P. Nagesh vs State of Karnataka

Dr. K. Bhakthavatsala, J.—This is an Appeal filed by accused Nos. 1 and 2 in SC No. 456/2003 on the file of Fast Track Court-IX at Bangalore City, under Section 374(2) of the Code of Criminal Procedure, challenging the judgment of conviction dated 10.4.2006 for the offences punishable under Sections 364, 302, 379 and 201 r/w Section 34 of the Indian Penal Code and the order of sentence dated 12.4.2006 sentencing the appellants/accused:

(i) to undergo imprisonment for life and pay a fine of Rs. 2,000/- each, in default in payment of fine, to undergo SI for 6 months for the offence punishable under Section 302 r/w Section 34 of IPC;

(ii) to undergo RI for 7 years and pay a fine of Rs. 2,000/- each, in default in payment of fine to undergo SI for 6 months for the offence punishable under Section 364 r/w Section 34 of IPC;

(iii) to undergo imprisonment for 5 years and pay a fine of Rs. 1,000/- each, in default in payment of fine, to undergo SI for 3 months for the offence punishable under Section 201 r/w Section 34 of IPC; and

(iv) to undergo imprisonment for 2 years for the offence punishable under section 379 r/w Section 34 of IPC.

On 19.1.2010, the Appeal filed by the accused in the above said case was dismissed by a Division Bench of this Court on 19.1.2010 confirming the impugned order of conviction and sentence for the charges levelled against the accused.

The accused on challenging the judgment dated 19.1.2010 before the Apex Court in Criminal Appeal No. 887 of 2013, the same came to be allowed on 7.9.2013 and the judgment dated 19.1.2010 of the Division Bench was set aside and remanded the appeal for fresh disposal, with liberty to the accused to raise all the contentions as raised in the Appeal. Thus, the Appeal in Crl. A. No. 968/2006 was restored to file.

For the purpose of convenience and better understanding, the appellants 1 and 2 are hereinafter referred to as ''accused Nos. 1 and 2'', respectively.

Brief facts of the case leading to the filing of the Appeal may be stated as under:

P.W.-1/Prema is the wife of P.W.-10/P Raju. They had 6 children viz., 3 sons and 3 daughters. The deceased-Girish is their fourth child, aged about 19 years. It is stated that the deceased, who was working as a Tailor for Bata Shoe Company situated in Peenya. Later on, he left the job. Thus, since a year he was unemployed; P.W.-1 had purchased a brand new Yamaha motor cycle RX-registered as KA 02 EG 3103; on 2.11.2002 at about 5.30 pm, the deceased-Girish, who took the motor cycle to meet his friends, but he did not return home; his parents and family members, searched for him till 6.11.2002, but in vain; on 6.11.2002, at about 3.30 p.m., P.W.-1 lodged a missing complaint with Rajagopalanagar Police. It was registered in Crime No. 329/2002. Again, on 6.3.2003, at 12.30 p.m., she (P.W.-1) lodged further report against accused Nos. 1 and 2 as per Ex. P5. Case was registered for the offences punishable under Sections 364, 302, 201 and 379 r/w Section 34 of IPC. It is stated in Ex. P-5 that she learnt that the accused persons are in possession and using the motor cycle which was taken by her son Girish.

It is the case of the Peenya Police that they apprehended the accused while plying the motor cycle at Peenya circle and they gave voluntary statement as to their involvement in the crime; on the ground of jurisdiction, the case was handed over to Rajagopalanagar Police Station. Accordingly, Rajagopalanagar Police arrested the accused, seized the motor cycle and recorded voluntary statement of the accused. They lead the Police, the Taluka Executive Magistrate and Panchas to a land situated at Baktharahalli Village, Kunigal Taluk, and pointed out the place where the dead body of Girish was buried. In the presence of Taluka Executive Magistrate, the dead body was exhumed. It was in a decomposed state. P.W.-1/mother, P.W.-10/father and P.W.-11/brother of the deceased-Girish, who were present at the spot, identified the dead body as that of Girish. Post-mortem was conducted over the deceased at the spot. Skeletons, sample cloth of shirt and pant were also collected. The Medical Officer has opined that the cause of death was possible by strangulation.

After the investigation was over, charge sheet came to be laid against both the accused for the offences punishable under Sections 302, 201, 379 and 364 r/w Section 34 of IPC. The case was committed to Sessions Court. On receipt of the committal records, it was registered in SC No. 456/2003 on the file of Fast Track Court-IX, at Bangalore City. The trial Court framed charges against the accused for the above-said offences. The accused pleaded not guilty and claimed to be tried. In support of the case of prosecution, it has got examined as many as 51 witnesses, got marked 97 documents and got exhibited 12 material objects. After the evidence on the side of prosecution was closed, statement of the accused under Section 313 of Cr.P.C. was recorded. The accused have denied all the incriminating circumstances appearing in the evidence of prosecution witnesses. They have not adduced any defence evidence. The trial Court, after hearing arguments, perusing the oral and documentary evidence on record, made the impugned judgment of conviction and order of sentence. This is impugned in this Appeal.

Learned Counsel appearing for the appellants/accused submits as under:

The trial Court erred in convicting the accused on following circumstantial evidence though they were not proved:

(i) that the accused and deceased were friends;

(ii) that the accused was last seen with the deceased;

(iii) that the accused committed murder of the deceased-Girish and robbed the motor cycle;

(iv) that the motor cycle (M.O.-5) was recovered from the possession of the accused;

(v) that the accused changed the number plate of the motor cycle (M.O.-5);

(vi) that watch (M.O.-6) from P.W.-8/Lingaraj (brother of accused No. 1) of the deceased was recovered at the instance of accused No. 1;

(vii) that as per the voluntary statement of the accused Nos. 1 and 2, the dead body of Girish was exhumed and

(viii) that the inland letter (Ex. P2) was written by accused No. 2/Anand to the parents of the deceased/Girish with an intention to mislead them that he (Girish) was alive and safe.

Learned counsel for the accused submits:

(i) that Ex. P-1 (missing complaint) was concocted after the recovery of dead body (but not pleaded in the memorandum of Appeal);

(ii) that the prosecution witnesses namely P.Ws. 12, 13, 28, 33 and 38 were examined to prove that the accused were seen with the deceased on 2.11.2002 but except P.W.-38 other witnesses viz., P.W.-12, 13, 28 and 33 did not support the case of prosecution;

(iii) that the evidence of P.W.-38 that the appellants/accused came along with a person and performed pooja for the new vehicle is not sufficient to connect the accused for the crime;

(iv) that the prosecution failed to prove that the accused committed murder of Girish to rob the motor cycle (M.O.-5);

(v) that P.W.-36/Dr. Vasantha Kumar has given only general opinion as to cause of death of Girish;

(vi) that the alleged recovery of motor cycle (M.O.-5) from the accused is not proved;

(vii) that the evidence of P.W.-18/Chikkanna that he received an inland letter as per Ex. P-2 and that he handed over the same to P.W.-1 are of no avail;

(viii) that joint recovery motor cycle (M.O.-5) at the instance of accused Nos. 1 and 2 is inadmissible in evidence;

(ix) that watch of the deceased (M.O.-6) alleged to be seized at the instance of the accused/appellant No. 1 is not supported by the mahazar witnesses and apart from that it is not stated in the complaint of P.W.-1 that the deceased was wearing the watch;

(x) that recovery of dead body of Girish in pursuance of voluntary statement of accused is false as P.W.-45 who has deposed that he has deposed in his cross-examination that before recording Exs. P76 and P77, he knew where the dead body was buried;

(xi) that P.W.-45 who took specimen signature of accused No. 2/Anand, has not stated when and where specimen signature of the accused was taken; and

(xii) that the trial Court erred in believing the evidence of prosecution that Ex. P2 (inland letter) was written by accused No. 2 as if the deceased wrote it to his parents.

He relies upon the following decisions:

(i) Udaimanik Jamatia Vs. State of Tripura, , on the point of recovery of dead body;

(ii) Rishi Pal Vs. State of Uttarakhand, on the point of appreciation of circumstantial evidence with reference to motive in a murder case;

(iii) The State of Punjab Vs. Bhajan Singh and Others, on the point of appreciation of evidence when the Doctor, who conducted post mortem of the decomposed body is unable to find out the cause of death;

(iv) State of Rajasthan Vs. Sanjay on the point of appreciation of evidence of witnesses regard the last seen theory of prosecution; and

(v) World Human Rights Protection Council Vs. Union of India (UOI) and Others, on point the procedure to be followed in the case of missing complaint.

Therefore, he submits that the impugned judgment of conviction and order of sentence may be set aside

On the other hand, Sri Keshava Murthy, learned Addl. Public Prosecutor, submits that the prosecution has established the circumstantial evidence viz.,

(i) that the accused and deceased were friends;

(ii) that on 2.11.2002 the deceased was last seen with the accused;

(iii) that the motive for commission of murder is to rob motor cycle (M.O.-5) from the deceased;

(iv) that the accused have changed the number plate of the motor cycle;

(v) that the motor cycle (M.O.-5) was recovered from the accused;

(vi) that the dead body of Girish was exhumed on disclosure by accused;

(vii) that accused No. 2/Anand had written an inland letter (Ex. P2) to P.W. 18 to mislead the parents of the deceased; and

(viii) that the trial Court, on proper appreciation of evidence on record, has rightly convicted the accused for the charges levelled against them and awarded the sentence and there is no merit in the appeal.

In the light of the arguments addressed by the learned Counsel for the parties, the only point that arises for our consideration is:

Whether the impugned judgment calls for our interference?

Our answer to the above point is in the negative for the following reasons:

P.W.-1/Prema (mother of the deceased-Girish) has deposed that on 2.11.2002 at 5.30 p.m., her son-Girish (the deceased) left the house with RX Yamaha motor cycle bearing registration No. KA 02 EG 3103 saying that he was going to meet his friends, but he did not return home. Therefore, she and her family members made extensive search and enquiries, but in vain. On 6.11.2002 at about 3.30 p.m., she lodged a missing complaint as per Ex. P1 with Rajagopalanagar Police Station and the same was registered in Crime No. 329/2002. The contention of the learned Counsel for the appellants/accused that the complaint at Ex. P1 and F.I.R. were concocted on 6.3.2003 is without any merit as nothing worthwhile is elicited in the cross-examination of P.W.-1/Prema and P.W.-26/Venkatesha Raju, the SHO of Rajagopalanagar Police Station, who registered the missing complaint in Crime No. 329/2002 on 6.11.2002 in this regard. No doubt the missing complaint at Ex. P1 was not submitted to the Court, but the prosecution has produced the extract of F.I.R. register, case diary and also the copy of notification issued with all the details including register number of the motor cycle and photograph of the missing boy. It was also a subject matter for review of the missing cases in review meeting. Under such circumstances, the contention of the defense that missing complaint was concocted on 6.3.2003 the day when Ex. P74/FIR was submitted to Court is not correct. The notification issued with regard to missing boy and communicated to all the Police Stations in the State of Karnataka is a public document; it was not marked as unnecessary. Now, the contention of the accused is that the missing complaint is concocted. Hence, there is no impediment to look into the document viz., the notification, which contains all the details viz., the photograph of the missing boy, name, age, height, complexion, physique, face shape, language, clothes and identification marks and the make and registration number of the motor cycle and the telephone number to be contacted in the case for tracing the boy. Therefore, there is no impediment to hold that P.W.-1/mother of the deceased lodged a complaint on 6.11.2002 and the same was registered in Crime No. 329/2002 and as per the directions of the Supreme Court, the necessary steps were taken by the Police to trace the boy and the motor cycle.

P.W.-1/mother, P.W.-10/Raju-father, and P.W.-11/Mahesh-elder brother of the deceased, have deposed that even after lodging a missing complaint, they continued their efforts in search of Girish. On 6.3.2003 P.W.-1 lodged a written complaint as per Ex. P5 with the Rajagopalanagar Police Station and also produced Postal inland letter (Ex. P2) received by her from P.W. 18. According to the contents of Ex. p. 2 the letter was addressed to Chikkanna (P.W.-18), Peenya I Stage, Police Station Road, 4th Cross, Mysore Mineral Industries, Bangalore-58. From address in Ex. P-2, it is mentioned as Girish, with a direction to give it to P.W. 1. It bears two seals of post office. One readable seal is that of Peenya I Stage and date as "5.11.2002". Inside the letter, date is mentioned as dated 3.11.2002. The letter is written in Kannada language; at the end of the letter, it is signed as ''Girish''. According to the contents of Ex. P2 Girish is working as a Supervisor and he is unable to come and his mother need not search for him and asked her to pay the vehicle loan and when he writes next letter, he would give his cell number. P.W.-1 has stated that she came to know that accused persons are in possession of her motor cycle, which was taken by the deceased. The complaint at Ex. P-5 was registered by P.W.-45/Chandrashekar Hosakere. It is in his evidence that already DCP, North; Bangalore had authorized P.W.-44/H Subbanna Police Inspector of Peenya Police to investigate the case. Thus, on 6.3.2003 at 1.35 p.m., when they were searching for the culprits, P.W. 44 came to know that somebody using the vehicle, by changing number. Therefore, he and his team went near the NTEF factory and waiting and at that time he intercepted two youngsters who were coming on a motor cycle-RH Yamaha 135 bearing registration No. KA 04 EF 4212. He enquired about their name, address and asked them to produce documents relating to the vehicle. Out of the two, one revealed his name as Nagesh (accused No. 1) and another as Anand (accused No. 2). But, they did not produce documents relating to the motor cycle. Thereafter, both of them admitted their involvement in the crime. Hence, he immediately secured panchas viz., Thimmarayappa and Subbu (P.W.-40) and in their presence he seized motor cycle (M.O.-5) from the accused as per Ex. P-23 and produced the accused, Motor cycle, seizure Mahazer and submitted his report before P.W. 45. In the cross-examination of P.W.-44 nothing worthwhile is elicited to prove that he (P.W.-44) did not seize the motor cycle from the possession of accused Nos. 1 and 2 under Ex. P-23, between 3.00 pm and 4.00 p.m. on 6.3.2003. Evidence of P.W. 44 is supported by PW-45/Chandrashekar Hosakere, the investigating officer. It is in his evidence that he interrogated the accused No. 1 and 2 separately and recorded their voluntary statement; since the accused stated that they would show the place where the dead body of Girish was buried in Baktharahalli Village, he wrote a letter to the Taluka Executive Magistrate, Kunigal and Assistant Commissioner, Tumkur, for exhumation of the dead body and also secured the panchas, photographer cum videographer; the accused one after the another, lead them to the land of P.W.-7 situated at Baktharahalli Village, he (P.W.-45) took services of one Munivenkatappa and also with the help of the accused, the earth was dug up and found a dead body with clothes, a rope around the neck, a metallic bangle and a black coloured thread on the right wrist. Postmortem examination was conducted by Dr. Vasanth kumar (P.W. 36) at the spot over the dead body. Parents and brother of the deceased who were present at the spot identified the dead body as that of Girish. P.W.-1/Prema, mother of the deceased, has deposed that accused Nos. 1 and 2 are friends of her deceased son-Girish.

P.W. 36-Dr. Vasanth Kumar has deposed that the accused were present, police with the help of someone and the accused, earth was dug up and found 90% skeleton of male body aged about 20 years, 2.5 feet below the surface, with light blue colour jeans shirt and pant, a rope around the neck (3 turns) measuring 4 feet in length and 1 c.m. width, metallic bangle, black thread in the right wrist and height of the skeleton was 5.2". He has deposed that the body was in advanced state of putrefaction. Opinion as to clause of death was kept pending for FSL report. He has given final opinion as to cause of death as ''possibility of death due to strangulation by means of rope'' and issued PM report as per Ext. P22.

P.W.-42/Shivaraju, has deposed that he took video (M.O. 11) as well as the photographs (Ext. P24 to 69) with regard to showing the place where dead body was buried and exhumation of dead body. We have seen the photographs as well as video cassette with regard to the accused leading the Police and panch witnesses one after the another to the place, where the dead body of Girish was buried and exhumed. The contention of the accused that P.W.-45/Investigating Officer had knowledge with regard to the place, where the dead body of Girish was buried, even before the accused lead the panchas and the Police to the spot is not established in evidence and the same is contrary to the evidence on record. Though the dead body was decomposed, the pant, shirt and other articles were in tact on the deceased. The clothes found on the dead body were the clothes mentioned in the missing complaint at Ex. P-1. The parents of the deceased and elder brother-P.W.-11/Mahesh of the deceased-Girish have identified the dead body as that of Girish. Therefore, we hold that the prosecution has proved that the dead body of Girish was recovered at the instance of the accused as per their voluntary statement. Therefore, the contention of the accused that there is no satisfactory evidence with regard to recovery of the dead body at the instance of accused Nos. 1 and 2 cannot be accepted and acted upon.

With regard to seizure of the motor cycle from the accused is concerned, as stated above, P.W.-44/Police Inspector of Peenya Police Station, has deposed that the accused No. 1 & 2 who were coming on a Yamaha motor cycle were intercepted; he enquired about their name, address and vehicle documents; they disclosed their names and confessed their involvement in the crime. Thereafter, he secured the panch witnesses. P.W.-40/Subba, in whose presence the motor cycle was seized at the instance of accused Nos. 1 and 2 has supported the case of the prosecution regarding seizure of the motor cycle (M.O.-5) from the accused. Thus, recovery of the motor cycle (M.O.-5) from accused No. 1 and 2 is also proved in evidence.

P.W. 17-Rajappa has deposed that he is a painter by profession and Accused No. 1 came and requested him to make Number plate and gave Number as ''KA 04 EF 4212'' (it is wrongly typed in the deposition as "4712") and he prepared the same. He has identified the accused. Nothing worthwhile is elicited in his cross-examination by the accused to disbelieve his evidence. The original number plate of the motor cycle bearing No. KA 02 EG 3013 has been changed to KA 04 EF 4212. The ''B'' register extract of the motor cycle contains engine number, chassis number of the seized motor cycle (M.O.-5). According to ''B'' register extract at Ex. P-10, P.W.-1/Prema is the registered owner. The vehicle has been hypothecated with Centurion Bank Limited. The vehicle is of 2002 model and the date of registration is 29.10.2002. According to P.W.-1, the motor cycle was taken by her son-Girish on 2.11.2002. It was a brand new vehicle. It is a case of prosecution that deceased-Girish and accused Nos. 1 and 2 were friends and accused Nos. 1 and 2 hatched a plan to kill Girish and rob brand new motor cycle.

It is pertinent to mention that at the time of exhumation of the dead body, there was a rope around the neck. Probably, the deceased was strangulated with a rope and the same was left with the dead body and buried. Thus, it is crystal clear that the accused with common intention killed Girish and robbed the motor cycle. Further, with an intention to rob the motor cycle and to screen them with the legal punishment; they buried the dead body in the coconut garden land belonging to P.W.-7/Ningamma (maternal grandmother of Accused No. 1-Nagesh). The accused, after burying the dead body, covered the place by putting leaves and branches of a tree. It cannot be said the video at M.O.-11 was concocted by the police. We have seen the video that accused Nos. 1 and 2 leading the Police and panchas separately one after another and pointing out the place where the dead body was buried; they removed the dried up bushes, branches, few stones and pointed out the place where the dead body was buried. It is pertinent to mention that the earth was well settled. Earth was dug up by the accused as well as P.W.-2/Munvenkatappa, whose services were engaged by the Police for exhumation of the dead body. M.O.-11-video cassette indicates that the Investigating Officer has investigated the case, in accordance with law. P.W.-31/Somasundar Babu, Taluka Executive Magistrate, has deposed about exhumation of the dead body. The contention of the defense that the prosecution failed to prove the recovery of the dead body of Girish at the instance of the accused is without any merit.

P.W.-7/Ningamma, owner of the land where the dead body was buried, has deposed that accused No. 1 is her daughter''s son. Though she has not supported the case of prosecution, it can be seen from the video cassette (M.O.-11), that she was sitting at the site while digging the earth where the dead body was buried and saying that the accused had come to her house with a motor cycle a week ago.

P.W.-38/Rajanna-a priest in Rangaswamy Temple, has deposed that at about 3 years prior to his deposition, the accused persons had come with another person with a new Yamaha motor cycle and requested him to perform pooja and accordingly he performed pooja. He has further deposed that since the accused as well as his family members are the devotees of the Temple he knows them. He has deposed that after performing pooja, they went away and four months later, the Police brought the accused and at that time, he identified them and informed about the same. Nothing worthwhile is elicited in his cross examination to disbelieve his evidence. Though P.W.-28/Krishnappa, cashier of Wine store and P.W.-33/Umesh, hotel owner did not support the case of prosecution with regard to the last seen theory, the evidence of P.W.-38 is sufficient to hold that the prosecution has proved that the deceased was seen in the company of the accused prior to his death.

Evidence of P.W.-51/Abhayakumar reveals that accused No. 2 was working as a Tailor for Gokuldas Factory and there were holidays from 1.11.2002 to 4.11.2002 (1st November being Kannada Rajyotsava) but accused No. 2 did not come to the factory on 5th and 6th of November 2002 and he was terminated from service on 10.1.2013.

For the reasons best known to them, P.W.-50/Chikkagangamma-mother of accused No. 1 and her sister P.W-49/Doddagangamma have not supported the case of prosecution.

From the evidence of P.W.-46/Shankrappa, Scientific Officer, FSL, Bangalore, the prosecution has proved that Ex. P2 is written by accused No. 2 and it was sent to P.W.-18/Chikkanna and the same was handed over to P.W.-1. It is in the evidence of P.W.-18 that as the inland letter was insufficiently stamped, he paid penalty therefore. It is the case of prosecution that M.O.-6 (watch) was given to P.W.-8/Lingaraju-brother of accused No. 1 and the same was seized from him (P.W.-8), but he and P.W.-9/Venkategowda did not support the case of prosecution with regard to seizure of watch of the deceased at the instance of accused No. 1 from P.W.-8. But, there is no good ground to reject the evidence of Investigating Officer with regard to the investigation conducted by him and seizure of M.O.-8.

In our view, the prosecution has established all the circumstances so as to reach the conclusion that it is accused Nos. 1 and 2, who being friends of the deceased, took him (Girish) and after performing pooja for the motor cycle, they killed him by strangulation and buried the dead body in the land of P.W.-7 (grand mother of accused No. 1). The dead body of the deceased was traced at the instance of accused No. 1 and 2 in pursuance of their voluntary statement. P.W.-40/Subba, who is a social worker, has deposed that in his presence, motor cycle (M.O.-5) was seized from accused Nos. 1 and 2 under the panchanama. From the evidence on record, it is crystal clear that it is a case of murder by the accused for gain. The decisions relied upon by the learned Counsel for the accused are of no avail. There is a ring of truth in the case of prosecution.

It is pertinent to mention that since the accused have been convicted for the offences punishable under Section 364 r/w Section 34 of IPC, the trial Court again convicting the accused for the offence punishable under Section 379 r/w Section 34 of IPC is not correct. However, the trial Court has sentenced the accused for the offence under Section 379 r/w Section 34 of IPC to undergo imprisonment for two years (no fine is imposed) and all the substantive sentences shall run concurrently, the order of conviction and sentence for the offence punishable under Section 379 r/w Section 34 of IPC becomes redundant.

In the result, we pass the following order:

Appeal fails and the same is hereby rejected.