State Of Karnataka vs Murali and Others

K. Sreedhar Rao, J.—One Smt. Parvathamma is the deceased. One Puttashetty-P.W. 3 is the brother of the deceased. One Leelavathi-P.W. 1 is the wife of P.W. 3. The said persons were all residing together in the tenanted premises belonging to one Nanjundaiah-P.W. 2. The tenanted premises, which is one of the row of houses and other tenants were residing in the said row of houses. Respondent 1 (for short, ''R1'') in Cri. A. No. 516 of 2004 is the accused 1 (for short ''A1''). The Appellants in Cri. A. Nos. 1851 of 2003, 38 of 2004 and 68 of 2004 are accused 2, accused 4 and accused 3 (for short, ''A2, A4 and A3'') respectively before the Trial Court.

A1 was the neighbour of P.W. 3. A1 is studying PUC. A2 to A4 are friends of A1. P.W. 4 is the minor child of P.W. 1, aged around 2 years at the time of incident. A1 was quite friendly with the members of the family of P.W. 3. On 9-1-1999 around 7.30 p.m., P. Ws. 1, 4 and the deceased were in the house. P.W. 3 had gone out on work. A1 visited P.W. 1 and the deceased. He had chat with them and he was given coffee, afterwards he came out. Thereafter about 5 to 10 minutes, Al came back along with A2 to 4 on the pretext that he has forgotten his cap in the house. A1 immediately gagged P.W. 1 with his hands and told his companions to stab. One of the accused assaulted P.W. 1 with knife on the side of the neck, the other two held the deceased. They were telling the P.W. 1 to open almirah. P.W. 1 on account of assault fell unconscious.

After becoming conscious, P.W. 1 found that her hands were tied and she was gagged with a kerchief. She also found her aunt is lying dead. The almirah was open. The articles in the almirah were helter-skelter. The valuable articles in the almirah were found robbed. She went to open the door, but found that it was bolted from outside. P.W. 1 tapped the door. One Komala-P.W. 6 (neighbourer) came and opened the door. With the assistance of neighbourer, P.W. 3 was informed. P.W. 1 was taken to Raghavendra Nursing Home for treatment. The police recorded the statement of P.W. 1 in the Nursing Home at 9.30 p.m. as per Ex. P. 1 which is registered as FIR.

The PM report of Parvathamma discloses that the death is due to asphyxia as a result of smothering and throttling and the death is homicidal. P.W. 1 is treated in Raghavendra Nursing Home. The wound certificate of P.W. 1 as per Ex. P. 21 discloses that she has sustained as many as 11 injuries both incised and lacerated injuries on the neck, forearm and dorsum. The injuries are stated to be grievous in nature.

The I.O. visited the scene of offence conducted the inquest, summoned the finger print expert. The chance prints were found in the knob of the Almirah. The photographs are taken. At the time of inquest the bloodstained towel, the bloodstained nylon rope and a banian which was lying at the scene are seized under inquest report.

A1 to A4 are arrested on 10-1-1999 in the night around 4.00 a.m. At the voluntary instance of A1, the bloodstained clothes i.e., one Jeans Pant-M.O. 62, one shirt-M.O. 63 and one cap-M.O. 64 are recovered under Mahazar-Ex. P. 8.

At the voluntary instance of A2, one knife-M.O. 1, one pant-M.O. 65, and one shirt-M.O. 66 are recovered under Ex. P. 9.

At the instance of A3, the gold ornaments and other valuables which are marked at M. Os. 10 to 15 under mahazar.

At the voluntary instance of A4, bloodstained pan, bloodstained shirt and gold jewels M. Os. 56 to 61 respectively are recovered under mahazar-Ex. P. 7. The above mahazars are witnessed by P.W. 10 and C.W. 7.

The bloodstained articles are sent to FSL for examination. FSL report is marked at Ex. P. 18 and serologist report is marked at Ex. P. 28. A2 to A4 are strangers to P.W. 1. The Taluka Executive Magistrate conducted the TI parade on 22-2-1999 vide Ex. P. 29. P.W. 1 has identified A2 to A4 in the TI parade.

The material witness examined by the prosecution are P.W. 1-complainant-cum-injured witness. P.W. 3-husband of P.W. 1 speaks to the post incident circumstance and identifies M. Os. 10 to 55 recovered at the instance of A3 as the articles belonging to them. P.W. 4 is the child witness son of P.W. 1 who testified to the incident. P.W. 10 is the mahazar witness for the recoveries. P.W. 18 is the doctor who has treated P.W. 1 and has issued wound certificate as per Ex. P. 22. The extract of the MLC register of the hospital is marked at Ex. P. 22(b). P.W. 16 is the Assistant Director of FSL who has issued FSL report as per Ex. P. 18. P.W. 21 is the scientific officer who conducted serological examination and issued report as per Ex. P. 28. P.W. 22 is the Tahsildar -- Executive Magistrate who has conducted T.I. Parade. P.W 20-Nagendra Rao is the Finger Print Expert. His report-Ex. P. 27 discloses that chance prints found at the scene tally with the fingerprints of A3.

P.W. 24 is the I.O. who registered the FIR, conducted the investigation and filed the final report. All the above said witnesses have testified to the material circumstances, which incriminate the guilt of the accused and have supported the case of the prosecution.

The following are the incriminating circumstance relied upon by the prosecution to prove the guilt of each of the accused:

Accused No. 1:

A1 is acquainted with P.W. 1 and her family. P.W. 1 has named A1 in the complaint attributing overt acts of assault.

The recovery of bloodstained T-shirt-M.O. 63 and one Jeans Pant-M.O. 62 at the voluntary instance of A1.

Accused No. 2:

The identification in T.I. Parade by P.W. 1 and at the voluntary instance of A2, bloodstained knife-M.O. 1, bloodstained pant and T-Shirt-M.O. 65 and M.O. 66 are recovered.

Accused No. 3:

He is identified in the T.I. Parade by P.W. 1.

His fingerprints are found on the knob of almerah.

The gold ornaments and other valuables-M. Os. 10 to 15 were recovered from the possession of A3. The P.W. 3 has identified the articles as belonging to his family.

The evidence of fingerprint expert-P.W. 20 would prove the said circumstance.

Accused No. 4:

He is identified in T.I. parade by P.W. 1. The bloodstained pant and shift are recovered at his instance. The gold jewelleries-M.O. 58 to M.O. 61 are recovered from his possession at his voluntary instance.

The plastic rope-M.O. 2, towel-M.O. 5, bloodstained banian-M.O. 9 were found at the scene. They were seized at the time of inquest and sent along with bloodstained clothing of the accused persons to the FSL. The FSL and serologist report discloses that bloodstains on all 11 articles are of ''O'' group blood.

The Trial Court on the basis of above evidence, convicted A1 to A4 for offences u/s 304, Part II of IPC for causing death of Parvathamma and further convicted them for the offence under Sections 448, 326 and 394 read with Section 34 of IPC.

The State has filed two appeals. One appeal is filed against the acquittal for offence u/s 304 of IPC and another appeal is filed seeking enhancement of sentence for the offence u/s 302 of IPC.

Sri Tomy Sebastian, the learned Senior Counsel appearing for A4 made the following submissions to assail the order of conviction:

(i) The T.I. parade conducted is a farce exercise. The photographs of A2 to A4 were published on 11th January, 1999 in Prajavani and on 17th January, 1999 in Hi-Bangalore. The TV channels had also telecast the episode showing A2 to A4. P.W. 3 admits that he had seen the photographs in the newspapers and also telecast in the TV channels.

(ii) The say of P.W. 1 that she had not seen the photographs in the paper and the telecast and that she was not informed of the said fact by her husband is an artificial version.

(iii) P.W. 1 does not give the physical features of A2 to A4 in the complaint. Further, states that when she was admitted in hospital, the police visited her, but she was not in a position to tell the description of A2 to A4 to them.

(iv) P.W. 4-son of the deceased admits that he has seen the telecast in the TV and his father has recorded the telecast. The evidence of P.W. 4 is discrepant and artificial and he is a tutored witness.

(v) P.W. 3 admits that he has seen the photographs in the newspapers and also seen the telecast but says that he has not shown the photographs to P.W. 1. The said version is artificial.

(vi) The integrity of TI parade is doubtful.

(vii) The recovery of bloodstained clothing from A1 to A3 is a concocted circumstance. P.W. 16 is the Assistant Director of FSL. She states that she analysed 11 articles sent by the I.O. She scraped the incriminating materials from the articles and cut some of the pieces for sending it to Serologist, Calcutta. The records otherwise disclose the articles were never sent to Calcutta. Eleven articles were immediately returned after examination by P.W. 16.

(viii) There is no immediate examination of scrapings and cuttings. It is only a day before the recording of evidence of P.W. 21, the examination of scraping and cuttings is done and report is sent to the Court. The latches and belated examination of cutting and scrapings create a serious doubt about the veracity of the Serologist report.

(ix) The evidence of P.W. 1 with regard to photographs is discrepant. In the complaint she says that she was held by A1 and one of the persons stabbed her and the other two attacked the deceased. But in the evidence she gives a twist to the theory that all the four attacked P.W. 1 and also the deceased.

(x) In the FIR, P.W. 1 states that A1 alone visited at the first instance and after drinking coffee he went away. Thereafter, he came back immediately with three others. But in the evidence, P.W. 1 states that he and A4 came together in the first instance, after drinking coffee they went away and come back immediately with two others.

Sri Hashmath Pasha and Sri Lankesh adopted the arguments of Sri Tomy Sebastian, Sri G. Suresh for A1 made the additional submissions, which are as follows.--

(i) The admission register at Ex. P. 22 of Raghavendra Nursing Home discloses that in the history column, injuries are by assault at 7.30 p.m. by Murali and other with a knife. The name of Murali is struck off in the history column. The contents of the Admission register create serious doubt about the involvement of the accused in the incident because of tampering.

(ii) The accused were arrested on the same day and T.I. parade with inordinate delay was held on 22-2-1999 which dents credibility of T.I. parade.

Sri Bhavani Singh, per contra, argued that the circumstances of T.I. parade and the recovery evidence suggest that bloodstained cloths of the accused tally with the blood group of P.W. 1. The fingerprint found at the scene on the handle of almirah would clinchingly establish the guilt of A3. The death of Smt. Parvathamma is homicidal and is by smothering. The death is caused intentionally and also the injuries are caused which are capable of causing death in the ordinary course. Hence, the accused should have been convicted u/s 302 of IPC and u/s 307 of IPC for attempting to cause murder of P.W. 1. The conviction for lesser sentence u/s 304, Part II of IPC is illegal and the same is to be modified. The sentence imposed for the conviction is inadequate and calls for enhancement.

The credibility of TI parade is seriously challenged by the defence. It is in the evidence that on 11-1-1999 in Prajavani and on 22-1-1999 in ''Hi-Bangalore'' the photographs of A1 to A4 are published. It is also not disputed that A1 to A4 are shown in the TV telecast on 10-1-1999. P.W. 3 admits that he has seen the telecast and also the photographs in the newspapers. However, he states he did not show the photographs to P.W. 1. It is argued that P.W. 4 admits that P.W. 3 has recorded TV telecast. Therefore, the say of P.W. 1 that she has not seen the telecast and photographs of A2 to A4 prior to TI parade is an artificial version and to be rejected.

When accused is a stranger to the eye-witness/victim, the I.O. immediately after the arrest of the accused would get TI parade conducted through Executive Magistrate in order to prove the identity of the accused. The I.O. should strictly guard the identity of the accused till the TI parade is conducted. If there is any material to suggest that the eye-witness/victim had access to see the accused, the integrity of the evidence of TI parade becomes doubtful to be believed. The evidence of identification of the accused in a foolproof T.I. parade is one of the strongest circumstances to prove the guilt.

The development of technology has vigorously energized the visual and print media. The competitive over active media to churn out the news 24x7 keeps sniffing and nag behind the police. The incidents of crime are sensationalised as a news for lucrative commercial pursuit. The Police Officers who are publicity crazy fall prey to the temptations of press and part with the information of the half-done investigations. Many a time, the names of the police officers are quoted in the news items as a source and they also appear in the visual media. The hasty disclosure of the evidence collected in half done investigation would dangerously harm the investigation. The culprits will have a scope for tampering and hushing up the evidence. The service conduct rules governing the police officers who are public servants does not permit them to give press interviews, for the acts they do in public capacity. The breach of the said rule attracts a disciplinary action. The hasty parting of investigation of half done investigation and publication of such investigation as a news by media would amount to interfering with the administration of justice and would amount to contempt of Court.

The Supreme Court in M.P. Lohia etc. Vs. State of West Bengal and Another, , has made the following observations:

Having gone through the records, we find one disturbing factor, which we feel is necessary to comment upon in the interest of justice. The death of Chandni took place on 28th February, 2002 and the complaint in this regard was registered and the investigation was in progress. The application for grant of anticipatory bail was disposed of by the High Court of Calcutta on 13-2-2004 and SLP was pending before this Court. Even then an article has appeared in a magazine called ''saga'' titled "Doomed by Dowry" written by one Kakoli Poddar based on her interview of the family of the deceased. Giving version of the tragedy and extensively quoting the father of the deceased as to his version of the case. The facts narrated therein are all materials that may be used in the forthcoming trial in this case and we have no hesitation that this type of articles appearing in the media would certainly interfere with the administration of justice. We depreciate this practice and caution the publisher, editor and the journalist who were responsible for the said article against in such trial by media when the issue is subjudiced. However, to prevent any further issue being raised in this regard. We treat this matter as closed and hope that the other concerned in journalism would take note of this displeasure expressed by us for interfering with the administration of justice.

In the light of the above observations, there can be no second opinion that hasty parting of information by the police officials which has a tendency to damage the interests of investigation and such publication of information by the media would amount to contempt of Court. We direct the Director General of Police and Home Secretary to take disciplinary action against the police officers who give press interviews and appear in visual media revealing the information relating to crime.

The media may have right to information relating to investigation, but only after the investigation is complete and through the material in the charge-sheet, filed in the Court and not by oral information from the police officials.

We find that the evidence of P.W. 4 is to be out rightly rejected on the ground of a child witness not competent to testify. On the date of the incident P.W. 4 was aged around 2 years, on the date of the evidence, aged around 5 years. The evidence is recorded almost about 3 years after the incident. It is incredible to expect P.W. 4 to testify as an eye-witness to the incident. The way in which the P.W. 4 has answered the questions in the cross-examination shows that the child has absolutely no proper maturity to understand and answer the questions. P.W. 4 has answered all the suggestions put by the defence in affirmative without proper understanding. We are astounded by the imprudent conduct of the Public Prosecutor in tendering the witness before the Court as an eye-witness. Therefore, no part of the evidence of P.W. 4 can be considered as valid evidence either in support of the prosecution or the defence.

P.W. 1 emphatically says that she has not seen the photographs in the newspaper and nor seen the telecast. There is no ground to disbelieve her veracity. Since, there is no material on record to show why P.W. 1 should falsely implicate A1 to A4, if somebody else has committed the offence. It is true that in case of appreciation of evidence of T.I. parade the witnesses who are expected to identify the culprits should not be prompted in any manner before T.I. parade. It is because if such prompting takes place the evidence of identification in T.I. parade becomes doubtful to be believed but that should not be taken as an inviolable rule under all circumstances. The identification of the accused by the victim/witness in the TI parade need not necessarily be rejected on the ground that they are prompted prior to TI parade, if it is established that the victim witness could identify the accused by their strong indelible memory. The prompting in such cases by the police may be inconsequential and cannot be a ground to reject the testimony.

P.W. 1 in the evidence states that it was A1 and A4 visited on first occasion, later on they came with two other persons. In the FIR, she has stated that A1 visited first. Further, in the FIR she has stated two of the accused assaulted and two attacked the deceased. But in the evidence she states all the four attacked her and also the deceased. These discrepancies are only minor in nature and cannot go to the root of the matter to disbelieve the version of P.W. 1 regarding incident and the guilt of A1 to A4.

With regard to the recovery evidence, bloodstained clothes is recovered from A1, A2 and A4. The nylon rope, a towel and bloodstained banian were found at the scene and seized at the time of inquest. The death of Smt. Parvathamma is an asphyxia death without spill of a blood. P.W. 1 was attacked with a knife on the neck, forearm, palm and dorsum and she was heavily bleeding. Her evidence also discloses that the accused tried to strangulate her with nylon rope. A2 assaulted her with knife. The bloodstained clothes, nylon rope, banian and towel are sent FSL along with bloodstained articles are recovered at the instance of A1, A2 and A4. The FSL report discloses that all the eleven articles had bloodstains.

P.W. 16-Additional Director of FSL in her evidence states that she had scrapped the incriminating material from some of the articles and the cuttings were sent for serological examination to Calcutta. The said evidence appears to be inadvertent evidence without reference to records. The evidence of P.W. 21 discloses that he conducted serological examination about two days prior to his evidence before the Court. The evidence discloses reminders were issued by the I.O. for production of Serologist before the Court. There was almost delay of more than two years in conducting serological examination of the scrapings and cuttings. The delay was brought to the notice of Director of FSL. On his orders P.W. 21 examined the scrapings and cuttings and issued the report a day before his evidence. The FSL report and serologist report disclose that bloodstained clothes of A1, A2 and A4 and bloodstained articles like knife, nylon rope, towel and banian. All of them is ''O'' blood group. This probabilises the involvement of the accused and their guilt.

The above facts may disclose that there is an element of latches on the part of FSL authority in not examining the articles promptly. But the delay on the part of the FSL need not be a ground to reject the veracity of the evidence of P.W. 1.

The A1 is familiar to P.W. 1. A2 to A4 are not familiar. But they are identified in TI parade. The recovery of bloodstained clothes and articles from A1, A2 and A4 would corroborate the version of P.W. 1 and clinchingly to prove the guilt. Insofar as A3 is concerned the gold articles M. Os. 11 to 15 have been seized and recovered and they are identified by P.W. 3 as belonging to their family. Besides, the fingerprint of A3 is also found at the scene, which would clinchingly establish the guilt of A3.

We are astonished by the reasoning of the Trial Court in convicting the accused for an offence u/s 304, Part II of IPC. It is a clear case where accused persons trespassed into the house with an intention to commit robbery, in that course they deliberately smothered and throttled Smt. Parvathamma resulting in death by asphyxia. They attacked and assaulted the deceased with knife on the neck and other parts of the body. The said conduct would clearly establish the guilt u/s 302 for causing death of Parvathamma and Section 307 of IPC for attempt to cause the death of P.W. 1. Besides the accused are also guilty under Sections 394 and 448 read with Section 34 of IPC.

For the reasons and discussion made above, the appeals of the State are allowed. A1 to A4 are convicted under Sections 302, 307, 394 and 448 read with Section 34 of IPC. A1 to A4 are sentenced for life u/s 302 of IPC and also for conviction for life u/s 307 of IPC. They are convicted and sentenced to rigorous imprisonment for a period of 10 years u/s 394 of IPC, two years for offence u/s 448 of IPC.

The appeals of the accused are dismissed.

If accused are on bail, they have to be arrested and committed to serve the sentence.

K. Sreedhar Rao and B.V. Pinto, JJ.

24-9-2010

ORDERS ON ''BEING SPOKEN TO''

Counsel for Respondent 4-accused 4 (for short, ''A4'') in the appeal by the State has brought to the notice that, the date of birth of A4 is 15-4-1981. The date of commission of offence is 9-1-1999 and that A4 was aged about 17 years 8 months 24 days on the date of commission of offence. The Counsel for A4 relied on the decision of Supreme Court in Hari Ram Vs. State of Rajasthan and Another, and Dharambir Vs. State (NCT of Delhi) and Another, , to contend that, A4 would be entitled to benefit under the Juvenile Justice (Care and Protection of Children) Act, 2000 which came into effect from 1-4-2001.

The decision laid down by the Supreme Court in the said case makes explicitly clear that, the juvenility of the accused is to be determined on the basis of date of commission of offence and with reference to the date of Juvenile Justice Act of 2000 came into force with effect from 1-4-2001.

The provisions of Section 2-K, 2-L, 7-A read with Section 20 of the said Act would make it clear that, whenever the accused on the date of commission of offence is less than 18 years on or before 1-4-2001, he would be entitled to benefit under the Juvenile Justice Act.

In this case, the prosecution version itself would disclose that, A4 was a juvenile as on the date of commission of the offence. Therefore, further enquiry with regard to determination of the age is unnecessary. The sentence imposed in this appeal against Respondent 4/A4 is set aside and he is directed to be sent to Juvenile Justice Board who shall deal with the case in accordance with law.

In respect of the other accused, the order of conviction and sentence imposed is confirmed.

Registry is directed to send a copy of this judgment to the Director General of Police and Home Secretary for strict compliance of the observations made in para 24.