Ananda vs The State Of Karnataka
2022 Latest Caselaw 5886 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 1ST DAY OF APRIL, 2022

                       PRESENT

        THE HON'BLE MR. JUSTICE B. VEERAPPA

                            AND

        THE HON'BLE MR. JUSTICE S. RACHAIAH

           CRIMINAL APPEAL No.1220 OF 2018

BETWEEN:

1.   ANANDA
     S/O LATE MUTTUSWAMY
     AGED ABOUT 48 YEARS
     CENTERING WORK
     R/AT NO.183, 23B,
     JADAL NAIDU STREET
     JAYANAGAR, PERIYANAYAKAN PALYAM
     COIMBATORE TALUK AND DISTRICT
     TAMILNADU STATE.

2.   ANANDI
     W/O ANANDA
     AGED ABOUT 48 YEARS
     CENTERING WORK
     R/AT NO.193, 23B,
     JADAL NAIDU STREET
     JAYANAGAR, PERIYANAYAKAN PALYAM
     COIMBATORE TALUK AND DISTRICT
     TAMILNADU STATE.

                                        ...APPELLANTS
(BY SRI DAROJI, ADVOCATE)
                              2




AND:

THE STATE OF KARNATAKA
REP. BY STATE PUBLIC PROSECUTOR
BY: T.NARASIPURA POLICE STATION
MYSORE-572103
AMBEDKAR VEEDI
HIGH COURT BUILDING
BANGALORE-560 001
                                             ...RESPONDENT
(BY SRI K NAGESHWARAPPA, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF
CONVICTION AND SENTENCE DATED 02.11.2017 PASSED BY
THE III ADDITIONAL SESSIONS JUDGE, MYSURU, IN
S.C.NO.11/2013 CONVICTING THE APPELLANTS/ACCUSED
NOS.1 AND 2 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 302 AND 364 OF IPC.

     THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B. VEERAPPA J., DELIVERED THE FOLLOWING:

                       JUDGMENT

Accused Nos.1 and 2, who are the dutiful husband

and wife, have filed the present criminal appeal against the

impugned judgment of conviction and order of sentence

dated 02.11.2017 made in S.C.No.11/2013 on the file of

the III Additional Sessions Judge, Mysuru, convicting

accused Nos.1 and 2 for the offences punishable under the

provisions of Sections 364 and 302 read with 34 of Indian

Penal Code, 1860 (for short 'IPC'), imposing punishment of

life with fine of Rs.5,000/- each and rigorous imprisonment

of four years with fine of Rs.5,000/- each, respectively.

2. It is the case of the prosecution that an unidentified

dead body, aged about 50 years, was found in the

agricultural land belonging to PW.1-Siddaraju thereby,

Siddaraju lodged a complaint as per Ex.P.1, dated

21.08.2012, at about 2.30 p.m. The same was registered

by the jurisdictional Police in Crime No.240/2012 at about

3.00 p.m. under the provisions of Sections 364 and 302 of

IPC. Based on the aforesaid complaint, the Investigating

Officer conducted inquest mahazar at the spot as per

Ex.P.2. Thereafter, the dead body was forwarded for Post

Mortem. At the spot where the dead body was found,

three bottles containing some liquid and a napkin were

also found along with a pair of plastic slippers, which were

marked as M.Os.1 to 5. The Doctor-PW.17, who

conducted the Post-Mortem, collected the viscera and

other organs (heart, lungs, stomach, liver and kidney) and

forwarded the same to the Investigating Officer along with

the clothes of the deceased i.e. Blouse-M.O.6, Pettycoat-

M.O.7, Saree-M.O.8 along with one gold nose stud, which

was on the dead body and the same were received by the

Police and sent to the Forensic Science Laboratory (FSL)

for opinion.

3. It is the further case of the prosecution that there

was a Tailor's label on the Blouse, which contained a

phone number and the Investigating Officer was able to

trace the said phone number pertaining to a tailor shop in

Gudlur Panchayat, Coimbatore District, Tamilnadu. The

Investigating Officer contacted the jurisdictional

Periyanayakana Palyam Police Station and came to know

that a missing complaint has been lodged in respect of one

Mariya Pushpam (the deceased). The Investigating Officer

forwarded the photographs of the dead body to

Periyanayakana Palyam Police Station by e-mail and on

that basis, the son and the brother of the deceased i.e.

PWs.5 and 6 came to T.Narasipura Police Station and

identified the dead body with reference to the photographs

and also the clothes which were found on the dead body.

Thereafter, the Police have conducted the investigation

and obtained Call Detail Record (CDR) relating to

deceased's phone number and on receipt of the same, the

Police found that there were two phone numbers which

were in continuous contact with the deceased's phone

number just before the disappearance of the deceased.

On the basis of this information, T.Narasipura Police team

went to Periyanayakana Palyam and apprehended accused

Nos.1 and 2, who are the residents of Periyanayakana

Palyam. Thereafter, the Investigating Officer recorded the

voluntary statement of the accused persons as per

Exs.P.46 and P.47 wherein, accused Nos.1 and 2 have

stated that they will show the jewels and other articles

belonging to the deceased which are in their house and on

the basis of the said disclosure, the Police recovered

certain jewels, mobile phone and other documents from

the house of accused Nos.1 and 2. The Police also took

accused Nos.1 and 2 to the house of the deceased where,

the son of the deceased produced the mobile phone box,

promissory note for Rs.10,000/- executed by accused No.2

and the documents relating to purchase of the said mobile

phone. It is alleged that the accused took the Police to

the spot where accused No.2 threw the Vanity Bag of the

deceased, but the Vanity Bag was not recovered from the

said spot. Thereafter, on the basis of the disclosure made

by the accused and on the basis of the receipt recovered

from the house of the accused, the Police took the accused

to India Info Line Finance Limited (IIFL), Periyanayakana

Palyam, Ganapathy Finance and Balaji Finance where, on

the basis of the disclosure of the accused, the Police

recovered several gold ornaments, which were pledged by

the accused for raising loans.

4. It is further alleged that accused Nos.1 and 2 took

the Police to Satyamangala Bus Stand where accused No.1

parked his motorbike on the date of the incident. On the

basis of the investigation, the deceased was working as a

Distributor of Amway Company and she introduced

accused No.2 also to become a distributor of the said

company. It is alleged that the fee of Rs.10,000/-, which

has to be paid by accused No.2 to the said company was

paid by the deceased on behalf of accused No.2 and

accused No.2 executed a Promissory Note in favour of the

deceased. In furtherance of the prosecution version,

accused Nos.1 and 2 were paying monthly installment of

Rs.500/- as arrears for about four years, in spite of the

same, the deceased was insisting that still Rs.6,000/-

remained due from accused No.2. In that regard, she was

coming to the house of the accused creating disturbance

and demanding repayment. Fed-up of the same and also

to make unlawful gain by stealing her gold ornaments,

accused Nos.1 and 2 induced the deceased that they will

introduce Amway customers in Mysuru and Kollegal area to

her and on that basis, the accused took the deceased from

Periyanayakana Palyam to T.Narasipura on 20.08.2012

and on the intervening night between 20/21.08.2012, in

the field of PW.1 where they were spending the night, the

accused mixed sleeping tablets with water in the bottle-

M.O.3 and induced the deceased to drink the same. As a

result of drinking the same, the deceased became drowsy

and thereafter, accused No.1 smothered the mouth and

nose of the deceased with Napkin-M.O.5 and thereby,

killed her. Thereafter, the accused relieved the deceased of

her jewels and fled. Accordingly, the jurisdictional Police

filed charge sheet against the accused persons for the

offences punishable under the provisions of Section 364

and 302 read with 34 of IPC. After committal of the

matter, the learned Sessions Judge, secured the presence

of accused Nos.1 and 2, framed the charges for the

offences punishable under Sections 364 and 302 read with

34 of IPC and read over the same to accused Nos.1 and 2

in the language known to them. The accused pleaded not

guilty and claimed to be the tried.

5. In order to prove the case, the prosecution

examined, in all, 28 witnesses as PWs. 1 to 28, got marked

documents as per Exs.P.1 to P.47 and the material objects

as per M.Os.1 to 35. The Court also examined one

Manjunath (Translator) as C.W.1. After completion of the

evidence of the prosecution witnesses, the statement of

accused Nos.1 and 2, as contemplated under Section 313

of Cr.P.C., were recorded. The accused persons denied

all incriminating circumstances and did not adduce any

evidence.

6. Based on the aforesaid pleadings, the learned

Sessions Judge, framed four points for its consideration.

Considering both oral and documentary evidence on

record, the learned Sessions Judge answered Point Nos.1,

2 and 4 in the affirmative and Point No.3, partly in the

affirmative holding that the prosecution has proved beyond

reasonable doubt that the dead body which was recovered

from the field of PW.1 on 21.08.2022 is the deceased

Mariya Pushpam and it is a homicidal death caused by

accused Nos.1 and 2. Further held that, accused Nos.1

and 2 caused the death of Mariya Pushpam punishable

under the provisions of Section 302 of IPC after abducting

her from Periyanayakana Palyam, took her to the field of

PW.1 in order to murder her which is punishable under

Section 364 of IPC. Accordingly, the learned Sessions

Judge proceeded to convict the accused for the aforesaid

offences. Hence, the present appeal.

7. We have heard learned counsel for the parties.

8. Sri P K Daroji, learned counsel for the appellants,

contended with vehemence that the impugned judgment of

conviction convicting the accused for the offences under

Sections 364 and 302 read with 34 of IPC is erroneous,

contrary to the material on record and cannot be

sustained. He further contended that the entire case of

the prosecution is based on circumstantial evidence and

the prosecution has not completely established the chain

of circumstances thereby, the accused are entitled for an

order of acquittal. He further contended that initially, the

FIR was registered against unknown persons as per Ex.P.1.

After the investigation, accused Nos.1 and 2 have been

falsely implicated mainly on the basis of Exs.P.7 to P.11,

the photographs of the dead body, said to be taken in

Station Digital Camera and CDR. In the absence of any

certificate issued by the author under Section 65B of the

Evidence Act or author being not examined, the very

conviction by the learned Sessions Judge cannot be

sustained. He further contended that the alleged motive,

last seen theory and recovery are not proved at the

instance of the accused. Exs.P.41, P.42 and P.43 are the

CDRs issued by the authority, which has not been

examined. Thereby, the very conviction passed by the

learned Sessions Judge on the basis of presumption and

assumption cannot be sustained. Hence, he sought to

allow the appeal.

9. Per contra, Sri K Nageshwarappa, learned High Court

Government Pleader for the respondent-State contended

that the learned Sessions Judge has considered the

evidence of PWs.13 and 19 with regard to last seen theory,

recovery spoken to by PW.20 and PW.19 as per Ex.P.19

and M.Os.11 to 13, pledging of the gold ornaments. Upon

recording the voluntary statement of the accused, they

have disclosed about the killing of the deceased and

pledging of gold ornaments. He would further contend

that PW.5, the son of the deceased identified the jewels

M.Os.31 to 35. M.O.12 is the sanction letter dated

21.08.2012 for pledging the jewels at about 4.00 p.m.

The incident occurred on the intervening date of

20/21.08.2012 at about 2.30 p.m. On the same day, the

complaint was lodged and after the incident, accused No.2

pledged the ornaments as per M.O.12 and received an

amount of Rs.50,000/-. There is absolutely no explanation

in the statement under Section 313 of Cr.P.C. and the

accused persons do not claim that the ornaments

recovered belongs to them. In the absence of any

explanation being offered by the accused persons, adverse

inference has to be drawn. The circumstances proved

both motive and recovery and thereby, the learned

Sessions Judge is justified in convicting the accused.

Therefore, he sought to dismiss the appeal.

10. In view of the aforesaid rival contentions urged by

the learned counsel for the parties, the only point that

arises for consideration in the present appeal is,

"Whether the accused Nos.1 and 2 have made out a case to interfere with the impugned judgment of conviction and order of sentence dated 02.11.2017 passed by the learned Sessions Judge convicting the accused for the offences punishable under the provisions of Section 364 and 302 read with 34 of IPC in the facts and circumstances of the present case?"

11. We have given our anxious consideration to the

arguments advanced by learned counsel for the parties

and perused the entire material on record carefully.

12. This Court being the appellate Court, in order to re-

appreciate the entire oral and documentary evidence on

record, it is relevant to consider the evidence of the

prosecution witnesses and the documents relied

thereupon, in detail.

i) PW.1-Siddaraju is the complainant in whose

land the dead body was found and he identified the dead

body.

ii) PW.2-Bellegowda and PW.3-M M Jagadeesh

identified the dead body of the deceased in the land of

PW.1. They have also deposed about the lodging of

complaint.

iii) PW.4-Prasannakumar is the Police Constable

who shifted the dead body to the hospital for Post-Mortem

and brought back the clothes M.Os.6 to 8 and gold nose

stud, which were on the dead body and produced them

before the Investigating Officer. He supported the case of

the prosecution.

iv) PW.5-Anthony Babu is the son of the deceased

who deposed that his mother lived alone in

Periyanayakana Palyam in the first floor of the house and

she had given the ground floor for rent and she was doing

the business of selling Amway products. He further

deposed that he spoke to his mother for the last time

telephonically on 20.08.2012 as she had to attend a

marriage at Tiruchi on 22.08.2012, but she did not attend

the marriage.

v) PW.6-James Pakyam, who is the brother of the

deceased also deposed on par with PW.5 and also deposed

that on 23.08.2012, they went to T.Narsipura Police

Station and identified M.O.1-Slippers, M.Os.6 to 8-clothes

of deceased and also identified the photographs of the

dead body as per Exs.P.7 to P.11 as that of the deceased

Mariya Pushpam. PW.5 also identified M.O.35-gold nose

stud, which was found on the dead body belonged to his

mother. Both PWs.5 and 6 further deposed that the

deceased used to wear gold neck chain, dollar, nose stud,

bangles and rings. They also identified M.O.9-mobile

phone box and the phone bill issued by the Univercell

showroom regarding purchase of mobile phone at Ex.P.13.

They also identified the promissory note signed by accused

No.2 as per Ex.P.14 under Ex.P.12-Mahazar. PW.5

identified M.Os.31, 32, 33 and 35, 24, 26, 29 and 30-

ornaments and M.O.20 - mobile phone as that of his

mother. He supported the case of the prosecution.

vi) PW.7-Senthilkumar, who is distributor of

Amway Company deposed that the deceased was working

as a distributor in the said company and the deceased

introduced accused No.2 as a member of the said

company. He further deposed that on 20.08.2012, the

deceased sought for 4 applications forms of Amway

Company on the ground that she is going to introduce new

members to the said company and accordingly, on the

same day at 12.00 p.m., he visited the house of the

deceased and handed over the said application forms to

her. He supported the case of the prosecution.

vii) PW.8-Smt. Lourde Mary deposed that she is

acquainted with the deceased and also seen the accused,

who lived in the adjacent area. She further deposed about

the deceased being the distributor of Amway Company.

She further deposed that the deceased had told her that

accused No.2 had borrowed money from her and when she

sought repayment of the said money, there was a quarrel

between them. Thereby, she supported the case of the

prosecution.

viii) PW.9-Smt. Shanthamani also deposed that she

knew the deceased for the past 15 years who was working

as a distributor in Amway Company and the deceased told

her that one Anandi has to owe money to her. She

supported the case of the prosecution.

ix) PW.10-Smt. Gowrigunashekar has deposed

that she was the tenant of the deceased and on

20.08.2012 at 11.30 a.m., the deceased came to her

house and told her that she is going to Mysuru for personal

work and from there going to Tiruchi. She supported the

case of the prosecution.

x) PW.11-Ramaswamy has deposed that the

accused are the tenants in his house and he is also

acquainted with the deceased as she had come to the

house of accused on one occasion and he has seen the

same. He has supported the case of the prosecution.

xi) PW.12-Doreswamy is also a tenant in the

building belonging to PW.11 and neighbor of the accused.

He deposed that he is also acquainted with the deceased

for 2 to 3 years. He has stated on oath that the deceased

used to visit the house of the accused since she had

introduced accused No.2 as member of Amway company

and on one occasion, the deceased came near the house of

the accused and demanded repayment of Rs.10,000/-. He

further deposed that on 20.08.2012, accused Nos.1 and 2

left their house and came back only in the afternoon of

21.08.2012. He supported the case of the prosecution.

xii) PW.13-Mahadevaswamy, who was working as

Home Guard deposed about seeing accused Nos.1 and 2

with deceased on 20.08.2012 at 11.15 p.m. at

Santemaranahalli within the limits of Chamarajanagar

Police Station. He supported the case of the prosecution.

xiii) PW.14-Veeresh is a panch witness who

deposed about Ex.P.19-mahazar regarding recovery of

mobile phone, ornaments, money and documents from the

house of the accused, Ex.P.12-mahazar, under which the

mobile phone box, phone purchase bill and promissory

note were seized from the house of the deceased and

Exs.P.20 to P.22-mahazars under which the gold

ornaments which were pledged were seized from IIFL,

Ganapathy Finance and Balaji Finance on the basis of the

voluntary statement of the accused. He supported the

case of the prosecution.

xiv) PW.15-Shankar is the Police Constable who

carried the FIR to the Magistrate.

xv) PW.16-Smt. Kruthika is the Scientific Officer of

Regional FSL, who deposed about submitting the report as

per Ex.P.25 detecting the presence of Benzodiazypine in a

bottle found adjacent to the dead body and also in the

viscera of the dead body. She supported the case of the

prosecution.

xvi) PW.17-Smt. Lokeshwari is the Doctor who

conducted the Post-mortem and issued Post-mortem

Report Ex.P.26. She supported the case of the

prosecution.

xvii) PW.18-Shivaraju, who is the mahazar witness

to Ex.P.23 under which, it is alleged that accused No.2

showed the spot where she threw the Vanity Bag of

deceased into a stream, but it is not of much significance

because no recovery is made of said vanity bag at the said

spot.

xviii) PW.19-Shantamallappa, who was working as

Police Constable of Chamarajanagar Town Police Station

has deposed on par with PW.13 regarding seeing accused

Nos.1 and 2 along with the deceased on 20.08.2012 at

11.15 p.m. at Santemaranahalli.

xix) PW.20-Raju has deposed that he has given his

motorbike to accused No.1, who used the same in the

offence. He further deposed that he produced the

photographs as per Exs.P.27 and P.28 and also the

Delivery Note in respect of the motorbike at Ex.P.29 before

the T.Narasipura Police. He also deposed that accused

No.1 had taken loan of Rs.4,000/- from him, which he

returned to PW.20 and on being told by T.Narasipura Police

that the said amount given by accused No.1 is the money

obtained by selling the gold ornaments of the deceased.

He produced the money before the Police and at that time,

another person by name Marimuthu also produced

Rs.3,000/- before the Police. He supported the case of the

prosecution.

xx) PW.21-Anthony Swamy is the neighbor of the

accused and panch witness to Ex.P.19 regarding recovery

of gold ornaments, cash of Rs.20,000/-, documents and

mobile phone from the house of the accused, mahazars at

Exs.P.20 to P.22 regarding recovery of pledged gold

ornaments from the Finance Companies on the disclosure

of the accused and also Mahazar at Ex.P.12 regarding

seizure of mobile box, promissory note and phone bill etc.,

He supported the case of the prosecution on par with

PW.5.

xxi) PW.22-Sudha, who was working as Gold

Appraiser in IIFL identified accused Nos.1 and 2 as persons

who had pledged the gold ornaments in the said company.

She also stated that the Police had brought accused Nos.1

and 2 on 29.08.2012 and at that time, seized the gold

ornaments pledged by accused Nos.1 and 2 as per

Ex.P.20. Ex.P.32 is the document issued by the said

Finance Company intimating the Police regarding pledging

of gold ornaments by accused Nos.1 and 2. She also

identified the sanction letter at M.O.12 issued at the time

of advancing the gold loan to accused and she has also

identified the photograph of accused No.2 on the said

M.O.12. She identified the jewels worn by the deceased in

the photographs at Exs.P.4 to P.6 are seen in M.O.12 and

are same as M.O.32 and M.O.33 produced before the

Court, which are the ear-rings and gold chain pledged by

accused No.2 in IIFL company.

xxii) PW.23-Gunashekaran, who deposed that he is

running vehicle parking stand in Satyamangalam. He

deposed that xerox copy of his Register as per Ex.P.33

disclose that the motorbike bearing No.TN-37-BF-4811

was parked in the said stand on 20.08.2012 and taken out

on 21.08.2012. According to the prosecution, in order to

avoid being seen together with the deceased in

Periyanayakana Palyam, accused No.1 dropped accused

No.2 in Metupalyam bus stand, from where the deceased

and accused No.2 came together in a bus to

Satyamangalam and accused No.1 went to

Satyamangalam in the said motorbike and parked the

motorbike in the said vehicle stand managed by PW.23

and from Satyamangalam, all the three proceeded towards

T.Narasipura.

xxiii) PW.24-Mariswamy is the mahazar witness to

the mahazar at Ex.P.30 regarding seizure of the motorbike

in the Police station. He supported the case of the

prosecution.

xxiv) PW.25-Javaraiah, who was working as a Police

Constable in T.Narasipura Police Station has deposed

about assisting the Investigating Officer in various

investigation and mahazars done in this case. He

supported the case of the prosecution.

xxv) PW.26-Sundar Raj is the Circle Inspector of

T.Narasipura, who has deposed that after completing the

investigation in-part, handed over the same to PW.28, who

investigated the matter on the basis of the disclosure

made by the accused. He supported the case of the

prosecution.

xxvi) PW.27-Balakumar has deposed to the fact that

he has translated the FIR at Ex.P.15 and produced the

translated copy at Ex.P.39. He supported the case of the

prosecution.

xxvii) PW.28-Santhosh Kashyap, who was working as

PSI, T.Narasipura has deposed about the inquest mahazar,

finding of M.Os.1 to 5 adjacent to the dead body,

apprehending the accused on the basis of suspicion since

the CDR of deceased's phone number revealed several

phone calls between the deceased and the accused

persons. He supported the case of the prosecution.

Based on the aforesaid material on record, the

leased Sessions Judge proceeded to convict the accused.

13. In order prove the case of the prosecution, at this

stage, it is relevant to consider the following three

circumstances:-

(i) Motive;

(ii) last seen theory and

(iii) recovery of ornaments.

(i) Motive

14. As already stated supra, PWs.7, 8 and 9 have

deposed that the deceased was a distributor of Amway

Company and she introduced accused No.2 as a member

to the said company. In fact, on 20.08.2012, immediately

before the death of the deceased, the deceased telephoned

to PW.7 and asked for four application forms on the

ground that she is going to introduce new members to the

said company and accordingly, on the same day at 12.00

p.m., he visited the house of the deceased and handed

over the said application forms to her. Other witnesses

who have spoken about the motive is PWs.8 and 9, who

have deposed that the deceased told them regarding her

financial transaction with accused No.2 and she has given

some amount to accused No.2, but accused No.2 has not

repaid the same to her. The evidence of PWs.8 and 9 that

they have the knowledge of the fight between the

deceased and the accused as the deceased had told them

about the same, though it amounts to hearsay evidence,

but hearsay evidence is admissible. As the statement of

PWs.8 and 9 clearly disclose that accused No.2 had

borrowed money from the deceased, thereby there was a

quarrel between them. Nothing has been elicited in the

cross-examination of PWs.8 and 9. It is further relevant to

state at this stage that PW.11, the house owner of the

accused and PW.12, the neighbor of the accused, have

deposed about the fact of acquaintance of the deceased

and the accused. In fact, the deceased used to visit the

house of the accused seeking repayment of loan. Nothing

has been elicited in the cross-examination of PWs.11 and

12, though the cross-examination was at some length.

Thus, the motive is also proved.

15. The accused persons have not denied in the cross-

examination the motive spoken to by the aforesaid

witnesses nor offered any explanation while denying the

incriminating circumstances. While recording the

statement of the accused under Section 313 of Cr.P.C.,

except total denial, they have not offered any explanation.

Once the prosecution has discharged its initial burden of

proving the involvement of accused Nos.1 and 2, it is for

the accused to offer an explanation as the witnesses stated

supra have stated about the acquaintance between the

deceased and the accused as there was money transaction

between them. In the absence of any explanation,

adverse inference has to be drawn against the accused.

Our view is fortified by the dictum of the Hon'ble Supreme

Court in the case of Prahlad vs. State of Rajasthan

reported (2019)14 SCC 438, paragraph 11, which is as

under;

"11. No explanation is forthcoming from the statement of the accused under Section 313 of Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an advance inference against the accused."

(ii) Last seen theory.

16. The evidence of PW.13-Mahadevaswamy, PW.19-

Shantamallappa, PW.22-Sudha, the gold appraiser, PW.23-

Gunashekaran, have categorically stated that they have

last seen the deceased with the accused. In fact, PW.22,

the gold appraiser, has specifically stated on oath that she

identified accused Nos.1 and 2 as persons who pledged the

gold ornaments in IIFL company. She has also stated that

the Police brought accused Nos.1 and 2 on 29.08.2012 and

seized the gold ornaments pledged by accused Nos.1 and 2

as per the mahazar at Ex.P.20. She has further deposed

about Ex.P.32, the document issued by the said Finance

Company, intimating the Police regarding pledging of gold

ornaments by accused Nos.1 and 2. She has also

identified the Sanction Letter at M.O.12, which had been

seized from the house of the accused as the sanction letter

was issued at the time of advancing gold loan to the

accused. She has also identified the photograph of

accused No.2 on the said M.O.12 and identified that the

jewels worn by the deceased in the photographs at Exs.P.4

to P.6 are seen in M.O.12 and are same as M.Os.32 and 33

produced before the Court, which are ear-rings and gold

chain respectively which were pledged by accused No.2 in

IIFL. It is relevant to state at this stage that while

recording the statement of accused No.2 under Section

313 of Cr.P.C., she has signed in Kannada, while pledging

the ornaments on 21.08.2012 at about 4.00 p.m. after the

incident had occurred on 20.08.2012 and after the

complaint is lodged to the Police on the same day at about

2.30 p.m., she has signed the pledging document M.O.12

in English and in the election ID issued by Election

Commission, she has signed in Tamil. Thereby, it clearly

depicted that the accused No.2 is very clever and at each

of the circumstances, she has signed in difference

languages. Thereby, the last seen theory is also proved in

view of the aforesaid evidence of the prosecution

witnesses.

(iii) Recovery of ornaments.

17. It is also not in dispute that PWs.5 and 7 identified

the jewels M.Os.32 and 33. The incident occurred on

20/21.08.2012 and complaint was lodged at 2.30 p.m. On

the very same day, accused No.2 pledged the ornaments

as per M.O.12-sanction letter issued on 21.08.2012 at

about 4.00 p.m. These circumstances proved the

involvement of the accused. Though the voluntary

statement of the accused as per Exs.P.46 and 47 depicts

no ground for conviction, but the statement corroborates

with the other evidence of the prosecution witnesses and

the material documents at M.O.12, 32 and 33. It is also

not in dispute that on the voluntary statement of accused

Nos.1 and 2, the articles at M.Os.11 to 30 have been

recovered from the house of the accused as per Ex.P.19

and on the basis of the disclosure of the accused persons,

gold ornaments pledged by them in the Finance Companies

have been recovered as per Ex.P.20 to P.22. It is also no

doubt true that PW.20 has deposed that he had given the

motorbike to accused No.1 for his use. However, when the

said motorbike was produced before the Police admittedly

by PW.20, it is difficult to believe that it was being used by

accused No.1. In Ex.P.23-mahazar, it is alleged that

accused No.2 showed the spot where she threw the vanity

bag of the deceased. Exs.P.19, 20 to 22 are the important

recovery mahazars from the house of the accused. Apart

from that, the mahazar at Ex.P.12 seized in the house of

the deceased wherein the son of the deceased produced

the mobile phone box regarding purchase of mobile phone.

These are the important mahazars sufficient to prove by

the evidence of PW.14. Though nothing has been elicited

in the lengthy cross-examination of the prosecution

witnesses, the evidence of independent witnesses to the

prosecution proved the recovery under mahazars Exs.P.19,

P.20 to P.22 and also mahazar regarding seizure of

properties from the house of the deceased under Ex.P.12

was spoken to by the son of the deceased, which is also

stated by the Investigating Officer. Thereby, the

prosecution has successfully proved the circumstances

involving homicidal death of the deceased.

18. Considering the entire material on record, the

learned Sessions Judge has passed a well-founded

impugned judgment of conviction and order of sentence

and the accused have not made out any ground to

interfere with the same.

19. For the reasons stated above, the point for

consideration raised in the present appeal is answered in

the Negative holding that accused Nos.1 and 2 have not

made out any ground to interfere with the impugned

judgment of conviction convicting the accused Nos.1 and 2

for the offences punishable under the provisions of

Sections 364 and 302 of IPC and the learned Sessions

Judge is justified in convicting the accused and the same is

in accordance with law. The accused persons have not

made out any ground to interfere with the same in

exercise of the appellate power of this Court under Section

374(2) of Cr.P.C.

20. In view of the above, we pass the following:

Order

(i) The criminal appeal filed by accused Nos.1 and 2

are hereby dismissed.

(ii) The impugned judgment of conviction and order

of sentence passed by the learned Sessions Judge stands

confirmed.

Sd/-

JUDGE

Sd/-

JUDGE mv