Naveen and Others vs State

Mohan M. Shantana Goudar, J—The order of judgment and conviction dated 13th November 2009 passed by II Additional Sessions Judge, Mysore in S.C. No. 217/2007 is called in question in these two appeals by the convicted accused.

Both the accused were tried and convicted for the offences punishable under Sections 302 & 201 IPC.

Crl. A. No. 871/2011 is filed by accused No. 2 and Crl.A. No. 824/2013 is filed by accused No. 1.

Case of the prosecution in brief is that deceased Raghu and the accused were friends; deceased was initially working at Mysore in the shop of PW-4-Suresh Kumar Jain, who was owning a jewellery shop; deceased was goldsmith by profession; accused were also goldsmiths by profession; deceased and both the accused were co-workers in the very shop of PW-4 at initial stage; subsequently, deceased went to his native place at Hassan and joined the shop of PW-21-H.K. Ganesh; the owner of the shop at Hassan viz., PW-21 used to send the prepared gold ornaments to the shop of PW-4 for handing over the same; inturn PW-4 used to send back equal amount of gold ingots apart from making charges to PW-21 through deceased; on the date of the incident i.e., on 15.5.2007 also, PW-21 had sent certain gold ornaments weighing 309 grams with the deceased to hand over the same to the shop of PW-4; inturn the deceased came to Mysore and handed over the gold ornaments to PW-4; consequently PW-4 gave gold ingots weighing 309 gm and making charges of Rs. 10,000/- to the deceased for handing over the same to PW-4; after receiving the gold ingots and Rs. 10,000/- from PW-4, the deceased went to the shop of PW-9 who was his cousin for casual talks; while deceased was talking to PW-9 in his shop, a telephone call came from accused No. 1 to the deceased; on enquiry, deceased disclosed before PW-9 that it was accused No. 1 who is talking to him over phone; since PW-9 had got some work with accused No. 1, he also talked to accused No. 1 from the very phone of the deceased; deceased went missing after 9.00 p.m. and his telephone was switched off; his dead-body was found near Ambedkar Nagar New Layout near Bharath nagar on the way to Rammanahalli village, outskirts of Mysore; since the unknown dead body was found in the early hours of 16.5.2007, at about 8.45 p.m., UDR 11/2007 came to be registered in Mysore Rural police station; subsequently the brother of the deceased identified the dead body and he lodged the complaint as per Ex-P1 at about 12.15 p.m. on 18.5.2007 before Mysore(South) Rural police station, which came to be registered in Cr. No. 137/2007. During the course of investigation of the crime, both the accused were arrested; based on their voluntary statements, certain materials were recovered; the call details of the deceased were secured by the Investigation Officer and ultimately charge-sheet came to be filed by PW-32-Inspector of Police against both the accused for the offences punishable under sections 302 and 201 IPC and sentenced them accordingly.

The case rests on circumstantial evidence. There are no eyewitnesses to the incident in question. The circumstances relied upon by the prosecution to bring home the guilt against both the accused are as under:--

"1. Accused No. 1 bought cyanide from the shop of PW-11 about one month prior to the incident;

PW-9 has deposed that when the deceased was talking with him in his shop, deceased received telephone call from accused No. 1 and the deceased as well as PW-9 talked to accused No. 1 at about 8.00 p.m. on 15.5.2007;

Recovery of gold ingots weighing 309 gm from accused No. 1 based on his voluntary statement;

The call details of mobile phone of the deceased which was standing in the name of Smt. Laxmi (sister of the deceased) which disclose that deceased had telephonic conversation with accused No. 1 for three times just prior to the incident."

PW-1 is the brother of the deceased. After identifying the dead body, he lodged the complaint as per Ex-P1 against unknown persons.

PWs-2 and 3 are the witnesses for inquest mahazar Ex-P2.

PW-4 is the owner of Sheetal Jewellers, Mysore. Deceased had worked with him earlier. PW-4 gave 309 gm of gold ingots + Rs. 10,000/- to the deceased. He identified Ex-P3- a voucher and Ex-P4 voucher book evidencing handing over 309 gm of gold ingot to the deceased. Exs-P3 and P4 are seized under panchanama Ex-P5.

PW-5 saw the deceased in the shop of PW-4 at 7.15 p.m. on 15.5.2007.

PW-6 and 7 are the formal witnesses. Their evidence is of no use to the prosecution.

PW-8 saw the dead-body at 7.30 p.m. in the shop of PW-8 which is situated in the front shop of PW-6.

PW-9 is the cousin of the deceased. The deceased went to the shop of PW-9 at about 8.00 p.m. and while he was talking with PW-9, the deceased received a telephone call made by accused No. 1; since PW-9 also knew accused No. 1 and as he had also some work with accused No. 1, he also talked with accused No. 1 from the very mobile phone of the deceased.

PW-10 is the uncle of the deceased. He saw the deceased going from the shop of PW-6. The deceased had called PW10 over mobile phone and informed him that he is having dinner in the hotel.

PW-11 is a goldsmith by profession. He has deposed that accused No. 1 took cyanide from him one month prior to the incident in question.

PW-12 is the witness for panchanama Ex-P6, under which, gold ingots M.Os.7 and 8 were seized at the instance of accused No. 1. Ex-P3 is the voucher. He has also spoken about the seizure of M.O.10 mobile of accused No. 1 under Ex-P8. However, PW-12 has turned hostile to the case of the prosecution.

PW-13 is another witness for Ex-P6 regarding recovery of gold ingots at the instance of accused No. 1. He has supported the case of the prosecution.

PWs-14, 15, 16 and 17 have turned hostile to the case of the prosecution.

PW-18 is the Doctor, who conducted post-mortem examination over the dead body. Post-mortem examination report is at Ex-P10.

PW-19 is cousin of the deceased. He was working alongwith the deceased. According to him, the mobile phone of the deceased was switched off at about 9.00 p.m. on 15.5.2007.

PW-20 who was suppose to speak about the last seen circumstance has turned hostile to the prosecution case.

PW-21 is the employer of the deceased at Hassan. He is owner of S.K. Gold Works. He had sent the deceased to the shop of PW-4 at Mysore alongwith gold ornaments. The deceased had informed PW-21 over phone at about 8.45 p.m. that PW-4 has given gold ingots of 309 gm + Rs. 10,000/- towards making charges.

PW-22 is the police constable.

PW-23 is the Inspector of Police. He transferred the case from Mysore Rural police station to Mandi police station on the ground of jurisdiction.

PW-24 is the Scientific Officer working in Forensic Science Laboratory. The viscera of the deceased was sent for examination. He has given report as per Ex-P11 showing viscera contained cyanide and alcohol.

PW-25 is the Sub-Inspector of Police. He registered UDR initially after seeing unknown dead body.

PWs-26, 27, 28 and 30 are the witnesses, who have turned hostile to the prosecution case.

PW-29 is another police constable. He participated during the course of investigation.

PW-31 is the Sub-Inspector of Police of Ilavala police station. He has deposed about the call details of mobile phone of accused No. 1 and PW-19 Kiran.

PW-32 is the Investigating Officer, who completed the investigation and laid the charge-sheet.

PW-33 is the police constable, who carried FIR to the higher officer.

PW-34 is the photographer.

The post-mortem report Ex-P10 and the evidence of the Doctor, who conducted the post-mortem examination (PW-18) makes it clear that the death of deceased was due to Asphyxia as a result of consumption of cyanide and alcohol. Opinion of the Doctor is supported by the report of Forensic Science Laboratory. Thus it is clear that the death of the deceased has taken place because of consumption of cyanide and alcohol. Certain abrasions are sustained by the deceased. As is clear from the medical evidence, those abrasions are not the cause for the death of the deceased.

Circumstance No. 1:--

The prosecution has relied upon the evidence of PW-11 to show that accused No. 1 had taken certain amount of cyanide from PW-11 and the same was used for commission of the offence.

In examination-in-chief itself, PW-11 has deposed that accused No. 1 had taken certain amount of cyanide one month prior to the incident in question. Accused No. 1 had informed PW-11 that he needs cyanide for the purpose of cleaning the gold ring. Hence, the examination-in-chief of PW-11 makes it clear that cyanide was taken by accused No. 1 about one month prior to the incident and not immediately prior to the incident. However, in the cross-examination, it is admitted by PW-11 that he used to give 200mg of cyanide only for the purpose of polishing gold and silver articles. He has not maintained any document to show that he had handed over 200 mg of cyanide to accused No. 1. So also, he has also not received any receipt from his vendors, who had sold cyanide to him. It is clearly admitted by him that if and only if the jewellery shop licence is shown, the cyanide will be given to the jewellery shop owners; the police have not seized from his shop the remaining quantity of cyanide or ring etc.,

From the evidence of PW-11, it is clear that cyanide was allegedly taken by accused No. 1 one month prior to the incident in question.

So also it is clear that PW-11 has not maintained any document for having given 200mg of cyanide to accused No. 1. Admittedly, cyanide is a highly poisonous substance. The same would be provided to the jewellers only on showing the licence to run the jewellery shop and not otherwise. Since accused No. 1 had allegedly taken 200mg of cyanide from PW-11 about one month prior to the incident, he would not have visualized that he would be committing murder of the deceased after one month. Nobody knew that deceased would come on the date of the incident to Mysore from Hassan. It is the case of the prosecution that after receiving the gold ingots and Rs. 10,000/- from PW-4, deceased went to various shops including shop of PW-9 and met him and in the process, he must have met accused also. Hence, at the most, it can be said that accused allegedly hatched a plan at about 8.00 p.m. or so i.e., after seeing the gold ingots in the possession of the deceased and not earlier thereto. Admittedly, the accused as well as deceased are jewellers and they were close friends. Keeping this in mind, if the evidence of PW-11 is evaluated, the same cannot be believed to show that accused No. 1 had purchased cyanide for the purpose of committing the murder of the deceased.

Circumstances Nos. 2 and 4:--

It is the case of the prosecution that the deceased received a telephonic call when he was sitting in the shop of PW-9 and the said call was from accused No. 1. Since PW-9 was knowing accused No. 1, he also talked with accused No. 1 from the very phone. In this regard, the prosecution relied upon the call details of the deceased vide Ex-P26. During the course of investigation, it was found out that the mobile number of accused No. 1 was 9980978083, whereas, the mobile phone of the deceased was having No. 9980700567. If we go through the call details Ex-P26, it is clear that three telephone calls were received by the deceased from accused No. 1 and they were at 8.45 p.m., 8.53 p.m., and 9.37 p.m. on 15.5.2007. In that regard, PWs-31 and 32 the police officers have deposed. But, unfortunately, Ex-P26 cannot be used as secondary evidence in view of non-compliance of conditions laid down in Section 65B of the Indian Evidence Act, 1872. The Apex Court in the case of Anvar P.V. Vs. P.K. Basheer, AIR 2015 SC 180 : (2014) AIRSCW 5695 has clarified and concluded that the admissibility of secondary evidence of electronic record depends upon the satisfaction of conditions as prescribed under Section 65B of the Evidence Act. It is also clarified that mere production of copy of statement pertaining to electronic record in evidence not being the original electronic record would not suffice the requirement of Section 65B. The mandatory requirement is that such statement has to be accompanied by a certificate as specified in Section 65B of the Evidence Act. Such certificate must accompany the electronic record like CD, VCD, pen drive or print out of computer generated which contains the statement which is sought to be given as secondary evidence, when the same is produced in evidence. In absence of such certificate, the secondary evidence of electronic record cannot be admitted in evidence as in the present case. This Court in the case of Sri. Hosamanera Prakash @ Shivaprasad and Others v. State of Karnataka (Crl.A. No. 1207/2011 disposed of on 24th February 2015) also has concluded that certification of electronic record is a prerequisite for production of the same before the Court for the purpose of treating it as secondary evidence. Admittedly in this case, there is no certification of the electronic record Ex-P26. Ex-P26 is nothing but computer generated print out of calls made from and to the mobile phone of the deceased. Neither the officers of the Airtel company nor BSNL company etc., are examined before the Court nor there is certification of the electronic record which is sought to be relied upon by the prosecution. In the absence of such certificate and as the material produced before the Court in respect of Ex-P26-call details will not satisfy the requirement of Section 65B of the Indian Evidence Act, the said document cannot be relied upon by the prosecution. In view of the same, it needs to be held by this Court that the prosecution has failed to prove the second and fourth circumstances relied upon by the prosecution.

Hence, it is concluded that prosecution has not proved in accordance with law and beyond reasonable doubt that accused No. 1 had telephonic conversation with the deceased on three occasions on 15.5.2007.

Circumstance No. 3:

As per the case of prosecution, 309 gms. of gold ingots were recovered from accused No. 1 under panchanama Ex. P.6. The persons who signed the mahazar Ex. P.6 are P.Ws.12 and 13. P.W.12, though, has deposed in the examination in chief that accused No. 1 took the police and 3-4 persons including P.W.12 to his grand mother''s house and took out the pot in which he had hidden the gold ingots (M.Os.7 and 8) and produced the same before the police, however, in the cross examination, he admits clearly that the police themselves showed M.Os.7 and 8 to P.W.12 and others and got them seized under the mahazar, which means that the accused No. 1 has not produced the gold ingots. But, it was the police who showed the gold ingots to panchas and thereafter, mahazar was drawn. P.W.12 was treated hostile in respect of the recovery proceedings input. He did not support the case of prosecution with regard to the recovery of money and the motor cycle.

P.W.12, however, has not deposed in his evidence as to where he and the other panchas were led by the accused. In the cross examination, it is further clarified by P.W.13 that when he was sleeping in his shop, the police went to the shop and took him to act as mahazar witness. The police told him that he is required to verify and inspect the gold; so saying the police took him directly to the police station; the police themselves went to the third floor of the building and took up the packet kept near the tank and showed the said packet to P.W.13. He has further deposed that he has signed Ex. P.6 panchanama in the police station and he does not know as to whether anybody else had signed the very panchanama earlier to him. From the aforementioned, it is clear that the police have taken the active role in leading the panchas to the prescribed place and thereafter, they have seized the gold ingots. Law requires that, based on the voluntary statement of the accused, the incriminating articles should be recovered by the police. In the matter on hand, the evidence of P.Ws.12 and 13 makes it amply clear that it was the police who led the panchas to the very place and thereafter, seized the gold ingots. In view of the same, it would be hard on the part of the Court to hold that the prosecution has proved the circumstance of recovery of the gold ingots at the instance of accused No. 1. Accordingly, we conclude that the said circumstance is also not proved by the prosecution beyond reasonable doubt.

Since none of the circumstances are proved in accordance with law and beyond reasonable doubt, the benefit of doubt should go in favour of the accused. In the case of circumstantial evidence, the prosecution will have to prove its case beyond reasonable doubt so as to complete the chain of circumstances which would lead to hypothesis that the accused has committed the offence. In the matter on hand, since none of the circumstances are proved by the prosecution, the trial Court in our considered opinion is not justified in convicting the accused. There is no legal evidence on record against the accused. On reconsidering the entire material on record, we find that the reasons assigned and the conclusion arrived at by the trial Court are not proper. Accordingly, the judgment and order of conviction is liable to be set aside.

Hence, the following order is made:

"(a) The appeals are allowed.

(b) The judgment and order of conviction dated 13.11.2009 passed in S.C. No. 217/2007 by the II Additional Sessions Judge, Mysuru, stands set aside.

(c) The appellants are acquitted of all the charges levelled against them.

(d) The appellants shall be released forthwith, in case if they are not required in any other case.

(e) The operative portion of this judgment shall be communicated to the concerned prison authorities immediately."