1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30 TH DAY OF JUNE 2015 PRESENT THE HON'BLE MR. JUSTICE VINEET SARAN AND THE HON'BLE MR. JUSTICE BUDIHAL R.B. CRIMINAL APPEAL No.1419/2012 BETWEEN: Mr Manoj Kumar S S/o A G Suresh Aged about 29 years R/at No.19, 1 st Floor 5 th Main, B Block Vinayakanagar Murugeshpalya Bangalore-560 017. .. APPELLANT (By Sri Hashmath Pasha, Adv.) AND: State of Karnataka By Airport Police Bangalore-560 017. .. RESPONDENT (By Sri K R Keshavamurthy, Addl. SPP)
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE 2015
PRESENT
THE HON'BLE MR. JUSTICE VINEET SARAN
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.1419/2012
BETWEEN: Mr Manoj Kumar S S/o A G Suresh Aged about 29 years R/at No.19, 1st Floor 5th Main, B Block Vinayakanagar Murugeshpalya Bangalore-560 017. .. APPELLANT (By Sri Hashmath Pasha, Adv.) AND: State of Karnataka By Airport Police Bangalore-560 017. .. RESPONDENT (By Sri K R Keshavamurthy, Addl. SPP)
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This criminal appeal is filed under Section 374(2) CR.P.C praying to set aside the Judgment and order of convictions and sentences dated 12.12.2012 passed by the XXXII Addl. City Civil and Sessions Judge and Spl. Judge for CBI Cases, Bangalore in S.C.No.202/2009 – convicting the appellant-accused for the offences punishable under Sections 302, 201 of IPC.
This criminal appeal, having been reserved on 12.06.2015 and
being listed for pronouncement today, Budihal R.B., J., delivered the following:
JUDGMENT
This appeal is preferred by the accused being aggrieved by the
judgment and order of conviction dated 12.12.2012 passed in S.C.
No.202/2009 by the XXXII Additional City Civil and Sessions Judge
and Special Judge for CBI Cases, Bengaluru, convicting the accused for
the offences punishable under Sections 302 and 201 of IPC.
2. The facts leading to filing of the case are that first
information was registered under Ex.P.90 in Airport Police Station,
Bengaluru City, Crime No.310/2008 on the basis of the information
furnished by one Sri. Manoj Kumar Suresh as per Ex.P.91, which was
addressed to the Inspector of Police Airport Police Station, Bengaluru
wherein it was stated by Manoj Kumar that he was working in the IBM
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India Private Limited staying at the address mentioned in Ex.P.91 since
September 2008, along with his wife Smt. Lakshmi. His wife was also
working in the same company as System Engineer. They were married
on 28.8.2008. His wife was suffering from viral fever for the last two
weeks and was on leave since then. On 7.11.2008, he went to office at
9.30 a.m. and his wife was alone in the house. He returned to the house
from work around 7.00 p.m., the door was open, TV was on and he
switched on the lights and entered into the house and went towards the
kitchen looking for his wife. He found her lying on the floor and when
he tried to lift her, he saw bleeding on her head and found her to be
dead. Some injuries were found on the neck. She was wearing a gold
chain with mangalya, gold bangles, gold bracelet and gold ear rings and
he found them all missing. He also found Rs.30,000/- cash missing
from the almirah. He also mentioned in the first information that he
suspects some one has gained entry into his house and murdered his
wife and taken away gold jewellery and cash. Hence, requested the
police to investigate and take appropriate action in the matter.
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3. The police after completion of the investigation, filed charge
sheet against the accused i.e, said Manoj Kumar Suresh for the offences
punishable under Sections 302 and 201 of IPC. The trial court, framed
the charge of the said offences. After conclusion of the trial and also
after considering the oral and documentary evidence produced in the
case, ultimately, the trial court convicted the appellant-accused for the
aforesaid offences. Being aggrieved by the judgment and order passed
by the trial court, the appellant has preferred the present appeal
challenging the legality and correctness of the same on the grounds as
mentioned at ground Nos.4 to 78 of the appeal memorandum.
4. We have heard the arguments of learned Counsel appearing
for the appellant-accused and the learned Additional SPP appearing for
the respondent.
5. Learned Counsel for the appellant, during the course of
the arguments, submitted that the case of the prosecution rests only on
the circumstantial evidence and there are no direct witnesses to the
incident. Motive as per the prosecution is that the appellant was
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having illicit connection with one lady Smt. Anuradha Reddy and
marriage of the appellant with the deceased was conducted against his
will. It is also the submission of the learned counsel that the
prosecution based its case stating that the appellant had been to his
office on 7.11.2008 and in the middle of the day, he was absent from
the office for some time i.e., 1.05 p.m. to 4.17 p.m. and for this, the
prosecution based CC TV camera footages and also the photographs
Exs.P.23 to P.43. It is his further submission that on the basis of the
said CC TV footages and on suspicion, the appellant was taken to the
custody by the police. During the course of investigation, as the
investigating officer had noticed that the appellant sustained injuries on
the hind portion of the palm of his hand, the prosecution wanted to rely
on the medical examination report of the appellant to contend that it
goes to show his involvement in committing the alleged offences. It is
also the story of the prosecution that the single hair found on the palm
of the deceased, when compared with the hair of the appellant-accused,
which was collected by the police during investigation, was tallying with
each other.
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6. It is the contention of the learned counsel appearing for the
appellant-accused that the prosecution has relied upon four statements
as per Exs.P.91, 101, 102 and Ex.D.1, which are alleged to be the
statements of the appellant. So far as these documents are concerned,
the contents of the document at Ex.P.91 are not of the appellant.
However, his signature on the said document is admitted. So far
Exs.P.101 and 102, the contention of the appellant is that he has not at
all given such statements before the police. But the police have got
prepared such statements in the name of the appellant to show that as if
they were given by the appellant himself. The learned counsel
submitted that the documents Exs.P.101 and 102 show the same day,
but time is not mentioned either on Ex.P.101 or P.102 of recording
such statement. For the sake of appreciation of arguments, if it is
taken that the appellant has given the statement as per Ex.P.101, what
was the necessity for him to give another statement on the very same
day as per Ex.P.102. The learned counsel submitted that on 10.11.2008,
the police had been to Chennai to the residence of the appellant and
brought him to Bengaluru on 11.11.2008. The appellant sustained
injuries to his hand and therefore, under the police escort, he was sent
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to the hospital on 11.11.2008 itself. As the doctor was not available,
again he was sent to the hospital on 12.11.2008. Therefore, it is his
submission that from 10.11.2008, in the evening, the police were having
the custody of the appellant-accused, even though they have not shown
on record of his arrest. He submitted that the appellant was under the
surveillance of the police and he was not having liberty to move
according to his choice. Therefore, it very much amounts to custody of
the appellant with the police and he was not produced before the court
within 24 hours of his arrest and hence, his detention is illegal
detention.
7. The further submission of the learned counsel for the
appellant-accused is that so far as Ex.P.102 is concerned, there is no
possibility of the appellant giving such detailed statement on 12.11.2008
and the police machinery recording such statement. In this connection,
he submitted that the police have shown arrest of the appellant on
12.11.2008 at 11.30 p.m. and the prosecution witnesses have clearly
admitted that they took half an hour to complete the arrest formalities,
so it crossed the mid night at 12.00. Hence, it is his submission that
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Ex.P.102 cannot be said to be given by the appellant and also cannot be
said to be recorded by the police on 12.11.2008. In addition to the
above, the learned counsel also submitted that so far as Ex.P.102 and
Ex.D.1 is concerned, there are two possibilities i.e., firstly, the police
might have obtained such statement by pressure, coercion or by
inducement on the appellant-accused and secondly, that the police
might have prepared them and obtained only the signature to make out
a case against the appellant. It is his further submission that the
contents of Ex.P.102 and Ex.D.1 are in Kannada language. The
appellant-accused does not know the Kannada language and he knows
only the English and Tamil languages. Even looking to the evidence
of the prosecution witnesses, there is no evidence to show that the
appellant knew the Kannada language. Hence, he submitted that this is
also one of the important circumstances to show that the appellant
never gave such statement as per Ex.P.102 and Ex.D.1. The learned
counsel further submitted that the alleged voluntary statement under
Ex.P.102 and Ex.D.1 is not at all as per the requirements of Section 27
of the Evidence Act and hence, it is not admissible in evidence.
Accordingly, the alleged recovery of the articles under the said
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statement is also not admissible in evidence and it has been wrongly
admitted by the trial court.
8. With regard to the injuries sustained by the appellant-accused,
learned counsel for the appellant-accused submitted that the defence
has already established that the appellant reached his house at 7.00 pm.
on 7.11.2008 and after seeing the dead body of the deceased, he became
panic and when he was coming out of the house, he fell down in front
of the house and sustained injuries to his hand. The learned counsel
submitted that the prosecution has failed to establish with satisfactory
materials that the said injuries have been caused when the deceased was
struggling and that, with her nails, she scratched the hind portion of the
palm of the appellant-accused. With regard to the alleged motive, the
learned counsel submitted that Smt. Anuradha Reddy has been
examined by the prosecution as P.W.25 before the court and her
evidence clearly goes to show that there was no sort of illicit connection
between herself and the appellant-accused. Therefore, it clearly
indicates that the alleged motive is also not proved by the prosecution.
With regard to the CC TV camera footages and the documents
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produced in that connection, they are not proved by the prosecution as
per the procedure laid down under Sections 62, 65(a) and (b) of the
Evidence Act. The learned counsel made submission that even if the
oral evidence of the prosecution witnesses is considered, even then, it
goes to show that there are no satisfactory materials placed by the
prosecution that the appellant-accused left the premises of the IBM at
about 12.55 noon, the time at which the incident alleged to have been
taken place. The learned counsel submitted that when the prosecution
is relying upon the CC TV camera footages, it ought to have produced
all the photographs that were taken for the entire day and further, the
evidence of the prosecution witnesses, in this regard, clearly goes to
show that only the selected photographs were taken at the instance of
the police. Therefore, it indicates that the prosecution has not proved
that the appellant-accused left the IBM premises at the relevant point of
time.
9. Learned counsel for the appellant-accused further contended
that the prosecution has relied upon hair comparison report. In this
connection, he made the submission that in the spot mahazar
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proceedings, which is said to have been conducted by the investigation
machinery, there is no mention about M.O.7-hair, which was said to be
in the palm of the deceased. He further submitted that even looking to
the evidence of the prosecution witnesses and the report submitted,
there are no satisfactory materials to show that the hair found in the
palm of the deceased and the hair of the accused taken during
investigation for comparison, are one and the same. The trial court has
also disbelieved story of the prosecution with regard to the hair
comparison report. The learned counsel submitted that even the
mahazar in respect of the spot and all other recovery mahazars as relied
upon by the prosecution have not been satisfactorily proved with
cogent and worth believable materials.
10. Learned counsel appearing for the appellant-accused has
invited the attention of this Court to the seizure of articles at the spot
and also the alleged information given by the appellant and submitted
that they were not properly packed and no seals were put. The learned
counsel submitted that with regard to the accused having illicit
connection with P.W.25 Smt. Anuradha Reddy, from the date of the
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incident till 14.11.2008, the father of the deceased-P.W.11 has not at all
stated before the police about the same. When P.W.11 was called to
police station on 14.11.2008, as stated by the prosecution, for the
purpose of identifying the gold ornaments of the deceased, then only
the police in collusion with P.W.11 started to improve the case of the
prosecution that the appellant-accused was having illicit connection
with Smt. Anuradha Reddy. The learned counsel lastly made
submission that, since the case of the prosecution rests on the
circumstantial evidence and as there are no direct witnesses to the
alleged incident, the prosecution has to prove each and every aspect, on
which it relies, so as to establish the chain of circumstances without
there being missing link of the any of the circumstances. He submitted
that looking to the prosecution materials, both oral and documentary,
reasonable and serious doubt arises as to the case of the prosecution
and the prosecution has utterly failed to prove any of the circumstances
relied upon by it.. The trial court has not appreciated the materials on
record in a proper perspective and wrongly read the evidence and
wrongly convicted the accused. The judgment and order of conviction
are not in accordance with the materials placed on record and hence,
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they are not sustainable in law. Hence, the learned counsel submitted to
allow the appeal and to set aside the judgment and order of conviction
by acquitting the accused.
11. Per contra, learned Additional SPP appearing for the
respondent State, during the course of the arguments, submitted that
though it is the contention of the appellant-accused that he came to the
house at 7.00 p.m. on 7.11.2008, he has not immediately informed the
police about the incident, and it is neighbour/owner of the accused i.e.,
P.W.12, who informed the police over phone at 8.00 p.m. and in
response to the phone message, immediately, the police rushed to the
spot. Subsequent to that, the appellant-accused gave the information to
the police as per Ex.P.91 and the scribe of Ex.P.91 is one Arjun-C.W.7.
When the appellant has admitted his signature on Ex.P.91 and its
contents, which are written by the friend of the appellant C.W.7-Arjun,
now he cannot contend that the contents of Ex.P.91 are not at all stated
by him and it cannot be accepted. Regarding the death of the deceased
that it is homicidal death, learned Addl. SPP submitted that the
evidence of P.Ws.1, 5, 12, 19 and 27 and also the postmortem report
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clearly show that it is the homicidal death. The learned Addl. S.P.P.
further contended that so far as the motive for the appellant-accused to
commit the murder of the deceased Laksmi, the appellant was having
illicit connection with P.W.25 Anuradha Reddy and the evidence of
P.Ws.25 and 11 and also the call details produced in the case would
clearly establish that there was illicit connection between the appellant
and P.W.25. Except the evidence of P.W.25, 11 and the phone call
details, no other materials have been placed by the prosecution.
However, the trial court has held that motive is not proved
satisfactorily. He submitted that CC TV camera footages and the
photographs under Exs.P.23 to 43 with the oral evidence of P.Ws.7, 10
and 28 make it clear that when the appellant went to office in the
morning on 7.11.2008, he wore the clothes having the navy blue colour,
but in the afternoon on that day, the dress worn out by him was of light
blue colour. The evidence on the side of the prosecution that there was
change in the colour of the dress of the appellant on the same day at the
work place and he was absent from the office for some time, in the
afternoon, would clearly show that he left IBM company and came to
the house and committed the murder of the deceased. Regarding
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contention of the learned counsel for the appellant-accused that from
10.11.2008 till the arrest of the appellant at 11.30 p.m. on 12.11.2008,
the appellant was detained in illegal custody by the police, the learned
Addl. S.P.P. drew the attention of this court to the remand application
dated 13.11.2008 marked as per Ex.P.104 and submitted that the
appellant was not in illegal custody of the police. With regard to the
injuries sustained by the appellant on the palm of his hand, the
appellant, during the course of the trial, took the contention that he
came to his house, which was on the first floor, at 7.00 p.m., on the
date of the incident and after seeing his wife lying dead, he became
panic and when he was coming down towards the ground, he fell down
in front of the house where there was jelly material and in that process,
he sustained the injuries. But, the learned Addl. S.P.P. submitted that
looking to Ex.P.101, the statement of the appellant, accused which was
made before his arrest by the police, he had stated that in the panic
state, he ran down stairs to call for the help and injured himself on his
left hand by scratching hard on the gate. So this itself goes to show that
the appellant has taken the false contention during the course of the
trial that he fell down from the stairs in front of the house and
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sustained injuries. He further submitted that looking to the oral
evidence of P.Ws.12 and 22, who are the panch witnesses to the
mahazar Ex.P.72, under which M.O.1-the iron pipe and other
incriminating articles were seized, the prosecution has established its
case and further, it is supported by the contents of Ex.P.13 the FSL
report wherein it was stated that items at Sl. No.17 one jeans pant, Sl.
No.18 one banian and Sl. No.21 one kerchief, were stained with AB
blood group. So he submitted that all these materials would point out
the involvement of the appellant in committing the murder of the
deceased. The learned Addl. S.P.P. also made the submission that
P.W.26-the investigating officer has clearly stated in his evidence that he
had interrogated the appellant-accused in Kannada, Tamil and English
languages and the appellant answered the same. So this itself clearly
goes to show that the appellant was knowing the Kannada language also
and therefore, no adverse inference can be drawn in so far as the
voluntary statement under Ex.P.102 which was recorded in the
Kannada language. The learned Addl. S.P.P. further made the
submission that the evidence of P.W.7 corroborates the CC TV camera
footages which shows that the appellant remained absent from his
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office during the noon time which is further proved through the
evidence of Ajaj Pasha P.W.28. Regarding the proof of the documents
by way of electronic evidence, he submitted that the decision relied
upon by the learned counsel appearing for the appellant-accused is not
made applicable to this case. The trial court has taken all these aspects
into consideration and rightly came to the conclusion in convicting the
appellant-accused. The chain of circumstances has been established by
the prosecution. No illegality has been committed nor there is any
perverse or capricious view taken by the trial court in coming to such
conclusion and there are no valid grounds for this court to interfere
with the judgment and order of conviction and hence, submitted to
dismiss the appeal.
12. In reply, learned counsel appearing for the appellant-accused
submitted that in support of the statement recorded under Section 313
of Cr.P.C., the appellant has also filed his written statement in answer
to question No.181 and the said statement becomes part of the records
and to be considered as evidence on his side as per section 233(2) of
Cr.P.C. It is also submission of the learned counsel that the documents
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Exs.P.91, 101, 102 and Ex.D.1 are all the documents subsequent to
receiving the information by the police in the station house and after
the police officer visited the spot and consulted many persons at the
spot about the happening of the incident and hence, all the four
statements are hit by Section 162 of the Cr.P.C. and they are also not
admissible in evidence as per Sections 25 and 26 of the Evidence Act.
It is also his submission that even looking to the evidence of the Doctor
P.W.6 and the document at Ex.P.17, the prosecution has not
established that the injuries sustained by the appellant accused are due
to the nail marks. Hence, submitted to allow the appeal and to set aside
the judgment and order of conviction under appeal.
13. We have perused the oral evidence of the parties and the
documents produced before the Trial Court, the judgment and order of
conviction and sentence imposed on the accused by the Trial Court, the
grounds urged in the appeal memorandum, the submissions made by
the learned counsel for the appellant and the learned Government
Advocate during the course of arguments, which are referred above and
also the decisions relied upon by both the sides.
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14. Even according to the prosecution case there are no direct
witnesses to the incident and case of the prosecution rests on the
circumstantial evidence. The circumstances, on which the prosecution
based its case, are as under:
i. The motive - The appellant-accused was having illicit
connection with one lady by name Anuradha Reddy-PW-25
and that was the reason for the appellant to eliminate the
deceased.
ii. The appellant-accused sustained injury to his left hand
at the phalanges portion i.e., on the back portion of the palm,
which he has not explained properly.
iii. The hair found at the palm of the deceased, marked as
per M.O.7, tallied with the hair of the accused taken during
investigation, as per the hairs comparison report.
iv. The appellant-accused was absent in his office for some
period of time in the noon on the date of the incident, which
he has not explained properly.
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v. The appellant-accused gave the voluntary statement
under Section 27 of the Evidence Act and M.O-1 and M.Os-
16 to 25 were recovered on the voluntary information given by
the accused.
15. Let us examine the material placed on record for the proof
of said circumstances.
16. Regarding the first circumstance i.e., motive, the material
witnesses are PW-25/Smt.Anuradha Reddy and PW-11, the father of
the deceased, and the call details, which are said to be between the
witness PW-25 and the accused. Perusing the evidence of PW-25, she
has deposed in her examination in chief that during the period 2000 to
2005, she did her bachelor degree in Architecture from Bangalore
University and she was a Structural Consultant consulting various
persons in undertaking the work of constructions, besides she was using
to provide the plans for undertaking the work of construction besides
providing the estimates. In the year 2007, she did pay her visit to
Murugeshpalya for inspecting the work of construction. She has further
deposed that she knows accused Manoj Kumar, who was introduced to
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her through Madhukar, one of her clients. She is having mobile phone
bearing No.9900194840 and she knows the mobile number of accused,
which is 9880178969. Accused Manoj Kumar was married on
28.08.2008 and she was invited to the said marriage, however, she was
not able to attend his marriage. From 2007 to till the date of marriage
of accused Manoj Kumar, they were using to talk over the mobile
phones. On 06.03.2006, she married Naveen Chandra and in the
wedlock, she is having her female child, which born on 25.11.2008.
In the cross-examination by the advocate for the accused, PW-25
has deposed as true that the accused sought her suggestion for
construction of his house at Chennai. She admitted as true that she was
not having any personal relationship with the accused Manoj Kumar
and accused Manoj Kumar was aware that she was married. Accused
used to talk to her over the mobile phone regarding his construction of
the house and had not talked any other matter over the mobile phone.
She admitted as true that, herself and accused were not discussed about
their family problems and she was not having any problem, as herself
and her husband were cordial. She admitted as true that till today, they
are cordial and they are not having any marital problem or any other
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problem of her family. Herself and accused are not having any extra
marital relationship.
17. Looking to the evidence of this witness i.e., PW-25, she has
clearly stated that with regard to the construction work of the house of
the accused, they used to talk over the mobile phone and not for any
other purpose. She has also stated on oath that there was no sort of any
extra marital relationship between herself and the appellant-accused. So
this evidence of PW-25 remains as it is, as the prosecution has not
examined her in the re-examination at least to make a suggestion that,
the appellant-accused was having extra marital relationship with her.
18. PW-11/N.Rangan, who is the father of the deceased, has
deposed in the examination in chief that after the marriage, his daughter
Lakshmi told him that her marital life was not happy. His daughter
used to phone to him with the words that accused used to talk with
some lady even till the late night and he has taken the said fact to the
knowledge of the parents of the accused and even he has advised the
accused. He further deposed that deceased Lakshmi told him that
accused was having the illegal connection with CW-21/Anuradha
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Reddy. His daughter also told him that while the accused was talking
with CW-21/Anuradha Reddy, she had enquired the accused, who told
her that said Anuradha Reddy was married; however, there was no good
relation between herself and her husband, therefore, he was talking with
Anuradha Reddy to pacify the matter. She was also told that, if it was
so, why the accused was talking with the said lady for late night hours,
for which the accused was not having any answer. It is also his
evidence that on 28.10.2008 his daughter Lakshmi was not feeling well,
she had fever. She stayed in his house till 3.11.2008. She availed leave
from 28.10.2008 to 7.11.2008. On the day of marriage i.e., on
28.08.2008, the accused received 7 to 8 calls from Anuradha Reddy. He
came to know the said fact when he had gone through the call details of
the CW-21 and the accused.
In the cross-examination by the advocate for the accused, PW-11
has deposed and admitted as true that on 08.11.2008 while the inquest
was conducted by the concerned Police his statement was recorded and
he stated before the Police that the accused and the deceased Lakshmi
were cordial. He admitted as true that he did not hand over the
marriage photo of accused with Lakshmi to the concerned Police and
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he has also not stated before the Police that his daughter Lakshmi told
him that her marital life was not good. He also admitted as true that he
is deposing the said fact for the first time before the Court. He
admitted as true that he has not stated before the Police that his
daughter Lakshmi told him that martial life was not happy and she used
to phone to him with the words that the accused used to talk with some
lady even till the late night. He admitted as true that he has not stated
before the Police that he has taken the said fact to the knowledge of the
parents of the accused and even he advised the accused. He also
admitted as true that he has not stated before the Police that deceased
Lakshmi had told him that the accused was having the illegal
connection with CW-21/Anuradha Reddy. He admitted as true that he
has not stated before the Police that his deceased daughter Lakshmi
also told him that while the accused was talking with CW-21/Anuradha
Reddy, she had enquired the accused, who told her that said Anuradha
Reddy was married; however, there was no good relation between
herself and her husband, therefore, he was talking with Anuradha
Reddy to pacify the matter. He admitted as true that he had not come
to Bangalore to discuss with the accused for correcting him regarding
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his relationship with Anuradha Reddy. He admitted as true that as a
responsible father it was his duty to immediately come to Bangalore and
discuss with the accused for correcting him regarding his relationship
with Anuradha Reddy, if it was the fact. He admitted as true that when
he received the death message of Lakshmi through the father of the
accused, he had not told him regarding the relationship of the accused
with Anuradha Reddy. He also admitted as true that till the Police
called him to the Police Station regarding identification of the
ornaments, he has not suspected the hands of the accused in the
murder of his daughter Lakshmi on account of illicit relationship of the
accused with Anuradha Reddy.
19. Looking to the evidence of P.W-11, the father of the
deceased, it clearly shows that, though it is his contention that during
her lifetime, the deceased Lakshmi told him about the illicit relationship
between the accused and Anuradha Reddy, but he has admitted that he
has not stated about all these facts in his statement before the Police
during investigation. So, there is omission with regard to the material
particulars. Not only that, he has admitted that, if it is a fact, as a
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responsible father, he ought to have gone to the house of the accused
to correct him and he has admitted that he has not done such exercise.
Another important factor is that he has deposed in his evidence that till
14.11.2008 on which day, he was called to the Police Station to identify
the gold ornaments, he was not having any sort of suspicion against the
accused, because of such illicit connection of the accused with
Anuradha Reddy.
20. Therefore, looking to the evidence placed on record by the
prosecution, in this connection, there may be call details of deceased
Lakshmi as per Ex.P.108, call details of the accused as per Ex.P.110 and
call details of Smt.Anuradha Reddy with her mobile phone No.
9900194840, but only on that basis it cannot be inferred that there was
such illicit connection between them when PW-25 has specifically stated
that she was talking with the accused over the mobile phone about the
construction work and deposed on oath that she was not having any
extra marital relationship with the accused.
21. We have also perused the decision relied upon by the learned
counsel for the appellant-accused in case of RAMGOPAL VS.
27
STATE OF MAHARASHTRA reported in AIR 1972 SC 656
wherein Their Lordships have laid down the proposition that “if in
criminal case motive, as a circumstance, is put forward, it must be fully
established like any other incriminating circumstances.” In the said
reported decision, at the end of para No.16, Their Lordships have
observed as under:
“It is not possible to hold having regard to the probabilities
of the case that the motive alleged by the prosecution is
fully established”.
In another decision relied upon by the learned counsel for the
appellant-accused in case of TANVIBEN PANKAJKUMAR
DIVETIA VS. STATE OF GUJARAT reported in 1997 SCC (Cri)
1004 at Synopsis No.F, Their Lordships laid down the proposition as
under:
“Criminal trial – Circumstantial evidence – Motive - If
evidences of murder are clinching and reliable conviction
can be based even if the motive is not established –
However, in a case of circumstantial evidence, motive
assumes greater importance than in the case where direct
evidences are available”
28
22. In this case, looking to the materials placed on record, about
which reference is already made in detail, we are of the clear opinion
that prosecution has failed to establish the alleged motive as against the
appellant for committing the said offence. If the case of the
prosecution is based on direct evidence, motive may not be significant.
But in a case which rests on the circumstantial evidence, motive is more
significant and the prosecution has to establish the motive relied upon
by it as one of the circumstances.
23. Now let us consider the second circumstance which the
prosecution relies upon i.e., the accused sustained injury to the back
portion of the palm on the phalanges. Let us examine the evidence
placed on record both oral and documentary in this regard.
24. The accused during the course of cross examination of the
prosecution witnesses took the defence that, when he came from the
office to the house at 7.00 p.m., he noticed that his wife Lakshmi was
lying dead. So he became panic and immediately, he came out of the
house and climbed down the steps. When he came to the ground floor
29
in front of the house, he fell down where the jelly and the other
constructions materials were stored and in that process, he sustained
such injury.
25. The Doctor -P.W.6 Bhimappa Havanur is the person who
examined the appellant-accused in this case. In his evidence in the
examination in chief, P.W.6 has deposed that he received requisition
from police inspector from Airport police station. On examination of
the said Manoj Kumar, he found injuries Nos.1 to 5 which are
mentioned in his deposition. He further deposed that the above injuries
may be caused if the finger nail of the lady came into contact. When
the Doctor was asked through a letter as to how the above injuries may
be caused, he has answered the said letter that such injuries may be
caused while coming with the contact of hard surface, mud surface
being rubbed and he has issued the wound certificate as per Ex.P.15.
In the cross examination by the advocate for the accused, P.W.6
deposed and admitted as true that he has stated that injury was caused
to the accused on the left hand dorsum aspect on 7.11.2008 around 7.30
p.m. at his residence. He has also admitted as true that he has not found
30
the nail marks on the person of the accused during his examination and
that, most probable cause of the above injury would be coming with
contact of hard surface. He also admitted as true that he has no base to
say that the above injuries may be caused by the finger nails.
26. We have perused the document Ex.P.15-injury certificate
wherein the doctor P.W.6 has mentioned on page No.4 “the age of the
wound is 4 to 5 days. They may be caused by a fall on the hard surface,
mud surface or being rubbed on hard surface”. So the Doctor has not
mentioned that the said injury, which he has mentioned in Ex.P.15, may
be caused because of the scratch by nail marks. Even during the course
of cross examination, P.W.6 has admitted as true that in Ex.P.15, he has
not mentioned that the above injuries may be caused if the finger nails
of the lady come into contact. When that is so, what made the doctor
P.W.6 to depose before the court, during the course of examination, for
the first time, that the said injuries may be caused by nail marks. When
he was specifically asked as to how the injuries might have been caused
and the time when they have been caused prior to examination, he
could have very well stated that one of the probable causes would be by
31
scratch from nail marks. It is no doubt true that in the document
Ex.P.101, which is said to be in the hand writing of the accused himself,
it is mentioned that in the panic state, he ran down stairs to call for help
and he injured himself on his left hand by scratching hard on the gate.
It is true that looking to the statement made in Ex.P.101 for sustaining
such injury and the defence put forth during the course of examination
are not tallying with each other. It can also be said that the accused has
not established as to how he sustained the said injury. But that itself will
not prove the prosecution case that the injuries on the dorsum aspect of
the left hand of the accused are by scratch of the nail marks of the lady.
The prosecution has to establish its case by adducing acceptable and
satisfactory materials in this regard.
27. Looking to the inquest mahazar proceedings which was
conducted on the dead body of the deceased as per Ex.P.21, there is no
mention that the nails of the deceased were having the skin particles. In
the absence of the said particles, only because the accused has failed to
establish in his defence as to how he sustained injury, it cannot be
assumed that the prosecution has proved its case so far as the injury on
32
the dorsum aspect of the left hand of the accused that it is because of
the scratches of the nail marks of a lady. On the contrary, looking to
Ex.P.15 injury certificate, there is no such mention that the injuries are
sustained by nail marks of a lady, but the possibility is mentioned by the
doctor that they may be sustained by fall on the hard surface, mud
surface or being rubbed on the hard surface. The accused has offered
some explanation about the said injuries and we have to see
preponderance of probabilities so far his explanation is concerned and
he need not prove the said defence beyond all reasonable doubts just
like the prosecution is supposed to prove its case beyond reasonable
doubt. Even in the statement under Section 313 of Cr.P.C., for
question No.88 i.e., that the above injuries may be caused on account of
the contact of the finger nails of the lady and the doctor issued
certificate as per Ex.P.15 and his signature as per Ex.P.15(a), the
accused answered as false. So this shows that the appellant-accused
denied the reason given by P.W.6 that the said injuries may be on
account of the contact of the finger nails of the lady.
33
28. The third circumstance which the prosecution has relied on
is that the hair found at the palm of the deceased was tallying with the
hair of the appellant-accused taken during investigation. In this regard,
the prosecution has relied upon the document hair comparison report,
the oral evidence of P.Ws.3, 5, 26, and M.O.7.
29. P.W.3 – Malathi. D, Scientific Officer of the Forensic
Science Laboratory, has submitted the report as per Ex.P.14. We have
perused the said report, which is with regard to the examination of
crime scene, wherein it is mentioned that a female body aged about 27
years measuring about 5’.2’’ inches was found lying on the floor of the
kitchen in supine position with her head lying towards south west
direction. The hands of the deceased were stretched upward and left
leg was bent inward, right leg was stretched outward. It is also
mentioned in the said report that the palm portion of both the hands
was stained with blood. The lower portion of the thumb region of both
hands were swollen and decolurised into a pale green. A pool of dried
blood was also present beneath her head. A small hair was found
sticking to the right hand of the deceased. Few small hairs were also
34
found scattered beside her body. In the said report it is mentioned that
the following items were collected and handed over to the investigating
officer for further action. A blood stained hair clip found beside the
body, hair about 15-20 numbers found on the floor and a single hair
found on the right hand of the deceased. In Sl. Nos.3 to 8 in the said
report, there is mention about other items.
30. We have also perused the oral evidence of P.W.3 Malathi, In-
charge Scientific Officer of FSL, Bengaluru. In her examination in
chief, she deposed in detail that she received 24 articles and she has
subjected the said 24 articles to Benjudine test, takayama test, electro
foretasted test for blood grouping absorption and elution test. She has
issued a report regarding examination of the said articles marked as per
Ex.P.13 and her signature is Ex.P.13(a). In para No.6 of her deposition,
she has deposed that hairs in item Nos.2(3), 2(6), 2(10), 3, 24(1), 24(2)
and 24(6) display similar in morphological and microscopic
characteristics. They were cut hairs. Accordingly, she furnished her
report regarding the hair which is marked as per Ex.P.14 and her
signature is Ex.P.14(a). The Assistant Director has counter signed the
35
same as per Ex.P.14(b). The Director also put his signature as per
Ex.P.14(c). She has seen article No.2 which is in cloth pocket duly
sealed by herself (which was opened before the trial court). She has
taken the slides for the examination and kept the hair in the slides. The
hair in the slides together marked as M.O.6. She has seen article No.3
which is in cloth pocket duly sealed by herself and it is noted in her
deposition that it was opened in her presence before the Trial Court
and found single hair. The said hair was taken for the examination and
slide was used for the examination and hair and the slide together
marked as per M.O.7. She further deposed that based on the colour
shaft form shaft thickness, external characters microscopic characters
like cuticle, colour, medulla, cortex, madullria diameter, shaft diameter,
madullria index. She has arrived into the conclusion that article Nos.
2(3), 2(6), 2(10), 3, 24(1), 24(2) and 24(6) are similar in morphologic and
microscopic characteristics. The articles that she has examined are
M.Os.6, 7 and 22. During the examination, she has prepared the note.
In the cross examination by learned counsel for the accused,
P.W.3 has deposed and admitted as true that now there is no seal of the
police on the articles which she has examined. Now the seal of the
36
police are not found on the articles and therefore, she could not
compare such seal with the seals found in the sample chip. She has
admitted as true that there is a direction to each and every scientific
officer to preserve seal of the police on the particular article and she has
not put any identification marks on the articles which she has examined.
She has further admitted as true that in Exs.P.13 and 14, she has not
assigned reasons for her opinion. She has further deposed and
admitted that in Ex.P.14, she has not mentioned the date of
examination of hairs and she has not mentioned where the articles were
kept from the date of receipt till the date of examination. She has
admitted as true that the said period was about eight months and in
Ex.P.14, she has not mentioned the method of examination for her
opinion. She has further admitted as true that during the examination,
class characteristics of the hairs only could be achieved and no
individual characteristics could be achieved. She further admitted as
true that for the examination of the hairs, she has to use the sample
hairs and admitted as true that item No.10 was the sample hair.
Perhaps, it was not fit for the examination like comparison etc. Based
on the scientific method, the sample hairs were required to be collected
37
and further admitted that for the comparison of the particular hair of
the particular area, the hair from the particular area is required to be
taken. She admitted as true that in Ex.P.14, she has not mentioned
morphological characteristics regarding the items shown in the report.
She has further deposed that she cannot say whether the hairs were
naturally fallen or they were plucked. She admitted as true that if there
is natural fall of the hairs, tissue could not be attached. She admitted as
true that if the hairs are taken for sample, the tissue could be attached.
She admitted as true that she has not conducted chemical examination
of the roots of the hairs and further admitted as true that, if the
chemical examination is conducted, one could ascertain that tissue
attached to the hairs. She has admitted as true that three morphological
characters are cuticle, cortex and modulla and that natural falling hairs
in the house of its in mates have no significance for the identification.
The hairs may fall naturally. The hairs which have plucked by using
some force have some significance. She admitted as true that item
Nos.2(3), 2(6), 2(10) and 3 could be the hairs of natural fall. Since the
sample hair like item No.10 is not fit for the examination, her
examination in connection with item No.2(3), 2(6), 2(10) and 3 remain
38
inconclusive. She admitted as true that hairs in item No.2(1), 2(2), 2(4),
2(5), 2(7), 2(8), 2(9) are dissimilar each other in morphological character
and admitted as true that in human hairs, special morphological
character of modulla is not continuous, fragmented and broken. She
admitted as true that in Ex.P.14, she has not mentioned morphological
character of item No.2(3), 2(6) and 2(10), 3, 24(1), 24(2) and 24(6). She
admitted as true that edges may be traced in the microscopic
examination. But, she has not undertaken the edges comparison. If it is
put to her that putting up the cuticle of the hair subjecting for chemical
decomposition, resistance test is the important test and she would like
to say that it is the one of the tests. She admitted as true that she has
not undertaken the above test for identification of the hairs and it is the
only test in ascertaining the individual identity of the hairs. She
admitted as true that in her report, she has not affixed individual
identity of the hairs like article Nos.2(3), 2(6) and 2(10) and item No.3
with that of item No.24(1), 24(2) and 24(6). She further admitted as
true that she has not conducted electro phorteic and electro focusing
test. On conducting the above test, one could identify the proteins and
enzymes in the roots of the hair. She admitted that the above test was
39
necessary for individual identification of the hairs. She also admitted as
true that since she has not conducted any test of individual identity of
the hairs, she did not conduct electro phorteic and electro focusing
method.
31. P.W.5 B.C. Ravindra, Scientific Officer from FSL,
Bengaluru, in his examination in chief, has deposed that he has
undergone the training in examining the scene of occurrence and the
collection of physical evidence from such scene. He has given in detail
about of the scene of occurrence when he visited the spot and also
deposed that a small hair was found sticking on the right hand of the
deceased. He further deposed that he also noticed that the hairs were
scattered around the body.
In the cross examination by the learned counsel appearing for the
accused, P.W.5 deposed and admitted as true that he has not taken the
independent panch witnesses to the spot. While he was inspecting the
spot, the investigating officer has not simultaneously taken the work of
inspection. He admitted as true that he has not handed over his
investigation report to the investigating officer in the spot and further
40
admitted as true that he submitted his report as per Ex.P.45 on
07.11.2008 which he had prepared in his office. He further admitted as
true that he has not sealed and packed the articles when he has handed
over to the investigating officer. He admitted as true that there is
possibility of falling of hairs of the inmates on the floor of the house.
He has not taken the photographs of palm where the hair was found.
He further admitted as true that Ex.P.56 is the photograph of the right
hand palm wherein the hair could not be found. However, he
volunteers that it cannot be possible to take the photographs of the hair
in the palm. On seeing Ex.P.56, he deposed that he could not trace the
hair, but he denied the suggestion that no single hair was found on the
right hand palm of the deceased.
32. P.W.26 is the investigating officer. During the course of
cross examination, he denied the suggestion that he has not
incorporated in Ex.P.89-spot mahazar regarding preservation of the hair
that was collected from the spot. He denied that he has not given
separate numbers to each of the articles that were seized from the spot.
He has not given separate number to the hair that was found in the
41
palm of the deceased. However, he has given the same number to the
hair that was found in the palm of the deceased and the hair that was
collected from the spot.
33. We have also perused the document Ex.P.68 regarding hair
examination so also Ex.P.89-spot mahazar. Perusing the spot mahazar
and on page No.2 in the last paragraph, there is a reference made about
the materials found and at Sl.No.1, it is mentioned as one hair clip
which was blood stained, and at Sl. No.2 - hairs found on the floor and
also in the hand of the dead body. Perusing the said sport mahazar, no
specific mention was made that single hair was found sticking to the
right hand of the deceased. We have also perused the photograph of
the right hand palm marked as per Ex.P.56, wherein, the said hair is also
not seen. Looking to the oral evidence of P.W.3-Dr. Malathi, who has
conducted the examination, with regard to the hairs, herself admitted
that firstly the articles were not properly packed and sealed. She has
also admitted that in the report she has given in this regard, she has not
mentioned the reasons for the conclusion she arrived at. It is also her
evidence that she has not followed the proper method and procedure
42
which was suggested during the course of cross examination by the
learned counsel appearing for the appellant. It is also her admission that
her examination with regard to hair comparison is inconclusive.
Therefore, perusing the entire materials on records, both oral and
documentary about which detailed reference is made, we are of the clear
opinion that the prosecution has utterly failed to prove the
circumstance that single hair was found on the right hand palm of the
deceased and the comparison of that hair with the hairs of the accused
collected during investigation were tallying with each other and they are
of the same person..
34. The fourth circumstance relied upon by the prosecution to
prove its case against the appellant-accused is that the accused who was
working in IBM company remained absent from the office during noon
time and the CC TV camera footages would show his absence in the
office, which is one of the important circumstances to show the
involvement of the appellant-accused in committing the alleged offence.
43
35. Let us examine the materials placed on record during the
course of the trial such as the evidence of P.W.7 Gangadhar Hegde,
P.W.10 Umamaheswaran, P.W.19 P.M. Babu and P.W.28 Ajaj Pasha
and also the documents produced at Exs.P.22 to P.43.
36. Perusing the evidence of P.W.7 Gangadhar Hegde, he has
deposed in his examination in chief that from May 2001 to March 2011,
he was working as a project manager in IBM, EGL, Koramangala
Bengaluru. He knows the accused who was working as Sibbal
consultant in Mobilink project form 15.9.2008. The office was housed
in 5th floor, on 7.11.2008, he was on duty. It was about 10.30 a.m., he
found the accused in his desk and at about 1.30 p.m., while he was
going to lunch, he had not noticed the accused in his desk. It was about
2.00 p.m., he returned to his desk after usual lunch. However, he had
not found presence of the accused in his desk. Even during 3.30 p.m.,
he was leaving his desk for having tea, he found that the accused was
not in his desk. It was about 5.30 or 6.00 p.m., while he was about to
leave the office, he found the accused in his desk. He further deposed
that on 28.7.2009, on enquiry by the police, he gave his statement and
44
also issued the e-mail copy regarding working of the accused in his
section, which is marked as Ex.P.16 and his signature is P.16(a).
In his cross examination, P.W. 7 deposed and admitted as true
that he had not produced any documents before the police regarding
working of the accused in IBM on 7.11.2008. He admitted as true that
for the software engineers, the desk was used to be provided along with
the laptop and drawer to the desk with the key of the drawer and the
laptop were used to be connected to the IBM server and each engineer
was having his separate password. He admitted as true that he was not
using to mark the attendance of the employee working under his unit
and he was also not noting the movements of such engineers. He
further admitted as true that on 7.11.2008, the accused started his work
on his laptop connected with the IBM server and the project work that
was allotted to the accused was the mobilink of Italy. The accused was
sent to Italy and after return, the accused continued his work at IBM
office, Benglauru. He had not checked and verified as to how many e-
mails were sent by the accused to Italy in connection with his work on
7.11.2008. He has further deposed that he did not know whether the
accused sent e-mails to Italy on 7.11.2008 at about 2.30 p.m., 3.00 p.m.,
45
3.30 p.m. and 4.00 p.m. He admitted as true that the accused had
returned his laptop to the IBM and on going through the laptop, the
work of the accused on 7.11.2008 would be ascertained. The entire
work of the accused was on the laptop and he was not having any work
in writing. He further admitted as true that he had not collected the
work of the accused on 7.11.2008 and had not furnished the details of
work to the police and also not noted in writing the movements of the
accused on 7.11.2008. He admitted as true that food court and canteen
are within the premises of IBM. He denied the suggestion that on
7.11.2008, he did not notice the absence of the accused in the office at
about 2.00 pm., 3.30 pm. and 5.30 pm. He is not having any
documents regarding accused’s absence or presence in the office, but it
is only his observation in the office. He admitted as true that he had
not stated before the police that on 7.11.2008 at about 1.30 p.m., 2.00
pm., 2.30 p.m. and 3.30 pm., he had not noticed the accused in the
office. He further admitted as true that he was not having the special
reasons for noting the absence of the accused in the office on that day.
46
37. P.W.10 Umamaheswara, Security Manager of IBM,
Bengaluru, deposed in his evidence in the examination in chief that he
was in charge of his duty in ‘D’ block, the main door of which was
facing towards East. There is access control system for incoming and
outgoing system. There is a CC TV camera in the main gate which is
recording photos of each and every person who would enter the main
gate and who would exit through the said gate. The photo was also
using to record time regarding the entry and exit of the particular
person. There are eight floors in the said building. Each floor is having
the access control system fixed with the CC TV Cameras. All the main
doors are fixed with such CC TV cameras. He was using to monitor
the above cameras. He knows the accused who was working as
software engineer in the EGL ‘D’ block IBM for about four years from
2004 to 2009. The accused was allotted with ID number. On
8.11.2008 at about 7.30 a.m., while he was in his office, his Manager
called to his mobile phone referring the flashing of the article in the
news papers regarding the murder of the Lakshmirangan, the wife of
the accused. Immediately, he went to the Bowring hospital, where he
saw the dead body of Lakshmirangan. P.W.10 has further deposed that
47
on the same day, perhaps on the evening hours, the PSI Anand came to
his office and asked him to furnish the particulars regarding the access
control CC TV and also enquired him whether the friends of the
accused entered the main gate. The said PSI has given a letter to the
Asst. Security Manger, Azij Pasha which was sent to the Security
Manager Sundaresh and the same was approved for furnishing the
details and therefore, himself and Azij Pasha furnished the details. He
further deposed that they provided CC TV pictures, contact details of
the friends of the accused and he had recorded the CD on the basis of
which the photo was taken and he could produce the CD. He himself
has taken the photos on the basis of the recording in the CC TV which
he could identify. He is having the original photos. He himself has
taken the copy of the access control system in three sheets. While
perusing the documents, he found that it is the copy taken from the
system which he can identify and it is marked as Ex.P.22.
In the further examination in chief, P.W.10 deposed that he had
produced CD of the CC TV recorded on 7.11.2008 in which it had
recorded the date and time of entry of the accused and his exit. The CD
is produced as per M.O.26. He has taken 21 photos which he had
48
produced before the police inspector (for admitting these photographs
in evidence and marking, the defence counsel raised objection but
however, the Trial Court over ruled the objection stating that they are
original taken on the system, as such the objection is over ruled and the
said photographs were marked) as per Ex.P.23 to 43. He is seeing the
covering letter Ex.P.44 and it bears the signature of Ajaz Pasha as per
Ex.P.44(a). The relevant portions in Ex.P.22 are marked as per P.22(a)
to 22 (j). He is not remembering to say when the accused had entered
in the office on 7.11.2008, on that day at about 9.49 a.m., the accused
came inside the IBM, EGL (D) block and went outside at about 1.05
p.m. Again he came inside the IBM, EGL D Block at about 4.17 p.m.
and he went outside at about 6.20 p.m. In the deposition of this
witness, it is also stated that M.O.26- CD was played before the Court
and the witness deposed that the accused could be found in the photos
as per Exs.P.23 to 43 and further deposed that while the accused
entered the gate of the office in the morning hours, he worn different
clothes, while he returned to the office at about 4.17 p.m. He further
deposed that in Ex.P.22, first comes month, next comes date, next
comes year. According to Ex.P.22, the accused attended his duty at
49
about 9.45 a.m. and he was in the office till 12.55 p.m. and he went
outside, returned back to the office at about 4.19 p.m. and he was in the
office up to 6.20 p.m. In Ex.P.22, the name of the accused is
mentioned. On looking to the photos, he noticed that the accused
entered the office in the morning by wearing navy blue pant and it is
seen at Ex.P.38, the photo in which one could see wearing of the navy
blue pant by the accused. In the evening, while he entered the office,
he was wearing sky blue pant.
In the cross examination by learned counsel appearing for the
appellant-accused, P.W.10 deposed that he admitted as true that he
does not know personally regarding the entry and exit of the particular
employee through the premises on 7.11.2008. Perhaps, in the photos at
Exs.P.23 to 43, he is not appearing. He admitted as true that prior to
8.11.2008, he does not know the accused and further admitted that CC
TV camera was connected to hard disc of the system and ‘welcome to
IBM’ was the password. The CC TV camera was working for 24 hours
and the data was availed for 30 days. He further admitted as true that
the hard disc was not preserved and he does not know as to who was in
charge of the main server on 7.11.2008. He admitted that he has not
50
made the endorsement in the register regarding its verification, perhaps,
its working on 7.11.2008. He has not produced CD as per M.O.26 and
the photographs as per Ex.P.23 to 43. He admitted as true that
continuous image whatever recorded in the CC TV camera were not
taken and he has not edited the main server. He deposed and admitted
as true that on Exs.P.23 to 43 and on the CD as per M.O.26, it has not
been noted as to who has edited the same. He admitted as true that on
the photographs as per Ex.P-23 to P-43 and on C.D as per M.O.26,
there is no certificate regarding who has prepared; M.O.26 is re-writable
C.D. At the time of preparing Ex.P-23 to P-43 and C.D. as per MO.26,
the police were present. CW 29/Ajaj Pasha was operating the system
for Exs.P-23 to P-43 and C.D as per M.O.26. He admitted that he does
not know where the image was touched and retouched; however, he
denied the suggestion that in the system while touching the image the
colour may be given and it may be turned in any other image. He
admitted as true that the control access system would disclose the entry
of the person and it would not disclose the exit of the person. He has
not put his signature on Ex.P-22. He admitted as true that photographs
of the accused was not taken regarding his going out of IBM Campus.
51
In the photographs as per Ex.P-23 to P-43, the parking lot could not be
seen. The parking is in the ground floor perhaps abutting to the
building. He admitted as true that Ex.P-23 to P-43 are not showing
that the accused has reached the parking lot, he took his motor bike and
has left the place. The employees were having the facility to enter the
cafeteria and food pyramid. He admitted as true that from the exit, one
can reach cafeteria and food pyramid of the ground floor and he was
not personally monitoring the entry and exit of the accused. He has not
seen the entry and exit of the accused on 07.11.2008. The photograph
of exit point was not taken. He has seen the copy of the CAS recording
as per Ex.P-22, where the timings as per 11.07.20 and 11.41.28,
11.42.46 are mentioned. He admitted that the photographs of the
above timings have not taken. Since the above timings are pertaining to
the other building therefore, the photographs of the above timings have
not taken. He admitted as true that complete photographs of that day
has not been produced and he has not seen the accused on that day
perhaps he was not having personal knowledge of his wearing of the
dress.
52
38. P.W.28 Ajaj Pasha in his examination in chief, has deposed
that from 2002-2009, he was working as Assistant Manager, Security
Operations, IBM Global Service India Private Ltd. EGL., Bengaluru.
In his further evidence, he deposed in detail about fixing of the CC TV
cameras in the blocks and about the method of the employees swiping
the card by getting the entry into the blocks. He has also spoken about
the document Ex.P.22 the details of entry and exit of appellant-accused
Manoj Kumar.
In the cross examination, P.W.28 deposed and admitted as true
that earlier to 8.11.2008, he had not seen the accused Manoj Kumar and
he is seeing the accused for the first time before the court. He deposed
that there are four blocks in the IBM building in question, namely A, B,
C, D blocks. Food courts are provided within the campus of the said
building. One has to exit the block for paying his visit to the food court
and the above four blocks though are within the single compound and
they are in the different places. Each block is fixed with the CC TV
camera with each separate server. He admitted as true that the register
is maintained in the control room to record the name and time of the
person who was monitoring the server and the monitor, and the said
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monitor has to record in the register regarding condition of the CC TV,
perhaps its working if it is out of work. The said fact would also
required to be mentioned in the said register. He has deposed that he
cannot say the name of the person who was monitoring the CC TV in
the concerned blocks on 7.11.2008. But he has admitted that without
going through the register, he cannot say whether the CC TV was
working on 7.11.2008 and he has not collected the data in connection
with A, B, C and D blocks regarding entry and exit of the accused. He
admitted as true that the engineer working in the D block would pay his
visit to A, B, C blocks and he was not having the idea as to in what
project the accused Manoj Kumar was working on 7.11.2008 and for his
works, perhaps, to see his superior, the accused Manoj Kumar was
required to pay his visit to A, B, C blocks. He admitted that if a
particular person exit D Block and entered the food court, it could not
be recorded. He admitted as true that none of the photos in Exs.P.23
to P.43 would show that the accused did pay his visit to the parking lot,
did take his motor cycle to quit the building and campus and the above
fact was not recorded in the CC TV camera. He admitted as true that
photos as per Exs.P.23 to P.43 did not record the continued events and
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the complete photos in connection with the accused on 7.11.2008 was
not taken from the CC TV system. He further admitted as true that
some selected movements of the accused on 7.11.2008 were taken as
per the request of the police and the hard disk of the system where
photos as per Exs.P.23 to P.43 were recorded was not provided to the
police. The CD as per M.O. 26 was not edited. But he denied the
suggestion that only few movements of the accused that was insisted by
the police were recorded in the CD as per M.O.26. He again admitted
as true that the entire movements of the accused on 7.11.2008 were not
recorded in the said CD. He admitted as true that he had not attested
on M.O.26 and Exs.P.23 to P.43 and not certified that he himself had
taken the copies from the system. On Ex.P.22-control access, he had
not certified that he himself had generated the copies from the system.
He admitted as true that on Exs.P.22 to P.43 and on M.O.26, there are
no IBM marks. He admitted as true that out of the photos as per
Exs.P.23 to P.43, none of the photos would show that the accused did
swipe his card at the time of exit and in Ex.P.22 control access system
report, the exit point is not stated. He admitted as true that after the
entry of each point, there was a lift lobby and on seeing the photo as
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per Ex.P.22, one could see the entrance. He has seen the photos as per
Ex.P.27 where one could see lift lobby. He admitted as true that the
time recorded in Ex.P.28 and Ex.P.27 is different. The time recorded
in Ex.P.27 is less than the time recorded in Ex.P.28. He admitted as
true that there is difference of time while recording the photo in the
entrance and while recording the photo in the lift lobby. He admitted
as true that in the entry and exit, the photos were used to be recorded
according to the timings set in the camera. In the photos as per
Exs.P.23 to P.43, different timings were recorded and he had not
enquired regarding different recording of time in the different places.
He does not know whether Rugey cock system was used to check the
timings recorded in each camera. He admitted as true that he has not
used such system in ascertaining different timings recorded in different
places. There was no such software in his company. Therefore, he did
not use such software. If it is put to him that person could not be
identified in the photos as per Exs.P.23 to P.43, he would like to say
that to some extent, the person could be identified.
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39. The learned Addl. SPP appearing for the respondent during
the course of the arguments submitted that the electronic records
produced in the case by the prosecution as per Ex.P.22 and Exs.P.23 to
43 which are taken out from the CC TV, were rightly admitted and
relied upon by the trial court. He made the submission that even if there
is no certification to the said documents by the person who has
generated those documents, even then, by way of secondary evidence,
the prosecution is at liberty to give its evidence as per Sections 63 and
65 of the Evidence Act. Therefore, only because of non issuance of
certificate to the documents at Ex.P.22 and Exs.P.23 to 43, they cannot
be rejected out rightly and the court has to look into those materials in
coming to right conclusion in the matter. In support of his contention,
the learned Addl. SPP has relied upon the decision in case of STATE
(N.C.T. OF DELHI) VS. NAVJOT SANDHU reported in AIR
2005 SC 3820. It is also his submission that if there is any defect by
the investigating officer in getting the compliance of the requirements
of law, the accused cannot get the benefit of acquittal on that ground.
Hence, he submitted that the trial court after considering all these
aspects convicted the appellant-accused. In this regard, the learned
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Addl. SPP has relied upon the decision of the Hon’ble Supreme Court
in case of HEM RAJ S/O MOTI RAM VS. STATE OF
HARYANA reported in (2014)1 SCC (Crl.) 820. However, the
learned counsel appearing for the appellant-accused has also relied upon
the decision of the Hon’ble Supreme Court in case of ANVAR P V
VS P K BASHEER AND OTHERS reported in 2014 AIR SCW
5695 on the same point. It is his contention that mere production of
the documents is not sufficient and its contents are to be proved by
giving the acceptable and satisfactory evidence before the Court. So it
is his contention that the documents produced by the prosecution
under Ex.P.22, Exs.P.23 to 43 and M.O.26-CD were not at all proved
except getting them marked during the trial of the case. In this regard,
he relied upon the decisions in case of MALAY KUMAR
GANGULY VS. SUKUMAR MUKHERJEE AND OTHERS
reported in 2010 AIR SCW 769 and in case of NARBADA DEVI
GUPTA VS. BIRENDRA KUMAR JAISWAL AND ANOTHER
reported in AIR 2004 SC 175.
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40. Before coming to the oral evidence of the prosecution
witnesses about the truthfulness of the electronic records i.e., Exs.P22,
P.23 to P.43-photos and M.O.26-CD, let us examine the legal position
about the admissibility of those documents in evidence.
41. Section 63 to Section 65-B of the Evidence Act read as
under:
63. Secondary evidence. – Secondary evidence means and
includes-
(1) certified copies given under the provisions hereinafter
contained;
(2) copies made from the original by mechanical processes
which in themselves insure the accuracy of the copy, and
copies compared with such copes;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did
not execute them;
(5) oral accounts of the contents of a document given by some
person who has himself seen it.
64. Proof of documents by primary evidence. – Documents
must be proved by primary evidence except in the cases
hereinafter mentioned.
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65. Cases in which the secondary evidence relating to
documents may be given. – Secondary evidence may be
given of the existence, condition, or contents of a document
in the following cases:-
(a) When the original is shown or appears to be in the
possession or power –
Of the person against whom the document is sought to be
proved, or of any person out of reach of, or not subject to,
the process of the Court, or of any person legally bound to
produce it, and when, after the notice mentioned in section
66, such person does not produce it;
(b) when the existence, condition or contents of the original
have been proved to be admitted in writing by the person
against whom it is proved or by his representative in
interest.
42. Perusal of the provisions under Sections 65A and 65B, it is
clear that the said Sections are the special provisions inserted in the
Evidence Act by Act No.21 of 2000. In the decision of the Hon’ble
Supreme Court in the case of ANVAR P.V. VS. P K BASHEER
AND OTHERS reported in 2014 AIR SCW 5695, Their Lordships
have laid down the proposition as under:
60
(A) Evidence Act (1 of 1872), Ss.59, 65A, 65B, 63,
65 – Electronic records – Admissibility – Secondary
evidence of electronic record – Inadmissible unless
requirements of S. 65B are satisfied.
In para Nos.14 to 17, 19, 22 and 23 of the said decision, Their
Lordships have observed as under:
14. Under Section 65B(4) of the Evidence Act, if it is desired
to give a statement in any proceedings pertaining to an
electronic record, it is permissible provided the following
conditions are satisfied:
(a) There must be a certificate which identifies the
electronic record containing the statement;
(b) The certificate must describe the manner in which
the electronic record was produced;
(c) The certificate must furnish the particulars of the
device involved in the production of that record;
(d) The certificate must deal with the applicable
conditions mentioned under Section 65B(2) of the
Evidence Act; and
(e) The certificate must be signed by a person
occupying a responsible official position in relation
to the operation of the relevant device.
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15. It is further clarified that the person need only to state in
the certificate that the same is to the best of his
knowledge and belief. Most importantly, such a certificate
must accompany the electronic record like computer
printout, Compact Disc (CD), Video Compact Disc
(VCD), pen drive, etc., pertaining to which a statement is
sought to be given in evidence, when the same is
produced in evidence. All these safeguards are taken to
ensure the source and authenticity, which are the two
hallmarks pertaining to electronic record sought to be
used as evidence. Electronic records being more
susceptible to tampering, alteration, transposition,
excision, etc. without such safeguards, the whole trial
based on proof of electronic records can lead to travesty
of justice.
16. Only if the electronic record is duly produced in terms of
Section 65B of the Evidence Act, the question would
arise as to the genuineness thereof and in that situation,
resort can be made to Section 45A – Opinion of examiner
of electronic evidence.
17. The Evidence Act does not contemplate or permit the
proof of an electronic record by oral evidence if
requirements under Section 65B of the Evidence act are
not complied with, as the law now stands in India.
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19. Proof of electronic record is a special provision introduced
by the IT Act amending various provisions under the
Evidence Act. The very caption of Section 65A of the
Evidence Act, read with Section 65B of the Evidence Act.
That is a complete Code in itself. Being a special law, the
general law under Sections 63 and 65 has to yield.
22. The evidence relating to electronic record, as noted
hereinbefore, being a special provision, the general law on
secondary evidence under Section 63 read with Section 65
of the Evidence Act shall yield to the same. Generalia
specialibus non derogant, special law will always prevail
over the general law. It appears, the court omitted to take
note of Sections 59 and 65A dealing with the admissibility
of electronic record. Sections 63 and 65 have no
application in the case of secondary evidence by way of
electronic record; the same is wholly governed by Sections
65A and 65B. To that extent, the statement of law on
admissibility of secondary evidence pertaining to electronic
record, as stated by this Court in Navjot Sandhu case
(supra), does not lay down the correct legal position, It
requires to be overruled and we do so. An electronic
record by way of secondary evidence shall not be admitted
in evidence unless the requirements under Section 65B are
satisfied. Thus, in the case of CD, VCD, chip, etc., the
same shall be accompanied by the certificate in terms of
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Section 65B obtained at the time of taking the document,
without which, the secondary evidence pertaining to that
electronic record, is inadmissible.
23. The appellant admittedly has not produced any certificate
in terms of Section 65B in respect of the CDs, Exhibits –
