Manjula Chellur, J.
1. These 3 appeals arise out of common judgment of conviction and order of sentence dated 5.2.2007 in SC 662/2001 on the file of Fast Track Court-I (Sessions), Bangalore.
2. The appeal in No. 325/2007 is filed by one Mr. Aparajit Biswanath Basak who was arrayed as accused No. 1, appeal No. 781/2007 is filed by one Ram Rakshaw Jaiswal, who was arrayed as 2nd accused and appeal No. 468/2007 is filed by one Mr. Pankaj Kumar Roy who was arrayed as accused No. 3, in SC No. 662/2001 on the file of the trial Court.
3. The learned trial Judge by the Judgment of conviction convicted accused Nos. 1 to 3 for the offences punishable under Sections 302, 307, and 328 read with Section 34 of IPC, apart from convicting them for offences under Sections 392 read with Section 397 of IPC. They were acquitted of offences punishable under Sections 420 and 120-B of IPC and so also in respect of offence punishable under Section 25 of the Arms Act. 1959. The substantive sentence of imprisonment of life was in respect of offence punishable under Section 302 or IPC. So far as other offences lesser sentence was imposed. Aggrieved by the said judgment of conviction and order of sentence the appellants-accused are before us.
4. At length we have heard Mr. Aparajit Basak in person and the learned Counsels appearing for other two appellants. The learned SPP Mr. S.B. Pavin argued for the prosecution seeking confirmation of judgment of conviction and sentence.
5. In brief the case of the prosecution is as under:
One Mr. K.R. Anantha Padmanabha Acharya (herein after called as 'Acharya' for short) was working as Manager at M/s Trade Wings Limited, Lavelle Road in the Department of Foreign Exchange. One Mr. Susainathan was also working with deceased Acharya as on the date of murder of Mr. Acharya on 7.5.2001.
According to the prosecution deceased Acharya left his office at about 1.30 pm on 7.5.2001 after informing Mr. Susainathan - P.W. 1 that he was proceeding to Hotel Ashoka with his friend P.W. 2 - Narasimhan with Rs. 5,00,000/- (rupees five lakhs; for exchange of the same towards foreign currency by some delegates. However, Mr. Acharya did not return to the office though he informed that he would return between 4.00 pm to 5.00 p.m. on that day. The effects of P.W. 1 to reach Acharya on mobile were futile. Though he tried to reach P.W.2, Narasimhan-friend of the deceased he was unable to reach him as well. One Mr. Ramesh-brotber-in-law of P.W.2 contacted P.W.1 -Susafnathan and through P.W.1 Mr. Ramesh learnt that deceased Acharya and P.W.2 Narasimhan had gone to hotel Ashoka, no one was able to reach them on their mobiles. Making inquiries at the Hotel Ashoka with the staff was of no assistance. However, none of the family members and their acquaintances including P.W.1 had any clue whatsoever about the whereabouts of deceased Acharya and P.W.2 on 7.5.2001. Therefore, P.W.1 - Susainanthan lodged man-missing complaint in respect of Aeharya in Crime No. 270/2001 with Ulsoor Gate Police Station by 4.00 a.m. on 8.5.2001. Similarly man-missing compliant of P.W.2-Narasimhah was lodged at the Sadashivanagar Police Station.
When deceased did not return home as P.W. 1 and the police found the ear of the deceased and scooter of Mr. Narasimhan in the parking place of Hotel Ashoka, they approached the receptionist of hotel Ashoka to inquire about the deceased and P.W.2. and also which of the rooms were vacated. On enquiry with the housekeeping and cheeking of the records, it, was learnt in front of room No. 523, a sign board of 'do not disturb' was hung. It was learnt from housekeeping boys that since the previous day the said board was hung and no order whatsoever came to be placed for any requirements from the said room. On summoning the Manager of Hotel Ashoka, with the help of a duplicate key the door of the room was opened. To their shock, they found Mr. Narasimhan-P.W.2 sitting in a chair like a disoriented person looking lost. In the bath room of room No. 523, Mr. Acharya was found dead in the bathtub with his hands and legs tied up with ropes and mouth was plastered. P.W.2 was immediately shifted to Mallya Hospital. Police of High Grounds immediately came to Hotel Ashoka and they also visited Mallya Hospital where Mr. Narasimlian was admitted. On the basis of a complaint, a case came to be registered in Crime No. 207/01 at 10.40 a.m. on 8.5.2001 for the offence under Section 302 of IPC against unknown persons and the FIR was sent to the concerned Magistrate.
The Investigating agency after securing witnesses inspected the scene of occurrence, conducted inquest mahazar Ex.P.2 over the dead body and recovered material objects M.O.1 pair of shoes, M.O.2 black bag, M.O.3 glass tumbler, M.O.4 Miranda bottle. M.O.5 cococola bottle, M.O.6 fanta bottle, M.O.7 limca bottle, M.O.8 purse with credit card, M.O.9 resident card of key of hotel, M.O.10 a card mentioning do not disturb, M.O.11 rope used for tying the hands of P.W.2, M.O.12 to 14 ropes on the table, M.O.I5 skin of banana and grape fruits, M.O.16 bandage cloth with blood stains, M.O.17 plaster piece, M.O.18 syringe cap. M.O.19 syringe needle, M.O.20 packet, containing a tooth, M.O.21 cover with glasses, M.O.22 another bandage cloth, M.O.23 plaster piece and M.O.24 cash of rupees fourteen thousand eight hundred and eighty only.
Further case of the prosecution is during the course of recording the statement of P.W.45 - Mrs. Veena Anand-Receptionist of hotel Ashoka, she was able to give the mobile No. 984419l5I4 of a person who said to have stayed in room No. 523 at the relevant point of time. After receiving information about the incoming and outgoing calls of the said mobile number they traced mobile No. 9844183553 belonging to one Mr. Jagadish - a taxi driver who was examined as P.W.46. Statements of several persons came to be recorded. Post mortem was conducted over the dead body of Mr. Acharya and the personal belongings of the deceased Acharya were seized under mahazar and subjected to property form. Statements of several witnesses like Smt. Santhoshi and Mikki, etc., names and addresses of distributors of several sim cards came to be secured on 10.5.2001. Statements of one Mr. Ashok Kumar, Balasubramanyam. M.G. Raju. Stanley, Sangeetha. N.Ramesha. came to be recorded on 11.5.2001. One Mr. Jagadish was examined as P.W.46 and he gave one visiting card given to him by accused-1 and the same was seized by the investigating agency. Similarly another visiting card was handed over to the police by Smt. Santhoshi-P.W.9. It was also subjected to Property form. One Mr. Hundekar, the then. ACP of Sheshadripuram took up further investigation from G.T Jayakumar on 12.5.2001 and one Mr. Ramaehadra-the police of Vayali Kaval assisted ACP Hundekar. They visited Infantry Court Hotel to know the visit and stay of accused-1 and recorded the statement of one Mr. Ronaldo. They also recorded the statement of Mr. Vinod, Front Officer, Mr. Ravikumar and Mr. Hari in the said hotel.
Statement of Praanav Murthy P.W. 17 - Bell Captain, who said to have carried the luggage of the person who stayed at room No. 523 came to be recorded and also statement of one Eswar Rao came to be recorded. Their visit to Mallya hospital lead to recording the statement of Smt. Sumithra who said to have sold Gluco Plaster to accused-1 on 2.5.2001. Sri Hundekar received report from the linger print expert, on 15.5.2001. Statement of P.W.57 one Mr. Rajendra attached to the police who developed the portrait of accused-1 on the basis of the statement, of Veena Anand-P.W.45, was recorded. Meanwhile, the police also visited Victoria Hospital to see Mr. Naraishman who was undergoing treatment at Victoria hospital. Ramanashree California situated at Yelahanka was also visited by Investigating Officer to collect the records of room No. 109 and 110 regarding stay of accused in those rooms. Meanwhile, Mr. Narasimhan was discharged from Victoria Hospital. His statement and also further statement of Susainathan-P.W. 1 was recorded.
Meanwhile, all the 3 accused were apprehended at Poona on 18.5.2001 pertaining to crime No. 207/01. Mr. Nagendra Kumar, the then Police Inspector of Vidhana Soudha Police Station assisted Mr. Mohan. Investigating Officer, who was already at Poona for the apprehension of the accused. Mr. Venkata Swamy Police Inspector and Head Constable Devaiah were also part of the team. Accused No. 3 was arrested while he was alighting from a train from Gorakhpur on 18.5.2001 at Poona. On search, a pistol a mobile phone, a charger, clothes 12 cartridges, etc. were seized by him under mahazar. On 18.5.2001, accused-1 and 2 were arrested from their house at Poona. As a matter of tact, on the information of accused-2, Mr. Siddappa, Police Inspector went to the house of aecused-2, situated at Shivaji Chowk and recovered Rs. 60,000/- and Motorola mobile, etc., apart from some clothes. They also recovered receipts and letterheads of Jaiswal Interior Decorator, mobile etc. under a mahazar, Mr. Mohan and H.K. Venkata Swamy at the instance of accused-1 seized one pistol along with 5 cartridges and other 25 different articles from him. Cash of Rs. 36.000/- and Nokia mobile were also seized from him. A sum of Rs. 47,453/- was seized from one Harish Bharati, Manager of Guest House known as White House at Goregaon. The entire team from Poona reached Bangalore on 19.5.2001 along with accused-1 to 3.
The seized properties were subjected to property form of High Grounds Police Station. Accused-1 was kept at Vyalikaval Police Station, while accused-2 was kept, at Sheshadripuram Police Station & accused-3 was kept in High Grounds Police Station. They were produced before the concerned Magistrate and as the police sought police custody, they were kept in police custody. Meanwhile, the Investigating Agency also received information that the accused were involved in Cr. No. 295/2001 of Chennai Police.
During further investigation, they visited Lekhraj Company situated by the side of Brigade Road, but the shop was closed. Police team was sent to Delhi, Jaipur, Bombay to collect information regarding the antecedents of the accused. They also collected details from Controller of Defence, Asst. Records Officer ASC Centre, Bangalore, regarding accused-3, which revealed that he joined the Defence Department on 28.6.1993 in M.T. Wing in Army No. 14807676-H and remained absent from duty from 27.2.99 onwards. Sri Ramachandra and Rajanna took the three accused to the Dental Expert to ascertain the pattern of denture of the accused, as teeth bite marks were found on the dead body of Mr. Acharya. A visit to Future Fashion Centre at Brigade Road and enquiry with one Mr. Mikki, resulted in production of 3 duly filled application forms for purchasing 3 spice sim cards by the accused. The same were seized under a mahazar. They visited Cabs India Travels office, S.R. Nagar of Bangalore, to record statement of Mr. Balasubramanya, Proprietor and trip sheets in respect of the vehicle engaged by the accused came to be collected. The inquiries with Front Officers at Ramanashree California led to the seizure of registration slip, reservation card, bills, etc., at California Resort Hotel situated at Yelahanka. The inquiries at Bangalore International Hotel at Crescent Road led to the recording of statement of Feroze Ali Khan, Manager. Certain documents regarding stay of the accused in the said hotel came to be recovered.
Meanwhile, test identification parade came to be conducted by the concerned Tahsildar on 9.6.2001. During the course of investigation, Police Inspector was deputed to Tirupati, who collected records indicating the stay of accused at Bhima Residency Hotel, Tirupati. Taxi driver Gangadhar was also examined. The sketch of scene of occurrence came to be prepared with the assistance of Executive Engineer. The medical reports of Mr. Narasimhan were also seized. Further information about the details of injection mark found on the dead body of the deceased was secured from Mr. Nizar Ahmed, Medical officer of Forensic Medicine. From the officials of Lekhraj Jasmai Company, Brigade Road, two mobile sets were seized the report of Ballistic Expert regarding the fire-arms and other articles were also part of the investigation. Statement of the doctor, who treated Narasimhan in the initial stage at Mallya Hospital was also recorded. Documents regarding withdrawal of money from the HDFC Bank by the deceased on the date of incident also came to be seized. Statements of kith and kin of the deceased also came to. be recorded. During the course of investigation, details of the mobile numbers of the accused and print outs of the mobile No. 9845009223 pertaining to the mobile of deceased Acharya came to be recovered. Man-missing complaint of the deceased, from Ulsoor Gate Police Station was secured. Man-missing complaint of Narasimhan-P.W.2 was collected. During the course of investigation, at the initial stage photographs of the deceased came to be taken at hotel Ashoka. After completing the investigation, a charge sheet came to be filed and after filing the charge sheet, opinion from Expert from FSL was received which were submitted to the Court. Similarly photographs and report of finger prints were sent to the Court.
6. As the offences alleged against the accused persons were exclusively triable by a Court of Sessions, the matter was committed to the Prl. City Civil and Sessions Judge, Bangalore. Charges carne to be framed on 4.7.2002 for the above mentioned offences. Again in 2005 charges came to be re-framed.
7. As the accused pleaded not guilty and sought for trial, the prosecution in all examined 74 witnesses, marked 162 documents and material objects Nos. 1 to 81. Though accused did not adduce any defence evidence they got marked 16 documents as Ex.D.1x to Ex.D.16. Statements of the accused 1 to 3 under Section 313 Cr.P.C. were also recorded as contemplated under the Criminal Procedure Code.
8. After hearing the arguments of the learned Counsels and learned Prosecutor, the learned trial Judge raised the following points for consideration:
1. Whether the prosecution has proved that accused Nos. 1 to 3 on 7th day of May 2001 at Room. No. 523, Hotel Ashoka, Bangalore in furtherance of their common intention of robbing K.R. Ananthapadmanabha Acharya a cash of Rs. 5 lakhs and odd, did commit his murder by intentionally causing the death of K.R. Padmanabha Acharya and thereby committed an offence punishable under Section 302 read with Section 34 of IPC?
2. Whether the prosecution has proved that on the above mentioned date, place and time the accused Nos. 1 to 3 in furtherance of their common intention of robbing made C.W.2 Narasimhan S/o late Ramaswamy's unconscious and tied his hands and foot, with a rope and plastered his mouth and tied him with the rope, with such intention or knowledge and under such circumstances, that if by that act had they caused the death of Narasimhan they would have been guilty of murder of Narasimhan and by the said act, they have caused hurt to the said Narasimhan and thereby they attempted to commit, the murder of said Narasimhan and thereby an offence punishable under Section 307 read with Section 34 of IPC?
3. Whether the prosecution has proved that on the above mentioned date, place and time the accused Nos. 1 to 3 in furtherance of their common intention cheated deceased K.R. Padmanabha Acharya by dishonestly inducing him to deliver Rs. 5,17,000/- and two mobile phones by falsely making representation to him that they would pay him American Dollar worth said amount and thereby committed an offence punishable under Section 420 read with Section 34 of IPC?
4. Whether the prosecution has proved that on the above mentioned date, place and time and prior to it, the accused Nos. 1 to 3 agreed to do an illegal act i.e., to rob Ananthapadmanabha Acharya of cash of Rs. 5,17,000/- from him and mobile phones by illegal means and in pursuance of that agreement, they did commit robbery & murder of K.R. Ananthapadmanabha Acharya and thereby committed an offence punishable Under Section 120-B of IPC?
5. Whether the prosecution has proved that on the above mentioned date, place and time the accused in furtherance of their common intention administered poisonous drug or stupefying drug to C.W.2-Narasimhan with intent to cause hurt knowingly or unknowingly it to be likely that they would thereby cause hurt to the said Narasimhan with intent to commit or facilitate the commission of offence of robbery punishable Under Section 392 of IPC and thereby committed an offence punishable Under Section 328 read with Section 34 of IPC?
6. Whether the prosecution has proved that the accused Nos. 1 to 3 on the above mentioned date, place and time committed theft of a sum of Rs. 5,17,000/- and two mobile phones belonging to Trade Wing Company from the possession of Ananthapadmanabha Acharya and in committing the said theft, the accused Nos. 1 to 3 voluntarily caused the death of Sri Ananthapadmanabha Acharya and voluntarily caused hurt to C.W.2, Narasimhan and attempted to cause his death and wrongfully confined the said Narasimhan in Room No. 523 of Ashoka hotel and thereby committed an offence punishable under Section 392 read with Section 397 of IPC?
7. Whether the prosecution has proved that on 18.5.2001 the accused Nos. 1 and 2 were found in possession of the pistols and bullets without holding any valid licence and thereby contravened the provisions of Section 3 of the Arms Act and thereby committed an offence punishable under Section 25 of the Arms Act?
8. Whether the prosecution has proved that on 18-5-2001 the accused No. 3 was found in possession of pistol and bullets without holding any valid licence and thereby contravened the provisions of Section 3 of the Arms Act and thereby committed an offence punishable under Section 25 of the Arms Act?
9. What order?
9. The learned Judge answered point Nos. 1, 2, 5 and 6 in the positive and other points were answered in the negative.
10. By a detailed judgment, the learned Judge convicted the accused Nos. 1 to 3 for offences punishable under Sections 302, 307, 328 read with Section 34 of IPC and so also for the offences punishable under Section 392 read with Section 397 of IPC and acquitted them of charges punishable under Sections 420 and 120-B of IPC and other charges under Arms Act.
11. Questioning the acquittal of the accused for offences punishable under Section 420 and 120-B of IPC, etc. the State has not filed any appeal. Accused Nos. 1 to 3 have filed the above 3 appeals challenging the judgment of conviction and order of sentence.
12. The common grounds in the appeals are that the judgment of conviction passed by the trial Court is against the material on record. Therefore, it cannot be sustained in the eye of law. The reasoning of the trial Court according to the appellant is based on surmises and conjectures. Therefore, it deserves to be set aside. It is further contended that the trial Court has completely misread, ill-appreciated and misinterpreted the evidence on record and proceeded to record the judgment of conviction erroneously. According to the first appellant, when once the trial Court proceeded to acquit the accused of charge under Section 420 disbelieving the prosecution story that accused called himself as Sadeep Sen and booked room No. 523 in the name of Sandeep Sen, definitely, the prosecution has miserably failed to prove the participation of the appellant in so far as commission of murder of Mr. Acharya and other offences. The trial court was not justified in drawing inference based on the nature of cross-examination Similarly, the Court was not justified in holding that cross-examination of P.W.17 would admit the presence of first accused-appellant at the time of incident. Therefore, the trial Court was not justified in believing the evidence of P.W.17 and P.W.45. That the trial Court was wrong in holding that P.Ws. 17, 45 and 46 were acquainted with the accused prior to 7.5.2001 and therefore, holding of test identification parade as immaterial was erroneous. Without strong corroboration to the evidence of these witnesses, the learned trial Judge ought not to have concluded the presence of accused-1 inside the hotel at the relevant point, of time. In the absence of proof of evidence regarding the time of arrival and departure of the guest occupying the room No. 523 at hotel Ashoka the trial Court placing implicit reliance on testimony of-P.W.45 and the documents at Ex.P.134 and Ex.P.135 are erroneous. The prosecution ought to have established the writings at the docuirient-Ex.P.134 and without examination of the expert on the oral testimony of P.W.45, could not have come to any conclusion. Even the details of the guest registration card - Ex.P. 135 would indicate those entries are incorrect. The trial Court ignored the fact that on 8.5.2001 at 19 hours 3 minutes 41 second the key to room No. 523 was handed over and the bill was settled, when a dead body was recovered at about 9.10 am in the morning hours. Therefore, placing reliance on Ex.P.27 and Ex.P.28 was wrong. If these documents were to be believed, the Investigating Agency had ample opportunity to arrest the accused from the hotel itself. Therefore, the genuineness of the documents said to have been recovered at Hotel Ashoka is doubtful. The attempt to fabricate these documents is seen in order to establish the presence of accused-1 - appellant in room No. 523 of Hotel Ashoka. Similarly, the evidence of the housekeeping boys and the details alleged to have been found in the said room with the help of duplicate key are all got-up to implicate the accused in a false case.
13. The records at Mallya Hospital do not indicate the name of Mr. Susainathan as the person who accompanied the injured. The said person was not examined by the Investigating Officer. According to the appellants, there is contradictory evidence so far as the time of visit of Susainathan - P.W.1 coming to the hotel and finding the dead body, from the evidence of witnesses from the hotel. Therefore, die impugned judgment suffers from error. The visit of police from Ulsoor Gate along with Susainathan to hotel Ashoka during the night of 7.5.2001 is not corroborated by any document. The missing complaint of Acharya was registered at police station at about 4am and not before the said time during the night between 7/8-05-2001 as stated by the witnesses and earlier to that time, Mr. Susainathan had not visited the police. The presence of Mr. Susainathan-P.W. 1 for recovery of dead body is not there. His conduct subsequent to lodging the first information report is highly suspicious. If Maruti Zen car belonging to deceased Acharya was seen by P.W.1 on both occasions i.e., on 7.5.2001 and 8.5.2001, the same was not recovered during the course of investigation. Therefore, finding a car parked in the said hotel and non-recovery of key from the dead body would indicate that it was a cooked up story. Similar is the case of two wheeler belonging to Mr. Narasimhan, as there is no entry of such vehicle in the official register of the hotel.
14. Then coming to the actual incident so far as P.W.2 is concerned, the evidence of P.W.2 is to the effect that he was over powered and he felt a pricking sensation on his left shoulder but no such marks are detected by the medical expert. Evidence of P.W.2 is nothing but a story. Similarly there is no mark found on the neck of Narasimhan except the minute abrasion on the right side of the neck indicating the throttling of P.W.2. According to the prosecution, Narasimhan was in unconscious state of mind. Therefore, he could not raise alarm and he remained unconscious till room No. 523 was opened on 8.5.2001 at about 9.40am. If that is so, Mr. Kisore Patil accompanying the injured Narasimhan is strange. Obviously Narasimhan must have been conscious enough to give his name, address etc. Many important details at whose instance room No. 523 was unlocked and opened are not forthcoming. The entire prosecution story seems to be concocted.
15. He has further contended that the learned trial Judge makes an observation in the judgment that Narasimhan on reaching Mallya hospital informed about the incident over the phone to the police, but the prosecution has suppressed the said information. Similarly, Mr. Narasimhan in his statement no where has stated that he was either throttled with the hands or with a rope. The trial Court was not justified in coming to conclusion that Narasimhan might have been throttled with the help of rope.
16. Similarly, the statement of Narasimhan recorded during the course of investigation that he was also put in a bath tub by tying his hands and legs, is confronted to him during the cross-examination, but he failed to give any explanation. When the evidence of important witnesses in the prosecution is not free from suspicion, in the absence of clinching material to corroborate the presence of P.W.2 and so also the presence of accused, the trial Court ought not to have proceeded to convict the accused persons for the charges.
17. Similarly there is no reason why finger prints of P.W.2 were not taken, if he was a witness to the incident. In all probability. Investigating Agency must have suspected Narasimhan at the initial stage.
18. The material collected against accused-1 reveals that he is a man of very strong financial status having a number of credit cards of multi National Banks and other Banks recovered during the investigation. Therefore, such a person could not have any motive to commit robbery of Rs. 4 lakhs to Rs. 5 lakhs with the help of his two associates, as 1/3rd of the said amount would only come to Rs. 1.6 lakhs. Similarly, the view of the trial Court that P.W. 15 Venkata Reddy would indicate that accused was not able to make full payment of Rs. 1441/- on 65,2001 and the balance was received by the taxi driver on the next, day from the accused along with a tip of Rs. 50/- indicates that the first accused was penniless and therefore, he has hatched a scheme for the loot and killing of Acharya. The family background and the financial status of the accused-1 was never gone into by the Investigating Agency. Though he is an extraordinarily rich man running various businesses. Investigating Officer has deliberately concealed the said factum.
19. With these averments and arguments, the first appellant put forth his case in person before the trial Court. According to him, evidence so far as the charges against him are not at all established and there is no co-relation between the evidence of one witness to another witness. Therefore, at any cost, conviction against him cannot be sustained.
20. So far as second accused-appellant is concerned, according to the learned Counsel appearing for this accused there is no explanation of delay for recording the evidence of P.W.2 Narasimhan. It was contended that if P.w.2 was unconscious for 3 to 4 days and only on 10 5.2001 he had come to know about the death of the deceased through the paper cutting, his participation in the test identification parade and the fact of identifying accused-1 to 3 was only a formality as he had can opportunity to see the photographs of the accused and to know the details of accused 1 to 3 as the identification parade is much later than 8.5.2001. The observation of the learned trial Judge that dis-orientation of P.W.2 al the time of recording evidence in his official statement under Section 161, is erroneous. Merely because he was o bank employee, it cannot be said that he is a trustworthy witness. The trial Judge ought to have perused the entire evidence of P.W.2 and then come to conclusion whether his testimony is consistent and trustworthy. As a matter of fact, evidence of Dr. Shivaprasad clearly goes to show that P.W.2 was unconscious and dis-oriented when he was admitted to hospital. He was discharged on 16.5.2001 as he made good progress in his recovery. When he was all right much earlier, there is no proper reason why his statement came to be recorded on 4.6.2001 at a belated stage.
21. So far as identification of accused by this witness P.W.2, his evidence discloses that after entering the room No. 523 at hotel Ashoka within one or two minutes he felt a prick and lost direction of mind, definitely he was not able to see the accused properly. Hence, his evidence identifying the other two accused becomes false. His evidence that there were two persons behind one Mr. Sen and changing his version from time to time would only indicate he had no clue what he was saying. The denial of having milk shake at hotel Ashoka as a treat would falsify his presence in the said hotel at that hour.
22. So far as the hands and legs of P.w.2 being tied, there is contradictory version between the evidence P.W.1 and 2 and in the absence of no rope being found in the room, whole evidence becomes untrustworthy.
23. So far as the teeth bite marks of accused-2 on the dead body of the deceased it reveals P.W.33 Dr. A. Kumar preserved the models of the dental structure prepared on 8.6.2001 of accused 2 and two others were produced and took impression mark of teeth of upper and lower jaws of all the persons. According to him, upper and lower interior teeth of accused-2 tallied with the bite marks on the left thigh of the deceased. When P.W.33's opinion as per Ex.P.63 is not accompanied by any reasons to come to such opinion, the same cannot be accepted.
24. P.W.I7 and P.W.45 have not identified accused-2 before the Court. Another circumstantial evidence relied upon by the prosecution is the evidence of finger print expert. The chance finger print found at room No. 523 was photographed and specimen finger prints of 3 suspected persons alleged to have been collected at the scene were received by them. When the scene of occurrence was visited by a number of persons and when it is not protected or safeguarded from strangers before the photographer P.W.48 came to take the finger prints, it would be difficult to believe the evidence of the witness that the chance finger print marked at C by him tallied with the right hand thumb impression of left middle finger of accused-2.
25. Similarly, the case of the prosecution is that there was an attempt to cause death of P.W.2 at the time of robbery and in fact caused hurt when he wrongfully restrained P.W 2, but P.W.2 did not utter a word about the attempt to cause death or murder and the injury suffered by P.W.2 is simple in nature. Therefore, in the absence of any evidence attempting to strangulate P.W.2 the charge under Section 307 of IPC is not sustainable, so also charge under Section 397 of IPC. According to the prosecution, deceased was carrying money in a suitcase, but according to P.w.2, deceased was not holding a bag containing any cash. With these arguments, the learned Counsel sought for setting aside the judgment of conviction against the accused-2.
26. So far as accused-3 is concerned it is contended that the learned Judge has miserably failed to appreciate the evidence inspite of lacuna in the case of the prosecution to connect the accused-appellant-3 in the alleged offence. Ex.P.1 attracts provisions of Section 154 of Cr.P.C. Before Ex.P.1 came into existence, investigation had already commenced and the Investigating Officer had reached the spot and met the complainant. One Mr. Kishore Patil who admitted P.W.2 to the hospital is not cited as a witness which is a grave mistake on the part of the prosecution. Similarly, delay in recording statement of P.W.2 goes to the root of the case of the prosecution in the absence of explaining the delay with satisfactory reasons. The registers of Mallya Hospital Ex.P.85 and Ex.P.86 do not indicate the date of incident, place etc. Therefore, this is a grave error in the case of the prosecution. The evidence of P.W.2 in not disclosing the entire details to his wife after his discharge from the hospital or for that matter to any of his relatives looks very strange, therefore, the evidence of P.W.2 cannot be relied upon.
27. P.W.2 is not an eyewitness to the murder of deceased Acharya. Therefore, it is purely based on the circumstantial evidence. The last seen circumstance i.e., seeing the deceased in the company of the accused is not at all established. Therefore, in the absence of anyone from hotel identifying this witness in the room No. 523 and in the absence of any finger prints of accused-3 tallying with chance finger print at the hotel, definitely, presence of this appellant at the place of incident has to be believed.
28. So far as this appellant, no motive to commit the crime is established. Based on the sole testimony of P.W.2 his presence in room No. 523 cannot, be established. Evidence of P W.2 is not consistent and the very test identification parade is defective. Therefore, identification of this appellant as one of the accused is lost. The documents marked as defence series are not at all discussed and in the absence of explanation of these documents, there cannot be any conviction of the accused.
29. The learned trial Judge was not justified 'in believing the evidence of P.W.2, i.e. deceased Mr. Acharya came along with one person Mr. Sen and gave briefcase to P.W.2 Narasimhan and went to the room, further Mr. Sen ordered milk shake for P.W.2 and after some time, Mr. Sen came and took him to the room. The Court was not justified in believing the further evidence of this P.W.2 that after entering the room two persons offered cool drinks and P.W.2 inquired the whereabouts of Mr. Acharya; Mr. Sen answered that Acharya was discussing in the other room with his boss; he was held by other two persons and his legs and hands were tied up; injection was administered after plastering his mouth; he was put in bath tub and he lost his consciousness thereafter and gained consciousness only after 15 days after the incident. Therefore, his evidence before the Court that soon after his arrival to the hotel he noticing Mr. Acharya going away with Mr. Sen, later, Mr. Sen coming and taking him to room No. 523 and when he was enquiring about Mr. Acharya, he felt pain in his shoulder and regained consciousness in the Victoria Hospital is completely contradictory to his statement. The prosecution has utterly failed to prove the presence of witnesses on 7.5.2001 beyond reasonable doubt. There are different versions regarding the identification of this appellant accused-3 by this witness that he saw the appellant only for the first time in central prison. When P.W.2 was admitted to hospital his friends, relatives and police visited him, but no statement was recorded. When he was in the house of his brother at Malleshwaram, he did not disclose the incident to anyone, though he knew the physical features of the persons. He not disclosing any of the events either to the appellants or his kith and kin, would only create a doubt regarding veracity of the statement before the Court. The very delay in recording the statement after 32 days of the incident, would go to show that Investigating Officer was all along planning to implicate the accused in the case and therefore, they took 32 days to create a story. The trial court gravely erred in not noticing the entries in the register of Hotel Ashoka that two persons arrived and reserved the room. According to the prosecution, there were 3 persons physically present in Hotel Ashoka. Further, in the absence of hand writing of Mr. Sen in whose name room No. 523 is booked, tallying with the hand writing of accused-1 especially the signature etc. prosecution has not established presence of accused-1 as well as other accused in the said hotel on that day.
30. With these arguments, re-iterating the averments in the appeal memo, the learned Counsel appearing for accused-3 sought for setting aside the judgment of conviction.
31. The point that would arise for our consideration is:
Whether the judgment of conviction and order of sentence warrants tiny interference at our hands?32. Before the trial Court the prosecution in order to bring home guilt of the accused has examined in all 74 witnesses whose evidence is narrated as under:
P.W.1, Sri Susainathan is the person who was working in M/S Trade Wings Ltd., during the year 2001 and he is the person who has lodged the first information before the police about the incident in question and he is the person who found P.W.2 Narasimhan and the dead body of Mr. Acharya in Room No. 523 of five star Ashoka Hotel of Bangalore City.
P.W.2 Narasimhan was the friend of the deceased. Me was the one who had gone to Room No. 523 of Hotel Ashoka of Bangalore City at the time of the alleged incident along with accused No. 1 introduced as Mr. Sen and he was the person who had seen accused Nos. 1 to 3 in Room No. 523 of Hotel Ashoka at the relevant point of time.
P.W.3 Thimmappa Gowda was the person who was working as a Waiter in Coorg Restaurant of Hotel Ashoka during the year 2001 and he was the person who had served milk shake to the guests of room No. 523 as per the orders of accused No. 1.
P.W.4 A.V. Lakshman was the person who was working as Superintendent of Reception in Hotel Ashoka, Bangalore, during the year 2001 and he was also the person who found the dead body of the deceased in the bathtub and P W.2 Narasimhan in a tied position in one of the annexe room of Room No. 523 of Hotel Ashoka, Bangalore. He was also a panch witness for Ex.P.2 the inquest mahazar.
P.W.5 Sri Srikanth was the person who knew deceased Acharya and he was the person who identified the dead body of deceased in the mortuary of Bowring Hotel on 8.5.2001
P.W.6 Smt. Sudharani is the wife of the deceased Mr. Acharya.
P.W.7 Koushik Y.M. is brother of P.W.6 Sudharani and brother-in-law of the deceased Acharya and he was the person who received the dead body of the deceased after the post-mortem examination of the deceased and who has issued the receipt as per Ex.P.3.
P.W.8 Akbar Mikki was the person who had sold three sim cards to the accused No. 1 and he was the one who had registered all those sim cards in the name of one Aran Kumar Mathur.
P.W.9 Santhoshi was an employee of a showroom in Bangalore and she was the person who had sold the garments worth about Rs. 20,000/- to the first accused and she was the person who had moved in and around Bangalore City along with the first accused for lunch and for searching a house for him.
P.W.10 Eshwar Rao is the father of P.W. 9 and he is also a tailor by profession. He was the person who had gone along with his daughter and accused No. 1 in the year 2001 for searching a house for hint and they had taken him to the house of one Mr. Javeed.
P.W.11 Ashok Kumar was the car driver of Oberoi Hotel and he was the person who had taken the three accused in his car for four hours to go to Hotel Le-Meridian and other places.
P.W.12 M.R. Balasubramanya was a travel agent and P.W. 14 Krishnamurthy was a driver under him. He had sent Lancer Car bearing No. KA-03-C-5544 to the customer along with his driver. He was also the person who had received a telephone call from one Basak, the first accused on 7.5.2001 at about 10.30 P.M. and he was the person who had sent his Lancer Car bearing No. KA 21 M 8001 along with the driver P.W 14 to Hotel 'Infantry Court' and he was the person from whose office the police had seized trip sheets as per Ex.P.6 and Ex.P.7.
P.W.13 Raju M.G. was a taxi driver working in CABS India, a Taxi Company in Bangalore whose office is situated in Sampangiramanagar and one Balasubramanyam was the owner of the said company. This Raju is the person who had gone to Ramanashree Hotel to pick up accused No. 1 from that place and to drop him in Indiranagar.
P.W.14 Krishnamurthy was the driver working under P.W. 12 Balasubramanyam and he was the person who had gone to Infantry Court Hotel on 7.5.2001 in the night to pick up accused No. 1 he had taken the first accused to Renigunta Railway Station and to Tirupathi and thereafter to Renigunta Railway Station and then to Hyderabad and thereafter to Pune and Sholapur in Lancer car bearing registration No. KA 21 8001.
P.W.15 Venkatesh Reddy was a driver of city taxi and he was the person who had picked up accused No. 1 from the place in front of Ramanashree Hotel and thereafter he had taken a girl and the first accused in his taxi to some shops and various places in and around Majestic and to some other places along with the father of the girl.
P.W.16 Ravikumar is the person who was working as Waiter in Infantry Court Hotel during the relevant period and he is the person who had served the first accused and another, dinner and who had taken the signature of the first accused in the bill book.
P.W.17 Pranavamurthy is the person who was working as Bell Captain Grade-III in Hotel Ashoka High Grounds of Bangalore City from the period in between 1971 and March 2003 and he is the person who had taken the luggage of the first accused to room No. 523 of Ashoka Hotel on 7.5.2001 around 12 noon and that he is also the person who had seen the other two persons following the first accused to that room.
P.W18 Lokith is the Front Office Manager of Hotel Ivory Tower, Bangalore. He speaks about accused No. 1 Mr. Basak staying with them between 1.5.2001 to 5.5.2001. He has produced the visiting card, guest, registration card and two bills to the police.
P.W.19 - Hafiz Khan is a shop keeper in Koil Street of Shivajinagar, Bangalore City from whom accused No. 1 had purchased a rope on 6.5.2001. He says he can recognise him by lace, though he came only once to his shop. He says a lady was also accompanying him. This corroborates the evidence of P.W.9.
P.W.20 - B.T. Rakesh was the Front Officer Assistant in Infantry Hotel, Bangalore in between 2001 and 2003 and that he was the person who had seen the accused checking in room No. 109 of the said Hotel and checking out of the said hotel on 3.5.2001.
P.W.21 - Dr S.N. Sambha Murthy was working as Professor and Head ol the Department of E.N.T. in Victoria Hospital during the year 2001 and he was the doctor who had examined P.W.2 Narasimhan on 8.5.2001 and 22.5.2001 and be had issued a certificate as per Ex. P-16.
P.W.22 - Jayaraman was the General Manager of Bhima Residency Hotel, Thirupathi and this witness was the person who produced the Guest Registration Certificate and the duplicate bill maintained in the office.
P.W.23 - Dr. Anandappa N.S. was the person who was working as Casualty Medical Officer in Victoria Hospital during the year 2001 and he is also the doctor who had examined Narasimhan on 8.5.2001 at about 2.15 P.M. He is the person who had issued an opinion as per Ex.P-22.
P.W.24 - Manoj Kumar is the person who was working as Security Officer in Hotel Ashoka, Bangalore during the year 2001.
P.W.25 - G.S. Subramanya was working as Accounts Manager in Hotel Infantry Court Comfort in during the year 2001 and he is the person who has identified the documents pertaining to the said hotel.
P.W.26 - Yunus was working as Front Officer Assistant in Bangalore International Hotel during the year 2001 and he is the person who had seen accused No. 1 staying in the said hotel.
P.W.27 - N.S. Prabhakar has been working as Ballistic Director in F.S.L. and he is the person who has examined the two pistols and the live ammunitions which were sent to him for examination and he is the person who has issued the certificate as per Ex. P-41 and P-42.
P.W.28 - Darryl Edward was working as Resort Manager in Ramanashree California Resort Hotel during the year 2001 and he was the person who had seen the first accused staying in the said Ramanashree California Resort during the year 2001. He also speaks about certain documents issued by the said hntei.
P.W.29 - N. Ramesh was working in Ramanashree Hotel during the year 2001.
P.W.30 - Shankar was working as driver in Mahalakshmi Tours and Travels at Manjunathanagar, Rajajinagar, Bangalore, and he was the person who had taken the police to Dound Railway Station on 18.5.2001 and who had seen accused No. 2 in Dound Railway Station.
P.W.30 - Gangadharaiah was the taxi driver working in Ashwini Travels during the year 2001 and he was the person who had picked up two persons out of three persons from Ramanashree Resort Hotel and he was asked to drop those two persons at Secunderabad Railway Station.
P.W.32 - H.B. Premanth was Asst. Engineer of P.W.D. working in PWD-II Sub-Division, Vidhana Soudha, Bangalore and that he was the person who prepared the skeich of the scene of occurrence as per the request of the police.
P.W.33 - Dr. A. Kumar was the Chief Dental Health Officer of Bowring Hospital, Bangalore, and he was the person who was asked to give his opinion about the tooth which was found near the dead body of Mr. Acharya and the bite marks found on the left thigh outer aspect of dead body of deceased Acharya. He was also the person who had taken the Impression of the teeth of upper and lower jaws of all the three accused and compared them with the one found on the left thigh of the deceased and he was the person who issued an opinion as per Ex. P-83.
P.W.34 is M.R. Veerappa Kumar the Head Constable who took the F.I.R. to the Hon'ble Magistrate.
P.W.35 - T. Basavegouda was another Head Constable working in High Grounds Police Station at the relevant point of time and he was the person who had carried 14 articles to F.S.L., Bangalore and later had submitted the report as per Ex. P-64 before the 1.0.
P.W.36 - N. Lakshmana was working as Police Constable in high Grounds Police Station of Bangalore City. He also brought 16 articles and other documents to the A.C.P. and he is the person who has submitted the report as per Ex. P-65.
P.W.37 - Ramu was the Head Constable who was working in high Grounds Police Station and he was the person who had gone to F.S.L on 22.6.2001 and brought back two sealed packets from F.S.L., Bangalore and delivered them in the office of A.C.P., Sheshadripuram. He also submitted a report as per Ex.P-36.
P.W.38 - Sunil Bowsle was the panch witness to Ex.P-67, P-68 the seizure mahazars.
P.W.39 - Harish Lalji Bharathi was a panch witness for Ex. P-69 the seizure mahazar.
P.W.40 - Avinash Dadasaheb More who was working as Sub-Inspector of Police in Crime Branch of Pune city and was also the person who had apprehended accused No. 3 in Dound Railway Station and he was also one of the witnesses to seizure mahazar - Ex.P-59.
P.W.41 - B. Mallegowda was the person who was working as Head Constable at High grounds Police Station on 8.5.2001 and himself and P.C.B. No. 268 were the persons who took the dead body of Mr. Acharya from room No. 523 of Ashoka Hotel to Bowring Hospital for post mortem examination and he also produced M.Os. 50 to 59 after post mortem examination before the Police Inspector along with a report as per Ex. P-84.
P.W.42 - Dr. Pradeep B. Naik was working as Casualty Medical Officer in Mailya Hospital as on 8.5.2001. While discharging his duties he examined P.W.2 Narasimhan on 8.5.2001 at about 11.40 A.M. in Mailya Hospital and he was the person who has issued certificate as per Ex.P-85, out-patient case sheet as per Ex.P-86 and the Wound Certificate as per Ex. P-87.
P.W.43 N.S. Bharath was the then Branch Manager of H.D.F.C. Bank of M.G. Road Branch, Bangalore, and he was also the person who had issued the account extract as per Ext. P-88 to the I.O.
P.W.44 - Dr. Revanasiddappa, another doctor who was working as Professor of Surgery in Victoria Hospital during the year 2001 and he has issued an endorsement as per Ex. P-16(c).
P.W.45 Veena Anand is an important witness who was working as Receptionist at Hotel Ashoka from 1992 to 2003 and she was also the person who had seen the first accused coming to Hotel Ashoka on 4.5.2001 and 7.5.2001 and booking the room in the name of one Mr. Sandeep Sen.
P.W.46 Jagadish a car driver of Windsor Manor Hotel, Bangalore, was the one who had taken the 1st accused and a lady from Windsor Manor Hotel to Ashoka Hotel on 4.5.2001 at about 10.30 A.M. He was also the person who had taken the lady and accused No. 1 and two other male persons in his taxi from Hotel Ashoka to H.S.B.C. Bank and he was the person who had seen two male persons getting down from his taxi near H.S.B.C Bank, He was the person who had seen the 1st accused going to a foreign exchange office by name 'Thomas Cook' situated at M.G. Road. This is the driver who drove accused No. 1 and others from Bangalore Club to Hotel Ashoka on 7.5.2001 and took them again from Hotel Ashoka at 2.30 p.m. to different places.
P.W.47 - Devaiah was working as Head Constable in Cubbon park Police Station during the year 2001 and he had gone to Pune along with other police officers en 16.5.200 and he was also the person who had witnessed the accused Nos. 1 to 3 being arrested in Pune at Dound Railway Station on 18.5.2001 and then had brought accused Nos. 1 to 3 to Bangalore in a Tata Sumo vehicle with other police officers.
P.W.48 T.S. Krishna Prakash a Finger Print Expert and Police Sub-Inspector had taken chance finger prints at the place of occurrence and he was the person who issued a certificate as per Ex.P-93.
P.W.49 - Gopalasetty was the Head Constable who was working in the photography section of the office of the Commissioner of Police and he had taken the photographs of the dead body found in room No. 523 of Ashoka Hotel which are at Ex. P-106.
P.W.50 - Dr. Premkumar B.G. was the then Professor of Head of Department of Radiology at Victoria Hospital Bangalore, and he had given a report as per Ex.P-06 in respect of P.W.2 Narasimhan.
P.W.51 - K.N. Narayanappa was working as a Tahsildar of Bangalore North Addl. Taluk and this officer had conducted the test identification parade of accused Nos. 1 to 3 on 9.6.2001 and submitted a report as per Ex.P-4 (proceedings of identification parade).
P.W.52 - Venkateah was the then Police Constable who was working in Seshadripuram Police Station during the year 2001 and was also working as lock up guard on 27.5.2001 and 29.5.2001 along with police constable B. No. 3244.
P.W.53 - Revanna was working as Sub-Inspector of Police of Crime Branch in Vyalikaval Police Station during the year 2001 and this constable had produced the accused Nos. 2 & 3 before the learned VIII Addl. C.M.M., Bangalore on 1.6.2001 and again lodged them in Central Jail as per the directions of the learned Magistrate.
P.W.54 - C. Venkatappa was working as As3t. Sub-Inspector of Seshadripuram Police Station during the year 2001 and on 8.5.2001 at about 12.30 a.m. he was the person who received a man missing complaint lodged by Arunachalam and registered a crime in 75/2001 of Seshadripuram Police Station.
P.W.55 - Hanumantharayappa was working as Head Constable in Vyalikaval Police Station during the year 2001 and he executed the duty entrusted to him, i.e. guard duty of the lock up in which the first accused was kept in Vyalikaval Police Station on 20th May 2001. He was the person who had taken the first accused before the learned VIII Additional CMM at his residence by covering his face with a mask.
P.W.56 - Puttaswamy Gowda was the police constable who was working in High Grounds Police Station during the year 2001 and he was deputed to look after Narasimhan P.W. 2 who was admitted to Victoria Hospital on 8.5.2001. This constable as per the direction of his superior brought the three sealed bottles from the hospital and he also delivered the same to the S.H.O. of High Grounds Police Station.
P.W.57 - Rajendra attached to the police was working as a Computer Operator with the rank of police constable in the State Crime Record Bureau of Bangalore. He developed the portrait of the first accused on the basis of the description oi features of accused No. 1 given by the witness Kum. Veena Anand - P.W.45.
P.W.58 - Mahadevaiah was the person who has been working as Asst. Director of F.S.L., Bangalore and was the person who had issued a certificate as per Ex.P. 104.
P.W.59 - Madiyal the then Director General of Police of Karnataka State. He had issued a sanction to prosecute accused Nos. 1 and 3 after perusal of records.
P.W.60 - Dr. K.H. Manjunath was examined to give evidence with regard to the handwriting and the signature of Dr. Nissar Ahamed. He has spoken about the opinion given by Dr. Nissar Ahamed who had conducted the post-mortem examination on the dead body of deceased Mr. Acharya.
P.W.61 - Basavaiah was working as Asst. Sub-Inspector of Police in Ulsoor Police Station during the year 2001 and he was working as S.HO. of the said Police Station from 8.30 P.M. on 7.5.2001 till 8.30 a.m. on 8.5.2001 and he was the person who had received Ex.P.110, the first information about missing of Mr. Acharya. He then registered a crime in Cr. No. 270/01 of Ulsoor Police Station and submitted F.I.R. as per Ex.P.111 to the concerned Police Officer.
P.W.62 - V.G. Naik the Scientific Officer of F.S.L. Bangalore was the person who had submitted a report after examining viscera and other articles sent to him. This expert also had issued a certificate as per Ex.P.112.
P.W.63 - G.S. Raghu was working as the Sub-Inspector of Police in Seshadripuram Police Station of Bangalore City during the year 2001. This officer had accompanied Sri Siddappa, the Police Inspector of Seshadripuram Police Station to Bombay on 14.5.2001 along with other members of the police force and he was the one who had come to Poona from Bombay. On the information secured at Poona, he along with the Police Inspector Siddappa had apprehended accused No. 2 in Poona. In his presence seizure of M.Os. 61 to 77 from the possession of accused No. 2 was done. He visited Tirupathi and went to Bhima Residency (Hotel), to secure die documents from that hotel about the stay of accused No. 1 in that hotel at the relevant point of time.
P.W.64 - A.N. Rajanna was the then Police Inspector of Vyalikaval Police Station of Bangalore City who accompanied the three accused to Bowring Hospital. In the hospital as per the instructions of the Investigating Officer he produced the three accused before the dentist of Bowring Hospital on 31st May 2001. The dentist took impression of the teeth of all the accused.
P.W.65 - H.K. Venkataswamy was working as Police Inspector in Vidhana Soudha Security during the year 2001 and as per the instructions of D.C.P., Central, he was on duty to assist the Investigating Officer of this crime and was the person who had gone to Poona on 12.5.2001 along with Jayakumar and A.C.P. - Mohan. He was part of the team of the police officers in Poona on 18.5.2001. When they visited the house of accused No. 1 they seized 25 different articles contained in a bag in the house of accused No. 1 including 9 MM Lama Pistol and five live cartridges. He also seized a mobile phone and Rs. 30,000/- from accused. A sum of Rs. 47,453/- was also seized on the voluntary information given by the first accused at White House from one Harish Bharathi, Manager of the said Guest House. He also conducted a mahazar as per Ex.P. 67 and Ex.P. 68.
P.W.66 - M.G. Nagendra Kumar was working as Police Inspector of Vidhana Soudha, Bangalore City. At that time he was taken as Co-Investigating Officer by Sri Hundekar, the Chief Investigating Officer of this crime. He was the person who had gone to Dound Railway Station along with A.C.P. Mohan and P.S.I. Venkataswamy. This officer assisted A.C.P. Mohan in conducting a mahazar as per Ex.P.8 and seizing M.Os. 31 to 38.
P.W.67 - S. Nagaraj Was the Manager-Legal, Air Tel, Bangalore. This gentleman had issued the statements regarding incoming and out going calls from the mobile phone of Mr. Acharya bearing number 9845009223.
P.W.68 - D. Tajuddm at the relevant point of time was working as Accounts Assistant in Lekhraj & Jasmal Company, Bangalore. He has spoken to about Ex.P. 129 and Ex.P.130 as the receipts issued for having sold Motorola Mobile phone Model T-180 for Rs. 3995/- on 30th April 2001. It is also in his evidence that Ex.P.129 and Ex.P. 130 were signed by the cashier belonging to that Company.
P.W.69 - Samrat was working as the Senior Manager in Ashoka Travels and Tours and that he speaks about the change of Management and the records being with Ashoka Hotel, Bangalore.
P.W.70 - D.T. Jayakumar, another Police Officer who had done part of the investigation.
P.W.71 - Sandarsh was an employee of Spice Telecom and this witness was examined to establish the issuance of Exs.P. 144 to P. 147 from his office.
P.W.72 - R. Ramachandra, another Police Officer was the one who had assisted Sri Hundekar, the I.O. of this case during investigation
P.W.73 - Dr. Shivaprasad was working as Lecturer in Medicine at Bangalore Medical College during the year 2001 and he speaks about Ex.P. 16.
P.W.74 - T. Siddappa is another Police Officer who had gone to Poona. He also recorded the voluntary statement of accused No. 2 after his arrest in Poona. This officer had seized the cash of Rs. 56,000/- and a mobile phone and other articles by conducting a mahazar as per Ex.P. 160.
33. According to the prosecution, the deceased Acharya met with homicidal death and there was an attempt on the life of P.W.2. The offence punishable under Section 302 r/w Section 34 IPC, is established against accused Nos. 1 to 3 as they intentionally committed the murder of Mr. Acharya in furtherance of their common intention to knock away a sum of rupees five lakhs and odd brought by the deceased Mr. Acharya for the purpose of foreign currency exchange. It is also the case of the prosecution that accused Nos. 1 to 3 in the course of same transaction with the intention of robbing Narasimhan - P.W.2, made him unconscious and tied his hands with a rope and by plastering his mouth with such intention and knowledge that their act if resulted in the death of Narasimhan, they would nave been guilty of murder of Narasimhan. Therefore, they committed an offence punishable under Section 307 r/w Section 34 of IPC. It was also their case before the trial Court that with common intention of committing an offence of robbery they administered poison and thereby caused hurt to P.W.2 Narasimhan.
34. The trial Court also framed charges regarding the offence punishable under Section 392 r/w Section 397 IPC. as according to the prosecution, accused Nos. 1 to 3 on 7.5.2001 committed theft of not only a sum of rupees five lakhs seventeen thousands but also two mobiles belonging to the Company - M/s Trade Wings Ltd., from the possession of Mr. Acharya and in committing the said theft, they caused not only the death of Mr. Acharya but also in their attempt to cause death to Mr. Narasimhan, they caused hurt and confined him in room No. 52.3 of Ashoka Hotel. As already stated, so far as offence punishable under Section 25 of the Arms Act, Section 420 r/w 34 of the IPC and so also the offence punishable under Section 120-B of IPC, the trial Court held the said charges were not established by the prosecution.
35. The State has not filed any appeal challenging the said acquittal. The three accused before the trial Court are the appellants in these appeals questioning the judgment of conviction and order of sentences passed against them by the trial Court for the other offences.
36. First and foremost, we have to deal with the homicidal death of the deceased Mr. Acharya. Once his homicidal death is established, then we have to see whether it amounts to murder and then the exercise has to be, who were responsible for the said murder of the deceased Mr. Acharya?
37. Further while analysing the evidence on record with reference to the arguments advanced on behalf of all the appellants/accused we have to see whether there was any attempt on the life of Mr. Narasimhan by administering poison and wrongfully confining him in the same room where the dead body of Mr. Acharya was found.
38. While dealing with regard to the above two serious offences, we also have to incidentally assess the materials on record in order to conclude whether with the intention of robbing Mr. Acharya not only of cash but mobile phones, he was done to death and so also with regard to causing injuries to P.W.2-Narasimhan.
39. Through the oral evidence of 74 witnesses, several documents and material objects, the prosecution has brought on record both direct and circumstantial evidence. (sic) upon the circumstantial evidence and so far as the offence pertaining to P.W.2-Narasimhan, not only direct evidence of him but other circumstances relied upon by the prosecution to connect these accused persons in respect of the offences against both the deceased and P.W.2 which are common to both the offences has to be seen.
40. The prosecution relies upon the following circumstances to establish its case:
1) Presence of dead body of Acharya and also P.W.2 injured in room No. 523 when P.W.1 and others opened the said room with a duplicate key on 8.5.2001 at about 10.40 a.m.;
2) Homicidal death of the deceased amounting to murder due to compression of mouth, nostrils and neck;
3) P.W.2 Narasimhan being in a disoriented condition tied to a chair in room No. 523 with injuries;
4) Falsity of defence of alibi;
5) Presence of accused Nos. 1 to 3 at Hotel Ashoka, especially in room No. 523 on 7.5.2001 between 12.00 noon to 2.30 or 3.00 p.m.;
6) Presence of accused at Bangalore between 29.4.2001 to 8.5.2001;
7) Accused No. 1 proceeding to Poona via Tirupathi and Hyderabad in a taxi belonging to P.W. 12;
8) Accused Nos. 2 & 3 taken from Hotel Ramanashree to railway station as stated by P.W. 31;
9) Purchase of sim cards;
10) Test Identification Parade; and
11) Experts' evidence indicating presence of accused No.2 at the scene of offence; and
12) Other circumstances.
41. Circumstance No. 1: Presence of dead body of Acharya and also P.W.2 injured in room No. 523 when P.W.1 and others opened the said room with a duplicate key on 3.5.2001 at about 10.40 a.m.:
Our endeavourment should be to know the nature of death of the deceased whether it is a natural one or a homicidal one. According to the prosecution, the hectic effort made by P.W. 1 Susainath to trace the whereabouts of Mr. Acharya when he did not return, to the offence at 4.30 p.m. or so on 7.5.2001, ultimately led to the discovery of the dead body of Mr. Acharya in the bath tub at Ashoka Hotel in Room No. 523. After securing the information that from 7.5.2001 to 8.5.2001, on the door of the said room 'do not disturb' board was put and nothing was ordered from the said room for almost a day, the doors of the said room got opened with a duplicate key kept with the hotel authorities. On entering the said room, P.W.1 - Mr. Susainath and employees of the hotel found P.W.2 sitting on a chair in a disoriented position and dead body of Acharya with his hands and legs tied and mouth being plastered, in a bath tub in the adjoining room. Apparently, the said room was having two portions - one sitting room and another bedroom with two toilets and two entrances. In one portion of the room, Mr. Narasimhan was found in a sitting position on a chair and in the bathroom attached to the bed room, they found the dead body of the deceased in the bath tub.42. So far as finding the dead body in the bathroom of room No. 523 in which P.W.2 was seen in a confused state of mind, it is categorically spoken to by this witness. Defence could not bring on record any material during the lengthy cross-examination of P.W.1 to suspect or doubt the evidence of P.W.1 on this aspect, it is not just P.W.1 who found this but he did so with the assistance of the employees of Hotel Ashoka. Apart from P.W.1, several other persons were in his company when they opened the door and entered the room No. 523.
43. P.W.4 Mr. A.V. Lakshman at the relevant point of time was the Superintendent of reception of Hotel Ashoka, Bangalore. He was also one among the persons who found the dead body of deceased in the bath tub and P.W.2 Narasimhan in a confused state of mind in room No. 523. Apart from this, he was a panch witness to Ex.P-2 inquest mahazar. This witness was examined at length and also was subjected to cross-examination. Another person by name Manoj Kumar P.W.24 security guard was another witness to the inquest proceedings. This witness was cross-examined only by accused No. 3 and his evidence goes to show that, he was not only on duty from 9.00 a.m. to 5.00 p.m. on 7.5.2001 but also on 8.5.2001. Apparently he was not cross-examined by accused Nos. 1 & 2. Though he was cross-examined by accused No. 3 in order to elicit that his signature to Ex.P-2 was taken at the police station, the defence was not successful in establishing the said fact. In his cross-examination, presence of dead body of a male person in the bathtub and also another person in disoriented mood in the said room has gone unchallenged. Therefore, his evidence regarding the presence of the dead body of Mr. Acharya and presence of P.W.2 - friend of Mr. Acharya in a sitting position in a chair cannot be doubted. To corroborate his evidence we have the evidence of police personnel Mr. Mallegowda - P.W.41 Head Constable at the High Grounds Police Station, who transported the dead body of the deceased from room No. 523 to the Bowring Hospital at about 3.00 p.m. on 8.5.2001. One Mr. Rajanna P.C. who was assisting him in the said work accompanied him to Bowring Hospital. After conducting autopsy on the dead body of deceased Acharya certain articles like clothes and bottles containing chemicals were handed over to him. He produced these articles before the concerned Investigating Officer. Several questions were put to him regarding the personal belongings of the deceased said to have been recovered from the dead body and the details of those personal belongings. It is pertinent to mention that when the dead body of deceased was identified as that of Mr. Acharya's recovery of personal belongings becomes irrelevant though it would throw light on the nature of investigation done which again depends upon other factors like actual cause of death, etc. On the other hand, the evidence of P.W.41 indicates M.Os. 50 to 56 were the personal belongings of the deceased given to him by the Medical Officer and the same were produced before the Investigating Officer Similarly 3 rones M.Os. 57. 58 & 59 (sic) alleged to have been used to tie the hands and legs of the deceased.
44. To corroborate the evidence of the prosecution that the dead body of Mr. Acharya was found in room No. 523, several photographs of the deceased were taken through photographer P.W.49 Gopala Shetty. This is also at instance of the investigating officer of the High Grounds Police Station. The said photographs marked at Exs.P-106 and 106(a) are the corresponding negatives. Fact of taking several photographs by this P.W.49 stated by him on oath before the Court has gone unchallenged. Evidence of P.W.70 one Mr. D.T. Jayakumar P.S.I. from High Grounds Police Station indicates, on the complaint of P.W. 1 Susainathan he registered a case in Crime No. 207/2001 and sent FIR to the Magistrate. After securing the panchas, he visited hotel Ashoka and found the dead body of a male person in room No. 523 and in the presence of witnesses he conducted inquest proceedings under Ex.P.2. Meanwhile, articles found in the room were seized and he sent constables to Malya Hospital to guard the injured at the hospital. He also speaks about the instructions given to P.W.41, who took the dead body which is already stated above. Several questions were put to this witness regarding investigation with regard to the details of the persons occupying the said room, as well as taking precaution to see that no one else had visited the said room before chance finger prints were taken by the Finger Print Expert. According to him, there were teeth marks or holes on the pant at the left knee portion. He has also deposed several other aspects regarding presence of blood, presence of teeth marks or holes on the pant at the knee level, etc.
45. So far as presence of dead body of Mr. Acharya in the said room, there was no serious denial and there is no reason why we should not accept his evidence when he had been to room No. b23 in connection with crime No. 207 of 2001 and conducted the inquest as per Ex.P.2. The contents of Ex.P.2 and the evidence of the witnesses as stated above, definitely indicates that the deceased was found in the bath tub at room No. 523 of hotel Ashoka, with a plaster on the forehead and mouth apart from hands and legs being tied with ropes. All these facts are established from the above evidence of different witnesses i.e., witnesses from the hotel, police, close friends and colleagues of deceased Acharya Apart from this the contents of Ex.P.2 make it very clear that inquest proceedings were conducted over the dead body of a male person described as Mr. Acharya at hotel Ashoka in room No. 523. The photographs at Ex.P.106 along with its negatives would indicate the position of the dead body and how the deceased was made incapable of defending himself by not only shutting his mouth but also tying his hands and legs with ropes.
46. So far as the dead body being found in the hotel room, we have the above evidence and so far as identity of the said dead body as Mr. Acharya's, we have the evidence of not only P.W.I. Susainathan, who was working under the deceased Acharya at Trade Wings Foreign Exchange office but also other witnesses, former colleague of deceased by name Srikanth, who is examined as P.W.5. We also have the evidence of P.W.7 Sri Koushik, brother-in-law of the deceased and brother of P.W.6 Sudharani wife of deceased Acharya. According to P.W.5 Mr. Srikanth a friend and former colleague of deceased, on 7.5.2001 he tried to call the deceased on his mobile at about 3.00 p.m. but the phone was switched off. He again called at about 7.00 p.m., again the phone was switched off. When he tried to contact the deceased on the next morning at 9.00 a.m., the mobile was once again found switched off. Hence, he rang up the house of the deceased and learnt that deceased had not returned to the house on 75,2001 and his wife expressed her concern and fear. Immediately he rushed to the house of the deceased at 10.30 a.m. and spoke to the wife of the deceased. P.W.6 wife of the deceased informed him that deceased had gone to hotel Ashoka with cash on the previous day and he had not returned home though his car was found in the hotel. When he was talking to the wife of the deceased, a telephone call came to the house of the deceased intimating the murder of the deceased. He immediately informed his friends and others over the telephone from the residence of the deceased itself and then rushed to hotel Ashoka. By the time he came to hotel Ashoka the dead body was shifted to mortuary of Bowring Hospital. Therefore, he went to Bowring hospital and saw the dead body. He also noticed that mouth of the deceased was plastered. As per his evidence, he knew the deceased for about 24 years and also the antecedents of the deceased how he took voluntary retirement from service at Syndicate Bank etc. It is disclosed in his evidence that the deceased was working in the Foreign Exchange Department of Syndicate Bank during his service and P.W.5 was visiting him regularly at his house and he is well acquainted with all the family members.
47. One Mr. Prakash Rao and Mr. Anitkar acquaintances of the deceased accompanied him to see the dead body of Acharya. His statement was recorded by the investigating officer. Several questions were put 10 him during the cross-examination about the details of making phone calls to the deceased being mentioned in his statement, he has given the answers. The entire cross-examination of this witness does not give out any suspicion or doubt regarding his acquaintance with the deceased and his eagerness or affinity towards deceased Acharya. The lengthy cross-examination of this witness by aeeused-3 has not led to any misrepresentation of facts so far as the relevant issue of homicidal death of deceased Acharya and his dead body being found in a room at hotel Ashoka which was seen by him later at Bowring Hospital. P.W.7 the brother of P.W.6 wife of the deceased learnt the death of deceased at about 3 or 4 pm on 8.5.2001 and he immediately came to Bangalore from Madikeri. After visiting his sister he went to Bowring Hospital and identified the body of deceased Acharya. He also speaks about the position of the dead body when he saw the dead body in the hospital. He is the person who took the dead body of the deceased from police custody after complying with the formalities. He speaks of performing last rites etc. Though minor discrepancies like performance of last rite etc. are brought on record in the cross-examination of this witness, the defence was not able to dent his evidence so far as his relationship with the deceased through his sister P.W.6 and his coming to Bangalore on 8.5.2001 and taking active part in other formalities as brother-in-law of the deceased. From the evidence of these witnesses, so far as identity of the dead body found at hotel Ashoka is not in dispute.
48. Circumstance No. 2: Homicidal death of the deceased amounting to murder due to compression of mouth, nostrils and neck:
Coming to the homicidal death of the deceased, P.W.60 Dr. K.H. Manjuiiath was examined. His evidence discloses the fact that one Dr. Nisar Ahmed was working under him when he was a Professor in Forensic Medicine at. Victoria Hospital attached to Bangalore Medical College. Since Dr. Nisar Ahamed who conducted the post mortem on the dead body of the deceased had resigned the job and had gone abroad, he had come before the Court as he knew Dr Nisar Ahamed and identifies the handwriting and signature of Dr. Nisar Ahamed. According to him, Ex.P.107 the post mortem report signed by Dr. Nisar Ahamed indicates that he conducted autopsy on the dead body of Acharya aged about 52 years between 3.30 to 5.30pm on 8.5.2001. The cause of death was asphyxia as a result of compression over the mouth, nostrils and neck. He identifies the signature of Dr. Nisar Ahamed at Ex.P.107(a), (b) & (c). Ex.P. 108 and 109 are the replies and further opinion issued by Dr. Nisar Ahamed which contain his signature. A lengthy cross-examination of this witness was done regarding formalities and the reasons given by him are at Ex.P. 108 and 109, During the cross-examination of this doctor it was elicited that Benzodiazapam was a mild tranquilizer and Thiopentone was an ultra short acting analgesic sedative. According to this witness Thiopentone was available in injection form and Benzodiazapam is available both in tablet and injection form. If both the drugs are injected to a person through liquid, the recipient would develop dizziness and giddiness. According to him, though Benzodiazapam does not cause death even if repeated dozes are given but Thiopentone may cause coma if repeated heavy doses are given. A person who goes into coma if unattended for a long time would lead to his death. Though several questions were put to this witness in order to elicit that it would not be possible to assess time of death in such cases, etc. it is denied. A suggestion was put to this witness that the post mortem report at Ex.P.107 does not contain mentioning of any marks of injection over the dead body and therefore cause of death due to administration of Thiopentone cannot be ascertained. The evidence of this witness discloses the fact that chemical analysis of the contents of the dead body revealed presence of first drug and therefore, death could not be due to administration of Thiopentone. Benzodiazapam was detected in the blood, stomach, intestines. This opinion was given based on FSL report, though that was not the cause of death as reported by the Dr. Nizar Ahamed. It is further brought in evidence that if death is on account of throttling or manual strangulation by application of force, it would definitely indicate both internal and external injuries at that part.49. Ex.P.107 post mortem report indicates the following external and internal injuries on dissection:
External Injuries:
1. Left lower central incisor fractured and fallen off and missing. The socket filled with red coloured blood.
2. Right lower central incisor loosened and socket shows red coloured blood.
3. Laceration present over inner aspect of middle of upper-lip, measuring 1.5 cm x 0.5 cm x muscle deep.
4. Laceration present over inner aspect of middle of lower lip, measuring 1.5. cm x. 1 cm x muscle deep.
5. Abrasion present over middle of nose near the septa measuring 1 cm x 1 cm
6. Contusion present over back of left side abdomen, situated 7 cm to left of midline and 46 cm below level of top of left shoulder measuring 6 cm x 4 cm.
7. Contusion present over back of right side of chest, situated 5 cm to right of midline and 10 cm below level of top of right shoulder measuring 4 cm x 4 cm.
8. Scratch abrasion 3 cm below right ear measuring 1.5 cm x 0.25 cm.
9. Abrasion present over right side neck situated 4 cm below middle of body of right side mandible measuring 5 cm x 2.5 cm.
10. Abrasion present over left side neck situated 4 cm below left angle of mandible measuring 7 cm x 2 cm.
11. Abrasion present over left side chin, measuring 1.5 cm x 1 cm
12. Eight cresentric shaped pressure abrasion of teeth bite marks, four above and four in the lower row (As shown in figure) in oval shape present over outer aspect of left knee situated 4 cm outer to left knee in an area 4.5 cm x 4 cm.
50. On dissection of skin over neck, it is observed that blood Extravasation all over right and left side of tissues and muscles of thyroid cartilage and also over the posterior aspect over cervical region each measuring 8 cm x 6 cm, 6 cm x 6 cm and 6 cm x 5 cm respectively. Thyroid cartilage was intact. Hyoid bone shows fractured dislocation at the junction of body with greater cornia, blood extravasated around.
51. This finding of external and internal injuries over the neck has led to the opinion as to cause of death, as a result of compression over the mouth, nostrils and neck. As per the FSL report Benzodiazapam was found in the contents of intestines and other parts as stated above. It would only go to show that this sedative drug was administered to the deceased when he was alive. The post mortem report says there were no marks of injection but it is possible that such marks were not noticed by the autopsy doctor. As there is no direct evidence on which portion of the person of Mr. Acharya this injection was administered, ft is quite possible they were unnoticed by medical expert. The fact remains such drug was found administered to him prior to his death as viscera of the dead body did contain the said drug. However, this drug did not lead to the death. The injuries both external and internal as stated above definitely lead to the conclusion that the death of Mr. Acharya was not a natural one but a homicidal one due to compression over the mouth, nostrils and neck.
52. Circumstance No. 3: PW2 Narasimhan being in a disoriented condition tied to a chair with injuries at room 523:
According to the prosecution, the persons who have caused the death of deceased Acharya, are the same persons who have caused injuries on the person of P.W.2 Mr. Narasimhan. Ex.P.85, 86 and 87 are the relevant documents. The details of injuries are as under:
1. Abrasion and swelling over left forearm 5 cm long.
2. Abrasion over bridge of the nose 2 cms x 1 cms.
3. Abrasion 2 inches over medial side of right wrist
4. Linear Abrasion 5 inches over right side of the neck.
53. The doctors who treated this witness are P.W.42, Dr. Pradeep Kumar from Mailya hospital, P.W.23 - Dr. Anandappa, P.W.21 Dr. Sambamurthy. P.W.24 Dr. Revanasiddappa, P.W.50 Dr. Premakumar B.G. These are the doctors who have ireated P.W.2-Narasimhan from 8.5 2001 at 11.40 a.m. onwards on different dates at different stages. The injuries mentioned above are also spoken to by these doctors. Patient was given first aid and the aspirated fluid from the patient was sent to the Victoria hospital suspecting administration of drug. Therefore, toxicology profile was done. On examination of P.W.2 by P.W.42 it revealed he was dis-oriented, which means patient was not totally aware of the circumstances and surroundings which was due to influence of the drug said to have been injected. Such condition of the patient could be due to head injury. He was unable to respond to the questions put to him. Ex.P.85 is admitted as the certificate issued by h:m containing his signature. Ex.P.87 is the wound certificate with his signature. Injury Nos. 1, 3 and 4 described at Ex.P.87 could be caused with ropes produced by the police. According to him, Nos. 11 to 14, 25, 57 to 59 shown to him could cause such injuries. According to him. Dr. Prabhakar was also present when the patient was brought. After looking to Ex.P.86 and other papers, he says Dr. Thyagaraj also had examined the said patient. This witness was examined twice as MLC register from Mallya hospital marked at Ex.P.94 had to be brought on the next date. His cross-examination reveals that whenever a medico legal case is brought to them, they give first aid and then send the patient to Victoria hospital for further treatment and opinion. As the present case was a medico legal case they had referred to it to Victoria hospital. He further says one Mr. Kishore had escorted the patient to the hospital and he has not mentioned the date of incident etc. at Ex.P.94. It is further revealed that the history was ascertained from Kishore Patil which was incorporated at Ex.P.94. According to him except the history being due to assault, no other details are mentioned, like cause of injury etc. Several questions regarding the rope being shown to him were put but, at the time of his evidence during 2004 nearly 3 years after the incident, he was unable to say whether he had seen the ropes or not before issuing the wound certificate at Ex.P.47. It was also suggested to him that the injuries described at Ex.P.37 could be caused due to a fall while running, falling and rolling. They could also be caused due to a motor vehicle accident.
54. P.W.23 is Doctor Anandappa, Casualty Medical Officer at Victoria Hospital. According to this witness, on 8.5.2001 he examined P.W.2 at 2.15 p.m. who was brought by P.C. of High Grounds Police Station. The patient was referred from Mallya Hospital. He also describes the above said injuries being found on the deceased. According to him, the patient was referred to the medical duty doctor of the Department of Surgery and also Forensic Department. Ex.P.22 is the certificate issued by him. According to this doctor, at the time of examination though patient was conscious, he was confused and disoriented having lost awareness of surroundings with regard to time and place. According to him, this condition may develop on account of suffocation and if the blood supply to the brain is affected. It can happen if the circulation of the blood to the brain is impaired or reduced. The patient can take two to three weeks to recover from that state. He admits he has only mentioned the history of assault and no further details. He did not ask the patient to know how those injuries were caused and who had caused those injuries. He also says ligature mark could be found if pressure is used. In his opinion such injuries can happen in an accidental fall as well.
55. P.W.50 Dr. Premakumar was Professor and Head of the Department of Radiology at Victoria hospital. He took the x-rays of Mr. Narasimhan on 8.5.2001. One is surgical spine AP view and the other is lateral view. He could not find any injury mark or fracture of the spine. He identifies Ex.P.95 two x-rays and the report at Ex.P.96.
56. P.W.21 Dr. B.N. Sambamurthy was Professor and Head of the Department, ENT. According to this doctor radiographs of the neck of the patient did not reveal an; abnormality. The typed report at Ex.P.16 is signed by him prepared by one duty doctor Shivaprasad. In the cross examination of this witness, the witness admits that or 22.5.2001 though he had not seen the patient personally, he had given his opinion based on x-ray report and reports of the assistant. According to this doctor, it is one Dr. Shivaprasad working under him who had given the provisional diagnosis as hypoxic encephalophathy. Ex.P.16 reveals such condition can happen due to attempted strangulation.
57. P.W.44 Dr. Revanasiddappa Professor of Surgery at Victoria hospital says there was no surgical treatment and he accepts the endorsement at Ex. P. 16 (c).
58. P.W.73 is Dr. Shivaprasad, who was in Medical Unit at Victoria hospital at the time of treatment of P.W.2 Narasimhan. According to this doctor, lie was aware of the condition of the patient at the time of admission. When he made good progress he was discharged on 16.5.2001. According to him, dis-orientation means not oriented to time, place or person. According to him, he treated injured from 8.5.2001 till he was discharged. This doctor has described the condition of the patient not only from the contents of the record, but also from his personal experience. According to him, from 9.5 2001 patient was oriented.
59. The arguments of the accused so far as this witness is concened is that Kishore Patil who accompanied this F.W.2 to the hospital was not examined. Therefore, the prosecution case as put forth cannot be accepted. From the evidence of the medical experts stated above so far as this witness is concerned, it is the case of P.W.2 that he was attacked and his legs and hands were tied. According to the doctors the patient was disoriented, but conscious. It is to be noted that when P.W.1 and others went to room No. 523 they found P.W.2 in a confused state of mind and they could make out that he was not in a position to say anything. It is also clear that no doctor was in the company of P.W.1 when they entered the room when they found P.W.2 at room No. 523. There is ample evidence on record to show P.W.2 was found at room No. 523 at about 10.30 or so and by 11.40 a.m. on 8.5.2001 he was shifted to Mallya hospital.
60. Circumstance Nos. 4, 5 & 6: Defence of alibi; Presence of accused Nos. 1 to 3 at Hotel Ashoka, especially in room No. 523 on 7.5.200i between 12.00 noon to 2.30 or 3.00 p.m.; and Presence of accused at Bangalore between 29.4.2001 to 3.5.2001:
The process to examining the material on record, the Court has to ultimately to know the real assailants responsible for the homicidal death of Mr. Acharya and sustenance of injuries to P.W.2 Narasimhan. According to the prosecution, accused 1 to 3 have caused the homicidal death of the deceased and have also caused injuries to P.W.2 - Narasimhan.61. During the course of arguments of appellant-accused No. 1, his presence at Bangalore City between 30.4.2001 to 8.5.2001 is not at all seriously disputed. His visit to different hotels i.e. Ramanashree California Resort, Infantry Court and Ivory Towers is not in dispute. He has denied his visit to Bangalore Club and hotel Ashoka, So far as the death of deceased Acharya, the entire case is based on circumstantial evidence and in a case of circumstantial evidence,, the Court has to take utmost care to see whether the circumstances relied upon by the prosecution have formed into a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else.
62. The following decisions are relied upon how to analyse the circumstantial evidence:
i) Baladev Singh v. State of Haryana : 2009 Crl.L.J 948. In a case of circumstantial evidence, duty of the Court is to take utmost precaution. Circumstantial evidence must satisfy the following tests:
1. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2. Circumstances should be of definite tendency, unerringly pointing out towards the guilt of the accused;
3. Circumstances, taken cumulatively should form a chain so complete that there is no escape from that conclusion that within all human probability, the crime was committed by the accused and none else; and
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused out should be inconsistent with his innocence.
It is settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for proof and die Court shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. There, when a prosecution bases its case on circumstantial evidence, inference of guilt cannot be drawn unless all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused.
ii) Dinesh Borthakur v. State of Assam 1 (2008) 3 SCC (CRL) 39)
Held: The circumstantial evidence leading to the guilt of the appellant not having been established by the prosecution, the Judgment of the conviction cannot be sustained. The prosecution made an attempt to show that the deaths of the victims were caused by administration of poison and/or strangulation. The prosecution in a case of commission of murder by poisoning must bring in record some evidence linking the accused therewith. The bottle containing pesticide was found in the washbasin along with a glass inside the house. There is nothing on record to show that the appellant had purchased pesticide or brought it home. No fingerprint of the appellant was taken to snow mat it was he who had used the bottle or the glass for the said purpose.
No incriminating evidence linking the appellant in regard to administration of poison/pesticide has been brought on record. A finding of guilt cannot be based on a presumption. Before arriving at an inference that the appellant has committed an offence, existence of materials therefore ought, to have been found.
The arguments of the appellants especially accused-1 would indicate that they were not present at the scene of offence by reason of their presence at another place. In other words, accused-1 Mr. Basak is putting forth plea of alibi
Plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. Therefore, such plea can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.Reliance is placed on:
State of Kerala v. Anilchandran Madhu Crl.A.32.33/2004 D.D. 15.04.2009 by Hon'ble Supreme Court of India
Gurucharan Singh v. State of Punjbab 1956 SC 460 : AIR (S) V 43 C 79 June
Jayanthibhai Bhenkaarbhai v. State of Gujarat AIR 2000 SC 3569
Binay Kumar Singh v. State of Bihar : AIR 1997 SC 322
Bhargavan v. State of Kerala AIR 2004 SC 1058
State of Maharashtra v. Narsingrao : AIR 1984 SC 63
Babudas v. State of M.P. 2003 SCC (CM) 1749
Ram Bali v. State of Uttar Pradesh : AIR 2004 SC 2329
Dudh Nath Pandey v. State of U.P. 1981 SC 911
Ritesh Chakarvarti v. State of Madhya Pradesh 2007 (1) Crimes 35 (SC)
The gist of the above decisions is as under:
Whenever a plea of alibi is set up by the accused, even if it is discarded by the defence, it does not take away the duty of the prosecution to prove beyond reasonable doubt that the accused persons were guilty. Therefore, even if the accused was not able to prove his defence of alibi beyond reasonable doubt, it cannot be presumed that prosecution has proved its case against the accused. Therefore, the burden of proving the case against the accused does not depend upon the defence establishing the plea of the alibi or not. Even otherwise, the plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. While weighing the prosecution case and the defence pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to benefit of i hat reasonable doubt which would emerge in the mind of the Court. Plea of alibi must be proved with absolute certainty completely excluding the possibility of presence of the accused concerned at the place of occurrence.63. So far as the presence of dead body of Mr. Acharya at hotel Ashoka and injured P.W.2 at room No. 523 at hotel Ashoka on 8.5.2001, the prosecution has established the said fact. Then the question would be who occupied this room between 7.5.2001 and 8.5.2001. It is also on record that from 7.5.2001 till the room was opened, there was a board in front of the room as 'do not disturb' and no order for needs came to be placed from this room The Inquiries at the hotel Ashoka revealed F.W.45-Veena Anand was the receptionist who had seen the first accused present before the court who had come to hotel Ashoka not. only on 7.5.2001 taking room No. 523, but also on earlier occasion on 4.5.2001. Apparently, room No. 523 was not vacant on 7.5.2001. Definitely neither Mr. Acharya nor P.W.2 Narasimhan nor P.W.1 Susainathan had booked the said room at Hotel Ashoka either on 7.5.2001 or on 8.5.2001. The only person who had access to the said room at the relevant point of time was the guest who booked the said room or any person permitted by him apart from concerned employees of the hotel Ashoka; The very fact that deceased Acharya went to the said room definitely indicates that he was either taken to the said room by some one who had access to the said room or he was summoned to the said room by the person occupying the room. The enquiry from hotel Ashoka indicated no employee of the hotel had absconded from 7.5.2001 onwards. Under these circumstances, the Investigating Agency had to start, the investigation from enquiring Smt. Veena Anand. From the entire evidence of this Veena Anand, we do not find any suspicion or doubt that she was forced to give the evidence at the instance of Investigating Agency or any other person having grudge or enmity against accused-1. According to this witness, room No. 523 was booked by one Sandeep Sen by paying an advance of Rs. 10,000/- as it was deluxe suite. She could remember him as he had occupied room No. 423 three days prior to that date on 4.5.2001 as well. Both the rooms were deluxe suites having sitting room, one bed room with two toilets with attached bath room. This room No. 523 had two separate doors for entry. The evidence of this witness would indicate the accused tried to obstruct her evidence at the instance of the accused on several grounds. Her cross-examination was postponed at the instance of the first accused. According to her, in the examination-in-chief and cross-examination as well, one Sandeep Sen occupied room No. 423 on 4.5.2001 as per Ex.P.134 by paying advance of Rs. 5000/-. The first accused was very friendly and had even intimated her that he would come again and requested her for a room, therefore, she could remember his features and identity as he had come for the 2nd time on 7.5.2001. Ex.P.135 pertains to the second visit when he occupied room No. 523 at 12 noon. His account was closed on 8.5.2001 at about 7.00 p.m. in the evening as the occupant of the said room vacated the room without informing the hotel authorities. Therefore, the Management of the hotel had to close his account in his absence. She has categorically stated that no one was present at the time of closing his accounts.
64. The arguments of the learned Counsel for the appellants is to the effect that the documents from Hotel Ashoka indicate that some one had closed the account on 8.5.2001, therefore, police had ample opportunity to arrest or have the clues of the assailants from the person who closed the accounts. This may not be correct on the face of the record as it is the categorical statement of this witness that accused-1 did not vacate the room on 8.5.2001 and the said room was vacated without intimation. Therefore, the Management had to close the accounts. It has also come on record that the original documents pertaining to Ex. P. 134 and 135 are lost and xerox copies are produced. Ex.P.23 indicates that milk shake was ordered and served to room No. 523 on 7.5.2001. The documents pertaining to earlier Management being lost due to change of hands in the Management is spoken to by P.W.69. One Mr. Manoj Kumar P.W.24 a security officer has attested the documents. From the evidence of P.W.45, ii is clear that on 4.5.2001 the occupant of the room by name Sandeep Sen filled up the details in the form Ex.P. 134 and whereas Ex.P.135 was filled up by P.W.45 - Smt. Veena Anand and the guest signed the form. On perusal of these two documents, it is seen that one Sandeep Sen had occupied room No. 423 on 4.5.2001 and room No. 523 on 7.5.2001 at 12.00 noon. The date and time of arrival of the guest on 7.5.2001 is noted as 12.10 p.m., so also the departure. The contents of the bills at Ex.P.27 and Ex.P.28 issued by the hotel Ashoka to the accused, the name of the guest is Sandeep Sen. The date of arrival and the time of arrival is shown as 7 5.2001 at 12.10 noon respectively. At Ex.P.135 the date of departure and time is mentioned as 7.5.2001 and it is stated as 12.00 noon. Ex.P.27 does not contain the signature of the guest to indicate that the departure is at 7.00pm 3 minutes 41 seconds. Ex.P.28 is a bill dated 8.5.2001. This would only go to show that by oversight the date and time of arrival and departure must have been mentioned as 12.00 or 12.10 p.m. on 7.5.2001 by mistake. This conclusion is fortified in the light of evidence of P.W.45 and the contents of bills at Exs.P-27 & P-28.
65. Perusal of Ex.P.23 would indicate on 7.5.2001 at 1.52 p.m. milk, shake was supplied and billing was done to room No. 523. Therefore, at 12.10 p.m. on that day, question of anyone vacating the room would not arise. Ex.P.27 is a computer generated bill regarding this room No. 523. Ex.P.28 is also a computer generated receipt indicating the details of advance payment and also the refund to be made. Ex.P.135 is the document pertaining to room No. 523 with reference to 7.5.2001. Only after settling the accounts pertaining to this room, the bills at Exs.P. 27 and 28 could be generated. According to P.W.45 as this room No. 523 was checked out without intimation to the receptionist or the Management, the bill had to be closed at about 7.00 p.m. on 8.5.2001. Therefore, in pursuance of such closure only, Exs.P. 27 and 28 have come into existence. Merely because the check out departure time is shown as 7-03-41 (probably time of closing the bill) dated 8.5.2001, it does not mean the bill was settled in the presence of the guest of the said room Mr. Sandeep Sen. These two bills refer to supply of item costing rupees ninety five at Coorg restaurant. After calculating the amount towards the rent, etc., the balance was rupees two thousand nine hundred and five only. The indication of rupees two thousand nine hundred and five and twenty paise being paid out to the guest definitely does not indicate that someone was present in person and settled the accounts which is evident from the evidence of P.W.45. On the other hand the contents of Ex. P. 26 indicate some person by name Sandeep Sen, America Intel Group had
occupied room No. 423 on 4.5.2001. Time of occupancy is about 10.50 and the time of departure to 12.58 noon. On 4.5.2001 the form at Ex.P.134 was filled by the occupant of the room Sandeep Sen and on 7.5.2001 it was filled by P.W.24. Both Exs.P.134 and 135 have the counter signatures of Smt. Veena Anand. According to her, the pleasing manner and the behaviour of accused No. 1, was the reason for her tc remember him. As already stated above, there was no reason for this witness to speak against the guest who occupied room No. 423 on 4.5.2001 and room No. 523 on 7.5.2001. Between 4.5.2001 to 8.5.2001 it is a matter of 4 days. The dead body of Acharya and injured P.W.2 were found in Room No. 523. Being receptionist at the hotel, after knowing the arrival of the police and the dead body of Acharya being present in room No. 523, any normal person would make efforts to know-what could have-Happened in the said room as a receptionist or a steward or as house keeper or as bell captain connected with the hotel. P.W.45 who had exclusive knowledge of visit of accused No. 1 - Mr. Basak to the hotel on 4.5.2001 because of his manners, etc., could definitely identify him when he arrived on 7.5.2001 as she was the receptionist to do the record of occupancy of rooms at the reception. Having regard to the ghastly incident in the room No. 523, definitely P.W.45 who was concerned with the booking of this room No. 523 on 7.5.2001 for Mr. Sandeep Sen could recognise him with his features as he had come to the hotel a short while ago. With the assistance of these features given by this witness P.W.45, the investigating agency got the portrait of the occupant (accused No. 1) of the room from one Mr. Rajendra P.W. 57 a computer operator. According to P.W.45, two adult persons occupied the said room but she is not in a position to say whether other person was male or female. The contention of the accused-appellants is to the effect that the signatures and hand writing at Exs.P.134 and 135 ought to have been sent to the hand writing expert in order to know the real occupant of the said room. No doubt the investigating agency could have sent these documents for hand writing expert but P.W.45 was crystal clear in her evidence before the Court regarding what all happened so far as accused No. 1 at Ashoka hotel is concerned between 4.5.2001 to 7.5.2001 and then on 8.5.2001 when the news of dead body of Acharya In room No. 523 came to light. The evidence of this witness does not suffer from any infirmity as she withstood the test of cross-examination. The inaction on the part of the investigating agency to send these documents to the hand writing expert does not go to the root of the case of the prosecution to damage the evidence of P.W.45 who had an occasion not once but twice to see accused No. 1 in the hotel and further to remember him because of his manners and the words spoken to by him on 4.5.2001. Therefore, the learned trial Judge was justified in accepting the evidence of this witness. Her evidence before the Court identifying the first accused as occupant of room No. 423 at hotel Ashoka on 4.5.2001 and room No. 523 on 7.5.2001 definitely would assist the prosecution and has to be accepted as credible and trust worthy evidence.
66. Apart from P.W.45, there are other persons who had occasion to, see accused No. 1 and other at the relevant point of time at hotel Ashoka, in particular room No. 523. According to the prosecution, on two occasions, accused No. 1 presented himself as Sandeep Sen and occupied the room at hotel Ashoka.
67. The other person who had the opportunity to see accused No. 1 at Hotel Ashoka on 7.5.2001 is one Mr. Pranav Murthy - P.W.17. He was examined by the prosecution to prove that this person picked the luggage of the guest who checked into room No. 523 of Hotel Ashoka on 7.5.2001 at 12 noon. According to P.W.45 she is the one at the reception who checked in accused No. 1 to room No. 523 of Hotel Ashoka at about 12 noon after completing the formalities. Her evidence is already analysed above indicating the reasons to accept her evidence. According to P.W.45 Smt. Veena Anand the receptionist, called him at about 12 noon on 7.5.2C01 by ringing the bell. As bell boys were not available readily to attend to the guests, he attended the call from the reception. 2 or 3 bell boys work under a bell captain. As one of the bell boy had gone to canteen and other bell boy was not available, he attended the call of the receptionist. Because of this, he earned the luggage of the guest to the room No. 523. He identifies accused No. 1 Mr. Basak as the person whose luggage he carried to the room No. 523. They were 2 in numbers. Along with A-1 he took two others to room No. 523 and therefore, be remembers the incident. According to this witness, while carrying the luggage to the room, in the lift, of the hotel he asked the 1st accused whether he was in the hotel two days back as he had seen him in the hotel. When he questioned the 1st accused as to where he had been, the 1st accused asked him to guess. When P.W.17 guessed that 1st accused must have been to Mysore, the 1st accused replied to him that his guess was perfectly correct. After leaving the 1st accused and other two persons in the room, he received Rs. 50/- as tip. A few days after this, he was summoned to Central Jail and he was taken to identify the 1st accused and others. He has identified the 1st accused. Like P.W.45 this witness also indicates the reason to remember the accused No. 1 because of his pleasant manners with a smiling face and because of that he could remember him. So far as the date 7.5.2001, he says he joined Hotel Ashoka on 7th May, 1971, therefore, May 7th has a special reference to him. As on the date of his evidence, he was no more working as a Bell Captain and he has taken to acting in TV serials and films, in short roles.
68. Though on behalf of accused No. 1 this witness was cross-examined at length, no cross-examination was done on behalf of A-2 and A-3. Obviously, on 8.5.001 the presence of a dead body and P.W.2 injured in room No. 523 came to light. He being a Bell Captain working at Hotel Ashoka would also come to know of the said fact with reference to room No. 523. This witness seeing the 1st accused 2 or 3 days prior to 7.5.2001 in the hotel and again seeing him on 7.5.2001 and revelation of the dead body of Mr. Acharya in room No. 523 - all happened within short span of 4-5 days. Therefore, it would not be difficult to remember the facts or incident with reference to room No. 523. Evidence of P.Ws. 17 & 45 who had the special knowledge of meeting A-1 as a guest at Hotel Ashoka, staying at the hotel not only on 7.5.001 but also on 4.5.2001 is not devoid of truth. There, the evidence of these two witnesses indicates that accused No. 1 checked in on 7.5.2001 along with 2 persons and on the same day checked out from the hotel, without any intimation to the hotel authorities.
69. Apart from the above material pointing out the condition of Mr. Narasimhan, we have his evidence as an injured witness who has narrated his long acquaintance with deceased Acharya. The evidence of this witness indicates deceased and himself both took voluntary retirement in 1998. While deceased joined the services of M/s. Trade Wings Ltd., Bangalore, this witness had private business at Malleshwaram. He was in regular contact with deceased and was visiting both his house and office. On 7.5.2001 at about 12.45 he received a telephone call asking him to join him at Hotel Ashoka. Again after 1.00 p.m. deceased called him intimating him to be at Hotel Ashoka between 1.30 to 1.45 p.m. When he went to the lobby of Hotel Ashoka he did not find deceased there. Therefore, he was waiting in the lobby. He met deceased and another person introduced as Mr. Sen by the deceased in the lobby itself. Deceased asked him to wait in the lobby and left in the company of Mr. Sen. After some time, Mr. Sen came to him asking him to follow him to a room in the Hotel Ashoka. They went to room No. 523 on the 5th floor. On entering the room he saw two more persons, accused Nos. 2 & 3 but he does not know their names. When he asked the whereabouts of the deceased, he was informed that deceased was in the next room. He sat on a chair and then he felt pain in his left shoulder and was feeling groggy. He could feel that his hands and legs were tied. In the cross-examination lie categorically says that it was accused Nos. 2 & 3 who were tying his legs and hands with ropes. He was cross-examined at length regarding the identity of the person who was in the company of deceased m the lobby of Hotel Ashoka. In spite of lengthy and strenuous cross-examination the defence was not able to shake the evidence of this witness so far as identity of accused No. 1 as Mr. Sen in the company of deceased when he met both of them in the lobby.
70. There is yet another important material on record indicating the presence of this witness at Hotel Ashoka having occasion to see the accused. At 'D' series portions of statements of this witness was brought on record. According to these exhibits P.W.2 was made to drink milk shake at Coorg Restaurant when deceased and Mr. Sen left the lobby. Maybe, this 'D' series were marked in order to contradict the, evidence of the prosecution whether deceased had taken money to room No. 523 or he had left the suit case with P.W.2. The fact remains there was a suggestion put to him in the cross-examination that P.W.2 was made to drink milk shake at Coorg Restaurant. This is corroborated by evidence of P.W.3 and so also the contents of bills at Exs.P-3 and P-135 pertaining to Hotel Ashoka.
71. It is also contended that the evidence of this witness is of a got up witness and he was trying to implicate innocent accused in this case as he could not remember what exactly happened on 7.5.2001. The entire evidence of this witness, certainly indicates till he fell unconscious in loom No. 523, he remembered what all happened. He did not even see the dead body of his friend Acharya in the bath tub of room No. 523 on that day. Before he could see the deceased, he felt drowsy. The medical evidence on record would suggest that a person can become disoriented if pressure is applied on the neck. It is also apparent from the records that due to metabolism even if the sedative drugs are injected it can disappear. So far as deceased is concerned, sedative drug Benzodiazapam was found and no evidence of such drug found in the blood or urine samples of P.W.2. In all probability due to metabolism it must have disappeared as stated by the medical Expert and Forensic Laboratory expert. There is also ample evidence on record through the evidence of Forensic Laboratory Expert - P.W.62 1 syringe cap, I needle at M.Os. 18 & 19 respectively evidencing the presence of Thiopentone. Benzodiazapam was found in M.O.3 (A) a glass tumbler. Several experts have already stated that both these drugs could be administered in the form of injection and also liquid. According to this P.W.62, if Thiopentone is injected into the body it will directly accumulate in the brain and anaesthetic effect will start. According to P.W.2 he felt pain on the left shoulder and immediately he felt some one was tying up his hands and legs. Though there is no crystal clear evidence of injecting any of the sedatives to P.W.2, it is quite possible that he lost consciousness due to application of some drug as he felt a prick on the shoulder which should be due to application of some sedative through syringe. In all probability due to metabolism in the body, it might have disappeared. However, the loss of orientation of P.W 2 is explained by the medical experts as a result of external force used on the neck of P.W.2. From the evidence of P.W.2 it is very clear except himself and accused Nos. 1 to 3, no one else were in the said room when he was offered a drink by the accused. Though he did not see the dead body of the deceased in the bath tub, the evidence on record would reveal in the bath room of the very same room No. 523 the dead body of the deceased was found on 8.5.2001. Therefore, the occupiers of room No. 523 alleged to be the accused Nos. 1 to 3, were responsible for his condition which is establish through the evidence of not only P.W.2 but from the evidence of medical and other experts.
72. Evidence of P.W.3 Mr. Thimmappa Gowda waiter working at Hotel Ashoka in Coorg Restaurant is also relevant. His entire evidence recorded by the trial Court indicates as if he had supplied milk shake to accused No. 3 at the instance of accused No. i and it was billed 1o mom No. 523. The question is whether it was accused No. 3 who had milk shake or P.W.2 who had milk shake at Coorg Restaurant. He did not point, out before the Court to accused No. 3 as the person who had milk shake at Coorg Restaurant. On the other hand, he has deposed before the Court that he was taken 10 Victoria Hospital by High Grounds Police and he saw accused No. 3 as the person to whom milk shake was supplied. It is nobody's case that accused No. 3 was hospitalised at Victoria Hospital. On the other hand, it was P.W.2 who was hospitalised at Victoria. It is pertinent to mention here itself, the presence of P.W.2 at Coorg Restaurant, at Hotel Ashoka on 7.5.2001. Though P.W.2 does hot indicate in his evidence before he had milk shake at Coorg Restaurant, but in the cross-examination of him several portions of his statement as 'D' series were marked. They indicate that when P.W2 was sitting in the lobby of Hotel, deceased Acharya met him along with one person introduced as Mr. Sen and at the instance of accused No. 1 a milk shake was ordered at Coorg Restaurant and thereafter, he was taken to room No. 523 by accused No. 1 Mr. Sen (Mr. Basak). The mentioning of accused No. 3 as the one who had milk shake in the evidence of P.W.3 could be due to error while typing the evidence and it is probably so. P.W.3 categorically admits that the person who was taking treatment at Victoria Hospital was the one to whom he had supplied milk shake. Therefore; the evidence of P.W.3 if analysed would only establish the fact that milk shake was supplied at Coorg Restaurant to P.W.2 at the instance of accused No. 1.
73. The discussion made-above-would reveal he was immediately sent to Victoria hospital where he was seen by different medical experts in order to ascertain the condition of the patient. During the course of investigation no doubt several witnesses who are important would have been examined and though they are charge sheet witnesses, all of them need not be examined. The material placed on record without the evidence of Mr. Kishore Patil who said to have accompanied P.W.2 would indicate P.W.2 was shifted from hotel Ashoka to Mallya hospital. Therefore, non-examination of him would not go to the root of the case of the prosecution. It is pertinent to mention that whenever a patient is admitted to the hospital, the primary duty of the medical attendant is to give treatment without wasting time by trying to find out other facts. Therefore, if M.L.C. revealed that one Kishore Petil accompanied P.W.2 and gave the history of assault, one cannot find fault with such entry and it would not definitely affect the case of the prosecution. The evidence of all these doctors coupled with the evidence of P.W.2 would indicate when he was examined somewhere in the year 2004, he does not remember whether any questions were put to him and whether he has answered those questions the evidence on record would indicate only from 9.5.2001 he was oriented. He learnt the death of his friend Acharya only on 10.5.2001 from his brother and through newspapers. Having seen his condition on 8.5.2001, in all probability no one brought to his notice the death of deceased Acharya till 10.5.2001. The evidence of Narasimhan came to be recorded only on 4.6.2001. He was discharged from hospital on 16.5.2001 when he made good progress. Having regard to the vulnerable position he was placed, if no attempt was made to interrogate him till he had fully recovered, it would not mean that the investigating officer was trying to build up a false story. It is to be remembered the prosecution is not only relying upon the evidence of P.W.2 but several other witnesses to point out the presence of the accused at the relevant point of time of death of the deceased at hotel Ashoka, at room No. 523. Even otherwise, mere discharge on 16.5.2001 from the hospital does not indicate that he was completely all right. As he was making sufficient progress, he must have been discharged, but it does not mean that he was one hundred percent all right. The evidence of all these doctors indicate his physical and psychological condition because of the pressure on the neck. If a person is disoriented definitely he would not be able to give details with reference to time, place and persons. Even if he was oriented from 9.5.2001, having regard to the fact that he was a close friend of deceased Acharya if no one intended to disturb him and having regard to his condition, they have examined him only on 4.6.2001. Therefore, evidence of these doctors would indicate that he improved day-by-day and in all probability was fit enough to give evidence only on 4.6.2001. This is further established by the fact that though police visited the hospital regularly to know the progress of P.W.2, they had not recorded his statement which would indicate he did not completely recover from the shock. The evidence of not only P.W.2 but also other witnesses would indicate that. P.W.2 was found with his legs and hands tied and was sitting in an intoxicating mood (disorientation). Apparently, several injuries were found on his person, which would indicate there was external violence. From the above discussion, the prosecution is able to establish that P.W.2 was assaulted and the external violence administered to him led to his disorientation when he was found by P.W.1 and police, with his legs and hands tied in room No. 523 on 8.5.2001 by accused Nos. 1 to 3.
74. The evidence of P.W.46 - Jagadish a driver by profession attached to Windsor Manor Hotel. Bangalore is also relevant to connect the accused No. 1 to Hotel Ashoka at the relevant point of time. It is this driver who had brought one lady and accused No. 1 in his taxi from Hotel Windsor Manor to Hotel Ashoka. He waited for 1 to 1-1/2 hours at the request of the guest at Hotel Ashoka. Later, 1st accused along with the lady and two other gents came out of the hotel and he took them to HSBC Bank at their request. 2 male persons got down from his taxi near the said bank and the 1st accused asked him to take him to Brigade Road. He stopped the car, near Pizza corner and the lady got down and went away. From there at the request of 1st accused he remembers he took him to Thomas Cook Foreign Exchange at M.G. Road. The 1st accused asked him to park his taxi and told him to take 'U' turn he received a call parking place. By the time he took 'IT turn he received a call from the accused saying he had finished his work and asked him to pick him up. After picking him up, he took him to Mittal Towers where accused took 10 minutes to go to Mittal Towers and come back. On enquiry from accused whether he had old cassette recorder, P.W.46 replied that he did not have. He took accused No. 1 to some shops where he purchased 2 Kishore Kumar cassettes and dropped him to Hotel Ashoka as requested by him. When he got down from the taxi, accused No. 1 requested him to accompany him and asked him to take food and even ordered food for him. When he was having his food 2 persons who had got down from the taxi at HSEC Bank arrived at Hotel Ashoka. He was paid Rs. 800/- by 1st accused after having his food. Though accused No. 1 said he would call him if he requires his taxi on the next day, P.W.46 did not receive any call.
75. According to P.W.46, only on 7.5.2001 he received a call asking him to be ready with his taxi by 12 noon. At about 11.30 a.m. he received a call from accused No. 1 to pick him at Bangalore Club. Accordingly, he went to Bangalore Club in the taxi, 1st accused and 2 others got into the taxi and asked him to take them to Hotel Ashoka. After he reached Hotel Ashoka they asked him to wait and went inside. Only at about 2.30 or 3.00 p.m. all the 3 of them came out of the Hotel Ashoka and according to this witness even before announcement of their arrival cautioning the taxi driver to be ready, these 3 people came out hurriedly and asked him to take them to Indian Institute of Management (IIM), Malleshwaram. When he informed him that IIM was on Bannerghatta road and not in Malleshwaram, the 1st accused and two others asked him to take them to Bannerghatta road. The two persons in the company of accused got down at Chalukya circle and the 1st accused asked him to go to M.G. Road. One single note of Rs. 1,000/- denomination was given to him to keep as taxi fare. 1st accused asked p.W.46 to give his cell phone to have a look at it. After dropping accused No. 1 at M.G. road, he kept on waiting for accused No. 1 upto 9.00 p.m. When he wanted to contact accused No. 1, he noticed that the number given by accused No. 1 stored in his cell phone was erased. This is the evidence of P.W.46 how his taxi was engaged by accused No. 1 on 4.5.2001 and again on 7.5.2001. If the evidence of this witness is analysed in the light of the evidence of P.Ws. 45 & 17, it would establish the fact that this accused No. 1 did visit hotel Ashoka on 4.5.2001 and 7.5.2001. The visit of the 1st accused at Hotel Ashoka on these 2 dates is confirmed not only from the evidence of P.Ws. 17 and 45 but also from the evidence of P.W 46. This witness has stated before the Court on oath that he identified the 1st accused in the test identification parade which was held in Central Jail. Was there a special reason for this witness to remember the identify of 1st accused? The very manner in which this witness remembered the accused is not just as a person who engaged his taxi but even offering food in a hotel, that too an expensive hotel like Hotel Ashoka, would definitely mark an impression in any one's mind, especially P.W.46 being a Taxi driver who remembered the gesture extended to him by one of the customers. It was not a short trip, his taxi was engaged by accused No. 1 not on one day but on two different dates. On both the dates he took accused and others to Hotel Ashoka and brought them back. Therefore, he remembered them. He must have also come to know about the dead body being found at Hotel Ashoka in room No. 523 which definitely must have reckoned his earlier acquaintance of the customers from Hotel Ashoka.
76. During the cross-examination of this witness, serious attempt was made to challenge the veracity of his evidence by putting several suggestions. As a matter of fact, these suggestions would help the case of the prosecution rather than creating any dent in the evidence of this witness. There was a suggestion that P.W.46 did not pick up accused No. 1 on 7.3.2001 from Bangalore Club. It was further suggested that at 2 p.m. accused had gone for food in Hotel Infantry Court and P.W.46 knew about it. There is one more suggestion that from 10 a.m. to 10 p.m. accused No. 1 was in Hotel Ramanashree and he did not travel in the taxi of P.W.46. It is also suggested that a conference was going on in Hotel Ramanashree and therefore, accused was at Hotel Ramanashree. By making a suggestion that P.W.46 was aware of accused No. 1 having food at Hotel Infantry Court on 7.5.2001 at 2.00 p.m. would only disclose that accused No. 1 is accepting the fact that he was in the company of P.W.46. In his written statement after recording 313 statement, A-1 says at about 10.00 a.m. on 7.5.2001 he left Hotel Ramanashree and returned to the said hotel at 1.00 p.m. He does not say further. He cannot be compelled to say further also. Though he is entitled to take alternative defence by putting different suggestions in order to damage the case of the prosecution, one has to see the admissions made by the 1st accused by putting suggestions. The important suggestion is Accused - 1 spending time in the company of P.W 46 having food at 2 p.m. at Hotel Infantry Court. On the other hand, P.W.46 categorically denied this and also the suggestion that he is deposing falsely to oblige the police. There was no reason for this P.W.46 to oblige the police in the first place and further, there was no good reason for this person to implicate the accused No. 1 giving all the details of travel made by Accused - 1 on 4.5.200 and 7.5.2001. He could remember Accused-1 because Accused 1 spent some time in his car travelling with him for 2 days. During this period he offered food also to P.W.46 at Hotel Ashoka on 4.5.2001 and not on 7.5.2001 at Infantry Court. If he were to be at Infantry Court at 2.00 p.m. on 7.5.2001, then evidence brought on record in so far as Ramanashree Hotel would indicate that till 10.00 p.m. the two room Nos. 109 & 110 occupied by accused No. 1, which is not denied by accused No. l, were vacated only some time in the night. Hence from the lengthy cross-examination of P.W.46, the defence was not able to create any doubt in the mind of the Court that this witness P.W.46 was a witness at the instance of the police.
77. The next witness is P.W.15 a driver in city taxi attached to Surmi Company. One Raghu had booked his taxi to make a trip up and down in the city. As per the instruction of Raghu, he went to a STD booth near hotel Ramanashree. Raghu took the taxi and picked up one person from Ramanashree hotel and handed over the tax to P.W.15. He identifies accused No. 1 who was standing before him in the Court, as the person inside the taxi. As per the instructions of A-1 he took him first to Shivajinagar to find out the address on a piece of paper handed over to him. After making enquiries, they ultimately went to a house near Muthyalamma temple. A girl came from the said house and accompanied accused No. 1 in his taxi 10 several shops. He could make out that they were looking out for a rented house. After some time, father of the said girl also accompanied them to some places to search for a house. Later, they dropped the father of the girl near Muthyalamma temple. He drove accused No. 1 and the girl to hotel Ramanashree asking him to come back after having his food. When he returned after half an hour, he saw first accused and the girl in the company of two other persons. They all went to a house, but returned as there was no one in the house. Two other persons got down from the car and he drove accused No. 1 and the girl to M.S. Palya. Said girl got down at M.S. Palya and thereafter, he brought back accused No. 1 to Hotel Ramanashree. The hire charges was rupees one thousand four hundred and forty one but accused No. 1 paid only rupees four hundred forty one as he did not have change asking him to collect balance on the next morning. When he inquired at the hotel Ramanashree at 10.00 a.m., he was informed that he had gone to the city. After leaving his telephone number, he went home which is close to Ramanashree hotel. When hotel people informed him that accused had come back, he went and collected balance of rupees one thousand and also rupees fifty. He again saw him only at the time of test identification parade.
78. This, witness was examined at length regarding his occupation and the fact that the trip sheets were made compulsory after introduction of City Taxi. According to this witness, police traced him as per the information given at hotel Ramanashree. He was also taken to hotel Ashoka and sent away. According to this witness, Mr. Basak had given him the visiting card and mobile No. 9844194629 on a paper. When he went and collected money on the next day, he learnt that accused No. 1 left the hotel in the taxi maintained by Ramanashree hotel. He was categorical in his statement that he went to the hotel on 7.5.2001-to collect the amount. This was elicited in his cross-examination. The cross-examination of this witness further reveals he had taken the first accused and others for a considerable time on 6.5.2001 and when he visited the hotel on 7.5.2001 at 10.00 or 10.30 a.m. and also at 3.00 p.m. when he collected money, accused No. 1 was not in the said hotel.
79. From the statement filed by accused No. 1, he returned to Ramanashree California at 1.00 p.m. and had lunch at Dhaba restaurant at 1.30 p.m. In the 313 statement, he comes out with the fact of paying Rs. 1000/- (rupees one thousand) and tip of Rs. 50 (rupees fifty) to cab driver Venkatesh Reddy. According to accused No. 1, he stayed in hotel Ramanashree till Cab India driver P.W.13 Raju came to pick him up. From the evidence of P.W.15 and the admission of accused NO. 1 in 313 statement, it is evident that accused No. 1 along with others did move in the taxi of P.W.15.
80. The appellants-accused are entitled to take inconsistent stands but while analysing the evidence of the prosecution these inconsistent stands must fit in so as to suspect the genuineness in the case of the prosecution. On the other hand, the evidence of P.W.15 coupled with the evidence of P.W.46 another driver Jagadish in the light of answers in 313 statement of this witness would only indicate first accused was not at Ramanashree hotel on 7.5.2001 between 10.00 a.m. to 3.00 p.m. In the present case, the prosecution has relied upon the evidence of P.Ws.15. 17, 45 and 46 to show that accused No. 1 and two others were not in Ramanashree hotel between 10.00 a.m. to 3.00 p.m. and they were at hotel Ashoka.
81. The inconsistent pleas of the defence would help the accused only as an additional circumstance if other circumstances point out to the guilt of the accused. In other words, the falsity in the case of defence cannot be equated with proof of facts alleged by the prosecution. However, in a case of circumstantial evidence, the falsity of defence would assist the prosecution indicating the guilt of the accused. The prosecution is placing reliance on the independent witnesses and not depending upon the falsity of the defence as the burden of proof rests on the prosecution.
82. The other important documents are from Hotel Ramanashree which are exhibited as Exs. P-46, 48, 49. 50, 51, 52, 53, 153, 154 and 155. So far as the accused No. 1 staying at Hotel Ramanashree California, is not in dispute. Ex.P-48 is the Guest Registration card of the said hotel for the period between 5.5.2001 to 8.5.2001. Ex.P-49 is the bill of the said hotel between 5.5.2001 to 7.5.2001. Ex.P-50 is the telephone bill of the said hotel between 5.5.2001 to 7.5.2001 of room No. 110. Ex.P-51 is the bill No. 724 pertaining to room No. 109 which includes telephone bills. Ex. P-52 pertains to room No. 421 for the period from 30.4.2001 to 1.5.2001. Ex.P-53 is the complete telephone bill including the bills shown at Ex.P-50. Ex.P-153 is the document pertaining to room No. 109 in the name of Mr. Basak. Ex.P-154 also pertains to Ramanashree Comforts where another room No. 111 was in the name of Mr. Basak. Both Exs. P-153 & 154 show he was in the said resort between 5.5.2001 to 8.5.2001. Ex.P-155 is nothing but telephone bill of room No. 110. These documents indicate Mr. Basak was staying in the said hotel after booking two rooms. This evidence was relied upon by the defence to contend that accused could not have stayed both at Hotel Ramanashree California and also at Hotel Ashoka on 7.5.2001 at about 12.00 noon. According to the learned S.P.P. the very effort of the accused to show that he was staying at different places in different hotels on different dates was nothing but manipulation of the accused to mislead the investigating agency or any one for that matter. If he were to be at Hotel Ramanashree to attend a conference, why he had to book two rooms 109 & 110 in his name, is not forthcoming. The very fact that he had booked room at hotel Ashoka in the name of Sandeep Sen would indicate his modus operandi.
83. Circumstance Nos. 7 & 8: Accused No. 1 proceeding to Poona via Tirupathi and Hyderabad in a taxi belonging to P.W.12; and Accused Nos. 2 & 3 being taken from Hotel Ramanashree to the railway station as stated by P.W.31:
P.W. 14 Krishnamurthy driver attached to Cabs India has deposed before the Court that on 7.5.2001 as per the instructions of his employer PW12 Mr. Balasubramanyam, he went and took the taxi from the office (a Lancer car bearing No. KA 21-8001). He went to Infantry Court and picked up the first accused from the said hotel. They reached the place Renigunta Railway Station at about 6.00 a.m. and the train was at 9.45 a.m. Therefore they went to Tirupati and came back. As accused No. 1 could not secure a seat in the said train, he asked him to drop him at Hyderabad. After giving message to travel office at Bangalore, he took him to Hyderabad. When the distance was 70 kms. to reach Hyderabad, accused No. 1 asked to drive him to Poona in the car. He accordingly proceeded to Poona where the accused settled his bill. He left Poona on 9.5.2001 at about 5.00 p.m. and reached Bangalore on 11.5.2001 at 4.00 p.m. During the cross-examination of this witness, he admits taking police to the house of the accused and showing the accused. According to him, he saw accused only at the time of identification parade. In the cross-examination of this witness, he admits seeing the first accused for the first time on 7.5.2001 at Infantry hotel. The hire charges of Rs. 45,000/- (rupees forty five thousand) was paid in cash towards the bill. This witness having spent two to three days in the company of first accused by driving him to different places with changed plans of accused at short notice, can definitely remember the details of instructions and the persons who gave such details xo him. The bills pertaining to Infantry Court hotel at Ex.P.34 would indicate the date as 8.5.2001 and the time as 1.37 noon. From the evidence of P.W.14, the first accused left in the midnight of 8.5.2001 itself. However, nothing has come in the evidence of P.W.14 to suggest that the first accused had not left in the car of P.W.14 on the night of 7.5.2001 at 12.00 or 00.15 a.m. of 8.5.2001. The recitals at Ex.P.34 even if were to be believed as true, it is quite possible someone stayed back in the said hotel till noon of 8.5.2001.84. The evidence of P.W.12 supports the case of P.W. 14 that he was a driver under him and he had all types of premium cars with him. According to this witness, on 7.5.2001 his manager informed him that one Mr. Basak wanted a lancer car on hire and address of the customer is also noted. According to him, the car was sent and the same was returned after the duty. According to him on 7.5.2001 at 10.30 p.m. he received a telephone from Mr. Easak wanting a car to catch a train at Renigunta on the next morning. Therefore, he sent P.W.14 with the car to hotel Infantry. He corroborates the evidence of P.W.14 that after taking permission from him. P.W.14 drove the customer ultimately to Poona adhering to the changed plans of the customer. He has produced trip sheets at Exs.P.6 and 7. He also supports the evidence of P.W.13 one Raju who had taken the car to Ramanashree hotel to pick up the accused. From the evidence of these three witnesses, it is clear that first accused had contacted him over the phone from hotel Ramanshree California at 2.00 p.m. or so. It is also clear that on 7.5.2001, he sent car at 5.30 p.m. to Ramanashree Comfort with his driver Raju. This driver Raju went to Ramanshree hotel picked up Mr. Basak and another person. They first went to Indiranagar. He dropped them at hotel Imperial at St. Marks Road. P.W.12 gives several details including the number of Mr. Arun of Cabs India, etc. The recitals as Exs.P.6 and 7 indicate which cars were hired by Mr. Basak and who were the drivers. The evidence of P.W. 13 was treated hostile but the established facts on record would indicate at 11.15 p.m. on 7.5.2001. Mr. Basak hired Lancer car to go to Renigunta.
85. P.W. 31 - Gangadharaiah is the taxi driver working in Ashwini Travels during the year 2001 and he is the person who had picked up two persons out of three persons from Ramanashree Resort Hotel and he was asked to drop those two persons at Secunderabad Railway Station.
86. The 6wners and drivers of different cars examined as P.W.12 - Balasubramanayam (owner), P.W. 11 Ashok Kumar. P.W. 13 Raju M.G. P.W. 14 Krishnamurthy, P.W. 15 Venkateshreddy, P.W. 31 - Gangadharaiah and P.W.46 Jagadish have categorically stated that the accused took different ears on different dates and accused NO. 1 and others had traveled in their cars from place to place and hotel to hotel. It is important to note that all these drivers have indicated that they have driven the cars for Accused Nos. 1 to 3. The evidence on record also indicates that A-2 and A-3 were not strangers to A-1 and they were all moving around Bangalore between 29.4.2001 to 7.5.2001. The evidence of these drivers would indicate that during his stay at Bangalore at the relevant point of time, accused were picked up from different places to different destinations Including Hotel Ashoka. Evidence of P.Ws. 17 & 45 the employees of Hotel Ashoka would also establish the stay of the accused No. 1 at Hotel Ashoka on 4.5.2001 and on 7.5.2001 but he did not register his name as Mr. Basak but registered as Sandeep Sen. Whatever may, be the name he registered, the fact remains he was identified as accused No. 1 before the Court referring to him as Mr. Basak and so also Mr. Sandeep Sen. Hence the evidence of different witnesses indicating that accused stayed at Bangalore International between 29.4.2001 to 30.4.2001. Hotel Ivory from 1.5.2001 to 5.5.2001, from 5.5.2001 to 8.5.2001 at Hotel Ramanashree California, again from 7.5.2001 to 8.5.2001 in Hotel Infantry Court as revealed from Exs.P-37, 39, 40, 45, 47, 52, 13, 14, 34, 30, 31, 32, 33 as discussed above, does not falsify the fact that accused NO. 1 booking the room Nos. 423 & 523 Hotel Ashoka in the name of Sandeep Sen on two different dates.
87. Circumstance No. 9: Purchase of sim cards:
From the evidence on record, P.W.8 Akbar Mikkl - a garment shop owner, it is seen that 3 Spice sim cards for the use of mobile phones were supplied to one Arun Kumar Mathur. All the 3 were registered in the name of Arun Kumar Mathur. According to him all the 3 accused who were before the Court had come to his shop on 30.4.2001 in the morning, therefore, he identifies them. As a matter of fact, when they asked for sim cards he did not have them. Therefore, they informed him to keep the sim cards ready by the time they returned from the post office on Brigade Road. P.W.8 categorically says that the 1st accused was probably the person who filled up registration forms and put his signature as Arun Kumar. The sim card applications are at Ex.P-102 which are marked as Exs.P-102 (a), (b) & (c). During the cross-examination, it was further confirmed that it was accused NO. 1 who conversed with him and therefore, he could identify him as the person who purchased the sim cards. The address given in the sim cards is that of New Delhi. The first sim card refers to Ex.P-102 (a) which bears No. 9844192261; (b) refers to 9844191518 and (c) refers to No. 9844191514. Apparently, the incident in question occurred in the year 2001 and the evidence discloses at that time no serious enquiries with regard to identity of the persons who were purchasing the sim cards were made. Therefore, P.W.8 had not insisted for their identify. Even otherwise, it is seen that the sim cards said to have been purchased on 30.4.2001 and these sim card were not used subsequent to 8.5.2001. If all these sim cards were purchased by persons other than the accused, there was no reason why the sim cards were not used by others. It is seen from the Exs.P-125, 143, 144, 145, 146, 147, 147(a) there were telephone calls to and from the mobile of deceased - Acharya bearing No. 9845009223. On 4.5.2001 there were 2 incoming calls from 9844191514 to 9844191518 as per Ex.P-144. On 5.5.2001 there was one out going call from 9844191518 to the telephone number of Mr. Acharya 9845009223. Corresponding entry is at Ex.P-125 indicating the in coming call to the mobile of the deceased both on 4.5.2001 and 5.5.2001. Ex.P-146 pertains to the number ending with 514 on 4.5.2001 calling the telephone number ending with 518 and 223 (deceased) are indicated. The records at Ex.P-144 pertain to number 9844191518. Ex.P-146 pertains to 9844191514. Ex.P-147 pertains to 9844192261. Ex.P-145 is the bill for phone number of P.W.2 Narasimhan bearing No. 9844001661. Bill of telephone No. 9844191518 Indicates on 5.5.2001 there was an out going call at about 10.34 to telephone number of deceased. Similarly, on 73.2001 at 11.57 there was an out going call from, this number to mobile of deceased Acharya. According to P.W. 8 the 3 sim cards purchased from him are: (a) No. 9844192261; (b) No. 9844191518, and (c) No. 9844191514. On perusal of the telephone details of these telephones there were number of calls between these 3 numbers. Therefore, if all the 3 sim cards were used by one person, it is not possible to make calls by the same person between the 3 sim cards he was holding. This would only indicate that these 3 sim cards were used by 3 different persons from 30.4.2001 to 7.5.2001. The incoming and out going calls would rather fortify the above observation. Therefore, the 3 sim cards which were purchased by accused Nos. 1 to 3 as per the evidence of P.W.8 were used by them to contact each other and also outsiders. It is pertinent to note that the telephone bill at Ex.P-145 pertaining to P.W.2 indicates on 7.5.2001 at about 1.41 there was a call to this mobile number from the mobile of the deceased. Telephone bill at Ex P-125 indicates deceased had mobile No. 9844009223. As per Ex.125 coupled with the evidence of Ex.P-145 it is seen there were out going calls on 7.5.2001 at 1.39 to mobile number 9844001661, i.e. the telephone No. of P.W.2 Narasimhan which corresponds with the evidence of P.Ws. 1 & 2. This Ex.P-125 on perusal reveals there were calls to this number from sim cards 9844191514, 9844191518 as well. Analysing the entire evidence both based on oral and documentary, there was no reason for P.W.8 to say that these accused were not the persons who purchased 3 sim cards from him. Based on the in coming and out going calls of these 3 sim cards when compared with the in coming and out going calls of P.W. 2 and deceased Acharya, there is ample evidence that the persons WhG were having these 3 sim cards purchased from P.W.8 were contacting the deceased and they are none other than accused Nos. 1 to 3.88. Circumstance No. 10 - Test Identification parade:
The prosecution, has relied upon another piece of substantial evidence - i.e. test identification parade. The following citations are referred to:
1. : AIR 1979 SC 1831 Somappa Vamanappa Madar v. State of Mysore
2. : AIR 2003 SC 1813 Md. Kalam v. State of Rajasthan
3. AIR 2006 SC 2343 Mahabir v. State of Delhi
4. State of Goa v. Sanjay Thakran and Anr. 2007 (2) SCC (Cri) 162
5. State of Rajasthan v. Netrapal and Ors. 2007 (2) SCC (Cri) 187
The gist of all these cases is that in a case of circumstantial evidence, test identification parade is an important link in the chain of circumstantial evidence, it helps the Investigating agency with assurance that test progress is on the right line. It also helps in testing the veracity of witnesses. However, identification at test identification parade is not a substantial piece of evidence. Definitely, it strengthens trustworthiness of evidence of identification given in Court. As a matter of fact, it is considered a safe rule of prudence to generally look for corroboration of sworn testimony of witnesses in Court. In a case where accused is identified by most of the eye-witnesses, if some defects in proceedings relating to identification parade creep in, evidence of such eyewitnesses regarding participation of accused could not be rejected.
89. Identification of more than one accused in the same parade was contrary to the criminal manual issued by the High Court concerned and the irregularity in the test identification parade, if is of serious nature and if that leads to serious doubt regarding fairness of test identification parade, either identification of accused or articles, then it would be dangerous to place reliance on such evidence. If inconsistency in the evidence of witnesses occurs so far as identification of the accused, presence as well as recovery of articles at their instance, then benefit of doubt must be given to the accused.
90. P.W.51 K.N. Narayanappa is the Tahsildar. He secured 21 persons and mixed up the 3 accused persons with 21 persons. Ex.P-4 is the original proceedings of conducting test identification parade. According to this witness, the witnesses who came to identify the accused were called one after the other and then they were asked to identify them. From the lengthy evidence of this witness, it is seen that several withnesses were made to identify the accused. According to the defence, the test identification parade cannot be believed at all in view of the fact that though the accused were arrested immediately after the incident and the test identification parade was conducted only on 9.6.2001 and it suffers from several deficits, viz. the accused were not mixed up with similarly built persons and all the persons including the accused were not made to wear similar type of clothes. There is no evidence to show that they were not made to wear similar types of clothes except in the written statement of accused no, 1 given after recording 313 statement. As a matter of fact, such suggestions made to the witnesses were denied by them. Though some discrepancies so far as technicalities of the test identification parade are found, by and large looking to the evidence of this witness it would indicate that there was no serious deficit and there was no reason to create false evidence under the guise of test identification parade. Even if deficits in the proceedings while conducting test identification parade occurs, the Court has to see whether prosecution is trying to establish the guilt of the accused only on the basis of test identification parade or it is only a piece of evidence along with other circumstances. As the evidence of the witnesses before the Court indicates they have identified accused Nos. 1 to 3 before the Court on oath, after withstanding the test of cross-examination, the credibility and trustworthiness of their evidence cannot be doubted. As the witnesses had the opportunity to see the presence of accused Nos. 1 to 3 at different places on different dates and such opportunity was while discharging their duties in the normal course of business, their acquaintance with the accused Nos. 1 to 3 would leave strong impression in their minds as the Accused are connected with a ghastly incident at a Five Star Hotel - Hotel Ashoka. Therefore, they identifying the accused persons before the Court has much relevance in spite of certain technical deficits in the test identification parade conducted by P.W.51.
91. In the present case. P.W.2 is the injured witness. According to him, accused No. 1 took him to room No. 523. Accused Nos. 2 & 3 were present in the room. This P.W.2 was discharged from the hospital on 16.5.2001. He statement was recorded only on 4.6.2001. The evidence of doctor who treated him would indicate he did not completely get over his problem at an earlier date than 4.6.2001. Therefore his evidence was recorded later. P.W.2 is the person who faced abnormal and stupefying situation in room No. 523 which led to his disorientation. The condition in which he was found in room No. 523 is spoken to by several witnesses which is also discussed supra. If accused Nos. 1 to 3 were not the persons who were responsible to disturb his physical and mental balance on 7.5.2001, there was no reason why he would speak against accused Nos. 1 to 3.
92. His evidence and other evidence including P.W.1 would indicate that deceased was carrying a sum of Rs. 5,00,000/- with him. Therefore, he requested P.W.2 to come to Hotel Ashoka. The telephone calls would indicate they contacted each other just before the incident in question Apparently, the amount of Rs. 5,00,000/- was not seen or found at room No. 523 the place of occurrence of the offence.
93. P.Ws. 17 & 45 identifying accused No. 1 cannot be suspected. Similarly, P.W.46 bringing accused No. 1 and two others to Hotel Ashoka on 7.5.2001 is also established. P.W.8 selling sim cards to these accused is established. P.W.2 meeting accused in the lobby in the company of deceased and he later accompanying accused No. 1 to room No. 523 is categorically spoken to and established. After entering the room No. 523 and seeing accused Nos. 2 & 3 as well, in the said room is spoken to by P.W.2. All the above said witnesses are strangers to accused persons but they came in contact with the accused, persons for the reasons mentioned by them discussed supra. Therefore, in the absence of pointing out any animosity or ill-motive for these different witnesses against accused Nos. 1 to 3 which is not forthcoming, there is, no particular reason or motive for the Investigating Agency to apprehend the accused persons.
94. Circumstance No. 11: Expert evidence indicating presence of accused No. 2 at the scene of offence:
So far as this circumstance is concerned, we have the evidence of P.W. 48 the Finger Print Expert of the rank of Police Sub-Inspector working with the Commissioner of Police, Bangalore. The evidence of this witness clearly indicates at the request of police he went to Hotel Ashoka on 8.5.2001 at 11.00 a.m. and examined the scene of occurrence. He took the chance finger prints and got them photographed. The finger prints of the deceased tallied with the finger prints of him at the scene of offence indicating presence of deceased Acharya. Even the fingerprints of injured P.W.2 was secured in the said room. In the light of other evidence being established, the presence of P.W.2 and deceased in the said room, there is no need for us to discuss much, so far as finger prints found at room No. 523 with that of finger prints of P.W.2 and the deceased.95. Then coming to the chance finger prints found at the scene of occurrence, on comparison with the finger prints of 3 suspects, according to him the chance finger prints of right hand thumb and left hand middle linger impression of accused No. 2 Ram Raksh Jaiswal tallied with the chance finger prints.
96. The chance finger prints were marked as (b), (c), (d) & (e) and among them (c) & (e) tallied with the finger prints of accused No. 2 Ram Raksh Jaiswal. Though other chance finger prints at (b) & (d) were available, he was not able to give any opinion as they were not fit for comparison. In his evidence he says what are the reasons for forming the opinion at Ex.P.-91 so far as the chance finger prints (c) and (e) with that of accused No. 2. The chance finger print (c) was found on glass tumbler and (e) was found on the bath tub. The evidence of this witness and the contents of Exs.P-91 to P-93 would confirm the presence of accused No. 2 Ram Raksh Jaiswal at room No. 523, the scene of offence. Though several questions were put to this witness that P.W.48 is not an expert and in the absence of his educational qualification and special training, his evidence is of no assistance having regard to his experience for 12 years working as finger print expert would indicate that he has attained experience to compare, analyse and observe finger prints. Therefore, this Court has no suspicion or doubt whatsoever to accept his evidence.
97. So far as evidence of an expert, reliance is place on State of Himachal Pradesh v. Jai Lal and Ors. : 1999 Cri.L.J. 4294 and the same is perused. As held by the Apex Court on more than one occasion, presence of finger prints at the scene of occurrence leads to positive conclusion that during the commission of a crime, the culprit could possibly leave his finger prints. On the contrary, there cannot be any conclusion to disbelieve the presence of persons at the scene of offence if no finger prints are secured and even if secured, if it did not tally with the persons concerned. Though attempt was made by the defence counsel that it was possible for securing the finger prints of accused No. 2 on the eatables, fanta glasses, fanta bottle supplied to them by the Investigating Officer, we concur with the opinion of the learned trial Judge expressed at para No. 55 not to accept such defence.
98. We also have the evidence of P.W.33 Chief Dental Health Officer at Bowring Hospital who was asked to give opinion regarding a tooth found near the dead body of Acharya and on comparison of the said tooth with that of the deceased Acharya, it did belong to lower left central incisor of mouth of Mr. Acharya. This witness was also asked to take out the impression of the upper and lower canine teeth in the shape of ellipse of a human body found on the left thigh of the person. On 8.6.2001 he examined three persons known as Mr. Basak, Ramaraksha Jaiswal and Pankaj Kumar Roy. After taking the impression of teeth of upper and lower jaws of all these persons, they were compared with impression of the bite marks found on the left thigh of the deceased. According to him, it tallied with the impression of teeth of accused No. 2. His opinion is at Ex.P.63. The cross examination of this witness on several aspects does not come in the way of accepting the evidence of this witness that human bite marks on the left thigh of the deceased Acharya did tally with the impression of the teeth mark of accused No. 2. Therefore, the trial Court was justified in placing reliance on the evidence of this witness.
99. P.W.64 is the PSI working at Vyalikaval Police Station who took all the three accused persons to Bowring hospital to take the teeth impressions of the accused persons. The evidence of this witness revealed that he had to secure accused Nos. 1, 2 and 3 from different police stations and then summon them for examination before the Chief Dental Officer at Bowring Hospital. Nowhere it is suggested to him that he did not take them to Bowring Hospital for examination, before, the dentist - P.W.33. The evidence of P.Ws.33 and 64 would support the case of the prosecution that accused No. 2 was present in the said room No. 523 on 7.5.2001.
100. According to the defence, unless the documents said to have been in the hand writing of accused No. 1 were sent for the opinion of the hand writing expert, no reliance can be placed at Ex.P 102(a), (b) and (c) and so also Ex.P-134. In the light of the categorical evidence of the witnesses who spoke with regard to these documents i.e. P.W.8 and P.W.45, without, even sending these documents to the hand writing expert the prosecution is able to establish the nexus between these two documents and the accused. The evidence of these two witnesses indicates that they have withstood the test of cross-examination. Even otherwise, it is seen that, Ex.P-134 has come into existence as secondary evidence as original records could not be produced because of change of Management at Hotel Ashoka. Comparing the hand writing at Ex.P-134 with that of the hand writing found at Exs. P-102 (a), (b) & (c), even with naked eye, it is established the hand writing on all these documents pertain to only one person who was referred to as Arun Kumar Mathur by P.W. 8 and Sandeep Sen by P.W.45. It is fortified by the evidence of P.W.2 that deceased introduced one Mr. Sandeep Sen. All these three persons refer to one and only person viz. accused No. 1. Therefore, it is clear accused No. 1 was introduced as Sandeep Sen to some persons and Arun Kumar Mathur to P.W.8.
Other Circumstances:
101. Apart from the above circumstances, we also have the evidence of P.Ws. 9: 10 and other witnesses (drivers) who had the occasion to see the accused persons at Bangalore, at the relevant point of time. P.Ws. 9 & 10 the daughter and father are examined in order to establish that these two persons were seen in the company of accused No. 1. According to P.W.9 Santhoshi, she was working as sales girl in 2001 and accused Nos. 1 to 3 came to the shop known as 'Livein' at about 10.00 p.m. on 29.4.2001. They purchased shirts and promised to come next morning. On the next morning accused No. 1 alone came and purchased clothes. He asked her for lunch and she accompanied him. During her talk, she learnt he was in search of a house. Therefore, she gave the phone number of her father - a real estate agent to contact him. After closing the said shop for the night, when she was walking on Kamaraj Road, all the three accused persons came in an auto asking her to take them to her father. As the house was locked they all went to Ivory Tower at M.G. Road which is spoken to by one of the witness. Accused Nos. 2 and 3 present before the Court were introduced as body guards of accused No. 1. According to her, she thought accused No. 1 was a good businessman as per the details on the visiting card. He came home to drop her and spoke to her father for ten to fifteen minutes. On the next morning, she was called to the ground floor of Ivory Tower Hotel where she met accused No. 1 and in an auto they went to Hotel Windsor Manor. He talked to the receptionist and got one car and both went to hotel Ashoka in a taxi as spoken to by P.W.46. They went to a room in the hotel Ashoka, talked for a while and he called up accused Nos. 2 and 3 asking them to come near hotel Ashoka. After arrival of accused Nos. 2 and 3, she and accused No. 1 went in one auto rickshaw, accused Nos. 2 and 3 came in another auto rickshaw to drop her. This evidence of P.W.9, as a matter of fact, supports and corroborates the evidence of P.W.45 - Veena Anand and RW.46 - Jagadish, driver of Windsor Manor hotel that accused No. 1 went in the taxi of Jagadish along with the girl to hotel Ashoka on 4.5.2001 and stayed for a short while and went away. According to P.W.46, he offered food to him in hotel Ashoka and sent him away. All these facts would indicate that accused No. 1 did visit hotel Ashoka at the relevant point of time. P.W.9 further says that they all went in search of houses along with her father but he did not like any of the houses: According to her after leaving her father, she and accused No. 1 went in a taxi to Russel Market and bought a pair of foot wear and a hand bag. When she was sitting in the taxi, he went and brought some ropes from the shop of P.W.49 which is spoken to by the said witness. From there they went to Ramanashree California at Yalahanka for lunch. After having lunch, he dropped her at M.S. Palya where her grand mother was residing. According to her, that was the last occasion, she saw accused No. 1 and on that night at 10.30 p.m. he called her to be ready by 10.30 p.m. the next day to accompany him to Bombay in a flight. On the next day morning, she received a phone call at about 8.30 saying that he had reached Bombay and he was returning back soon. Later on she was enquired by the police and she went and saw several persons including the accused persons. The visiting cards given by the accused came to be marked in the evidence of this witness. During the course of cross-examination, her antecedents and the family details came to be made. According to her, since 1997 she is residing with her parents and her husband has left her. She gives the details regarding the place and year where she was working.
102. Surprisingly, during the course of cross-examination, when a question was put to her, she says that she is not acquainted with the accused. Even after splitting the question, she says that she has not seen them and she does not know them. From there, she kept on denying the details given by her in her examination-in-chief. This witness though was examined on 1.4.2004, she was cross examined only on 4.11.2004 as the defence insisted upon examining her after examining other witnesses. The time gap between the date of examination and the cross-examination would only indicate, she, must have been won over by the accused. She has stated that she had not gone with the accused to hotel Ashoka and the accused No. 1 did not buy her anything. She also says photographs of the accused were shown to her before identifying them in the test identification parade. This witness was treated hostile. During the cross-examination by the prosecutor, she says her father was staying with her at that time. According to her there was pressure from the police to give evidence against the accused and however, they did not inform any higher authorities. Though she initially admits the entire case of the prosecution, she retracts her evidence in the cross-examination at a later stage. In order to appreciate her stand, we have to see the evidence of her father P.W.10. Though she has denied seeing accused No. 1 in her cross-examination, but P.W.10 her father says that his daughter who was working in a cloth shop brought accused No. 1 to his house and they all went to see the house belonging to a Muslim. Though accused No. 1 promised to come after fifteen days, he never turned up. In the cross-examination of this witness, he reiterates his statement that accused No. 1 came to his house along with his daughter. Having regard to the evidence of P.Ws. 9 and 10, it is crystal clear that P.W.9 was going back on her evidence for the reasons best known to her inspite of her father P.W. 10 admitting the same.
103. F.W. 11 is also another driver who was engaged by accused Nos. 1 to 3 on 2.5.2001. According to this witness, accused persons took car for four hours and on the way to Le-Meridian, they asked him to stop for ten minutes at Mallya Hospital. They came out within 10 minutes as the work was over. He picked them up from the gate of Mallya hospital-and dropped them at Le-Meridian. According to this witness, even after a lapse of four hours, accused did not return and he waited till 6.00 p.m. When he contacted his supervisor, he asked him to wait till 7.00 p.m. As no one returned, he went back to Oberoi hotel. A week later, he was called to identify the accused and he identified accused Nos. 1 to 3.
104. According to the prosecution, the accused were in Bangalore right from 29.4.2001 and left Bangalore some where between the late hours of 7.5.2001 to 8.5.2001. Several witnesses were examined to establish how the death of the deceased Acharya came to light at the instance of P.W.1. It has also come on record P.W.2 was found in the same room whore the deceased was found. He was shifted to the hospital immediately. It has also been established that rupees three lakhs cash was in the office of the deceased and rupees two lekhs was drawn on 7.5.2001 as per the evidence of P.W. 430 Presence of P.W.2 is established. At the instance of accused persons, several incriminating material objects including the cash were recovered at Poona. Accused are not required to establish the plea of alibi by bringing evidence on record by way of defence. Accused No. 1 actually admits his presence in Bangalore between 29.4.2001 to 7.5.2001. Though he was present in Bangalore, he claims he had never gone to hotel Ashoka which is falsified. If accused had come to Bangalore in pursuance of his business contacts or to attend a conference, there is absolutely no evidence whatsoever indicating whom he met regarding his business or which conference he attended during the relevant period. Absolutely nothing is forthcoming. No doubt the prosecution case does not get strengthened by falsity of the defence but however, in view of the circumstances established by the prosecution. If a plea of alibi is analysed, it would remain only as a weak defence. It is aJso strange and peculiar on the part of the accused to stay at different hotels during this period. It is also surprising to note that having checked out from the hotel Ramanashree on 7.5.2001 in the afternoon, there was no need to take another room at Infantry Court hotel. This modus operandi would even indicate, there was persistent attempt to mislead every one with ulterior motive. Similarly the very fact of taking two rooms at hotel Ramanashree by accused No. 1 creates suspicion. Evidence brought on record indicates apart from accused No. 1, there were two other persons at hotel Ramanashree. The prosecution is also able to establish that except accused Nos. 1 to 3, P.W.2 and the deceased, no one else had access to room No. 523 on 7.5.2001 between 1.30 to 2.30 p.m. His defence of returning to Ramanashree, California hotel at 1.00 P.m. is falsified. There is crystal clear evidence that P.W.46, took him and others to hotel Ashoka while P.W.45 checked him into room No. 523 at about 12 noon on that day, P.W.17 is the one who took luggage of accused No. 1 to room No. 523. According to his evidence two others were also present in the company of accused No. 1. P.W.2 has clearly spoken to the presence of accused Nos. 1 to 3 and the violence applied to him by these persons in the said hotels.
105. On analysing the entire evidence on record, the prosecution has categorically established with crystal clear evidence, each and every piece of evidence they relied upon to connect the accused persons with the offences charged against them. On perusal of the well-reasoned judgment of the trial Court and in the light of the discussion made above, we are of the opinion, there is no need to interfere with the judgment of conviction.
Accordingly, we are of the opinion, the appeals deserve to be dismissed and stand dismissed.