(Prayer: This Appeal is filed under Section 374 (2) Cr.P.C praying to set aside the judgment dated 5.3.2011 in S.C.No.844/2009 on the file of the Presiding Officer, Fast Track Court No.13, Bangalore City, convicting the appellant/accused for the offences punishable under Sections 302 and 201 of IPC. The appellant/accused is sentenced to undergo life imprisonment and pay a fine of Rs.10,000/-, in default to pay fine, he shall undergo R.I. for 6 months for the offence punishable under Section 302 of IPC and the appellant/accused is sentenced to undergo S.I. for 1 year and pay a fine of Rs.2,000/-, in default to pay fine, he shall undergo S.I. for 3 months for the offence punishable under Section 201 of IPC.)
Mohan M. Shantanagoudar, J.
1. The judgment and order of conviction dated 5.3.2011 passed by the XIII Fast Track Court, Bangalore City in S.C.No.844/2009 is called in question in this appeal by the convicted accused.
2. Case of the prosecution in brief is that, the deceased, accused, complainant (PW.1), complainant's son and another were working as Security Guards in IVRCL Cement Concrete Mixing Factory; the deceased and accused were working in the day shift, whereas the complainant, his son and another were working in the night shift; the deceased and the accused were roommates and they were provided with the room within the compound of the factory; about 15 persons used to work during day and night shifts apart from the Security Guards; the quarrel ensued between the accused and the deceased on 12.3.2009 with regard to money transaction between them and in that regard, the accused assaulted the deceased with the club and cement brick on the head of the deceased, consequent upon which the deceased breath his last; the dead body was found outside the compound of IVRCL Cement Concrete Mixing Factory in the morning of 13.3.2009; the dead body was first seen by the complainant (PW.1), who in turn informed the same to his co-employees as well as the employers; thereafter he lodged the complaint before Amruthahalli Police Station, Bangalore City, which came to be registered in Crime No.43/2009 for the offences punishable under Sections 302 and 201 of IPC; the Police after completion of investigation laid the chargesheet against the sole accused/appellant herein for the said offences.
3. In order to prove its case, the prosecution in all has examined 16 witnesses and got marked 22 Exhibits and 24 Material Objects. On behalf of the defence, no witness is examined and no exhibit is marked. The Trial Court on evaluation of the material on record and after hearing, convicted the accused for the offences punishable under Sections 302 and 201 of IPC and sentenced him to undergo imprisonment for life and payment of fine for the offence punishable under Section 302 of IPC and to undergo imprisonment for a period of one year and sentence of fine for the offence punishable under Section 201 of IPC.
4. Sri Shashidhar, learned Counsel appearing on behalf of the appellant taking us through the material on record submits that, none of the circumstances relied upon by the prosecution is proved by the prosecution beyond reasonable doubt; the prosecution has failed to prove the chain of circumstances; the circumstances even assuming to have been proved, would not lead to the guilt of the accused; though the prosecution relies upon the recovery of mobile of the deceased from the custody of the accused, it has failed to prove the ownership of the mobile; there is a delay of five days in conducting postmortem examination; no reason whatsoever is found on record as to why the postmortem examination was conducted after five days of the incident in question; the mobile was seized on 17.3.2009 itself and panchanama at Ex.P7 was drawn on the very day, whereas the mobile is shown to have been seized on 18.3.2009 under panchanama Ex.P8; and consequently, the panchanama Ex.P8 under which the mobile is said to have been recovered cannot be relied upon. He further submits that the photographs of the dead body clearly reveal the peeling of skin of skull of the deceased and therefore, identity of the dead body is not proved by the prosecution beyond reasonable doubt. He further submits that motive for commission of offence is not proved, inasmuch as the evidence of PW.1 who was supposed to depose about the motive has not at all deposed about the motive for commission of offence. Lastly, he submits that at the time of recording the evidence of Investigating Officer, the accused was not brought before the Court from the judicial custody and thus, such procedure violates Section 273 of Cr.P.C.
Per contra, Sri Nawaz, learned Special Public Prosecutor has argued in support of the judgment of the Court below.
5. Before proceeding further, it is relevant to note the versions of each of the witnesses before the Court in brief, which are as under:
PW.1 is the complainant. He is the Co-worker of the accused and the deceased. He was also Security Guard and was on night shift. He has deposed about lodging of the complaint as per Ex.P1. He is also the witness for scene of offence mahazar at Ex.P2. He has deposed that he has seen the accused and the deceased at 8.00 p.m. on 12.3.2009, inasmuch as at that point of time, the accused and the deceased came together and asked PW.1 to give them a torch for certain purposes and accordingly, PW.1 handed over the torch to the accused and the deceased. In other words, he is the witness for the last seen circumstance also.
PW.2 has deposed that he saw the dead body on 13.3.2009 and identified the same. He informed PW.1 to call the Police. He has further deposed that the Police visited the scene and conducted necessary investigation.
PW.3 is the Assistant Manager of IVRCL Cement Concrete Mixing Factory. He heard about the presence of the dead body of a person outside the compound of the factory. He identified M.O.Nos.1 and 2 i.e. torch and lathi provided to PW.1.
PW.4 is the Doctor, who has conducted postmortem examination over the dead body. Postmortem report is at Ex.P4. He also identified the articles on the dead body, which are marked as M.O.Nos.3 to 7 and also the other articles M.O.Nos.8 to 10.
PW.5 is the distant relative of the deceased and consequently, he knew the deceased. He is also from Assam State. He informed the father of the deceased over phone about the death of the deceased. After taking permission from the father of the deceased, he received the dead body from the Police and cremated the deceased at Kallapalli as per the instructions of the father of the deceased.
PW.6 is the Area Manager working in Thunder Commando Security Agency. It is relevant to note that the said Security Agency has provided five Security Guards including the complainant, deceased and the accused to IVRCL Cement Concrete Fising Factory. He has deposed that five Security Guards of Agency were working in the said factory and he paid salary to them on 12.3.2009 and obtained receipt from them. He identified the appellant-accused as one of the persons working under the said agency. The salary receipt duly signed by employees is marked at Ex.P6.
PW.7 is the panch witness for recovery mahazar at Ex.P7. He has deposed about the seizure of M.O.Nos.11 to 13 and cash of Rs.7,200/-. These M.O.Nos.11 to 13 i.e. blanket, shirt of the accused and the nail polish apart from which, cash of `7,200/- were seized from the room of the brother of the accused, wherein the accused was hiding for about 3 to 4 days after the incident in question. The seizure was done on 17.3.2009, inasmuch as on the very day, the accused was arrested.
PW.8 is the witness for recovery of mobile phone- MO.No.14 under Ex.P8 on 18.3.2009.
PW.11 is another witness for very panchanama at Ex.P8. Both these witnesses have deposed that the mobile was recovered at the instance of the accused from the owner of the tea shop. They have deposed that they came to know that the mobile phone belongs to the deceased and that the accused sold the said mobile phone to the owner of the tea shop for Rs.1,600/-.
PW.9 is the witness for scene of offence mahazar at Ex.P2 and he is also the witness for inquest panchanama at Ex.P9.
PW.10 is another witness for scene of offence Ex.P2 and inquest panchanama Ex.P9.
PW.12 is the photographer, who captured the photographs of the dead body as per Exs.P10 to P14.
PW.13 - Yogesh (Civil Contractor). He is the owner of the rented house wherein the brother of the deceased was residing. The accused was apprehended from the said house on 17.3.2009. He is the witness for recovery mahazar-Ex.P7, which was drawn on 17.3.2009, under which M.O.Nos.11 to 13 and cash of Rs.7,200/- were seized.
PW.14 is Head Constable. He participated during the course of investigation.
PW.15 is the Sub-Inspector of Police. He received complaint as per Ex.P1 and registered the crime and submitted the FIR to the jurisdictional Magistrate.
PW.16 is the Investigating Officer, who completed the investigation and laid the chargesheet.
6. It is not in dispute that there are no eye witnesses to the incident in question. It is also not in dispute that the case fully rests on the circumstantial evidence; the accused and the deceased were from Assam State; the deceased was working in IVRCL Cement Concrete Factory since a long time, whereas the deceased had joined for duties just 7 to 8 days prior to the incident in question. It is also not in dispute that the incident has taken place during night intervening between 12.3.2009 and 13.3.2009. The evidence on record, more particularly the evidence of PW.6 discloses that all the five Security Guards, including the deceased and the accused were paid salary/advance on 12.3.2009. The deceased was paid a sum of Rs.5,770/- whereas the accused was paid a sum of Rs.770/-, inasmuch as he had joined for duties just about 7 to 8 days prior to the incident in question. It is also not in dispute that the accused and the deceased were staying in the same room provided by IVRCL Cement Concrete Mixing Factory and they were messing together in the very room.
7. The circumstances relied upon by the prosecution are:-
i) Homicidal death.
ii) Motive for commission of offence:
PW.1 was supposed to depose above the aspect of motive.
iii) Circumstance of Last seen together:
The accused and the deceased were last seen together at 8.00 p.m. on 12.3.2009.
iv) Recovery of cash and mobile phone:
Recovery of cash of Rs.7,200/- from the accused on 17.3.2009, i.e., immediately after his arrest. The amount was hidden in a pouch in the room under recovery panchanama at Ex.P7. Recovery of mobile phone-MO.No14 belonging to the deceased at the instance of the accused under panchanama Ex.P8 on 18.3.2009.
v) Accused and the deceased were living together in a same room and they were messing together. They are from the same place, i.e., from Assam State.
vi) Non-explanation: Explanation is not offered by the accused as to when he parted the company of the accused or as to how the death of the deceased had taken place.
vii) Abscondence of the accused: The accused had absconded from 13.3.2009 till 17.3.2009. He did not come back to the place where he was working for about 4 days despite the fact that his close friend and the roommate-deceased had lost his life.
8. Re. Homicidal death: It is not disputed by the defence counsel that it is a case of homicidal death. Even otherwise, we find from the postmortem report at Ex.P4 and the evidence of doctor-PW.4 that it is a case of homicidal death. The external appearance of the dead body as narrated in the postmortem report discloses that the face of the deceased is disfigured. The deceased had sustained three external injuries including split laceration over the top of right side of forehead, measuring 4cm x 1cm x skull bone depth; split laceration over right parietal region, measuring 6cm x 1cm x bone depth; slip laceration over right temporal region, measuring 3cm x 0.5 cm x bone depth. The skull had sustained comminuted fracture over right fronto temporo parietal bone; blood effused all around the fracture site. The doctor has opined that the injuries are antemortem in nature and fresh, they could have been caused by blunt heavy hard weapon. It is specified by the doctor-PW.4, who conducted autopsy that the injuries sustained by the deceased are postmortem in nature and not created by the animals. Finally, the doctor has opined that the death was due to shock and haemorrhage as a result of homicidal head injuries sustained by the deceased. Thus, it is amply clear that it is a case of homicidal death.
9. Re. Motive: With regard to the circumstance of the motive is concerned, the prosecution has led the evidence of PW.1. The motive as put forth by the prosecution is that the deceased had taken a loan of Rs.1,000/- from the accused and on the date of the incident, accused had asked for repayment of the said Rs.1,000/- but the deceased refused to repay the amount and thus the accused has committed the murder of the deceased. However, PW.1 who was supposed to depose about the aspect of motive has not deposed about the same as put forth by the prosecution. As a matter of fact, PW.1 has not at all deposed about the aspect of motive. But other evidence on record, including the evidence of PW.6 and the complainant-PW.1 discloses that the employees were paid the salary on 12.3.2009; the accused was paid Rs.770/-, whereas the deceased was paid Rs.5,770/-; Ex.P6 is the receipt for having paid the salary to the accused and the deceased. Though the motive as put forth by the prosecution as mentioned supra is not proved by the prosecution, it is amply proved that the salary was paid to the employees on the date of the incident and that the accused was paid only Rs.770/- and whereas the deceased was paid Rs.5,770/- inasmuch as the deceased was working since long time and he had done over time duty also. The accused had joined for duties just about 7 to 8 days prior to the incident in question.
10. Re. last seen circumstance: The important circumstance is last seen circumstance. PW.1 has deposed that the accused and the deceased were on day shift on 12.3.2009; after completing their duties, accused and deceased went to their room; thereafter the complainant and his son took charge of security duty of IVRL Cement Concrete Mixing Factory; the accused and the deceased once again came back at about 8.00 p.m. and asked the complainant for a torch; the complainant handed over the torch-MO.No.1 to the accused and the deceased and thereafter they went away along with the torch; on the next day in the morning, neither the accused nor the deceased returned to work; they were not found in the room; the room was bolted from outside and the complainant and his son decided to work during day shift of 13.3.2009 also; when the complainant was on routine duty, he saw the dead body just outside the Concrete Mixing Factory; the head of the deceased was completely smashed, the deceased was wearing the uniform provided to him by the security agency; looking to the uniform of the deceased, the complainant identified the dead body as that of the deceased and he searched for the accused, but his whereabouts were not known; thereafter the complainant informed the employers and the co-employees about the dead body of the deceased and thereafter he lodged the complaint.
Though PW.1, who deposed about the last seen circumstance was subjected to cross-examination at length by the defence, nothing worth is elicited by the defence. PW.1 has reiterated that he had seen the accused and the deceased together at about 8.00 p.m. and both of them had asked the complainant for a torch. Thus, it is amply clear that deceased and the accused were last seen together on the night of 12.3.2009. In our considered opinion, the trial Court is justified in concluding that the last seen circumstance is duly proved by the prosecution.
11. Re. Recovery: The next circumstance is recovery of mobile-MO.No.14 and seizure of cash of Rs.7,200/- from the accused. The said amount was seized along with the shirt of the accused and the blanket apart from nail polish under panchanama at Ex.P7, whereas the recovery of mobile was made under panchanama at Ex.P8. PWs.8 and 11 are the witnesses for recovery of mobile phone, whereas PW.7 is the witness for recovery of cash under panchanama at Ex.P7.
PW.7 has deposed that the police called him on 17.3.2009 to act as pancha and accordingly, he went along with the police to the room wherein the accused was staying; at that point of time, the accused was staying in the room of his brother situated near Vajramuneswara Gate; the police seized an amount of Rs.7,200/- which was hidden by the accused in a pouch in the said room.
The evidence of PWs.8 and 11 discloses that the accused voluntarily took the police and panchas to a tea shop situated at Bellandur Cross and asked the owner of the said tea shop to give back the mobile; accordingly the owner of the teashop gave the mobile phone; the said mobile phone came to be seized by the police in the presence of PWs.8 and 11. The said mobile phone (MO.No.14) was said to have been belonging to the deceased. The evidence of PW.7 further discloses that the said mobile was sold to the owner of the teashop for a sum of Rs.1,600/-. MO.No.14 was seized under panchanama at Ex.P8 on 18.3.2009.
It is not in dispute that no material is produced by the prosecution to show the ownership of the mobile phone. But the fact remains is that the mobile phone was sold by the accused to the owner of tea shop and the same was recovered at the instance of the accused. At this stage, Sri Shashidhar, learned advocate appearing for the appellant drawing the attention of the evidence of PW.7 submits that the mobile phone was already in the possession of the police on 17.3.2009 itself and therefore the said mobile could not have been seized on the next day, i.e., on 18.3.2009.
The said submission cannot be accepted. Looking to the examination-in-chief of PW.7, it is clear that under Ex.P7, the articles seized are cash of Rs.7,200/-, mobile phone, blanket, shirt and a nail polish belonging to the accused. Even, Ex.P7 also makes it clear that only aforementioned articles are seized. However, in a solitary sentence, PW.7 has deposed that the Police Inspector was having mobile phone in his hand. Merely, because a mobile phone was available in the hand of the police, it cannot be said that the mobile phone which was in possession of the police was MO.No.14. It is not uncommon for the police to have mobile phone in their hands.
Looking to the evidence of PWs.7, 8 and 11, we are of the clear opinion that the prosecution has proved recovery of cash of Rs.7,200/- from the custody of the accused and the mobile phone apart from other articles.
There is no explanation whatsoever offered by the accused as to how he came in possession of the cash of Rs.7,200/-. Even in the statement recorded under Section 313 Cr.P.C., the accused has not uttered a single word as to how he came in possession of Rs.7,200/-. Admittedly, the accused was a poor security person. He was paid only Rs.770/- on the date of the incident by his employers. In this view of the matter, the prosecution is justified in proving that the said amount of Rs.7,200/- was belonging to the deceased and that the quarrel might have been ensued because of robbing of the money from the deceased by the accused.
12. Re. Circumstances (v), (vi) and (vii): As aforementioned, accused and the deceased were living in a common room and they were messing together. They were last seen together at 8.00 p.m. on 12.3.2009 and thereafter the accused did not come back to duty till 17.3.2009 on which day he was arrested. If the accused was really was innocent, he would not have absconded at all. He could have stayed back in the room and could have informed his colleagues as well as employers about missing of the deceased. Absolutely no explanation is offered by the accused as to when he parted the company of the deceased as well as how the deceased sustained injuries on his head. This conduct of Non- explanation by the accused provides an additional link in the chain of circumstances. The accused instead of informing his colleagues and the employers about the incident in question and about the death of the deceased, left the place till he was apprehended on 17.3.2009.
13. All the aforementioned circumstances would clearly prove the guilt of the accused.
It is no doubt true that there is delay of five days in conducting postmortem examination. However, we find from the evidence of the Investigating Officer-PW.16, the explanation is offered by him. As mentioned supra, the deceased was from Assam State. As the near relatives of the deceased were not in Bangalore, the Investigating Officer has contacted his counter part of Assam State to verify about the parents of the deceased. On 16.3.2009, the father of the deceased contacted the Investigating Officer over phone from Assam State and told him that it would be difficult for him to come to Bangalore and to cremate the dead body; he also requested the Investigating Officer to get the body cremated in Bangalore by handing over the dead body to one Mr.Bishudas (distant relative of the deceased). Accordingly, the dead body was subjected to postmortem examination thereafter on 17.3.2009 and subsequently the body was handed over to Mr.Bishudas, who is examined as PW.5 before the Court. PW.5-Bishudas has deposed that the father of the deceased had called Mr.Bishudas over phone and requested him to perform his last rights after taking the possession of the dead body from the police and accordingly Mr.Bishudas took possession of the dead body on 17.3.2009 and cremated the same.
From the above, it is clear that the Investigating Officer has offered his explanation as to why the delay had occurred in conducting the postmortem examination.
14. On reconsidering the entire material on record, we of the clear view that the prosecution has proved all the circumstances relied upon by it beyond reasonable doubt. The circumstances so proved would complete the chain of circumstances and the same would not leave any scope for the accused to escape. The circumstances so proved would lead to only conclusion that the accused has committed the murder of the deceased. Hence, the trial Court is justified in convicting the accused for the offence punishable under Section 302 of IPC.
Hence, no interference is called for. Accordingly, the appeal fails and the same stands dismissed.
However, we make it clear that the sentence imposed on the accused for the offences punishable under Sections 302 and 201 of IPC shall run concurrently.