Kumar vs State Of Karnataka By
2022 Latest Caselaw 7749 Kant

                               1

                                                         R
       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 31ST DAY OF MAY, 2022

                         PRESENT

           THE HON'BLE MR. JUSTICE G. NARENDAR

                           AND

             THE HON'BLE MR. JUSTICE M.I.ARUN

               CRIMINAL APPEAL NO.116/2019

BETWEEN:

KUMAR,
S/O PAPANNA,
AGED ABOUT 23 YEARS,
R/AT NO.10, MAIN ROAD,
6TH CROSS, KURABARAHALLI,
BANGALORE-560010
N/O. BELEGOAL, SRIRANGAPATNA,
MANDYA DISTRICT-571403.                       ... APPELLANT

(BY SRI M.V.CHARATI, ADVOCATE)

AND:

STATE OF KARNATAKA,
BY MAHALAKSHMI LAYOUT POLICE STATION,
BANGALORE-560010
REPRESENTED BY LEARNED
SPP HIGH COURT OF KARNATAKA,
BANGALORE-560001.
                                             ... RESPONDENT
(BY SRI VINAYAKA V.S, HCGP.)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 29.11.2014 PASSED BY THE
PRESIDING OFFICER, FAST TRACK COURT-XV, BENGALURU IN
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S.C.NO.1032/2009 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 302 OF IPC.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, G.NARENDAR J., DELIVERED THE
FOLLOWING:

                        JUDGMENT

Heard the learned counsel for the appellant/convict

and the learned HCGP for the respondent - State.

2. The case of the prosecution in brief is that on

27.05.2009, at about 10.00 p.m., accused is said to have

brought the deceased to the room occupied by him in the

house bearing No.10, 6th Main Road, 6th Cross, J. C. Nagar,

Kurubarahalli, Bengaluru and that when confronted by PWs

1 and 2 is said to have represented that, she is his mother

and that she would be leaving in the morning and that after

some time, the witnesses heard some commotion and

altercation and assuming that the fight being one between

mother and a son, they did not deem it necessary to

intervene. That on the morning of 29.05.2009 at about

07.00 a.m., when PW-1 came out to take his dog for a

walk, he found blood stains on the compound wall near the

gate and also sensed a bad smell and he immediately

contacted PW-3, the actual tenant, who thereafter came

and together they approached the police and informed

about their suspicion and that the police came and broke

open the door and they found the deceased lying in a pool

of blood and on the basis of the statements made by PWs 1,

2 and 3, police commenced investigation and arrested the

accused on the same day. The police lodged charge sheet

on 08.08.2009 and by the impugned judgment dated

29.11.2014, the Trial Court i.e., Fast Track Court-XV,

Bengaluru City, was pleased to accept the prosecution

version and proceeded to hold the accused guilty of the

offence of Section 302 of IPC and sentenced him to undergo

life imprisonment and to pay fine of Rs.10,000/-.

Evidence in the case:

3. On behalf of the prosecution, PWs 1 to 23 have

been examined and Exs.P-1 to P-30 have been marked and

M.Os.1-15 have been produced and marked by the

prosecution in support of the prosecution case. The accused

has examined himself as DW-1 and has also produced and

marked one exhibit i.e., Ex.D-1 photograph.

4. One K. R. Ashok is examined as PW-1 and he is

the son of PW-2, who it is alleged is the owner of the

premises, in which the body of the deceased Meena was

found and the complainant in his deposition on 10.02.2010

has identified the complaint lodged by him and the

signature which have been marked as Exs.P-1 and P-1(a)

respectively. He also identified the accused. Further, he has

deposed that they have let-out the portion to one Mahesh,

who is a contractor by profession. It is pertinent to note, at

this stage itself, the measurement of the alleged room,

which was let-out to said Mahesh, who is examined as PW-

3. The room is said to measure about 5 feet by 25 feet. He

has deposed that on 27.05.2009 at about 09.45 in the

night, the accused had brought one lady aged about 45

years along with him and when he was questioned by them

(probably implying himself and his father), the accused had

stated that the lady was his mother and that she would be

spending the night and leaving in the morning. That on the

third day, he sensed bad smell and he also noticed blood

stains. That immediately they contacted their tenant the

said Mahesh (PW-3) on phone. That PW-3 immediately

came and after seeing the blood stain and the locked room,

all of them proceeded to the Police Station and lodged a

complaint. That they did not enter the room and inspect the

dead body as they were scared. That the accused was not

present at that time. Thereafter, the police came to the spot

and enquired with all and that he affixed his signature to

the mahazar Ex.P-2 and identified his signature marked as

Ex.P-2(a). That the police seized a t-shirt, pant and blood

stained pieces of concrete. That the police also seized clean

pieces of concrete too. MOs-1, 2, 3 and 4 have been

marked through this witness. Thereafter, he has been

subjected to cross-examination by defence counsel.

5. On 15.02.2010, in the cross-examination, he has

deposed that he has studied upto SSLC and that he knows

only to read Kannada but does not know how to write

Kannada. He admits that the house is surrounded by

residential tenements. That he is residing in the house along

with his parents and sister and that as it was only four

months since they had shifted to the new house, he was not

so well acquainted with the neighbours and that the

residents living in the house opposite to his house alone are

familiar and closely associated. That the resident of the

opposite house is one Arun Kumar and he is carrying on

business in manufacture of Grills. That said Arun Kumar

goes for jogging at 05.00 a.m. or 07.00 a.m. That he and

his family members go to bed by 11.00 p.m. and wake up

at 06.00 a.m and go for walking for about 2 kms. That on

27.05.2009, he had reached the house at 09.30 or 10.00

p.m. That they do not close the main gate (not the one

seen in the photo marked as Ex.D-1) immediately after

returning home. That they close the gate by around 10.00

p.m. That they have let-out a shed on rent. That they have

not let-out one shed on rent. He further denies knowing up

to what time in the night there is movement of public in

their road. That they have retained one shed in the ground

floor and let-out one shed and they have also let-out one

shed to a friend. But he strangely does not know either the

name or address of that friend and that the rear room has

been let-out to Mahesh - PW-3. That they have not

executed any rent agreement with the said Mahesh and that

the said Mahesh has given advance of Rs.5,000/- and was

paying monthly rent of Rs.700/-. He denies the suggestion

that they have not let-out the shed to Mahesh. He admits

that though the said Mahesh is not known to him or his

family, they have let-out the house without any rental

agreement or without ascertaining the identity of the said

Mahesh. He further states that there are no other facilities

like kitchen, toilet etc. and that only a bath room is

available in the said shed. That there is one door and one

window in the said room. That the said window is near the

steps used by them to access their residential premises in

the first floor. He denies the suggestion that the said

portion/shed was used as a store room and not as

accommodation for living. That the said Mahesh had handed

over the room to the accused and the accused was staying

there. Thereafter, he admits that normally people would let-

out the house only to known persons. He denies the

suggestion that PW-3 had never brought the accused and

kept in his residence in the shed let-out to PW-3. That he

was not observing the accused coming and leaving the

shed. That on 27.05.2009, he saw the deceased and

accused near the house at about 09.45 p.m to 10.00 p.m.

That at about 10.15 p.m. to 10.30 p.m., they heard the

sound of altercation between the deceased and the accused.

That he along with his father, mother, one Arun Kumar and

his maternal uncle went out and pacified the quarrel. But he

does not know why his maternal uncle had come to his

house on that late hour. That on the third day, he got up at

about 06.00 a.m. and left for walking between 06.00 a.m.

and 06.30 a.m.

6. In the continued cross-examination, on

16.06.2010, he deposes that apart from the complaint, the

police have recorded his statement and then turns around

and states that apart from the complaint, he has not given

any statement to the police. In the continued cross-

examination, he states that apart form the complaint, police

have not called him to the police station and showed him

anything nor have they showed him the accused.

Interestingly, he deposes that on 29.05.2009, when he

went to the room allegedly occupied by the accused, he

does not remember if the door was locked or not, but

admits that when he visited the room on 28.05.2009, he

found the room locked and he assumed that the occupants

i.e., deceased and the accused must have gone somewhere.

He further admits that when he went near the room on

28.05.2009, he did not find any blood stains in the passage.

He further admits that he did not observe any blood stains

on the walls also. He further deposes that he informed

Mahesh about the altercation that took place on 27.05.2009

at 10.00 p.m. but at that time, the said Mahesh was not in

Bengaluru but had traveled to Tirupathi. He further deposes

that he does not know if he has intimated this aspect of the

matter to the police either in the statement or in the

complaint. That as PW-3 said Mahesh is a contractor, hence

it is possible that many people might be working under him.

He has further deposed that the said Mahesh (PW-3)

himself was paying the rents. That after Mahesh returning

to Bengaluru on 29.05.2009, they informed the police at

about 07.30 a.m. to 08.00 a.m. in the morning. That he and

PW-3 went to the police station and gave the information.

That at about three to four policemen accompanied them

back to the spot. That PW-3 wrote and gave the complaint

in the police station itself. He further elaborates by stating

that they did not lodge the complaint when they went to the

police station first time round and that the complaint was

lodged after the police came and visited the spot and they

accompanied them back to the police station. That the

complaint was written by PW-3 and he signed it. That

Mahesh read out what was written in the complaint. That he

and Mahesh were accompanied by two of the police, who

had visited the spot. He further interestingly deposes that it

is the police, who accompanied them back to the spot,

broke open the door of the room and thereafter they drew

up the mahazar regarding the position of the body. That

mahazar was drawn up at about 10.30 a.m. when he and

his brother-in-law were present. He denies the suggestion

that he is deposing falsely and implicating the accused only

to escape the consequences of finding of the dead body in

their premises. He further denies the suggestion that he

and his friend Mahesh have ensured that the accused

stands framed for the offence. In the continued further

cross-examination on 04.11.2010, he deposes that his

family comprises of six members and that apart from them,

there are no other residents in building. He further states

that out of two shops in the ground floor, one is retained

and one is given to their friend. He admits that in the shed

behind shops, they have installed a window facing towards

east. That when he first observed blood stains on the gate,

he was unaware as to whether it was human blood or

animal blood. That after he observed the blood, he

immediately informed PW-3 Mahesh. That he had spoken to

Mahesh a day before they discovering the body. That he

had informed him that the accused has brought somebody

calling her to be his mother. The Trial Court has recorded a

particular question specifically i.e., as below:-

"¥Àæ±Éß : D ªÀÄ»¼ÉAiÀÄ£ÀÄß vÁ¬Ä JAzÀÄ ºÉýzÁUÀ ¤ªÀÄUÉ ¸ÀA±ÀAiÀÄ §A¢vÉÆÛà E®èªÉÇÃ?

GvÀÛgÀ : D jÃw ¸ÀA±ÀAiÀÄ §A¢zÀÝPÉÌ £Á£ÀÄ ªÀĺÉñïgÀªÀjUÉ ¥sÉÆÃ£ï ªÀiÁr ºÉýzÉÝ. £ÀAvÀgÀ ªÀÄvÉÛ D ¥Àæ±Éß PÉýzÁUÀ ¸ÁQë ¸ÀA±ÀAiÀÄ §A¢gÀ°®è JAzÀÄ GvÀÛj¹zÁÝgÉ."

7. To the query as to whether the statement of the

accused that the lady (deceased) is his mother aroused his

suspicion, PW-1 answers in the positive and further

elaborates that only because they suspected the correctness

of the statement, he called up Mahesh at about 10.00 p.m.

and informed that the accused has brought some lady. He

further states that he and his father went out when they

heard the altercation and that his father questioned the

accused. That the accused was brought by Mahesh and it is

only then that the witness saw the accused. That he did not

contact Mahesh on the third day i.e., on 29.05.2009. That

both he and his father leave home at about 09.30 a.m. and

return by 09.00 p.m. to 09.15 p.m. That they made no

efforts to identify as to from where this stench was

emanating. That they casually informed Mahesh that some

stains are found. He admits that the locality where they

reside is a thickly populated locality. That they told the

police that they had observed some stains and asked them

to come and check stains. That two police constables

accompanied them back to the spot and after observing the

stains, they did not clarify as to whether the stains were of

human origin or animal blood. That it is the police

constable, who identified the source of the stench and

informed them that the stench is emanating from the

passage. Police constables broke open the lock. That they

did not draw a mahazar before breaking open the lock. That

he does not know what happened to the lock that was

broken but it is the police alone who broke the lock. That it

is the police, who entered room after breaking open the

lock. That neither he nor Mahesh entered room. That they

do not know what had occurred/happened within the room.

That he lodged complaint in the police station and before

lodging the complaint in the police station, he did not go

inside the house. That he has not, in his complaint,

mentioned as to the cause of death. That he saw the dead

body at about 08.30 a.m. That he did not instruct Mahesh

as to how to draft the complaint. That Mahesh drafted the

complaint and read it over to him and he simply signed the

complaint. That he does not know the nature of injuries on

the body of the deceased. That he does not know how the

deceased died. That he does not remember what time the

police arrived. That he and Mahesh accompanied police back

to the station. That he does not know the designation of the

police who accompanied him back. That the lock was broke

open and thereafter they went to the police station and the

door was kept open till they returned from the police

station. That he does not remember as to what activities

the police undertook inside the room nor does he know as

to what are the items seized by the police. It is elicited that

the seizure were not effected in his presence. That, apart

from his brother-in-law and Mahesh, a lot of people had

gathered there. That he does not remember as to whether

he has narrated the manner in which the crime was

committed while drawing up the mahazar. That he is not an

eye-witness to the incident. He does not remember at what

time the mahazar was drawn up. That when he affixed his

signature to the mahazar, body was not there. That even

before the police came and broke open the lock of the room

door, the news had traveled and all the neighbours were

aware of the same. That about 20 to 30 people had

assembled there. That the police locked the door and left

the place and that they returned by around 01.00 p.m. in

the noon. That the accused used to wear only t-shirt and

pant everyday. That accused used to wear black colour pant

only. That they stitched pant and shirt in their shop also. He

further admits that M.O.No-4 is not a t-shirt. He further

admits that such shirt and pant are commonly available in

the shops all around. He admits that there are no

identification marks on the shirt in order to assert that it is

the same shirt (implying it is the shirt that was seen by him

on the accused), he suggests that 38 size would fit the

accused and that he is able to say it because of his

professional experience as a Tailor. He admits that the pant

that is seized M.O.No-5 would not fit the accused but

clarifies that it used to fit him then i.e., on the date of

occurrence. To a further question, he admits that the

physical appearance of the accused has not changed

between the date on which the offence was committed and

on the date of his deposition. He denies that pant and shirt

belongs to him and had taken it from his house and handed

over to the police. It is elicited that even before the pant

and shirt had been seized, the body had already been

shifted. That none of the relatives of the deceased had

come to the spot. That he was not aware of the details of

the deceased till the body was removed from the house and

that he denies the suggestion that it was Mahesh, who was

occupying the room and not accused but admits that it was

Mahesh, who was depositing the rents. That Mahesh was

present along with him when the police came and broke

open the door. He further interestingly admits that when

Mahesh asked for keys, he reminded Mahesh (PW-3) that

the keys are with him at his house. That they have given

the keys for locking the gate. He denies suggestion that it

was Mahesh, who had come on the previous day and it was

Mahesh (PW-3), who had committed the crime.

8. One Ravi K. S., aged about 60 years is examined

as PW-2 and he is none other than the father of PW-1 and

the owner of the premises where the dead body was

discovered. He has been examined on 10.02.2010 and he

has deposed that he knows the accused. He states that one

Mahesh (PW-3) had taken a small room in the ground floor

on rent and he had informed that this accused would be

staying in the said room. That on 27.05.2009 at about

10.00 p.m. in the night, a quarrel ensued between the

accused and the lady. He further deposes that the deceased

lady might have accompanied the accused that night but

the quarrel took place outside the house. That they went

out and asked as to why they were quarreling to which the

accused responded that she is his mother. That he would be

sending back his mother in the morning. He further deposes

that three days thereafter when his son took their dog for a

walk in the morning, he noticed blood stains in the ground

floor and he went to the police station and lodged a

complaint and upon the complaint being lodged, the police

came and inspected the room. That they did not enter the

room and remained outside. That they saw the dead body

of the deceased at M. S. Ramaiah Hospital only. That they

observed injuries on the head of the deceased and the

tongue sticking outside. That the police recorded his

statement when he went to M. S. Ramaiah Hospital.

9. In the cross-examination, on 16.06.2010, he

deposes that the distance between his shop and his house is

about 2 kms and that he works till 09.30 p.m. in the night.

That he has his dinner after returning from his work and

thereafter he goes to sleep. That on the fateful day, he

returned about 09.30 p.m. and when he was washing his

limbs, he heard the sound of quarrel. That the gate in the

ground floor is at one end and the door in the first floor

where they reside is at the other end. That they can access

the ground floor gate only by traversing the space. That

when he was entering the house on 27.05.2009, he did not

observe anyone near the gate. He admits that he knows

Mahesh. He further admits that his son and the said Mahesh

(PW-3) are known to each other. That Mahesh was paying

rent of Rs.700/-. That Mahesh informed him that he is

executing civil works for the BBMP. That Mahesh had

informed him that there are lot many labourers working

under him. That his grandson's naming ceremony was fixed

on 28.05.2009 and that there was a lot of movement

because they were involved in the preparation of the

function. They did not pay much attention on 28.05.2009.

That on 29.05.2009, he woke up at 06.00 a.m. for a walk

and returned half an hour later and that he did not notice

the blood stains either while going or while returning from

the walk and he became aware of the blood stains only

when he was informed by his son. That his son, PW-1 had

not inform him about the room being locked on 28.05.2009.

The witness further clarifies probably because he was busy

with the preparation, his son had not intimated about the

room being locked. That he did not call and inform PW-3

about the quarrel that occurred on the night on 27.05.2009.

That he does not know if his son had informed Mahesh

about the same or not.

10. It is pertinent to note the statement elicited

during the cross-examination that it is PWs-2 and 1, who

went to the police station to lodge the complaint. It is even

more pertinent to note that he denies the suggestion that

they dictated the contents and Mahesh (PW-3) wrote it

down. He is not aware as to how many policemen

accompanied them back to home. He denies the suggestion

that they broke open the door and further states that it is

the police who broke open the door. It is pertinent to note,

at this stage itself, the variance in the statement of father

and son, PWs.1 and 2, where, the son deposes that the

police broke open the lock but the father deposes that the

police broke open the door. He further states that they

became aware of the dead body only when the door was

broke open. He denies the suggestion that a false narration

has been made against the accused only to enable them to

escape from the clutches of law.

11. In the continued cross-examination, on

26.11.2010, it is elicited that he was acquainted with

Mahesh (PW-3) only after the portion was given on rent to

him and he came to know that he was executing civil work

and was a contractor for the BBMP. That he does not know

as to how many labourers are working under him. That

Mahesh paid rent only one month. That he does not know

who all were accessing the rented out portion i.e., who all

were using or visiting the premises rented to Mahesh (PW-

3). It is elicited that he does not remember what dress the

accused was wearing on that day. It is further elicited that

because of his age, he has eye related problems and his

sight is diminished. That he went and observed the

bloodstains on being informed by his son, but did not try to

find out from where the stench was emanating. He states

that he went to the police station as his son and Mahesh

had gone. He states that Mahesh wrote down the complaint

on his instructions. That police visited the scene of offence

after receiving the complaint. That the door lock was broken

by the police in his presence. That he did not enter the

portion after the lock was broken. That after the lock was

broken, Mahesh was with the police. That he does not know

what the police did after breaking open the lock. That the

police did not enquire with him as to who is occupying the

house. That he did not know the age or name of the

deceased. He admits that it is illegal to let-out or rent-out

house or shop without entering into an agreement. That

Mahesh was putting off the signing of the agreement. That

he has not issued any receipt to Mahesh for having received

the rent. He states that when he contacted Mahesh (PW-3)

after a quarrel on 27.05.2009, Mahesh informed that he

was in Tirupati. He admits that the portion having been let-

out to Mahesh and it is Mahesh who is responsible for all the

occurrences therein. He admits that it is possible that

Mahesh might have lied to him about he being in Tirupati.

That he came to know from the public who had gathered

that death has occurred due to strangulation. That the dead

body was removed by 10.00 a.m. That after the body was

removed, none of the policemen remained in the spot. That

he does not know what are the articles that were seized by

the police. That after the dead body was removed, the

police did not return to the spot. That he went to see the

dead body at M. S. Ramaiah Hospital and saw body at about

12 noon. That the relatives of the deceased had gathered

in M. S. Ramaiah Hospital. That after seeing the dead body

in the hospital, he realized that death has occurred on

account of strangulation. That Mahesh remained with him in

the Hospital till all the procedures were completed by the

police. He denies the suggestion that quarrel that occurred

on 27.05.2009 is between Mahesh and deceased. He

denies the suggestion that he has seen the accused first

time after registration of the case. He denied the suggestion

that he has deposed falsely.

12. PW-3 has been examined on 10.02.2010. He

would depose that he knows the accused and that the

accused had approached him for work and that initially he

was staying with his brother and as the work site was

faraway, he requested his help and hence he got the portion

in the house of PW-2 on rent for the accused. "That the

room was next to the car shed in the rear side of the

house". That one day night, PW-2 called him on his phone

and informed him that accused had brought some lady and

was quarrelling with her and that the accused was

representing that the lady was his mother and asked him to

come over immediately and he replied that it would not be

possible for him and he said that he will come and enquire

tomorrow or day after tomorrow. Then again Ravi i.e. PW-2

called and informed him about observing bloodstains and

hence, immediately he rushed to the spot and he also

observed stench emanating from the premises and hence,

they decided not to touch anything and rushed to the police

station and thereafter the police visited the scene of

occurrence. That the police broke open the lock. That he

called the accused on his mobile, but the phone was

switched off. When the police entered the room he saw an

unknown woman lying dead and the face was completely

covered with the blood. That the saripallu was rounded

across the neck. The injuries were also found on the nose.

The body was removed and taken to M. S. Ramaiah Hospital

and that he accompanied the body to the hospital.

13. In the cross-examination on 27.07.2010, PW-3

admits he knows both the father (PW-2 Ravi) and son (PW-

1 Ashok) duo. That he got acquainted with PW-1 (son)

through a broker and that the broker introduced him to PW-

1 on his enquiry for accommodation. It is pertinent and

relevant to note at this stage itself that the statement of

PW-3 that it is PW-2 who contacted him on phone, is

contrary to the statement by PW-2 who has stated that it

was PW-1 who contacted PW-3 on the phone. That he

himself paid rent of Rs.2,000/- and put the accused in

occupation of the premises. In the cross-examination, he

states that he arrived from Tirupati on the morning of

29.05.2009. He states that he is not aware at what time he

received the call after returning from Tirupati, but they were

persistently calling on the phone. That their house i.e. the

house of PW-2 and PW-3 are situated in adjoining streets.

That he returned from Tirupati between 7.00 a.m. to 7:30

a.m. That immediately he reached the house of PW-2 by 8

a.m. and met both PW-1 and PW-2. That when he reached

there, the front gate was locked. To a suggestion that there

are two store rooms in the staircase, he replied he does not

know. He states that two of them went to the police station.

Even when they went to the police station the Iron Gate

was locked. He states that the police opened the Iron Gate

and entered the room. He denies the suggestion that the

accused was not known to him nor he was working with him

nor had he got the accommodation for the accused. He

denies having the keys i.e. the gate and the room keys. It is

pertinent to re-collect the deposition of PW-1, who has

stated in the cross-examination that he reminded PW-3,

that the key was with PW-3. In the continued cross-

examination on 05.01.2011 he states that he participates in

the tenders for execution of roads and drainage works

called by the BBMP. That he is a Class-III contractor. He

admits that it is required for a person to get registered with

the BBMP. He states that he has not got registered his

license. That he is taking and executing work as a sub-

contractor. It is elicited that if he is a registered contractor,

he is required to maintain the details of the number of

workmen, the salary paid to them, etc.

14. The Trial Court has recorded that the witness to

a query as to whether he remembers the date of

occurrence, has replied as 27.07.2009 and that during that

time he was working as a Mestry with one contractor by

name Anand residing in the 1st Block. That there were 14

persons working along with him, but he does not know their

names. That 2 to 3 months prior to the incident the accused

was working along with him. That the accused was not

known to him prior to that. The trial court has recorded

that while he was passing-by on the road, the accused

approached him and asked for work and he gave him work.

That the accused was working as Mason with him. To a

query he admits that to work as a Mason for executing the

BBMP works, experience is required. He admits that he has

not ascertained whether the accused is experienced in

executing Masonary work. It is further elicited that he did

not know from where the accused hails nor where he was

staying. That the accused was working with him and he was

paying him the salary but he does not have any material to

demonstrate the same. That PW-2 is not acquainted with

PW-3. That the father of PW-2 is also not acquainted with

the PW-3. He reiterates that it is PW-2, who called him and

he was in Tirupati when he received the call. That he had

traveled to Tirupati in his own vehicle. That he had

purchased tickets for Darshan of lord Tirupti Thimmappa

and the trial Court has recorded that there is no system of

ticket in Tirumala and only thumb print is taken and that as

Ashok had called him on the third day and that he does not

know the day of the week when he went to Tirupati (the

same in our opinion has some relevance because the dates

27, 28 and 29 of May, 2009 are working days of the week

i.e. Wednesday, Thursday and Friday). It is further elicited

that PW-1 merely informed him that some quarrel is going

on. That PW-1 did not mention anything about the stench

and he was informed about stench and smell only after he

reached the spot. That he was not aware why such a

stench was emanating. That on the ground floor there is a

small window and the smell was coming through the

window. Immediately both he and PW-1 went to the police

station. He states that it might be 8:30 or 7:30 in the

morning when he reached the police station and PW-1

lodged a complaint then itself. He admits that he wrote

down the complaint. It is further elicited that he is not

aware as to what has happened at the time of writing the

complaint. He was not aware what has happened in the

rented portion nor he was aware about the identity of the

dead person. He states that 3 to 4 persons accompanied

him and broke open the door. He states that he is not

aware as who were the persons working with him on the

day of the incident or on 27.05.2009 and that he does not

know the names of those who were working with him on

that day. It is pertinent to note the admission by PW-3 in

the following manner:-

"D ¢£À PÀÆqÀ £À£Àß PÉ®¸À £ÀqÉAiÀÄÄwÛvÀÄÛ".

15. Meaning thereby, 'on the said day also my work

was progressing'. It would not be out of place to record

here itself the peculiarity of the deposition of PW-3. He

admits that work was being executed even on the day of

the incident but he does not know who were the laborers

working with him. The deposition is also silent as to

whether the accused was working there or not. He can

remember the work that was being carried out but he

cannot remember the names of even a single co-worker. It

is interesting to note the further deposition. The admission

of PW-3, that he had not visited the worksite on the day of

incident and two days before the same assumes

significance. If that be so, then the period would be

between 25, 26 and 27 and it contradicts his statement that

he reached Bengaluru only on 29th and it is elicited because

of his absence from the site, he does not know who all were

working and or not working in the site. It is further elicited

that even before the police could come and break open the

door a large crowd gathered there. He denies the

suggestion that he was subjected to interrogation for the

whole day in respect of the incident. It is further elicited

that both he and Ashok discussed as to the nature and what

contents of the complaint ought to be and thereafter lodged

a complaint and then the trial court records that the witness

volunteers and clarifies that discussion is to mean and is to

be understood as PW-1 not knowing how to write Kannada.

He denies that he has contributed any material to the

contents of the complaint. The trial court records that

witness has stated that he does not know anything about

the incident and that he has written down only such

material as narrated by PW-1. It is elicited that police did

not prepare any Mahazar nor record any Mahazar before

removing the body. It is elicited that he and PW-1

accompanied the police to the mortuary. He further states

that they were there in the hospital till about 2 in the

afternoon. He states that he is not aware whether the

relatives of the deceased had come or not. That he has not

gone to the police station. Thereafter it is pertinent to note

that failure of PW-3 to mention about the presence of PW-2.

It is the categorical statement of PW-2 that he went and

saw the dead body in the hospital morgue. Incidentally PW-

2 did not speak about PW-3 also. It is strange that two

witnesses go to the same place for the same purpose and

are not aware about the presence of the other.

16. He further states that PW-1 and his house are in

the neighbouring streets and it takes about 8 to 10 minutes

to reach the other's place. It is elicited that he has not

nominated anyone else to supervise the work in his

absence. That he has been residing in the house for the

last year and half. He asserts that the accused had a

mobile phone and that he has spoken to the accused over

the mobile phone but it is elicited that he did not call back

the said Kumar to find out what was the reason for the

quarrel or who the lady was. He tried to call the accused on

the mobile phone at about 7 or 8 p.m. and that he made

two attempts but the phone was switched off. That on the

3rd day also he attempted to contact the accused but the

phone was switched off. It is elicited that he did not meet

Ashok PW-1 on the 3rd day. He proceeds to state that the

accused had not come to work on the day of the incident

and the 3rd day (this is self-contradictory). It is his

deposition that he was not aware as to who all were

working in his site in his absence and he has also not

appointed any supervisor to report to him. This is nothing

but a clear case of improvement. He further emphasize to

state that he came to know about the absence of the

accused two days thereafter. Proceeding further, he states

that he does not remember since how many days the

accused was attending to work. He further states that

salary is paid to the labourers on every Sunday implying

thereby, weekly payment system. If that be the case, then

at least kacha records would be maintained to mark or

record as to who all have worked on a particular day. If

that is so, no such record is either produced or seized by

the police. It is further stated by the accused that the last

payment was made by him to the accused on the previous

Sunday but he would state that he has not maintained any

records. He admits the suggestion that place where the

body was found is not a habitable place. He denies the

suggestion that he had taken the place to use it as a

godown. It is further elicited that he had not visited the

place of occurrence and he had been there for the first time

only when the body was discovered. He denies the

suggestion that the accused had never worked under him.

It is elicited that he had taken the portion on rent. The trial

courts records that he volunteers that there was no

occasion for him to take on rent as he is living in his own

house. He denies the suggestion that the deceased was a

co-worker and was working under him. He denies the

suggestion that he is responsible for causing the death on

the deceased.

17. PW-4 is one Malathi, elder sister of deceased.

She speaks about the husband of the deceased having

abandoned her one year prior to the incident and that her

sister was living with her. She is a hear-say witness and

she admits to having enquired with PW-2 about the murder

of her sister. In the cross-examination, she states that her

sister was working as a Cook in Shivajinagar and that she

used to leave at 06.30 a.m. in the morning and returned

back by 02.00 p.m. in the afternoon. She is not aware as to

what time the deceased left the house on 27.05.2009 but

an admission is elicited that the accused was identified to

her in the Hospital and she was told that he is the one, who

murdered her sister and that she has been informed by PW-

2 that the murder has taken place on 27.05.2009 and they

came to know about it only on 29.05.2009. The evidence of

PW-4 is of no avail to demonstrate the case of the

prosecution.

18. PW-5 is again another elder sister of the

deceased and is neither an eye-witness nor a circumstantial

witness and is again a hear-say witness. In the cross-

examination, it is elicited that she does not know to read

and write Kannada and she is not aware as to what the

police have taken down as her statement. It is further

elicited that the father and son duo i.e., PW-2 and PW-1

were in the Hospital and they pointed out accused and that

the accused was sitting in the Van.

19. PW-6 is the nephew of the deceased i.e., PW-4's

son. No incriminating evidence is let-in by this witness and

he is an hear-say witness. A crucial information is elicited in

the cross examination that the police called them on the

phone and informed him about the demise of his aunt.

20. PW-7, one M. Girish is a Mahazar witness. In the

examination-in-chief, he states that the accused was not

found at the place of occurrence but he saw the accused in

the police station. PW-7 is none other than the brother-in-

law of PW-2 and in the cross-examination, it is elicited that

he went to the place of incident on receiving call from his

brother-in-law (PW-2), who narrated about the incident

during conversation. It is elicited that he does not know

what was written down in the Mahazar. That he has not

read the same and that he did not go to the police station.

It is elicited in the cross-examination that the police asked

him to come back in the evening and that he went back in

the evening and signed the mahazar implying that he was

not present during the drawing up of mahazar and that it

was about 06.30 p.m. to 07.00 p.m., when he affixed his

signature to the mahazar. It is further elicited that the

mahazar had already been written. It is also elicited that he

does not know who are the police officers, who visited the

scene of offence. It is further elicited that he visited the

place on the request of his brother-in-law and nephew PW-2

and 1. It is further elicited that PW-1 has accompanied PW-

7 to the Court on the day of the cross-examination. It is

further elicited that he went to the house of PW-2 at 07.00

to 07.30 a.m. and by that time, large crowd had gathered

and more importantly, it is elicited that the police were

already there at the spot. More importantly, it is elicited

that he accompanied PWs-2 and 1 to the police station.

There is no mention of the presence of PW-3.

21. PW-8 is one Arun Kumar and claims to occupy

the residence being the third house from the house of PW-2

and on the opposite side (meaning that the house is

situated diagonally). He deposes about PW-2 owning the

house and he being a Tailor and that the family of PW-2

consists of himself, PW-2's wife, PW-1, daughter-in-law etc.

That the house was given on rent to one Mahesh i.e., PW-3

and he had permitted one of his workers to stay therein. He

identified the accused as the person, who occupied the

rented space. He speaks about the incident on the night of

27.05.2009. He further deposes that the accused identified

the unknown lady as his mother. That he saw the accused

leaving on the morning of 28.05.2009 but thereafter he did

not see him. That on the morning of 29.05.2009, he saw

crowd and police also standing there along with PWs-2 and

1 and when he went and enquired with them, he was

informed that a murder has taken place. That he went near

the room and saw the dead body of a women lying there

with the pallu of the saree tied around the neck. That the

place was blood stained.

22. In the cross-examination, he states he is residing

opposite to PW-2's house and that his house is situated next

to his factory and that he works in the factory till 8.00 to

9.00 p.m. That the entrance door of PW-2's house is visible

from their house. That on 27.05.2009, he heard a quarrel

and hence, he came out. It is elicited that his house and

PW-2's house are separated by 30 feet road and if the

inmates of PW-2's house speak, it is not audible to him. It is

further elicited that he is not aware as to what time PW-2

and PW-1 wake up or leave for work or come back home. It

is further elicited that he normally goes to bed by around

11.30 p.m. It is also elicited that he is not aware of any of

the activities of PWs-2 and 1. It is elicited that entrance

door of PW-2's house is near the stair case itself. He states

that the iron gate placed across the passage is visible to

him. He denies in the negative that PWs-2 and 1 have not

discussed about any of the matters with him implying that

there has been a discussion between them. That he goes for

a walk along with his dog at 06.00 a.m. to 06.30 a.m. That

Ravi and Ashok accompany him along with their dog and on

the said day also, PWs-2 and 1 had accompanied him for a

walk. It is further elicited that on 28.05.2009, a lot of

people had visited house of PW-2 on account of the function

organized by them. Ex.D1 is marked through this witness.

Ex.D-1 is a photo and he admits that the photo is of the

passage and iron gate installed in PW-2's house. The

witness further admits that it is the rear gate of PW-2's

house. In effect, it is elicited that the house of PW-8 is in

the street in front of PW-2's house. After confronting

witness with the photo at Ex.D-1, it is further elicited that

people visiting the rented portion or exiting the rented

portion are not visible and it is further elicited that he does

not know as to how many tenants are there nor their

details. He denies the suggestion that he has not seen the

accused there. It is further elicited that the police visited

the spot by 07.30 and on seeing them, he went over there.

He states that he does not know what the police have

written down nor does he know what are the articles that

were seized. This witness is not an eye-witness and

evidence is vitiated by inherent contradictions.

23. In the further cross-examination, it is yet again

elicited that he is not aware about the details of the tenants

occupying PW-2's house. A crucial admission is also elicited

wherein, the witness admits that he has seen the deceased

near the house on two or three occasions. It is elicited that

he is not a witness to the renting out of the premises to

Mahesh. He further states that the room measures 4 feet by

20 feet. He further admits that the said room is actually a

passage. He further admits it is not possible for any family

to habitat there. The Trial Court has recorded that the

witness volunteers to state that Mahesh was not residing

there. He pleads ignorance to the number of labourers

working under said Mahesh (PW-3). The Trial Court has also

recorded the conduct of this witness to a question as to

whether he was aware who was the tenant prior to

29.05.2009. It is further elicited that humans cannot live in

that passage like space. It is further elicited that when he

went and saw the dead body, police were already present.

To a suggestion that PW-3 was using the rented portion as

a godown, the witness says he is not aware. He denies the

suggestion that he is deposing falsely in order to help his

friend Mahesh (PW-3).

24. PW-9 is the Doctor working as Assistant

Professor in M. S. Ramaiah Hospital, where the Post Mortem

of the deceased was conducted and who has carried out the

potentiality test on the accused. The witness admittedly

speaks about an extra-judicial confession allegedly made by

the accused and undoubtedly in the presence of the police.

He deposes that he did not find any evidence to hold that

the accused is impotent and incapable of committing a

sexual act. Ex.P-5, P-3, 3 (a) and 3(b) are marked through

this witness and he identifies the accused as a person, who

he has examined and the police requisition is marked as

Ex.P-4 and signature is marked as Ex.P-4(a). The evidence

of this witness neither demonstrates a sexual assault nor

the murder.

25. PW-10 is the mahazar witness. He deposes that

police had brought the accused along with them and he has

affixed his signature to the mahazar. Some MOs are marked

through this witness. It is elicited that PW-1 Ashok is the

brother-in-law. It is elicited that PW-7 Girish is the brother-

in-law of PW-2 and was present along with him. That he

visited the house on receiving information from PW-1 about

the incident. It is elicited that MOs were neither sealed nor

stamped in their presence. That except signing mahazar, he

is not aware of the contents.

26. PW-11 is one Dr. N. T. Satish and is the Doctor,

who conducted Post Mortem. The police requisition is

marked as Ex.P-7. The witness speaks of marbling of veins

present over roots of upperlimbs, sides of chest and

abdomen, abdomen distended. Rigormortis passed off. Post

Mortem staining present over back. Dried blood stains

present at places over face. Nail beds shows bluish

discolouration clothes etc. Further Report says that no

injuries have been observed around the external genetelia,

spermatozoa absent in vaginal smear, however vaginal

penetration cannot be excluded and is concluded by an

opinion that the death is due to asphyxia as a result of

ligature strangulation. Ex.P-9 FSL Report is marked through

this witness. Ex.P-10 the test report regarding the saree is

also marked through this witness.

27. In the cross-examination, it is elicited that he

has not measured the circumferential measurement of the

ligature i.e., when the saree is twisted. He further states

that ligature mark completely encircles the neck. To a

specific query that the ligature would cut and would not

completely encircle the neck if saree is used as a ligature,

he states that he has not cross-checked that space. It is

further elicited that if the deceased had been subjected to

sexual intercourse, presence of spermatozoa would be

detected in the genitalia of the deceased. It is further

elicited that spermatozoa would be present for atleast four

days after sexual intercourse. It is further elicited that no

spermatozoa has been observed or detected in the body. It

is further elicited that if the assailant holds the tuft of hair

and assaults on the face, scars are likely to occur at

prominent places and would be visible. That he has noted

the injuries to the head under the heading 'scalp' in his

report. In the cross-examination, a critical admission is

elicited from this witness. He admits that in the Post-

Mortem Report, he has written that no injuries are observed

on the head and no external injuries are found on the scalp.

The Trial Court has recorded that the witness has

volunteered that after the skull was opened, he found

certain bleeding on the left side. He admits that he has not

written the shape of the contusion. The Trial Court has

recorded that at this juncture the witness has voluntarily

stated that the putrification of the body had started and on

account of that, the characteristics of the blood had started

changing and on account of that, it is not possible to

describe the shape and size contusion. He further deposes

that the blood in any dead body starts coagulating

anywhere between 6 to 8 hours. It is further elicited that if

anybody's tuft is held and head is banged against the wall,

it will result in fracture of the skull but in the case of the

deceased, no such fracture is found. It is further elicited

that as semi-digested food was found, it is not possible for

him to state about the nature of the food consumed by the

deceased. It is further elicited that it is not possible for him

to state as to how many hours before her death, she had

taken food. That he has used a rectal temperature method

to calculate the time since death. He states that he does not

know as to when and how for long the body was kept in

cold storage. It is further elicited that he does not know if

the body was inspected by any other Doctor before it was

directed to be kept in cold storage. It is further elicited that

on account of the body having been stored in the cold

storage, it is not possible for him to state the exact time

since death.

28. PW-12 is P.C.No.7689. He deposes that he was

in the morning duty in the station on 29.05.2009. The

Superintendent one Nanda Kumar gave a phone number

and told it is the number of the sister of deceased and

instructed him to inform her to come to M. S. Ramaiah

Hospital. That he called the said number and asked them to

come to M. S. Ramaiah Hospital. In the cross-examination,

he states that it is the Superintendent, who gave the name

of the sister of the deceased as Malathi and he does not

know who is the subscriber of the telephone number.

29. PW-13 is the ASI, who has been deputed to

secure the accused. He deposes that on 29.05.2009, the

police inspector instructed him and P.C. No.10385 to secure

the accused in Crime No.204/2009. That they went near J.

C. Nagar Garden Bar and enquired about the accused with

their informants. That at 02.30 p.m., they saw the accused

coming in front of the bar. On being identified by their

informants, they caught hold of him and enquired with him

about his name and address for which the accused is said to

have given his name as Kumar S/o Papanna and that he is

resident of a village near Srirangapatna. Thereafter, they

produced him before the Police Inspector and submitted the

Report and he identifies the accused as the person they

secured on that day.

30. PW-14 is one Vikas, a photographer. He deposes

that on 29.05.2009, he received a call from the

Mahalakshmi Layout Police Station informing him that a

murder has taken place and he was asked to come over to

snap photographs. That accordingly, he proceeded to the

spot and took photographs of the body.

31. PW-15 is one Rangegowda, Assistant Director,

Forensic Science Laboratory. He deposes that on

08.06.2009, Assistant Commissioner, Malleshwaram had

forwarded four sealed bottles in Crime No.204/2009 and

that seals were placed by the Medical Officer. He further

states that the presence of alcohol was detected in the

items kept in bottle Nos.1, 2 and 3. That, apart from the

above, no poisonous substance is detected. From the

evidence of this witness, it is pertinent to note that alcohol

has been detected by them in the body of the deceased.

32. PW-16 is the P.C.No.8505, who has taken and

handed over the samples. PW-17 is the Scientific Officer,

who has examined Mos.1, 2, 3, 4, 5, 6, 7 and 8 and has

deposed that blood stains were found on Mos.1, 3 and 4

and no blood stains were found on 2, 5, 7 and 8 and items

Nos.1, 3 and 4 are stained with human blood and item No.4

is stained with AB ground blood. The witness states that

blood group has been wrongly typed in the Report as 'B'

group. In the case sheet and observation sheet/case sheet,

it has been noted as 'AB' group. She further deposes that in

respect of MO.8, it has merely been written as hair and it is

not detailed as to whether it is pubic hair or scalp hair. The

witness has been subjected to searching cross-examination

and she would fairly admit that the error is a serious one

and amounts to dereliction of duty. It is also admitted that

she has not signed the note sheet. It is also elicited that the

'B.S. No.' to which she refers to, has not been found in

Ex.P-22.

33. PW-18 is the Investigating Officer i.e., Police

Inspector one Nagaraja .S. He deposes that he carried

forward investigation and seized MOs and PF No.44/2009. It

is elicited that the parcels/samples were not sealed in his

presence.

34. PW-19 is the Head Constable H.C.No.2340 and

he deposes regarding shifting of the body to M.S. Ramaiah

Hospital and handing over requisition to conduct Post-

Mortem and handing over the body to the possession of one

Smt. Malini, the sister of deceased.

35. PW-20 is a constable, who speaks about the

transporting the seized items. PW-21 is P.C.No.8341, who

speaks about transmitting the FIR by 11.30 a.m. to the

Court and that the time noted as 11.00 a.m. is erroneous

and that the same is on account of an inadvertent mistake.

36. PW-22 is Police Inspector/Investigating Officer.

In the cross-examination, he states that it was 08.00 a.m.

when the complainants reached station. It is elicited that he

does not know who all accompanied them to the police

station and that he has forgotten, who was the SHO on that

day. That he received information at about 08.00 a.m. and

thereafter he went to the place of occurrence and after

arriving there, he came to know of the details. It is elicited

in the cross-examination that somebody came to the station

and complained that a bad smell was emanating and they

do not know whether it is from the body of the dead animal

or human being. He further states that he does not know

who are the policemen that were deputed by the then SHO.

That the police personnel, who visited the spot reported to

him that dead body of a women is found and that he

suspected it to be a murder. On receiving that information,

he states that he visited the spot and registered FIR.

37. To a pointed question as to whether he enquired

with the owner of the premises prior to registering the FIR,

he answers that he enquired with the son of the owner one

Ashok i.e., PW-1. That enquiry was for about two minutes.

It is further elicited that even before he reached the spot,

the door of the room had been broken open and that even

before he arrived there, localites had assembled there. It is

elicited that he reached there at about 08.30 a.m. He

immediately drew up mahazar and the Trial Court records

that he voluntarily states that he did not draw mahazar

immediately because FIR had not been lodged. That he

returned back, registered FIR and thereafter, again

proceeded back to the spot between 09.30 a.m. to 09.45

a.m.

38. In the course of cross-examination, certain

specific questions have been posed. To a question as to

whether priority should have been to enquire and identify as

to who broke open the door or to record the statement of

the photographer or record the statement of the police

constable who was deputed to secure the address of the

deceased, Investigating Officer answers that he had only 1

¼ hour for investigation and hence, priority was to identify

who committed the murder but it was also important to

identify as to who broke open the door. The next question

as to whether there was any difficulty in investigating, as to

who broke open the door, the investigating officer answers

that due to paucity of time, he has not identified who broke

or opened the door. The questions posed and recorded by

the Trial Court are as below :-

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GvÀÛgÀ: ¸ÀªÀÄAiÀÄzÀ C¨sÁªÀ EzÀÄÝzÀÝjAzÀ £Á£ÀÄ ªÀiÁr®è."

39. He further states that when he reached there,

both PWs1 and 3 were present but he did not conduct any

enquiry at the spot. The Trial Court records that the witness

has volunteered and states that due to paucity of time and

on account of the fact that the witnesses were seeing

murder for the first time and having developed anxiety on

account of the milling crowds, he did not record their

statements immediately. It is further elicited that he

intimated a person to guard the scene of occurrence and he

further states that they locked the door and went but he

does not remember as to who is the person who was

guarding the place and to whose custody the keys were

given to. It is elicited that neither he nor the SHO have

recorded the locking of the door and the retaining of the

keys. He denies the suggestion that the complaint was

drafted on his dictation. He denies the suggestion that the

tenant was PW-3 Mahesh and further states that PW-3

acted as a middlemen and he voluntarily states that

accused Kumar was a tenant. He admits that it is stated to

the contrary in the complaint. He denies the suggestion that

PW-3 is a friend of his and that he is attempting to save his

friend. To state the least, this witness inspires no

confidence in this Court.

40. PW-23 is another Investigating Officer and he

has been subjected to searching cross-examination. PW-23

in his examination in chief, he has deposed that on

29.05.2009, he visited the mortuary in M. S. Ramaiah

Hospital and recorded the statements of sisters of the

deceased during the inquest. The above said inquest was

conducted between 11.30 am to 01.30 p.m. That when he

saw the dead body, eyes were closed, tongue was sticking

outside and he noted down the injuries found on the dead

body and there were injuries near lower part of the right

ears, upon cheeks, near the nose and also found bleeding

near ear and ligature marks around neck. That gold jewelry

on the body of the deceased and blood stained clothes,

were handed over to the sister of the deceased. That he

appointed ASI and P.C.No.10385 to trace the accused. That

they traced the accused and produced before him on 03.15

p.m. That he recorded the voluntary statement of the

accused, which is marked as Ex.P-11. Further he has stated

that the accused has confessed about the commission of

offence. Thereafter, he visited the spot and conducted

panchanama as per Ex.P-2 between 06.00 p.m to 06.50

p.m in the presence of panch witnesses. That he seized

MOs.1 to 5 and the same were identified by the witnesses

and on the same day, he recorded the statements of the

Ravi, Mahesh, Lokesh and Arun Kumar. On 30.05.2009, he

registered a blood sample and preservative vaginal swab

etc. at P.F.No.41/09 and same was marked as MOs.9, 10

and 14. On 29.05.2009, he visited the spot and prepared a

raw map, which was marked as Ex.P-33.

41. PW-23, during his cross examination, has

deposed that it was about 10.45 a.m. or 11.00 a.m when he

reached M. S. Ramaiah Hospital. That he had not seen the

case file and he has stated that 'it is true that if any heinous

crime has occurred at any place, duty of the police is to

inspect the place of occurrence'. That he does not observe

or remember, who all were present at the police station

when he returned back. He admits they broke open the lock

and entered the house without drawing up mahazar. He

states that he does not know the condition of the dead

body, they have taken photograph of the same. That

according to him they have not drawn any mahazar before

breaking open the lock and he does not know, who broke it

open. That he does not know who were deputed to guard

the place and the same is not entered in the file. He has

further stated that he did not seize the lock and he did not

recorded the statements of guards. That when he reached

the spot, i.e., around 05.30 to 06.00 p.m., 8-10 people had

gathered at the spot. He has stated that he did not prepare

raw sketch in the presence of panchas and has not stated

about the measurement of the room in the sketch. PW-23

has further stated that when he went to the room, he saw

the clothes of accused and DVD player and he has not noted

in the sketch with regard to the direction in which the head

of the dead body was there. He has further stated that he

did not seize the materials described in the Ex.P-16. Usual

practice in criminal case is that the police have to seize all

materials when they break open the lock and enter the

place of occurrence. He has further stated that he has not

secured any documents to show that the accused was

residing in PW-1's house as a tenant and also has not

secured any material to show that the accused was

employed under one Mahesh. He admits that whitener is

used to change the time in Ex.P-2. The evidence of PW-23

cannot be believed as it is full of omissions and

contradictions. Therefore, the evidence of PW-23 goes in

favour of the accused.

42. The deposition of the Investigating Officer PW.23

that accused was produced before him at 3.15 p.m. is

falsified by the deposition of PWs.2, 4, 5, 6, 7 that they had

seen the accused at about 12 noon sitting in the police van,

at the hospital itself along with the police. Even such a

glaring inconsistency is not noticed by the trial court. The

further deposition of this witness that he noticed injuries on

the body and near the lower part of the right ear, cheeks

and nose stands contradicted by the deposition of PW.11,

the doctor who conducted the post mortem and EX.P.8, the

post mortem report which do not disclose any injury. The

further admission in the cross examination that he does not

know who broke open the lock would also create a doubt in

the mind of this Court about the truthfulness of his

deposition. In all the deposition of this witness does not

create confidence as we find the ring of truth completely

absent and does not inspire confidence in us.

43. DW-1 is the accused and he has deposed on

30.07.2011 that he does not know the witnesses Ravi,

Ashok and Mahesh. That he resides in Belagola. That he was

residing along with his brother, brother's wife and his

mother and that the name of his brother is Devegowdachar,

who was working in a factory in M. G. Road and that his

brother is residing in No.166, Jaibhuvaneshwari Nagar,

Nandini Layout, Bengaluru. That he used to visit his brother

now and then and that on the said day, i.e., 27.05.2009 he

had come to Bengaluru and that he is married and on the

said date, he had come to visit his brother and incidentally,

he had gone to Garden bar and was consuming liquor with

Ravi, Raju and Ramesh and at that time, an altercation took

place and a quarrel arose between him and his friends at

which point, the police came and detained him and took him

into the custody and thereafter, he has been framed in the

instant murder case. That MOs.4 and 5 Shirt and Pant do

not belong to him. At this stage, the defence counsel has

sought permission of the Court to permit the accused to

wear the clothes and demonstrate to the Court that they do

not belong to him and on the Court granting permission, the

accused had worn MOs.4 & 5 and the Court has observed

that the shirt was very tight and pant was three to four

inches short than the normal length and it was also not

possible to zip up the pant and they were too tight around

the legs also.

44. The accused has been subjected to cross-

examination by public prosecutor. In the cross-examination,

he has stated the he does not know any job apart from

agriculture and that he does not know any particular job

and does not have any permanent address in Bengaluru. He

denies the suggestion that he knows masonry work. He

denies suggestion that despite not knowing masonry work,

he would go and ask for work with all "mestries". He denies

that he is acquainted with PW-3. He also denies that he

knew PW-3 was executing drainage work for BBMP and

hence, he requested him to give him work. He denies that

he was accommodated in PW-1's house on a monthly rent

of Rs.500/- and security advance of Rs.7,000/-. He denies

the suggestion that while he was staying as a tenant, on

25.07.2009, he had taken one lady by name Meena to his

house. In fact, entire prosecution version is put to him as

suggestion and stage by stage he has denied all the

suggestions. In fact, if suggestions are read, a new case is

introduced by way of cross-examination of the accused. He

denies knowing Arun Kumar. He denies the suggestion that

after going to jail, he has put on weight. He denies that he

had purchased MOs.4 and 5. He denies that it is MOs.4 and

5 were clothes he wore on the day he committed the

offence. In toto, the prosecution has not elicited anything

from the cross-examination of the witness of the accused

and he has withstood the cross-examination and nothing

adverse to his deposition is elicited. In fact one of the

suggestions is that he asked for work despite not knowing

masonry work. It is the defence that he does not know

masonry work.

45. Ex.P-1 is the complaint. In the complaint, PW-1

has stated that on 29.05.2009, when he came out to go for

a walk, he sensed a bad smell emanating from the room

rented out to the accused and he also observed blood stains

on the compound wall near the rear gate and having

observed the stench and suspecting foul play, he went to

the police station and expressed his doubt and thereafter,

he accompanied police back to the room, who broke open

the locked door and found the dead body and that the body

was of a woman, the accused had identified as his mother.

46. Ex.P-2 is the spot mahazar. Ex.P-3 is the Potency

Test Report, Ex.P-4 is the letter dated 29.05.2009

addressed to the Forensic Medicine Department, Ex.P-7 is

the police requisition to the conduct Post-Mortem, Ex.P-8 is

the Post Mortem Report, Ex.-P-10 is the Report from the

Department of Forensic Medicine, Ex.P-11 is the letter

nominating the SHO, Ex.P-17 is the FSL Report, Ex.P-18 is

again Report pertaining to handing over blood samples,

vaginal swab and hairs for analysis, Ex.P-19 is the Test

Report, Ex.P-21 is the acknowledgment by the FSL, Ex.P-22

is one more acknowledgment, Ex.P-23 is the Certificate of

examination issued by the State Forensic Science

Laboratory, Ex.P-25 is the Report by H.C.No.2626, Ex.P-26

is the letter dated 07.06.2009 addressed to the Director of

Forensic Science Laboratory, Ex.P-29 is the FIR, Ex.P-30 is

the Serology - Case Sheet and Ex.P-32 is the Inquest

Mahazar.

Contentions:

47. Learned counsel for the appellant would submit

that the appellant is innocent and that the respondent police

have framed the accused and have falsely implicated him in

the murder of said Meena. He would contend that there is

absolutely no material apart from the interested version of

PWs.1, 2, 3 and 8 to demonstrate any acquaintance

between the appellant and the deceased. He would contend

that there is neither motivation nor any eye witnesses and

in a case based on circumstantial evidence the trial Court

has treated the deposition of PWs.1, 2 and 8 as the gospel

truth despite it having been elicited in the cross

examination, that PWs.1 and 2 i.e., father and son and who

are the owner of the premises where the body was found

and PW.8 who resides opposite to their house were friends

and used to go for walking everyday.

48. He would further contend that appreciation of the

evidence by the trial Court is vitiated by perversity as every

circumstance in favour of the accused has been discarded or

explained away by the Court itself without there being any

evidence to the contrary. In this regard he would invite the

attention of the Court to paragraphs 8 to 13 and would

point out the findings rendered by the trial Court wherein

the trial Court has concluded that the accused has had

sexual intercourse with the deceased and he would invite

the attention of the Court to EX.P.8, the Post Mortem report

wherein no such opinion has been expressed by the doctor

who has merely recorded that vaginal penetration cannot be

excluded and the trial Court has rendered such a finding

despite the admission by PW.11, the Post Mortem doctor,

that no evidence of spermatozoa was found in the vagina.

He would contend that no DNA profiling has also been done

to demonstrate the allegations of sexual assault. He would

further take the Court through the post mortem report and

point out that the only finding rendered is that death is on

account of ligature strangulation and there is no other

material to demonstrate that a sexual assault has been

committed on the deceased. He would submit that it is not

even the case of the prosecution that the accused has

sexually assaulted the deceased and he would contend that

this alone is suffice to demonstrate that the conviction is a

moral conviction and not on material found on record.

49. He would further invite the attention of the Court

to the admission elicited in the cross examination wherein it

has been admitted by PW.8 the alleged independent witness

that it is not possible for him to observe the movements of

the accused in the alleged room and that the iron gate that

is visible in EX.D.1 and EXs.P.12 and 13 is situated on the

rear side of the house of P.W.2 and that the house of PW.8

is situated in front of PW.2's house and that being so the

trial Court despite the admission to the contrary has

accepted the deposition of PW.8 that he had seen the

accused leaving on the morning of 28th May, 2009, despite

the fact that the said witness PW.8 has admitted that the

movement of the accused is not visible from his house and

only the movement of PWs.1 and 2 is visible to him from his

house. He would submit that the incident and death of a

lady has had a overbearing effect on the trial Court and

resulted in a moral conviction.

50. He would contend that EXs.P.12 and P.13 if

appreciated in conjunction with EXs.P.14, P.15 and P.16 it

would clearly demonstrate that the murder has been

committed elsewhere and the body has been removed and

placed in the alleged room where it was found. Learned

counsel for the appellant would invite the attention of the

Court to EXs.P.15 and P.16 to point out that the blood has

oozed out of the body and that the oozing of the blood is

not on account of any cut or stab wound, but on account of

fibrinolysis. Elaborating further he would submit that

fibrinogen is the agent which helps in clotting of the blood

and the said protein is available in the blood plasma only till

there is life in the human body and once the life goes out

the said protein is not produced and the blood liquefies and

flows out of the natural openings in the body like ears,

nose, eyes and rectum and pointing out EXs.P.16 and P.15

he would point out that the blood has oozed out of the ears

and nose not on account of any head injury, but on account

of the above factor.

51. Elaborating further he would contend that the

absence of blood around the head clearly falsifies the

finding rendered by the trial Court that the accused had

banged the head of the deceased on the floor or against the

wall. He would submit that there is no dispute with regard

to the fact that the deceased has not suffered any cut or

stab wounds and that EXs.P.8 and PW.11 and the inquest

report clearly demonstrates that the victim has not suffered

any cut or stab wounds. In this regard he would place

reliance on the definition of 'fibrinogen', 'fibrinolysin' and

'fibrinolysis'.

52. Elaborating further he would submit that if this

material is appreciated conjunctively in the background of

the undisputed fact of blood stains on the wall near the gate

it would definitely go to show that the crime has been

committed elsewhere and the body has been disposed of in

the room and if that be so, it falsifies the entire prosecution

case of the deceased having stayed with the accused in the

said room. He would submit that the trial Court has

conveniently ignored this critical and crucial piece of

evidence and hence he would submit that the judgment and

order of conviction and sentence is unsustainable and the

appellant is liable to be acquitted.

53. He would take the Court through the deposition

of PW.8 wherein it has been elicited that the photo is of the

rear side of the house of PW.2, EX.D.1 has been marked

through PW.8 in the cross examination. He would submit

that even this fact has been glossed over by the trial Court

and appreciation of the evidence leaves much to desire.

54. He would then invite the attention of the Court to

EXs.P.12 and P.13 and contend that the blood smear found

on the walls and on the floor near the rear-gate clearly

demonstrates that the assault had taken place elsewhere.

He would contend that the smeared blood on the wall would

demonstrate that the body has been moved through the

gate and while the body was been moved the blood from

the body has got smeared on the walls. He would submit

that the trial Court has totally ignored this vital piece of

evidence and has omitted to appreciate the same and has

maintained a stoic silence, despite the learned counsel for

the defence having strongly canvassed the same.

55. He would contend that this by itself would suffice

to raise a doubt in the mind of the Court regarding the

veracity of the prosecution version. He would submit that it

creates a doubt about the place where the incident has

occurred. If prima facie, it appears that the incident is

committed elsewhere, then the Trial Court ought to have

extended benefit of doubt to the accused.

56. He would submit that the complainant's version

that the door was locked is a blatant falsehood and the fact

that the door could not have been locked is demonstrated

by the very position of the body as found in EXs.P.14 and

P.16. He would take the Court through EXs.P.14 and P.16

and would point out that the body is well above the bottom

door-frame and he would also invite our attention to the

fact that the right leg of the deceased which is in a crooked

position. He contends that it would have been impossible

for the leg to be in front of the door and that the door would

have been in front of the leg and not behind the leg as the

door opens from outside to within.

57. He would further take the Court through internal

page 10 of the judgment where the trial Court has drawn a

hypothesis that death could have been caused by hitting the

head of the deceased either against the wall or the floor and

that the finding is supported by the reasoning that death

could have been caused in that particular manner merely

because the body was found lying on the floor. He would

submit that this is not even the case of the prosecution that

death has occurred on account of head injuries.

58. He would yet again take the Court through

EX.P.8, post mortem report wherein it has been recorded by

PW.11 that no injuries are found on the head. He would

also take the Court through cross examination of PW.11

wherein it has been admitted by the doctor that if the head

is banged against the floor or wall it could result in fracture

of the skull and it is further elicited that no such fracture

injury is found. He would submit that it is yet again one

other ground which goes to demonstrate that the Court has

been carried away by the nature of the crime and the sex of

the victim.

59. He would fairly submit that he is not disputing

the finding that it is a homicidal death, but merely the

accusation that it is the appellant who committed the crime.

He would sum up to state that the trial Court has adopted a

preponderance of probabilities approach rather than proof

beyond reasonable doubt.

60. He would take the Court through the findings in

para 10 of the judgment to contend that a circumstance and

evidence which is in favour of the accused has been

negated on the short ground that there has been no cross

examination of the FSL expert. He would take the Court

through the EXs.P.17, the FSL report and the deposition of

PW.15, the FSL expert and the findings recorded in para 10

wherein it is stated that alcohol contents found in the body.

He would contend that no material whatsoever has been

seized to demonstrate that the accused or the deceased had

either purchased alcohol or had consumed it in the said

room. Neither any alcohol bottle nor any containers used to

consume the liquor has been found in the place where the

body was traced. He would contend that this is one other

circumstance which raises a doubt as to whether the

incident actually happened in the said place.

61. He would take the Court through EXs.P.14 and

P.16 and would point out that there is not even a bag that is

found in the photos. If the accused was indeed residing

there atleast a bag containing his clothes should have been

found, if not other daily necessities. He would submit that

there is nothing to show that daily consumables like tooth

paste/tooth powder, tooth brush or body soap have been

found. It is not the case of the prosecution that all this

evidence has been shifted or destroyed. He would contend

that if the accused was indeed residing there, the above

items are the minimum which would have found a presence

therein.

62. He would submit that the conclusion of the trial

Court that the said place has a bath room is unfounded

when there is no evidence to demonstrate the same. He

would submit that none of the witnesses either have

deposed nor has any other form of materials in the form of

photograph or a building plan placed to demonstrate that

there indeed was a bath room constructed in the said place

which is more like an alley or a passage and muchless the

availability of a water connection or a drain-pipe.

63. He would contend that the very fact that the

accused has categorically stated that he is not acquainted

with either PWs.1, 2 or 3 and the fact that his brother's

house is nearby and that he does not know masonry work

have all been simply brushed aside by the Trial Court and

despite the fact that the accused has been subjected to

lengthy and searching cross examination by the public

prosecutor and nothing worthy or adverse has been elicited.

It should have caused the Court to take a closer look of the

prosecution evidence. He would contend that this fact alone

would suffice to raise a doubt in the version of the

complainant and PWs.1, 2 and 3.

64. He would submit that the very denial of

acquaintance with PW.3 should have alerted the trial Court

to more closely scrutinize the evidence of PWs.1, 2, 3 and

8. He would contend that apart from a self serving

statement of PW.3 that he was in Tirupati no material has

been placed to demonstrate that PW.3 was actually in

Tirupati to have the darshan of lord Balaji. He would

contend that it has been elicited in the cross examination

that darshan tickets are issued and that he had a darshan

after obtaining tickets and that he has also given his thumb

impression. He would contend that the prosecution could

have easily summoned and demonstrated the correctness of

his statement. He would contend that it has also been

elicited in the cross examination of PW.3 that there is no

material to demonstrate that accused was in the

employment of PW.3. He would take the Court through the

cross examination of PW.3, wherein it is admitted that he

has not maintained any register or any other material to

show that he is a contractor executing works on behalf of

the BBMP and in fact it is admitted that he is working as a

sub-contractor and later has admitted that he was working

as a mestri (head-mason) under a contractor. The learned

counsel would contend that this embellishment itself would

suffice to demonstrate the falsity of the deposition of PW.3.

65. He would contend that the best and direct

evidence of C.D.R.s have not been either looked into nor

placed before the Court by the Investigating authorities. He

would find fault with the trial Court for accepting the

statement of PW.3 that he was in Tirupati and that when he

attempted to call the accused on his mobile the same was

switched off as the gospel truth. The phone numbers of the

accused and PW.3 being available the prosecution could

have simply obtained the same to ascertain the location of

the subscriber. Elaborating further he would contend that

the very fact that the mobile of the accused was switched

off probablizes the defence of the accused that he was in

the custody of the respondent police as early as in the

afternoon of 27th May, 2009 and if that be the case the

entire prosecution version based on the alleged deposition

of PWs.1, 2 and 8 that the accused had an altercation with

the deceased in the night of 27th May, 2009 is rendered

false. He would contend that the trial Court has failed to

appreciate all these circumstances which clearly goes to the

aid of the accused.

66. He would contend that the Trial Court has relied

on several rulings which are inapplicable to the facts of the

case. He would submit that no doubt the principles laid

down by the Apex Court and this Court, while rendering

those judgments, have stood the test of time, but the fact

remains that the trial Court failed to appreciate whether the

rulings are applicable in the facts on hand and that a

conviction cannot be on the basis of aforesaid principles

unless and until it is categorically demonstrated that they

apply all force in the facts of each case.

67. He would further contend that the trial Court has

merely glossed over the embellishment and inconsistencies

and improvements by the witnesses and hence would plead

to set aside the judgment of conviction and set the

appellant at liberty as this is not a case of no-evidence but

clearly a case of false implication.

68. Per contra, the learned HCGP would vehemently

reiterate the findings of the trial Court. He would contend

that the Investigating Officer has carried out an

investigation diligently and would take the Court through

the deposition of the police constables who have been

deputed to arrest the accused. Elaborating further he would

submit that there is reasoning by the trial Court which is

backed by the material on record and does not call for any

interference. He would further contend that minor

embellishments or contradictions need to be ignored if

substantial truth has been established. He would further

contend that if such offenders are let off it would send a

wrong message to the society and that it is a case where

the crime has been committed in an inhuman manner and

the appellant does not deserve any sympathy. Accordingly,

he prays for dismissal of the appeal.

Points for Consideration:

69. In the above facts and circumstances and having

perused the material on record and after having heard the

learned counsel, the points that arises for consideration are,

(i) Whether the prosecution has proved that the

appellant had brought the lady to the room

situated in the premises at 6th cross, 6th

main, Kurubarahalli, J C Nagar, on 27.5.2009

at 10.00 p.m. and on her refusal to have

sexual intercourse banged her head against

the wall and strangulated her and caused her

death?

(ii) Whether the judgment and order of conviction

and sentence is legally sustainable?

Both points are taken up together for consideration.

Appreciation of Evidence:

70. We have heard the learned counsels and perused

the material on record and given our anxious consideration

to the various contentions canvassed.

71. Admittedly, this is a case of circumstantial

evidence and last seen theory and there are no eye

witnesses. In the absence of ocular evidence it is settled

law that motive plays a vital role. Admittedly the motive

attributed to the accused is that he committed the crime on

account of the fact that the deceased failed to comply with

his demand for sexual intercourse.

72. That angered by her refusal the accused

physically assaulted her and thereafter strangulated her.

The motive attributed presupposes the existence of, either

of two facts - (1) that the deceased and the accused were

acquainted with each other where the deceased had the

confidence in the accused to join his company or (2) that

the deceased, who was a sex worker joined the company of

the accused to the extent of satisfying the sexual desire of

the accused or the deceased was a sex worker and the said

fact was known to the accused and he took advantage of

the same and invited her to his place for stay.

73. We have carefully examined the evidence in this

regard. There is not even a whisper by any of the

witnesses that either the deceased and the accused were

well acquainted with each other or that the deceased was a

sex worker and which fact was known to the accused. This

in our opinion is the first missing link in the chain of

circumstances that are need to be established to render a

finding of guilt. On the other hand, except for the relatives

of the deceased i.e., PWs.4, 5, 6 and 7, none of them have

even spoken about being aware of her existence muchless

about her personal life or her source of earning or

avocation. On the other hand PWs.4 to 7 who are her

sisters and nephew have categorically stated that till one

year before her death she was in the company of her

husband and that her husband deserted her only about a

year before her death and that the deceased was living

independently and was employed as a cook in Shivajinagar,

thereby implying that the deceased was making her

livelihood through lawful means. In fact it has come out in

the evidence of PW.4 that the deceased would leave the

home by 6.30 a.m. and would return late in the afternoon.

It has also come out in the evidence that the accused also

would leave home in the morning and come in the night. If

that be so, it was imperative for the prosecution to

demonstrate the fact of acquaintance between the accused

and the deceased. The fact that she was working as a cook

is not disturbed and remains. If that is the admitted

position, then it would be disrespectful to the deceased to

presume that she was indulging in unlawful activity of

prostitution.

74. If viewed in this background, the question arises

that whether any prudent man would approach any stranger

and off-hand demand for sexual favours in return for

consideration. Such behaviour is neither common nor

logical and no prudent man would approach a person who is

a complete stranger and demand for sexual favours for

consideration and if any such demand is made to a person

who is not a sex worker then the same would result in the

person creating a hue and cry and even assaulting the

person. As any such demand would definitely hurt the

dignity of the person as it is per se insulting and a

denigration of the character of the person approached. If

that be the case, then the only alternative is that both the

deceased and the accused ought to have been well

acquainted with each other. We deem to say so as common

sense and logic would say that no prudent person would

have courage to demand for sexual favour from a person

who was merely acquaintance. In this regard neither the

prosecution nor the witnesses have spoken either about the

accused being acquainted or the deceased been a sex

worker. In the absence of the above facts being established

the prosecution theory of the accused having invited the

deceased or the deceased having accompanied the accused

to the premises where the body was found becomes

questionable. This is the next break in the chain of events.

75. The implication is that the very presence of the

deceased near the house while she was alive comes under

the cloud. The blood stains on the wall near the gate and

the manner in which the blood has oozed out and the

position of the body if appreciated together clearly creates a

doubt as to whether the incident had really occurred in the

manner and in the place as canvassed by the prosecution.

The blood stains on the wall near the gate are demonstrated

by the photo produced by the prosecution. This has neither

been explained by the prosecution as to how the blood

stains have come there nor has this crucial fact been

appreciated despite the same being pointed out to the Court

by the defence. This is the next break in the chain of

events.

76. The very genesis for the prosecution story is the

blood stains noticed by PW.1. It is the case of the

complainant that he observed the blood stains only on the

morning of 29th May, 2009 and that coupled with the smell

emanating from the room caused him to approach the

police. The fact that blood stains were found only near the

gate and in the room clearly creates a doubt in the mind of

the Court. More so, when appreciated in the background of

the medical condition of fibrinolysis and fibrinogen, as

canvassed by the learned defence counsel. Butterworths

Medical Dictionary defines 'fibrin', 'fibrinogen' and

'fibrinolysin' and 'fibrinolysis' as under:

" 'fibrin' - An insoluble protein formed from the

soluble protein of blood-plasma fibrinogen by the

action of the enzyme, thrombin. The formation of

fibrin is the fundamental process of the clotting of

blood. Canalized fibrin. A stratified deposit of a

fibrin-like material upon and within degenerate

placental villi. Myosin fibrin. The insoluble form of

myosin formed in salt solution or in water on standing.

Stroma fibrin. Fibrin obtained from lysed

erythrocytes. (L fibra fibre).

"fibrinogen' - (fi-brin'o'jen). A soluble protein

of the globulin class which occurs in blood plasma and

is converted into an insoluble protein, fibrin, in the

clotting process. Dried Human Fibrinogen BP

1973. A dried preparation of the soluble protein of

liquid blood plasma, which is formed into fibrin by the

addition of human thrombin. (fibrin, Gk genein to

produce).

"fibrinolysin" (f-brin'ol'is'in). - An enazyme

formed after death and rendering fluid the blood clot

formed in the body either within the blood vessels or

in the tissues. (L fibra fibre, Gk lysein to loosen.)

"fibrinolysis" (fi'brin'oi'is'is). The partial

decomposition or dissolution of fibrin by the action of

fibrinolysin. "

77. On a reading of the above definitions it is

apparent that on account of the medical condition called

'fibrinolysin' the blood looses its character to clot rendering

the blood fluid and thereby resulting in the blood oozing out

through the natural recesses in the body like ear, nose,

etc., In fact the photos EXs.P.14, P.15 and P.16 if read and

appreciated in conjunction with the post mortem report and

the inquest report (EX.P.32) it clearly demonstrates that the

blood has oozed out from the nose, ears and the presence

of the blood near the hip region of the dead body would also

indicate that the blood has oozed out through the rectum

and the arguments of the appellant counsel in this regard

merits consideration.

78. We have carefully scrutinized the evidence of

PW.11, PW.17, PW.22 and PW.23. There is absolutely no

explanation for the presence of the blood despite the

absence of any cut or stab injury wounds suffered by the

deceased. There is absolutely no explanation for the blood

found on the wall and floor, near the gate. These are

crucial aspects of the case which the trial Court has failed to

appreciate.

79. One other crucial aspect which has been glossed

over by the trial Court and which in our considered opinion

breaks the link in the chain of circumstances is the M.O.s.4

and 5 i.e., the pant and shirt allegedly seized by the police

under the mahazar EX.P.2. With regard to the recovery and

drawing up of the mahazar it has been elicited in the cross

examination of PW.2 that the police did not return to the

premises after they removed the dead body which allegedly

happened in the morning itself by around 10.00 a.m.

whereas under EX.P.3 it is claimed that the mahazar was

drawn in the evening between 6.00 p.m. and 6.50 p.m. It

is pertinent to note that PW.2 is none other than the father

of the complainant and owner of the premises where the

body was found. The relevance of this admission has been

totally ignored and the defence contention, that the

appreciation of evidence by the trial Court is vitiated by

perversity (page 6 of the cross-examination) is not

unfounded and merits consideration. The trial Court has

also failed to appreciate the evidence of PW.1 that no

mahazar was drawn when the police seized the MOs.4 and 5

i.e., pant and shirt. The other crucial admission which goes

in favour of the accused and which has been ignored by the

trial Court is the admission by PW.1 that they stitch similar

pant and shirt in their shop also. The further admission

with regard to MO.5 is elicited in the following manner:

"FVgÀĪÀ DgÉÆæ ¸ÉÊfUÉ FUÀ vÉÆÃj¹zÀ ¥ÁåAmï ªÀÄÄzÉÝ ªÀiÁ®Ä 5 DUÀĪÀÅ¢®è JAzÀgÉ ¸Àj."

80. The demeanor of the witness is also recorded by

the Court wherein he has volunteered to state that the pant

used to fit the accused then, but now it does not fit him

because of his prison stay. The said explanation which is an

improvement, has been blindly accepted by the Court

despite it observing that the length of the pant was short by

several inches and the pant could not be zipped up also.

Assuming for argument sake that a person would put on

weight after going to prison, it is impossible to believe that

a person will grow several inches once he cross beyond

certain age. Admittedly, the accused was aged 23 years

and it is common knowledge that persons of that age do not

add inches to their height and that too several inches. Be

that as it may, it was an information that the Court could

have easily got verified from the prison authorities.

Whenever a person is taken to the prison, a physical check

up of the person, including the height and weight of the

under trial is recorded. Instead of presuming such

improbable fact the trial Court could have easily called for

the information from the prison authorities and found out as

to whether he has added weight or grown by several inches.

The trial Court has categorically observed that the pant was

several inches short and does not fit the accused. Adding of

inches horizontally is possible, but not adding of inches

vertically. The perversity in the appreciation of the evidence

is demonstrated by this fact alone. The trial Court reasons

that the prison stay has helped the accused to add inches

both horizontally and vertically, which any prudent person

would disagree with. The recovery of MOs.4 and 5 is

rendered suspicious and in our considered opinion cannot be

held to have been proved in a manner known to law.

81. Nextly, we find substance in the contention of

the learned counsel for the appellant that the theory of the

door been closed and breaking open the door is a false

narrative. In this regard we have closely examined

EXs.P.14 and P.16, the photographs marked on behalf of

the prosecution. From the photos it is unambiguously clear

that the door could not have been opened at all. The body

is so positioned that the head is near the bottom frame of

the door and the torso is along side the door and in fact the

right let is in a crooked position, that is, it is raised and bent

at the knee. The head and body are several inches above

the bottom frame of the door. The door is a wooden door

with the body in that position. It would have been

impossible to open the door, without either door suffering

damages or damage to the body, more so when it has come

out in the cross-examination of PW-11 that the body had

started putrifying. The photos do not disclose any scratches

on the body also which would have definitely been caused if

the wooden door was forced across the face and body.

82. In fact, the complainant and other two witnesses

i.e., PWs.2 and 3 have narrated that the door was locked

and the lock was broken open by the police. If the fact of

the door being locked is correct, then the right leg which is

in a raised position would have been behind the door and

not in front of the door. The height at which the door is

situated makes it abundantly clear that it would be

impossible to open the door without the door pushing the

body away from where it is found. The photos clearly show

the body position to be very close to the door and hence in

our considered opinion, the trial Court could not have

accepted the prosecution version of a locked door. If the

door had been opened as noted supra, the right leg would

have been behind the opened door and not placed against

the door. The photos clearly falsifies the statement of the

witnesses that the room was locked and the police broke

open the door. This one other break in the chain link.

83. Further there is no photograph or other material

placed by way of mahazar or permission to break open the

lock. In the absence of such corroborative material the trial

Court could not have blindly accepted the version of PWs.1,

2 and 3 that the door was locked.

84. In fact the admission by PWs.1, 2, 3, 8 and IO's,

that a large crowd had gathered even before the police had

arrived, should have alerted the Court to scrutinize the

material even more closely. The Court should have atleast

gone into and appreciated as to whether it was possible for

the locked door to be opened, keeping in view the position

of the body. The position in which the body is shown lying

in the photographs makes it impossible to accept the theory

that the room was locked.

85. That apart, no explanation or reason is given for

the congregation of the localites and that too at that

particular point of time that is early in the morning by 7.30

a.m. The inference that can be drawn is that the body was

seen by the localites and the word having spread the crowd

had gathered. Neither PW.1 nor PW.2 nor PW.3 have even

whispered of having informed anybody muchless the

neighbors about the body or stench emanating from the

room.

86. Another strange aspect of the case is that the

stench of a dead body is felt and sensed only by the

witnesses and strangely none of the neighbors seem to

have noticed it. This factor also raises doubts about the

complainant's version. As held by the Apex Court, in the

absence of ocular evidence, oral evidence should carry a

ring of truth around it, which in our opinion the trial Court

has miserably failed to appreciate.

87. The next aspect which troubles us is the absence

of even elementary proof to demonstrate the employment

of the accused by PW.3 and this was a vital link that was

required to be demonstrated. There is absolutely no

material placed to even demonstrate that PW.3 is a

contractor, muchless capable of employing labourers and

paying salaries. The wage of a mason even in those times

can safely presumed to be around Rs.1,000/-, which is not

a small sum. There is no seizure of any money or currency

from the possession of the accused despite the evidence of

PW.3 that he had paid him the wages of the previous week.

88. This is one another lacuna which creates doubts

about the prosecution version. The trial Court has accepted

the prosecution version that the accused was employed by

PW.3 even without any corroborating material. As noted

above, there is nothing on record to demonstrate that PW.3

is a contractor and the accused was in his employment.

The simplest and straight forwarded way would have been

to scrutinize the banking documents of PW.3 to

demonstrate his capacity and means to employ other

labourers or in the alternative he could have also got

examined any other laborer employed by him to

demonstrate the employment of the accused by PW.3. The

mere statements of PWs.1, 2 and 3 has been accepted as a

gospel truth without there being any corroboration. In fact

PWs.1 and 2 have denied the suggestion that the room was

taken on rent by PW.3 for use as a godown to stock his

material. On the other hand, an admission is elicited from

the mouth of PW.3 that he is a mastry, in other words, a

head mason, implying that he himself is merely an

employee and this fact is also admitted by PW.3 himself,

that he is a 'mestri' under one contractor Anand. If that be

so, to state that the accused was in his employment is too

far fetched and appears to be a false story.

89. The least that was required on the prosecution to

demonstrate that PW.3 was indeed executing civil works, be

it either as a sub contractor or as a contractor to atleast

probablize the capacity and need of the PW.3 to employ the

accused/appellant. This was the least fact that was required

to be proved to either hypothise or probablise the fact of

employment of the accused by PW.3.

90. We are shocked to note that the trial Court has

blindly accepted the statement of PW.3 that he is a

contractor or mastry and that he was in Tirupati on

27.5.2009 and that he arrived to Bengaluru only in the

morning of 29.5.2009 which are all facts which were

required to be demonstrated. More so, when pointed

suggestions have been put to the witnesses i.e., PWs.1, 2

and 3 that it is PW.3 who is culpable of the crime detected.

On the contrary the trial Court has rejected the assertion of

the accused that he is not acquainted with PW.3 on the

short ground that the defence has not proved that the

witness had gone to Tirupati. Nothing could be more

demonstrative of the perversity than this reasoning.

91. The burden is cast on the person asserting the

fact to prove that fact. If it is the case of the prosecution

that PW.3 was in Tirupati then the burden was on the

prosecution to demonstrate the said fact. In the absence of

proof of the said fact the trial Court could not have held that

the defence has failed to disprove a fact which has not been

proved at all. Unless the initial burden of demonstrating the

fact is discharged by the person asserting it, no onus rests

on the opposite party who disputes the same to rebut or

disprove the same.

92. The other crucial fact that has gone unnoticed

and unappreciated by the trial Court is the address where

the brother of the accused was residing. It would indicate

that the brother was residing in a neighboring locality. If

that be the undisputed fact, as nothing adverse has been

elicited, then the version of PW.3 that the accused sought

accommodation because his brother's residence was far

away is patently false. The distance from the place and the

address where his brother was residing appears to be only a

couple of kilometers and are well connected by public

transport systems. None of this has been looked into or

appreciated by the trial Court.

93. One other aspect which the trial Court has failed

to appreciate is that even as per the so-called voluntary

statement of the accused. There was an altercation between

him and the deceased which should have clearly raised

curiosity in the neighbors and the landlord who was residing

above. But the evidence of PWs.1 and 2 who were residing

in the same building is blissfully silent about the same.

EX.P.11 indicates that she was capable of putting up

resistance. If that be so it would have been reflexive of the

deceased to atleast dig her nails and cause injury to the

accused, which is not the case. The prosecution has also

failed to explain as to how or where the deceased had

consumed alcohol and food. Apparently, the photographs

do not disclose any material to even suggest that food could

be cooked or atleast consumed there. Though the photo

would show the small chit and a purse neither have been

seized and marked. More importantly what the trial Court

has overlooked is the admission of PW.1 that keys of the

room were not with them and one set of keys were with

Mahesh, PW.3. If the keys were available with PW.3, then

the necessity to break open the lock raises a question and

that too when the houses of PW-2 & PW-3 are only a few

minutes apart. That apart we see that even the mahazar

witnesses are close relatives to PWs.1 and 2 and the said

witnesses have admitted that they were called over to the

said place by PWs.1 and 2 over phone.

94. The inmates themselves were not aware of

anything but a large crowd had gathered. This fact signifies

that the fact of murder had already become public. If the

door was locked, as claimed by the witnesses, the fact

would not have become known to the public. The gathering

of the crowd is also admitted by PW-1 and 2 also. This fact

alone is suffice to render false their statement that the door

was locked and was broken down.

95. The failure to call the accused to ascertain facts

is contrary to the normal human conduct. He being the

employer (as claimed) and he having received a call from

the landlord, complaining about the alleged quarrel and

suspicion about the relationship between the accused and

deceased, normal human behaviour would have resulted in

atleast a phone call to the accused, to atleast ascertain the

identity of the stranger, if not for admonishing him. It is not

a case that he was too busy rather he was on a holiday in

Tirupathi.

96. The statement/admission by PW-3 that he was

making weekly payments has some significance. Because, if

it was so, it would have been imperative to maintain atleast

a 'Kacha' attendance register, in order to calculate the total

wages to be paid at the end of the week.

97. The admission by PW-8, that he is not aware

when PW-1 and 2 leave the house or return back is critical.

If he is unable to see the front door of PW-2's house and

the people entering or leaving, then his statement that he

saw the accused leaving on 28.05.2009 is a complete

falsehood as the rented portion can be accessed by the rear

gate and it would not at all be visible to him. This admission

if appreciated in conjunction with the admission that he

does not know the details or the names of the other

tenants, would render the testimony suspect. We find it

rather strange that all witnesses uniformly remember about

and know everything about the Accused, but not the

faintest idea about the other Tenants.

98. The Trial Court has, for reasons best known to it,

ignored the glaring inconsistencies elicited in the cross-

examination of PWs-1, 2, 3 and 8 and has tried to make out

a case where none existed. The appreciation of evidence by

the Court more so, in respect of the testimony of PW-8 is

nothing but a leap of faith. The Court notes him to be an

independent witness and accepts his version that he has

seen the accused on 28.05.2009. It has been elicited in the

cross-examination that he cannot see the rear gate as

found in Ex.D-1 and which admittedly is the gate that can

be used to access the alleged room where the body was

found. The Court has also not given reasons as to why it

has failed to appreciate the case canvassed on behalf of the

defence that the presence of blood near the gate would

indicate that the crime has been committed elsewhere. It

rather creates a doubt as to whether the crime has been

committed in the manner as sought to be demonstrated by

the prosecution. The inconsistencies are not minor

inconsistencies but go to the very root of the case that is

canvassed against the accused/appellant. In fact the

strenuous effort and direct suggestions have been made by

the defence pointing fingers at PW-3, who admittedly is the

tenant of the premises but the Court accepts the interested

version of PW-3 that he was in Tirupathi. That no

corroborative materials either documents evidencing his

travel, documents evidencing his stay in Tirupathi,

documents evidencing his Darshan of Lord Balagi are

produced. Even C.D.R.s of his mobile subscription number

would have clearly shown his location. It is alarming to note

that even the investigating officer has even failed to make

even a cursory investigation into this aspect. Despite there

being no material to demonstrate the visit of PW-3 to

Tirupathi, the same has been blindly accepted by both the

investigating officer and the Court.

99. Nextly, the manner in which the Court has

brushed aside the significant demonstration by the defence

about the falsity of claim of MOs-4 and 5 also shocks us. As

discussed above, the Court despite the knowledge of the

fact that the MOs.4 & 5 could not belong to the accused has

tried to make out a case on behalf of the prosecution by

reasoning that the stay in prison has helped the accused

add inches both vertically and horizontally. Not only is the

reason hard to believe and illogical but is absolutely

baseless and without any corroboration from the records.

Conclusion:

100. In view of the above, we are of the considered

opinion that there is total inconsistency in the evidence of

PWs-1, 2, 3 and 8 and the inconsistency and contradiction

create grave doubt in the mind of the Court with regard to

involvement of the appellant/accused in the commission of

the crime. Once the alleged recovery of MOs-4 and 5 is

discarded, there is nothing left except the interested

testimony of PWs-1, 2, 3 and 8. The presumption drawn by

the Court that PW-8 is an independent witness has also

been demolished by the admission that he is friends with

PWs.1 & 2. In the course of cross-examination, wherein it

has been elicited that PWs-1, 2 and 8 go for a walk

regularly and it has also been elicited in the cross-

examination of PW-3 that he resides in the same locality

and at a distance which is few minutes away. If that be the

fact, then the question that troubles us as to why no effort

was made to reach PW-3 at his house itself. There are one

too many embellishments in the testimony of the witnesses

and to which the Court has turned a blind eye. That apart,

Court has also appreciated in the negative all the

consideration which are in favour of the accused which is

contrary to settled law.

101. In that view of the matter, we are of the

considered opinion that the appellant has made out a case

for allowing the appeal. Hence, we pass the following:-

In the result, we pass the following order:-

     (i)      The criminal appeal is allowed.

     (ii)     The judgment of conviction and order on
              sentence dated 29.11.2014 passed by the
              Presiding    Officer,        Fast   Tract   Court    XV,





                 Bengaluru   in    S.C.No.1032/2009   convicting

and sentencing the appellant for the offence punishable under Section 302 of IPC is set- aside.

(iii) The appellant is directed to be set at liberty forthwith if he is not required in any other case.

Sd/-

JUDGE

Sd/-

JUDGE dn/ykl CT-HR