fear thereof. Whether, on the facts, they shall be convicted for robbery is yet another aspect which we shall advert to a little later. We are only pointing out presently that if we stop at applying illustration (a) to Section 114, the accused can be safely convicted for the offence of theft rather than for the offence under Section 411. What is the position if we look beyond illustration (a) is another aspect.
VI. (a)(18) The above discussion paves the way for consideration of a more important question whether, having regard to the facts of this case, the presumption should be extended to the perpetration of the offence of robbery or murder or both? Presumption envisaged by illustration (a) to Section 114 has been stretched in decided cases to make a similar presumption as the basis for conviction for graver offences of robbery and murder, if they are part of the same transaction. Strictly speaking, such presumption does not come within the sweep of illustration (a), though in some cases illustration (a) has been referred to while upholding the conviction for robbery and murder. Extending the presumption beyond the parameters of illustration (a) could only be under the main part of the Section. The illustration only provides an analogy in such a case. With this clarification, let us examine whether there is scope to presume that the appellants committed robbery and murder sharing the common intention. While on this point, we have come across divergent approaches by this Court in various cases. In some cases, the extended presumption was drawn while in some cases the Court considered it unsafe to draw the presumption merely on the basis of recovery of incriminating articles from the possession of the accused soon after the crime. The decisions of this Court in Union Territory of Goa Vs. Beaventura D'Souza, Surjit Singh Vs. State of Punjab and Sanwath Khan Vs. State of Rajasthan fall in one line, whereas the decision in Gulab Chand Vs. State of M.P. falls on the other side of the line. In the mid way we find certain decisions wherein the presumption was invoked as an additional reason to support the conclusion based on circumstantial evidence. We shall briefly refer to these decisions.
VI.(c) (28) Whether the presumption could be further stretched to find the appellants guilty of gravest offence of murder is what remains to be considered. It is in this arena, we find divergent views of this Court, as already noticed. In Sanwat Khan case, the three-Judge Bench of this Court did not consider it proper to extend the presumption beyond theft (of which the accused were charged) in the absence of any other incriminating circumstances excepting possession of the articles belonging to the deceased soon after the crime. However, we need not dilate further on this aspect as we are of the view that in the peculiar circumstances of the case, it would be unsafe to hold the accused guilty of murder, assuming that murder and robbery had taken place as a part of the same transaction. The reason is this. Going by the prosecution case, the deceased Baburao was hit by a heavy stone lying on the spot. The medical evidence also confirmed that the fatal injuries would have been inflicted by a heavy stone like article No.1. It is not the case of the prosecution that the appellants carried any weapon with them or that the injuries were inflicted with that weapon. There is every possibility that one of the accused picked up the stone at that moment and decided to hit the deceased in order to silence or immobilise the victim. If the idea was to murder him and take away the ornaments from his person, there was really no need to forcibly snatching the ear-rings before putting an end to the victim. It seems to us that there was no pre-mediated plan to kill the deceased. True, common intention could spring up any moment and all the three accused might have decided to kill him instantaneously, for whatever reason it be. While that possibility cannot be ruled out, the possibility of one of the accused suddenly getting the idea of killing the deceased and in furtherance thereof picking up the stone lying at the spot and hitting the deceased cannot also be ruled out. Thus two possibilities confront us. When there is reasonable scope for two possibilities and the Court is not in a position to know the actual details of the occurrence it is not safe to extend the presumption under Section 114 so as to find the appellants guilty of the offence of murder with the aid of Section 34 IPC. While drawing the presumption under Section 114 on the basis of recent possession of belongings of the victim with the accused, the Court must adopt a cautious approach and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim.”
125. The Apex Court in the case of MUKESH vs.
STATE OF NCT OF DELHI (AIR 2017 SC 2161) in paragraph No.436 has held as hereunder:
“436. Even though, the arrest and recovery under Section 27 of the Evidence Act is often sought to be misused, the courts cannot be expected to completely ignore how crucial are the recoveries made under Section 27 in an investigation. Legislature while incorporating Section 27, as exception to Sections 24, 25 and 26 of Evidence Act, was convinced of quint essential purpose. Section 27 would serve in investigation process. Recovery made u/S 27 of Evidence Act not only as foundation stone for proceeding with investigation but also completes chain of circumstances. Once recovery is proved by prosecution, burden of proof on defence to rebut same is very strict, which cannot be discharged merely by pointing at procedural irregularities in making recoveries, especially when recovery is corroborated by direct as well as circumstantial evidence, especially when Investigating Officer assures that failure in examining independent witness while making recoveries was not deliberate or malafide, rather it was on account of exceptional circumstances attending investigation process.
Recovery and seizure of articles- made in pursuance of statement by accused- mere absence of attestation by independent witness – not a ground to discard seizure evidence under S. 27. ”
126. Having considered the principles laid down in the judgments referred supra it has to be noted that no doubt there are irregularities in the case of the prosecution in not getting the original documents from the pawn brokers and have collected only the Xerox copies which were marked. That cannot be a ground to discard the evidence of prosecution. The Court has to consider the material available on record in toto. In the case on hand, it has to be noted that there are material to show that there was a motive to commit the murder. The motive is to rob the gold and silver articles worth lakhs of rupees that is 12 kgs of gold and 9 kgs of silver articles. The accused was having acquaintance with the deceased who is also a pawn broker. It is emerged in the evidence of prosecution witness that accused No.1 also used to repledge the articles with deceased Chukki bai. Having taken the acquaintance as advantage that she is alone in the house with the motive to rob the articles worth more than lakhs committed the murder. No doubt, there are irregularities committed by the Investigating Officer, the same cannot be a ground to discard the case of the prosecution. The Court also cannot expect mathematical niceties in the investigation and the same cannot be fatal to the case of the prosecution.
127. The Apex Court in the case of AJITSINGH HARNAM GUJARAL VS. STATE OF MAHARASTRA [(2012)3 SCC (CRI) 1349] held as hereunder:
“The Court has no means to enter into mind of a person to find out motive. In some cases only speculation may be possible – case where there is no discernible motive but facts and circumstances overwhelming point to accused guilt – conviction, held sustainable.”
128. In the case on hand also, it has to be noted that the accused has to explain the incriminating circumstances in the 313 statement. If he fails to explain the same and fails to discharge such duty and keeps silent by not furnishing any explanation, such circumstance is an additional link in the chain of circumstances to sustain charges leveled against him in criminal trial.
129. The case on hand also rests upon the circumstantial evidence. The accused failed to explain the incriminating circumstances as to how he got into the possession of 12 kgs of gold and 9 kgs of silver articles which was recovered at the instance of the accused from the house of accused No.4 and the independent witnesses have also supported the case with regard to the seizure of gold and silver articles from the house of accused No.4 and also from the house of the mother of the accused. The accused immediately after committing the murder took the gold and silver articles and kept beneath the cot in the house of accused No.4. It is pertinent to note that the accused No.4 also made an attempt to claim the gold and silver articles which were seized from her house and the Court below has rejected the said claim. Accused No.4 also did not choose to file any appeal against the said order. The said order has attained its finality. Accused No.4 also did not place any material for having the right in respect of the 12 kgs of gold and 9 kgs of silver articles.
130. The Apex Court in the case of NEEL KUMAR @ ANIL KUMAR VS. STATE OF HARYANA [(2012)3 SCC (CRI) 271] held as follows:
“Duty of accused while making such statement-failure to discharge such duty-Effect of – Held it is duty of accused while making statement under Section 313, to explain incriminating circumstance proved against him – keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain charges against him.”
131. In the case on hand also the accused persons did not offer any explanation under Section 313 of Cr.P.C. when the incriminating evidence were put to them.
132. The other circumstance, which relied upon by the prosecution, is with regard to recovery of considerable ornaments. The recovered gold ornaments are weighing 12 kgs and silver ornaments are weighing 9 kgs. It is the case of the prosecution that by drawing mahazar, MOs.15 to 333 were recovered from the house of accused No.4 at the instance of accused No.1. P.W.17 is the panch witness, who also consistently deposed that in his presence, MOs.15 to 333 were recovered from the house of accused No.4 at the instance of accused No.1. Accused persons have denied the said recovery, but admitted that MOs.15 to 333 were seized from the house of accused No.4. It is pertinent to note that accused No.4 made an application before the Court claiming that the same belongs to her contending that those articles are her personal articles and some of them are belonging to the shop of her father and brothers. But, she did not produce any single document to show that those articles belong to her. The Court below also rejected the same and attained its finality. In the cross-examination of witnesses also, it is suggested that the same belongs to accused persons and the said suggestion was denied. Hence, it is clear that MOs.15 to 333 were seized at the house of accused No.4. P.W.17 also reiterates that the said articles were kept in two bags beneath the cot. If really it belongs to accused No.4 as contended, what made her to keep those bags beneath the cot, there is no explanation. It is also important to note that there is absolutely no evidence to show that they are running the business of Pawnbroker. If really they are doing business and those articles belong to their business, they have to show the material before the Court. It is also only the claim of accused No.4 that Investigating Officer forcibly taken those properties and nothing is substantiated that the same belongs to accused No.4. Hence, the very claim of accused No.4 that MOs.15 to 333 are belong to accused No.4 and the same cannot be accepted. It is pertinent to note that P.Ws.20 to 25 and 37 to 40 came forward and gave the evidence before the Court. All these witnesses consistently deposed that Chukibai was not issuing any receipts. But, they have given receipts to original pledgers and some of them have identified. Some of the material objects are supported by the receipts which they have given to the original pledgers. No doubt, as already pointed out, the original receipts are not produced though the Xerox copies of the receipts are marked as exhibits subject to production of originals. The witnesses, who have been examined as prosecution witnesses, have categorically deposed that they took the originals to the Police Station and after comparing the same, when they identified those articles, they have given the xerox copies and taken back the originals. The failure on the part of the Investigating Officer to secure the originals of the receipts and producing before the Court, did not take away the case of the prosecution. It is the consistent evidence of P.Ws.20 to 36, 37, 39 and 41 that they used to re-pledge the pawn articles with deceased Chukibai, whenever they were in need of financial assistance. The xerox copies which are marked as Exs.P.26 to 120, 122 and 125 shows that there was a transaction between these witnesses and with the original owners. The prosecution also relied upon the documents of the deceased Chukibai that she was having license to carry on the business of getting the pledged articles. The accused have failed to cross-examine the P.W.24 who is also another Pawn Broker. He has specifically deposed that he and other Pawnbrokers were used to re-pledge the articles with deceased Chukibai. The main contention taken in the cross- examination of these witnesses that these witnesses at the instance of daughter of the deceased Chukibai i.e., P.W.6 deposing falsely before the Court and the said suggestion was categorically denied by all these witnesses. But, in the instant case, accused No.4 is admitting the seizure of the articles from her house and she failed to prove her title with regard to her claim. Hence, it is clear that the articles belong to the deceased Chukibai appears to be more probable than the claim of the accused. The nature of MO’s 15 to 333 not like personal belongings of any individual and they are nature of bundles of similar items with regard to nature of pledged items. We would also like to refer the evidence of P.W.30 – the Photographer who was part of recovery proceedings. Both recovery of dead body as well as the ornaments, which were seized from the house of accused No.4 as well as in the house of mother of accused. The articles MOs.9 to 14 are seized from the house of mother of accused and articles MOs.1 to 8 were seized again from the house of accused No.4. The photographs are taken during the course of recovery and the same are produced before the Court. It is emerged in the evidence that he had taken out some of the ornaments and handed over the same to his mother so also an amount of Rs.15,000/-. It is pertinent to note that mahazar was drawn in the house of the mother of the accused in terms of Ex.P.14 and P.W.17 is a panch witness to the said panchanama. In the cross-examination, it is suggested that P.W.17 is the habitual pancha and the same was categorically denied in the cross-examination. Though the mother had made an application for release of MOs.9 to 14, she did not press the application and also did not place any material that MOs.9 to 14 belong to her. Hence, it is clear that those articles also belong to Chukibai. If really those articles belong to accused persons, they ought to have probabalized their claim. Nothing has been probabalized by the accused persons.
133. For having taken note of the evidence of prosecution witnesses particularly the witnesses P.Ws.20 to 26, 37 to 39 and 41 and also the witness P.W.17, who is the panch witness for recovery of MOs.1 to 333, it is clear that the accused after committing the murder, robbed the worth lakhs of rupees gold and silver articles and kept the major portion of the articles in the house of accused No.4 and certain articles i.e. M.O.Nos.9 to 14 kept in the house of his mother. The same has been proved by the prosecution examining the panch witnesses particularly P.W.17 and nothing is found on record to disbelieve the version of P.W.17 that he has given the evidence at the instance of the prosecution and also nothing is elicited that was there any enmity between the P.W.17 and accused Nos.1 and 4. Hence, the prosecution has proved that the articles, which were robbed by the accused No.1, are from the house of the deceased. Thereafter, with the assistance of accused No.4, hid the robbed items. Hence, the prosecution was able to prove the other circumstances with regard to robbing of silver and gold ornaments in order to make wrongful gain and the motive is also established that murder was committed in order to make the wrongful gain. To commit the robbery of gold and silver articles, he has taken away the life of Chukibai. The material establishes the observation of the Supreme Court that the murder is for wrongful gain.
134. The prosecution also relied upon another circumstances against the accused contending that some of the fingerprint of accused No.1 was found in the house of Chukibai. Mahazar was drawn in terms of Ex.P.2. While taking the fingerprint also, P.W.44 brought the photographer, who has been examined as P.W.30 and also the fingerprint expert has been examined as P.W.36.
P.W.36 says in his evidence that he found some of the fingerprint on the Tiffin carrier and also almiraiah and he gave instructions to Investigating Officer to take the photos. Accordingly, he in turn gave instructions to the Photographer to take the photos and photos were taken. It is also the evidence of P.W.36 that photos, which are taken at Ex.P.24 were enlarged and the same are marked as Exs.P.17 and 18. The said fingerprint of accused No.1 on the Exs.P.19 and 20 and the fingerprint found in the house of the deceased are tallying with the fingerprint of accused No.1. It has to be noted that though the prosecution relies upon the evidence of P.W.36 and Investigating Officer and also the photographer, in the cross-examination, the P.W.36 has categorically admitted that normally the chance print will be available for two to three days after the incident. It has to be noted that in the instant case, the chance print were said to have been taken after eight days of the alleged incident that was on 20.05.1991. It is emerged in the evidence that if there is no air and light, then only some of the fingerprint will be in existence for a longer time. Otherwise, the same cannot be preserved. Having considered the prosecution evidence, there is no material that immediately after coming to know about the incident, the room was locked and the said place was preserved. Therefore, the prosecution evidence is not probable with regard to the fingerprint evidence. Since there was a delay in taking the fingerprint, which were found on the almirah and also the Tiffin carrier. Hence, we are of the opinion that it is not sufficient to accept the evidence of the prosecution. The prosecution also cannot rely upon the same. The Court below also considered this aspect in para No.32 of the judgment and did not accept the evidence of fingerprint expert.
135. The other circumstance which relied upon by the prosecution is recovery of MOs.1 to 8 from the house of accused No.4. It has to be noted that the witnesses who have been examined before the Court, have not identified the MOs.1 to 8 that belongs to a particular customer. It has to be noted that those MOs.1 to 8 which were seized has not been claimed by the legal heirs of the deceased Chukibai. MO.1 is the Gold Batani Chain, MO.2 is the Gold Ring including one Kapali Ring, 2 Vanki Rings, 2 Fancy Rings, one with red and white stones, another without stone, one ring with white stone and another ring with emerald green stone, MO.3 is the Gole Rope Chain, MO.4 is the Karimani Gold Chain, MO.5 contains four Lakshmi Kasu, MO.6 contains two pairs of ear studs with white stones out of which one is broken, MO.7 is ear studs with pearls with Jumkhis and MO.8 is fancy ear stud. Having taken note of nature of these gold articles, which appear to be individual gold articles, cannot be identified as pledged articles. It has to be noted that MOs.15 to 333 appear as if they are pledged articles. Since MOs.1 to 8 are in the nature of an individual gold articles, it appears that the same belongs to accused No.4. The Court below while considering the said fact in para No.33 of the judgment held that recovery of MOs.1 to 8 was unwarranted and it is desirable to return those articles to accused No.4. Having considered these aspects and also material on record, we also did not find any error committed by the Court below in forming such an opinion.
136. Having taken note of both oral and documentary evidence, the circumstances in which the accused Nos.1 and 2 were apprehended at the first instance by Channapatna police along with certain gold articles and also car which was seized and the same was purchased in the Garage of Mysore and the person who delivered the Car has been examined as P.W.16 and he also identifies the accused Nos.1 and 2 and also spoken with regard to the Ambassador Car was given to him for repair and the same was also seized. It is also pertinent to note that on the very same day, the accused Nos.1 to 3 went to Sujatha Hotel, Mysore and stayed in the Hotel Room No.11, which was spoken by the prosecution witness – P.W.29, who also identified the accused Nos.1 and2 and another person and also categorically says that on the very same day, they left the hotel and thereafter, on the very same intervening night, they have been apprehended by PWs.34 and 35 at Channapatna. It is also pertinent to note that P.W.7 who is the owner of Ambassador Car has categorically deposed that the Car was taken from his friend by the accused and the very confession statement of the accused No.1 says that in that Car only the dead body was transported. It is also important to note that accused No.1 himself led the police and relatives of the deceased particularly the panch witness – P.W.12 Narasiah. Before going to spot, P.W.11 – Police Constable was also taken from the local Police Station of Mandya and P.W.11 also categorically says that accused gave direction to go to the place and he only pointed out the place where the dead body was burnt and after burning the body, accused Nos.1 to 3 have dropped the body in the canal. Mahazar was drawn to that effect in terms of Ex.P.10 and also half burnt cloths of deceased and also woolen blanket was seized in terms of Mahazar – Ex.P.11. It is also pertinent to note that P.W.18, in his evidence, he says that four to five days prior to the said incident, he found a white Ambassador Car proceeding near the groove of trees. Thereafter, he found the flame from the said place. When he reached the said spot, three persons have left the place in the said Car and he found the foul smell at the spot. It is also his evidence that the persons who were coming from the downward of the canal have told him that half burnt body was floating in the said canal. The evidence of P.W.18 also substantiate with regard to burning of the dead body by the accused Nos.1 to 3. It is also pertinent to note that based on the confession statement also the police have further proceeded in search of dead body and the same was found at the distance of 35 kilometers from the place where the dead body was burnt and dropped. It is emerged in the evidence that P.W.1 had seen the dead body two days prior to visit of the police i.e., on 15.05.1991 itself. But, he did not give any complaint and informed the same to local jurisdictional police that cannot be a ground to disbelieve the case of the prosecution. It has to be noted that the dead body was also found on the information given by accused No.1. If accused No.1 had not taken the police, the relatives of the deceased and the panch witnesses to the place where the body was burnt and dropped, the body could not have been traced. No doubt, P.W.1 had seen the same at the first instance, that does not mean Section 27 of Evidence Act does not apply. The discovery of fact and disclosure of act committed by the accused No.1 does not mean that accused No.1 only has to point out the dead body, but he has shown the place of location where the body was disposed. When the same was thrown in the floating water, it was not in the knowledge of accused No.1 that it would decompose. But, he has identified and showed the place where he has thrown the body. Thereafter, when they made the search, the same was traced. The evidence of P.Ws.1, 3 to 6, 9, 10, 11 and 12 so also the evidence of photographer – P.W.30, who has taken the photos while drawing the mahazar in terms of Exs.P.10, 11 and also Ex.P.1 is consistent with regard to the presence of accused No.1 along with them, though the defence has denied the same. The defence also failed to elicit anything about the animosity between the accused and all these witnesses and coupled with the evidence of the doctor – P.W.40 who conducted the Post Mortem, categorically says that the body was in a decomposed state and also it is pertinent to note that P.W.3, in his evidence, he categorically says that he found a piece of skirt of Chukibai and piece of blanket which were burnt and they identified the same as belonging to Chukibai. P.W.3 also categorically says that P.W.1 showed the dead body got struck up in the heap of stones and that there were no teeth in her mouth. On the basis of absence of the said teeth but on the basis of feet and toes, he identified the dead body as that of Chukibai. The other persons also identifies the same on the basis of missing of Artificial dentures and feet and toes. He also categorically says that the dead body was not fully decayed and denied the suggestion that the body was fully decayed. He also reiterates that the body was identified as that of Chukibai by seeing the toes. P.W.4 also reiterates the same in his evidence with regard to identifying the body. P.W.5, who is the brother of the deceased, in his evidence, he says that he identified the body as that of his sister observing the fingers and feet. An attempt is made in the cross-examination that he could not identify the same. But, the same was denied. He reiterates that face of the dead body was visible and fingers were also visible. The witness – P.W.9 who is the son-in-law of the deceased also accompanied the police and accused No.1 along with P.Ws.3 to 5, in his evidence also, he categorically says that all of them have identified the dead body seeing the fingers of hands and toes of legs and also the absence of dentures in the mouth. Apart from that, the evidence of P.W.46 is very important since the skull which was removed by P.W.40, which was sent to FSL. It is her evidence that she has conducted the super imposition examination over the skull and thereafter, she has given the report in terms of Ex.P.131 and identifies her signature as Ex.P.131(a). P.W.45 also identifies the skull and MO.335 and also articles and the dentures – MO.334 and says both are used for super imposition and compared with photos. It is also her evidence that she has developed photos. She has received in terms of Exs.P.133 and 134 so also Exs.P.136 and 137. In the cross- examination, an attempt is made that report was given in the year 1996 and the same is also not disputed. P.W.45 has given the reason for delay that ESID instruments were installed in the year 1994. Hence, there was a delay. The learned defence counsel also mainly relied upon though the skull was collected in the year 1991, the report was given in the year 1996. P.W.45 categorically says that Exs.P.137 to 141 photos were taken at the time of super imposition. It is suggested that she has not videographed the super imposition and the same was denied. The defence also made an attempt that after long delay, the test of super imposition cannot be done and the said suggestion also denied and categorically says that the delay will not come in the way of conducting the super imposition test.
137. Having taken note of the evidence of the witnesses, who are the relative witnesses particularly P.Ws.3 to 5 and also the evidence of P.W.9 so also evidence of P.W.45, the very contention of the defence that the dead body was not in a position to identify as that of Chukibai and the evidence of P.W.45 also cannot be relied upon cannot be accepted. The skull was removed and the same was subjected to test. No doubt, in the evidence, it is emerged that the original photo which was given to the FSL was not marked before the Court. But, in the case on hand, it is to be noted that P.W.45 has categorically stated that the photographs – Exs.P.131 to 141 were enlarged based on original photos and they were compared with the skull and the dentures found suitable. Even though the dead body was decomposed, P.Ws.3 to 5 and 9 say that by seeing the fingers of the hand and toes, have identified the dead body as that of Chukibai. Apart from that, the body was also recovered at the disclosure statement of accused No.1. Hence, we are of the opinion that the very contention of the defence that the body was not identified and the same was not that of Chukibai cannot be accepted.
138. Regarding the conviction against accused Nos.2 and 4, a separate appeal is filed by them and contended that there is no any material before the Court. Accused No.4 is implicated since she has claimed the gold and silver articles before the Court. It has to be noted that in the 313 statement of accused Nos.1,2 and 4, there was no any explanation on the part of accused Nos.2 and 4. It is the specific evidence of P.Ws.34 and 35, both accused Nos.1 and 2 were apprehended on the intervening night on 13.05.1991/14.05.1991 at 3.00 a.m. Both of them have identified as accused Nos.1 and 2 were apprehended and enquired them. It is also pertinent to note that P.W.16 is the Garage Owner also identified accused Nos.1 and 2 so also receptionist of the Hotel – P.W.29 and deposed that accused No.1 along with other persons came to the hotel. Hence, it is clear that accused No.1 availed the help of accused No.2 and 3 in transporting the body after committing the murder and the Court below has rightly come to the conclusion that accused No.2 helped accused No.1 in screening the evidence.
139. Regarding accused No.4 is concerned, P.W.17 – panch witness has categorically deposed that MOs.15 to 333 were recovered from the house of accused No.4, so also it is emerged in the evidence that accused No.4 made the claim before the Court below claiming the ownership of MOs.15 to 333 and not substantiated her claim and failed to place any material that those articles belong to her or to her family and not in dispute that the same was recovered from her house. It is pertinent to note that accused No.1 in his confessional statement stated that he kept the robbed articles in the house of accused No.4 and the same were seized, which were kept beneath the cot of house of accused No.4. All these materials clearly disclose that accused No.4 has committed an offence punishable under Section 202 of IPC not informing the same to Police and also Section 212 of IPC. Knowing fully well that the same does not belong to the accused harbored and provided the space to conceal the robbed articles to accused No.1.
140. Hence, we do not find any reason to interfere with the order of the trial Court to set aside the conviction passed against the accused Nos.2 and 4. The Court below has given substantial reasons even for convicting the accused Nos.2 and 4. The Court below meticulously screened the evidence of the prosecution as well as the irregularities of the Investigating Officer and rightly came to the conclusion that the irregularities are not fatal to the case of prosecution. The Court also cannot expect mathematical niceties to prove the case of the prosecution. We have also examined the records in detail. We have carefully re- examined the entire material on record. The Trial Court has passed a well considered order. We see no error in the appreciation of evidence by the Trial Court. There are no grounds to reverse the findings of the Trial Court.
140. In view of the discussions made above, we pass the following:
ORDER i) The appeal filed by accused No.1 in Criminal Appeal No.1596/2007 and appeal filed by accused Nos.2 and 4 in Criminal Appeal No.1520/2007 are dismissed. The judgment dated 19.09.2007 passed in S.C.No.335/1991 on the file of Fast Track (Sessions) Judge, Bengaluru City, Fast Track Court – II, Bengaluru convicting the accused for the charges leveled against them is confirmed.
ii) The Court below is directed to secure the accused persons and subject them to serve sentence since they are on bail.
Sd/- Sd/-
JUDGE JUDGE akc/bkp/sma/nbm