IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL No. 925 OF 2013 BETWEEN:
STATE OF KARNATAKA BY VIJAYANAGARA POLICE STATION BENGALURU. ... APPELLANT (BY SRI I.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR-II) AND:
CHANDRASHEKARA BABU @ CHANDRASHEKARA SON OF K.A. PRASAD RAO AGED ABOUT 36 YEARS No.1217/B, 1ST MAIN ROAD M.C. BADAVANE BENGALURU-560 040. ...RESPONDENT (BY SRI N VASUDEVAN, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CRIMINAL PROCEDURE CODE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE ORDER DATED 25.04.2013 PASSED BY THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN SESSIONS CASE NO.1169 OF 2008 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF INDIAN PENAL CODE.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 29.08.2019, COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:
JUDGMENT This appeal is filed by the State challenging the judgment of acquittal passed in S.C.No.1169 of 2008 dated 25.04.2013 on the file of Principal City Civil and Sessions Judge at Begaluru for the offence punishable under Section 302 of Indian Penal Code.
2. Brief facts of the case are:
That on 16.03.2008, at about 10.30 a.m., the deceased Shireen came to the house of the accused bearing No.1217/B of 1st Main, M. C. Badavane and that the accused with an intention to get rid of the deceased Shireena due to his illicit intimacy and also to murder her picked up quarrel with her, assaulted forcibly on her face by his hands and thereafter strangulated her with veil and committed murder.
3. The police have registered the case at the first instance as ‘UDR’ (Unnatural Death Report) and thereafter, based on the post mortem report, the case was registered for the offence punishable under Section 302 of Indian Penal Code and investigated the matter. The father of the deceased lodged the complaint to the police stating that, a message was sent to the phone number of his wife from the mobile phone of the deceased stating that she has been in the above address and she is responsible for her death. The said message was brought to the notice of the complainant and both of them rushed to the spot and found the dead body of their daughter which was lying on the floor and there was a bleeding from the nose and the entire body was bluish. The bed sheet was tied to the fan and it was allowed to hang. P.W.1 called her husband, who was outside the house and immediately went to the police and informed the same. The police visited the spot and conducted the spot mahazar and also subjected the dead body for inquest and also post mortem examination. Thereafter, the accused was also apprehended after almost three months and mobile was recovered at his instance which belongs to the deceased. After completion of the investigation, the police have filed the charge sheet against the accused for the offence under section 302 of Indian Penal Code.
4. The accused did not plead guilty and he claims for trial. Hence, the prosecution examined P.Ws.1 to 16 and got marked the documents Exs.P1 to P25 and also got marked M.Os.1 to 10. The incriminating evidence was put to the accused and he denied the same. In support of his contention, he also filed his written statement under Section 313 of Code of Criminal Procedure. He did not choose to lead any evidence. The Court below, after considering both oral and documentary evidence and on hearing learned counsel for both the parties, acquitted the accused for the offence punishable under Section 302 of Indian Penal Code. Hence, the present appeal is filed by the State.
5. The State urging the grounds in the appeal would contend that P.W.1 is the mother of the deceased and is known to the accused. P.W.1 also states that accused used to visit the house of the deceased and there was a quarrel between the deceased and the accused and in the given mobile number of her daughter and also the accused, there are conversation messages sent to the deceased which was not denied by P.W.1. The evidence of P.W.1 is clear that her daughter left the house stating that she has received a phone call from the accused and she went to the house of the accused telling that she will come back within ten minutes but, did not return. The dead body was found in the house of the accused which clearly discloses the fact that accused himself has committed the murder.
6. P.Ws.2 and 3 are the owners of the house in which the accused was residing as a tenant. In order to substantiate the same, rental agreement is marked as Ex.P7 and there is no dispute with regard to the fact that the accused was residing in the said address and the deceased was found dead in the said premises. Hence, the evidence of P.Ws.2 and 3 also supports the case of the prosecution.
7. P.W.4 is the mahazar witness to the seizure of mobile of the deceased which was found with the accused. The trial Court has acquitted the accused on the ground that the mobile of the deceased is not in a working condition. But, the fact is that there was conversation and SMS sent after the death of the deceased to P.W.1 and the same has not been considered by the trial Court.
8. The Doctor, who has been examined as P.W.10 specifically states that death has occurred on 16.03.2008 between 10.15 a.m to 11.45 a.m. The deceased left the house at 10.10 a.m. and immediately went to the house of the accused where the dead body was found. The Court below has failed to consider the medical evidence available on record and committed an error in acquitting the accused.
9. It is the contention of the learned State Public Prosecutor for the appellant-State that the dead body was found in the house of the accused and her mobile was recovered from the accused. The vehicle belonging to the accused was also parked in front of the house of the accused. The Court below failed to draw an inference that accused himself has committed the murder of the deceased. The medical evidence is clear that the death has occurred due to asphyxia. The neck was tied with veil and there are seven injuries on the dead body and the same has not been explained by the accused. In spite of the same, the Court below has committed an error in acquitting the accused.
10. Learned State Public Prosecutor appearing for the State in his argument vehemently contends that, there is no dispute with regard to the fact that the dead body was found in the house of the accused and there was no explanation by the accused under Section 106 of the Evidence Act. The fact that the accused alone was residing in his house is also not in dispute. The evidence emerged in the trial is that, the deceased was frequently visiting the house of the accused since, both of them were colleagues. The evidence also discloses that they were moving around freely and there was illicit intimacy between them. The witness P.W.4 supports the case of the prosecution that mobile of the deceased was seized at the instance of the accused and the Court below has committed an error in not considering the photographs which are marked as Exs.P3 and P6, so also the photographs of the deceased which are marked as Exs.P4 and P5. It is also his contention that the Court below has committed an error in not considering the medical evidence available on record, so also the legal evidence and the very finding of the trial Court is perverse and prayed this Court to set aside the judgment of acquittal.
11. Per contra, Sri N. Vasudevan, learned Senior counsel for the accused in his argument vehemently contends that the Court below has considered the evidence of the prosecution and also the defence of the accused meticulously. The Court below has also taken note of the fact that the deceased had made an attempt to commit suicide twice and the same is not in dispute. It is the specific case of the accused that the deceased is a psychic and she was depressed. Hence, she committed suicide in the house of the accused and it is a case of suicide by hanging and the Court below has taken note of all these aspects into consideration and acquitted the accused. The theory of accused sending message to the mother of the deceased is unnatural and no accused can send such message from the phone of the deceased after committing murder and the said theory cannot be considered and the Court below has given the benefit of doubt in favour of the accused. Hence, it is not a fit case to reverse the findings of the trial Court and prayed this Court to dismiss the appeal.
12. Having heard the arguments of learned State Public Prosecutor for the appellant and the learned Senior counsel for the accused and also on considering both oral and documentary evidence available on record, the point that arises for our consideration is:
1. Whether the Court below has committed an error in acquitting the accused and the findings of the Court below is perverse ignoring the evidence adduced by the prosecution and it requires interference of this Court?
13. Keeping in view the contentions urged by learned State Public Prosecutor for the State as well as the learned Senior counsel for the accused, this Court has to re-appreciate the evidence available on record. Firstly, this Court would like to consider the oral and documentary evidence available on record whether the prosecution has proved its case beyond reasonable doubt or the Court below has rightly acquitted the accused.
14. P.W.1 is none other than the mother of the deceased. P.W.1 in her evidence deposed that, she knows the accused and both her daughter and accused were working in the very same company. In 2005, during Bakrid festival, her daughter brought the accused to her house. For about 8 to 9 months she worked in the company and thereafter she left the said company and joined the work in GTL Company, Airport Road, Bengaluru.
15. That on 15.03.2008 Saturday was holiday for the office of her daughter. But, her daughter did not inform the same but, she left the house and came back around 7.00 p.m. That on 16.03.2008 at about 10.10 a.m., her daughter informed that she has received a message and informed that she will come back in ten minutes and went in her Activa Honda vehicle. When she left the house, it was 10.15 a.m. At 11.45 a.m., she called to the mobile of her daughter to ask where she was but immediately, the mobile was switched off. Throughout the day, she made efforts to contact her daughter but, she could not. That on 16.03.2008, in the midnight, she sent one message to her daughter informing her to intimate where she is. That on 17.03.2008, at about 10.00 a.m., when herself and her husband was about to leave the home to lodge the missing complaint, she received a message at 10.10 a.m. to her mobile from the mobile of her daughter. In the said message, it was mentioned that “Shireena is this place, House No.1227/B, MC Layout, Behind Shrusti Hotel, you are responsible for my death”. She also states that she does not remember the mobile number of her daughter, since the SIM card was provided to her by GTL Company. When they received the message, both herself and her husband went to the address and found her daughter’s Activa Honda vehicle in front of that house. They have knocked the door and there was no response from inside. Then they have waited for ten minutes. After ten minutes, they have pushed the door little forcibly and the door of the house opened. When she entered inside the house, her husband was waiting outside and she found the dead body of her daughter. There was bleeding from the nose and the entire body had become bluish and the bed sheet was tied to the fan and the same was allowed to hang. Her daughter was no more. After coming outside, she called her husband i.e., the complainant and he also entered the house and saw the dead body. Then, herself and her husband went to the police station. The said house was the house of the accused and the articles which were carried from their house was found in the house of the accused. Her husband narrated before the police about what had happened from 15.03.2008 and police reduced the same as complaint and she identified the signature of her husband marked as Ex.P1(a) on the complaint. Thereafter, the police came to the spot and conducted the spot mahazar in terms of Ex.P2. It is also her evidence that accused had borrowed a sum of Rs.50,000/- from her daughter and in that connection, she was going to the house of the accused. On 17.03.2018, they received the dead body and cremated the same. Three months thereafter i.e., on 01.07.2008, the police arrested the accused and called P.W.1, the mother of the deceased to the police station and she identified the accused. The police have also seized the mobile from the accused which was the mobile phone of her daughter and identified the same as M.O.1. P.W.1 also states that they have also given the photograph and the same is marked as Ex.P3 subject to objection. She also identifies the photographs which are marked as Exs.P4 and P5.
16. P.W.1 was also subjected to cross examination.
In the cross examination, it is elicited that marriage of her daughter was performed with one King Johnson from Davanagere and he also got converted into Muslim religion. Both of them stayed in Vishakapatnam for some time and again came back to Bengaluru. The husband of Shireen went to abroad, there was an understanding of devoice between them however, no case was filed. Thereafter, her daughter joined Akash Group of Construction where the accused-Chandrashekar was also working. Both the accused and her daughter left the company and was working in some other company. It is elicited that, a complaint was given to Chandra Layout police station against the accused, when the accused confined her daughter in his house and assaulted her.
Only then she came to know about the affair between them. P.W.1 also admits that on 07.07.2007, her daughter consumed some tablet but, witness volunteers that his daughter insisted the accused to marry her but, when the accused refused for the same and abused her and in that connection, her daughter consumed tablet. It might be true that she was admitted to Bowring Hospital and her stomach was washed. Further admits that accused was in the Bowring Hospital along with her daughter Shireen. It is also her evidence that she had not visited the house of the accused and her daughter was having love affair with the accused and she used to go to the house of the accused often. But she never told that she is in love affair with the accused but, came to know about the same when the complaint was given to Chandra Layout police station. It is elicited in the cross examination the mobile number of her daughter and also the mobile number of the accused. It is further elicited that on 15.03.2008, her daughter went to the house of the accused in her two wheeler and there was a quarrel between the accused and her daughter. But on 15.03.2008, she has not called her daughter and also did not give any complaint to the police. Her daughter, while leaving the house on 16.03.2008 she has received a message from the accused, hence, she left the house saying that she will come back within ten minutes. At 11.45 when she called her mobile, mobile was ringing and there was no response. She has not telephoned the accused. When her daughter did not come back, her husband went to the police station to lodge the complaint and police have informed that they will receive the complaint only after waiting for 24 hours. On the next day, at 10.05 a.m., there was a message from the mobile phone of her daughter. It is suggested that when they went near the house of the accused, six to seven persons were present in the said house, the same was denied. It is elicited that she alone went inside and her husband was waiting outside. It is elicited that she has not observed whether the cloth which was in a hanging position was cut with knife. There was no mobile phone in that room belonging to her daughter. The witness states that accused sent the message to her mobile when he was at Sadashivanagar. They believed firmly that the said message is from the accused. It is suggested that accused has not sent the message to her mobile phone and somebody has sent the message to the mobile of her daughter and the same was denied. It is suggested that police have not made search for the accused and he was very much residing in the said house, the said suggestion was denied. Witness volunteers that for three months, accused was absconding. It is suggested that accused has not at all committed the murder of her daughter and her daughter hanged herself and died, the same was denied. It is suggested that though the accused-Chandrashekar told her daughter often and often that he is not going to marry her, even then her daughter herself was going to the house of the accused, the same was denied. It is suggested that though the accused helped her daughter, even then, they lodged false complaint against the accused and they are giving trouble to the accused, the same was denied. P.W.1 is further examined and she identifies the clothes of her deceased daughter which are marked as M.Os.3 to 6 and also produced the charger of the mobile phone of her daughter which is marked as M.O.7. Witness also produced negatives of Ex.P3 and the same is marked as Ex.P3(a). It is elicited that when they gave the reel to the photo studio for washing and printing, the studio people cut the reel into pieces containing five photos in each piece. It is elicited that they have advised her daughter not to go with the accused but even then, she went. It is elicited that on 16.03.2008, the mobile phone was with her daughter, but denied the suggestion that they have taken back the mobile from her daughter. The witness volunteers that the accused himself produced the mobile phone of her daughter before the police 17. The other witnesses P.Ws.2 and 3 are the owners of the house, in which the accused was residing. It is their evidence that the accused was residing in the ground floor of their house for the past two to three years hence, they know the accused. In support thereof, the rental document is marked as Ex.P7 through P.W.3. The evidence of P.W.3 is in line with the evidence of P.W.2. In the cross examination of P.W.2, it is elicited that they have let out the ground floor of the house to the accused on rental basis under the agreement. It is also elicited that while letting out the house, accused informed him that he is a native of Raichur District. In the cross examination, the accused did not dispute the fact that accused was a tenant. The evidence of P.Ws.2 and 3 is only for the limited purpose to prove that the accused was staying in the house in which the dead body of the deceased was recovered. But in the cross examination of P.W.3 by the accused counsel, it is elicited that in the neighboring houses also, maidservants are coming and attending their work. It is also elicited that she has not stated before the police in her statement when they asked the accused that he told one more person is going to come and reside in the house as tenant. It is further elicited that she cannot say the exact date and month on which she saw one lady coming out of the ground floor of their house, when she was nearby the gate of the house.
18. P.W.4 is the panch witness. In his evidence, he states that police called him and in his presence, police recovered one mobile phone from the accused. He also identifies his signature which was affixed on the mahazar for recovery of mobile phone as Ex.P11(a). He does not know the mobile was of which company. He cannot identify the mobile even if shown to him as there is lapse of about 1 to 1½ years. He further states that the accused handed over the mobile to the police. He also identifies the accused saying that he is the very person, who handed over the mobile to the police. This witness was treated partly hostile by the learned public prosecutor. He was also subjected to cross examination. A suggestion was made that he knows both the deceased Shireen and the complainant and was also visiting the house of the complainant, the same was denied. In the cross examination, he states that he has seen the mobile M.O.1 but, he cannot say whether it is the same mobile which was seized from the accused. However, he admits that on the slip pasted on the mobile, there is a signature on the slip. In the cross examination by the accused counsel, he states that he does not know where and when he put his signature on the slip pasted on M.O.1-mobile and he does not know the contents of Ex.P11-mahazar for seizurer of mobile phone and police asked him to put the signature and hence, he put his signature. But he claims that police have informed him that they are recovering the mobile.
19. P.W.5 is the brother of P.W.1 and he states that on information, he went to the spot. He identifies the veil which was marked as M.O.2. In the cross examination, nothing is elicited with regard to the seizure of M.O.2.
20. P.W.6 is the Head Constable, Vijayanagar Police station. He states that on 01.08.2008, Police Inspector deputed him and Police Sub-Inspector to apprehend the accused and based on the information received from the informant, they apprehended the accused. In the cross examination, it is elicited that along with him, Sub-Inspector Sri Sunil Kumar was present and he has also seen the accused. It is elicited that the accused did not made any effort to escape from the spot after seeing them.
21. P.W.7-Assistant Sub-Inspector of Police, in his evidence, states that on 17.3.2008 as per the instructions of PSI, he got the post mortem examination done over the dead body of Shireen at Victoria Hospital and thereafter, handed over the body to deceased father. In the cross- examination, he admits that the PSI has not issued any written intimation for carrying the dead body to Victoria Hospital for post mortem examination.
22. P.W.8, in his evidence, states that he was deputed to go to Victoria hospital to bring the clothes belonging to the deceased and accordingly, he went to Victoria hospital and collected the articles from the Doctor and produced before the Inspector along with the report as per Ex.P12 and he identifies his signature as Ex.P12(a). The witness was not subjected to cross-examination.
23. P.W.9, Head Constable in his evidence states that he was deputed by the Police Inspector to carry 9 sealed articles to FSL and also the documents pertaining to the said articles and accordingly, he handed over the articles to FSL. He brought the acknowledgment and produced the same before the SHO in terms of Ex.P13. The witness was not subjected to cross-examination.
24. P.W.10 is the Associate Professor in Forensic Medicines, Victoria Hospital and in his evidence he states that he has received the requisition to conduct post mortem examination over the dead body and accordingly, he conducted the same between 2.00 and 3.00 p.m. He has noted the following external injuries:
Ligature Mark:
1. Tranverse ligature mark present around front and sides of neck meeting at the right side mid neck over its measures 3.5 cms x 2 cms situated 7 cms below right angle of mandible, total length of the ligature mark is 30 cms x 1.25 cms. It is surrounded by a region of pale zone all over the neck for a maximum breadth of 6.5 cms.
2. Pressure abrasion measuring 5.5 cms x 1 cm, present over left side lover park of neck, situated 11 cms below left year lobule.
3. Pressure abrasion measuring 2.5 cms x 1.5 cms, situated just below right mandibular ramus.
4. Pressure abrasion present on either side of angle of mouth measuring 2 cms x 1 cm and 2.5 cms x 1 cm over its left and right side respectively with a pale zone running from left angle of mandible towards right side cheek for a total length of 16 cms over the mentioned abrasion.
5. Pressure abrasion present over right side lower lip, measuring 1.5 cms x 0.7 cms.
6. Two pressure abrasions each measuring 0.5 cms x 0.5 cms and 1 cm x 0.5 cms present over right side lower lip, placed 0.5 cms apart situated 2 cms above right angle of mouth.
7. Contusion measuring 5 cms x 3 cms, present over back of left arm in its lower 3rd.
On further dissection of the neck, he has noted the following:
“Tissue underlying the ligature mark were intact and pale at places. Hyoid bone and thyroid cartilages were intact.
On dissection of the body he found all the organs intact and congested except scalp. On reflection of scalp blood extravasation was seen over right parietal region over an area 3 x 2 cms. White matter of the brain, surface of both lungs and heart shows petechial haemorrhages. Lungs on cut section exudes dark coloured fluid blood.
Stomach contained partially digested meal with no peculiar smell and mucosa was normal.
All other organs were intact and congested.”
He has opined that all the injuries are ante mortem in nature. Abrasions were bright red in colour. Contusions were red in colour. In his opinion the death was due to asphyxia as a result of compression of neck. He also identified his signature on the post mortem report as per Ex.P14(a).
He has stated that the exact time since death was not mentioned in his report. But looking to rigor mortis he was of the opinion that it is 12 to 24 hours prior to his examination in a normal condition.
25. In the cross-examination he states that he has conducted post mortem examination in thousands of cases. He cannot say or make any comment whether there was hanging and the deceased fell. He did not get the report whether the ligature material pieces were stuck in the neck or they were outside the body. In this case, asphyxia was caused because of the compression of the neck with interference of blood to the brain. The brain loses its blood supply and he has given his opinion about the time since death.
26. P.W.11 is the signatory to Ex.P11, recovery mahazar. He has turned hostile to the case of prosecution. He was cross-examined by the Public Prosecutor and suggested that the accused was in the police station and he has produced the mobile belonging to the deceased in his presence and also in the presence of P.W.4 and he denied the same.
27. P.W.12, in his evidence, states that the PSI gave the FIR at 3.00 p.m. to submit the same before the concerned Magistrate. Accordingly, he submitted the same at 4.45 p.m. The FIR is marked as Ex.P16. The complaint is marked as Ex.P1. He was not subjected to cross- examination.
28. P.W.13- Assistant Director of FSL, in his evidence, states that he has received sealed articles for comparison of ligature materials. He examined two articles in the laboratory and the ligature material was not found in article No.7 and contains only cotton swabs along with small stick piece. Hence, comparison of ligature material is not possible with article No.6. The witness identified Ex.P17, FSL report.
In the cross-examination it is elicited that in article No.7 no ligature material was sent by I.O.
29. P.W.14, PSI of R.R.Nagar Police Station, in his evidence, states that he was deputed to apprehend the accused on 1.7.2008 and received the information that accused was in the hind side of the Sristi hotel and he was shown to them by informant. He was apprehended and produced before the P.I. He has submitted the report in terms of Ex.P19.
30. In the cross-examination it is elicited that the informant was near Sristi hotel. It is suggested that the accused was in his house and the same was denied. He admits that the house of accused is behind Sristi hotel. Accused did not run away after seeing him and the Head Constable. It is suggested that he did not go to Sristi hotel with Head Constable and did not apprehend the accused behind Sristi hotel and the same was denied. It is suggested that the accused himself appeared before the police station and surrendered and the same was denied.
31. P.W.15-PSI of Viveknagar police station, in his evidence, states that on 17.3.2008 he was SHO and at 11.30 a.m. C.W.1 came to station and submitted written complaint and based on that, case in UDR No.9/2008 was registered. He also identifies the complaint as Ex.P1 and also identifies the copy of UDR, which is marked as Ex.P20. It is his evidence that he went to spot and found the dead body of a female on the floor beneath the fan. Blood was found in the nose of the dead body. The neck of the dead body was found with light green and yellow veil and there was ligature mark around the neck. It was covered with green and yellow chudidar. The ceiling fan of that room was about 12 to 13 ft. height from the floor level. He found half cut veil hanging to the said fan. He shifted the dead body to Victoria hospital. He also conducted spot mahazar in terms of Ex.P2 and prepared rough sketch in terms of Ex.P21. He also recorded the statement of some of the witnesses. On the same day, he went to Victoria Hospital and conducted inquest over the dead body in terms of Ex.P9. He also addressed letters to Vodafone and Airtel company for call details to the cell phone of deceased’s mother from accused. He also gave requisition to Kavitha Enterprises regarding gas connection of accused wherein the address mentioned by him pertained to the house he visited for panchanama. He also deputed Head Constable to collect post mortem report and obtained the same in terms of Ex.P14. He also identified the clothes on the dead body of the deceased as M.Os.3 to 6 and so also, the blood bottle, control sample and one bottle with adhesive and ligature material as M.Os.8 to 10 and the chudidar veil as M.O.2. On the basis of the doctor’s opinion he requested the Court to invoke Section 302 of Indian Penal Code. He also gave requisition to the accused’s earlier company regarding his continuation of the service with them. He has taken the photographs of the dead body of Shireen in terms of Exs.P4 to 6 at the time of spot mahazar. He received the call record documents from Airtel and Vodafone company in terms of Exs.P23 and P24 and from those records he found that from deceased mobile, accused had sent an SMS to the deceased’s mother on 17.3.2008. The relevant entry is Ex.P24(a). He handed over the further investigation to C.W.21.
32. In the cross-examination it is elicited that deceased mother came to police station and before that she had been to the scene of offence. He visited the spot immediately with complainant and deceased’s father was also present. Photographs of the deadbody as per Exs.P4 to 6 were taken by the photographer and he does not remember his name. On the same day he did not make enquiry with the phone companies regarding the calls on the cell phone. On the same day FIR was not filed, but UDR was filed. It is suggested that the parents of the deceased did not say anything about accused to him and the same was denied. The complainant informed him regarding money transaction between deceased and accused for Rs.50,000/-. He did not make any enquiry in that regard with accused. He further admits that he did not see the accused at any such time except his photograph. Before 17.3.2008 there were many calls between deceased and her mother and there are also 4-5 calls between them on 17.3.2008. As per the call records of accused, there are no calls between him and deceased on 17.3.2008 and there are calls between them on 12th and 13th of March 2008. It is suggested that he did not make immediate investigation to secure the accused immediately and the same was denied. He is further examined.
33. In the further examination he states that, in his chief examination on 2.11.2012 he has stated that on the basis of the doctor’s opinion in the post mortem report, he made requisition to the Court to add offence under Section 302 of Indian Penal Code. He further states that he issued the FIR in Crime No.188/2008 under Section 302 of Indian Penal Code as per Ex.P16 and sent it to Court. He admits that he has received the post mortem report on 31.3.2008 and he did not receive the FSL report at the time of receipt of post mortem report. He did not file any application to the Court to invoke Section 302 of Indian Penal Code and directly filed the FIR Ex.P16.
34. P.W.16 is the Police Inspector of Peenya police station. He states that the Public Prosecutor asked to charge the mobile M.O.1 with its charger M.O.7 to see the message sent through the mobile of the deceased to her mother. The same was permitted and it is noticed that M.O.1 was not in a condition to be charged by M.O.7. He took up further investigation in the case and deputed ASI Govindaiah to trace the accused and he produced Girish Basappa Gadekar and Anil Kumar Basappa Gadekar and he recorded their statements regarding the information of the accused.
35. PW.16 in his evidence states that on 4.4.2008, he took up the further investigation and verified the investigation done by the PSI. He wrote a letter to BSNL and Airtel on 8.4.2008 for the call particulars of IME No.356552005526348. On 12.4.2008, he corresponded with Vodafone regarding mobile No.9986960387. On that day, he secured call particulars of mobile No.9916664463 from Vodafone. On 20.4.2008, he secured information regarding accused obtaining gas connection from Kavitha Enterprises, Vijayanagar. He deputed ASI Govindaiah to secure the residential address of the accused at Devasandra. On 27.4.2008, he deputed ASI Govindaiah to trace the accused and he produced Girish Basappa Gadekar and Anil Kumar Basappa Gadekar and he recorded their statements regarding the information of the accused. On 29.4.2008, he issued notice to the owner of the accused regarding the information of the accused. On 30.4.2008, he recorded the statement of Rajshekar, elder brother of PW3 about the accused. That on 7.5.2008, ASI Govindaiah reported regarding his efforts to arrest the accused. On 24.5.2008, he deputed ASI Shivanna to trace the accused and received his report for non-trace of the accused. On 17.6.2008, he sent requisition to BSNL, Airtel, Spice, Vodafone and Tata Indicom regarding the call particulars on the deceased mobile. On 19.6.2008, he deputed PWs.6 and 14 to trace the accused at Sindhanoor, Raichur District i.e., native place of the accused. On 22.6.2008, PW14 returned and reported about the non- tracing of the accused.
36. On 1.7.2008 at about 9.45 a.m., PWs.14 and 6 produced accused before him and submitted report as per Ex.P.19. He arrested the accused and observed the formalities and recorded his voluntary statement that he will produce the mobile belonging to the deceased and the voluntary statement is marked at Ex.P.25. Accused produced Nokia cell phone N-73 model and the same was seized as per mahazar at Ex.P.11. He also identified MO.1 and identified the signatures at Ex.P.11(c). He secured the mother of the deceased i.e., PW.1 to the police station, who identified the accused and also the mobile of the deceased. On that day, he recorded the statement of panchas Shiekh Riyaz and B.V.S. Kumar. On 14.7.2008, he took the permission of the Court to send the seized articles to FSL and on 26.7.2008, he has sent the same. On 23.8.2008, he secured the call details of the deceased mobile from Vodafone as per Ex.P.24 and signature is marked as per Ex.P.24(b). On the same day, he secured the call details of accused mobile from Airtel as per Ex.P.23. He also secured the call details of the mother of the deceased from Airtel. In Ex.P.24, he has marked the relevant call details of the deceased mobile in pink colour text liner. In Ex.P.23 he has marked the relevant call details of accused in light green and pink color and that portion is marked at Ex.P.23(a). The relevant portion with color indication in Ex.P.24 is marked at Ex.P.24(c). The relevant portion in call details of PW.1 are marked at three places in yellow color and marked at Ex.P.24(d), (e) and (f). PW.11 has stated as per Ex.P.15. Thereafter, as the investigation was complete, he has filed the final report. As he was transferred, he handed over the further investigation to P.I. Jagannath Rai.
37. He was subjected to cross-examination. In the cross-examination, it is elicited that he made an enquiry with the mother of the deceased regarding the accused and the deceased and did not enquire regarding the deceased’s marriage. He does not know whether the deceased was married and divorcee. He does not know whether the deceased was in love with the accused, who was not loving her. He does not know any information regarding the deceased attempting to commit suicide twice. He visited the house of the accused and he cannot say the exact date. Before 1.7.2008, he went to the house of the accused and there was nobody in possession of the house and it was locked. He opened the lock of the house and saw the same by taking the keys from the owner of the house. He admits that at that time there were articles of the house in the house, but he cannot say what were the exact articles. He admits that first UDR was filed and FIR was registered on the basis of the post mortem report. He further submits that he did not receive the FSL report before filing the charge-sheet. He did not see the FSL report, as he was transferred. It is suggested that on the basis of the above FSL report, the charge-sheet cannot be filed in this case and the same was denied. It is suggested that as the victim could not have committed suicide in her mother’s house, she committed the same in the accused house and the same is denied. It is suggested that the accused was in possession of the house even after 01.07.2008 and the same was denied. He does not know when he vacated the said house.
38. Having considered both oral and documentary evidence available on record and also keeping in view the contentions urged by both the learned counsel, this Court has to re-appreciate the materials available on record. Before re-appreciating the evidence available on record, we would like to mention in a nutshell the undisputed facts before the Court. The evidence emerged from the trial is that both the deceased and the accused were working together for sometime in the very same company. The other undisputed fact is that the accused visited the house of the deceased during the festival and also the deceased used to visit the house of the accused. Ex.P.3 – photograph is also not in dispute and it discloses that both the deceased and accused went to Nandi Hills and took the said photo. The witnesses have also admitted that there was an affair between the deceased and the accused. However, an attempt is made by the defence that the deceased was insisting the accused to marry her and the accused refused to marry her. The fact that both were moving together is not in dispute. The fact that the death had taken place in the house of the accused is also not in dispute. But, the defence claims that the deceased was also having one key of the said house and the same was denied by PW.1 when a suggestion was made to PW.1. The fact that accused did not inform the death of the deceased to the police is not in dispute. The accused in 313 statement would contend that on 16.03.2008 Shireen called the phone No.9980043431 for five and half minutes and that might be the cause for her to commit the suicide in respondent’s house. Before that call, she called the accused, but the accused told her that he is outside the house and will come after two days, since he is going to his native place and the accused never used her mobile at any time. However he admits that she was having two mobile phones. But the respondent never had them at any time nor sold the mobile. On 16.03.2008, the respondent never saw the deceased, since he left the house before she came to his house. On 17.03.2008, he never sent any message to the mother of the deceased. On 18.03.2008, he was in Sindhanoor, Raichur District and he saw the paper news and came to know that she committed suicide in his rented house. Since then the respondent is in the same house and did not go to Chennai. The respondent also met the father of the deceased and convinced him not to worry. Only afterthought, they filed a false complaint. That on 30.06.2008, he voluntarily went to the police station and he was made to wait and not seized any mobile at his instance.
39. Keeping in view the 313 statement and also the evidence available on record, this Court has to re- appreciate the material available on record. It is the specific case of PW.1 that on 16.03.2008, the deceased left the house stating that she has received a call from the accused and she will come back within ten minutes. It is also her evidence that on the same day, at around 11:45 a.m., she made a call to her daughter and the same was ringing and thereafter it was switched off. On the very same day, she had sent one message to her daughter informing her to intimate them where she was. But there was no response. On the next day at about 10:10 a.m., she received a message from her daughter’s mobile. It has to be noted that there is no dispute with regard to the fact that the message was sent to the mobile of P.W.1 from the mobile of the deceased. The call details also disclose the same. Hence, it is clear that after committing the murder of the deceased, the cell phone of the deceased was used. It is the case of the prosecution that the accused only used the said cell phone of the said deceased and sent the message. On perusal of Ex.P.24, it is clear that a message was sent from the mobile of the deceased to the mobile of P.W.1 on 17.03.2008, which is marked as per Ex.P.24(c) and the message was dispatched at 09:53 a.m. and 09:54 a.m. at Sadashivanagara. The call location is at Sadashivanagara. It is further important to note that on 16.03.2008, from the very same mobile, a call was made to the mobile of the accused at 10:07 a.m. and so also at 10:12 a.m. The call location is Pipe Line Road, Vijayanagar and SMS was also sent at 10:07 a.m. Hence, it is clear that both the accused and deceased were in contact on 16.03.2008 before the deceased left the house of her parents.
40. It is also the case of the prosecution that the deceased had received a call from the accused, but the call was received by him from the mobile of the deceased and SMS was also received. It is pertinent to note that the call details of the accused, which is marked as per Ex.P.23(a) is clear that the accused was in the very same house on 16.3.2008 and he received a call from the deceased at M.C. Layout at 10:08 a.m. and also at 8:23 a.m. It is also pertinent to note that he had received a call at 12:38 p.m. in the very same location at M.C. Layout, where the incident had taken place. From morning till 12:38 p.m., the deceased was in the very same place i.e., at M.C. Layout. It is pertinent to note that the medical evidence is clear that the death had taken in between 12 hours to 24 hours of conducting of the post mortem. The post mortem was conducted at 2:00 p.m. on 17.3.2008 and it goes back to 12 hours that the death had taken place in between 10:30 a.m. to 12:30 p.m. on 16.3.2008 in the house of the accused. The call details disclose that the accused was very much present in the house. Though he contended in 313 statement that he had informed the deceased he will not be in town for two days and he is visiting his native place when the deceased called him in the earlier morning, the telephone call details and location is clear that the accused was in the very same house. There is no explanation on the part of the accused and the explanation given in 313 statement is contrary to the evidence available on record.
41. It is also pertinent to note that the very conduct of the accused has to be taken note of. Throughout his defence and in 313 statement, he contends that he was very much present in the house in which he was staying, there is no dispute that he took the premises from the owner in terms of Ex.P7 and also not in dispute that he has taken the premises for his occupation. The accused was not present when the police went to the spot and he was absconding. The records also reveal that he was apprehended on 1.7.2008, almost after three months. The witnesses who have been examined have also deposed that he was apprehended near the said residence, but he contended in 313 statement that on 30.6.2008, he went to the police station and surrendered himself. In the cross- examination of witnesses, it is suggested that throughout he was residing in the very same address but material discloses that in order to apprehend him, the police had been deputed. PW.16 has categorically deposed that the police officials had been deputed and had visited his native place and he was not found. Later he was apprehended. Thereafter, one mobile was seized at his instance. The seizure witness P.W.4 also supported the case of the prosecution that in his presence mobile was seized. Hence, it is clear that the accused only sent the message to the mother of the deceased – PW.1 intimating that her daughter is in the same house and mother is responsible for her death. It is clear that after committing the murder, he has sent a message pretending that the mother is responsible for the death of her daughter. We have already pointed out that the said message was sent and location was traced, message was dispatched at Sadashivnagar. It is also important to note that when the spot mahazar was conducted, the mobile of the deceased was not in the place. The other contention of the accused is that one more key was in the custody of the deceased and she might have opened the door and committed suicide in the house of the accused. It is pertinent to note that even the spare key is also not seized when the spot mahazar was conducted. The photographs which are marked as Exs.P4 to 6 disclose that a body was lying in the floor and there was a veil on the neck of the deceased. The other photograph discloses that the clothes are hanging on the ceiling fan. Having taken note of the said photographs and also the photographs which shows the body was lying on the floor, it is clear that it is also pretended to show that she has committed suicide and thereafter body was removed from the hanging position and made to keep the body in the ground.
42. It is pertinent to note the medical evidence available on record. The doctor has been examined as P.W.10 before the Court. P.W.10 in his evidence deposed that he conducted the post mortem and gave the report. He noted the external appearances and also the external injuries. Having taken note of the post mortem report and tranverse ligature mark present around front and sides of neck meeting at the right side mid neck over its measures 3.5 cms. x 2 cms. situated 7 cms. below right angle of mandible, total length of the ligature mark is 30 cms. x 1.25 cms. It is surrounded by a region of pale zone all over the neck for a maximum breadth of 6.5 cms., it is clear that ligature mark was found all over the neck and hence the same suggest that it is not a suicide by hanging. The ligature mark found all over the neck was in the horizontal shape and not oblique. If really it was a hanging, it should have been in the oblique nature and not in horizontal round the neck.
43. It is also important to note that abrasions and ecchymoses round about the edges of the ligature mark is very rare in case of suicide. But in case of strangulation, abrasions and ecchymoses round about the edges of the ligature mark is common. It is evident in the case on hand also. Further, it is important to note that injury to the muscles of the neck is very rare in case of hanging. But in case of strangulation, injury to the muscles of the neck is common. It is also important to note that in case of hanging, scratches, abrasions and bruises on the face, neck and other parts of the body is usually not present. But in case of strangulation, scratches, abrasions fingernail marks and bruises on the face, neck and other parts of the body is usually present.
44. In the case on hand, external injuries 1 to 7 make it clear that there was pressure abrasion measuring 5.5 cms. x 1 cm., present over left side lower part of neck, situated 11 cms. below left ear lobule. Pressure abrasion measuring 2.5 cms. x 1.5 cms., situated just below right mandibular ramus, pressure abrasion present on either side of angle of mouth measuring 2 cms. x 1 cm. and 2.5 cms. x 1 cm. over its left and right side respectively with a pale zone running from left angle of mandible towards right side cheek for a total length of 16 cms. over the mentioned abrasion. Pressure abrasion present over right side lower lip, measuring 1.5 cms. x 0.7 cms. Two pressure abrasions each measuring 0.5 cms. x 0.5 cms. and 1 cms. x 0.5 cms. present over right side lower lip, placed 0.5 cms. apart situated 2 cms. above right angle of mouth was also present. Contusion measuring 5 cms. x 3 cms. present over back of left arm in its lower 3rd.
45. These are the injuries which suggest that the deceased resisted the act of the accused at the time of compressing the neck and also sustained injuries to the back of the left arm in its lower 3rd. If it is a case of simple hanging by committing suicide, there are no chances of sustaining those injuries and injuries suggest that there was a scuffle between the accused and the deceased at the time of strangulation. It is pertinent to note that even on further dissection of the neck, it is noticed that all the organs are intact and congested except scalp. On reflection of scalp blood extravasation was seen over right parietal region over an area 3 x 2 cms. White matter of the brain, surface of both lungs and heart shows petechial hemorrhages. Lungs on cut section exudes dark coloured fluid blood. If it is a hanging by committing suicide, these are the injuries which could not have been occurred on the body of the deceased. There is no explanation on the part of the accused. The Trial Court simply ignored the medical evidence available before the Court and the post mortem report is also clear that there was no fracture to hyoid bone and thyroid cartilages. The Trial Court ignored the material available on record. It appears that the Trial Court is influenced with the material available on record that the deceased had made an attempt to commit suicide in the earlier two occasions and failed to consider the medical evidence available on record. It is nothing but perversity in not appreciating the medical evidence available on record by the Trial Court. The Trial Court has ignored the material available on record in coming to a conclusion that it is not a case of hanging and it is a case of strangulation by compressing the neck of the deceased. It is also suggested in the cross-examination of P.W.1 that in the previous day there was a galata between the accused and the deceased and it is not a case of the prosecution that there was a galata between the accused and the deceased in the previous day but in the very cross-examination of P.W.1 it is suggested and elicited from the mouth of P.W.1 that there was a galata between the accused and the deceased in the previous day. It is also pertinent to note that it is emerged in the evidence that the deceased was insisting the accused to marry her and the accused was not showing any interest. Hence, it is clear that in order to get rid of the deceased, the accused has committed the murder of the deceased.
46. The very conduct of the accused is very important. He left the place immediately after the incident and he was arrested after three months. If he really had not committed the murder, what made him to leave the place is not explained. He ought to have informed the police that in his absence, in his house the deceased has committed suicide and the same has not been informed to the police. We would like to refer to the judgment of the Hon’ble Apex Court in the case of STATE OF KARNATAKA v. SUVARNAMMA AND ANOTHER reported in (2015) 1 SCC (Cri) 663, wherein it has held regarding the conduct of the accused in paragraph No.10 of its judgment as follows:
“10. The Court dealing with a criminal trial is to perform the task of ascertaining the truth from the material before it. It has to punish the guilty and protect the innocent. Burden of proof is on the prosecution and the prosecution has to establish its case beyond reasonable doubt. Much weight cannot be given to minor discrepancies which are bound to occur on account of difference in perception, loss of memory and other invariable factors. In the absence of direct evidence, the circumstantial evidence can be the basis of conviction if the circumstances are of conclusive nature and rule out all reasonable possibilities of accused being innocent. Once the prosecution probabilises the involvement of the accused but the accused takes a false plea, such false plea can be taken as an additional circumstance against the accused. Though Article 20(3) of the Constitution incorporates the rule against self incrimination, the scope and the content of the said rule does not require the Court to ignore the conduct of the accused in not correctly disclosing the facts within his knowledge. When the accused takes a false plea about the facts exclusively known to him, such circumstance is a vital additional circumstance against the accused.”
47. In the case on hand also, the accused took the false plea that it was a suicide by hanging and the medical evidence disclose that it is a clear case of strangulation, compression of the neck. This Court has discussed in detail regarding the differences between ‘suicide by hanging’ and ‘strangulation’. It is also important to note that in 313 statement, the accused has taken the defence that he was throughout available in the very house even after the body of the deceased was found in his house. He did not choose to report the same to the police and he was not available in the house. It is pertinent to note that the body was lying in the house of the accused and in 313 statement he states that he was at native place Sindhanoor and he came to know about the body lying in his house when he saw the newspaper. But, he did not come and inform the police and also he did not meet the police thereafter. He was absconding for a period of three months but he claims that he was in the very same house. This leads that he has taken a false defence, which is also an additional factor to come to the conclusion that the very conduct of the accused is not normal conduct of a person. If really it was a case of suicide by hanging, he would have reported the same to the police and the same has not been done. The material of call details discloses that the accused was very much present in the said house on 16.03.2008 till 12:38 p.m. But he claims when he spoke to deceased in the morning he was not there in the house and had gone to his native place.
48. The other circumstances before the Court is that the accused has taken the gas connection in terms of Ex.P.22. Hence, it is clear that he was residing in the very same house. Ex.P.7 also discloses that he entered into an agreement with the owner and the owner has been examined as P.W.2 and his wife is also examined as P.W.3 and there is no dispute with regard to the fact that the accused was staying in the very same house. Though he contended that the deceased was having a spare key and the same was not seized at the spot, in the 313 statement, he states that she was having a spare key and the same has not been substantiated and P.W.1 categorically denied the suggestion that deceased was having spare key.
49. The other circumstances against the accused is that MO.1 – mobile was seized at the instance of the accused and the prosecution also relied upon the evidence of P.W.4 regarding recovery of the mobile at the instance of the accused. No doubt, there are some minor discrepancies in the evidence of P.W.4, but the same will not take away the case of the prosecution. The prosecution in order to substantiate that even after committing the murder of the deceased, the cell phone of the deceased was used and the message was sent to the mother of the deceased and the said message was sent from the location of Sadashivanagara on the very next day i.e., on 17.3.2008 in the early morning. The accused also did not explain the same under Section 106 of Indian Evidence Act, 1872. When the body was lying in the house of the accused, he has to explain the same. Throughout in 313 statement also he did not say anything about why he did not explain under Section 106 of the Evidence Act except taking the defence that he was throughout available in the very same house even after the death of the deceased.
50. Having taken note of all these factors into consideration, it is clear that the Court below has completely ignored the evidence available on record and the very finding of the Trial Court is erroneous and did not consider the medical evidence available on record. There was no explanation on part of the accused with regard to the seven injuries on the dead body and also there was an injury on the head and an extravasation from the head and injuries on the face and the same is also not considered by the Trial Court. Exs.P.23 to 25 also has not been considered by the Trial Court regarding call details and location and the message sent to the mother of the deceased by using the mobile of the deceased. The post mortem report is also very clear that time since death is between 12 to 24 hours since rigor mortis was set in and the same matches with the timings of the incident that has taken place on 16.3.2008 and this Court has already pointed out that in the very same location the accused received the call even after 12.00 p.m. These are all the aspects, which are not considered by the Trial Court and the material evidence has been ignored by the Trial Court. Hence, we are of the opinion that the judgment of the Trial Court requires interference by this Court and the same is perverse and hence the material available on record is clear that it clinches the case of the prosecution that the accused only committed the murder and thereafter he pretended that it was a suicide by hanging and the material available on record also shows that mobile of the deceased was also recovered and evidence of P.W.4 also clearly shows that mobile was recovered at the instance of the accused. The accused pretended that it was a suicide to mislead the police. As a result, UDR was registered at the first instance and the complainant at the first instance itself suspected the role of the accused while lodging the complaint. After the opinion obtained from the post mortem, the investigation process was started and material is collected. Hence, it is a fit case to reverse the findings of the Trial Court.
51. In view of the discussions made above, we pass the following:
ORDER (i) Appeal is allowed. Order dated 25.4.2013 passed by the trial Court in S.C.No.1169 of 2008 acquitting the respondent-accused is set aside.
(ii) The accused is convicted for the offences punishable under Section 302 of Indian Penal Code.
(iii) The accused is sentenced to rigorous life imprisonment and is also directed to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and the same is payable to PW1 – mother of the deceased. In default, he shall undergo rigorous imprisonment for one year.
Sd/- Sd/-
JUDGE JUDGE ST/BKP/MD