IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 PRESENT :
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr.JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL No.169 OF 2014 BETWEEN:
Sri. T.Naveen S/o. Tamilmani, Aged about 26 years, No.12, Sornagiri, Kotar, Nagercoil, Kanyakumari District, Tamilnadu-629 002.
Presently at Central Jail (JC) Parapanagrahara, Bengaluru-560 100. …Appellant (By Sri. S.Balakrishnan, Advocate) AND:
The State of Karnataka By Mico Layout Police Station, Rep. by SPP, High Court of Karnataka, Bengaluru-560 001.
(By Sri. T.Prakash, Special Public Prosecutor) …Respondent This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order dated:31.01.2014 passed by the XLV Addl. City Civil and Sessions Judge, Bengaluru in S.C.No.343/2011 – convicting the appellant/accused for the offence punishable under Section 511 and 302 of IPC; and the appellant/accused is sentenced to life imprisonment and to pay a fine of Rs.5,000/- (Rupees Five Thousand) for offence punishable under Section 302 of IPC in default of payment of fine, the accused shall further undergo R.I. for 3 (three) months and the appellant/accused is sentenced to undergo R.I. for a period of 07 (Seven) years and to pay a fine of Rs.10,000/- (Rupees Ten Thousand) for offence punishable under Section 511 of IPC. In default of payment of fine, the accused shall undergo R.I. for 6 (six) months. The period of sentence shall run concurrently.
This Criminal Appeal having been heard and reserved on 26.03.2019, coming on for pronouncement of judgment, this day, Dr.H.B.Prabhakara Sastry, J., delivered the following:
J U D G M E N T The appellant has filed this appeal challenging his conviction in S.C.No.343/2011 by the XLV Additional City Civil and Sessions Judge, Bengaluru City (hereinafter for brevity referred to as ‘trial Court’) in its judgment dated 31.01.2014, convicting him for the offence punishable under Sections 511 and 302 Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and sentencing him accordingly.
2. The prosecution case begins with Sri. K. Balasubramanyam(PW.1/CW.1) lodging a complaint with respondent-Police on 11.10.2010 at about 9.00 p.m. The summary of the said complaint is that he had married deceased Malar Veli on 20.08.2010 and was residing with her at No.102, 2nd Floor, SMS Residency, 7th Main, 19th Cross, BTM 2nd Stage, Bengaluru. He being a software engineer and consultant, went to his duty on 11.10.2010 at 9.30 a.m. In the afternoon at 12.10 p.m., when he contacted his wife, he came to know that two persons who were relatives of her maternal uncle Sri. Thirumaran had been to their house and after talking to her had left. Once again he telephoned her at 4.30 p.m., when she told that she had taken a nap after lunch and was prepared to take bath and that she would call him later. However, his subsequent call at 5.30 p.m. remained not reachable. His father-in-law i.e., father of the deceased Malar Veli also telephoned him (complainant) stating that his call also could not reach his daughter. Once again he tried to contact her, but the call remained not reachable. Thereafter, leaving office at 5.00 p.m. and meeting a builder of the house, he returned home at 7.50 p.m. The door of the house remained unbolted from inside. After entering the house, he noticed the TV was on play and the dead body of his wife in a naked position was found lying in a pool of blood on the floor of the bedroom. The broken glass pieces of juice glass and spectacles of his wife were also found fallen on the floor. He noticed cut injury on the neck of his wife. He thought that some culprits entered his house and subjecting his wife to rape, have murdered her. The said complaint was registered by the respondent-Police in their station Crime No.677/2010 against unidentified accused for the offences punishable under Sections 376 and 302 of the Indian Penal Code.
3. The Police conducted investigation and finally, filed charge sheet against the accused for the offences punishable under Sections 376 and 302 of IPC.
4. After investigation, the case of the prosecution is that the accused was in one sided love with the deceased Malar Veli. Her grand mother’s house was situated at Nagarkoil near to which house, the house of the accused-Naveen was situated. Malar Veli used to visit her grand mother’s house during her school and college holidays. The accused used to meet her and developed one sided love with her. He had expressed his desire to marry deceased Malar Veli, through his parents. However, Malar Veli refused the same. On the other hand, on 20.08.2010 Malar Veli married the complainant – K. Balasubramanyam and stayed along with him at No.102, SMS Residency, 7th Main, 19th Cross, BTM 2nd Stage, Bengaluru. The accused was very much unhappy about the marriage of Malar Veli with the complainant. The accused came to Bengaluru and stayed in the house of his sister, Ashwini and located the address of the deceased Malar Veli and also was able to secure her cell phone number which was 9538925489. He called Malar Veli through his mobile phone number i.e. 9591784664 on 29.09.2010 and confirmed that the other side on the phone was Malar Veli. Later, on 11.10.2010 at about 11.30 a.m., father of the accused PW.13 also called the deceased and collected her address stating that they wanted to visit her house. At that time, the accused could able to get the complete address of the deceased and noted it down in a slip, which he kept in his purse. On the same day, at 12.30 p.m., the accused and his parents went to the house of the deceased and had stayed there for brief time and returned. Later, on the same day, at about 3.30 p.m., the accused called the deceased through his another cell phone number i.e. 8121015913 and informed that he would be coming to her house to give her a wedding gift. Thereafter, taking his brother-in-law’s motor cycle (MO-15) and helmet (MO-12), he went to Malar Veli’s house and raped her and also murdered her by stabbing and cutting her neck with a knife, which he had carried with him. Later, he absconded.
5. It is further the case of the prosecution that, on 27.10.2010, the accused had attempted to commit suicide in Rathna Complex lodge at Chennai. On the complaint given by the receptionist of the said lodge, the Mambalam Police went there and shifted the accused to hospital and seized a suicide note. After medical treatment, the Police arrested the accused and filed a case against him in their station Crime No.1802/2010 for the offence punishable under Section 309 of IPC and also produced him before the jurisdictional Magistrate, who committed the accused to judicial custody. After release of the accused on 29.10.2010, the present respondent- Police arrested the accused and brought him to Bengaluru and produced him before the VI Additional Chief Metropolitan Magistrate and took him to police custody. During interrogation, the accused gave voluntary statement, which was recorded by the Investigating Officer. The police also said to have seized a slip containing the address of the deceased from the possession of the accused. On the basis of voluntary statement, the police claimed to have recovered knife (MO-11), helmet (MO-12), motor cycle (MO-15), two cell phones (MOs-13 and 14) at the instance of the accused. After completion of investigation, the Police filed charge sheet against the accused for the offence punishable under Sections 376 and 302 of IPC.
6. Charges were framed. Since the accused pleaded not guilty, trial was held, wherein the prosecution in order to prove the alleged guilt against the accused, examined PWs.1 to 33 and got marked documents from Exs.P.1 to 49 and Material Objects from MOs.1 to 22. On behalf of the accused, no witnesses were examined, but documents from Exs.D-1 to 7 were marked.
7. After hearing both the sides, the trial Court by its impugned judgment convicted the accused (appellant herein) for the offences punishable under Sections 302 and 511 of IPC and sentenced him accordingly.
8. It is against the said judgment of conviction, the accused has preferred this appeal.
9. Lower Court Records were called for and the same are placed before this Court.
10. Heard the arguments of the learned counsel for the appellant (accused) and the learned Special Public Prosecutor on behalf of the respondent - Police.
11. Perused the materials placed before us, including the Lower Court Records.
12. Learned counsel for the appellant in his arguments submitted that, the prosecution case is mainly based on the alleged recovery of knife and other articles; the alleged last seen theory of the accused being found in the premises of the deceased; and the alleged motive behind the commission of crime. He also submitted that names of PWs.11 and 12, who are the only witnesses who have spoken about the accused said to have been visited the deceased lastly, when she was alive, are not at all shown either in the complaint at Ex.P-1 or in the remand application filed by the Investigating Officer during the course of investigation. Both PWs.11 and 12 have stated that the Investigating Officer has shown the photo to them, as such, since they were shown the photo of the accused, the test identification parade said to have been conducted in the matter looses its sanctity. Learned counsel also submitted that according to the prosecution, two persons are said to have visited the deceased in the afternoon on 11.10.2010, however, the Investigating Officer, at the earliest has not investigated as to who those two persons were. He has also submitted that the alleged slip on the gift at MO-8 and the address chit at MO-10 are not in the hand writing of the accused, as such, they are implanted ones. He submitted that the alleged recovery of knife at MO-11 and other articles at the instance of the accused have not been established by the prosecution. Admittedly, the cell phone said to have been used by the deceased was not standing in her name and the Investigating Officer has not shown the relationship between the said cell phone with the deceased. So also, the Investigating Agency has not established the ownership of the cell phone said to have been recovered during the investigation.
Learned counsel for the appellant also submitted that the alleged blood stains on the knife said to have been recovered are shown to be stained with reddish brown blood stains, but when the said knife was sent to Forensic Science Laboratory, due to paucity of time the blood stains cannot remain with reddish brown in colour and they necessarily should have turned to black in colour, which gives raise to a doubt in the case of prosecution about the relationship of the knife with the murder of the deceased. As such, the prosecution case is full of suspicion and the evidence of witnesses more particularly, PWs.11 and 12 are with lot of improvements. Therefore, even the last seen theory canvassed by the prosecution also cannot be accepted. However, learned counsel submitted the trial Court ignoring these aspects and not appreciating the evidence in its proper perspective, has erroneously convicted the accused for the alleged offence. He also submitted that the trial Court has also erred in convicting the accused merely for an offence punishable under Section 511 of IPC without reading it with any of the Section, pertaining to any particular offence.
13. Learned Special Public Prosecutor in his arguments submitted that PWs.8 and 9 have spoken about the motive behind the crime, which is the alleged one sided love of the accused toward the deceased. He vehemently submitted that the evidence of PWs.11 and 12 beyond reasonable doubt establishes that both of them had seen the accused visiting the house of the deceased for the second time on the date of incident to which time the incident exactly corresponds. Therefore, it was the accused who was lastly found in the house of the deceased, as such, the suspicion arises against the accused, which he has failed to clear by giving clarification. He further submitted that mere alleged delay of a day in recording the statement of PWs.11 and 12 would not take away the case of prosecution. The delay has been properly and convincingly explained by the Investigating Officer. Regarding recovery, learned Special Public Prosecutor submitted that the recovery of the knife at MO-11 has been established beyond any doubt through the evidence of PW.5, who is an independent pancha to the alleged recovery panchanama. The knife having blood stains upon it has also been further confirmed by the Forensic Science Laboratory report. The Doctor’s opinion regarding the weapon and injury clearly go to show that the said knife was used by the accused in the commission of murder of the deceased.
Learned Special Public Prosecutor has further stated that the recovery of the address chit at MO-10 from the possession of the accused, which is corroborated by the evidence of PWs.2 and 4 go to show that the accused was pre-determined to kill the deceased, as such, he had collected her address also. The gift article seized from the house of the deceased which is at MO-7 and evidence of PW.15 to the effect that it was he who had sold the gift article to the accused would further make it clear that in the guise of giving the gift, the accused had gone to the house of the deceased for the second time and committed the alleged offence.
Learned Special Public Prosecutor also submitted that the voluntary statement of the accused reveals that he was using three sim cards as his contact number through cell phones and he had called the deceased through two of them, which are further confirmed by call detail records at Ex.P-44. He further submitted that the hairs recovered from the place of the offence was not that of the accused, but the same was of the deceased.
He also submitted that though as alleged from the side of the accused that the statements recorded under inquest panchanama does not give the full details of the incident and the role of the accused, but the object of inquest panchanama is only to ascertain the cause of death and the nature of death in the opinion of panchas and nothing beyond it.
He submitted that the alleged omission and improvements in the evidence of some of the prosecution witnesses are not material improvements. Even after excluding the alleged omissions and improvements, still the evidence given by those witnesses clearly makes out the case of the prosecution. He also stated that the alleged lapses on the part of the Investigating Officer or alleged defects in the investigation is minor and would not take away the case of the prosecution. Finally, stating that the defence taken by the accused which was in the form of alibi has not been established by the accused and relying upon few judgments of Hon’ble Apex Court, the learned Special Public Prosecutor submitted that the impugned judgment under appeal does not deserve any interference at the hands of this Court.
14. Among the 33 witnesses examined by the prosecution, PW.1 – Balasubramanyam, the complainant, in his evidence has stated that he is a software engineer at Bengaluru and he married Malar Veli on 20.08.2010 at Tirunallaveli in Tamil Nadu. After their marriage, she started residing with him in his house at No.102, 2nd Floor, SMS Residency, 7th Main, 19th Cross, BTM II Stage, Bengaluru. They were the only two residing in the said house at Bengaluru. On 11.10.2010, he left for his office at 9.30 a.m. After 12.10 p.m. on the same day his wife called him over phone stating that her relatives i.e., her maternal uncle, Naveen, his father, Tamilu Mani and mother Raja Geetha had come to the house and after giving sweet box and spending 20 minutes, they left in an autorickshaw. At 4.30 p.m., on the same day when he called his wife over the phone, she said that after finishing her post lunch nap, she is going to take bath and that she would call him after 10 minutes. The witness has further stated at 5.00 p.m. on the same day he left the office, visited a builder in connection with purchase of a house. At 5.30 p.m. he attempted to call his wife over the phone, but it was not reachable. At 5.50 p.m. his father-in-law called him and he also complained that his call to his daughter has remained unreachable. After discussing with the builder, he returned home at 7.45 p.m., the watchman and his wife were there near main entrance of the apartment. When he went to his house, the main grill door which always used to be locked from inside, was found open. Calling the name of his wife he went inside, the main door was also opened, he also noticed broken spectacle glass pieces, juice glass pieces spread over the floor in the hall.
He also saw blood at the entrance of their bedroom. He went to the bedroom and saw that his wife in a naked position was found fallen dead in a pool of blood on the floor in the bedroom. He also noticed many cut injuries on her neck. At his cry neighbours gathered and suggested him to go to the police station. Thereafter along with watchman, he went to a wrong police station and from there, he was directed to approach jurisdictional/respondent-police station. Accordingly, he went to the police station at 9.00 p.m. and lodged a complaint as per Ex.P-1.
The witness has further stated that after he lodging a complaint, Police visited the spot, where they inquired the watchman and his wife, Manju Bibi who told to the Inspector that three people had come to the said house in the morning and among them one person had once again visited the same house about 4.45 p.m. The Police seized nine articles from the spot by drawing scene of offence panchanama as per Ex.P-2. The witness has identified those articles and they were marked as MOs.1 to 9.
The witness has further stated that he gave the details of three persons who were said to have visited his house on that day. He also called his father and informed them about the incident. The person who visited for the second time on that day was the accused-Naveen, who is his wife’s maternal uncle. The witness has also stated that on 03.11.2010, the Police called him to the police station to identify the accused, where he identified accused-Naveen. The witness has also identified photographs of his deceased wife said to have been taken in the place of offence and got them marked as Exs.P-8 to 13. He was subjected to a detailed cross-examination from the accused side.
15. PW.2 - Parvathamma and PW.4 – B. Saroja Bai, both are teachers in a school, have stated that at the instruction of their Block Education Officer, they had been to respondent-police station, where the Police showing them an address chit said to have been found in the possession of the accused, who was in the police station, seized the said slip by drawing a seizure panchanama as per Ex.P-3. The witness identified the said chit at MO.10 and also the accused in the Court.
16. PW.3 – Sharavanan, has stated that the scene of occurrence of offence panchanama in the instant case was drawn in his presence as per Ex.P-2 by the respondent-Police. He has also stated that when he was requested to be present as a pancha in the spot, he also noticed the dead body of the deceased with injuries sustained on her neck, there was blood scattered in the bedroom where she was found dead, her dress materials were thrown here and there in the room, some hairs were also found fallen in the place and a gift article which was an idol of Lord Ganesha was placed on the dining table with a gift slip mentioning the words “wish u happy married life” in hand writing was also found on it. The Police seized all those articles from the spot under scene of offence panchanama. The witness has identified the said scene of offence panchanama at Ex.P-2 and articles said to have been seized from the spot in his presence from MOs.1 to 9.
17. PW.5 – Siddaraju, has stated that on 03.11.2010, the respondent-Police summoned him and his colleague CW.6 – Abdul Khadar to their police station. They shown him the accused at the Police Station. The Police took all of them, including the accused in their van to the sister’s house of the accused. The accused shown them his sister’s house, which was at 1st Floor, Concorde Paradise Apartment at BTM Layout, Bengaluru. He took out a knife from the loft (sajja) and produced it stating that with the same knife, he has caused the murder. He also took out two cell phones inside the bedroom of that house and stating that one of them was belonging to the deceased and another one pertains to him. He produced those two cell phones among which one was of Nokia make and another was Sony Erricson and the Police seized them all. In the cellular of the said apartment, a pulsar motor cycle and a helmet was also seized by the Police. A panchanama as per Ex.P-5 was drawn in the same place, for which he has put his signature at Ex.P-
5(a). The witness has identified the knife at MO.11, two cell phones at MOs-13 and 14 and a helmet at MO.12 and a motor cycle of the model Pulsar at MO.15.
18. PW.6 – Dr. Ulaganathan, a private worker has stated that on 12.10.2010, to meet his friend when he was standing near Kalasipalya bus stop to catch a city bus, he was requested by the Police to come with them to Victoria Hospital to witness drawing up of a mahazar.
Accordingly, he went to the said hospital where they shown him the dead body of Malar Veli. He noticed cut injuries on the neck and injury on the fore head of the dead body and also few more injuries upon her. The Tahasildar, conducted inquest panchanama on the dead body, one Selvan, PW.7 translated the said panchanama which was in Kannada language in to Tamil language after which he has subscribed his signature. He has identified the said inquest panchanama at Ex.P-6 and his signature therein at Ex.P-6(a).
19. PW.7 – Selvan, has stated that he knows the complainant, his wife and her relatives. The complainant was married to the deceased and both were residing in an apartment at BTM Layout, Bengaluru, after their marriage. On 11.10.2010 at about 7.30 p.m., he received a telephone call from Jaya Selvan, father of the deceased informing him about the murder of his daughter Malar Veli and he was also requested by the caller to accompany him to go to Bengaluru. Accordingly, while the parents of the deceased were going to Bengaluru, he joined them at Hosur. All of them reached the house of the deceased on the next day morning, however, by the time they went there, the dead body of Malar Veli was shifted to hospital. These people noticed the blood flown between the bedroom and dining table. In the Victoria Hospital, they saw the dead body and noticed a cut injury on the neck and blood also coming from the backside of the head. The Tahasildar came to the said place and after seeing the dead body, inquired the relatives of the deceased including the parents and sister of the deceased. Since many of them were not knowing Kannada language, he (this witness) acted as a translator between Kannada and Tamil language. It is thereafter, the Tahasildar drew an inquest mahazar as per Ex.P-6.
The witness has further stated that Jayaselvan has stated in his presence before the Tahsildar that on 11.10.2010, the husband of the deceased had been to his work in the morning. In the middle of the day, he called his house and talked to his wife and he came to know that his wife’s relative by name Naveen and his parents had been to their house. Once again at about 4.00 p.m. Balasubramanyam talked to his wife, however, his subsequent call at 5.30 p.m. has remained not reachable. At his request, father of the deceased also attempted to call his daughter, the same has also resulted as not reachable. Then, Balasubramanyam went to his house, saw his wife was found murdered. Thereafter the said Balaburamanyam lodged a complaint with the Police. The witness stated that he has translated the said statement of Jayaselvan from Tamil to Kannada language. The witness stating that he has seen the accused, has identified the accused in the Court. He has also stated that both Jayaselvan and accused are his distant relatives.
20. PW.8 - Jaya Selvan, the father of the deceased, has stated that Pogathai (PW.9) is his wife and one Smt. Agil Arasi is the sister of his wife. His second daughter is Miss Vadivakkarasi. One Smt. Parvathi is the mother of his son-in-law. Sri. Thamilmani is his junior father-in-law, whose wife is Raja Geetha. The accused who is known to him is the son of said Thamilmani and Raja Geetha. The said Thamilmani is the younger brother of father of Thirumaran. The parents of the accused and the parents of his wife reside in the same road in Nagarkoil at Tamil Nadu.
The witness has further stated that the deceased Malar Veli was visiting her grand parents house during holidays. She was given in marriage to Balasubramanyam(PW.1), after which she started living with her husband in house No.102, SMS Residency at BTM Layout II Stage, Bengaluru. These people had visited her house in the first week of September. The husband and wife were leading happy marital life.
The witness has further stated that on 11.10.2010, Malar Veli was murdered. On that day, at 5.45 p.m., he called his daughter Malar Veli over phone, but the call remained as not reachable. Through his son-in-law, he came to know that he also could not contact the deceased. On that day at 8.00 p.m., when his son in law returned home, he noticed that Malar Veli was found murdered. Hearing the same from his son-in-law, by hiring a private van, they came to Bengaluru. On their way, they also picked up Selvan from Hosur. They saw the blood stains in the house. Since the dead body of his daughter was shifted to the mortuary at Victoria Hospital, they visited the hospital and noticed that deceased has sustained deep cut injury on her neck and the dead body was naked. When inquired with their son-in-law, they came to know that while the deceased Malar Veli was alone in the house, in the after noon and Naveen and his parents had visited and were there for about 20 minutes. Thereafter, in the evening at about 4.00 p.m., when he contacted her, the contact remained not reachable.
The witness has also stated that the Tahasildar had visited the hospital and has recorded his statement. The Police, on 30.10.2010 arrested the accused and these people have identified him on 03.11.2010 in the Police Station. The accused is the son of his junior father-in-law i.e., uncle of his wife Pogathai. Prior to the marriage of Malar Veli, the accused and his parents had given a proposal of marriage of Naveen with their daughter Malar Veli. However, the deceased had rejected the said proposal stating that she had no feeling of marrying said Naveen. When the same was informed to the accused and her parents, when they had been to their house, the accused had left the place showing his anger.
21. PW.9 – J. Pogathai, the wife of PW.8 – Jayaselvan has given her evidence on the same lines as that of her husband (PW.8). She too has stated that her daughter was murdered and that the accused had proposed to marry the deceased, but the same was rejected by her daughter, which was not palatable to the accused.
22. PW.10 – Thirumaran, The younger brother of PW.8 – Pogathai, has stated that he is the maternal uncle to deceased Malar Veli. Hearing over phone about the murder of Malar Veli on 11.10.2010 through PW.1, at 8.30 p.m., on that day, he went to his sister’s house at Tirunallaveli and joined by their family and other relatives and picking up Selvam from Hosur, they came to the house of the deceased, where they saw blood stains in the hall and room. They went to Victoria Hospital and saw the dead body of Malar Veli in the mortuary.
The witness has further stated that at his enquiry with the husband of the deceased, he has stated that on the previous day the accused had visited the house of the deceased along with his parents. In the evening the deceased did not receive the telephone call made by her husband as well as her father. However, in the late evening at 7.30 p.m., her husband i.e., Balasubramanyam returned to home, and noticed that his wife was murdered and her dead body was in a pool of blood. Glass pieces were scattered in the hall and an idol of Lord Ganesha in a gift box was found on the dining table. The witness has further stated that on 03.11.2010, the Police summoned him to their station and got the accused identified through him. He has stated that the accused is known to him since long time, as he is their relative. By relation, the accused becomes his brother and house of the parents of the accused and his parents’ house are opposite to each other in the same street.
23. PW.11, Mahaboobil Pathyori, a West Bengalian, in his evidence has stated that he was working as a watchman at SMS apartment in 19th Cross, BTM II Stage, Bengaluru. At the relevant point of time, he was residing along with his wife and son and PW.1 – Balasubramanyam and his wife, Malar Veli were residents in the said apartment at Flat No.102. While he was working as a watchman in the said apartment, the accused along with his parents had been to the said apartment in one afternoon at 12.30 p.m.. At his enquiry, they stated that they wanted to visit house No.102 of Malar Veli. At that time, said Malar Veli came there and identifying them as her relatives, took all the three of them to her house. After about 1½ hour, all the three left their apartment. Thereafter, at about 2.00 p.m., having his lunch he slept, however, his wife was keeping a watch near the gate. After he resuming to his duty at 6.00 p.m., he came to know from his wife that among three persons who visited the house of Malar Veli in the after noon, the boy had came to her house at about 4.30 p.m. and visited the house of Malar Veli.
The witness has further stated that on the same day at 7.00 p.m., PW.1 – Balasubramanyan, after returning to his home came yelling outside stating that his wife has been murdered by some body. He also went there and saw the dead body of Malar Veli, who had fallen in a pool of blood with injuries on her neck. Thereafter, he joined Balasubramanyam to the Police Station where, PW.1 – Balasubramanyam lodged a complaint.
The witness has further stated that after receiving the complaint, Police visited the spot and collected the articles like glass pieces thrown on the floor of the said house. He also stated that two months thereafter, the Police and Tahasildar taken him to Central Jail, where the Jail Superintendent had made him to sit and shown him the accused and other 5 or 6 persons and asked to identify the accused among them, whom he promptly identified. The witness has identified the accused in the Court as the one whom he identified in the Central jail, as the one who has visited Malar Veli’s house on the date of incident along with his parents. This witness was subjected to a detailed and searching cross-examination from the side of the accused, wherein he adhered to his original version.
24. PW.12 – Manju Bibi, the wife of PW.11 also has given the evidence on the line of her husband. Apart from stating that she joined by her husband was working as watchman of SMS Residency, 19th Cross, BTM II Stage, Bengaluru, wherein, Balasubramanyam and his wife Malar Veli were residing. The witness has also stated that the accused present in the Court had visited their apartment along with his parents one day. At enquiry of all these people, they told that they wanted to visit Malar Veli at No.102. By that time, Malar Veli went there, identifying them as her relatives, took them to her house. Thereafter, those three persons left the apartment after an hour. Thereafter, her husband went to rest at about 2.00 p.m., after having his lunch, as such, she alone continued her watchman duty. At about 4.00 p.m. on the same day, the accused once again went near the apartment stating that he wanted to talk to Malar Veli and went to her flat. One hour thereafter, he left the apartment, however, with the helmet which he had brought while coming to the apartment. She told her husband in the evening at 6.00 p.m. about the second visit of the accused.
The witness further stated that on the same evening at about 7.00 p.m., Balasubramanyam, who went to the flat, came back yelling that his wife has been murdered.
She joined by her husband went to the said flat and saw that Malar Veli was found dead in a pool of blood with cut injuries on her neck.
The witness has further stated that two months thereafter, the Police had taken them to Central Jail where the officer of the jail shown them about 7 to 8 persons together and among them she identified the accused stating that he was the one, who had visited their apartment on the date of incident. The witness had identified the helmet in the Court at MO.12, stating that the same was the helmet which the accused had brought with him on the other day to the apartment. She also identified the accused in the Court. This witness was also subjected to cross-examination, wherein she adhered to her original version.
25. PW.13 – Thamilmani and PW.14 Raja Geetha are the husband and wife, respectively and also parents of the accused – Naveen. PW.13 in his evidence has stated that his son, Naveen, the accused, after completing his Bachelor of Engineering and animation course, was working at Hyderabad and was also residing there. Though the witness stated that he knows the deceased Malar Veli, who is her relative i.e., grand daughter of his elder brother, but he has stated that after the year 2009, he did not visit Bengaluru. The witness was treated as hostile by the prosecution and it was permitted to cross-examine, wherein the witness has stated that the house of grand mother of Malar Veli is at a distance from his house and between their house there are 10 to 15 other houses. He denied a suggestion that during holidays, Malar Veli was visiting her grand mother’s house and at that time, the accused was talking with her. He also denied a suggestion that the accused was in love with Malar Veli, in that connection, these people had been to the house of Malar Veli taking marriage proposal. The witness has also stated that on the next day, after the incident, he came to know about the same, at which time his son was at Hyderabad. However, the witness denied that his nephew, Thirumaran on the night on 11.10.2010 informed him about the murder of Malar Veli and that after hearing the same, these people came to Bengaluru and stayed in their daughter Ashwini’s house. The witness denied a suggestion that he had given his statement before the Police as per Ex.P-14.
26. PW.14 – Raja Geetha, followed her husband in her evidence. She was also treated as hostile by the prosecution and though she was cross-examined by it, however, it could not get any support from the witness. She also denied a suggestion that her son, Naveen was loving Malar Veli and that they had taken a marriage proposal to the family of Malar Veli. She also denied a suggestion that her son Naveen attempted to commit suicide at a lodge at Chennai. She has denied that she has given statement as per Ex.P-15.
27. PW.15 – Surendra, a business man at Bengaluru has stated that he is running a shop by name Thirumala Fancy Store at Maruthi Nagara, BTM Layout, Bengaluru. On 11.10.2010, the accused whom he identified in the Court, visited his shop at 3.00 p.m. and purchased an idol of Lord Ganesha and got it gift packed. Two months thereafter, the Police took him to the Police Station and shown him the photograph asking him to identify. He identified the person in the photograph as the one who had come to his shop for the purchase of a gift. The witness identified the accused in the Court as the one who had purchased the idol of Lord Ganesha on the other day.
28. PW.16 – Reshma in her evidence, has stated that in the year 2010 she was working as a cashier in a shop called ‘More’. On 04.10.2010, while she was in billing section, accused went there. The accused inquired her about the availability of knife. After she showing him the place where knives were kept, he picked up one and got it billed. Seeing a bill and got it marked at Ex.P-7, stated that the same was the bill generated by her for the sale of the said knife by her. She has also stated that on 23.11.2010, the Police took her to the Police Station and showed her a photograph, which she identified as that of the accused who had been to her shop for purchase of knife. The witness also identified the knife at MO.11.
29. PW.17, Doctor Suresh has stated that on 12.10.2010 on the request of the Tahasildar, Bengaluru South Taluk, he has conducted post mortem examination on the body of the deceased Malar Veli in the mortuary of Victoria Hospital between 2.00 to 3.00 p.m. He has given a detailed account of injuries noticed by him on the dead body. He stated that he noticed one deep incised wound measuring 13cm X 4 cm X bone depth on the front side of her neck and also stab wound measuring 1.5 cm. X 3 mm.X1 cm. depth and one more stab injury measuring 1.5 cm.X 2 mm. X 1 cm. depth on the left side of the neck among other injuries. After dissection, he noticed the internal organs found intact. He collected vaginal swab and handed it over to the Investigating Officer for its further examination by the Forensic Science Laboratory. The witness has stated that in his opinion the cause of death was due to shock and haemorrhage as a result of incised injuries sustained to the neck. He has identified the post mortem report at Ex.P-17, stating that the same was issued by him. The witness has further stated that with respect to the same post mortem examination, on 27.11.2010, he examined a helmet and a knife sent to him under sealed packet and opined that external injury No.1 can be caused by the said helmet and external injury Nos.2 to 5 can be caused by the knife examined by him. In that regard, he gave his opinion as per Ex.P-18. The witness has also identified the helmet and knife at MOs.11 and 12, respectively, as the one shown to him for his opinion.
The witness has further stated that on 02.11.2010, at the request of complainant-Police, he has examined the accused –Naveen, during which time he collected pubic hair and scalp hair and handed it over to Police for examination. By the examination of the accused, he opined that there was nothing to suggest that the person was incapable of performing sexual intercourse. In that regard, he has issued a report as per Ex.P-19. The witness has also identified the sample seal sent by him to the Forensic Science Laboratory along with the articles given by him which he has identified at Ex.P-20.
30. PW.18 Smt. Hari Shilpa, then Special Tahasildar of Bengaluru South Taluk between the years 2009-2012, in her evidence has stated that, on 12.10.2010, at the request of respondent-Police, she visited Victoria Hospital, Bengaluru and in the presence of panchas drew inquest panchanama with respect to the dead body of deceased Malar Veli. In the said process, she also recorded the statement of parents of the deceased and other relatives of the deceased. According to them, the deceased was subjected to rape by somebody and was murdered. The witness has identified the inquest panchanama at Ex.P-6.
31. PW.19 - Sri. C. Manjuantha, then Tahasildar of Bengaluru South Taluk, during the period of October- 2008 to February-2011, has stated that at the request of respondent-Police for conducting test identification parade, he visited Parappana Agrahara Central Jail on 04.12.2010 and conducted the test identification parade pertaining to this case. First he summoned Pathyori Mahaboobil and asked him to identify the accused in this case, which accused was already made to stand amidst seven other accused in the jail. The said Mahaboobil identified the accused who was standing at Sl.No.5. The witness has identified that the said accused identified by Mahaboobi is the accused present in the Court in this case. He also obtained the signature of Mahaboobil for having identified the accused, which this witness marked at Ex.P-7(b). Thereafter, he summoned Manju Bibi and asked her to identify the accused, who was mixed with other seven accused, in a different order. The said Manju Bibi also identified the accused present in the Court as the accused among the said group. In that regard, her thumb mark was obtained, which this witness has identified in the Court. For having conducted test identification parade, he has issued a report as per Ex.P-7.
32. PW.20 Krishnananda Prabhu, has stated that flat No.102 in SMS Residency at BTM Layout, Bengaluru is owned by him along with his wife. The said flat is in second floor, which he had rented out to one Sri. Balasubramanyam in the year 2010. On 12.10.2010 said Balasubramanyam, the tenant telephoned him informing that his wife was murdered in the said house. Fifteen days thereafter, when he returned to Bengaluru, the Police recorded his statement about his ownership of the flat.
33. PW.21 – Venkataswamy, has stated that on 29.10.2010, the Investigating Officer in this case took him with respect to the investigation in this matter for the purpose of apprehension of the accused. At that time, as per the information, the accused was stated to be in Tamil Nadu. Therefore, these people went to Chennai and apprehended the accused in a place called Pulal on the way from Chennai to Kolkatta and brought him to their police station. The witness has identified the accused in the Court.
34. PW.22 - Veerabhadraiah, Police Constable, has stated that as per the instruction of his superior, on 02.11.2010, he took the accused to Victoria Hospital and got him medically examined by the Doctor and collected the articles given by the Doctor and produced the same before his superior along with his report at Ex.P-24.
35. PW.23 Smt. Shwetha K.C., Woman Police Constable, has stated that as per the instruction of their superior on 18.12.2010, she carried the sealed articles to the Forensic Science Laboratory and submitted those articles at laboratory, collected the acknowledgement as per Ex.P-26 and produced the same before her superior along with her report at Ex.P-25.
36. PW.24, Dayanand, the Assistant Engineer of PWD North Division, Bengaluru, has stated that at the request of the respondent-Police and upon instruction of his superior on 20.12.2010, he visited the place of offence shown to him by the Police and prepared a sketch of the place as per Ex.P-27 and submitted to the Police through his office.
37. PW.25 - K. Govindaraju, the Police Head Constable has stated that on 11.10.2010, he has carried the FIR from his Police Station to the Magistrate and submitted it to him at 11.10 p.m. and gave a report as per Ex.P-28 to his superior.
38. PW.26 – Mithun, Police Constable, has stated that based on the instruction of his Inspector, on 11.10.2010 in the night, he shifted the dead body of Malar Veli to the mortuary of Victoria Hospital and submitted the report to his superior as per Ex.P-29.
39. PW.27 – Puttamadaiah, a Police Head Constable has stated that on 12.10.2010, he was appointed for the watch of dead body of Malarveli and the Tahasildar conducted the inquest panchanama on the said dead body after which it was given to the Doctor for conducting autopsy. Thereafter, the dead body was handed over to her relatives. In that regard, he has submitted a report to his superior as per Ex.P-30.
40. PW.28 – Dr. Nagarajappa, has stated that while working in the department of Pathology in Bengaluru Medical College, on 02.11.2010, at the request of respondent-Police, he collected semen from the accused – Naveen by following the due procedure and sealing it in a bottle, had handed over to the respondent- Police.
41. PW.29 - Ramesh, Police Constable has stated that based on the instruction by his superior on 11.10.2010, he went to the place where the offence had taken place, which was flat No.102, SMS Residency, BTM II Stage, Bengaluru and snapped the photograph of deceased Malar veli, which photographs he had identified at Ex.P-8 to 14.
42. PW.30 – H.S. Parameshwarappa, then Police Inspector or respondent-Police Station has stated that he took up further investigation in this case from another Police Inspector Sri. Janardhan. On 02.12.2010, he served notice to PWs.11 and 12 to go along with Tahasildar and to Central Jail and participate in the test identification parade. He recorded their statement in that regard. On 05.12.2010, he recorded the statement of Smt. Ashwini, Dinesh Gopal and Surendra. On 17.01.2011, he collected the sketch of the place of offence as prepared by the PWD department, on the same day, he collected the Forensic Science Laboratory report and filed charge sheet in the case. He has identified the Forensic Science Laboratory report at Ex.P- 33.
43. PW.31 - Smt. Radha S., Scientific Assistant at Forensic Science Laboratory, then at Bengaluru, has stated that on 18.11.2010, the respondent-Police had submitted 15 sealed articles in their laboratory. She was entrusted the task of examination of those articles. She subjected those objects to chemical, radiological and serological examination. The witness has given the description of 15 articles examined by her. she has stated that she detected blood in article Nos.3 to 5, 7, 8, 13 and 14. There were no blood stains in article No.9.
The blood that was found on the other articles were human blood. The blood stain in 3 to 5, 7, 8, 13 and 14 were stained with ‘A’ blood group. The blood group of blood stains in item No.14 which was one helmet could not be determined as the results of the test were inconclusive. The presence of seminal stain was not detected in the vaginal swab and pubic hair. The hairs in item Nos.1, 2, 6 and 11 were dissimilar in characteristics.
Accordingly, she has issued a report and sent to the Assistant Director to the concerned Police Station. After examination, she sealed all the articles and sent to the concerned Police Station. She has identified the Forensic Science Laboratory report at Ex.P-33. she has also identified the articles among material objects in the Court stating that she has identified the articles tested by her among material objects marked in this case.
44. PW.32, C.N. Janardhan, then Police Inspector of respondent-Police Station has stated that on 11.10.2010 at 9.00 p.m., the complainant appeared before him and gave a statement, which he has registered in their Station Crime No.677/2010 and prepared FIR as per Ex.P-36 and submitted it to the Court. He visited the spot on the same day along with finger print experts, photographer and dog squad. He drew scene of offence panchanama in the spot in the presence of panchas and got the dead body of the deceased photographed and also appointed his staff for apprehending the accused.
The witness has further stated that he requested the Tahasildar on 12.10.2010 to conduct inquest panchanama. Accordingly, the Tahasildar conducted inquest panchanama and handed over the dead body to the Doctor for conducting post mortem examination. After the said examination, the dead body was handed over to the relatives of the deceased. On 13.10.2010, he recorded the statement of parents of the accused and also PWs.11 and 12. On 26.10.2010, he received post mortem report and also the articles collected and delivered by the Doctor, who conducted post mortem examination. He also deputed his staff for ascertaining the whereabouts of the accused and for his apprehension. In the said process, he came to know that the accused had attempted to commit suicide in a lodge by name Rathna Complex Lodge, T.Nagar, Chennai. He also came to know that the Mambalam Police have registered in that connection, registered a case in Crime No.1802/2010 for the offence punishable under Section 309 of IPC. On 29.10.2010, based on the information, joined by his staff, he apprehended the accused in a place called Kolda on the national highway between Chennai and Kolkatta.
On 30.10.2010, he brought the accused to the Police Station and arrested him and subjected him to enquiry and recorded the voluntary statement given by him. In his personal search, he found an address chit of the deceased in the possession of the accused, which he seized in the presence of panchas. In his voluntary statement, the accused revealed about he contacting through his cell No.8121015913, the deceased on her cell No.9538925489 on 11.10.2010, as such, he collected call details to confirm the same. Subsequently, the accused gave cell No.9591789664 as another one through which he contacted the deceased on her earlier cell number. He also collected the call details in that regard. He recorded the statement of witnesses. He also got the accused medically examined by the Doctor and collected from them pubic hairs and scalp hairs of the accused, which the doctor had collected in the examination of the accused and submitted property form (PF) to the Court in that regard.
The witness has further stated that based on the voluntary statement of the accused, on 03.11.2010, joined by the panchas including one Sri. Siddaraju, he followed the accused, who took them to House No.2, first floor of Concorde Paradise apartment, BTM Layout 1st Stage and produced Nokia and Sony Erricson cell phones, a helmet and pulsar motor cycle No.KA-05-ER-7125, which he seized by drawing a panchanama and on the same day he recorded the statement of few more witnesses and further statement of the complainant.
The witness has further stated that during the course of investigation, he requested the PWD Authority for preparing sketch of the scene of offence and he collected the same. On 09.11.2010, he also requested the Court to direct the Tahasildar of Bengaluru South Taluk to conduct test identification parade. He also sent seized articles for their scientific examination to the Forensic Science Laboratory through his staff, visited the shop where the accused had purchased the knife and he collected a copy of bill for having sold a knife to the accused. He sent the knife and the helmet for expert’s opinion to the Head of Forensic Science Department, Victoria Hospital. Due to his transfer, he handed over further investigation to PW.30 – H.S. Parameshwar, the Inspector. The denial suggestions made to PWs.30 and 32 in their cross examination were not admitted as true by them.
45. PW.33 – T. Govindaraja, a Police Inspector from Tamil Nadu Police has stated that while he was on duty as a Police Inspector in Mambalam Police Station on 27.10.2010, he received a complaint alleging that one Naveen, who was staying in room No.213 of Rathna Complex Hotel where the complainant was working as a receptionist was found unconscious having taken medicine. He registered the said complaint for the offence punishable under Section 309 of IPC and visited the spot. He noticed Naveen in an unconscious state in the said hotel/lodge and also found a suicide note nearby him and a Coca-Cola bottle. He shifted the injured to hospital and recorded the statement of the Doctor, who treated the patient. He also arrested the accused and produced him before the Court. By completing investigation, he filed charge sheet against the accused in the jurisdictional Court. The witness has identified the accused in the Court as the one against whom he had filed charge sheet.
46. The relationship among the deceased and the prosecution witnesses that PW.1 is the husband, PW.8 is the father, PW.9 is the mother and PW.10 is the maternal uncle of the deceased and PWs.13 and 14 are the parents of the accused are admitted facts. It is also not in dispute that the deceased Malar Veli was given in marriage to PW.1 - Balasubramanyam and that their marriage was performed at Tirunallaveli of Tamil Nadu on 20.08.2010. It is also not in dispute that after her marriage, the deceased came to Bengaluru and started living with her husband, who was working as a software engineer and residing at No.102, 2nd Floor, SMS Residency, 7th Main, 19th Cross, BTM II Stage, Bengaluru. Apart from the evidence of PWs.1, 8, 9 and 10, the evidence of PWs.11 and 12 who are said to be the watchman couples of the apartment, where the deceased was residing and the evidence of PW.20, the landlord of the flat in which PW.1 and the deceased were residing by taking the said premises on lease, are the undisputed evidence on the said aspect.
47. The evidence of PW.1, who is the husband of the deceased that on 11.10.2010, he returned home in the late evening at about 7.45 p.m. and found his wife dead in a pathetic situation and according to him she was murdered by some culprits after inflicting injuries upon her neck, has been further corroborated by the evidence of PWs.11 and 12 who are the watchman couples of the said building. The evidence in that regard, of these witnesses that Malar Veli was found murdered in the said apartment in house No.102 of SMS Residency in the evening of 11.10.2010 has not been disputed from the side of the accused.
48. The evidence of parents of the deceased i.e., PWs.8 and 9 and maternal uncle of the deceased i.e., PW.10 that after hearing the information about the death of Malar Veli, they also rushed to Bengaluru and saw the dead body and according to them, Malar Veli was murdered by suffering injuries inflicted upon her neck, has also not been denied or disputed from the side of the accused.
The evidence of PW.3, pancha, that Police drew a scene of offence panchanama in the house of the deceased in his presence as per Ex.P-2 and that he also saw the dead body of the deceased who was found murdered in the said house has not been specifically denied from the side of the accused. The evidence of PWs.6 and 7 that the inquest panchanama as per Ex.P-6 was drawn in their presence on the body of that deceased Malar Veli and that the panchas have opined in the panchanama that the death was in the nature of murder, has not been specifically denied or disputed from the side of the accused. The evidence of PW.18, the Tahasildar that inquest panchanama as per Ex.P-16 was drawn by her as a Tahasildar on the body of the deceased Malar Veli and the evidence of PW.32, the Investigating Officer that it was at his request the Tahasildar conducted inquest panchanama, stands corroborated by the evidence of panchas to the said inquest panchanama. According to these witnesses, the nature of death of the deceased was homicide. The medical evidence of PW.17, Doctor, who conducted post mortem examination on the dead body of the deceased Malar Veli and the report issued by him as per Ex.P-17 go to show that the Doctor noticed the following external injuries on the dead body of Malar Veli:
1. Contusions two in number measuring 1.5cms x 1 cm and 1cm x 1cm present over forehead to the left of midline.
2. Incised injury 3 mm x 1mm skin deep present over middle of chin.
3. Incised injury measuring 7cm x 3cm x neck tissue deep obliquely placed over left side of neck extending from lower border of left side of mandible left side front of neck exposing cut muscles of left side of neck margins are clean cut.
4. Incised injury horizontally placed over front of neck measuring 13cm x 4 cm x vetebra deep. It is situated 2 cm below right ear, 11 cm below chin, and 6 cm below left ear. Through the wound cut muscles of front of neck, completely cut trachea and oesophagus, inter vertebral disc between C5-C6 and partially severed spinal cord are seen margins are clean cut with profuse bleeding from completely severed neck vessels.
5. Stab injuries measuring 1.5cm x 3mm x 1cm deep and 1.5 cm x 2 mm x 1 cm deep situated perpendicular to each other over left side of neck 6 cm below left ear margins are clean cut and both ends are sharp.
6. ‘V’ shaped laceration over right parieto occipital region of scalp with the limbs measuring 4cm x 0.5 cm x skull deep and 3 cm x 0.5 cm x skull deep. Margins are irregular.
The Doctor has opined that the cause of death was due to shock and haemorrahage as a result of incised injuries inflicted on the neck. Further, it is nobody’s case that the injuries sustained to the neck of the deceased was self inflicted or accidental. The scene of occurrence of the offence as explained by PWs.1, 11, 12 and 3, wherein they have stated that the dead body was found on the floor of the bedroom in the house in a naked position and in a pool of blood and that the broken juice glass pieces were scattered in the hall, so also the spectacle of the deceased and further that the dead body was found sustaining inflicted cut injuries on its neck, since have remained undisputed, clearly go to establish that the death of the deceased Malar Veli has occurred in the evening hours on 11.10.2010 at Flat No.102, 2nd Floor, SMS Residency, 7th Main, 19th Cross, BTM II Stage, Bengaluru and it was not only a homicidal death, but also was a murder. Learned counsel for the accused also submits in his arguments that he would not dispute that the death of Malar Veli was a murder and that it has occurred on the date, time and place as alleged in the charge sheet.
49. The questions that remain for consideration is, whether the prosecution has proved beyond reasonable doubt that the said murder of the deceased Malar Veli was committed by none else than the accused himself and whether the prosecution has also proved that he had attempted to commit rape on the deceased prior to her murder.
50. The case of the prosecution is based on the evidence of circumstantial witnesses. Admittedly, there are no eye witness to the incident. The prosecution theory that it was the accused who committed the alleged murder is mainly based on the last seen theory where it is alleged that PW.12, the wife of the watchman (PW.11) is said to have seen the accused lastly going to the flat of the deceased when the incident is said to have taken place. The same is followed by the prosecution version of alleged recovery of incriminating material said to have been recovered at the instance of the accused and the motive which the accused is said to have possessed for committing the alleged offence.
51. The prosecution witnesses who have suspected the accused as the culprit in the instant case are mainly PWs.1, 8, 9, 11 and 12. PW.1 who is the husband of the deceased is also complainant in the case. He is the first person to see the dead body of his wife in his house and has lodged a complaint before the Police as per Ex.P-1. In his complaint, he has stated that on that day, when he called his wife from his cell phone No.9620209212 to her cell No.9538925489, he was told by her that two relatives of her maternal uncle by name Thirumaran, had been to their house and giving some sweets they have left. He has also stated that thereafter once again he called his wife at 4.30 p.m., when she said that after lunch, she had taken a nap and that she was going to take bath and would call him later. Thus, in the complaint, at the first instance, the complainant though has not suspected any particular person as the culprit, but has referred that two of his wife’s relatives had visited his house in that afternoon. Except stating that those two relatives were relatives of Sri. Thirumaran who is the maternal uncle of his wife, he has not given any details in his complaint, as such, at the first instance, the FIR was registered against unknown accused.
52. PW.1, after seeing the dead body of his wife in his flat, informed the same to PW.11, watchman of their apartment building and his wife. Both of them also saw the dead body of the deceased. Thereafter, PW.11 – watchman also accompanied PW.1 to the Police Station for lodging the complaint. It is on this point, learned counsel for the accused in his arguments vehemently submitted that had really the watchman couple seen the accused visiting the house of the deceased at last, PW.11 should have necessarily informed the same to the complainant, in which case the reference about the accused as a third person should have necessarily appeared in the complaint. The said argument of the learned counsel for the appellant is not acceptable for the reason that neither PW.1/complainant, nor PW.11 – watchman in their evidence anywhere stated that before the complainant lodging the complaint, the complainant collected information from the watchman couple as to the people who visited their house on that day, more particularly, about the accused visiting their house for the second time in that afternoon. Even according to PW.1, the complainant, he saw the dead body of his wife for the first time at 7.45 p.m. in his house. Thereafter, he was under shock for a few minutes without knowing what to do. It is only after the neighbours in the apartment suggested him to lodge a police complaint, he proceeded to go to police station for lodging a complaint. Even in the said process also, PW.11, the watchman took him to old police station, where the people told him that police station was shifted to Mico Layout, as such, they went to Mico Layout Police Station at 9.00 p.m. Thus, the evidence of PW.1 nowhere shows that he had any discussion with anybody, muchless, with PWs.11 and 12 about the persons who visited their house on that day or with respect to the possible suspects. Similarly, the evidence of PWs.11 and 12 also nowhere go to show that when they came to know about the incident through PW.1 on that late evening, they stated to him about the visit of some guests to their house on that day, more particularly, that of the accused. Therefore, in the absence of collecting any details from PWs.11 and 12 about the visitors to their house and based upon only the telephonic information said to have been received by him from his wife, the complainant in his complaint has stated that relatives of his wife’s maternal uncle had visited their house.
53. It is the argument of learned counsel for the appellant that apart from the complainant even the persons who have given their statements during drawing of inquest panchanama also have not revealed about the accused visiting the house of the deceased on the alleged date of incident. Learned Special Public Prosecutor in his arguments submitted that the object of inquest proceeding is only to ascertain whether a person has died under unnatural circumstances or of an unnatural death, as such, the inquest panchanama need not contain all the details as to who had visited the house of the deceased prior to the incident. In his support, he relied upon the judgment of the Hon’ble Apex Court in the case of Sambhu Das Aliyas Bijoy Das and Another Vs. State of Assam reported in (2010) 10 Supreme Court Cases 374.
54. In the instant case, inquest panchanama was drawn on 12.10.2010 in the morning between 10.00 a.m. to 12.00 noon. In the said inquest panchanama only four persons have given their statement who are the parents of the deceased and aunty of the deceased and one Sri. Selvan (PW.7). Admittedly, none of these witnesses were either residents of Bengaluru or staying with the deceased in her apartment. It is not the case of the prosecution that prior to the incident, any of these witnesses had any information or knowledge about who are all the people who visited the deceased in her apartment on the date of incident. Therefore, any of these witnesses stating in their statement during the inquest panchanama about the accused visiting the deceased on the date of incident does not arise.
Secondly, as observed by the Hon’ble Apex Court in Sambhu Das’s case (supra), the object of inquest proceedings under Section 174 of Cr.P.C. is to ascertain whether a person has died under unnatural circumstances or an unnatural death and if so, what the cause of death is. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted, is foreign to the ambit and scope of the proceedings under Section 174 of Cr.P.C. It was further held in the same judgment that mention of name of the accused and eye witnesses in the inquest report is not necessary. Thus, for these two reasons the argument of learned counsel for the appellant that non-disclosure of the name of the accused in the inquest panchanama creates doubt in the case of the prosecution, cannot be accepted.
55. It is PW.11, the watchman and PW.12, his wife who have stated about the visit of the accused along with his parents in the afternoon at about 12.30 p.m. to the house of the deceased and thereafter the visit of the accused alone on the same day evening at about 4.20 p.m. Even though a small portion of evidence of these two witnesses were proved to be omissions, still excluding those portions of alleged omission, the remaining evidence of these two witnesses has come in uniformity and in consistency and would clearly go to show that being a watchman couple of that apartment, both of them have seen three persons visiting the house of the deceased Malar Veli on the alleged day in the afternoon at 12.30 p.m. and inquired those visitors. PW.11 has specifically stated that on the said day, the accused, whom he has identified in the Court and his parents had come near the gate of the apartment at about 12.30 p.m. and at the enquiry of PW.11, they stated that they wanted to visit the house of Malar Veli at No.102. At that time, while he was talking to the visitors, said Malar Veli herself came down and identifying them as her relatives, took them to her house. Thus, it not only go to show that three persons had visited Malar Veli on that afternoon, but also shows that Malar Veli had the information about the arrival of these people in that after noon. Otherwise, she would not have come from the second floor for identifying them and taking them with her. The said evidence of PW.11 that three persons including the accused had come to the house of Malar Veli on that afternoon could not be shaken in the cross- examination of PWs.11 and 12. Even though PWs.13 and 14, the parents of the accused in their evidence have stated that after the year 2009, they have not visited Bengaluru, still the said statement does not inspire any confidence to believe about visit of accused and his parents to the house of the deceased.
56. The evidence of PWs.11 and 12 further go to show that regarding second visit of the accused on the same evening at about 4.30 p.m. was witnessed by PW.12, the wife of the watchman. PW.11 has stated that after his lunch at 2.30 p.m., he was taking rest, as such, his wife i.e., PW.12 was on duty as a watchman near the gate. After PW.11 resuming to duty at 6.00 p.m., he came to know from his wife that the accused who had come along with his parents in the afternoon to the house of the deceased had once again come to visit her at 4.30 p.m. and after spending nearly an hour in her house, had returned. The evidence of PW.12 is also on the similar line. Further more, PW.12 has also stated that when the accused came in the evening on his second visit, he was carrying a helmet in his hands, which he took along with him while going back. That unshaken statement of PW.12 makes it further clear that the accused not only visited the house of the deceased for the second time on that day, but he was also carrying a helmet during his second visit.
57. Learned counsel for the appellant in his arguments put forth one more arguments that in view of the fact that there was more than a day’s delay in recording the statement of PWs.11 and 12, their statement cannot be believed. In that regard, he relied upon a judgment of the Hon’ble Apex Court in the case of Ganesh Bhavan Patel and Others Vs. State of Maharashtra reported in MANU/SC/0083/1978, wherein the Hon’ble Apex Court at paragraph No.15 was pleased to observe that, delay of few hours, simpliciter, in recording the statements of eye witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But, it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced.
In the case on hand, though PWs.11 and 12 are material witnesses, but admittedly they are not eye witnesses to the alleged incident of homicidal death of the deceased. It was not shown from the side of the accused that there are any concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. Therefore, in the absence of any material to suspect the alleged delay in recording the statement of PWs.11 and 12 was for the reason of the Investigating Officer giving shape to the case and for introducing eye witnesses, the alleged delay cannot be suspected.
Even otherwise, in the instant case, the alleged incident has come to the notice of the complainant, who is the first person to see the dead body of his wife at 7.45 p.m. on 11.10.2010. He went to the Police Station and registered a complaint only at 9.00 p.m. on that night. The statements of PWs.11 and 12 were recorded on 13.10.2010. Thus, the delay is hardly a day. Even the said delay has been explained by the Investigating Officer, PW.32 stating that on the night of the incident, since he was busy in inspecting the spot and shifting the dead body for its further procedure and also maintaining law and order and involved in seizure of the articles found in the place, he could not record the statement of the witnesses available in the spot. Considering the length of the alleged delay, the said explanation given by the Investigating Officer, cannot be suspected.
Thirdly, in Sidhartha Vashisht Aliyas Manu Sharma Vs. State (NCT of Delhi) reported in (2010) 6 SCC 1, a case relied upon by the Special Public Prosecutor, the Hon’ble Apex Court has held that, the delayed examination of the witnesses does not necessarily discredit their testimonies, the Court may rely such testimonies if they are cogent and credible. Further, in the case of State of U.P. Vs. M.K. Anthony reported in (1985) 1 Supreme Court Cases 505, the Hon’ble Apex Court, while discussing about the appreciation of the evidence, at paragraph No.10, was pleased to observe as below:
“While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial maters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which did not have this benefit will have to attach due to weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.”
58. Similarly, in another judgment relied upon by the learned Special Public Prosecutor in the case of State of Uttar Pradesh Vs. Krishna Master and Others reported in (2010) 12 Supreme Court Cases 324, the Hon’ble Apex Court was pleased to observe regarding the general principle of appreciation of evidence that, the Court should read evidence as a whole, so read, if it appears to have a ring of truth, then discrepancies, inconsistencies, infirmities or deficiencies of minor nature not touching the core of the case, cannot be ground for rejecting the evidence. The Court should sift the evidence to separate falsehood from truth. It should not adopt a hyper technical approach.
In the instant case, a reading of the evidence of PWs.11 and 12 in its entirety go to show that they have successfully withstood the searching and detailed cross- examination from the side of the accused and there are no elements to disbelieve that as watchman couples on duty of a small apartment containing only fourteen houses in three floors, they have and they could notice the visitors visiting the apartment and remember those visitors who have visited the apartment more than once on the same day. Thus, a mere delay by a day in recording the statements of PWs.11 and 12 by the Investigating Officer would not in any way make either the case of prosecution or the evidence of PWs.11 and 12 suspicious. On the other hand, the evidence of PWs.11 and 12, which has come in a uniform manner and in a normal sequence, clearly establishes that on the date of incident, the accused had visited the house of the deceased twice i.e., once in the afternoon and once in the early evening at about 4.30 p.m. Further it was the accused who was the last visitor to the house of the deceased and during his last visit, he had spent some time in the house of the deceased.
59. PWs.11 and 12 apart from stating that they have seen the accused on the date of incident visiting the house of the deceased, have also identified the accused in the test identification parade. The evidence of the Investigating Officer that he requested the Court on 09.11.2010, to give permission, directing the Tahasildar to conduct test identification parade is further corroborated by the evidence of PW.19, the Tahasildar, that he conducted the test identification parade in Parappana Agrahara Central Jail, Bengaluru on 04.12.2010. It is on the said day as stated not only by PW.19, Tahasildar, but also by PWs.11 and 12, they have identified the accused amidst seven other accused.
Learned counsel for the appellant has seriously disputed the very validity of the test identification parade conducted in this case on the contention that in view of the fact that the photograph of the accused was shown to PWs.11 ad 12 on 13.10.2010, the subsequent conducting of test identification parade would loose its sanctity. In his support, he relied upon the judgment of the Hon’ble Apex Court in the case of D. Gopalakrishnan Vs. Sadanand Naik and Others reported in MANU/SC/0902/2004, wherein the Hon’ble Apex Court was pleased to observe that during the course of investigation, if the witness had given the identifying features of the assailants, the same could be confirmed by the Investigating Officer by showing the photographs of the suspect and the Investigating Officer shall not first show a single photograph but should show more than one photograph of the same person, if available. Relying upon the said observation made by the Hon’ble Apex Court, learned counsel for the appellant submitted that in the instant case, showing of single photograph to PWs.11 and 12 by the Investigating Officer on 13.10.2010, has imprinted in the mind of PWs.11 and 12 as to who the accused was, as such, the test identification conducted subsequently, nearly after two months would loose its sanctity.
60. It may not be forgotten that the Hon’ble Apex Court in the very same case of D. Gopalakrishnan (supra) at paragraph No.7, was pleased to observe that, there are no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation, but nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction. In Siddhartha Vashisht’s case (supra), similar contention was taken up before the Hon’ble Supreme Court by the appellant’s side contending that the photograph shown to the witness before the test identification parade renders the whole identification in the Court as inadmissible. The Hon’ble Apex Court in para No.254 of its judgment, was pleased to observe that the test identification parade is not a substantive piece of evidence, it is only by virtue of Section 9 of the Evidence Act that the same i.e., the act of identification becomes admissible in the Court. The logic behind the test identification parade, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the Investigating Officer conducts a test identification parade to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an Investigating Officer or the Magistrate, during the course of an investigation.
Further, in the very same judgment, the Hon’ble Apex Court referred to its previous judgment in Munishi Singh Gautam Vs. State of M.P. reported in 2005(9) SCC 631, was pleased to observe as below:
“17. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. “ The above judgments relied upon from both side, makes it abundantly clear that showing of a photograph to the witness by the Police is not prohibited. By showing a photograph to the witness, the Investigating Officer may confirm whether the investigation is going on in the right direction and the same is not hit by Section 162 of Cr.P.C. However, the substantive evidence of the witness is the statement made in the Court. In the instant case, the photograph which according to the appellant is that of the accused, was shown to PWs.11 and 12 by the Investigating Officer on 13.10.2010 i.e., within two days after the incident. Whereas, the test identification parade was conducted by PW.19, the Tahasildar on 04.12.2010 i.e., nearly two months after showing the photograph. Therefore, even if it is taken that the photograph of the accused was shown to PWs.11 and 12 on 13.10.2010 by the Investigating Officer, the same was only to confirm that the reference made by PWs.11 and 12 about the person visiting the flat of the deceased for the second time on the date of incident was with respect to the person in the photograph only. It was also to ensure that the hunt for apprehending the accused was proceeding in a right direction to apprehend the right person.
The details of the test identification parade narrated by PW.19, the Tahasildar in his evidence, clearly go to show that he has followed the correct procedure in conducting the test identification parade without showing the accused PWs.11 and 12 in advance and mixing up the accused along with seven other inmates in the jail and making all of them to sit or stand together and then calling PWs.11 and 12 one after another and getting the accused identified by them separately and also by changing the sequence of the standing of the accused in the row. After identification by the witnesses, the Tahasildar has ensured that PWs.11 and 12 could identify the accused only after they satisfying that it was the person whom they have seen on the alleged date of incident. The said Tahasildar has also stated in his evidence that it was the accused present in the Court was the one whom PWs.11 and 12 had identified in the test identification parade. PWs.11 and 12 also in the Court during the course of their evidence have specifically identified the accused as the one who visited the apartment and went to the flat of the deceased twice on the date of incident i.e., on 11.10.2010. Therefore, the argument of learned counsel for the appellant that the test identification parade looses its validity and that there is no identification of the accused by PWs.11 and 12 is not acceptable.
61. Learned counsel for the appellant also canvassed an argument that there are no materials to show that the accused knew the residential address of the deceased or her telephone number, as such, it was not possible for him to visit her house. He also submitted that the alleged call details and recovery of MO-10, the address slip cannot be believed.
The complainant/PW.1 at the very first instance, in his complaint has stated that he had called his wife in the afternoon at 12.10 p.m. from his cell phone No.9620209212 to his wife’s (deceased) cell phone No.9538925489. Even in his evidence as PW.1 also, the complainant has stated that he called his wife twice on that day. Once at about 12.10 p.m. and second time at 4.30 p.m. He has also stated that when he called for the third time at about 5.30 p.m., since the contact could not be established, he was getting “not reachable” indication. He contacted his father-in-law, PW.8 – Jayaselvan, who is the father of the deceased, who also told to him that he too has been trying to contact his daughter, Malar Veli, but getting the response as “not reachable”. The evidence of PW.9, the mother of the deceased is also on the similar line. The said evidence of these three material witnesses, which has remained undisputed, clearly go to establish that the deceased was using cell phone with contact No.9538925489.
The call detail register extract (CDR) at Ex.P-44 shows that the said cell phone No.9538925489 stands in the name of the complainant – Balasubramanyam with his very address where he was residing at the time of the alleged incident. PW.32, the Investigating Officer has stated that the accused in his voluntary statement has stated that he was using his cell phone contact No.9591789664 and from the said cell phone number he contacted the deceased to confirm her contact number and address in September, 2010. He got the said portion of voluntary statement of the accused marked as Ex.P-
40(a). According to the Investigating Officer, he collected the call details of said cell phone No.9591789664 and got it marked as Ex.P-43. The said document shows that on 29.09.2010, from the said number the deceased Malar Veli’s cell No.9538925489 was contacted. According to the Investigating Officer who has stated in his evidence as PW.32 that the accused was also using two more cell numbers 8056188247 and 8121015913, has got marked the relevant portion of the voluntary statement of the accused at Ex.P-40(b). Thus, the communication over the cell phone between the accused and the deceased has been shown by the prosecution both through oral as well as through the documentary evidence.
62. It is also the case of prosecution that on 30.10.2010, the address slip bearing the address of the deceased was seized from the possession of the accused in presence of panchas, PWs.2 and 4 under a seizure panchanama as per Ex.P-3. The said chit was marked as MO.10. Both PWs.2 and 4 who are the independent pancha witnesses to the said panchanama, in their evidence have stated that the Police after showing the accused to them in the Police Station, also shown them a cover containing a small chit in it stating that the said cover was in the pocket of the dress worn by the accused. Both these witnesses have identified the chit at MO.10 and seizure panchanama at Ex.P-3. No doubt, neither of these witnesses have stated that the said chit was taken in their presence from the pocket of the accused, however, it is their contention that the said chit was seized keeping the accused present in their presence. The said chit at MO.10 contains in it the address of the deceased of that place, where she was residing as on the date of the incident.
63. Learned counsel for the appellant vehemently argued that the said chit as well the slip on the gift box at MO.8 were not sent for sent for hand writing expert’s opinion to establish that the same were in the hand writing of the accused. What matters in the case is, whether the accused knew the address of the deceased, but not in whose handwriting the said chit at MO.10 was written. Therefore, when the address chit was shown to be in the possession of the accused, it does not mater much as to in whose hand writing the said chit was there. Even after keeping the alleged recovery of MO.10 aside, still the evidence of PWs.11 and 12 that the accused visited the house of the deceased on the alleged date twice in a day cannot be disbelieved.
It is also the case of prosecution that the accused while going to the house of the deceased for the second time on the alleged date, had also carried a gift article, whish was an idol of Lord Ganesha in a gift packet and had delivered it to the deceased. PW.1, the husband of the deceased has identified the said article at MO-7 stating that when he saw the dead body of his wife in the house, the said gift article was found in his house. Stating that when the Police drew a scene of offence panchanama as per Ex.P-2 in his house among various articles seized by them on the spot under the said panchanama, the gift article which is a crystal glass Ganesha idol at MO.7 was also one among them. He has identified the said article in the Court.
PW.3 – Sharavanan, a pancha for the scene of offence panchanama at Ex.P-2 has stated that among various articles seized from the spot, the gift article which is a Ganesha idol was also one among it. The witness has identified the said article at MO.7.
The prosecution examined PW.15 – Surendra, owner of a fancy store, who has stated in his evidence that on 11.10.2010 in the afternoon at about 3.00 p.m. the accused had purchased the said idol of Lord Ganesha from his shop by paying a sum of `250/- and got it packed in a gift pack. Two months thereafter, the Police had summoned him to police station and got the photo of the accused identified by him. He has identified the accused in the photograph as the one who had purchased the said idol from his shop. The witness has identified the said Ganesha idol in the Court at MO.7 and also identifying the accused, stated that he was the one who had purchased MO.7 from him.
PW.15 in his cross-examination has stated that the Police have not collected the bill from him for having sold the said gift article to the accused. The witness has also stated that he cannot say as to who are all the customers who visited his shop on 11.10.2010 and the details of their purchasing in his shop. However, he stated that though he cannot remember the details of the customers who had purchased smaller articles, but he remembers the customers who purchases large articles. However, he has not stated whether the article at MO.8 was small or large one. Therefore, it is not safe to believe the version of PW.15 that the accused had purchased the said article from his shop on the alleged date, as such, based upon the article at MO.8 it cannot be concluded that it was the one gifted to the deceased by the accused himself. Even then, as observed above, the evidence of PWs.11 and 12 that the accused visited the house of the deceased on the alleged date twice, cannot be suspected.
64. It is nobody’s case that on the date of incident except the alleged relatives of the deceased, anybody else had visited before Malar Veli was found dead. As analysed above, the prosecution has established by leading cogent evidence that it was the accused joined by his parents who visited the house of the deceased in the afternoon at about 12.10 p.m. and thereafter it was the accused alone, who for the second time during the day visited the deceased in the late afternoon or early evening at about 4.30 p.m. From his said two visits, till Malar Veli was found dead, undisputedly nobody has visited her house, as such, it is clear that it was only the accused and accused alone who visited Malar Veli just prior to her death and he was the one last seen in the said house.
65. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. In the instant case, such a connectivity can be seen in the conduct of the accused and from the recovery of incriminating articles at his instance.
66. According to PW.32, the Investigating Officer, the name of the accused for the first time entered in the case diary on 13.10.2010. It is on the very same day, PWs.11 and 12 had given a statement before the same Investigating Officer revealing about the visit of the accused to the flat of the deceased twice on the date of the incident. According to the Investigating Officer, he intensified the search for apprehending the accused from the said date. In that regard, he deputed his staff to different places, including his native place at Nagarkoil in Tamilnadu, Kanyakumari, Pondicherry and also at Hyderabad, where the accused was said to be working. However, his staff could not able to trace the accused. It is the evidence of PW.32 that while he was in search of the accused, he came to know that the accused has attempted to commit suicide in Rathna complex Lodge, T. Nagar, Chennai and in that regard, Mambalam Police had registered a crime against him in their station Crime No.1802/2010 for the offence punishable under Section 309 of IPC. PW.32 has also produced at Ex.P-47, the certified copy of the said criminal case, which was later numbered into C.C.No.5174/2011.
PW.33, the Police Inspector from Mambalam Police Station has supported the evidence of PW.32 to the effect that the accused had attempted to commit suicide in hotel and based on the information given by the receptionist of the said hotel on 27.10.2010, he went to the hotel and noticed the accused in a semi-conscious stage. He admitted him to the hospital for treatment. It was revealed that he has consumed a huge quantity of cough syrup, which according to the witness was seven bottles, mixed with coca cola soft drink and he had also left a suicide note.
According to PW.32, the Investigating Officer, it is only after dischargal of the accused from the hospital at Chennai, which was on 29.10.2010 and based on an information received by him, himself joined by his staff apprehended the accused in a place called Kolda on Calcutta to Chennai national highway. Thus, after the incident of the murder of Malar Veli, the accused had remained absconded. Had he really been working at Hyderabad on the said day and continued to work there, then, why he is alleged to have been roped in a case for suicide attempt by Tamil Nadu Police, is not forth coming. No explanation is given by the accused in that regard, even in his statement recorded under Section 313 of Cr.P.C. also. In a case relied upon by learned Special Public Prosecutor i.e., in the case of Chunni lal Vs. State of Uttar Pradesh reported in (2010) 7 Supreme Court Cases 496, in appreciation of evidence of a murder trial, the Hon’ble Apex Court was pleased to observe that, the fact that the accused absconded immediately after the occurrence and was not traceable and that he surrendered only after about 13 days from the date of incident in the Court, clearly indicates that the appellant is guilty of the offence alleged against him, as such, he was rightly convicted under Section 302 of IPC. In the instant case also, since the accused has nowhere given explanation for his absconding after the incident and his alleged attempt to commit suicide in a hotel at Chennai, further intensifies the ground of suspicion against him of his involvement in the commission of crime and the same gives a strong link in the chain based upon the theory of ‘last seen’.
67. Another aspect upon which the prosecution has strongly relied upon is, the alleged recoveries of the articles said to have been made at the instance of the accused. Those articles includes the knife at MO.11, a helmet at MO.12, two cell phones at MOs.13 and 14 and a motor cycle at MO.15. The evidence of PW.5, Siddaraju, supports the case of prosecution on this point. As seen in his summary of the evidence narrated above, Siddaraju is a public servant, who was summoned by the Investigating Officer in this case, to be present in the process of recovery to be made at the instance of the accused. The said witness in his evidence, has stated that the accused took him, another pancha by name Abdul Khadar (CW.6) and the Police to his sister’s house at First Floor, Concorde Paradise apartment, BTM Layout, Bengaluru. In the said house, from a loft (sajja), he took out a knife which was blood stained and two cell phones, kept in a kit bag in a bedroom stating that one belongs to the deceased and one belongs to him and taking them to the cellar in the said apartment, he shown and produced before them a pulsar motor cycle and a helmet. All these articles were seized by the Police by drawing panchanama in his presence as per Ex.P-5. Apart from identifying all these articles in the Court, the witness has specifically stated that the knife when produced was stained with blood. Even though he was subjected to a detailed cross- examination, his evidence could not be shaken in his cross-examination. On the contrary, a suggestion was made to the witness by suggesting that when this witness and others were led to the house of the sister of the accused during the process of recovery, the neighbours and security people had also come over there, though the witness did not admit the said suggestion as true, but by making such suggestion and by making another similar suggestion that at that time people were moving in the passage, the accused admitted about this witness having gone to the sister’s house of the accused for recovery of articles at the instance of the accused. Therefore, the evidence of the Investigating Officer i.e., PW.32 is thus corroborated by the evidence of PW.5.
The prosecution also examined PW.16 – Reshma, depicting that she has sold knife at MO.11 to the accused. The said witness has also supported the case of the prosecution by stating that on the said day, while she was in cash counter at ‘More’ a retail outlet, the accused approached her and inquired about the availability of the knife and also got the billing of the knife done through the said cashier. No doubt, she has identified the accused and the knife in the Court and also a cash bill at Ex.P-16 stating that said bill was generated by her and issued by her. However, in her cross-examination since it has been elicited that the said bill at Ex.P-16 is not the original, but it is a copy generated subsequently at the request of the Police and that she could not give details of the other customers, who were said to have purchased the knife from her shop at the relevant point of time, it is not safe to solely rely upon her evidence. However, even independent of her evidence also, the evidence of PW.5 who is a pancha for recovery panchanama, from the analysis made above has proved to be trust worthy and reliable.
The said articles i.e., MO.11 a knife and MO.12 a helmet along with other articles were sent to its scientific examination by the Investigating Officer to the Forensic Science Laboratory. PW.32 has given a clear account of the same. PW.23, a women police constable, has given her evidence about she carrying those articles to submit to Forensic Science Laboratory and giving report to his officer in this regard. She was not cross-examined from the side of the accused. PW.31 – Radha S., Scientific Officer at Forensic Science Laboratory, in her evidence, has given a clear account of the articles received by her in this case for chemical examination and she examining those articles scientifically and giving her report as per Ex.P-33. She has examined the following articles:
Articles No.1 and 2 are hairs. Article No.3 : Blood scraping Article No.4 : One Petticoat Article No.5 : One kacha Article No.6 : Hairs Article No.7 : One T-shirt Article No.8 : One Bra Article No.9 : Nail scrapings Article No.10: vaginal swab Article No.11: Scalp hair Article No.12: Semen Article No.13: One Chaku Article No.14: One Helmet Article No.15: Pubic Hair The above articles includes one chaku (knife) and a helmet also. According to her, the articles at No.3, 4, 5, 7, 8, 13 and 14 were stained with blood. Thus, the knife and helmet recovered at the instance of the accused were also stained with blood. Her own evidence shows that after serological test report, she noticed that the blood stains found on articles 3, 4, 5 7, 8 and 13 were human blood and were belonging to group ‘A’. Thus, the blood found on the dress material including the under garments of the deceased and the blood stain found on the knife were belonging to the same group ‘A’.
68. The evidence of PW.17, the Doctor, who conducted post mortem examination of the dead body as well clinically examined the accused also has stated in his evidence that he was also requested to examine the helmet and the knife and to give his opinion as to whether those two articles can cause injuries found on the deceased. After examining those two articles, he has given his opinion as per Ex.P-18 opining that external injury No.1 mentioned in the post mortem report i.e., contusion and corresponding internal injury is possible to be caused by the type of helmet examined and external injuries Nos.2, 3, 4, 5 and 6 which are the incised injuries and stab injuries, are possible to be caused by the type of knife examined. The witness has identified the knife and helmet in the Court at MOs.11 and 12, respectively. Thus, the recovery of incriminating articles, more particularly, knife and helmet at MOs.11 and 12 apart from being established, has also established that the knife was found to have stained with the very same blood which was found on the clothes worn by the deceased at the time of incident and also the injuries found on the deceased corresponded to the helmet and the knife recovered at the instance of the accused. Thus, even though the case of the prosecution is based on circumstantial evidence of last seen theory and the alleged recovery, every link in the chain of events has been proved by the prosecution beyond reasonable doubt.
69. After the above, the only aspect which remains to be considered is the alleged motive behind the commission of crime. According to the prosecution, the accused who is a close relative of the deceased and also was brought up along with the deceased during their childhood in their native place at Nagarkoil, had developed a unilateral love towards the deceased and intended to marry her. However, his proposal was rejected by the deceased and within no span of time after the rejection of the proposal, she married the present complainant and started living with him at Bengaluru. This was unpalatable to the accused, which led to the incident of he killing the deceased. PWs.8, 9 and 10 have spoken about the alleged motive behind the commission of crime.
Admittedly, the accused is the son of one Thamilmani, who is the younger brother of the father of the mother of the deceased i.e., to the mother of deceased i.e., Pogathai (PW.9), the accused is a cousin brother. As such, to the deceased Malar Veli, accused becomes maternal uncle in relationship. PWs.8 and 9, the parents of the deceased have stated that the parents of the accused and parents of mother of the deceased were living in the same street at Nagarkoil in Tamil Nadu and their houses were very nearby. The deceased Malar Veli used to stay in her grand parents house at Nagarkoil. Both PWs.8 and 9 have stated that the accused through his parents had brought a proposal that accused intended to marry the deceased, however, she rejected the said proposal, which annoyed the accused and he left the meeting showing his unhappiness. PW.10, in his cross- examination has admitted a suggestion as true that they have no custom of marrying sister’s daughter. Though the evidence of PW.8 was proved to be an improvement by the witness in his evidence, still a reading of the evidence of PWs.8, 9 and 10 in their entirety go to show that the accused had interest in the deceased and that he was not happy about the deceased marrying another person. Even after considering that the prosecution could not able to pin point through any document the exact motive behind the commission of the crime, but the said motive can be gathered by the above analysis of material witnesses, more particularly of PWs.8, 9 and 10.
70. The defence of the accused is that on the alleged date of incident, he was not at all at Bengaluru, but was working under his employer at Hyderabad. No doubt, he has not examined any witnesses from his side, however, he has placed his defence of alibi in the cross- examination of PW.13, who is none else than the father of the accused himself and who turned hostile to the prosecution. In his cross-examination, PW-13 has stated that at the time of the incident, his son, the accused was at Hyderabad. The same was denied in his further cross- examination by the prosecution. Interestingly, PW.14 being the mother of the accused nowhere in her evidence stated that his son i.e., the accused was at Hyderabad as on the date of the incident. In that background, the accused confronting PW.10 with an appointment letter of the accused, would be of no avail to him. Even the said appointment letter was also not permitted to be marked by the trial Court since the said document was nowhere related to PW.10. Assuming for a moment that the accused was, at the relevant point of time, employed in a software company at Hyderabad, still merely because he was employed at Hyderabad cannot disprove his presence at Bengaluru on the alleged date of incident.
It is also because when the accused has taken the defence of alibi, in such a case, it is for him to prove that he was not at Bengaluru on the date of incident. Had he really been in his employment and on duty in Hyderabad on the alleged date of incident, nothing had prevented him from examining his employer or his colleague or atleast to produce his attendance extract to show that he was at Hyderabad and attended to his duties on that day. Thus, without producing any such evidence which were easily available with him, mere taking of defence of alibi would not enure to the benefit of the accused. Therefore, when the defence of the accused could not be sustained, on the other hand, the evidence led by the prosecution both oral as well documentary, though they are circumstantial in nature, clearly establishes every material and important links in the chain and makes out a complete chain from the last seeing of the accused in the house of the deceased, till proving that the materials placed by the prosecution would complete the chain in proving the guilt of the accused, the only conclusion that has to be arrived at is that the prosecution has proved beyond reasonable doubt that it was the accused and accused alone who has committed the murder of Malar Veli in the evening on the date 11.10.2010 in her flat/residence at Bengaluru.
71. The second offence for which the accused has been convicted by the trial Court is for the offence under Section 511 of IPC. As observed above, the charge sheet filed against the accused was for the offence punishable under Section 302 of IPC and under Section 376 of IPC. The case of prosecution was also that before committing murder of Malar Veli, the accused had committed rape on her. However, the trial Court noticing that there was no cogent evidence to show that the deceased was subjected to rape, but noticing the circumstance of the case, has held the accused guilty under Section 511 of IPC. As rightly submitted by the learned counsel for the appellant, the finding of the trial Court holding the accused guilty independently under Section 511 of IPC alone without reading the said section with other punitive section under the Code was not correct.
Section 511 of IPC speaks about punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. That being the case, unless it is proved as to, to commit which offence an attempt was made, the accused cannot be punished independently under Section 511 of IPC. In the instant case, had the trial Court being convinced that the accused had attempted to commit an offence punishable under Section 376 of IPC, then, it should have found him guilty for the offence punishable under Section 511 read with Section 376 of IPC. However, a reading of the judgment under consideration in its entirety does not give any such clear impression or inference that the trial court intended to mean so. On the other hand, the medical evidence of the doctor who conducted autopsy i.e., PW.17, has stated that during autopsy he collected vaginal swabs and duly packing them, sent to Forensic Science Laboratory through the Police for their scientific examination. Barring this, nowhere he has stated that there was any evidence to come to a conclusion that immediately prior to her death, the deceased was subjected to sexual intercourse by anyone. According to PW.17, the genital organs were also intact and normal.
Had there being any attempt for forcible sexual intercourse, there should have been some symptoms or injuries on the person of the injured or atleast some resistance marks in that regard. In the instant case, no such symptoms or injuries or marks are noticed by the Doctor. Further according to the evidence of PW.31, the scientific officer at Forensic Science Laboratory and her report at Ex.P-33, no seminal stains were detected either in vaginal swab or in pubic hair. Therefore, the trial Court has rightly not convicted the accused for the offence punishable under Section 376 of IPC. However, as observed above, it has convicted him for the offence under Section 511 of IPC. Though it is read and understood as the section for the offence under Section 511 read with Section 376 of IPC, but merely because the dead body of the deceased Malar Veli was found to be in naked position and her clothes including her inner garments were found torn and thrown beside her dead body, by that itself, it cannot be said that there was any attempt to commit rape on her prior to her murder. At the cost of repetition, as observed above that in the absence of medical evidence to the effect that an attempt was made to sexually assault the deceased prior to her death and the genital organ of the deceased having found normal and intact and there being no cogent evidence to come to an opinion that any such attempt to sexually assault her was made, the finding of the trial Court holding the accused guilty under Section 511 of IPC has to be held as an erroneous finding. Thus, we are of the clear view that even though the conviction of the accused/ appellant for the offence punishable under Section 302 of IPC sustains, but not for the offence under Section 511 of IPC. The sentence ordered for the proven offence under Section 302 of IPC being the minimum sentence of life imprisonment, which has to be awarded for the proven guilt and the same being proportionate to the criminality of the guilt proved, we do not find any reason in modifying the sentence ordered by the trial Court for the offence punishable under Section 302 of IPC.
Accordingly, we proceed to pass the following:
O R D E R The Appeal is allowed-in-part. The judgment of conviction and order on sentence dated 31.01.2014, passed by the learned XLV Additional City Civil and Sessions Judge, Bengaluru City (CCH-46), in S.C.No.343/2011, holding the accused/appellant guilty of the offence punishable under Section 302 of IPC and sentencing him accordingly stands confirmed.
However, the conviction of the appellant/accused under the same judgment for the offence punishable under Section 511 of IPC and the sentence ordered thereupon is set aside. The appellant/accused – T.
Naveen S/o Tamilmani, stands acquitted of the offence punishable under Section 511 of IPC.
The fine amount of `10,000/- paid by the accused, if any, in connection with his sentence for the offence under Section 511 of IPC be returned to him in accordance with law.
Registry to transmit a copy of this judgment to the trial Court along with Lower Court Records without delay.
A true copy of the entire judgment also be furnished to the accused immediately, free of cost.
Sd/-
JUDGE Sd/- JUDGE Bmc