Iv-Addl. District And Sessions … vs Mohan Kumar @ Shashidhara Poojary … on 15 November, 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

ON THE 15TH DAY OF NOVEMBER, 2017

BEFORE

THE HON’BLE MR. JUSTICE RAVI MALIMATH

AND

THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA

CRIMINAL REFERRED CASE NO.3 OF 2014
C/W
CRIMINAL APPEAL NO.177 OF 2015

CRIMINAL REFERRED CASE NO.3 OF 2014:
BETWEEN:

IV-ADDL. DISTRICT SESSIONS JUDGE
DAKSHINA KANNADA DISTRICT,
MANGALURU. … PETITIONER

(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)

AND:

SRI MOHAN KUMAR @ SHASHIDARA POOJARY @
SUNDARA RAI
S/O LATE MAILAPPA MUGERA,
AGED ABOUT 50 YEARS,
R/AT BEHIND KANYANA JUNIOR COLLEGE,
KANYANA VILLAGE, BANTWAL TALUK,
PRESENTLY R/AT BARAKE MANE,
BELMA VILLAGE, DERALAKATTE,
MANGALURU TALUK. … RESPONDENT

(PARTY-IN-PERSON)
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THIS CRIMINAL REFERRED CASE IS FILED UNDER
SECTION 366(1) OF CR.P.C. FOR CONFIRMATION OF
DEATH SENTENCE AWARDED TO SHRI MOHAN KUMAR @
SHASHIDHARA POOJARY @ SUNDARA RAI S/O LATE
MAILAPPA MUGERA, AGED ABOUT 47 YEARS, R/AT
BEHIND KANYANA JUNIOR COLLEGE, KANYANA VILLAGE,
BANTWAL TALUK, PRESENTLY RESIDING AT BARAKE
MANE, BELMA VILLAGE, DERALAKATTE, MANGALURU
TALUK, BY THE JUDGMENT AND ORDER 21.12.2013
PASSED IN S.C.NO.32 OF 2010 ON THE FILE OF THE IV-
ADDITIONAL SESSIONS JUDGE, DAKSHINA KANNADA
DISTRICT, MANGALURU, FOR THE OFFENCE PUNISHABLE
UNDER SECTION 302 OF IPC.

*****

CRIMINAL APPEAL NO.177 OF 2015:
BETWEEN:

SRI MOHAN KUMAR @ SHASHIDHAR POOJARY
@ SUNDARA RAI
AGED ABOUT 55 YEARS,
S/O LATE MAILAPPA MUGERA,
RESIDING AT BEHIND KANYANA JUNIOR COLLEGE,
KANYANA VILLAGE, BANTWAL TALUK – 574 153.
…APPELLANT

(PARTY-IN-PERSON)

AND:

STATE OF KARNATAKA
BY THE DEPUTY SUPERINTENDENT OF POLICE
(B B) SQUAD, C.O.D., BENGALURU
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, BENGALURU – 560 001.
…RESPONDENT
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(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO SET ASIDE THE ORDER
DATED 18.12.2013, PASSED BY THE IV ADDL.DISTRICT
AND SESSIONS JUDGE, DAKSHINA KANNADA DISTRICT,
MANGALURU, IN S.C.NO.32 OF 2010 – CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 366, 376, 328, 392, 394, 417, 302, 201
OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO R.I. FOR 5 YEARS AND TO PAY FINE OF
RS.5,000/- AND IN DEFAULT TO PAY THE FINE AMOUNT,
TO UNDERGO SI FOR 1 YEAR, FOR THE OFFENCES
PUNISHABLE UNDER SECTION 366 OF IPC. FURTHER, THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 8 YEARS AND TO PAY
FINE OF RS.5,000/- AND IN DEFAULT TO PAY THE FINE
AMOUNT, TO UNDERGO SI FOR 1 YEAR, FOR THE
OFFENCES PUNISHABLE UNDER SECTION 376 OF IPC.
FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO DEATH PENALTY BY HANGING HIM TILL HIS
DEATH AND FINE OF RS.5,000/- AND DEATH PENALTY IS
SUBJECT TO CONFIRMATION FROM THE HON’BLE HIGH
COURT OF KARNATAKA, FOR THE OFFENCES PUNISHABLE
UNDER SECTION 302 OF IPC. FURTHER, THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 5 YEARS AND TO PAY
FINE OF RS.5,000/- AND IN DEFAULT TO PAY THE FINE
AMOUNT, TO UNDERGO SI FOR 1 YEAR, FOR THE
OFFENCES PUNISHABLE UNDER SECTION 392 OF IPC.
FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR 10 YEARS AND
TO PAY FINE OF RS.10,000/- AND IN DEFAULT TO PAY THE
FINE AMOUNT, TO UNDERGO SIMPLE IMPRISONMENT FOR
2 YEARS, FOR THE OFFENCES PUNISHABLE UNDER
SECTION 394 OF IPC. FURTHER, THE
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APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 3 YEARS AND TO PAY
FINE OF RS.10,000/- AND IN DEFAULT TO PAY THE FINE
AMOUNT, TO UNDERGO SIMPLE IMPRISONMENT FOR 6
MONTHS, FOR THE OFFENCES PUNISHABLE UNDER
SECTION 328 OF IPC. FURTHER, THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR SIX MONTHS FOR THE
OFFENCES PUNISHABLE UNDER SECTION 417 OF IPC.
SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT
FOR 3 YEARS AND TO PAY FINE OF RS.3,000/- AND IN
DEFAULT TO PAY THE FINE AMOUNT, TO UNDERGO
SIMPLE IMPRISONMENT FOR 6 MONTHS, FOR THE
OFFENCES PUNISHABLE UNDER SECTION 201 OF IPC. ALL
SENTENCES SHALL RUN CONCURRENTLY AND THE
APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.

****

THIS CRIMINAL REFERRED CASE C/W CRIMINAL
APPEAL COMING ON FOR HEARING THIS DAY, JOHN
MICHAEL CUNHA J., DELIVERED THE FOLLOWING:

JUDGMENT

This criminal appeal and the criminal referred case

are arising out of the judgment dated 18.12.2013, passed

by the 4th Additional District and Sessions Judge, D.K.

Mangaluru in Sessions Case No.32 of 2010, wherein the

appellant (hereinafter referred to as ‘Accused’) has been

convicted for the offences punishable under Sections-366,

376, 328, 392, 394, 417, 302 and 201 of IPC. He is
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sentenced to death for the offence punishable under

Section – 302 of IPC and for various terms of imprisonment

and fine for other offences. The learned Sessions Judge

has made a reference for confirmation of the death

sentence as per Section-366 of Cr.P.C.

2. The case of the prosecution as unfolded during

trial is as follows:

The deceased Kumari.Sunanda, aged 30 years was a

resident of Vaipala Mane, Peravaje Village, Sullia Taluk,

Dakshina Kannada District. She was rolling beedies. She

was also a member of Women Self-Help Group. In the

month of January 2008, during a political Rally, she came

in acquaintance with the accused. The accused whose real

name is Mohan Kumar, introduced himself to her as

Shashidhar. He proposed to marry her. As the deceased

was spinster, she agreed for the proposal. Her mother

also consented for the same. However, the accused

insisted that in order to ward off any hindrance in their

future marriage, as has been advised by an astrologer, she
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had to perform a pooja at Malla Temple at Kasargod.

Accordingly, as pre-decided by them, on 11.02.2008 in the

morning, the deceased left the house wearing gold

ornaments and taking necessary clothes. She told her

mother that after performing the pooja, she will return

home. But in the evening at about 6.30 p.m., the mother

of the deceased received a phone call from the deceased

stating that the pooja could not be performed and

therefore she would return home only on the following

day. At about 8.30 p.m., the cousin sister of the deceased

namely, PW-7 Kumari.Harini received a phone call from

Mysuru Police Station informing her that they got her

number from the mobile phone of a lady who was found

collapsed in the KSRTC Bus Stand at Mysuru. On hearing

this news PW-6, the mother of the deceased, PW-7 her

cousin sister and PW-10 Shri.Ramanna Rai, their neighbor

proceeded to Mysuru. On the following day i.e.,

12.02.2008 they were shown the deadbody of the
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deceased in the mortuary. They readily identified the dead

body as that of Sunanda.

3. Regarding the incident, PW-14, the ASI, who

was on duty in the K.S.R.T.C. bus stand on that day

submitted an intimation to PW-16, the PSI of Lashkar

Police Station. He registered a UDR case and conducted

inquest over the dead body. Thereafter, he got conducted

the post-mortem examination and released the dead body

to PW-6, the mother of the deceased.

4. On 21.10.2009, PW-32, the Assistant

Superintendent of Police, Puttur Sub-Division, who was

investigating Crime No.111 of 2009 registered in Bantwal

Police Station arrested the accused. On recording his

voluntary statement PW-32, came to know the

involvement of the accused in various other crimes against

ladies and women during the span of last six years. He

published the photographs and the news items in

newspapers and Television. On seeing the photographs of
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the accused in the newspaper, PW-7 the cousin sister of

the deceased readily identified the accused as the person

who had proposed to marry the deceased and at whose

instances, the deceased had left the house on the date of

the incident. In view of these developments, the mother of

the deceased PW-6 lodged a complaint before the Sulia

Police as per Exhibit-P6 on 03.11.2009. Based on this

complaint, Crime No.244 of 2009 came to be registered

against the accused.

5. The investigation was continued by PW-31, the

Police Inspector of Sulia Police Station. He obtained the

custody of the accused through body warrant. Pursuant to

the voluntary statement of the accused, he drew up the

Mahazar at Sulia Bus Stand from where the accused took

the deceased with him to Mysuru. He drew up the

Panchanama at the lodge namely, Sri. Uma Maheshwari

lodge, Mysuru, where the accused and the deceased

stayed together, immediately prior to the commission of

the offence. He also drew up the mahazar at the KSRTC
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bus stand, where the accused is stated to have

administered cyanide to the deceased. At the instance of

the accused, he recovered the gold ornaments of the

deceased sold by accused to PW-21, Harish Alwa, Ashirvad

Finance Jewellers. Further, in the course of the

investigation, he incorporated the seizures and other

incriminating material seized from the accused by PW-32.

On completing the investigation, PW-25 laid the charge-

sheet against the accused.

6. On production of the accused, before the trial

court, the accused sought to conduct the case by himself

in person. On hearing the accused and on considering the

material produced by the prosecution, the trial court

framed charges under Section-366, 376, 328, 392, 394,

417, 465, 468, 473, 302 and 201 of IPC. The accused

denied the charges and claimed to be tried. In proof of the

above charges, prosecution examined 35 witnesses and

produced in evidence 46 documents as per Exhibit – P1 to

P46 and the material objects at MO.1 to MO.35. Though in
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the judgment the trial court has noted that Exhibits – D1

and D2 have also been marked on behalf of the defence,

on verification of the records, we do not find that any such

documents having been marked on behalf of the accused

during trial. During his examination under Section – 313

of Cr.P.C., the accused took up a defence of total denial

and did not choose to enter into defence or to examine any

witnesses on his behalf.

7. Upon hearing the learned Special Public

Prosecutor and the accused and on considering the oral

and documentary evidence available on record by the

impugned judgment, the court below found the accused

guilty of the above offences. The learned Sessions Judge

was of the view that the prosecution has proved the

following circumstances namely:

i) The deceased last seen in the company of the

accused;

ii) The common stay in the lodge;

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iii) The recovery of gold ornaments belonging to the

deceased at the instance of the accused;

iv) The recovery of incriminating materials from the

house of the second wife of the accused

Smt. Sridevi;

v) The recovery of cyanide billets from the shop of PW-

34, Mohammed;

vi) Identification of the ornaments by the immediate

relatives of the deceased Sunanda;

vii) Extra-judicial confession made by PW-5, Eshwar

Bhat;

viii) The evidence relating to the modus-operandi

adopted by the accused;

ix) Withdrawal of Rs.25,000/- from Vikas Karnataka

Grameena Bank, Bellary by the deceased on the

date of the incident;

x) The medical evidence and the findings of the

Chemical Analyst; and
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xi) Lastly, the doctrine of confirmation whereby the

accused showed the spot from where he picked up

the deceased, the place where they stayed together

in the lodge at Mysuru, as well as the spot where he

administered cyanide to the deceased.

8. The court below was of the opinion that all the

above circumstances have been conclusively established

by the prosecution and these circumstances establish the

guilt of the accused beyond reasonable doubt for all the

offences charged against him. While considering the case

for imposition of sentence, the court below enumerated

the aggravating and mitigating circumstances brought on

record by the prosecution and having found that the

accused had ingeniously deceived the deceased by

impersonation and committed the murder of a helpless

lady by administering cyanide and also having regard to

the fact that similar modus-operandi was being adopted by

the accused in 19 other cases wherein he was facing trial,

out of which, he had suffered conviction in two cases on
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similar charges, was of the opinion that case fell within the

category of ‘rarest of rarest case’ and accordingly imposed

the extreme penalty of death sentence and made a

reference to this Court seeking confirmation thereof as

required under Section – 366 of Cr.P.C.

9. The records of the lower court are secured. As

the accused was in custody, the assistance of an Advocate

was provided to the accused through Legal Services

Authority. However, when the matter was taken up for

final hearing, the accused addressed a letter through the

Prison Authorities seeking permission to argue the matter

personally. The permission was granted.

10. We have heard the accused and the learned

Addl.SPP at length and examined the records.

11. The accused contends that his conviction is

wholly illegal and unjustified. He submits that initially

suspicion was directed against the brother-in-law of the

deceased by name Raghunath Poojary, against whom the
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deceased had given evidence in a Court of law. The mother

of the deceased herself had named him during the inquest

proceedings. It is only after the arrest of the accused

nearly two years after the alleged incident, he has been

implicated. The complaint was lodged only after the arrest

of the accused. In the said complaint, for the first time the

mother of the deceased PW-6 alleged missing of the gold

ornaments. But, PW-26, PSI who registered the UDR has

unequivocally stated that the ornaments found on the body

of the deceased were returned to PW-6 under

acknowledgement, making it evident that the allegations of

robbery and the subsequent recovery evidence projected

by the prosecution is patently false and fabricated to

bolster up the false charges framed against the accused.

12. Assailing the very cause of death, the accused

would submit that the post-mortem report relied on by the

prosecution, does not specify the facts and features noted

during the post-mortem examination. On the other hand,

the opinion is seen to have been issued based on the FSL
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report. The FSL report was got up after the arrest of the

accused. Original opinion given by PW-20, Dr.Kumar has

been deliberately suppressed. The evidence relating to the

‘last seen theory’ is also fabricated. There is no reliable

evidence to show that the accused and the deceased were

found together at any point of time or that they stayed in

Uma Maheshwari Lodge at Mysuru on the date of the

alleged incident. The evidence produced by the prosecution

in this regard is unreliable. The prosecution has not

produced any document such as Corporation Licence or the

employees list maintained in the Labour Department to

show the existence of such a lodge or the presence of

PW-12 and PW-13 as employees in the said lodge at the

relevant time. Likewise the evidence of PW-6, PW-7 also

cannot be believed. Their evidence even if accepted, does

not prove the last seen circumstance. There is striking

discrepancy in the sketch relied on by the prosecution. The

place of offence is not proved. The recoveries are planted.

No documents are produced to show that the accused was
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in contact with the deceased over phone. Even though the

phone was found at the spot, call details are not procured.

The photo of the deceased based on which the deceased is

said to have been identified by the witnesses was not

produced along with charge-sheet. All these circumstances

go to show that a deliberate attempt has been made to

create false evidence to secure the conviction of the

accused.

13. It is further contended that the trial court has

misread the evidence. The material on record is not

sufficient to prove any of the circumstances pointing out

the guilt of the accused. The punishment imposed by the

lower court is also disproportionate to the charges. There

is no evidence whatsoever to prove the charge of rape and

abduction. The facts proved by the prosecution even if

accepted will not make it a ‘rarest of rare case’. The trial

court has not assigned reasons to award extreme penalty

of death. Hence the accused has pleaded for his acquittal
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and for cancellation of the death sentence awarded by the

court below.

14. The learned Addl.SPP has disputed each and

every contention urged by the accused. He would submit

that the prosecution has proved every circumstance in

proof of the charges with cogent and convincing evidence.

The fact that the accused and the deceased were seen

together is established by the direct testimony of PW-12

and PW-13. It is proved that the accused was in

possession of cyanide at the time of his arrest, which goes

to show that he was always carrying cyanide with him. The

prosecution has also seized billets of cyanide, fake ID

cards, rubber stamps, etc., from the house of the second

wife of the accused. These were being used by the accused

to lure innocent ladies on the promise of either to marry

them or to secure them a respectable job.

15. More importantly, the prosecution has proved

the sources from which the accused was procuring the
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cyanide by examining PW-34. The modus operandi

adopted by the accused is also proved by examining the

victims who survived the attack in the hands of the

accused. The extra-judicial confession establishes the

motive and thus the prosecution has proved beyond

reasonable doubt the circumstances which points to the

guilt of the accused. Therefore, no fault could be found

with the impugned judgment. The court below has

assigned proper and justifiable reasons in support of each

of the findings. Even with regard to the award of

punishment, the trial court has enumerated the

aggravating and mitigating circumstances and by applying

the guidelines laid down by the Hon’ble Supreme Court,

has held that the facts proved against the accused brought

the case within the category of “rarest of the rare case”

and hence, the death penalty awarded by the Lower Court

is well-justified and deserves to be confirmed. He further

contends that even before the High Court the accused has

suffered conviction in R.C.No.5 of 2014, connected with
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Criminal Appeal No.178 OF 2015. He has been sentenced

to imprisonment till the end of his life without remission,

which itself indicates that the trial court was justified in

imposing the extreme penalty of capital punishment on the

accused and therefore there is absolutely no reason

whatsoever to interfere with the well considered judgment

of the court below.

16. Before embarking upon the merits of the

contentions raised by the parties, let us first deal with the

contention regarding the cause of death, as any finding

thereon would go to the very root of the matter. The case

of the prosecution is that the deceased died due to cyanide

poisoning. In proof thereof, the prosecution has relied on

the evidence of PW-20, the medical officer who conducted

the post-mortem examination and issued the opinion as

per Exhibit-P27. According to this witness, on 12.02.2008

between 11.35 a.m. and 12.35 p.m., he conducted the

autopsy on the dead body of the deceased. He did not find

any traces of external injuries. The stomach contents
20

exuded peculiar smell, mucosa was congested and cherry

red in color. The blood and viscera were collected and sent

for chemical analysis. In his evidence he specifically

deposed that he did not furnish any opinion as to the

cause of death immediately. On 12.02.2008, on receipt of

the FSL report, he furnished his final opinion to the effect

that death was due to respiratory failure as a result of

consumption of cyanide poison.

17. The contention of the accused is that unlike

any other medical opinion, in the instant case the findings

such as cyanosed nail beds, odour and colour of the

stomach contents do not find place in ExhibitP-27.

Therefore, the opinion of PW-20 regarding the cause of

death falls short of the legal requirements. In other words

the submission of the accused is that the basis for his

opinion is not forthcoming in Exhibit P-27 and therefore

the opinion given by him cannot be accepted in proof of

the cause of death. He would further contend that PW-20

has not furnished the reasons and justifications in support
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of the conclusion nor does Exhibit – P27 contain any such

justifications with regard to FSL report. He contends that

the FSL report was obtained only after the arrest to suit

the prosecution case. If this report is excluded from

consideration, there is no basis for PW-20 to support his

opinion. As a result, it has to be held that the prosecution

has failed to prove that the deceased died due to cyanide

poisoning.

18. This argument in our opinion is totally

misconceived and cannot be accepted for the simple

reason that PW-20 has not based his opinion on the

physical findings noted by him during the post-mortem

examination. As stated above, PW-20 has categorically

stated in his evidence that he reserved his opinion awaiting

the FSL report. No doubt it is true that in order to render

the opinion of an expert admissible under Section – 45 of

the Evidence Act, the opinion must be backed by reasons

and grounds in justification thereof. But in the instant

case, the evidence of PW-20 indicates that he furnished his
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opinion on the basis of the Chemical Analysis report.

There is no dispute that on examining the viscera and the

blood sent for his analysis PW-27 issued the report as per

Exhibit-P28. Exhibit-P28 reads as follows:

“Description of the articles:

1. One sealed glass bottle containing stomach
and its contents. Portion of small intestine and
its contents.

2. One sealed glass bottle containing
portion of liver and kidney.

3. One sealed glass bottle containing blood.

4. One sealed glass bottle containing
solution of sodium chloride as preservative.

OPINION

Presence of cyanide ions were detected on Exhibit

Nos.1, 2 and 3. No poison was detected in Exhibit No.4.

19. The objection raised by the accused that the

report was planted after his arrest is wholly unfounded. We
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have examined this report at Exhibit-P28, as well as the

opinion given by PW-20 at Exhibit-P27. Exhibit-P28 is

dated 10.10.2008. It was forwarded to the Police Station

on 23.10.2008. It bears the signature as well as the seal

of the Inspector of the Lashkar Police Station for having

received it on 04.11.2008. Reference No. quoted in

Exhibit-P28 finds place in Exhibit P-27. A reading of

Exhibit – P27 indicates that its was issued on 15.11.2008,

making it evident that the said opinion was given much

before the arrest of the accused. It is not in dispute that

the accused was arrested in Cr.No.111 of 2009 only on

21.10.2009. Therefore, the argument of the accused that

Ex-P28 was got up after his arrest and based on the said

report, the medical opinion as to the cause of death was

procured, cannot be accepted.

20. The question whether it is enough for the

chemical examiner merely to state in his report that

cyanide was present in the substance sent for his

examination and whether the medical officer could base
24

such a report to state his opinion as to the cause of death

came up for consideration of the Hon’ble Supreme Court in

BHUPINDER SINGH vs. STATE OF PUNJAB, (1998) 3 SCC

513. It was contended therein that the prosecution has

failed to establish by evidence the necessary conditions for

the proof of murder by poisoning. An argument was

advanced that it is not enough for the chemical examiner

merely to state in his report that organo- phosphorus

compound was present in the substance sent to him for

examination. He should have also stated that a lethal dose

of the organo-phosphorus compound was detected in the

substance sent to him. His report should be full and

complete to take place of evidence which he would have

given if he were called to court as witness and in the

absence of such particulars, the death by poisoning cannot

be inferred. By referring to various authorities, it was also

contended therein that he must also state the grounds

which formed the basis for his opinion. The Hon’ble
25

Supreme Court while negating the contentions, in para 13

of the said judgment has held as under:-

“13. In our opinion, these observations cannot be
taken as a rigid statement of law. No hard and
fast rule can be laid down as regards the value to
be attached to the report of the chemical
examiner. Section 293 of the Code of Criminal
Procedure provides that the report of scientific
experts may be used as evidence in any inquiry,
trial or other proceedings of the court. The
chemical examiner does not, as a rule, give an
opinion as to the cause of death but merely gives
report of the chemical examination of the
substance sent to him. The report by itself is not
crucial. It is a piece of evidence. The only
protection to it is that it does not require any
formal proof. It is, however, open to the court if
it thinks fit to call the chemical examiner and
examine him as to the subject matter of the
report. The report should normally be forwarded
to the doctor who conducted the autopsy. In the
instant case, that was done. The doctor who
conducted the autopsy was given a copy of the
report of the chemical examiner. The doctor in
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the light of the report gave his opinion that the
death of Gian Kaur was by poisoning i.e. organo-

phosphorus compound. The report of the
chemical examiner coupled with the opinion of
the doctor is, therefore, sufficient to hold that it
was death by poisoning.”

(Underlining supplied)

21. In the light of this proposition, the argument

canvassed by the accused that the opinion rendered by

PW-20 regarding the cause of death is defective and

cannot be accepted in evidence is liable to be rejected. The

facts narrated above clearly indicate that the viscera and

the blood were sent for chemical examination. Even

though Section 293 Cr.P.C. does not require the

examination of the chemical analyst, the prosecution has

examined him as PW-27. The Doctor has also been

examined and he has deposed about the basis on which he

has furnished the opinion. Ex-P27 contains the findings

noted during the post-mortem examination. Therefore, we

do not find any substance in the contention urged by the
27

accused attacking the validity and genuineness of the

medical opinion Ex.P27 as to the cause of death. Hence,

the said contention is rejected.

22. Now coming to the charges levelled against the

accused, undisputedly, there are no eye witnesses to the

incident. The entire case of the prosecution is rested on

circumstantial evidence. In a case of murder by poisoning,

the prosecution is essentially required to prove that:-

1. The deceased died due to poisoning.

2. The accused was in possession of poison.

3. The accused had an opportunity to administer the

poison.

These guidelines were laid down in the case of

DHARAMBIR SINGH AND OTHERS VS. STATE OF PUNJAB

AND ANOTHER (Criminal Appeal No.98 of 1958, decided on

4-11-1958 (SC). But on reviewing the entire case law on
28

this subject, the Hon’ble Supreme Court in Bhupinder

Singh’s case supra in para 25 has observed as under:-

“25. We do not consider that there should
be acquittal or the failure of the prosecution to
prove the possession of poison with the accused.
Murder by poison is invariably committed under
the cover and cloak of secrecy. Nobody will
administer poison to another in the presence of
others. The person who administers poison to
another in secrecy will not keep a portion of it
for the investigating officer to come and collect
it. The person who commits such murder would
naturally take care to eliminate and destroy the
evidence against him. In such cases, it would be
impossible for the prosecution to prove
possession of poison with the accused. The
prosecution may, however, establish other
circumstances consistent only with the
hypothesis of the guilt of the accused. The court
then would not be justified in acquitting the
accused on the ground that the prosecution has
failed to prove possession of the poison with the
accused.

29

The Hon’ble Supreme Court has further observed

that the insistence on proof of possession of poison with

the accused invariably in every case is neither desirable

nor practicable. “Murder by poisoning is run like any other

murder. In cases where dependence is wholly on

circumstantial evidence, and direct evidence not being

available, the court can legitimately draw from the

circumstances an inference on any matter one way or the

other.”

23. In the instant case, in order to bring home the

guilt of the accused, the prosecution has relied on large

number of circumstances which are already listed in the

preceding paras of this judgment. The first circumstance

pressed into service by the prosecution is the circumstance

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

24. In proof of this circumstance, the prosecution

has relied on the evidence of PW-6, PW-7, PW-12 and PW-

13.
30

(a) PW-6 is the mother of the deceased. According to

this witness, on the date of the incident, deceased left

home at about 7.00 a.m. to go to Malla temple, Kasargod.

She has specifically stated that about 10 days earlier

thereto, the accused had proposed to marry the deceased

and he had insisted that before entering into the marriage,

she should perform a pooja to ward off any hurdles in their

future married life and hence, she permitted the deceased

to go to the temple. Accordingly, on the date of the

incident, the deceased set out in the morning wearing gold

ornaments. She also took a cheque for Rs.25,000/- for

encashment, but in the evening, at about 6.30 p.m., PW-6

received a call from her daughter-Sunanda to her landline

informing her that she could not perform the pooja in the

temple and after performing pooja in the night, she would

return home on the next day morning.

31

(b). PW-7, the cousin sister of the deceased has also

corroborated the testimony of PW-6 in this regard and has

deposed in line with PW6.

In our opinion, the statement made by the deceased

informing PW.6 that since the pooja could not be

performed in the afternoon, she would return home after

performing the pooja at night, becomes relevant under

Section 32 of the Indian Evidence Act. This evidence goes

to show that on the date of the incident, the deceased left

the house to perform pooja at the instance of the accused.

The circumstances brought out in the evidence of this

witness indicate that at the suggestion of the accused,

deceased had worn the gold ornaments and taken her

clothings. The place of “pooja” was also suggested by the

accused. On her own she did not decide to go to the

temple. Naturally the accused accompanied her to the

temple. The surrounding circumstances, which we would

presently discuss would also go to show that she and
32

accused were together at 6.30 p.m. when she called her

mother over phone.

Though the accused has contended that there is no

evidence to show that the accused and the deceased were

together when they set out to Mysuru on the date of the

incident, yet, we find from the records that at the earliest

instance, during inquest, PW-6 while giving her statement

before the Taluka Executive Magistrate has unequivocally

narrated the above facts even though accused was not

arrested till then. In her statement during inquest

proceedings, she has specifically narrated that on account

of the insistence of the accused, deceased-Sunanda left

the house to go to temple and at 6.30 p.m. and she called

her over phone and informed her that since the pooja

could not be performed, she would be returning home next

day. This statement, in our view, lends full corroboration

to the evidence of PW-6 and PW-7 that on the date of the

incident, the deceased had left home at the instance of the

accused to perform the pooja. If this evidence is analyzed
33

in the context of the evidence of PW-12 and PW-13, it

leaves no manner of doubt that when she called PW-6 over

phone, the deceased and the accused were together in

Mysuru. The circumstances brought out in the evidence

lead to the inference that on the pretext of taking her to

the temple, the accused took her to Mysuru.

(c) The above conclusion gets fortified from the

evidence of PW-12 and PW-13. PW-12 is the

receptionist-cum-manager of Uma Maheshwari lodge,

Mysuru. According to this witness, in the second week of

February 2008, the accused had come to his lodge

alongwith a woman at about 4.00 p.m. They occupied

room No.103. He collected an advance of Rs.500/- from

the accused. The woman who accompanied the accused

was aged between 26 to 30 years. At about 5.30 or 6.00

p.m., accused and the deceased went out. At about 8.00

p.m., accused returned back alone and within 15 minutes

thereafter, he vacated the room and collected the balance

amount of Rs.150/- from PW-12. He has specifically stated
34

that while occupying the lodge, the accused gave his name

as “Shashidhar”. Thereafter on 4th December 2009, the

accused came to the lodge alongwith the police and at his

instance, PW-12 showed the room occupied by the accused

and the said lady and a mahazar was prepared as per Ex-

P12. In his evidence, he has stated that though the names

of the customers were entered in the register, the said

register was destroyed during the renovation of the lodge

and hence, he was not able to produce the said register,

even though a written requisition was given to him by the

police to produce the copy of the register hence, he gave a

written reply as per Ex-P13. He has further deposed that

on 1.4.2010, he was shown the photograph of a woman

and he identified it as that of the lady who had come and

occupied the said lodge on the date of the incident.

(d) PW-13 is the room-boy of Uma Maheshwari

lodge. This witness has corroborated the testimony of PW-

12 stating that the accused had come with a woman in the

second week of February 2008 and had occupied Room
35

No.103 and both of them went out of the room around

5.30 or 6.00 p.m. and the accused alone returned back at

8.00 p.m. and within 15 minutes thereafter, he checked

out of the lodge. This witness has also stated that seeing

the photograph of a woman, he identified her as the

person who accompanied the accused on the date of the

incident and stayed in the lodge.

25. The evidence of these witnesses is assailed by

the accused contending that both these witnesses are

propped up by the prosecution after his arrest. It is

contended that non-production of the lodge register and

the receipts indicate that both these witnesses have

deposed to suit the case of the prosecution and therefore,

their evidence is not worthy of credence.

26. We have considered the submissions. In

appreciating the evidence of PW-12 and PW-13, it is

relevant to note that both these witnesses are independent

and disinterested witnesses. Nothing has been brought out
36

in the cross-examination to suggest that these witnesses

had any motive to depose against the accused or to falsely

implicate him. Even though the accused has contended

that the documents in proof of occupying the said lodge

have not been seized or produced by the prosecution, yet

the evidence of these witnesses that the accused had

occupied the said lodge alongwith the deceased has not

been discredited at all in the cross-examination. Even

though the accused has posed number of questions to the

witnesses, he has nowhere contended or suggested to PW-

12 and PW-13 that on the date of the incident, he did not

stay in the said lodge. Evidence includes both oral and

documentary evidence. A fact could be proved either by

oral or documentary evidence. As long as the oral

testimony is not discredited in the cross-examination and

the witnesses are not shown to be false and

untrustworthy, merely for want of contemporaneous

documents, their testimony cannot be discarded or

disbelieved. In the instant case, PW-12 has explained the
37

reason what made him to distinctly remember the identity

of the accused and the deceased. He has justified his

testimony stating that normally the husband and wife

would come together to the lodge and vacate the room

together. But, in the instant case, the accused and the

deceased came together to the lodge as a couple but

within few hours, the accused alone left the room carrying

the bag and the baggage, and therefore he distinctly

remembers the said fact. We do not find anything unusual

in the explanation offered by him in this regard. The trial

court has also accepted the evidence of these witnesses.

On considering the evidence of these witnesses as a whole

coupled with the evidence of PW-6 and PW-7, as discussed

above, we are of the view that the prosecution has

convincingly established the fact that the accused and the

deceased were found together on the date of the incident

till they left the lodge together at about 6.00 p.m. The

evidence of PW-12 and PW-13 conclusively establish the

fact that the accused alone returned to the lodge at 8.00
38

p.m. The further events manifest that the deceased was

found collapsed in the KSRTC bus stand at about 7.30 p.m.

or 8.00 p.m. Having regard to the time gap between the

deceased last seen with the accused and tracing her dead

body in the KSRTC bus stand, in the absence of any

convincing explanation by the accused as to the cause of

her death, the last seen circumstance relied on by the

prosecution, stands duly proved. This circumstance, in our

opinion, could be taken as one of the prime circumstance

connecting the accused to the crime in question.

27. In appreciating the evidence of PW-12 and PW-

13 and the last seen theory propounded by the

prosecution, it is also relevant to note that the lodge was

situate behind the KSRTC bus stand. The case of the

prosecution is that the accused gave cyanide to the

deceased and asked her to consume it in the toilet, pass

urine and within five minutes to take tea. Apparently on

this pretext, the accused took the deceased to KSRTC bus
39

stand. The sequence of events discussed above clearly

indicate that knowing fully well that cyanide would result in

instant death within three to five minutes, the accused

rushed to the lodge by the time the deceased could meet

the death. All these circumstances, in our view, lend

assurance to the case of the prosecution that the accused

was instrumental in causing the death of the deceased by

administering cyanide.

28. In order to prove that the accused was in

possession of cyanide and that he was always carrying

cyanide with him, the prosecution has examined PW-2 a

panch witness to the seizure of cyanide from the person of

the accused. PW-2 is a panch witness to the seizure

mahazar Ex-P1. According to this witness, on 21.10.2009,

in his presence, the accused was subjected to personal

search in the police station and the police seized a mobile

phone without SIM, two small diaries and a small bottle

with red cap. In the said bottle, there was white powder
40

which was identified as cyanide and there were two

cyanide billets. All these articles were seized and a

panchanama was drawn in the police station as per Ex-P1.

During his evidence, he identified Mobile phone M.O.1, a

black bag M.O.2, a nokia hand set M.O.3, M.O.4 and 5 two

dairies, M.O.6 the small bottle with red cap containing

cyanide powder and two cyanide billets M.O.7 and cash of

Rs.500/- consisting of five notes of 100 denomination

namely M.O.8.

29. The fact that the seized cyanide billets and the

powder were sent for chemical examination is proved by

examining PW-29. PW-29 has issued report Ex-P38

certifying that the articles examined by him viz., M.O.6

and M.O.7 was cyanide powder and cyanide billets. The

evidence of PW-2 and the seizure of the above articles is

corroborated by the evidence of I.O. PW-32, who effected

this seizure. There is absolutely no reason to disbelieve the

evidence regarding seizure. It is also relevant to note that
41

the accused was arrested in connection with Cr.No.111 of

2009. Pursuant to the voluntary statement of the accused,

the investigating officer therein viz., PW-32 came to know

about the involvement of the accused in various other

offences. The voluntary disclosure made by the accused

before PW-32 has led to various recoveries and

incriminating materials, based on which, the prosecution

has launched 19 other cases against the accused. All these

circumstances lend credence to the evidence of PW-20 and

PW-32 that at the time of his arrest, the accused was

found in possession of cyanide billets and cyanide powder,

thus establishing another important link in the chain of

circumstances connecting the accused to the murder in

question. This evidence coupled with the evidence of PW-

12 and PW-13 would also go to show that the accused,

who was always carrying cyanide had opportunity to

administer cyanide to the deceased on the date of the

incident.

42

30. The source from where the accused procured

this cyanide is also proved by the examining PW-34.

According to the prosecution, pursuant to the voluntary

statement of the accused, he led PW-32 and the panchas

to “Pawan Jewellers” owned by PW-34. The panch witness

examined by the prosecution in this regard viz., PW-33 has

unequivocally stated before the court that the accused led

them to the shop of PW-34 and 10 cyanide billets and

liquid used in gold work were seized from the shop of PW-

34. This witness has stood by the case of the prosecution.

He was a signatory to the panchanama prepared in the

shop as per Ex-P42. He has identified the seized cyanide

viz., M.Os 31, 32 and 33. That these articles were

examined by chemical analyst during the course of

investigation is proved by examining PW-29 in terms of his

report at Ex-P38 that M.Os. 31, 32 and 33 were cyanide.

PW-34 K. Mohammed, the owner of the shop, no doubt,

has turned hostile to the prosecution and has denied

having sold any cyanide to the accused. But it is pointed
43

out that PW-34 was dealing with cyanide without any

licence and hence a criminal case was registered against

him under the provisions of The Poisons Act,1972 and

therefore, PW-34 has failed to support the case of the

prosecution to save his skin. The fact that a criminal case

was registered against PW-34 has been admitted by him in

his cross-examination by the Public Prosecutor. Therefore,

as rightly submitted by learned Addl. SPP, there was a

reason for him to turn hostile to the prosecution case.

Nonetheless, from the evidence of PW-33 and PW-32, who

participated in the recovery of these M.Os., it stands

proved that it was accused who led the investigating team

and the panchas to the shop of PW-34. The testimony of

PW-32 and the evidence of the Investigating Officer with

regard to the recovery is beyond doubt. From this

evidence, it stands established that M.Os. 31 to 33 were

recovered at the instance of the accused.

31. Further, PW.3 -panch witness to the recovery

mahazar Ex.P3 has confirmed in his evidence that the
44

accused took them to the house of his second wife at

Deralakatte on 22.10.2009 and produced a plastic bag

containing ten cyanide billets, fake rubber stamps and

various identity cards. He has identified all these articles

namely M.O.11 to M.O.25. This evidence also has not

been falsified in the cross-examination. It is also proved in

evidence that all the articles seized under Ex.P3 mahazar

were immediately forwarded for chemical examination

which fact further corroborates and lends credence to the

testimony of PW.3 that incriminating articles namely

cyanide billets, fake rubber stamps and various identity

cards were seized from the house of the second wife of the

accused.

32. In addition to the above recovery, the

prosecution has pressed into service another important

piece of evidence which directly connects the accused to

the offence in question. The prosecution has examined

PW.21 – the owner of Ashirwad Finance. This witness has

categorically stated that he knew the accused since 3 to 4
45

years. The accused had been frequently visiting his shop

and introduced himself as a School Teacher. In the month

of May or June of 2008, the accused sold a pair of gold

bangles weighing 13.50 gms., one necklace of 12.380

gms., one chain weighing 6.470 gms., and one pair ear

stud weighing 2.650 gms., for Rs.45,000/-. In respect of

the said transaction, on 5.12.2009, the accused once again

came to his shop along with the police and at the instance

of the accused, he returned the said ornaments. He

identified these ornaments as M.O.26 to M.O.29.

33. The accused has disputed the evidence of

PW.21 contending that PW.21 has not produced any

documents in proof of the sale transaction. The contention

of the accused is that the entire recovery is planted and

PW.21 is a propped up witness. On assessing the evidence

of PW.21, we are not inclined to accept this argument. As

already noted above, PW.21 is not a stranger to the

accused. The statement made by him on oath indicates

that he was knowing the accused since four years prior to
46

the said transaction. This has remained unchallenged.

The only suggestion made to this witness in the witness

box is that the accused was sitting in the jeep outside his

shop during the mahazar. But this suggestion does not

falsify the evidence of PW.21 with regard to the fact that

the accused had sold M.O.26 to M.O.29 to him for

Rs.45,000/- as asserted by PW.21. No circumstances are

brought out in the cross-examination to suggest that the

recoveries are planted or that he had any motive to

depose against the accused that too while parting with

huge quantity of gold of the value of Rs.45,000/-. He has

also given the reasons for retaining the ornaments in the

same form. More over, the testimony of PW.21 and the

recovery of these ornaments have been corroborated by

the testimony of PW.15 – the panch witness who

participated in the recovery. He has categorically stated

on oath that the accused led him and another panch to the

shop of PW.21. He has asserted in his evidence that the

accused identified the owner and the accused disclosed the
47

transaction and at the instance of the accused, the

ornaments at M.O.26 to M.O.29 were returned. We do not

find any reason to doubt or disbelieve the testimony of

these two independent witnesses. The accused has not

brought out any circumstances discrediting the testimony

of these witnesses. It is proved in evidence that the

articles recovered at the instance of the accused are duly

identified by the mother of the deceased as well as her

cousin-sister of the deceased as belonging to the

deceased.

34. The accused has taken up a plea that the

entire theory of missing of the gold ornaments is an

afterthought. He contends that the mother of the

deceased did not complain of any missing ornaments at

the earliest instance when she participated in the inquest

proceedings. He has placed reliance on the evidence of

PW.26 to contend that PW.26 – P.S.I., who registered the

UDR case has categorically stated in his chief examination

that he returned four rolled gold articles to the mother of
48

the deceased under acknowledgement, which goes to show

that the ornaments found on the body of the deceased

were returned to PW.6 and therefore, there was no

occasion whatsoever for PW.6 to complain of any missing

ornaments. The accused would further contend that the

allegation of missing of the gold articles was made for the

first time in the complaint lodged by PW.6 on 3.11.2009,

about 12 days after his arrest on 21.10.2009. All these

circumstances go to show that the allegation of missing of

the ornaments is patently false and the recoveries

projected by the prosecution are fabricated.

35. We do not find any merit in the above

contention. On going through the evidence of PW.26, we

find that the statement made by him that he returned the

gold ornaments to PW.6 is wholly incongruous and

inconsistent to the case of the prosecution. Undisputedly,

PW.26 was the S.H.O. who registered the unnatural death

case based on the death memo submitted by the A.S.I.-

PW.14. At that stage, there was absolutely no occasion for
49

PW.26 either to receive the ornaments found on the body

of the deceased or to return them to PW.6. It is not the

evidence of PW.21 that he returned these articles after the

conduct of the post mortem examination. His evidence is

silent as to when he returned them to PW.6. No

acknowledgement has been produced. On the other hand,

the contents of the inquest mahazar Ex.P31 indicate that

only a saree, blouse, bra and skirt and innerwear were

found on the body of the deceased and they were left in

the same condition which were collected by the Medical

Officer after the post mortem examination and returned to

the concerned. The evidence of PW.26 that he returned

four rolled gold articles to PW.6 does not find support from

the evidence and the material on record. On the other

hand, the contents of the inquest mahazar indicate that

except the clothes, no other articles were found on the

body of the deceased. It is the consistent case of the

prosecution that after the arrest of the accused, the gold

ornaments belonging to the deceased were recovered
50

pursuant to his voluntary statement. The prosecution has

proved this fact with cogent and convincing evidence.

Likewise, the prosecution has also established in evidence

that the articles recovered at the instance of the accused

have been duly identified as that of the deceased. As a

result, we hold that the prosecution has convincingly

established this circumstance furnishing another link to the

chain of circumstances.

36. Insofar as the delay in intimating the missing

of the gold ornaments worn by the deceased on the date of

the incident is concerned, though the accused has

contended that the details of the said missing articles were

disclosed for the first time in the complaint lodged by PW.6

before the police and therefore, the said allegation cannot

be given any credence, but in appreciating this contention

it is necessary to take into consideration the circumstance

in which the so-called written complaint came to be

lodged by PW.6. In this regard, it is relevant to note that

the information of the commission of a cognizable offence
51

was available with the police at Mysuru when the case was

registered by PW.26. Here itself it is important to note

that at the earliest instance, while giving her statement

before the Taluka Executive Magistrate during the inquest

proceedings, the mother of the deceased (PW.6) had

specifically named the accused stating that at the instance

of the accused, the deceased had left the house carrying

cash and the gold and her belongings with her. This infact,

in our view, is the first information of the offence

committed by the accused. But unfortunately, except

registering the case in unnatural death register, the Police

at Mysuru appear to have not undertaken any investigation

except conducting the formalities of the inquest and the

P.M. examination. Even the statement of the mother of

the deceased and her other relatives were not recorded

and therefore, there was no occasion either for PW.6 or

any other relatives of the deceased to complain about the

missing of the ornaments. The statements recorded

during the inquest proceedings appear to have been
52

confined to the apparent cause of death and except

suspecting unnatural death, real cause of death was not

known at that point of time. Even the Medical Officer had

reserved his opinion as to the cause of death. As the

circumstances reveal, the accused remained untraceable

until he was arrested after 1 year 8 months from the date

of the incident. It is only when the accused was arrested

and his photos were displayed in the notice board and the

news were flashed in the T.V., the cousin-sister of the

deceased namely PW.7 having identified the accused as

the person at whose instance the deceased had left the

house on the date of the incident, prompted PW.6 to lodge

the complaint directly implicating the accused. It is in this

complaint at Ex.P6 she has narrated all the details leading

to the death of the deceased wherein she has also

furnished the details of the gold ornaments worn by the

deceased on the date of the incident. Therefore the delay

whatsoever in disclosing the details of the missing articles

has to be understood in the above background. Having
53

regard to the overall facts and circumstances of the case,

in our view, the delay either in lodging the complaint at

Ex.P6 or the details of the missing articles narrated therein

do not in any way militate against the case of the

prosecution nor does it weaken the credibility of the

testimony of PW.6 with regard to the identification of gold

ornaments worn by the deceased on the date of the

incident. Hence, the objection raised by the accused in

this regard is rejected.

37. During the course of investigation, Test

Identification was conducted by the Tahsildar – PW.17.

According to the prosecution, PW.7 – the cousin-sister of

the deceased identified the accused in the said Test

Identification Parade. This evidence, in our view, does not

advance the case of the prosecution to any extent. It is

seen that in the complaint lodged by PW.6 on 3.11.2009,

she has clearly stated that on seeing the photographs in

the newspaper and the news published in the T.V., PW.7

identified the accused as the person who had promised to
54

marry the deceased and at whose instance, deceased had

left the house on the date of incident. The evidence of

PW.6 and PW.7 go to show that based on this

identification, PW.6 was prompted to lodge the complaint

specifically implicating the accused. Therefore, the

identification of the accused having been made by PW.7

much prior to the test identification conducted by the

Tahsildar, in our opinion, this circumstance does not help

the prosecution to support its case.

38. The prosecution has also examined PW.5,

Archak of Sri.Annapurneshwari Temple to substantiate the

circumstance of extra judicial confession said to have been

made by the accused after the commission of the offence.

The evidence of PW.5 goes to show that on 19.6.2009, the

accused came to his temple and asked him to suggest a

remedy for expiation of the sins committed by him (Sthree

Hathya Dosha Parihara). He further deposed that the

accused confessed before him that he had taken a lady by

name Anitha to Hassan and had sexual intercourse with
55

her and thereafter, committed her murder by poisoning

her. This evidence undisputedly relates to the offence

committed by the accused in relation to one Anitha.

Nonetheless the evidence given by PW.5, in our opinion,

becomes relevant as to the conduct of the accused before

and after the commission of the offence. As indicated by

PW.5 in his evidence, the accused sought for a remedy for

expiation of the sins committed by him namely murders of

women. Therefore, in our opinion, the evidence of PW.5

could be relied on in proof of the conduct of the accused

before and after the commission of the offences.

39. The prosecution has relied on the evidence

PW.1 and PW.4 to throw light on the modus operandi

adopted by the accused in carrying out his sinister designs.

PW.1 Shanti has deposed before the court that in the year

2009, in January, while she was on her way to S.R.

Jewellers, she met the accused. The accused introduced

himself as Sudhakara Achary and enquired her about the

place of her work. He took her mobile number and
56

thereafter he was in touch with her over phone. This

witness has deposed that on 12.04.2009, the accused

called to her mobile and asked her to come to Madikeri for

an interview in a garment factory. Believing the accused,

on 13.4.2009, at about 2.30 p.m., she came to B.C. Road

bus stand as instructed by the accused. She has further

narrated that the accused instructed her to come to the

bus stand wearing gold ornaments and good dress.

Accordingly, she left the house informing her parents that

she would be going to her friend’s house. The accused took

her in a bus to Madikeri and on the way, he asked her to

wear rolled gold chain brought by him. In the night, he

took the gold ornaments worn by her. This witness further

stated that while occupying the lodge, the accused

furnished his name and address as Sudhakar Achary, S/o.

Ramaiah Achary, Kajimane, Nala Post, Karkala Taluk,

Udupi District. The accused wrote down the mobile number

of PW-1 in the register. In the night, after food, inspite of

her objections, the accused committed forcible intercourse
57

on her wearing nirod. Next day morning, he asked her to

get ready for the interview and specifically instructed her

not to wear any gold ornaments. Thereafter, on the

pretext of taking her to the interview, he took her to the

KSRTC bus stand at Madikeri. It was about 7.30 a.m. The

accused handed over a small bottle which contained some

powder and gave her a bottle of water and asked her to go

to the toilet and take the said powder alongwith water and

to return after passing urine. The accused convinced her

that the said medicine had to be taken to stop pregnancy.

PW-1 deposed that when she told him that there was no

such necessity as he was wearing nirod, the accused told

her that during the incident, the said nirod had torn. PW-1

further deposed that she went to the toilet and tasted a bit

of the powder and immediately, she felt burning sensation

and collapsed on the ground. She lost her consciousness

and when she regained consciousness, she found herself in

the hospital. She has specifically deposed in her evidence

that she did not narrate this incident to the police as it
58

would hamper her family reputation. However, after the

incident in question was published in the newspaper, she

was emboldened to narrate the events that had taken

place with her, to the police.

40. The accused has challenged the version of PW-

1 contending that she is a false witness got up by the

police to bolster up the theory of modus operandi

projected by it. But in appreciating the evidence of this

witness, it is relevant to note that in order to corroborate

her oral testimony, the prosecution has examined PW-32 –

the Investigating Officer and through him, the register

(Ex.P43) and the relevant entries therein at Ex.P43(a) to

(c) maintained in Vinayaka Lodge have been marked.

These documents offer ample corroboration to the

testimony of PW.1. Even otherwise, on going though her

cross-examination, we do not find that the accused has

been able to demolish or discredit her version to any

extent. The very tenor of the cross-examination suggests

that she was a victim at the hands of the accused. Her
59

evidence further establishes the fact that the accused was

disguising himself in different names in order to carry out

his evil designs.

41. The testimony of PW.1 finds suitable

corroboration in the testimony of PW.4. This witness has

also narrated the manner in which the accused used to

lure the innocent girls. According to her, about six years

prior to her examination before the court, one day while

she was going for her work, the accused followed her and

asked about her occupation. He introduced himself as

Ananda Poojari. Even though PW.4 told him that she is

married, the accused pressurized her to marry him. She

has narrated the incident that took place on 17.6.2009

wherein she saw the accused and another victim namely

Anitha standing together in B.C. Road bus stand. Her

evidence also goes in support of the prosecution case with

regard to the manner in which the accused used to adopt

fictitious names and persuade the ladies to accompany

him. The identity cards seized from the house of the
60

accused lend corroboration to the testimony of this witness

to show that the accused has been using these identity

cards to entice innocent girls.

42. The prosecution has examined PW.24 – the

Sub-Inspector of Venur Police Station to prove the fact

criminal antecedents of the accused. According to this

witness, on 8.12.2005 when he was in the Police Station,

he was informed that a mob of 100 persons had caught

the accused and were questioning him. On going to the

spot, he found that the accused was taking a girl in a

suspicious manner. When he enquired the accused, the

accused disclosed his name as Bhaskar Vittla. He brought

him to the Police Station and registered a case against him

under sections 109 and 116 of Cr.P.C. Through this

witness, the prosecution has marked the copy of the F.I.R.

in Cr.No.92 of 2005. Thus the prosecution has produced

abundant evidence to prove the various circumstances to

bring home the guilt of the accused for the various
61

offences charged against him and also to prove his conduct

and motive for the commission of the said offences.

43. It is now well settled that in a case based on

circumstantial evidence, the circumstances from which the

conclusion of guilt is drawn should be fully proved and

such circumstances must be conclusive in nature. There

should be no gap left in the chain of circumstances.

Further, the proved circumstances must be consistent only

with the hypothesis of the guilt of the accused and totally

inconsistent with his innocence. In the instant case, the

circumstances proved by the prosecution, in our opinion,

form a complete chain unerringly pointing out the guilt of

the accused for the murder of the deceased. It is

established beyond pale of doubt that the accused took the

deceased with him to Uma Maheshwari Lodge on the date

of the incident and at about 7.30 p.m., he took her to

KSRTC bus stand and returned alone leaving her to die in

the toilet. The circumstance of the deceased last seen with

the accused, as already discussed above, in the absence of
62

any explanation by the accused for her unnatural death

would lead to an inevitable conclusion that the deceased

was put to death by the accused. It is further proved that

the deceased died due to consumption of cyanide. The

manner in which the poison was administered to the

deceased and the place and the time of the incident and

the sudden disappearance of the accused from the lodge

are suggestive of the fact that the accused administered

the deadly poison to the deceased and thereafter, made

good his escape by checking out from the lodge.

44. The fact that the accused was found in

possession of cyanide billets and that he had stored

substantial quantity of cyanide in the house of his second

wife has been proved with cogent and convincing evidence.

The accused was also found in possession of cyanide at the

time of his arrest. If this evidence is considered in the

context of the cyanide being found in the stomach of the

deceased, it leads to the inference that the death was

caused by administering cyanide to the deceased. The
63

possession of poison and the evidence relating to

procurement of the poison as proved by examining PW.34

establishes another significant step in proof of the

commission of the offence. The circumstances discussed

above would clearly indicate that until her death, the

deceased was not found in the company of any person

other than the accused. Therefore, the possibility of any

other person administering poison to the deceased gets

ruled out. The recovery of the gold ornaments at the

instance of the accused establishes the fact that the

murder was committed by him for gain.

45. Though the prosecution has not been able to

prove the ingredients attracting the offence under section

376 of Indian Penal Code, yet by examining PW.1 and

PW.4, the prosecution has proved the modus operandi

adopted by the accused which, in our opinion, proves the

conduct of the accused before and after the commission of

the offence. The documents seized from the possession of

the accused namely the visiting cards containing his
64

photographs but bearing the names of Shashidhar Poojari,

Shashidhar Bhandari, S.Anand, Sudhakar Rai, Manohar,

K.Sudhakar, Sudhakar Acharya, Sudhakar Kulal, Sudhakar

Rao, Sudhakar Kothwari, K.Sanjeev and Mohan Kumar

establishes the fact that the accused was using these

names to disguise himself in committing the offences

charged against him. The accused was found inducing

gullible women with the false promise of securing job or

getting married and later administering deadly poison and

robbing their valuables. Concealing his identity and

disguising his person is a clear proof of the guilty intent

and the motive of the accused.

46. Thus on overall consideration of all the above

facts and circumstances, we are of the considered opinion

that the prosecution has proved the guilt of the accused

beyond reasonable doubt for the offence under section 302

of Indian Penal Code. The trial court therefore was

justified in convicting the accused for the said offence. We

do not find any error or infirmity whatsoever in the finding
65

recorded by the trial court on this charge. Even on

reconsideration of the material on record, we do not find

any reason to differ with the view taken by the trial court.

As a result, the conviction of the accused for the offence

under Section 302 Indian Penal Code is hereby confirmed.

47. We further hold that the prosecution has

successfully proved that the accused committed the above

murder with an intent to rob the gold ornaments and the

valuables of the deceased. It is proved in evidence that on

committing the murder of the deceased, the accused

carried away the gold ornaments of the deceased and the

same were recovered at the instance of the accused,

thereby establishing the ingredients of offence under

section 394 Indian Penal Code. Consequently, the

conviction of the accused for the said offence is confirmed.

48. In view of the conviction of the accused for the

offence under section 394 Indian Penal Code, we are of the

view that the charge under section 392 Indian Penal Code
66

being redundant, the accused is liable to be acquitted of

the said charge.

49. The circumstances proved by the prosecution

also make out the guilt of the accused for the offences

under sections 328 and 417 Indian Penal Code. We have

already recorded a finding to the fact that the accused was

in possession of cyanide. It is also proved in evidence that

cyanide was used for the murder of the deceased. As a

result, we hold that the prosecution has established the

ingredients of the offences under sections 328 and 417

Indian Penal Code. Consequently, the conviction of the

accused for these offences is upheld.

50. However, considering the material on record,

we are of the view that the prosecution has failed to prove

the guilt of the accused for the offences under sections

376 and 366 Indian Penal Code. We do not find any

reliable evidence in proof of these charges. The medical

evidence is silent about the sexual assault on the
67

deceased. PW-20 has unequivocally admitted in his

evidence that he did not examine the private parts of the

deceased nor he found any external injuries on the

deceased. He has not furnished any opinion leading to an

inference that the deceased was subjected to sexual

intercourse prior to the murder. The medical evidence does

not help the prosecution to substantiate the charge under

section 376 Indian Penal Code. Though the circumstance

in which the deceased was made to consume poison on the

belief that it was a medicine to stop pregnancy would

create a strong suspicion that sexual intercourse might

have been committed preceding the consumption of

poison, yet in the absence of any evidence in proof of rape

and forcible sexual assault on the deceased, in our view,

this charge is bound to fail.

51. Likewise, the evidence produced by the

prosecution does not make out the offence under section

366 Indian Penal Code. Though there is material to show

that the accused took the deceased with him on the
68

pretext of marrying her, there is absolutely no evidence

that the accused took the deceased with an intent to

compel or to have sexual intercourse. As already stated

above, the factum of sexual intercourse has not been

proved. Even though Section 366 of Indian Penal Code

has been invoked, the material on record suggests that it

is a clear case of murder for gain. Therefore, having regard

to the evidence produced before the court, we hold that

the prosecution has failed to establish the offence of

abduction under Section 366 Indian Penal Code. As a

result, the accused is liable to be acquitted of this charge.

52. For the foregoing reasons, we hold that the

accused is liable to be convicted for the offences

punishable under sections 302, 394, 328 and 417 of Indian

Penal Code. To this extent, the impugned judgment

warrants to be affirmed.

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53. In so far as offences under sections 376, 366,

201 and 392 of Indian Penal Code are concerned, the

accused is liable to be acquitted of the said charges.

54. We have heard the learned Additional Special

Public Prosecutor and the accused on the question of

sentence.

55. The accused pleads for setting-aside the death

penalty awarded by the Trial Court. He submits that the

facts of the case do not fall within the category of “rarest

of rare case”. Even though numerous charges were

framed against him, the material charges under sections

366, 376, 392 and 201 are not proved and therefore,

death penalty cannot be maintained. Further he submits

that he has divorced his first wife and his third wife has

also presented a petition seeking divorce. He has to look

after his second wife and therefore, he pleads for a lenient

view.

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56. The learned Addl. Special Public Prosecutor has

filed a memo furnishing the details of 20 cases registered

against the accused. He has narrated the status of each

case and the charges framed therein against the accused.

He further submits that the accused has conducted himself

in a most despicable and mean manner. The charges

proved against him indicate that with intent to commit

robbery, he lured the deceased on the false promise of

marrying her and took her to a remote lodge and

administered cyanide to her. Further he submits that the

accused was a School Teacher by profession. The witness

examined by the prosecution namely PW.16 -the Block

Education Officer has produced the service register of the

accused which indicates that ever since 2002, the accused

continuously remained absent from his duty. From 2004,

he was unauthorisedly absent and a departmental enquiry

was initiated against him. Only for one day on 2.8.2005

he marked his attendance in the school and from the next

day onwards, he remained unauthorisedly absent, as a
71

result, he had to be dismissed from service on 3.11.2009.

Learned Addl. Special Public Prosecutor submits that the

accused having committed the above offence when he was

a Government servant aggravates the offence proved

against him. Therefore, there is absolutely no mitigating

circumstance to take any lenient view in the matter. The

learned Addl. Special Public Prosecutor further submits

that the first case was registered against him, in the year

2002 and therefore, he has involved himself in such

heinous offences in more than 20 cases. He has already

been sentenced to life imprisonment till the end of his life

without any remission by this court. He has also suffered

conviction in two other cases as mentioned in the memo

filed before this court. Therefore, there is absolutely no

reason to commute the death sentence imposed by the

Trial Court.

57. We have considered the submissions made by

the accused as well as learned Addl. Special Public

Prosecutor. We find from the impugned order that the trial
72

court has weighed the aggravating and mitigating

circumstances and having held that the aggravating

circumstances far outweigh the mitigating circumstance

has chosen to impose the extreme penalty provided under

section 302 Indian Penal Code. The aggravating

circumstances recorded by the trial court are as follows:-

1. Offences proved against the accused
in S.C.No.32 of 2010, are Sections
366, 376, 328, 392, 394, 417, 302,
201 of I.P.C.

2. Offences proved against the accused
in S.C.No.96 of 2010, are Sections
376, 328, 302, 392, 201, 366, 394,
417, 465, 468, 473 of I.P.C.

3. Offences proved against the accused
in S.C.No.97 of 2010, are Sections
366, 376, 328, 392, 394, 417, 302,
201 of I.P.C.

4. The accused was a Public servant.

5. The accused has been found guilty of
three murders of young, unmarried
and innocent women.

6. There was no previous enmity
between the parties nor was there
grave or sudden provocation which
had compelled the accused to take
the life of the innocent women.

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7. The murder of three women on
different occasion makes this case of
extreme culpability.

8. The manner in which the deceased
was murdered, the approach and
method adopted by the accused
disclose the traits of outrageous
criminality in the behaviour of the
accused and the premeditated action.

This approach of the accused reveals
a brutal mind set of highest order.

9. The accused has been charge sheeted
for the same offences in twenty
cases. At present, in three cases the
accused has been found guilty and in
other seventeen cases, he is facing
trial for the similar offences.

10. In three cases it is proved that the
accused is successful in his planning,
preparation and commission of crime.

11. The accused being educated, while
serving as a Government School
Teacher, without showing devotion to
duty and remaining absent again and
again for considerable period,
hatched a plan, chosen the wrong
way and cheated, abducted, raped,
brutally murdered innocent,
unmarried deceased and robbed her
cash and golden ornaments for gain
and planned for the same act again
and again against other victim
woman.

74

12. The accused designed in such a way
for the commission of crime which
was beyond the imagination of
ordinary prudent man.

13. The crime committed by the accused
is so brutal that it pricks or shocks
not only the judicial conscience but
even the conscience of the society.

58. Further the Trial Court has considered the

parameters and the guidelines laid down in the

Constitution Bench decision in BACHAN SINGH vs. STATE

OF PUNJAB (1980) 2 SCC 684 as well as MACHCHI SINGH

Others vs. STATE OF PUNJAB, 1983 SCC (Cri) 681 and

having come to the conclusion that the facts proved

against the accused satisfy the parameters laid down in

the above decisions, has held that the case in hand

qualifies to be a “rarest of rare case”. We are in complete

agreement with the trial Court. On consideration of the

overall facts and circumstances of the case, we are of the

view that the facts of this case bear eloquent testimony to

the moral depravity of the accused. His repeated
75

involvement in similar offences indicates that he is a

hardened criminal. He has no qualm of conscience, no

remorse, no compunction, no heart or emotions. Two of

the victims who survived his attempts have confronted him

in the dock, but he has shamelessly faced them, but could

not disprove the venality spewed on him. He is not a first

offender but proved to be a maniac and serial killer.

Having regard to his previous conduct, we are of the

considered view that he is beyond reformation and cannot

lead an acceptable life in the society. The material

produced before the court indicates that he is involved in

more than 20 cases during the span of six years between

2004 and 2010. In all these cases, the common allegation

is that the accused has been administering cyanide to the

victims and thereafter robbed valuables from their

possession, pledged or sold them to make gain. The

seizure of large quantity of cyanide powder, fake seals and

visiting cards speak for the criminal mind of the accused

which is also discussed in the preceding part of the
76

judgment. All these circumstances, in our opinion, makes

the instant case different from any other run of the mill

case warranting ordinary punishment of simple

imprisonment. As per the memo filed by the learned Addl.

Special Public Prosecutor, he has already suffered

conviction in two cases. Though in Crl.R.C.No.5 of 2014

c/w. Crl.A.No.178 of 2015, this court has altered the death

sentence imposed by the Trial Court and sentenced him to

incarceration till the end of his life by saving him from the

gallows, but having confronted with the similar offences

proved against him, we are of the view that giving him a

new lease of life would be a travesty of justice. As held by

the Hon’ble Supreme Court in STATE vs. NALINI Others,

(1999) 5 SCC 253:

“… the measure of
punishment in a given case must
depend upon the atrocity of the
crime; the conduct of the criminal
and the defenceless and unprotected
state of the victim. Imposition of
appropriate punishment is the
77

manner in which the courts respond
to the society’s cry for justice
against the criminals. Justice
demands that courts should impose
punishment befitting the crime so
that the courts reflect public
abhorrence of the crime. The courts
must not only keep in view the
rights of the criminal but also the
rights of the victim of crime and the
society at large while considering
imposition of appropriate
punishment.”

59. Similar view is expressed by the Hon’ble

Supreme Court in a recent decision in RAJ BALA VS. STATE

OF HARYANA OTHERS (2016) 1 SCC 463, wherein the

Hon’ble Supreme Court has observed that,

“One cannot remain a total
alien to the demand of the socio-

cultural milieu regard being had to
the command of law and also brush
aside the agony of the victim or the
survivors of the victim. Society
78

waits with patience to see that
justice is done. There is a hope on
the part of the society and when the
criminal culpability is established
and the discretion is irrationally
exercised by the court, the said hope
is shattered and the patience is
wrecked. It is the duty of the court
not to exercise the discretion in such
a manner as a consequence of which
the expectation inherent in patience,
which is the ‘finest part of fortitude’
is destroyed.”

60. On considering the overall facts and

circumstances of the case, we are of the view that the

accused is proved to be a potential threat to the society at

large and womenfolk in particular. He has indulged in the

most despicable and gruesome murders. His repetitive

involvement in the gruesome murders and allied offences

has left the society vulnerable at his hands, leaving no

more discretion in our hands, to commute the death
79

sentence awarded by the Trial Court. We find that the

learned Trial Judge has awarded death sentence after

hearing the accused and the prosecution and after

assessing the mitigating and aggravating circumstances

only after reaching the conclusion that the prosecution has

proved the case beyond reasonable doubt. Even after

reassessing the entire material and after hearing the

accused and the learned Additional Special Public

Prosecutor, we do not find any reason to differ from the

conclusion arrived at by the Trial Court either in the

conviction or in the quantum of punishment awarded by

the Trial Court.

61. Thus, on ultimate analysis of all the above

facts and circumstances, the gravity and magnitude of the

offences proved against the accused, the depraved manner

in which he committed the crime, the nature and conduct

of the accused, his criminal antecedents, the manner in

which the offence was planned and executed against an

innocent and helpless woman, the nature of the substance
80

used for the commission of the offence, the repeated

involvement of the accused in similar crimes and in view of

the fact that the accused is beyond reformation and he is

proved to be a menace to the society and a veritable

threat and danger to the life and liberty of the womenfolk

in particular, we are of the view that the death sentence is

the appropriate, just and adequate sentence that deserves

to be imposed on the accused for the offence of murder

proved against him.

Accordingly, Crl.R.C.No.3 of 2014 under section

366(1) of Cr.P.C. is hereby allowed. The death sentence

awarded on the accused for the offence under section 302

of IPC is confirmed.

The Crl.A.No.177 of 2015 filed by the accused is

allowed in part. The appellant/accused is acquitted of the

charges under sections 366, 376, 392 and 201 of IPC. The

conviction and sentence of the appellant/accused for the
81

offences punishable under sections 302, 394, 328 and 417

is confirmed.

Sd/- Sd/-
JUDGE JUDGE

jj.mn.bss.

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