1
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)
2
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
3
(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
15
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
17
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
26
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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.