Karnataka High Court
Prashanth. M vs State Of Karnataka on 22 February, 2024
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CRL.A No. 1362 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1362 OF 2017
BETWEEN:
PRASHANTH M.
S/O MARAPPA
AGED ABOUT 35 YEARS
R/O KODALIPURA
ANEKAL - 562 106.
...APPELLANT
(BY SRI S. SHANKARAPPA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY ATTIBELE P.S.
REPRESENTED BY S.P.P.
HIGH COURT COMPLEX
BENGALURU - 560 001.
...RESPONDENT
Digitally signed by (BY SRI VIJAYAKUMAR MAJAGE, S.P.P.-II)
MOUNESHWARAPPA
NAGARATHNA
Location: HIGH
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
COURT OF CR.P.C T PRAYING TO SET ASIDE THE JUDGMENT OF SENTENCE AND
KARNATAKA
CONVICTION DATED 12.06.2017 PASSED BY THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU IN S.C.NO.5010/2015 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 498(A) AND 302 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 27-11-2023, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE
VENKATESH NAIK T. J., PRONOUNCED THE FOLLOWING:
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CRL.A No. 1362 of 2017
JUDGMENT
This appeal is filed by the accused aggrieved by the
judgment of conviction and order on sentence dated
12.06.2017 passed by III Additional District and Sessions
Judge, Bengaluru Rural District, sitting at Anekal in
S.C.No.5010/2015, whereby the trial Court convicted the
accused for the offences punishable under Sections 302
and 498-A IPC.
2. The case of the prosecution in brief is as under:
The name of the deceased is Manjula. PW.1-Babu M.
the brother of the deceased lodged a complaint on
17.07.2014 alleging that the marriage of deceased-
Manjula was performed with the accused on 16.08.2007 at
ANR Kalyana Mantapa, Chandapura and after the
marriage, the relationship of the accused and Manjula was
cordial. Out of the wedlock, the accused and Manjula had
two children, viz., Bhagawathi and Chiranth and thereafter
the accused and Manjula were residing near Parthasarathi
hospital, Thilaknagar, Attibele. After few years,
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misunderstanding started between the couple. Deceased-
Manjula was working at M/s. Apotex company,
Bommasandra and the accused was not having any
avocation. Hence, he was opposing Manjula-his wife from
going to work and he suspected the fidelity of deceased-
Manjula. This aspect was informed by deceased Manjula to
her parents and PW.1. Later, the accused insisted Manjula
to bring additional dowry from her parents and PW.1. In
this regard, on 17.07.2014, at 06.00 p.m., the accused
took deceased-Manjula in a car from Attibele to Sarjapura
road and next to Bidaraguppe Anjaneya temple, the
accused took Manjula near a baniyan tree, assaulted and
cut her neck with a knife, thus she succumbed to the
injuries on the spot. In this regard, PW.1 lodged a
complaint. This led to the registration of F.I.R and
investigation.
3. In order to prove its case, the prosecution in all
examined 15 witnesses as PW.1 to PW.15 and got marked
17 documents as per Exs.P1 to P17 and marked 14
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material objects as per M.O.1 to M.O.14. Ex-D1 portion of
statement of PW.7 and Ex-D2 certified copy of letter are
marked on behalf of defence.
4. After evaluating the evidence, the trial Court
came to the conclusion that the prosecution was able to
prove its case beyond reasonable doubt and held the
accused guilty for the offences punishable under sections
498-A and 302 of IPC. The main reasons assigned by the
trial Court for convicting the accused is that the case is
based on circumstantial evidence. The trial Court
observed that the prosecution proved the alleged demand
of dowry by the accused, ill-treatment and assault made
by the accused and held that PW.1 has consistently stated
about the ill-treatment and assault on deceased Manjula
by the accused which in fact was informed to PW.1 by
deceased Manjula when PW.1 visited the house of the
accused to secure information about the educational loan
from father of the accused. The trial Court further
observed that the prosecution further relied upon the
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evidence of PW.4 the mother of deceased Manjula, who
has stated about the ill-treatment meted out by the
deceased at the hands of the accused for not bringing
dowry from her parental house. Hence, the trial court
observed that the testimonies of PW.1 and PW.4
corroborated with regard to ill-treatment and harassment
made by the accused to the deceased during her life time.
The trial Court also observed that, the prosecution proved
the fact of physical and mental harassment made by the
accused to deceased by the circumstantial witnesses viz.,
PW.5 to PW.7 who also corroborated the oral testimonies
of PW.1 and PW.4. The trial Court further observed that
the prosecution proved the last seen theory and PW.7 has
categorically stated that deceased-Manjula was last seen
alive in the company of accused prior to her death and
later, he saw the dead body of deceased in front of the
house of accused. The trial Court further observed that
the seizure mahazar witnesses PW.7 and PW.8 have
clearly stated that in their presence, the Investigating
Officer recovered bloodstained knife MO.5, bloodstained
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shirt, pant and baniyan (MOs.6 to 8) and these witnesses
have supported the case of the prosecution and as per FSL
report Ex.P14, these articles were blood stained, but, the
accused has not offered any explanation in this regard.
The trial Court considering the motive behind the
commission of murder of deceased Manjula, recovery of
M.Os.5 to 8 blood stained knife and blood stained clothes
of the accused and recovery of incriminating materials
from the spot as per M.Os.1 to 4, held that the
prosecution has been able to successfully prove that the
accused committed the murder of deceased Manjula and
he is guilty of the offence under Section 302 of IPC. The
trial Court also observed that the oral testimonies of the
prosecution witnesses is corroborated by the evidence of
the Doctors. As per the medical evidence, the cause of
death of deceased-Manjula was due to injuries on the
neck. The motive behind the commission of murder of
Manjula was due to non bringing of additional dowry from
her parental house. The medical evidence and the
evidence of circumstantial witnesses are supported by the
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spot and seizure mahazar witnesses. Hence, the trial
Court convicted the accused.
5. We have heard the arguments of
Sri S. Shankarappa, learned Senior Counsel for the
accused and Sri Vijayakumar Majage SPP-II for the
respondent-State.
6. Assailing the findings of the trial Court,
Sri. S.Shankarappa, learned Senior Counsel for the
accused argued that the prosecution is guilty of
suppression of material evidence and has not come
forward with the true version of the incident. The trial
Court by wrongly relying upon the evidence of PWs.1, 2, 5
to 7, who are the interested witnesses and family
members of deceased Manjula, without appreciating the
fact that there is suspicion in the prosecution case and no
motive on the part of the accused to commit murder of
deceased, has convicted the accused.
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7. It is contended that the case of the prosecution is
based on circumstantial evidence and it has failed to prove
the entire chain of events, inspite of which, the trial Court
has convicted the accused based on the uncorroborated
testimonies of the witnesses. The trial Court wrongly
pressed into service Section 106 of the Indian Evidence
Act and failed to appreciate that the offence has taken
place outside the house, hence no onus can be casted
upon the accused to explain and in fact the burden is on
the prosecution to prove its case beyond reasonable
doubt, which the prosecution has failed to discharge it.
8. It is contended that even before the law was set
into motion, the Investigating officer had been to the place
of incident and started investigating into the matter,
hence, the very complaint Ex.P1 is hit by Section 162
Cr.P.C. which is inadmissible in law, but, the trial Court
went on to conclude that Ex.P1 is not hit by Section 162
Cr.P.C. by holding that the police had the responsibility to
save the life, but, there is no evidence to the effect that
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the deceased was still alive, when the police received the
information, hence, the trial Court by misreading the
precedent of the Hon'ble Apex Court has come to an
erroneous conclusion and has not examined Ex.P1-
complaint in proper perspective.
9. It is contended that the trial Court erred in
considering the sketch Ex.P7 prepared by the Engineer,
wherein he has admitted in his cross examination that, he
had prepared the sketch on the basis of the rough sketch
prepared by him, but, the same is not endorsed on Ex.P7.
Therefore, without producing the rough sketch, the
primary evidence, which is the basis for preparing Ex.P7,
said document is not admissible in evidence, but, this
aspect is ignored by the trial Court. It is contended that,
PW.7 is a relative and chance witness. PW.7 is a pancha to
the spot mahazar-Ex-P2 dated 18.07.2014 and Ex.P7
sketch, wherein M.Os.1 to 4 were seized and he is also
pancha to Ex.P3 dated 19.07.2014 for recovery of M.Os.5
to 8 from the house of the accused.
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10. Hence, it is to be noted that when PW.7 was
available even before 28.07.2014, there was no reason as
to why there was inordinate delay of 11 days in recording
the statement of PW.7, which is not explained by the
prosecution. Ex.D2 is the letter of communication
between the official witnesses and the investigating
agency which was confronted to PW.15-Investigating
Officer and the Investigating Officer admitted this aspect,
where the prosecution has suggested some improvements
to be made in the statement of PW.7 with regard to he
seeing the accused and the deceased at the relevant point
of time, which clearly goes to show the false implication of
the accused. The Investigating agency has failed to
examine any independent witnesses to demonstrate the
last seen theory. The statement of PW.7 was recorded
after the arrest of the accused. The conduct of PW.7 of
not disclosing his version till 28.07.2014 even though he
met the Investigating officer prior to 28.07.2014 and not
adequately explaining his presence at the spot creates a
shadow of doubt on the evidence of PW.7.
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11. It is contended that PW.2 Dr. Anitha, who
conducted autopsy on the dead body of deceased-Manjula,
has deposed about three types of injuries on her body i.e.,
stab injury, incised injury and chop wound and opined that
the said injuries could be caused with three different
weapons. She further admits that all the three injuries
could be caused by a single weapon also. She further
admits that the chop wound could be caused by a heavy
weapon like chopper, which clearly establishes that two
views are possible, hence, the view favouring the accused
has to be accepted. So also, MO.5- knife was not
confronted to PW.2 Doctor to find out as to whether the
injuries sustained by deceased Manjula could have been
caused by MO.5. This important aspect is ignored by the
trial Court. It is contended that, PW.11 received the
complaint as per Ex.P1 and registered the FIR as per
Ex.P11. The contents of the complaint, FIR, arrest memo
and the evidence of PW.11 is contrary to the evidence of
PW.1. Infact PW.1 has deposed in his examination-in-
chief that when he had been to the police station to file a
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complaint, by that time, the accused was already present
in the police station, which clearly goes to show the
conduct of the accused wherein soon after the incident
came to his knowledge, he had been to the police station
to file a complaint, the same is suppressed.
12. It is contended that the alleged incident took
place on 17.07.2014 and complaint was lodged on the
same day and it was in respect of cognizable offence,
thus, the Investigating officer would have arrested the
accused on the same day, but, the police have shown the
arrest of the accused on 18.07.2014 at about 5.00 p.m.,
this circumstance creates a doubt as to whether any
cognizable offence has taken place on 17.07.2014 or not.
Further, there is delay in sending the FIR to the
jurisdictional Magistrate. Even if the FIR is dispatched to
the Court on 17.07.2014 at about 11.35 p.m., it has
reached the Jurisdictional Court on 18.07.2014 at
11.00 a.m. This delay has not been explained by the
prosecution and it creates a doubt on the prosecution case
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and fabrication of first information. This aspect is not
considered by the trial Court. It is contended that, as per
column No.4 of inquest mahazar-Ex-P9, one
Venkateshappa has last seen the accused along with
deceased and non examination of said Venkateshappa is
fatal to the case of prosecution and an adverse inference
should have to be drawn since only a relative witness with
regard to last seen(PW.7) is examined, but this
independent witness-Venkateshappa is not examined. It
is contended that there is no evidence on record to show
that it is the accused, who shifted the body of deceased-
Manjula from the scene of offence to the house of the
accused.
13. It is contended that the trial Court based on
assumptions and presumptions has come to a wrong
conclusion that initially the accused shifted injured Manjula
to Hospital for treatment, but, the trial court has not
considered this aspect. Even if the voluntary statement of
the accused is looked into, it discloses that it is the
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accused who shifted deceased Manjula to the hospital and
the body was still warm, but, the investigating agency has
not investigated into this aspect of the matter and has
suppressed the entire genesis of the crime, thereby, has
falsely implicated the accused. It is contended that in
order to prove the contents of Ex.P3, the prosecution has
examined PW.8 and in his examination-in-chief, PW.8 has
stated that the police went inside the room and brought
the blood stained clothes, and, it was not seized at the
instance of the accused, hence, the prosecution failed to
prove the recovery, but this aspect is ignored by the trial
Court.
14. It is contended that though PW.7 was a pancha
to Exs.P2 and P3, which were drawn on 18.07.2014 and
19.07.2014, but nowhere has he whispered that he has
last seen the deceased in the company of the accused on
the day of the incident. It is further contended that PW.12
the Tahsildar, Anekal who conducted inquest panchanama
as per Ex.P9 has stated that, PW.4 and PW.5 have not
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given any statements before him, alleging that on
17.07.2014, PW.4 and her son(PW.1) had been to the
house of accused, they saw dead body of Manjula and
there were visible injuries on the neck of the deceased and
on enquiry, she came to know that the accused took
deceased-Manjula in a car to teach driving and he
committed murder of Manjula and brought her dead body
to the house of the accused. Further, PWs.1, 4, 5 and 7
have given their evidence in exaggerated manner. Their
evidence is full of omissions, contradictions and
inconsistencies. Their omissions are proved by the
evidence of PW.15 Investigating Officer. Exs.D1 and D2
are also proved through the evidence of PW.15. The
prosecution has failed to produce the blood group of the
accused, as it plays a very important role to conclusively
connect the blood stained clothes of the accused with the
blood group of deceased Manjula. But in FSL report, the
blood group is shown as 'A' group. Therefore, the
prosecution has failed to explain the difference that arose
in the blood group. It is contended that PW.7 is a planted
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witness and his evidence is interested in nature. The trial
Court has not considered the statement of the accused
while recording his statement under Section 313 Cr.P.C.,
defence version and the contents of Ex.D1 and Ex.D2. On
all these grounds, learned counsel prayed to allow the
appeal and to set aside the judgment of conviction and
sentence passed by the trial Court.
15. The learned counsel relied upon the following
decisions:
1. GARGI Vs. STATE OF HARYANA reported in
(2019) 9 SCC 738;
2. PRAKASH Vs. STATE OF KARNATAKA reported in
(2014) 12 SCC 133;
3. RAJ KUMAR SINGH ALIAS RAJU ALIAS BATYA
Vs. STATE OF RAJASTHAN reported in 2013
CRI.L.J.3276;
4. SUJIT BISWAS Vs. STATE OF ASSAM reported in
2013 CRI.L.J.3140;
5. DHANNA, ETC Vs. STATE OF M.P reported in AIR
1996 SCC 2478;
6. H.C.KARIGOWDA @ SRINIVASA AND OTHERS
Vs. STATE OF KARNATAKA, BY
HOLENARASIPURA TOWN POLICE reported in
ILR 2013 KAR 992;
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7. SUBHASH Vs. STATE OF HARYANA reported in
(2011) 2 SCC 715; and
8. RINKU Vs. STATE OF MADHYA PRADESH
reported in 2023 SCC Online MP 261 and
9. JAIKAM KHAN V. STATE OF UTTAR PRADESH,
reported in (2021) 13 SCC 716.
16. Per contra, Sri Vijayakumar Majage, learned
State Public prosecutor-II for respondent-State submits
that PW.1 and PW.4 being the brother and mother and
PW.5 to PW.7 being the relatives of deceased-Manjula
have clearly stated about the incident. PW.7 who has last
seen the deceased in the company of accused on the day
of the incident has categorically stated about the incident
and PWs.1 and 4 have stated about the motive aspect,
such as, the accused was questioning the fidelity of the
deceased, he was demanding dowry from her parents and
PW.1 and the harassment given by the accused to
deceased Manjula in respect of deceased securing a
Government job as a Drug Inspector and accused being
jobless and frequently demanding money from Manjula.
PWs-1 and 4 have stated that they saw visible injuries on
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the neck of deceased. The oral testimonies of these
witnesses is strengthened by the medical evidence. M.Os.
1 to 4 were recovered from the spot and M.Os 5 to 8 were
recovered at the instance of accused from his house under
Exs-P2 and P3 panchanamas. Further, M.Os.1, 3 to 8 were
blood stained. The recovery mahazar witnesses PW.7 and
PW.8 have categorically stated that the Investigating
officer has seized these articles in their presence. Hence,
the manner of recovery is also proved. PW.14 - The
Scientific Officer has clearly stated that except M.O.2,
M.Os.1, 3 to 7 were blood stained as per Ex.P14 FSL
report. The motive for commission of murder of deceased
Manjula was non-bringing of additional dowry from the
parental house of deceased-Manjula and said aspect has
been proved by the evidence of PW.1 and PW.4. It is
contended that as per the evidence of PWs.7, 8 and 11,
the police have recovered M.Os.5 to 8 at the instance of
the accused, when he was in custody of the police and
therefore the recovery of M.Os.5 to 8 viz., a knife, shirt,
pant and baniyan were recovered at the instance of
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accused and same were proved, which is in accordance
with Section 27 of the Indian Evidence Act, 1872. It is
contended that there is sufficient material placed on record
against the accused to show that he had intention to
commit the offence. The evidence of the prosecution
witnesses coupled with recovery of incriminating articles
clearly establishes the guilt of the accused and there is
ample evidence against the accused and no interference is
required by this Court. Hence, he prayed to dismiss the
appeal filed by the accused.
17. We have perused the entire evidence both oral
and documentary and considered the points of arguments.
18. From the evidence of PWs.1, 2, 5, 7 and 12,
what we find from their examination is that the accused
married Manjula on 16.08.2007. After the marriage, the
relationship of accused and deceased was cordial for
couple of days and thereafter, the accused started to
harass the deceased to bring additional dowry from her
parental house. On 17.07.2014, at 6.00 p.m., the accused
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took deceased Manjula in the car of the accused on the
pretext of teaching car driving from Attibele towards
Sarjapur road near Bidaraguppe Anjenaya temple, at that
time, PW.7-chance witness saw the deceased in the
company of the accused. Thereafter, the accused
assaulted the deceased and cut her neck with M.O.5-knife.
Hence, she succumbed to the injuries on the spot.
Thereafter, the accused brought the dead body of
deceased Manjula to his house and he went to police
station.
19. Therefore, the prosecution case rests squarely
on circumstantial evidence. The Hon'ble Supreme Court in
the case of Sharad Birdhichand Sarda v. State of
Maharashtra reported in (1984) 4 SCC 116, has held at
para 153 wherein a close analysis of this decision would
show that the following conditions must be fulfilled before
a case against an accused can be said to be fully
established:-
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1. The circumstances from which the
conclusion of guilt is to be drawn should
be fully established.
2. The facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is
guilty,
3. The circumstances should be of a
conclusive nature and tendency,
4. They should exclude every possible
hypothesis except the one to be proved;
and
5. There must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and must
show that in all human probability, the act
must have been done by the accused.
20. It can thus clearly be seen that it is necessary for
the prosecution that circumstances from which the
conclusion of the guilt is to be drawn should be fully
established. In the light of these guiding principles, we
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have to examine the present case. The trial court has
relied on the following circumstances:-
a. Homicidal death of deceased Manjula,
b. Motive,
c. Deceased last seen together with the accused,
d. Recovery of knife and clothes of the accused,
e. Section 106 of Indian Evidence Act, and
f. Extra-judicial confession of the accused before
police.
21. In order to prove the homicidal death of deceased
Manjula, the prosecution examined PW.2 Dr. Anitha, who
conducted autopsy on the dead body of deceased Manjula.
PW.2 has stated that she conducted the post mortem on
the dead body of deceased Manjula on 18.07.2014 in
between 12.40 p.m. to 2.40 p.m. alongwith
Dr. B.S. Ramachandrappa (CW-21) and found the following
injuries:-
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1. Abrasion on left half of face below left eye present
reddish blue in colour one day old.
2. Incised wound on left cheek 5 cm long x 1/2 cm wide
x skin deep with tailing of wound with dried blood
around about one day old.
3. Stab injury in the right axilla 1 cm long x half cm
about 2 inches deep extending upto right scapula
with the chipping of the lateral border. Wound is
flame shaped with one edge sharp and other edge
round.
4. Stab injury on centre of right breast 1 cm long x 0.5
cm wide x 1 cm deep, one edge of wound rounded
and other edge sharp.
5. Stab injury on the centre of lower part of the chest 1
cm long x 0.5 cms wide x 1 cm deep with tailing of
wound present..
6. Stab injury on the abdomen with left side of
abdomen 1.3 cm below left breast, 3cm long x 1 cm
wide x abdominal organ deep touching the spleen
tailing of wound present.
7. Stab injury 2 cm below the above injury, 1cm long x
½ cm wide x 1 cm deep.
8. Chop wound on the centre of the neck cutting the
trachea, esophagus and all major blood vessels, 10
cm long,5 cm wide at centre and 3 cm wide on both
sides with 3 cm deep with bone depth with chipping
of the cervical spine posteriorly with ragged edges
and tailing of wound on both sides.
As per the opinion of the Doctor, death of deceased
Manjula is due to shock and haemorrhage due to multiple
injuries sustained. Hence, she issued post mortem report
as per Ex-P6. PW.2 opined that injuries mentioned in
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Ex-P6 may be caused with a heavy weapon like chopper, is
believable.
22. The prosecution in order to ascertain the visible
injuries on the person of deceased examined PW.9
Smt. Manjula. She has stated that she saw dead body of
deceased Manjula in Anekal Government Hospital on
18.07.2014. She has also seen injury on the neck of the
deceased and stab injury on the chest, scratch marks on
shoulders. The Investigating Officer conducted inquest
panchanama as per Ex-P9 in her presence. Further, the
prosecution relied upon the evidence of PW.12 Manohar
Jyothi, Special Tahsildhar, Anekal who conducted inquest
panchanama on the dead body of Manjula as per Ex-P9 in
presence of PW.9 and other witnesses. PW.12 corroborates
the oral testimony of PW.9 with regard to injuries on neck,
shoulder and chest. Therefore, the oral evidence of PW.9
and PW.12 is supported by the medical evidence. Contrary
to this evidence, the accused has not placed any material
to establish that the death of deceased Manjula was not
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homicidal one. Hence, the prosecution proved the death of
Manjula as homicidal one.
23. So far as motive is concerned, it is well settled
law that in a murder case based on circumstantial
evidence, 'motive' acts as an additional link in the chain of
circumstances. In this case, there are no eyewitnesses to
the incident, hence, motive fortifies all the incriminating
circumstances against the accused and lends
circumstantial corroboration.
24. The prosecution in order to prove the aspect of
motive, has examined PWs.1 and 4, the brother and
mother of deceased respectively. PWs.1 and 4 have stated
that at the time of marriage of Manjula with the accused,
the accused was given dowry in the form of cash and gold
articles. Thereafter, the couple lived happily for some
time and Manjula continued her studies even after
marriage. Deceased Manjula secured a job in a private
company and thereafter the accused left the job. The
accused started pestering for money from Manjula and he
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used to assault her. The accused also suspected the
fidelity of his wife and he was also addicted to bad vices.
There were frequent quarrels between the accused and
deceased Manjula. As deceased Manjula had secured a
Government job, the accused pressured her to quit the
job. Thereafter, one week prior to the date of the incident,
the deceased had telephoned her mother stating that
accused had assaulted her, due to which, she is unable to
hear properly. Thereafter, PW-1 son of PW.4 informed her
to come to Attibele and they found the dead body of
Manjula in front of the house of accused. The people who
had gathered informed that the accused took deceased
Manjula in the car on the pretext of teaching driving to her
and committed her murder. Therefore, it is to be held that
the accused being addicted to bad vices and unemployed,
developed animosity against deceased Manjula and had
premeditated to commit her murder. Further, PW.7
Muniraju, a chance witness has stated about the strained
relationship between the accused and Manjula and about
the frequent demands by the accused to deceased Manjula
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to bring money from her parental house. Contrary to the
evidence of PWs.1, 4 and 7, to disbelieve that there was
no intention on the part of the accused to commit the
crime, the defence has not placed any material to disprove
the prosecution case. Thus, the prosecution has proved
the motive of the accused in committing the crime.
25. The third ground on which the prosecution has
placed reliance is the 'last seen theory'. The last seen
theory comes into play where the time gap between the
point of time when accused and the deceased were last
seen alive near Bidaraguppe bus stand and when the
deceased was found in the car with the accused is so small
that possibility of any person other than the accused being
the author of the crime becomes impossible. Further, PW.7
saw the deceased in the company of the accused and she
was driving the car near Bidaraguppe village. In the
absence of any other positive evidence to conclude that
the accused and the deceased were last seen together, it
would be hazardous to come to a conclusion of guilt in that
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event. In this case, there is positive evidence that the
deceased and accused were seen together in a car by
witness PW.7. He has stated that on 17.07.2014 at about
6.10 p.m., he came to Bidaraguppe bus stand in a bus and
went towards Gada Anjenaya temple, he saw the accused
and deceased Manjula in a car, Manjula was driving the
car bearing No.KA-51-N-4173. At that time, Manjula saw
PW.7 and smiled, he also smiled at her and later he went
to the temple and after performing pooja, he returned at
6.30 p.m. to his village. His further evidence is that on the
same day, at 8.30 p.m., one Devegowda called over phone
and asked him to visit his house. As soon as he went to
the house of Devegowda, he came to know about the
death of Manjula. Therefore, PW.7 telephoned PW.1 and
informed about accused and Manjula going in a car at
5.30 p.m. together near Bidaraguppe bus stand and death
of Manjula. His further evidence is that he went to the
house of the accused, where he saw the dead body of
Manjula and also visible injury on the neck of the
deceased. He informed the persons present in front of
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house of the accused about the accused and deceased
going in a car near Bidaraguppe bus stand. In the cross
examination, nothing is elicited from his mouth to discredit
his testimony.
26. Further, the prosecution relied upon the evidence
of the Investigating Officer-PW.15, who has stated that he
seized the car used for the commission of the offence from
the house of the accused. The recovery of the car and
blood stains found in the car further strengthens the fact
that deceased Manjula was last seen in the company of
the accused and there was possibility of no other
hypothesis other than the accused being present at the
place of incident.
27. Therefore, the prosecution is able to establish
that the accused took Manjula in a car and her dead body
was brought to the house of the accused. Thus, the
prosecution is able to prove the last seen theory, place of
occurrence and seizure of car from the house of the
accused, which are additional links in completing the chain
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of circumstances. In this case, there is positive evidence
to conclude that the accused and the deceased were last
seen together.
28. So far as recovery of material objects is
concerned, the prosecution relied upon the evidence of
PWs.1 and 7. They have stated that the Investigating
Officer conducted spot panchanama as per Ex-P2 near
Bidaraguppe Kodi and collected blood stained mud(M.O.1),
sample mud(M.O.2), two plastic chappals of
accused(M.O.3), two black colour chappals of deceased
(M.O.4) under Ex-P2. To corroborate the oral testimonies
of PWs.1 and 7, PW.15 the Investigating Officer has also
stated that on 18.07.2014, in between 1.00 p.m. to
1.45 p.m., he conducted spot panchanama at Bidaraguppe
lake(Kodi) as per Ex-P2 in the presence of PWs.1 and 7
and seized M.Os.1 to 4. Hence, the evidence of PW.15 is
corroborated by the oral testimonies of PWs.1 and 7 about
he drawing spot panchanama in their presence and seizure
of M.Os.1 to 4.
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29. Sofar as seizure of M.O.5 blood stained knife,
M.O.6 blood stained shirt, M.O.7 blood stained black pant,
M.O.8 blood stained baniyan are concerned, the
prosecution relied upon the evidence of PWs.1, 7, 8 and
15. They have stated that on 19.07.2014, the
Investigating Officer called them to the police station, at
that time, the accused was in the custody of the police.
Investigating Officer secured PWs.7 and 8 as panchas,
thereafter, the accused led PWs.1, 7 and 8 to the house of
the accused and he showed blood stained knife, shirt, pant
and baniyan(M.Os.5 to 8) underneath the cot of his
bedroom. Further, PWs.1, 7 and 8 have consistently stated
that on the same day, the accused showed his Alto car
bearing registration No.KA-51-N-4173 which was used for
the commission of the offence. Thus, the Investigating
Officer seized M.Os.5 to 8 and a Maruti Alto car under
Ex-P3 seizure panchanama. Hence, the prosecution is able
to prove the recovery of blood stained clothes of the
accused, a knife and a car used for the commission of the
offence. The accused has not placed any material to show
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that there was any irregularity in seizure of M.Os.5 to 8
and the car, which would prejudice his right. In the
absence of such contrary material, we can safely come to
the conclusion that the seizure of M.Os.5 to 8 and the car
in presence of PWs.1, 7 and 8 by the Investigating Officer
is in accordance with law.
30. So far as FSL report is concerned, the
prosecution relied upon the evidence of PW.14
Dr. Chandrashekar. He has consistently stated that on
25.08.2014, he received in all 14 articles from the
Investigating Officer and examined said articles and
ascertained that except item No.2 shown in FSL report
(sample soil-M.O.2), rest of the articles are stained with
'A' blood group. Hence, he issued his report as per Ex-P14.
From the perusal of Ex-P14- FSL report, blood stains were
detected in M.Os.1, 3 to 14. The blood stains found in item
Nos.1, 3 to 14 are of human origin and 'A' group blood.
From the perusal of Ex-P14 FSL report, M.Os.9 to 14
clothes pertaining to deceased Manjula were stained with
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'A' group blood. Further, M.Os.6 to 8 clothes pertains to
the accused. The presence of blood stains was detected in
M.Os.6 to 8 and the blood stains found in M.Os.6 to 8 are
of human origin and pertain to 'A' blood group.
31. In the circumstances, we can safely rely on the
version given by PWs.1, 7, 8, 14 and 15 with regard to
recovery of a knife, blood stained clothes of accused and
deceased and the recoveries of these articles are in
accordance with law. The accused has not placed any
material to show that there was irregularity in collecting
M.Os.1 to 14 and it has prejudiced his right.
32. There is another feature in the evidence touching
upon the involvement of accused and it is recovery of a
knife at the instance of the accused. In the absence of
any material by the accused, the trial court considered the
theory that such recovery would be admissible under
Section 27 of the Indian Evidence Act, 1872. Thus, the
version given by PWs.1, 7, 8, 14 and 15 being worthy to
be relied upon, we have also considered the evidence of
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recovery of a knife, other incriminating articles and the
evidence of the aforesaid witnesses.
33. So far as, invoking section 106 of the Indian
Evidence Act, the prosecution must first establish that
there was any fact within the special knowledge of the
accused. In this case, the accused and deceased Manjula
were travelling in a car and the death occurred in the
evening of 17.07.2014 at 6.00 p.m. and the last seen
witness PW.7 has categorically stated he saw deceased
Manjula in the company of the accused while she was
driving the car of the accused near Bidaraguppe bus stand
and thereafter he saw the dead body of the deceased in
front of house of the accused. The factum of death of
deceased Manjula was within the knowledge of the
accused, but, the accused failed to explain the
circumstances as to how the deceased sustained injury on
her neck as shown in Ex-P6 post mortem report. PW.2
Dr. Anitha opined that death is due to shock and
haemorrhage due to multiple injuries sustained. It has
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already been held that the death of Manjula is homicidal.
The evidence on record also discloses that the incident had
occurred in the car and the dead body of deceased
Manjula was brought in front of house of the accused and
there is possibility of no person other than the accused to
have remained in contact with deceased Manjula. The
Investigating Officer seized blood stained knife and clothes
of the accused from the house of the accused on the basis
of the voluntary statement of the accused. Further, the
accused has not explained as to how his clothes were
stained with 'A' group blood. The fact that M.O.5 knife and
M.Os.6 to 8 clothes of the accused were stained with 'A'
group blood was within the knowledge of the accused,
hence, the burden shifts on him to explain, but he failed to
explain the same.
34. Except bare denial in his statement under section
313 Cr.P.C., the accused has not offered any explanation
as to how deceased Manjula sustained abrasions, incised
wounds, stab injury, chop injuries etc., as per Ex.P6 post
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mortem report. Obviously, this circumstance goes against
him. Section 114 of the Indian Evidence Act empowers the
Court to presume the existence of any fact which it thinks
is likely to have happened. From the perusal of evidence
on record, the only reasonable inference that could be
drawn is that the accused alone committed the murder of
deceased Manjula.
35. Having bestowed thoughtful consideration of the
rival submissions and taking into account the totality of
the circumstances, though there are some discrepancies in
the investigation done by the Investigating Officer and the
statements of the witnesses, but, those discrepancies
cannot go to the very root of the case. If investigation is
suspicious, rest of the evidence must be scrutinized
independently on the impact of the faulty investigation.
Further, the accused cannot be acquitted on the sole
ground of irregularities in the investigation and mere
defect in the investigation cannot vitiate the trial. If the
Investigating Officer caused delay in questioning the
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witnesses, it would not necessarily make the prosecution
version doubtful. If the Investigating Officer has not
questioned the witnesses within a reasonable time,
disbelieving the prosecution witnesses on that score, is
improper. Further, the delay in questioning the crucial
witness viz., PW.7 may not necessarily lead to create
doubt regarding the veracity of the prosecution case.
Unless, the Investigating Officer was specifically cross
examined on this aspect, defence cannot derive any
advantage.
36. Further more, the fact that deceased was
working in a company and she was appointed as a Drug
Inspector in the Government Department and the accused
being jobless at the relevant time, this led the accused to
develop ill-will against deceased Manjula and it becomes a
strong animosity between the two, appears to be highly
probable.
37. In the present case, there is definite evidence of
last seen as also the fact that there is no such long time
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gap between the last seen and the dead body found in
front of the house of the accused and the fact that the
accused voluntarily surrendered before the police and gave
his extra-judicial confession before them prior to
registration of the case. Hence, the act of the accused is
corroborated by the evidence of the prosecution witnesses
and the chain of circumstances is complete that the only
inference that could be drawn is the guilt of the accused.
38. In the case of Sharad Birdhichand Sarda's
case referred supra, the Hon'ble Supreme Court held that
in a case based on circumstantial evidence, the chain has
to be complete in all respects so as to indicate the guilt of
the accused and also exclude any other theory of the
crime.
39. Learned counsel for the accused relied upon
Gargi's case cited supra. In Gargi's case, the wife
strangulated the husband to death and dead body was
hanged in room of their house to show it as suicide.
Whereas in this case, the accused took the deceased in a
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car on the pretext of teaching car driving and a quarrel
took place between them and ultimately, accused
assaulted deceased with a knife and caused her death. The
principles laid down in Gargi's case are correct, but is not
applicable to the case on hand.
40. Learned counsel relied upon Prakash's case,
wherein the Hon'ble Apex Court acquitted the accused on
the ground of absence of Test Identification parade,
identification of accused after four and half years,
suspicion in finger print evidence and recovery of blood
stained clothes of the accused and deceased, thus, the
Hon'ble Apex Court acquitted the accused. Whereas in the
instant case, conduct of Test Identification Parade and
identification of the accused is not at all necessary. In this
case, the prosecution is able to prove the seizure of blood
stained clothes of the accused and the deceased.
Therefore, the decision is not applicable to the case on
hand.
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41. The learned counsel relied upon Rajkumar's
case cited supra, wherein the Hon'ble Apex Court held that
the incriminating circumstances appearing in the
prosecution witnesses was not put to the accused under
section 313 Cr.P.C., the same cannot be used against him
and have to be excluded from consideration and it cannot
be treated as evidence under section 3 of the Indian
Evidence Act. Whereas in this case, the trial court has put
all incriminating circumstances appearing in the
prosecution evidence to the accused, hence the decision
cited supra is not applicable to the case on hand.
42. Learned counsel relied upon Sujit Biswas's case
cited supra, wherein the Hon'ble Apex Court held that if
two views are possible, benefit of doubt must go to the
accused. Whereas, in this case, the prosecution proved
beyond reasonable doubt all the circumstances and it was
consistent only with the hypothesis of guilt of the accused.
Therefore, the question of raising two views would not
arise.
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43. Learned counsel for the appellant relied upon the
decision in the case of Rinku's case, wherein the High
Court of Madhya Pradesh held that if there is delay in
examination of the eye witnesses, the accused is entitled
for acquittal. From the perusal of the evidence of PW.7,
the Investigating Officer has recorded the statement
belatedly, however, PW.7, a last seen witness has not
stated anything else than the version in Ex-P1 complaint.
The delay in recording the statement of PW.7 by the
Investigating Officer cannot be blamed as the statement
was recorded after some days. Further, the oral testimony
of PW.7 cannot be discarded on account of delay alone.
The delay on the part of the Investigating Officer in
questioning PW.7 does not necessarily make the
prosecution witnesses suspect. Further, the delay in
questioning the important witnesses like PW.7 may not
necessarily lead to create doubt regarding the veracity of
the prosecution case.
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44. Learned counsel relied upon the case reported in
Jaikam Khan's case, wherein the Hon'ble Apex Court
held that if the prosecution fails to prove the motive and
corroborative evidence and relies upon only related eye
witnesses, under such circumstances, the accused must be
acquitted. In this case, the prosecution relied upon related
witnesses as well as independent witnesses and official
witnesses. Their oral testimonies inspire the confidence of
the Court. There is no dispute that the principles
enumerated in the other decisions cited supra, but those
decisions are not applicable to the present facts of this
case.
45. Therefore, it would be safe to sustain the
conviction of the accused on such evidence, where the
chain is clearly complete. That apart, the prosecution is
able to prove the motive, blood stained articles seized
from the spot(M.Os.1 to 4), knife(M.O.5), recovery of
blood stained clothes of the accused(M.Os.6 to 8) and
blood stained clothes of the deceased(M.Os.9 to 14) and
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same is corroborated by the medical evidence and FSL
report(Ex-P14). Looking into the facts and circumstances
of the case, we are of the opinion that the accused has
committed the offences under sections 302 and 498A IPC.
Hence, the trial court has rightly convicted the accused for
the offences under sections 302 and 498A IPC. Hence, no
interference is called for.
Thus, we proceed to pass the following:-
ORDER
1. The appeal is dismissed.
2. The judgment of conviction and sentence dated
12.06.2017 passed by III Addl. District and
Sessions Judge, Bengaluru Rural District, sitting
at Anekal in S.C.No.5010/2015 is confirmed.
3. The trial court is directed to secure the accused
and issue conviction warrant to serve the
sentence.
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4. The bail bond of accused and his surety stands
cancelled.
5. Registry is directed to send trial court records
forthwith, with a copy of the judgment.
Sd/-
JUDGE
Sd/-
JUDGE
MN
