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2020 DIGILAW 1422 (KAR)

Anand v. State Of Karnataka

2020-07-15

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - This appeal is directed against the judgment of conviction and order of sentence passed by the V Addl. District and Sessions Judge, Dharwad, sitting at Hubballi in S.C.No.63/2015 dated 18.01.2017. 2. We have heard Sri Mallikarjunswamy B. Hiremath, learned counsel appearing for the accused/appellant through virtual hearing and Sri V.M.Banakar, learned Additional SPP, who is present before the Court. 3. The brief facts of the case as averred in the complaint are that the complainant being an advocate was residing in Navanagar along with his parents and elder brother who is a doctor. On 26.12.2014, complainant returned home at about 5.30 p.m. and after relaxing for sometime, went to the chambers of his senior colleague by 7.15 p.m. Earlier to that, his father and brother left to the clinic at about 6.30 p.m. and on that unfortunate day, complainant returned home at about 8.25 p.m. and knocked the closed door which was not opened. Complainant peeped through the window by the side of the door and noticed the broken tea-poy in the hall and his mother's knee from the bed room. Again, he knocked the door but it was not opened. Thereafter, he called his brother to come with key as he was not having the key of the house. Thereafter, his brother came and on opening the door, they noticed the broken bangle pieces and broken leg of the tea-poy on the floor and by entering the bed room, they found the mother lying on the floor in prone position. Her face was tied with white checks towel and one white and grey mixed small towel with blood stains was lying nearby and they also found a wound on the fore head. On removing the towel, he felt that his mother was alive. Immediately, they together took her in their car bearing registration No.KA-02 MB 2352 to nearby SDM Hospital, where on examination the doctor found her dead. Immediately thereafter, said information was given to APMC Police and in the presence of police, three cupboards were searched and noticed some gold articles and cash were found missing and on the basis of the complaint, case has been registered in Cr.No.107/2014. Thereafter, after investigation the charge-sheet came to be filed. Immediately thereafter, said information was given to APMC Police and in the presence of police, three cupboards were searched and noticed some gold articles and cash were found missing and on the basis of the complaint, case has been registered in Cr.No.107/2014. Thereafter, after investigation the charge-sheet came to be filed. The committal Court committed the case to the Sessions Court and the Sessions Court took the cognizance and after hearing both the sides charge was framed, read over and explained to the accused. Accused pleaded not guilty and he claimed to be tried and as such, trial was fixed. 4. To prove the case of the prosecution, prosecution got examined as many as 20 witnesses, got marked 51 documents and 14 material objects. Thereafter, the statement of the accused was recorded by putting incriminating material as against him. Accused has not chosen to lead any evidence nor he has got produced any documents. After hearing the learned counsel appearing for the parties, the trial Court came to the conclusion that the materials which have been produced is sufficient to bring home the guilt of the accused and convicted him. Challenging the legality and correctness of the said judgment, the appellant/accused is before this Court. 5. The main grounds urged by the learned counsel for the appellant/accused are that the judgment of conviction and order of sentence passed by the trial Court is perverse, not based upon the evidence and materials placed on record. It is his further submission that the entire case rests on circumstantial evidence and the trial Court has convicted the appellant/accused only on the basis of apprehension of the accused, voluntary statement and recovery of the articles at the instance of the accused. The arrest of the accused and the recovery at the instance of the accused itself is doubtful. It is his further submission that PW-9 has clearly deposed before the Court that on 31.12.2014 police came to her and asked about the accused as also about the money which the accused owed to her. The arrest of the accused and the recovery at the instance of the accused itself is doubtful. It is his further submission that PW-9 has clearly deposed before the Court that on 31.12.2014 police came to her and asked about the accused as also about the money which the accused owed to her. On that day, she did not disclose about the alleged theory of accused having given gold ornaments to her but on 05.01.2015, she has told that the accused had given one ear ring, one watch, one mobile, shirt as also 4 to 5 bindis and thereafter she is said to have enquired taken to Tirupathi by the police and there the accused has been apprehended and not at Lohia Nagar Hospital, as stated by PW-20 in his evidence. 6. It is his further submission that the evidence of PW-4, the recovery mahazar pancha to Ex.P.29 is also not trustworthy and reliable. It is his further submission that the statement of the accused which has been marked as Ex.P.49 does not come under Section 27 of the Evidence Act (for short 'the Act'). It is his further submission that the witnesses are required to state the words used by the accused while giving physical statement and the same has to be recorded by the Investigating Officer which has to be proved in accordance with law. If the words used by the accused are not repeated either by the witness or by the Investigating Officer and if there is only exhibiting the documents or the recovery, it is not proper recovery under Section 27 of the Act. In order to substantiate the said contention, he has relied upon the decision of a co-ordinate bench of this Court in Crl.A.No.489/2013 disposed off on 09.05.2018 wherein Hon'ble BAPJ was also a member to the said bench. It is his further submission that even the identity of the articles by PWs-1, 8 and 17 itself is clouded wherein by the time they had been taken to the police station all the articles were seized and were put in a sealed cover and only the covers were shown to them. Under such circumstances, it cannot be said that the articles have been identified by these witnesses. 7. Under such circumstances, it cannot be said that the articles have been identified by these witnesses. 7. It is his further submission that the inquest mahazar Ex.P.25 also discloses that over the body of the deceased, a mangal sutra chain and gold articles were found. If really the accused intended to take away the gold and other articles for gain, as contended by the prosecution, he would have never left the gold articles which have been found over the body of the deceased. It is his further submission that the chain of circumstances on which the prosecution is placing reliance upon have not been clearly established. Under such circumstances, the trial Court ought to have given the benefit of doubt to the accused. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence and acquit the accused. 8. Per contra, learned Additional State Public Prosecutor vehemently argued and submitted that the evidence which has been produced clearly establishes the fact that the accused under the guise of hiring the house on rental basis has approached PW-6 and in that light, he has come to the house of the deceased and thereafter, has committed the alleged offence for the purpose of gain. It is his further submission that M.Os.8 to 14 have been recovered on the basis of the voluntary statement, Ex.P.49 by drawing a mahazar as per Ex.P.29 and subsequently, during the course of evidence, PWs-1, 8 and 17 have identified the said articles as that of the deceased. 9. It is his further submission that PW6 is a broker and PW7 the painter are the witness who were residing in the locality have identified the accused moving in the said locality prior to the alleged incident. It is further submission that PW8 the son of the deceased has also seen the accused near the house and he has also identified the shirt belonging to him as per MO.14. It is his further submission that the recovery evidence relied upon by the prosecution has been clearly established the fact that at the instance of the accused, PW9 has produced the articles which have been kept by the accused and nothing has been elicited so as to discard the said evidence. It is his further submission that the recovery evidence relied upon by the prosecution has been clearly established the fact that at the instance of the accused, PW9 has produced the articles which have been kept by the accused and nothing has been elicited so as to discard the said evidence. It is his further submission that in case of the dacoity and theft, the recovery evidence is a material evidence so as to bring home the guilt of the accused. In the instant case on hand, important links have been established by the prosecution and said circumstances pointed out to the guilt of the accused and accused alone. Under such circumstances, the trial court has come to the right conclusion and has rightly convicted the accused. On these grounds, he prayed to dismiss the appeal. 10. We have careful ly and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records including the Trial Court records. 11. Admittedly, in the instant case on hand, there are no eye witnesses to the alleged incident and the entire case rests on circumstantial evidence. It is trite of law that in case of circumstantial evidence, the prosecution has to establish that the circumstances to lead to one and one conclusion towards guilt of the accused and all the important links have to be established by the prosecution. Then under such circumstances, the case of the prosecution is said to have been proved and the accused can be convicted on the basis of such circumstantial evidence. 12. On perusal of the case of the prosecution, it is the case that the accused approached PW6- the broker and he wanted to take the house on rental and in that light, on perusal of the evidence of PW6, he has clearly deposed before the court that on 28/12/2014 about 15 to 20 days, prior to the alleged incident, about 6:30 p.m., he met accused near Navanagar, Basaveshwara circle and he was standing along with PW19 and was talking with him. He has shown two houses and he did not like those houses to take them on rental. During the course of cross examination of this witness, nothing has been elicited so as to discard the said evidence. He has shown two houses and he did not like those houses to take them on rental. During the course of cross examination of this witness, nothing has been elicited so as to discard the said evidence. PW7 is also a witness, who is a localite residing in the said area, who saw the accused infront of the house of the deceased. Even during the course of cross examination, nothing has been elicited so as to discard the evidence of this witness. 13. The main circumstances on which the prosecution is intending to rely upon is that of the recovery of the stolen articles at the instance of the accused. In this behalf, if we peruse the evidence of investigating officer PW20, in his evidence he has deposed that on 15/1/2015 at about 00.30 hours, the suspected accused was noticed near Lohiya Nagar, Hubli, and they went and apprehended accused and thereafter, he has been brought to the police station and his voluntary statement has been recorded as per Ex.P49. Thereafter, he along with panch witnesses have been led by the accused and he produced the articles which are as per Mos.8 to 14. In order to substantiate the said contention, the prosecution has relied upon the evidence of PW4. PW4 in his evidence has deposed that about one year back, he has been called to the police station and the accused confessed for having committed the offence and thereafter, the accused took himself and CW7 to one house in City Park and showed where he had committed the murder and had stolen the gold ornaments. There the Mahazar was drawn as per Ex.P28. Thereafter, he took them to the place where he has kept the stolen articles and took them to Lohiya Nagar, Gokul Road, Hubli and that it was the house of the accused and his wife was there. The accused went inside the room and he brought a black air bag and by opening the plastic bag, he produced two pairs of gold ear studs, two watches (one gents and one ladies) one Nokia mobile, one green colour strip full shirt and three bindis (ornament to be worn on the forehead) have been stolen from the house and which have been shown in Ex.P28. The police called goldsmith and after verifying the ornaments, same have been seized by putting the chits and photos were also taken. The police called goldsmith and after verifying the ornaments, same have been seized by putting the chits and photos were also taken. Mahazar has been drawn as per Ex.P29. 14. The prosecution has also relied upon the evidence of PW9 from whose house the said articles have been seized. On perusal of the evidence of PW9, she has deposed that she has demanded the accused to return Rs.90,000/- which was due to her. She further stated that she had also given the papers of the site to pledge and take the amount. Accused told that by pledging the said documents, he had taken the loan of Rs.40,000/-. He had also pledged the gold articles belonging to her and has obtained Rs.15,000/- and that the said pledged gold articles have not yet been released by the accused and he has not paid the amount. She has further deposed that on 31/12/2014, the police came there and asked about the accused and they enquired about the amount which is due to her and she also informed that some amount is due from the accused. She has further deposed that on 5th, the police came along with the accused and she produced the articles which she has got from the accused as per Mos.8-14 and she has further deposed that he told that the said articles are belonging to a couple who have met with an accident and they have given the said articles to keep with him. Thereafter, the police took the accused. She has also identified by seeing photo Exs.P5 and P9. During the course of cross examination whatever suggestion which have been made were denied by this witness. On perusal of the evidence of PWs.1, 8 and 17, they indicate that they have been identified the said articles that all belonging to the deceased. 15. During the course of trial, it is the submission of the learned counsel for the appellant-accused that the evidence of PW4 is not trustworthy and reliable and it is not going to satisfy the provisions of Section 27 of the Evidence Act. In this regard he has relied upon the decision in the case of Gopalappa @ Hoolyappa Vs. The State of Karnataka in Crl.A.No.489/2013 disposed of on 9/5/2018. At paragraph 13 it has been observed as under:- "13. In this regard he has relied upon the decision in the case of Gopalappa @ Hoolyappa Vs. The State of Karnataka in Crl.A.No.489/2013 disposed of on 9/5/2018. At paragraph 13 it has been observed as under:- "13. Be that as it may, in order to rely on the circumstance of recovery, in respect of the statement made under section 27 of the Act, the witness is required to state the words used by the accused in making disclosure statement and the same has to be recorded by the Investigating Officer and the same has to be proved in accordance with law. If the said words used by the accused if they have not been repeated either by the witness or by the Investigating Officer and if there is only mere exhibiting the documents or recovery, then it is not said to be a proper recovery under Section 27 of the Act. As could be seen from the evidence of PW.5, he has not specifically stated that the accused who were in the police custody, have voluntarily stated that they are going to produce the said article which they have kept with PW.11 and thereafter they have lead the police and panch witnesses and the same has been seized at the instance of the accused. In the instant case, no such procedure has been followed though there was a recovery of mangalya chain from the shop of PW.11. Even PW.11 has neither issued the receipt nor kept any chit by mentioning the names of the accused for having kept the said mangalya chain with him and paid a sum of Rs.2,000/-. When admittedly the accused persons were not known to PW.11, then under such circumstances, without mentioning the names of the persons, no person will give money." 16. We are conscious of the requirement of Section 27 of the Evidence Act. The prosecution in order to prove the case has relied upon Ex.P49. On perusal Ex.P49, it clearly indicates that particular portion of the voluntary statement whereunder discovery of the articles stolen has been got marked and has been deposed in the evidence of PW20. We are conscious of the requirement of Section 27 of the Evidence Act. The prosecution in order to prove the case has relied upon Ex.P49. On perusal Ex.P49, it clearly indicates that particular portion of the voluntary statement whereunder discovery of the articles stolen has been got marked and has been deposed in the evidence of PW20. On perusal of the evidence of PW4, he has clearly deposed before the court that the accused led them to the house of PW9 and there he went inside the house and by taking out the plastic cover from a black air bag, he has produced Mos.8 to 14 and the same have been seized. It is the contention of the learned counsel for the appellantaccused that the said evidence is not going to satisfy the provisions of Section 27 of the Act, but PW4 has clearly deposed before the court that on the basis of the voluntary statement, he took them to the house where he has committed the offence and thereafter he has led him to Lohia Nagar, Gokul Road, Hubli and there he has been taken them to the house of PW9 and by entering into the house, he brought the black air bag and produced Mos.8 to 14. During the course of cross examination of this witness, this part of the evidence has not been denied by the accused. Even there is no suggestion that accused has not led and produced such articles as contended by the prosecution, when the witness has specifically deposed before the court with regard to the accused leading them to the house of PW9 and producing the said articles, then under such circumstances, we are of the considered opinion that the statement of PW4 appears to be just and proper and nothing is there to discard the said evidence. 17. Even as could be seen from Ex.P49 whatever words which have been uttered by the accused, the same has been recorded in his own words and the same has been specifically got marked. Under such circumstances, the same appears to be trustworthy and reliable and in that light, the contention of the learned counsel for the appellantaccused that it is not having any force and the same is rejected. 18. Under such circumstances, the same appears to be trustworthy and reliable and in that light, the contention of the learned counsel for the appellantaccused that it is not having any force and the same is rejected. 18. It is the submission of the learned counsel for the appellant that when accused was apprehended and articles MOs.8 to 14 have been produced, the same have been got, seized and unsealed and in the police station PWs.1, 8 and 17 have not identified. On perusal of the evidence of PWs.1, 8 and 17, they have clearly identified the side articles as that of belonging to the deceased and even during the course of cross examination, nothing has been elicited so as to discard their such evidence. In that light also, the prosecution has clearly established the fact that whatever the articles which have been recovered from the possession of the accused are belonging to the deceased. Though it is contended by the learned counsel for the appellant-accused that MO.14-the shirt which has been seized by drawing a Mahazar as per Ex.P29, in the evidence of PW4 it has been stated as green colour shirt, but in the evidence of PW8, he has deposed with regard to brown colour shirt. But, merely on the basis of the deposition of the colour of the shirt, it is not considered to be a material contradiction. It all depends on the capacity of the witnesses to identify the colour if some colour blindness or other thing is there. Under such circumstances, they might have deposed in differently with regard to the colours. 19. Only on the basis of entire recovery which is said to have been made at the instance of the accused, it cannot be considered to be not admissible. 20. It is his further submission that while identifying the said articles, neither the investigating officer has got produced the bills for having purchased the said articles by the complainant nor the relatives or that they have not produced any documents. Under the normal circumstances, any person who normally purchases the articles for his own use, may not maintain bills by apprehending that some other day, the said articles are going to be stolen or decoity is going to be committed and the same are required to be produced before the court. Under such circumstances also, the said contentions do not hold good. 21. Under such circumstances also, the said contentions do not hold good. 21. Though it is argued during the course of arguments that in Ex.P25-the inquest mahazar it indicates that one Mangalya chain has been left over the body of the deceased and if the accused has committed the murder of the deceased for gain, then under such circumstances, he ought not to have left Mangalya chain on the body of the deceased. Only because the Mangalya chain has been found over the body of the deceased, no interference could be drawn that the accused was not having any motive to take away the gold articles for his gain. It all depends upon the circumstances at which the alleged crime has been committed. It is the case of the prosecution that when he went near the almeria and intending to take articles, at that time, he pushed her down and when she resisted, he has strangulated and committed the murder. So taking into consideration the circumstances under which the alleged incident has taken place, one cannot imagine that merely because the Mangalya chain has been left on the deceased, the accused was not having any motive or intention to commit the theft of the gold articles and he has not committed any offence. 22. On the perusal of the evidence of PWs.6 and 7, it indicates that the accused had came and approached him to take a house on rental and he has taken him to the house of the deceased and shown. But he had not liked the house. It is also not disputed that the ground floor of the house of the deceased was intended to be given on rental. Even PW 7 has also identified the accused moving around in the said locality before the alleged incident. The accused has not given any explanation under what circumstances, he has come in possession of the articles belonging to the deceased and even during the course of cross examination, nothing has been suggested in this behalf. Taking into consideration all these circumstances, the recovery evidence which has been produced by the prosecution appears to be cogent and acceptable. 23. The prosecution has proved the fact that the deceased died a homicidal death. However the learned counsel for the appellant-accused has also not disputed the fact that the deceased died homicidal death. Taking into consideration all these circumstances, the recovery evidence which has been produced by the prosecution appears to be cogent and acceptable. 23. The prosecution has proved the fact that the deceased died a homicidal death. However the learned counsel for the appellant-accused has also not disputed the fact that the deceased died homicidal death. Under such circumstances, the prosecution has clearly established the fact that the deceased died a homicidal death and the articles belonging to the deceased were recovered at the instance of the accused. As already pointed out that if important links have been established by the prosecution to prove that it is the accused alone who has committed the alleged offence, then under such circumstances, the prosecution story is said to have been proved. The accused has not made out any ground to contend that he has been falsely implicated in this case by the complainant and other witnesses. Though during the course of Investigation, there were some informatives, they are neither contradictory nor they are going to take away the entire case of the prosecution. 24. Looking from any angle, the evidence produced appears to be cogent and acceptable. The trial court after taking into consideration all the facts and circumstances, has come to a right conclusion and rightly convicted the accused. There are no grounds made out by the appellantaccused to interfere with the judgement of the trial court. The judgement of the trial court deserves to be confirmed and appeal is to be dismissed as devoid of merits. 25. Hence, we proceed to pass the following: ORDER Appeal is dismissed as devoid of merits. The impugned judgment of conviction and order of sentence dated 18.01.2017, is confirmed. Trial court is directed to secure the presence of the accused and to issue conviction warrant. The bai l bond and surety bond stand cancelled.