w w w . L a w y e r S e r v i c e s . i n



Shiva Kumar alias Shiva alias Shivamurthy & Another v/s State of Karnataka & Another

    Criminal Appeal Nos. 245 of 2011 c/w Criminal Appeal No. 464 of 2011

    Decided On, 31 May 2016

    At, High Court of Karnataka

    By, THE HONOUABLE MR. JUSTICE H. BILLAPPA & THE HONOUABLE MR. JUSTICE K.N. PHANEENDRA

    For the Appearing Parties: S. Shankarappa & Assts., Advocates, K.R. Keshav Murthy, SPP 2.



Judgment Text

(This criminal appeal is filed u/s. 374(2) Cr.P.C., praying to set aside the order dt.6/8.10.10 passed by the P.O., Fast Track (Sessions) Court – XI, Bengaluru in S.C.No. 523/06 – convicting the appellant/accused for the offences P/U/S 366, 376 and 302 of IPC etc.)

This criminal appeal is filed u/s. 377 Cr.P.C., praying to enhance the sentence imposed on 6/8.10.10 passed by the P.O., Fast Track (Sessions) Court-XI, Bengaluru in S.C.No. 523/06 – convicting the respondent/accused for the offence P/U/S 302 IPC and impose death sentence and respondent/accused in sentenced to undergo R.I. for the rest of his life for the offence P/U/S 302 of IPC. He shall not be released from the jail till the rest of his life. The SPP prays that the above orer of conviction may be enhanced suitably.

H. Billappa, J.

Crl. A. No. 245/2011 has been filed by the appellant-accused challenging the judgment and order dated 6.10.2010 passed by the Presiding Officer, Fast Track (Sessions) Court-XI, Bengaluru, in S.C. No. 523/2006.

2. Crl. A. No. 464/2011 has been filed by the State for enhancement of the sentence imposed by the Trial Court in S.C. No. 523/2006 on the file of the Fast Track (Sessions) Court-XI, Bengaluru and impose death penalty.

3. By the impugned judgment and order dated 6.10.2010, the Trial Court has convicted the appellant-accused for the offences punishable under sections 366, 376 and 302 of IPC and sentenced the appellant-accused to undergo RI for a period of 10 years and to pay fine of Rs. 10,000/- and in default of payment of fine, to undergo RI for a period of 1 year for the offence punishable under section 366 of IPC. For the offence punishable under section 376 of IPC, the appellant-accused has been sentenced to undergo RI for a period of 10 years and to pay fine of Rs. 20,000/- and in default of payment of fine, to undergo RI for a period of 2 years. For the offence punishable under section 302 of IPC, the appellant-accused has been sentenced to undergo RI for the rest of his life and shall not be released from jail.

4. Aggrieved by that, the appellant-accused has filed Cri. A. No. 245/2011.

5. The State has filed Crl. A. No. 464/2011 for enhancement of the sentence.

6. In the course of this judgment the appellant in Cri. A. No. 245/2011 will be referred to as ‘accused’.

7. Briefly stated the case of the prosecution is as follows;

That PW-5 Srinivas is the complainant. Ex.P23 is the complaint. In Ex.P23, it is stated, the complainant’s sister’s daughter i.e., the deceased was residing with her husband Sri.Pavan (PW-16) at No. 796, 52-A Main. K.S.Layout, Bengaluru-78. The deceased w;h working in Hewlett Packard (HP) BPO situated in the Electronics City. The deceased left for work on 12/13.12.2005, by 2.00 a.m.. by the allotted company vehicle route No. 405 and has not reached the office. The office has not given details. The deceased appears to have been kidnapped as no information is forthcoming from the travel agent or the Company. PW -5 has requested the Police to investigate the matter and trace the victim and the culprits.

8. Based on Ex.P23, a case in Cr.No.360/2005 of Kumaraswamy Layout Police Station has been registered for the offence punishable under section 365 of IPC.

9. In the course of investigation, the accused has been arrested on 16.12.2005 at 4.45 a.m. The accused has volunteered information as per Ex.P 189. Pursuant to that, the dead body and other incriminating articles like shin button, one pair of chappal, knife, underwear, chudidar pyjama have been recovered as per Ex.P168. PWs.16, 19 and 65 have identified the dead body. The inquest has been held as per Ex.P169. Thereafter, post-mortem has been conducted by PW-2 as per Ex.P 17.

10. Further, in the course of investigation, diaries, City Bank card of the deceased, a vehicle and clothes of the accused have been recovered. The search for mobile phones of the accused and the deceased has not yielded any result. The incriminating articles have been sent for chemical examination and DNA test. The reports have been obtained.

11. After investigation, charge-sheet has been filed against the accused for the offences punishable under sections 366, 376 and 302 of IPC and the accused has been tried for the said offences.

12. At the trial, the prosecution has examined in all 71 witnesses i.e., PWs.1 to 71 and exhibits P1 to P213 and MOs. 1 to 79 have been marked.

13. On behalf of the defence, exhibits D1 to D13 have been marked.

14. The Trial Court on appreciation of the evidence on record has held that the appellant-accused is guilty of the offences punishable under sections 366, 376 and 302 of IPC and sentenced the appellant-accused as stated supra in para 3.

15. Aggrieved by the conviction and sentence passed by the Trial Court, the appellant-accused has preferred Crl. A.No.245/2011.

16. The State has preferred Crl. A. No. 464/2011 seeking enhancement of the sentence.

17. The learned counsel for the appellant-accused Sri. S. Shankarappa contended that the impugned judgment and order cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the vehicle number or the driver who was driving the vehicle is not mentioned in Ex.P27 or Ex.P23. On 9.12.2005 itself, the vehicle bearing No. KA-05-MC-2684 was detached from the H.P. Company. Therefore, the question of the said vehicle going to pick up the deceased does not arise. Route Nos. 976 and 405 were allotted to some other drivers. There is no identification of the vehicle or the person. No test identification parade has been conducted. There is nothing on record to show how route No. 405 was mentioned in Ex.P23 complaint.

18. Further he submitted that PW-56 is not a reliable witness. In Ex.P89 mahazar there is no reference to the presence of the photographer or videographer. In Ex.D 12 remand application it is mentioned that the accused is required to recover chudidar pyjama, knife and mobile phones. Therefore, the seizure of articles under Ex.P168 is doubtful. The recovery of the ATM cards, dairies and other articles under Ex.P89 is also doubtful and the same is concocted.

19. Further he submitted that there is nothing on record to show that the accused was wearing MOs.30 and 31 on the date of alleged incident. There is nothing incriminating in MOs.30 and 31. The evidence of PW-50 is full of omissions. There is no mention of videographer or photographer in Ex.P168 mahazar and inquest report Ex.P 169. PWs.50 and 51 are not panchas to Ex.P168 or Ex.P 169.

20. Further he submitted that PW-2 has not conducted the post-mortem. The post mortem report is concocted. Ex.P22 is issued at the instance of the Investigating Officer. The postmortem report Ex.P17 is concocted and not reliable. The injuries found on the accused are due to ill-treatment by the police. Ex.P18 is concocted and not reliable.

21. Further he submitted that there is no evidence on record to show as to how the SIM used by the deceased came to her. PW-60 has not supported the prosecution case. There is no evidence on record to show that the mobile No.9242299754 was in possession of the accused.

22. Further he submitted that PW-49 is a tutored witness. From MOs.32 to 34 it cannot be inferred that the accused made calls from the STD booth. The mobile phones of the accused or the deceased are not traced.

23. Further he submitted that the vehicle is identified without any identification test. The details of the vehicle are lacking. Therefore, the identification of the vehicle cannot be believed.

24. Further he submitted that PW-7 is a close relative. She is an interested witness. Her presence at Kumaraswamy Layout in the house of PW-16 is not proved. Her evidence is not reliable. Therefore, the last seen circumstance cannot be believed.

25. Further he submitted that, insofar as FSL and DNA test reports are concerned, the evidence of the experts is not reliable. The reports are concocted. He, therefore, submitted that the prosecution has failed to prove its case beyond reasonable doubt. Therefore, the Trial Court was not justified in convicting the appellant-accused for the offences punishable under sections 366, 376 and 302 of IPC. Therefore, the impugned judgment and order cannot be sustained in law.

26. Placing reliance on the decision of the Hon'ble Supreme Court reported in (1984)4 SCC 116, the learned counsel for the appellant-accused submitted that the circumstantial evidence must be conclusive. Infirmities in prosecution case cannot be cured by false plea or false defence taken by the accused.

27. Further, placing reliance on the decision of the Hon'ble Supreme Court reported in AIR 1996 SC 2478, the learned counsel for the appellant-accused submitted that the accused cannot be convicted based on the improved version.

28. Further, placing reliance on the decision of the Hon'ble Supreme Court reported in (2014) 12 SCC 133, the learned counsel for the appellant-accused submitted that the presence of the appellant/accused is not established. Mere recovery of some articles at the instance of the accused is not enough to incriminate the accused. Non-conducting of test identification parade is fatal.

29. Placing reliance on the decision of the Hon'ble Supreme Court reported in (2014) 10 SCC 473, the learned counsel for the appellant-accused submitted that the call details are not admissible in evidence as the requirement of section 65-B (4) of Evidence Act is not fulfilled.

30. As against this, the learned Additional SPP Sri. K.R. Keshava Murthy with equal force submitted that the Trial Court on proper consideration of the material on record has rightly convicted the accused for the offences punishable under sections 376, 366 and 302 of IPC. The accused was searching for a prey on the date of alleged incident to ease out his sexual urge. He has made calls to PW-8 Latha, PW-20 Archana and thereafter, to the deceased. Initially, the accused has made calls to PW-8 Latha and PW-20 Archana. The call details are exhibits P79 and P76. The accused has made three calls to Archana i.e., PW-20. Further, the accused has made calls to PW-8 Latha between 8 and 9 p.m. stating that he is the driver of route No. 405. Thereafter, he has made calls to Archana i.e., PW-20. The accused has made calls to the deceased from STD booth at 8.46 p.m. on 12.12.2005. Again the accused has made five calls to the deceases at 1.39 a.m., at 1.49 a.m., at 1.52 a.m. at 1.54 a.m. and at 1.58 a.m. from mobile number 9242299754. It is clear, the accused was desperate to satisfy his sexual urge at any cost.

31. Further he submitted that PW-7 the eye-witness to the last seen circumstance. She has deposed that the deceased got into the vehicle and she saw the driver and also the vehicle. She has identified the accused and the vehicle. There is no reason to disbelieve the evidence of PW-7. She is a trustworthy witness. The evidence of PW-7 coupled with the evidence of co-employees and drivers of route Nos. 131, 405 and 976 clearly show that the accused took the deceased in vehicle beat in No. KA-05-MC-2684 on the date of alleged incident.

32. Further he submitted that PW-6 Jagadish was the regular driver of route No. 131. He has given two missed calls to the deceased. Thereafter, at 2.05 a.m., the deceased has received the call made by PW-6 Jagadish and talked to PW-6. The driver i.e., the accused has also talked to PW-6. PW-6 immediately has contacted his superior PW-22 Basavaraj and he in turn has contacted PW-24 Veeta working in HP Company. PW-24 Veeta has talked to the deceased. The evidence of PWs. 6.22 and 24 clearly shows that the accused took the deceased in the vehicle bearing No. KA 05-MC-2684. In the trip sheet of PW-6, a remark has been made that the deceased was not picked up in the vehicle of route No. 131. It is clear that the deceased was picked up. In the accused in the vehicle bearing No. KA 05 MC-2684.

33. When once it is shown that, the deceased was picked up by the accused in his vehicle and the deceased was last seen in the company of the accused, section 106 of the Evidence Act comes into play. It is for the accused to explain as to what happened to the deceased. There is no explanation forthcoming from the accused. Therefore, it is clear, the accused was responsible for the alleged incident.

34. Further he submitted that exhibit P42 shows that the accused was absent for duty on 12.12.2005 and 13.12.2005. The vehicle was also not used in the allotted route No. 976. The accused was operating in route No. 976. As the accused was absent on 12.12.2005 and 13.12.2005, alternative arrangement has been made. The evidence of PW-15 and exhibits P39, 40, 41, 42 and 43 clearly show that the accused was absent for duty on 12.12.2005 and 13.12.2005 and the vehicle bearing No. KA 05 MC 2684 was not used in route No. 976.

35. Further he submitted that the vehicle bearing No. KA-05-MC-2684 was not detached from HP Company. It was allotted to route No. 976. As the accused was absent for duty on 12.12.2005 and 13.12.2005, one Srinivas has performed duty on route No. 976. PW-41 has deposed that the accused was the driver of the vehicle bearing No. KA-05-MC-2684 which was attached to SRS Travels.

36. Further he submitted that the accused was arrested on 16.12.2005 at about 4.45 a.m. The accused has volunteered information as per Ex.P189. In pursuance of that, the dead body and incriminating articles like blanket, knife, chudidar pyjama and kacha have been recovered. Apart from this, chappals and shirt button have been recovered at the spot. The dead body was shown by the accused. PWs.16, 19 and 65 have identified the dead body. Further, at the instance of the accused, Diaries and City Bank cards of the deceased have been recovered. Further, vehicle and documents have been seized at the instance of the accused. The clothes of the accused have been seized at the instance of the accused. The button which was found at the spot matches with the button which was missing in the shirt of the accused. The recovery of the dead body and incriminating articles at the instance of the accused clearly show that the accused was responsible for the alleged incident.

37. Further he submitted that the death was due to shock and haemorrhage as a result of cut throat injury. PW-2 Dr. K. Anand has deposed that the death was due to shock and haemorrhage as a result of cut throat injury. The inquest report and the post mortem report clearly show that the death was due to cut throat injury.

38. Further, at the instance of the accused, knife has been recovered. The Doctor has opined that the cut throat injury could be caused with the weapon like MO. 14 knife.

39. Further he submitted that in spite of search pursuant to voluntary information of the accused, the mobiles of the accused and the deceased have not been traced.

40. Further he submitted that the history furnished by the accused to the Doctor clearly shows that the accused was responsible for the alleged incident. It is an extrajudicial confession corroborated by the other material on record. The accused has stated that he sustained injuries at the time of alleged incident. The accused has sustained in all ten injuries. The Doctor has opined that the abrasions could be caused from finger nails and some abrasions were caused due to contact with the ground during the struggle. The injury caused to the deceased could be caused by the knife. It is clear, the accused was responsible for the alleged incident of rape and murder.

41. Further he submitted that exhibits P20 and P21 are the FSL reports. Ex P4 is the DNA report. The evidence of PW-1 coupled with exhibits P20, P21 and P4 conclusively establish that the accused was the culprit. The accused has not given any explanation for the injuries sustained by him or the incriminating circumstances against him. It is clear from the evidence on record that the deceased was using Mobile No. 9880269652. Therefore, the Trial Court was justified in convicting the appellant-accused for the offences punishable under sections 366, 376 and 302 of IPC. It does not call for interference However, the sentence imposed by the Trial Court needs to be modified by awarding death penalty having regard to the circumstances of the case and gravity of the offence. He placed reliance on the following decisions:

1.(1980) 2 SCC 684.

2. (1983) 3 SCC 470.

3. (2013)2 SCC 713.

4. (2013) 2 SCC 452.

5. AIR 2008 SC 3040

42. We have carefully considered the submissions made by the learned counsel for the parties.

43. The points that arise for our consideration are:

1. Whether the Trial Court was justified in convicting the appellant-accused for the offences punishable under sections 366, 376 and 302 of IPC?

2. Whether the sentence imposed calls for interference?

44. Point No. 1

The case of the prosecution is based on circumstantial evidence. The prosecution relies upon the following circumstances.

(1) The accused made several calls to PW-8 Latha, PW-20 Archana and the deceased. Further, the conduct of the accused in making the calls.

(2) The deceased was last seen in the company of the accused.

(3) At the instance of the accused, the dead body and incriminating articles have been recovered.

(4) The death was homicidal.

(5) Experts opinion, FSL and other reports.

The accused made several calls to PW-8 Latha, PW-20 Archana and the deceased.

45. The case of the prosecution is that the accused made several calls to PW-8 Latha, PW-20 Archana and the deceased. PW-8 Latha has deposed that she was working in FIP Company since December 2005. The deceased was working in HP Company as Technical Support Engineer. On 13.12.2005 PW-8 did not go for work. At about 3.00 p.m. the husband of the deceased enquired PW-8 through phone and informed her that the deceased has not returned from the work. For that, PW-8 told that she has not gone to the office and she does not know anything. Thereafter, PW-8 came to know about the death of the deceased. She has stated that on 12.12.2005 between 8.00 and 9.00 p.m. she received calls to her mobile phone. The person who called her informed her that he is the cab driver of route No. 405 and he needs to pick up PW-8. When she enquired the caller as to who are there in the cab, he told her that he does not know. When she asked the driver to give his Mobile Number, he told her that he is calling from the mobile only. On verification, she came to know that the call was made from the telephone booth and not from the mobile. He asked PW-8 to give the cell number of the regular cab driver. As she entertained doubt, she did not give the number. She telephoned to HP transport company. She came to know that no cab was allotted to her as she was on leave. Thereafter, on request regular cab 214 was sent and she went for duty in that cab. Her mobile number is 9880583819.

46. PW-20 Archana has deposed she was working as Technical Support Engineer in HP Company since December, 2005. Her mobile number is 9845491969. On 12.12.2005 at about 8.30 p.m. she received a call to her mobile phone from a land line phone. She was told that the caller was a company cab driver and he is coming to pick up PW-20 and asked the address of PW-20. PW-20 informed her address through phone. On 13.12.2005 at about 12.50 a.m. PW-20 received a call from a mobile phone. She does not remember the mobile number. The caller asked her how to come to her house. Thereafter, at about 1.10 a.m. she received another call stating that he was not able to know the direction. By that time another cab came there. PW-20 went in that cab and informed the caller that she is going in that cab.

47. Thereafter, the deceased has received six calls from mobile No. 9242299754 and STD booth. The first call is from STD booth bearing No. 08030969670 at about 8.46 p.m. on 12.12.2005. The second call was at 1.39 a.m. on 13.12.2005. The third call was at 1.49 a.m. The fourth call was at 1.52 a.m The fifth call was at 1.54 a.m. The sixth call was at 1.58 a.m. The second, third, fourth, fifth and sixth call have been made from mobile number 9242299754.

48. The call details are produced as per exhibits P62, P67, P70, P73, P76 and P79. Exhibits P66, P69, P72, P75 and P78 are the certificates stating that the contents of the call details furnished is true extract of information from the data base stored in the ordinary course of providing of service to the subscribers on their net work. The certificates are signed by the authorised signatory. PWs.33 and 34 have deposed regarding the call details and certificates. PW-33 is the Manager (Legal) of Tata Tele Services Limited. He has deposed that as per the request of the police, he issued call details of Mobile No. 9242299754 from 1.11.2005 to 13.12.2005 as per Ex.P67. Ex.P66 is the certificate.

49. PW-34 Stanley Anglo who is working as Nodal Officer in Airtel has deposed that as per the request of Kumaraswamy Layout police, he issued call details of Mobile No. 9880269652 from 1.11.2005 to 13.12.2005 as per Ex.P70. Ex.P69 is the certificate. Similarly exhibits P73, P76 and P79 are the call details and exhibits P72, P75 and P78 are the certificates.

50. Ex.P62 is the call details of mobile number 9844894462 belonging to Valsala Travels Private Limited. Ex.P67 is the call details of mobile number 9242299754 belonging to the accused. Ex.P70 is the call details of mobile number 9880269652 belonging to the deceased. From the call details, it is clear, the accused has made five calls to the deceased from mobile number 9242299754 to mobile number 9880269652.

51. It was contended by the learned counsel for the accused that the call details cannot be relied upon as evidence as the call details do not satisfy the requirement of section 65-B of the Evidence Act. We do not find any merit in this contention, for the reason, PWs.33 and 34 have deposed regarding the call details and the contents of the call details as per Exs.P67, P70, P73, P76 and P79. They have also issued certificates as per Exs.P66, P69, P72, P75 and P78. The certificates Exs.P66, P69, P72, P75 and P78 clearly show that they are the true extracts of information from the data base stored in the ordinary course of business of providing service to the subscribers on the net work. The certificates and the call details issued substantially comply with the requirement of section 65-B of the Evidence Act. Therefore, we do not find any merit in the contention that the call details cannot be looked into as evidence. The evidence of PW.33 and 34, the call details and the certificates issued fulfil the requirement of section 65-B of the Evidence Act. Therefore, the call details can be looked into as evidence.

52. PW-49 has deposed that he was working in STD booth at Konanakunte cross and the accused made two calls from the telephone booth on 12.12.2005 at 8.45 p.m. It is entered in the book. MOs.32 to 34 are the book and two bills. The other calls have been made from mobile No. 9242299754 which belongs to the accused.

53. We have perused the correspondence, call details and the certificates Exs.P66, P69, P72, P75 and P78. From the call details Exs.P67, P70, P73, P76 and P79 coupled with oral evidence, it is clear, the accused has made calls to PW-8 Latha between 8.00 to 9.00 p.m. It is clear from Ex.P76 that the accused has made calls to PW- 20 Archana at 8.40 p.m. Thereafter, the accused has made six calls to the deceased as per Ex.P67 and P70. From the call details and the evidence of PWs.8, 20 and 49, it is clear, from the telephone booth and mobile No. 9242299754 calls have been made to PW-8 Latha, PW-20 Archana and also the deceased.

54. It is in the evidence of PW-14 and PW-29 that the mobile number of accused is 9242299754. Ex.P39 also shows that the mobile number of accused is 9242299754. PWs.7 and 16 have deposed that mobile number of deceased was 9880269652. Therefore, it is clear, the accused has made calls to PW-8 Latha, PW-20 Archana and the deceased. Tire prosecution has proved that the calls were made to PW-8 Latha, PW-20 Archana and the deceased by the accused. The accused has made calls to PW-8, PW-20 and the deceased at odd hour though he was not the regular driver of that route. This creates serious doubt about the conduct of the accused. The prosecution has proved that calls were made to PW-8, PW-20 and the deceased by the accused.

The deceased was last seen in the company of the accused.

55. The prosecution relies upon the evidence of PWs.7, 6, 12, 14, 16, 29, 22, 24 and other witnesses.

56. PW-7 is the sister-in-law of the deceased. She has deposed that at Kumaraswamy Layout, herself, her brother PW-16. the deceased and her cousin sister Pavitra were residing together. She was working at Animation Training School as consultant. The deceased was working in HP Company. Her brother was working at Oquent Finance Services. Her working hours were 11.00 a.m. to 8.00 p.m. Her brother’s working hours were from 7.00 p.m. to 3.30 a.m. During December 2005, the deceased was having night shift from 3.30 p.m. to 12.30 a.m. The deceased used to go for work in the company cab. The cab used to pick up the deceased between 1.45 to 2.00 a.m. The deceased used to return home between 2.00 and 2.30 p.m. The deceased had mobile phone and her mobile number was 9880269652. She was using it. Her brother’s phone number was 9880677775. On 12.12.2005, she returned home from her work at about 8.30 p.m. At about 8.40 p.m. the deceased received a call. The caller told her that the regular cab is not coming and some other cab is coming. Thereafter, the deceased received four to five calls one after another. The deceased told her that as he is a new driver, he is asking for the address. At about 2.00 a.m. the deceased was ready to go for work. The cab came there. The cab was a Tata Sumo vehicle. It stopped in front of their house. The deceased and PW-7 came down. The deceased went and sat in the front seat. The regular driver had not come. PW-7 saw the driver and also the vehicle. It was a Tata Sumo vehicle. On the backside of the vehicle it was written as ‘Shanidevara Krupe’. She has identified the accused and also the vehicle MO. 15 before the Court. She has stated that she saw the accused sitting in the Tata Sumo when she went to see off her sister-in-law. Thereafter, she came to know about the death of the deceased. Further, she has stated that Mahazar was drawn at the spot in front of their house where Tata Sumo was stopped. Ex.P27 is the mahazar. Her signature is Ex.P27(a). She has identified the clothes, ornaments and articles belonging to the deceased.

57. PW-7 has been cross-examined extensively. Some suggestions have been put to PW-7 that she was not staying at Kumaraswamy Layout with PW-16 and the deceased. PW-17 has denied the suggestions. Her evidence is not shaken in the cross-examination. PW-7 is the sister of PW-16 i.e., the husband of the deceased. Her presence is natural. There is no reason to disbelieve the evidence of PW-7. Her evidence shows that the deceased got into the cab on the date of alleged incident and she went in that cab and the accused was the driver.

58. The prosecution has led evidence to show that the accused has misled the deceased saying that he is performing duty as cab driver in route No. 405 though in fact he was not performing his duty in route No. 405 anti the route allotted to him was route No. 976 and he has not performed his duty in route No. 976 on 12.12.2005 and 13.12.2005.

59. PW-6 Jagadish is the regular driver of route No. 131 in which the deceased was travelling regularly. He has deposed that he gave two missed calls to the deceased at 2.01 a.m. and 2.02 a.m. Thereafter, he gave long call at 2.05 a.m. The first two calls were not received by the deceased. The last call was received by the deceased. The deceased spoke to PW-6. The driver i.e., accused also spoke to PW -6. He was told that the deceased was picked up in route No. 405.

60. Thereafter, PW-6 has contacted PW-22 Basavaraju who is an employee of H.P. Company through phone who in turn has talked to PW-24 Veeta over phone. At 2.05 a.m. Veeta who is another employee of H P. Company has contacted the deceased through mobile No. 9945225935 which belongs to the HP Company. She came to know that the deceased was picked up in route No. 405. The deceased used to travel in the cab allotted to route No. 131 for which PW-6 was the driver.

61. PW-12 has deposed that PW-6 was the driver and the deceased used to travel in a cab allotted to route No. 131. PW-16 has deposed that his wife i.e., the deceased was using mobile No. 9880269652. His sister i.e., PW-7 was residing with them. His mobile number is 9880677775. The deceased informed him that she is going in route number 405 vehicle.

62. PW-29 has deposed that vehicle bearing No. KA-05-MC-2684 was attached to SRS travels. Accused was the driver of route No. 976. His phone number was 9242299754. The accused did not come for work on 12.12.2005.

63. PW-14 has deposed that he was working in H.P. Company as Logistic Specialist. They furnished exhibits P39, 40, 41 and 42 to the police under mahazar Ex.P43. Ex.P39 shows the cab I.D. Number as 976, registration number of the vehicle is KA-05-MC-2684. The contact number of the driver is 9242299754. The name of the driver is Shivu. Ex.P40 is the track logging sheet. Ex.P41 is the shift schedule. Ex.P42 shows that the driver Shivakumar i.e., the accused did not attend duty on 12.12.2005 and 13.12.2005 on route number 976. In his place one Srinivas was sent for pick up of the employees of H.P. Company.

64. PWs.22 and 24 have deposed corroborating the evidence of the witnesses referred to above.

65. From the evidence of PWs.6, 7, 12, 14, 16, 22 and 24, it is clear, the deceased used to travel in route No. 131 vehicle. On the date of the alleged incident, the deceased did not travel in route No. 131 vehicle, but she travelled in the vehicle driven by the accused as she was told by the accused that the regular vehicle performing route 131 is not coming and he is picking up the deceased in the vehicle performing route No. 405. This way the deceased has fell prey to the mischief played by the accused.

66. PWs.3 and 21 have deposed that they were travelling in route No. 976. The accused was the driver. The vehicle did not come on 13.12.2005. Alternative arrangement was made. PWs.14 and 15 have also deposed that route No. 976 was allotted to the accused and not route No. 405.

67. Route No. 405 was allotted to PW-44 Renukaprasad. PW-44 Renukaprasad has performed route No. 405 on the date of the alleged incident. Exs.P86 and P87 are the relevant documents. They show that route No.405 was allotted to PW-44 and he has performed his duty on route No. 405 on the date of alleged incident.

68. Ex.P23 is the complaint lodged by PW-5. In Ex.P5, the route number is mentioned as 405. No other details are given because at that time the only information available was that the deceased was picked up in route No. 405 vehicle and no other information was available. Therefore, in the complaint Ex.P23 only route No. 405 is mentioned. At the time when mahazar was drawn the only information available was that the deceased was picked up in Tata Sumo vehicle. Therefore, in the complaint and mahazar it is mentioned that the deceased was picked up in Tata Sumo vehicle route No. 405. The non-mentioning of other details cannot be a reason to disbelieve the evidence of PW-5 or PW-7. It is well settled principle that FIR is not an encyclopedia. If the facts dis close commission of any cognisable offence, it sets the criminal law in motion to investigate the matter.

69. From the evidence on record, it is clear, PW-7 has seen the deceased getting into the vehicle and the accused was the driver. Thereafter, the deceased was taken in the said vehicle. It is clear, the accused and the deceased were last seen together on 13.12.2005 at about 2.00 a.m. when the deceased got into the vehicle and she was taken in the said vehicle by the accused. The evidence on record clearly shows that it is the accused who picked up the deceased from her house by misleading her stating that he is performing his duty in route No.405 and the regular vehicle of route No.131 is not coming. The prosecution has clearly established that the deceased was picked by the accused in his vehicle bearing No. KA-05-MC-2684 and that the deceased and the accused were last seen together by PW-7.

70. It was contended by the learned counsel for the accused that the vehicle belonging to PW-10 was detached from H.P Company and attached to IBM Company. As on the date of the alleged incident, the accused was working for IBM Company and not for HP Company. Therefore, there was no occasion for the accused to mislead the deceased and pick up the deceased in the vehicle bearing No. KA-05-MC-2684. We do not find any merit in this contention, for the reason: there is no evidence on record to show that the vehicle bearing No. KA-05-MC-2684 was detached from H.P company. On the other hand, it is in the evidence of Pws. 9 and 10 that on 12.12.2005 at about 6.00 p.m. the accused and PW-9 went to the house of PW-10 and discussed about detaching of the vehicle from H.P Company and attaching the same to IBM Company. Nothing is produced to show that the vehicle was actually detached from H.P Company and attached to IBM Company as on the date of the alleged incident and the accused was performing duty on behalf of IBM Company. The evidence of PW-9 and the other witnesses of H.P Company clearly show that the vehicle was attached to H.P Company on the date of alleged incident. In the absence of acceptable evidence, it is difficult to believe that the vehicle was detached from H.P. Company and attached to IBM Company as on the date of alleged incident. Accordingly, said contention is rejected. The evidence on record clearly shows that the deceased was picked by the accused in the vehicle bearing No. KA-05-MC-2684 on the date of alleged incident by misleading the deceased and misinforming her. The prosecution has proved that the deceased was last seen in the company of the accused. No explanation is forthcoming from the accused when the deceased parted his company and what happened thereafter.

Arrest and Recovery

71. The prosecution contends that the accused was apprehended on 16.12.2005 at 4.40 a.m. PW-55 R.Chandrappa, PSI, has deposed that he apprehended the accused and produced him before the IO-PW.70 on 16.12.2005 at about 4.40 a.m. Thereafter, the accused was arrested. PW-70 has deposed that a personal search was made and mobile No.9342290683 was seized from the accused. It stands in the name of the owner PW-10. Thereafter, the accused volunteered information as per Ex.P189 stating that he would show the place where the dead body was thrown and incriminating articles have been concealed. Thereafter, the accused led the I.O. PW-70 and other witnesses PWs.16, 19, 50, 51 and 65 to the place where the dead body was thrown. PWs.16, 19 and 65 have deposed that the accused led them to the place where the dead body was thrown and showed the dead body. PWs.50 and 51 are the videographer and photographer. They have deposed that the accused led the witnesses and the I.O. to the place where the dead body was thrown and showed the dead body. The dead body has been re-covered at the instance of the accused. The mahazar has been drawn as per Ex.P 168. The accused has also produced blanket, knife, chudidar pyjama and kacha and they have been seized under Ex.P 168 mahazar. Apart from that, chudidar top, bra, chappals and a button have been found on and near the dead body. Chappals and button have been seized. Further, the mahazar Ex.P168 shows that Mangalya chain, ole, mati, bra and chudidar top were left on the dead body itself.

72. PWs.16, 19, 65, 50 and 51 have deposed that the accused led them to the place where the dead body was thrown and showed the dead body. Thereafter, the accused removed and produced before the police, the blanket, knife, chudidar pyjama and also kacha. They have been seized. Though PWs. 16, 19, 65, 50 and 51 have been cross-examined thoroughly, nothing has been elicited to disbelieve their evidence. There is no reason to disbelieve the evidence of PWs. 16, 19, 65, 50 and 51. Their evidence clearly establishes that the accused showed the dead body and it was recovered at the instance of the accused under Ex.P168 mahazar. The incriminating articles like knife, chudidar pyjama and kacha have been seized at the instance of the accused.

73. It was contended by the learned counsel for the accused that the description of the property was not disclosed earlier. Further, the bra, chudidar top and ornaments were not seized at the time of conducting the spot mahazar or inquest. They were not sent to the Magistrate on the same day though the accused was produced before the Magistrate on the same day. Therefore, it is doubtful that bra, chudidar top and ornaments were found on the deceased. We do not find any merit in this contention, for the reason, the husband of the deceased i.e., PW-16 and PW-7 who is the sister-in-law of the deceased have identified the ornaments and clothes of the deceased. Further, it is in the evidence of PW-2 Dr. K. Anand that bra, chudidar top and ornaments were found on the dead body when the body was sent for post mortem examination and they were handed over to the concerned police inspector. In the post mortem report also there is mention that bra, chudidar top and ornaments were found on the dead body. It is also mentioned in Ex.P168 mahazar that bra, chudidar top and ornaments were left on the body itself and the body was sent for post mortem examination. Therefore, there is no merit in the contention of the learned counsel for the accused and accordingly, it is rejected.

74. It was contended that no mud particles were attached to the articles seized at the spot though the body was found near a drainage. We have perused the photographs and also videograph. The body was found near the drainage at a considerable distance and the area was full of grass. In the mahazar, detailed description of the articles seized has been given. Therefore, we have no reason to doubt the recovery of the articles. It is proved. It is clear, the accused had the exclusive knowledge of the dead body and articles seized and no explanation is forthcoming from the accused.

Recovery of articles i.e.. MOs.17 to 23 at Pushpa Garage

75. The prosecution contends that the accused in pursuance of his voluntary statement led the witnesses to the Pushpa Garage and produced the diaries and ATM cards belonging to the deceased. To prove this, the prosecution relies upon the evidence of PWs.46, 47, 48 and 65 and PWs.50 and 51 who are videographer and photographer. Ex.P89 is the mahazar. PWs. 46, 47, 48 and 65 have deposed that the accused volunteered to show the place where the diaries and ATM cards were concealed and produced the diaries and ATM cards which are MOs. 17 to 23. All these articles have been seized under Ex.P89. PWs.46 and 47 are the owner and worker of Pushpa Garage. PWs.48 and 65 are the witnesses. PWs.50 and 51 are the videographer and photographer. PWs.46 and 47 have deposed that the vehicle was left for service. After service, the owner and accused paid Rs. 300/- towards service charges. All the witnesses have consistently deposed that the accused removed the ATM cards and diaries from the place where they were concealed and produced them before the police. They have been seized under Ex.P89 mahazar.

76. It was contended by the learned counsel for the accused though the articles were found in the debris, no mud particles were attached to the articles. Therefore, the diaries, ATM cards i.e., MOs. 17 to 23 are planted there. Further, the voluntary statement of the accused does not show that these articles were concealed at Pushpa Garage. Therefore, question of accused producing the articles does not arise. We do not find any merit in this contention. We have examined the evidence of the witnesses and also seen the photographs. These articles were concealed. They were not found in the open place. Therefore, the accused alone had the exclusive knowledge of these articles. The witnesses have deposed that the accused removed the articles from the concealed place and produced the same. Therefore, there is no merit in the contention that the articles have been planted by the police. No explanation is forthcoming from the accused in his 313 statement. From the evidence of PWs.46, 47, 48 and 65, it is clear, the diaries and ATM cards of the deceased have been seized at the instance of the accused under Ex.P89 mahazar.

Recovery of vehicle MO. 15. documents MOs. 24 to 29. and clothes of the accused i.e., MOs.30 and 31:

77. It is the case of the prosecution that, on 17.12.2005, the accused took the witnesses and showed the vehicle and also produced the clothes which he was wearing at the time of the alleged incident. Ex.P31 is the mahazar. MO. 15 is the vehicle bearing No. KA-05-MC-2684. MO.24 is plastic cover. MO.25 is RC book (Xerox copy). MO.26 is form Nos. 49 and 47. MO.27 is the Xerox copy of insurance. MO.28 is Xerox copy of driving license of the accused. MO.29 is the travellers log sheet of route No. 976. These articles have been seized in presence of PWs. 10. 50, 51, and 56. PW-10 is the owner of the vehicle. PW-56 is an independent witness. PWs.50 and 51 are the videographer and photographer. They have deposed that the accused showed the vehicle and produced pant and shirt MOs.30 and 31. At the instance of the accused, the vehicle and MOs.24 to 31 have been seized under Ex.P31 mahazar. It is stated, one button was missing in the shirt MO.31. It was found at the spot and it matches with the missing button in the shirt.

78. It was contended by the learned counsel for the accused that the key of the vehicle was not seized. Further, no receipt is produced to show that the vehicle was left in the Pushpa Garage. It was also contended that nothing is produced to show that the clothes belong to the accused. There is also discrepancy with regard to mentioning of "Shani Devara Krupe" on the hind side of the vehicle. We do not find any merit in this contention, for the reason, the clothes were produced by the accused in presence of the witnesses from his house where he was residing. The accused had the exclusive knowledge of the clothes. Further, the accused has opened the latch by putting his hand through the window which was known to the accused only. It is clear, the accused has produced the clothes and they have been seized. Further the owner and mechanic of the garage PWs.46 and 47 have deposed that the vehicle was left for service and after service, the owner and accused paid Rs. 300/- towards service charges. The owner of the vehicle PW-10 has also deposed that the vehicle was left for service. There is no reason to disbelieve the evidence of the owner and mechanic of Pushpa Garage. The owner of the vehicle has no animosity against the accused. The owner has deposed that the vehicle and other documents were seized. He has stated that the accused produced pant and shirt. Therefore, non-seizure of key is of no consequence. There is no reason to disbelieve the evidence of the witnesses and doubt the seizure of the vehicle, documents and clothes of the accused.

79. Insofar as the discrepancy with regard to mentioning of ‘Shani Devara Krupe’ on the hind side of the vehicle is concerned, it is clear from the evidence of PW- 10, in his evidence, he has deposed that the name Shani Devara Krupe was mentioned on the rear glass of the vehicle and thereafter, somebody had broken the said glass. Thereafter, the glass was changed. Therefore, there is no merit in this contention and accordingly, it is rejected.

80. One button was found missing in the shirt of the accused i.e., MO.31. At the time of spot mahazar, near the dead body, one button was found. The evidence of PW-66 Puttabasavaiah - Scientific Officer, FSL, Bengaluru, shows that the button which was found at the spot matches with the button of the shirt of the accused i.e., MO.31.

Search for the mobiles of accused and the deceased:

81. It is the case of the prosecution that the accused volunteered to show the place where his mobile and the mobile of the deceased were thrown. Exhibits P37 and 38 are the mnhazars. Ex.P37 shows that the accused volunteered to show the place where his mobile was thrown. On search it was not found Ex.P38 shows that a search was made to trace the mobile of the deceased and it was not found.

82. PW-52 has deposed regarding the search for the mobiles. He has stated that the accused volunteered to show the place where his mobile and mobile of the deceased were thrown. They went to that spot and a thorough search was made. In spite of that, the mobiles of the deceased and the accused were not traced.

Seizure of MOs.32 to 39:

83. PW-49 has deposed that he was working in STD booth situated at Konanakunte cross. The accused made calls on 12.12.2005 at 8.45 p.m. It is entered in the book. The book and two bills have been produced and seized under Ex.P55 mahazar. PW 18 has deposed regarding the seizure of MOs.32 to 34 under exhibit P55 mahazar. The signatures are at Exs.P55(a) and (b). MOs.32 to 94 are the book and two bills. PWs. 18 and 49 are independent witnesses. There is no reason to disbelieve their evidence. The entries made in MO.32 and the two bills MOs.33 and 34 and the evidence of PW-49 show that calls were made by the accused from the STD booth where PW-49 was working.

Purchase of knife:

84. The prosecution has examined PW-17 Zubair to show that knife MO. 14 was purchased from his shop. PW-17 has deposed that the accused purchased the knife MO. 14 from his shop. PW-17 has been cross examined, but nothing is elicited to disbelieve his evidence. On the other hand, in the cross examination it is elicited that similar knives were found in his shop. It is clear from the evidence of PW-17 that the accused has purchased the knife MO. 14 from the shop of PW-17.

Homicidal death:

85. The prosecution contends that death was homicidal. To prove this, the prosecution relies upon the evidence of PWs.2, 16 and 65 and exhibits P. 17, 20, 21 and 169.

86. PW-65 Subramani is the panch witness to the inquest Ex.P169. He has deposed that the inquest was held and he noticed cut throat injury.

87. PW-16 is the husband of the deceased. He has identified the dead body and articles found on the dead body and also the other articles.

88. Ex.P169 is the inquest report. It shows that the deceased died due to injury sustained to her throat.

89. PW-2 is the Doctor who has conducted the post-mortem of the deceased. He has deposed that the cause of death was due to cut throat injury.

90. Ex.P 17 is the post-mortem report and exhibits P20 and P21 are the FSL report. The post-mortem report Ex.P17 shows that the cause of death was due to cut throat injury.

91. From the evidence of PWs.2, 16 and 65 and exhibits P17 and P169 it is clear that the death was due to cut throat injury. There is no serious dispute that the death was homicidal. Therefore, we hold that the death was homicidal.

Experts evidence. FSL and other reports:

92. The prosecution has examined PWs.1, 2, 43 and 69.

93. PW-1 is the Technical Examiner CDFD, Hyderabad. He has deposed that their officers received sealed four items of materials along with a letter dated 13.2.2006 from the Director, Forensic Science Laboratory, Bengaluru. Ex.P 1 is the covering letter from the Director, FSL, Bengaluru. Ex.P1 (a) is the invoice. Item No. 1 consists of one sealed paper cover containing two portions of the Chudidhar top containing seminal stains. Item No. 2 consists of one sealed paper cover containing one unstained portion of the chudidar top (control sample). Item No. 3 is one sealed paper cover containing vaginal swab taken by the Medical officer on cotton. Item No. 4 is one sealed paper cover containing vaginal swab taken by the Medical officer on cotton.

94. Further, one V.N. Shylaja, Technical Officer, had received the said articles on 15.2.2006. Ex.P2 is the letter issued by Shylaja to the Director, FSL, Bengaluru for having acknowledged the receipt of the sample. Sri. L. Purushothama, Scientific Assistant of Biology Division, FSL, Bengaluru had brought the sample mentioned in Ex.P2. In the said letter, it was also requested to send the fresh blood sample of the suspected person through the blood collection material along with identification form duly filled with extra attested passport size photograph of the individual.

95. On 9.3.2006, they received the blood sample of Mr.Shivakumar alias Shiva alias Shivamurthy i.e., the accused sent for the DNA finger printing examination pertaining to Cri. No. 369/05 of Kumaraswamy Layout Police Station. Ex.P3 is the letter of acknowledgment of receipt of sample of blood of Mr.Shivakumar. A to F are given as Exhibit numbers to the materials furnished by the FSL authority in order to facilitate him to give the report by mentioning as exhibits ‘A’ to ‘F' He has stated, he has not examined Ex ‘C’ a small cloth piece said to be unstained portion of chudidhar top because there were no stains. He has examined Exhibits ‘D and E’, but they did not yield DNA suitable for analysis. Exhibits ‘D’ and ‘E’ were vaginal swabs. If they are in wet condition for certain time, it will be unfit for DNA examination. Exhibits ‘D' and ‘E’ were labelled as item Nos. 14 and 15 by the FSL authority.

96. He has stated, he took exhibits ‘A' 'B', ‘D’ and ‘E’ for DNA extraction examination. He adopted organic DNA extraction method. After extraction, he quantified it. He carried out Fluorescent Test. (Short tandom repeat analysis)(STR test). This is advanced method in DNA profile. He has stated that he conducted DNA extraction of exhibits A’, ‘B’, 'D’ and ‘E’ on 21.2.2006. He conducted PCR and Gene Scan on 22.2.2006. For Ex.F he extracted DNA on 9.3.2006 by organic DNA extraction method. Then he conducted PCR AMF test on 10.3.2006 with respect to Ex.F. On 14.3.2006, he conducted Gene Scan analysis. On 20.3.2006, he conducted YSTR analysis on all the exhibits except Ex.C. After doing all the tests and analysis, it will be imported in Genotype software programme and performed Genotype analysis which yield the result as Electro Pherogram (DNA profile).

97. On the basis of the data available in table Nos. 1 and 2, he has come to the conclusion that the biological fluid (semen) present on the sources of Exhibits A and B (two portion of chudidar top containing seminal stains) is from one and the same source.

98. Further, it is stated, the biological fluid (semen) present on the sources of exhibits ‘A’ and ‘B’ (two portions of the chudidar top containing seminal stains) is from the source of Ex.F (Mr. Shivakumar alias Shiva alias Shivamurthy). Ex.P4 is the DNA report. Ex.P4(a) and Ex.P4(b) are his signatures. The report consists of 10 enclosures which are marked as Ex.P5 to Ex.P 14. He has identified his signatures as Ex.P5(a) to Ex.P14(a).

99. In the cross-examination of PW-1, it is elicited that there are no endorsements on the covers of MOs.76 to 78 regarding the date of their receipts and the date of the opening of the covers and the signatures of the officer who opened them. He cannot say the date when he received the said articles and examined and handed over and to whom, without looking to the concerned records, but he can say the date of examination. The suggestion that MOs.76 to 78 were neither received in their institution nor examined by him is denied. It is also denied that they have created and produced before the Court Ex.P1 to Ex.P16 and MOs.76 to 78. It is elicited that the vaginal swab, on examination, did not give any DNA result. Due to wet condition, the bacteria have spoiled the contents and it had decay and therefore, did no give any result. It is admitted that MOs.76 and 77 were already examined in another lab before they were subjected for examination in their laboratory. The suggestion that he was aware of the fact that the blood sample received for examination was that of Shivakumar before subjecting it to DNA test is denied. Further, the suggestion that he did not examine any of the articles i.e., Ex. A, B and F referred to in Ex.P4 and he has only put the signature in the said document which was prepared by Mr. Sharath Chandra in order to oblige the Investigating Officer is denied.

100. PW-43 is one Umesh. He has deposed that he had seen the accused in V Addl. C.M.M. Court about one year three or four months back. Kumaraswamy Layout police asked him to be a witness for drawing the blood from the accused. At that time, in the Court, the Judge, Doctor, Inspector, ACP. Police, himself, Srinivas and the accused were present. The accused was brought from the jail. In their presence, the blood was drawn from the accused and it was put in the bottle, packed and sealed. The Doctor affixed the photo of the accused in one form and took their signatures. Ex.P15 is the form. He has identified his signature as Ex.P 15(c). Ex.P15(a) is the photo of the accused. 101. In his cross-examination, PW-43 has denied the suggestion that he did not come to the Court and blood was not drawn from the accused. He has also denied the suggestion that he signed Ex.P15 in the police station.

102. PW-69 is one B. Nanjundappa. He is the Deputy Director of Forensic .Science Laboratory, Mysuru. He has deposed that he was working at FSL, Bengaluru, as Assistant Director. He received 22 items from the ACP, Jayanagar Subdivision, Bengaluru city. They were subjected to chemical examination. From the test they conducted they noticed blood stains and seminal stains in some articles. They were sent for serology examination. In his report, he has given the details. Item No. 16 is the blood sample of the deceased. Item Nos. 18(1) and 18(2) are blood samples of the accused. Item No. 16 was not fit for further examination. Item No. 1 (soil), item No. 2 (sample soil), item No. 3 (button), item No. 7 (chudidar pyjama) and item No. 10 (shirt) were sent for further examination. Ex.P20 is the report. In Ex.P20, he has mentioned about the presence of the seminal stains. The stains found on item No. 12 chudidar top were seminal stains. In item No. 8 (kacha), item No. 9 (blanket), item No. 14 and item No. 15 (both tire vaginal swab collected in cotton) and item No. 17 (kacha) seminal stains were not found. The blood group of the blood stains on chudidar top and bra is ‘A’ group. The blood group in item No. 18(1) and item No. 18(2) was ‘B’ group. Ex.P21 is the report . His signature is at Ex.P21(a). The examination revealed that item No. 8(1) to 8(7) hairs and item No. 21 hair were similar. Similarly, item Nos. 9(1) and (3) hairs were similar to item No. 22. Item No. 9(2) and item No. 9(4) hairs were not similar to item No. 22.Ex.P181 is the report. His signature is at Ex.P1 81 (a). He has identified item Nos. 1 to 22 i.e., MOs.40 and 41 which are bottles containing mud sample, MO.36 shirt button, MO. 37 chappals, MO. 14 knife, MO. 16 chudidar pyjama, MO.38 kacha, MO.39 blanket, MO.31 shirt. MO.30 pant, MO.3 chudidar top, MO.4 bra, MO.6 vaginal swab, MO.7 cotton containing vaginal swab, MO.8 blood sample, MO. 10 kacha, MO. 13 blood sample, MO.5 nail scrap, MO.9 maggot, MO. 12 pubic hair, MO.11 scalp hairs. It is stated, hairs found in item No. 8 kacha i.e., MO.38 were collected by him during examination. They are marked as item Nos. 8(1) to 8(7).

103. Further he has stated, item No. 21 are the sample pubic hair of the accused. MOs.73 to 75 are sample hair of the accused. On 13.2.2006, four items namely pieces of chudidar where seminal stains were found, pieces of chudidar where seminal stains were not found and vaginal swabs were sent to CDFD, Hyderabad. Exhibits P20, P21 and P181 are the reports. The letter and manuscript copies are marked as exhibits P182 and P183.

104. Ex.P181 is the report given by PW-69. It is stated, the hair found in item Nos. 8(1) to 8(7) and 21 are pubic hair of human origin. Item Nos. 9(1), 9(2), 9(3) 9(4) and 22 are scalp hair of human origin. The pubic hair found in item Nos. 8(1) to 8(7) are similar in their morphological characteristics with that of item No. 21 and are found to contain follicular tissue. The scalp hair in item No. 9(1) and item No. 9(3) are similar in their morphological characteristic with that of item No. 22 and are found to contain follicular tissue. The scalp hair found in item Nos. 9(2) and 9(4) are dissimilar in their morphological characteristics with that of item No. 22.

105. From the evidence of PW-1, it is clear, the biological fluid i.e., (semen) present on the source of exhibits ‘A and ‘B’ (two portions of chudidar lop containing seminal stains) is from the source of Ex. 'F' i.e., Mr.Shivakumar alias Shiva alias Shivamurthy. The evidence of PW-69 and the report Ex.P20 show that seminal stains were found in item No. 12 i.e., chudidar top. Seminal stains were not found in item Nos. 8, 9, 14. 15 and 17 i.e., kacha, kambli, vaginal swab and kacha. Blood in item No. 16 i.e., blood sample of the deceased was disintegrated and not fit for further examination. Item Nos. 1, 2, 3, 7 and 10 i.e., mud, sample mud, one button, chudidar pyjama and shirt have been sent for further examination.

106. From the evidence of PWs.1, 43, 69 and reports exhibits P4 and P20, it is clear, the seminal stains found on the chudidar of the deceased are that of the accused and he is the source.

107. PW-2 is Dr. K. Anand. He has deposed that the accused had sustained injuries. The report is Ex.P18. The history furnished shows that on 13.12.2005 at 1.30 a.m., the deceased was picked up in Tata Sumo vehicle from her house, she was subjected to forcible sexual intercourse and thereafter, the deceased was killed by cutting her throat with the knife. Ex.P18 shows that the accused had sustained ten abrasions. The doctor has opined that the injuries sustained by the accused could be caused by finger nails and due to struggle on the ground. The accused has furnished history to the doctor.

108. It was contended by the learned counsel for the accused that the police did not find any injuries when personal search was made. Subsequently, when the accused was examined by the doctor the injuries have been noticed. The injuries have nothing to do with the alleged incident. We do not find any merit in this contention. The search was made for a limited purpose of ascertaining the incriminating articles with the accused. When the doctor has examined the accused, he has noticed injuries on the person of the accused. The accused has not complained against anybody about the injuries sustained by him before the Magistrate. The history furnished shows that the injuries were sustained by the accused at the time of alleged incident. There is no explanation forthcoming from the accused as to how the accused sustained injuries. Mere argument that the injuries could have been caused by the police cannot be accepted. Therefore, we do not find any merit in the contention and accordingly, it is rejected.

109. Ex.P20 is FSL report. It shows that the presumptive test for the presence of seminal stains (whitish stains) was found positive in item No. 12 i.e., chudidar top. Further, the presumptive test for the presence of seminal stains was found negative in item Nos. 8, 9, 14, 15 and 17 i.e., kacha, kambli, vaginal swab and kacha.

110. Ex.P21 is the serology report. It shows that the blood stains in item Nos. 1, 12 and 13 i.e., mud, chudidar top and bra are stained with ‘A’ group blood. The blood found in item Nos. 18(1) and 18(2) i.e., blood sample of accused are of ‘B’ group blood.

111. Ex.P22 is the opinion of the doctor. He has opined that the cut throat injury mentioned in the post-mortem report could have been caused by the knife MO. 14. The deceased might have been subjected to sexual intercourse prior to her death. Injuries on genital organs and abrasions on the back of the body indicate forcible sexual intercourse.

112. Ex.P 170 is the FSL report. It shows that the soil samples marked as item Nos. 1 and 2 and soil sticking to the black colour chudidar pyjama marked as item No. 7 are similar. Further, the button marked as item No. 3 is similar to the 3rd and 6th button attached to half sleeve white colour shirt marked as item No. 10 with respect to colour, shape, size and microscopy.

113. Ex.P4 is the DNA report. It shows that the biological fluid (semen) present on the sources of exhibits A and B (two portions of the chudidar top containing seminal stains) is from one and the same source. Further, the biological fluid (semen) present on the sources of exhibits ‘A’ and ‘B’ (two portion of the chudidar top containing seminal stains) is from the source of exhibit F.i.e., accused Mr. Shivakumar alias Shiva alias Shiva Murthy.

114. From the evidence of PWs.1, 2 and 69 and exhibits P4, P18, P20, P21, P22, P170 and P181, it can be inferred that the accused had sexual intercourse with the deceased and he was responsible for the death of the deceased.

115. It is clear, the DNA test shows that the source of seminal strains are traceable to the accused. From the evidence of PWs.1, 2 and 69 and exhibits P4, P18. P20. P21. P22, P170 and P181, it can be inferred that the accused had sexual intercourse with the deceased. Further, PW-2 has deposed that the accused had sustained injuries. Ex.P18 is the medical report. The Doctor PW-2 has deposed that the injuries could be caused by nails and also due to struggle. Further the accused has furnished the history to the Doctor PW-2. It is stated, the accused sustained injuries at the time of alleged incident. The evidence on record clearly shows that the accused had sexual intercourse with the deceased and he was responsible for the death of the deceased.

116. It was contended by the learned counsel for the accused that there is nothing on record to show that mobile No. 9880269652 was used by the deceased. There is no merit in this contention. It is in the evidence of PWs.7 and 16 and the other material on record that the deceased was using the mobile No. 9880269652. Therefore, the evidence of PW-60 is of no consequence. The evidence on record clearly shows that the deceased was using mobile No. 9880269652. In fact calls have been made to mobile No. 9880269652 and the deceased has responded to that. It is clear that the deceased was using mobile No. 9880269652 at the time of alleged incident. Therefore, there is no merit in the contention that the source of mobile No. 9880269652 is not known. It is not significant as there is enough evidence on record to show that the deceased was using mobile No. 9880269652. There is clinching evidence on record to show that the deceased was using mobile No. 9880269652. It is also relevant to note the suggestions made by the accused to PW-9. Virtually the entire events which lead to the alleged incident have been suggested to PW-9. PW-9 has denied the suggestions. The accused is trying to throw blame on PW-9. There is no material on record to substantiate the suggestions made to PW-9. The evidence on record clearly establishes the involvement of the accused in the alleged crime. While it is true, the suggestions made to PW-9, false plea or false defence taken by

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the accused cannot be a ground to incriminate the accused, but it can be a circumstance to strengthen the case of the prosecution. 117. The prosecution has proved the following circumstances: (a) That the accused made several calls to PW-8 Latha, PW-20 Archana and the deceased. (b) The deceased was last seen in the company of the accused. (c) At the instance of the accused, the dead body and incriminating articles have been recovered. (d) The death is homicidal. (e) The accused had sexual intercourse with the deceased and he was responsible for the death of the deceased. 118. From the proved circumstances, it can be inferred, that the accused has committed the alleged offences. The Trial Court on proper consideration of the material on record has rightly held that the accused is guilty of the offences punishable under sections 366, 376 and 302 of IPC. It does not call for interference. 119. Accordingly, we confirm the conviction passed by the Presiding Officer, FTC-XI, Bengaluru in S.C. No. 523/2006 for the offences punishable under sections 366, 376 and 302 of IPC. 120. Point No. 2 Regarding the sentence, the learned counsel for the appellant-accused contended that the appellant is still young. He is married and he has no criminal antecedents. This is not one of the rarest of rare cases. Therefore, the sentence awarded by the Trial Court may be modified. 121. The learned Addl. SPP submitted that the accused, to satisfy his sexual urge, has committed a brutal act. The manner in which the deceased was taken, subjected to sexual intercourse and thereafter, done to death, speaks of gruesome murder coupled with rape. The evidence on record shows that the accused has made calls to PW-8 first and thereafter, he has made calls to PW-20 Archana who has luckily escaped. Unfortunately, the deceased has become the victim. Having regard to the circumstances of the case, it falls within the category of rarest of rare cases. Therefore, the accused deserves death penalty. The sentence imposed by the Trial Court may be modified by imposing death penalty. He placed reliance on the following decisions: 1. (1980)2 SCC 684. 2. (1983)3 SCC 470. 3. (2013)2 SCC 713. 4. (2013)2 SCC 452. 5. AIR 2008 SC 3040. 122. We have carefully considered the submissions made by the learned counsel for the parties. 123. In Machhi Singh & others v. State of Punjab reported in (1983) 3 SCC page 470 the Hon'ble Supreme Court has laid down the following guidelines while imposing death penalty: i The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. ii Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’. iii. Life imprisonment is the rule and the death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. iv. A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 124. In AIR 2008 SC 3040 in the case of Swamy Shraddananda alias Murali Manohar Mishra v. State of Karnataka the Hon'ble Supreme Court has observed as follows at paras 66 and 68: "66. The matter may be looked at from a slightly different angle. The issue of sentence has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the court may strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then the court should do? If the court’s option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court i.e., the vast hiatus between 14 years imprisonment and death. It needs to be emphasised that the court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all. 68. In light of the discussions made above we are clearly of the view that there is a good and strong basis for the court to substitute a death sentence by life imprisonment or by a term in excess of 14 years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be." 125. The Trial Court considering the decisions of the Hon'ble Supreme Court and taking into consideration that the accused is young, he is married, there is a small child and aged parents and the accused is not an habitual offender has sentenced the accused to undergo RI for a period of 10 years and to pay a fine of Rs. 10,000/- for the offence punishable under section 366 of IPC and in default of payment of fine to undergo RI for one year. For the offence punishable under section 376 of IPC, the accused has been sentenced to undergo RI for a period of 10 years and to pay a fine of Rs. 20,000/- and in default of payment of fine, to undergo RI for a period of two years. For the offence punishable under section 302 of IPC, the accused has been sentenced to undergo RI for rest of his life and shall not be released from the jail for the rest of his life. 126. No doubt, the offence committed by the accused is serious and heinous. However, keeping in view the age of the accused, he is married and he has no criminal antecedents and he is in custody throughout, in our considered view, the sentence imposed by the Trial Court is proper and it does not call for interference. Accordingly, it is confirmed. Consequently, the criminal appeals filed by the accused and State in Cri. A. Nos. 245/11 and Cri. A. No. 464/11 are hereby dismissed.
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