TMI Blog1988 (4) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... the sentences are directed to merge in the sentence of death. Appellant No. 2 Shivaram Shetty, father of appellant No. 1, a retired Sergeant Major of the Indian Air Force, re-employed as Security Officer, Karnataka Bank, Main Branch, Mangalore has been convicted by the learned Additional Sessions Judge under s. 212 for having harboured his son Laxmi Raj Shetty having known or having reason to believe that he had committed the murder of the Bank Manager and disappeared with a very large sum of money from the Bank and also under s. 411 for having with dishonest intention retained possession of the huge sum of ₹ 12,27,500 knowing the same to be stolen and sentenced to undergo rigorous imprisonment for a period of three years on both counts; the sentences have been ordered to run concurrently. On a reference by the learned Additional Sessions Judge, a Division Bench of the High Court by its judgment dated September 1, 1986 has confirmed the sentence of death passed on appellant No. 1 Laxmi Raj Shetty under s. 366 of the Code of Criminal Procedure, 1973 as also the conviction and sentences passed on him under ss. 392 and 449 of the Indian Penal Code and those under ss. 212 and 41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lerk at the Main Branch in the month of August 1982, placed on probation in October 1982 and thereafter confirmed in the month of April 1983. It has come in evidence that the accused Laxmi Raj Shetty and the deceased Gnanasambandham were known to PW 18 from before as they both used to leave the Bank premises together at night around 9 or 9.30 p.m. The accused was a karate expert and always attired in a red T-shirt carrying a karate bag on his shoulder. He was thus a man with distinctive features and would naturally stand out in a crowd. All the other witnesses examined by the prosecution to prove the various circumstances appearing in the case after the gruesome murder speak of the person involved being a tall, fair-complexioned young man with curly hair, aged about 24 or 25 years. The evidence also shows that PW 50 Deviasigamani, Inspector of Police who was investigating into the crime carried with him a photograph of the accused Laxmi Raj Shetty and when the witnesses were shown the photograph, they identified the accused to be the person in question. According to the prosecution, on the fateful night i.e. On May 20, 1983 the deceased Gnanasambandham was, as usual, working in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f official stationery for stitching papers. He had apparently been done to death to relieve himself of the first set of keys. At bout 9 p.m. the accused was seen coming out of the building by PW 18 Smt. Kanaka, a flower vendor, sitting on the steps of the Bank. The accused closed the outer door of the Bank and was seen by PW 18 going towards Burma Bazar. He returned after some time with a light blue colour suitcase and re-entered into the Bank premises. After about half an hour he came out with a bag on his shoulder, the blue colour suitcase in one hand and a brief case which the deceased used to carry with him, in the other and placed the suitcase on the steps of the Bank. He again went inside and brought out a large coffee coloured skybag and placed it beside the suitcase. He then went towards Burma Bazar and came back with an auto-rickshaw and with the help of PW 31 Venkatesan, auto-rickshaw driver, placed the suitcase and the skybag in the autorickshaw and disappeared into the night. The testimony of PW 18 is that she repeatedly queried whether the Periya Ayya, meaning the elderly person or the Manager Ayya thereby meaning the deceased had not come but the accused did not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of keys the strong room was opened at about 2.30 p.m. and a sum of ₹ 13,97,900 was found missing. A message was then transmitted by PW 3 to PW 10. P. Raghuram, Chairman of the Karnataka Bank at the Mangalore Head office about the murder of the Actg. Manager and the theft of ₹ 13,97,900 from the strong room. PW 43 Dr. Cecilia Cyril, Associate Professor, Department of Forensic Medicine, Medical College, Madras performed an autopsy on the dead body of the deceased. She found that the deceased had been strangulated by a dark colour twisted towel 36x7 c.m. long with knot which completely encircled his neck near the thyroid cartilage. She found several external injuries. Underneath the towel there was a faint ligature mark 32x5 c.m. over the front side and back of the neck. Apart from this, there were also several lacerations, bruises and abrasions on the upper part of the body, particularly on the face and the neck as also on both the hands. The doctor also found two stitchers measuring 14 c.m. in length thrust into both sides of the neck in the front. One of the stitchers had been thrust 5 c.m. deep and got stuck in the cartilage and the other was embedded 11 c.m. deep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... di and instead left a message that on her return she should report to the police. He admits that he did not go himself to Krishna Bhawan Hotel but sent a Police Constable but he could not find Neerappan. On the 23rd morning at 10 a.m. PW 50 Deviasigamani, Inspector of Police (Crimes), B2 Police Station who had taken over investigation in that morning, went to the Bank and further examined PW 2 Mallaiya, PW 3 P.T. Rajan and PW 12 Balasubramaniam, as also the nearby shopowners. He then went to village Tharamani in search of PW 18 Smt. Kanaka but till then she had not returned from her sister's house at Vyasarpadi. He left a message that she should report to the Police Station on her return. On that day he had also inspected all the relevant records including the attendance register and detected that apart from two others, the accused Laxmi Raj Shetty did not report for duty after the 23rd. He accordingly went to the Christian Home where the accused was staying in Room No. 4 but found the room locked. He examined PW 27 Thirupathi, mess boy and learnt that the accused did not come for supper on the 20th night and therefore he had kept his food. It was revealed that the main gate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etty at Mangalore and neighbouring places but could not trace him out. On the 27th night at about 9 p.m. PW 50 along with the police party left for Madras and reached there in the early hours of 29th morning at 1 a.m. At 7.30 p.m. PW 50 along with PW 49 and the police party went to the Aerodrome, Egmore Railway Station and the Madras Central in search of the accused Laxmi Raj Shetty. At the Madras Central, PW 50 received information at about 1.45 p.m. that the accused was seen moving about in My Lady's Park. He accordingly with the police party rushed to the Park where he arrested the accused Laxmi Raj Shetty and recovered from his person currency notes in bundles of ₹ 5 denomination marked MOs Nos. 198 and 199 bearing the Bank seals. On the 30th morning at 7.15 a.m. PW 50 accompanied by the accused visited the Hotel Chola Sheraton but except for the receptionist the other witnesses were not present. Apparently during investigation PW 50 derived information from the accused Laxmi Raj Shetty that the money stolen from the Bank was kept in his house at Mangalore. At about 9.30 a.m. he accordingly went to the Madras Central presumably because he thought that appellant no. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the offender to escape. He said that rumours were bound to sidetrack and mislead the public and even police officers concerned in solving the crime. After the function the Police Commissioner is reported to have told newsmen that the accused Laxmi Raj Shetty had been taken into custody on Sunday afternoon i.e. the 29th and had confessed that the cash removed from the strong room had been secreted out to Mangalore where his father lived. He informed that a police party was already there and the father Shivaram Shetty was likely to be nabbed anytime. In the meanwhile, the family of the appellants suffered a great tragedy. On the 30th Smt. Madhavi, wife of appellant No. 2, employed as a School Teacher at Mangalore and his daughter Kumari Usha Rani, an employee of the State Bank of Mysore, Hassan Branch out of the sheer shame could not bear the humiliation and committed suicide by walking into the Arabian Sea. The Indian Express and the Hindu of the 31st carried the news of their suicide and it was reported that their bodies were washed ashore on the Someswar-Ullal Beach on the outskirts of Mangalore. The appellants abjured their guilt and denied the commission of the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o established are consistent only with the hypothesis of their guilt and exclude every reasonable possibility of their innocence. He accordingly convicted the accused with the commission of the offences with which they were charged and sentenced them as above. Ratnavel Pandian, J. speaking from himself and Singaravelu, J. constituting the Division Bench, in a singularly well- written judgment, has carefully marshalled the entire circumstantial evidence and come to the conclusion that the prosecution has established its case against both the accused beyond all reasonable doubt and accordingly maintained the conviction and sentences passed by the learned Additional Sessions Judge. The prosecution case against the appellants rests purely on circumstantial evidence. The circumstances relied upon by the prosecution against the principal accused for the charges of murder androbbery which were parts of the same transaction are: (i) The fact that the accused Laxmi Raj Shetty was seen leaving the building on the fateful night at about 9 p.m. as testified by PW 18 Smt. Kanaka, the flower vendor, sitting on the steps of the Bank after finishing her day's work and the fact that the dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar and bringing an auto-rickshaw, placing the suitcase and the sky-bag with the help of the auto- rickshaw driver in the auto-rickshaw and disappearing towards the High Court. (vi) His act of not responding to the queries put by PW 18 about the deceased whom he used to accompany every night on closing the Bank. (vii) His act of not returning to the Christian Home where he stayed and instead staying at Hotel Chola Sheraton on the night of 20th and the whole of 21st. He obviously stayed at the five star hotel for reasons of safety as he was carrying the huge amount of about ₹ 14 lakhs. (viii) His visit to Christian Home early in the morning of 21st at 5 a.m., going to the room, taking bath, collecting his belongings and not taking breakfast saying that his stomach was upset. (ix) His act of attending to his duties at the Bank on the 21st to allay suspicion, making reservation of a first class berth by train no. 27 and leaving Madras for Mangalore on the morning of the 22nd which was a Sunday (x) On reaching Mangalore on the 23rd morning at 6 a.m., his act of not proceeding to the family house there but instead staying at Hotel Moti Mahal along with the suitcase and the bag cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the person involved in the commission of murder and robbery, he would have at once flashed a message to the Mangalore police to intercept him particularly in view of the fact that a huge amount of about ₹ 14 lakhs was stolen from the Bank. On their own showing, a police party consisting of PW 50 accompanied by PW 49 instead left for Mangalore in the early hours of 26th morning, reaching there at 9.30 p.m. and contacted the local police and thereafter conducted a raid at the house of appellant No. 2 in the early hours of the 27th at 1 a.m. The police would necessarily have known from the railway reservation that the accused Laxmi Raj Shetty under the assumed name of his father Shivaram Shetty, had boarded the West Coast Express for Madras on the 26th. They would have immediately contacted the Madras police and intercepted the accused on his arrival at the Madras Central on the 27th afternoon at 4 p.m. The submission is that this lends credence to the testimony of PW 9 Govindaraj that the accused arrived by the West Bengal Coast Express on the 27th afternoon and was taken into custody by the police. We are expected to believe, the learned counsel argues, that the accused wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teful night at about 9 p.m. taken in conjunction with the prosecution evidence regarding the conduct and movement afterwards, clearly show that he alone and no one else could have committed the murder because both he and the deceased were the persons working late in that night. As regards the news item which appeared in the Indian Express and the other regional papers showing that the entire amount stolen from the Bank had been recovered on a search of the house of appellant No. 2 Shivaram Shetty at Mangalore and that they have both been taken into custody, the learned counsel contends that the news items has no evidentialy value and cannot be taken into consideration. It is pointed out that the defence had not examined the reporters who had gathered the news appearing in the newspapers and authenticate the version though the reporters had been summoned. Further, in a case of this nature, the Court cannot reject the oher reliable and credible evidence led in accordance with law merely on the publication of this kind of unauthenticated news item in the press. It is said that if the Court were to act on such news item though not brought into evidence in accordance with law and were i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned counsel for the appellants, we have not been able to discover any infirmity in the reasoning or the conclusions arrived at by the learned Additional Sessions Judge or the High Court. Nor can it be said that they have just fallen into an error against which caution was administered by Baron Alderson in Reg v. Hodge. The learned counsel began his address by stating that if we were to accept the conclusion arrived at by the learned Additional Sessions Judge and the High Court that there was nothing to impeach the credibility of PW 18 Smt. Kanaka, the flower vendor as a truthful witness and that her evidence was such as to accord with the ordinary course of events and human nature, it would 'tend to tilt the balance against the appellants.' That really furnishes a key to the entire prosecution case. We have therefore minutely been taken through the testimony of PW 18 Smt. Kanaka by learned counsel for the parties who presented their resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss door had to be locked and then the shutter pulled down and locked at various places from outside. It is in evidence that there was no night watchman of the Bank. It appears from the testimony of PW 8 Ananthakrishnan, PW 9 Govindaraj, PW 12 Balasubramaniam and PW 16 Chandrasekara Holla that the accused gathered knowledge about the manner in which the strong room could be operated. It is clear from their evidence that access to the strong room could not be had except by a person acquainted with the manner in which it was operated. According to these witnesses the accused got an opportunity when in the first week of April, the wife and children of PW 8 Ananthakrishnan, Bank Manager visited the Bank and evinced a desire to see how the safety vault was operated. While he was going up the stairs along with the members of his family and PW 12 Balasubramaniam, attendant, the accused who was standing with PW 9, expressed a desire to come up and see the strong room. Although taken aback at the unusual request, PW 8 permitted them to come up. With his inquisitiveness the accused cleared all his doubts about the mode of operating the safety vault and gained sufficient knowledge. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er both would leave the premises. She distinctly remembered that on Friday prior to the incident the deceased while buying flowers enquired from her whether she used to sleep there and she had to explain that on thursdays and Fridays she could not go back home due to late hours as there was no connecting bus. That was the last when she saw the deceased alive. On the night in question while she was sitting on the steps of the Bank after finishing her day's work she saw the accused Laxmi Raj Shetty coming out of the Bank premises alone by opening the glass door, closing the same and proceeding towards Errabalu Chetty Street. Her version is that he came back half an hour later with a light blue colour suitcase and again re-entered the Bank by opening the glass door. After about half an hour the accused came out of the Bank by opening the glass door with the suitcase in one hand, a bag on his shoulder and the briefcase which the deceased used to carry, in the other. He kept the suitcase on the steps of the Bank where she was sitting and re- entered the premises and brought out a large coffee colour skybag and kept the same beside the suitcase, locked the glass door, pulled down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ultimate detection of the offender. In such cases there is no question of impairing the testimonial fidelity of such person as a competent witness. Learned counsel however drew our attention to the observations of this Court in Lingala Vijay Kumar Ors. v. Public Prosecutor, Andhra Pradesh, [1979] 1 SCR 2 where this Court viewed with concern the practice of offering cash rewards to prosecution witnesses when the case was sub- judice. We may say at once that the Court in that case did not discard the testimony of the prosecution witnesses on that account. All it did in that case was to endorse the expression of opinion of the learned Sessions Judge that such rewards for bravery may be euphemistic officialese but are apt to be construed by the accused as purchase price for testimonial fidelity and the Government ought not to prejudge the case and award any cash reward to a citizen for his exemplary civic sense since he may figure as a material witness. We need not say anything more. The learned Additional Sessions Judge and the High Court were fully aware of this aspect and have scrutinised the testimony of PW 18 with meticulous care and we agree with them that merely because PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the identification of the accused Laxmi Raj Shetty before the Court of Sessions for the first time without any prior test identification parade was not of any value but we are not impressed. Later both these witnesses saw the photograph of the accused carried by PW 50 Deviasigamani and identified him to be the person involved. In the world as a whole today, the identification by photographs is the only method generally used by the interpol and other crime detecting agencies for identification of criminals engaged in drug trafficking, narcotics and other economic offences as also in other international crimes. Such identification must take the place of a test identification. Further, the evidence of PW 19 that the person concerned purchased a coffee colour skybag along with a light blue colour suitcase stands corroborated by the subsequent recovery of the coffee colour skybag from PW 33 Smt. Justin D'Costa with whom the accused's sister Km. Usha Rani used to stay, from a house at Hole Narsipur, District Hassan. Similarly, the testimony of PW 31 finds support not only from the evidence of PWs 18 and 19 but also from the entry in the trip-sheet as well as the entries in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hows his arrival and Exh. P 28 shows his departure. PW 24 Alexander Alwyn Fernandez, Cashier at the hotel approved the bill Exh. P 29 relating to Mohanraj who stayed in Hotel Chola Sheraton containing the details with regard to the room rent, advance payment, room service bills etc. He states that he made the last two entries in Exh. P 29 at the time of departure of the said Mohanraj. PW 25 Rocky Williams, Senior Lobby Attendant has produced the departure card prepared by him marked Exh. P 39. It is true that they had identified the accused from the photograph shown to them by PW 50 and that was sufficient to lend support to their identification in Court. Further, the fact remains that the person who came to Hotel Chola Sheraton on the night of the 20th at 11 p.m. and alighted with two heavy suitcases was the person brought by PW 31, auto-rickshaw driver, from the Bank and he has been indentified and named by PW 18 as the accused. Exh. P 24 the registration card of Hotel Chola Sheraton gives the address of the occupant of room no. 230 as Mohanraj, Hole Narsipur, Hassan. The description given is of a 'tourist' and the date of arrival as 20.5.83 at 23.05 on arrival from Banga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng currency notes worth ₹ 12,27,500 as the suitcases carried by him. Again, these witnesses on being shown the photograph carried by PW 50 identified him to be the person involved. Further, the testimony of PW 34 Surendran, Reservation Clerk, Mangalore Railway Station shows that the accused filled in the reservation slip Exh. P 47 giving his name as Shivaram Shetty with address as Hole Narsipur, Hassan. On a comparison of the handwriting appearing from the registration card Exh. P 24 filled up by the accused when he checked into Hotel Chola Sheraton with that appearing on the reservation form Exh. P 47, with the handwriting of the accused particularly the similarity in describing Bangalore as 'B'lore' and Mangalore as 'M'lore', the learned Judges have come to the conclusion that both the documents were writting by the one and the same person i.e. the accused Laxmi Raj Shetty. (6) Recovery of coffee colour skybag from the residence of late Kumari Usha Rani, sister of the accused: Next we have the testimony of Pw 33 Smt. Justin D'Costa, the colleague and roommate of the deceased Kumari Usha Rani, sister of the accused Laxmi Raj Shetty. She states ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Dina Thanthi on the 30th that both the accused had been taken into custody at Mangalore and the entire money stolen from the Bank recovered from the residence of appellant no. 2 Shivaram Shetty. (ii) The admission of the prosecution's own witness PW 9 Govindaraj that the accused Laxmi Raj Shetty arrived at Madras by the West Coast Express on the 27th afternoon at 4 p.m. and was taken into custody by the police at the platform. Undoubtedly, each of these circumstances by itself was sufficient to falsify the entire prosecution case as regards the alleged recoveries at Madras and therefore we heard learned counsel for the parties at considerable length but nothing really turns on them. Learned counsel for the appellants with consummate skill tried to create, as he was entitled as counsel for the defence, to break the chain of circumstances and to show that there are various missing links in an effort that the Court may give the accused benefit of doubt. We are afraid, that is not a proper approach for the Court to adopt. In the present case, the circumstances were closely linked up with one another and the Court would be misdirecting itself and commit serious error of law i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndidate returned to Parliament from the Bombay South Parliamentary Constituency had delivered a speech at Shivaji Park attributed to him as reported in the Maratha, a widely circulated Marathi newspaper in Bombay, and it was said: A newspaper report without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. We need not burden the judgment with many citations. There is nothing on record to substantiate the facts as reported in the newspapers showing recovery of the stolen amount from the residence of appellant no. 2 at Mangalore. We have therefore no reason to discard the testimony of PW 50 and the seizure witnesses which go to establish that the amount in question was actually recovered at Madras on the 29th and the 30th as alleged. As to the second, much emphasis was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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