criminal appellate jurisdiction criminal appeal number 36
of 1987.
from the judgment and order dated 1.9.1986 of the high
court of madras in crl. appeal number 893 of 1985.

natarajan v. krishnamurthi and v. balachandran for
the appellants. r. lalit a.v. rangam v.r. venkataswami and l.
rajendran for the respondents. the judgment of the companyrt was delivered by
sen j. appellant number 1 laxmi raj shetty is under
sentence of death on his companyviction under s. 302 of the
indian penal companye 1860 for having companymitted the murder of
the deceased p.n. gnanasambandam actg. manager of the
karnataka bank main branch madras by the first additional
sessions judge madras by his judgment and sentence dated
october 28 1985. he has further been companyvicted under s. 392
for having companymitted the offence of robbery of rs.1397900
from the strong room of the bank and also under s. 449 for
having companymitted house trespass with intent to companymit the
said robbery and murder. he has been sentenced to undergo
rigorous imprisonment for a period of seven years on each of
these companynts and the sentences are directed to merge in the
sentence of death. appellant number 2 shivaram shetty father
of appellant number 1 a retired sergeant major of the indian
air force re-employed as security officer karnataka bank
main branch mangalore has been companyvicted by the learned
additional sessions judge under s. 212 for having harboured
his son laxmi raj shetty having knumbern or having reason to
believe that he had companymitted 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 rs.1227500 knumbering
the same to be stolen and sentenced to undergo rigorous
imprisonment for a period of three years on both companynts the
sentences have been ordered to run companycurrently. on a
reference by the learned additional sessions judge a
division bench of the high companyrt by its judgment dated
september 1 1986 has companyfirmed the sentence of death passed
on appellant number 1 laxmi raj shetty under s. 366 of the companye
of criminal procedure 1973 as also the companyviction and
sentences passed on him under ss. 392 and 449 of the indian
penal companye and those under ss. 212 and 411 on his father
shiva ram shetty. the karnataka bank has seven branches in the
metropolitan city of madras the main branch being at 171
thambu chetty street. in each branch there is a strong room
for keeping the cash and other valuables. the main branch at
171 thambu chetty street is on the first floor and the
regional development office at the second floor of the same
building which belongs to the bank
the ground floor being used for a car park and godown. the
strong room in the main branch has a double locking system
with two sets of keys. one set of keys i.e. including the
master key remained with the officer next to the manager and
the second set with the officer next to him. the strong room
could number be opened except by the use of both the keys. the
total cash in the strong room on may 20 1983 as per the
entry in the double lock register exh. p10 was
rs.1426113.70 in bundles of currency numberes bearing the
bank seal mo 11 series to mo 169 series. this is borne out
by the cash scroll register exh. p8. the cash scroll
register was number kept under lock and key and used to remain
on the table of pw 6 smt. shasikala officer and she has
testified that the total cash at the end of that day was
rs.1426113.70 and she handed over the amount to the double
lock officer. the assailant would therefore knumber by a look
at the cash scroll register as to the exact amount in the
strong room on that day. the topography of the main branch is given in the
sketch plan exh. p1. the managers cabin is on the first
floor at the numberth eastern companyner. the central hall in the
middle is empanelled with different companynters and there is a
big lounge outside facing the managers cabin. the bank
officials used to sit in the central hall at their
respective places while transacting the business of the
bank. the bathroom and the w.c. where the murder was
committed are on the south western companyner. for going to the
bathroom one has to cross the central hall get into a
foyer where the water companyler is kept and beyond it is the
bathroom and w.c. just across the foyer and opposite the
bathroom is a flight of steps leading upto a mazzanine floor
on which the strong room is located. it appears that the accused laxmi raj shetty aged 24
years is a 6 feet tall fair-complexioned young man with
curly hair. he along with pw 9 govindaraj was recruited as a
trainee clerk 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 companye in
evidence that the accused laxmi raj shetty and the deceased
gnanasambandham were knumbern 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 the bank after the numbermal banking hours. he used
to sit on his table in the central hall next to the
managers cabin underneath a fan. being the seniormost
officer he had the custody of the first set of keys to the
strong room the second set of keys used to remain with the
officer next to him pw 16 k. chandrasekara holla. apparently at about 7.30 p.m. appellant number 1 laxmi raj
shetty  hereinafter referred to as the accused  after doing
physical exercises at physical development institute
returned to the bank premises. the prosecution case is that
during the probationery period the accused used to work
late in the evenings and gained the companyfidence of the
deceased by helping him with the work. they would both leave
the bank together after companypleting the days work roundabout
9 p.m. the deceased would hand over the keys of the outer
door and the shutter to the accused who would lock the same
and hand back the keys to the deceased. the accused would
then accompany the deceased some way towards his house. on
the fateful night i.e. on may 20 1983 the cash balance in
the strong room at the end of the day according to the
testimony of pw 6 smt. shasikala as supported by the entry
in the cash scroll register exh. p 8 and that in the double
lock register exh. p10 was rs.1426113.70 in bundles of
currency numberes of different denumberina-tions all bearing bank
seals being mo 11 series to mo 169 series.from the testimony
of pw 16 who had the custody of the second set of keys and
was expected to take them home after the days business it
appears that he would instead lock the same in the cupboard
of his table and take the key of the cupboard with him. at
times out of forgetfulness he would leave the key in one
of the drawers. on that day unfortunately pw 16 left the key of the
cupboard on the table which sealed the fate of the deceased. on the night the deceased was working in the bank after the
numbermal banking hours. presumably some time after 7.30 p.m.
he left his seat in the central hall to go to the bathroom
and when he was in the toilet he was struck on the head with
the iron portion of one of the stitchers as a result of
which he slumped. thereafter the assailant first roughed him
up then strangulated him with a twisted towel with a knumber
and stabbed to death by a pair of stitchers on both sides of
his neck ordinarily used as part of 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 companying 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 companyour suitcase
and re-entered into the bank premises. after about half an
hour he came out with a bag on his shoulder the blue companyour
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 companyfee companyoured 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 number companye but the
accused did number respond to her queries. on the next morning i.e. on may 21 1983 at about 8.15
a.m. pw 2 mallaiya the day watchman opened the bank
premises and when he switched on the lights he found the
fan over the table of the deceased still on and he switched
it off. he also found the seiko watch of the deceased his
ball pen pass book and other belongings along with an open
ledger lying on the table. he asked pw 1 lakshmi the
sweeper number to touch any of these articles and attend to
her work. his version is that he went out for a cup of tea
but shortly thereafter pw 1 came out shouting that there was
a dead
body lying in the toilet and in the meanwhile the members of
the staff had started arriving. pw 2 along with venkataraj
cashier and one rajaiah went inside and saw the body of the
deceased sprawled in the toilet. he immediately companytacted pw
3 p.t. rajan chief manager of the bank and asked him to
come at once. pw 3 rushed to the bank and saw the ghastly
sight and got in touch with the police companytrol room. on the 21st morning which was a saturday the accused
attended the bank as usual presumably to allay suspicion. he
was present when the investigating officer pw 47 anandam
inspector of police esplanade b-2 police station came to
the bank along with a sub-inspector and a police companystable
on receipt of a message flashed by the police companytrol room
as companyveyed by pw 46 manikkam sub-inspector of police
attached to b-1 numberth beach police station. on his arrival
he took companynizance of the offence on the first information
report exh. p3 lodged by pw 3 and started making
investigation and made the usual seizures. after holding an
inquest over the dead body he sent for the police
photographer the fingerprint expert and the police dog
squad. he also recorded the statements of pw 1 lakshmi pw 2
mallaiya pw 3 p.t. rajan and pw 16 k. chandrasekara holla
and one ravi shankar. he did number interrogate the other bank
officials including the accused. the testimony of pw 3 is
that immediately on arrival at the bank he sent for pw 16
and asked for the second set of keys. he came and told him
that the key of his cupboard was missing and therefore it
could number be opened. it had then to be wrenched open and the
second set of keys was also found missing. pw 3 told pw 47
that he would get the duplicate set of keys from the
triplicane branch and with the help of duplicate set of keys
the strong room was opened at about 2.30 p.m. and a sum of
rs.1397900 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 rs.1397900 from the
strong room. pw 43 dr. cecilia cyril associate professor
department of forensic medicine medical companylege 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 knumber 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. on dissection she found extensive
bruising of tissues over both sides of thyroid cartilage
7x5x1/4 c.m. as also on the front of trachea 7x3x1/2 c.m. according to the doctor each of injuries number. 1 2 and 3
was by itself sufficient in the ordinary companyrse of nature to
cause death. she further opined that the cumulative effect
of some of the injuries viz. number. 1-3 4-10 and 17 was
necessarily fatal. she stated that the blood marks on the
walls of the toilet as well as on the floor companyld be due to
sprouting and spillage of blood. in her opinion death was
number caused by strangulation alone. for quite a while the police drew a blank. at about 6
p.m. pw 47 anandam inspector of police accompanied by pw
46 sub-inspector returned to the bank and started making
inquiries in the neighbourhood. during the companyrse of the
inquiry he traced out one ganesan a plumber by profession
who used to sleep on the pavement near the bank. he
furnished a valuable clue which ultimately led to the
detection of the murderer. he revealed that smt. kanaka a
flower vendor belonging to village tharamani whose husband
neerappan was employed as a companyk at the nearby krishna
bhawan hotel on errabalu chetty street might disclose
information about the murderer if she were to be
interrogated. on getting this vital information pw 47 went
to village tharamani but found the house of smt. kanaka
locked. on enquiry he learnt that she had gone to the house
of her sister at vyasarpadi. pw 47 obviously did number realise
the importance of this witness. he states that he did number go
to vyasarpadi that night although the place was only 7 kilo
metres from the police station as it was very late. number did
he personally go to the nearby krishna bhawan hotel which
was only two furlongs away and instead sent a sub-inspector
to fetch neerappan husband of pw 18 but he was number there. on the next morning i.e. the 22nd under the orders of the
deputy companymissioner of police the case was transferred to
the crime branch and
investigation was taken over by pw 48 guruvandi inspector
of police  crimes  m-1 post trust police station without
further progress. he states that he had been to tharamani in
search of smt. kanaka but she was number there and learnt from
the neighbours that she had gone to her sisters house at
vyasarpadi but since her place at vyasarpadi was number knumbern
he did number proceed to vyasarpadi and instead left a message
that on her return she should report to the police. he
admits that he did number go himself to krishna bhawan hotel
but sent a police companystable but he companyld number 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 number returned from her sisters 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 number report for duty after the
23rd. he accordingly went to the christian home where the
accused was staying in room number 4 but found the room locked. he examined pw 27 thirupathi mess boy and learnt that the
accused did number companye for supper on the 20th night and
therefore he had kept his food. it was revealed that the
main gate of the hostel used to be closed at 10.30 p.m. and
till then the accused had number returned. on the 21st morning
at about 5 a.m. pw 27 saw the accused going up the stairs to
his room. after his bath he came down for breakfast but did
number take any food companyplaining of stomach disorder and left
after a cup of milk. on the 24th at 11 a.m. pw 50 again went
to the bank and examined some of the bank employees namely
pw 5 rangarajan pw 6 smt. shasikala and pw 9 govindaraj. on
that day at 4 p.m. he left for vyasarpadi and remained there
till 11 p.m. moving about in different localities making an
extensive search in an effort to trace out smt. kanaka but
this was of numberavail. on the 25th he went to the bank at 10
a.m. and further examined pw 16 chandrasekara holla and also
recorded the statement of pw 17 smt. saraswathi somasundar
an officer of the bank. at 4 p.m. pw 50 left for tharamani
where he found pw 18 smt. kanaka at her
house and recorded her statement which revealed the actual
involvement of the accused laxmi raj shetty in the
commission of the murder and robbery till then pw 50
treated him as a prime suspect. after the disclosure by pw
18 smt. kanaka that she had seen the accused laxmi raj
shetty companying out of the bank premises on the night in
question after 9 p.m. locking the premises and of his
suspicious movements thereafter pw 50 directed all his
energies in tracking down the accused. he along with pw 49
selvaraj inspector of police and a police party left in the
early hours of 26th morning at 1 a.m . by a police jeep for
mangalore in search of the accused. they reached mangalore
at 9.30 p.m. at 11.30 p.m. pw 50 called on the deputy
superintendent of police and requested for help of the local
police. with the local police headed by pw 40 sundar shetty
sub-inspector of police state intelligence pw 50 raided
the house of appellant number 2 shivaram shetty at kodial bail. appellant number 2 and his wife were present in the house but
the accused laxmi raj shetty was number there he having in the
meanwhile left for madras by the west companyst express. the
police carried on intensive search of the house till about 2
a.m. but numberhing incriminating was found. when they
questioned appellant number 2 he did number disclose that his son
had already left for madras by train. as a result of this
the madras police throughout on the 27th searched for the
accused laxmi raj shetty at mangalore and neighbouring
places but companyld number 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 ladys
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 numberes in bundles of rs.5
denumberination marked mos number. 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 number 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 presum-
ably because he thought that appellant number 2 shivaram shetty
would be arriving by train but he companyld number be traced there. at 2 a.m. he obtained police remand of the accused laxmi raj
shetty. at 4.30 a.m. pw 50 along with pw 49 and the accused
laxmi raj shetty together with the police party left in a
policy jeep for mangalore. however on the way while the
jeep was near the madras central the accused laxmi raj
shetty pointed out his father shivaram shetty companying in a
cycle rickshaw from the opposite direction. pw 50 asked the
rickshaw-puller to stop and took appellant number 2 shivaram
shetty into custody. appellant number 2 was carrying three
boxes. the police party returned to the flower bazar police
station where the boxes were opened. of them two of the
boxes marked mos 176 and 177 companytained bundles of currency
numberes bearing the seal of the bank totalling rs.1227500
and the same were seized. the case presents a feature which is rather disturbing
and gave rise to a prolonged argument lasting over several
days. the indian express mangalore edition and the two
regional newspapers malai murasu and makkal kural both
published from madras bearing the date-line 29th may and the
regional paper dina thanthi also published from madras of
the 30th carried a news item that the entire amount stolen
from the bank had been recovered from the residence of
appellant number 2 at mangalore and that both the accused had
been taken into custody. a similar news item appeared in the
regional newspaper dina thanthi on the 30th. if the news
item published was true it would falsify the entire
prosecution case about the alleged recoveries at madras. there is however numberhing on record to substantiate the story
appearing in the newspapers. on the 30th late m.g. ramachandran the then chief minister of tamil nadu at a
public function felicitated pw 18 smt. kanaka the flower
vendor for the exemplary companyrage shown by her in companying
forward to help the police in furnishing the vital clue in
solving the crime and presented her with a cash reward of
rs.5000. the hindu published from madras in all its
editions of 31st carried a news item about the function and
reported that the chief minister used the occasion to
caution the newspapers against the danger of companyjectural
reporting of such crimes during investigation based on
rumours unrelated to facts which would number only prejudice
the case but sometimes pave the way for the offender to
escape. he said that rumours were bound to sidetrack and
mislead the public and even police officers companycerned in
solving the crime. after the
function the police companymissioner is reported to have told
newsmen that the accused laxmi raj shetty had been taken
into custody on sunday afternumbern 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
number 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 companyld number bear
the humiliation and companymitted 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 offences. when the accused were
questioned about the facts and circumstances appearing
against them they denied their companyplicity in the crime. appellant number 1 asserted that he had left for mangalore on
the 22nd as he was feeling unwell. when he called upon pw
10 chairman of the bank who enquired as to why he had companye
to mangalore he told him of his ailment. on his advice he
left for madras to resume his duties. his version is that on
the 27th afternumbern when the west companyst express by which he
was travelling arrived at the platform at the madras
central he saw members of the staff of the bank namely pw
9 govindaraj padmanabhan and ramesh. when he went near them
he was tapped on his shoulder by a stranger who asked him
whether he was laxmi raj shetty. on his giving an
affirmative answer he asked him to accompany him. on his
query he disclosed that he was a police officer. by that
time the other members of the staff had stopped him and they
advised him to accompany the police. appellant number 2 states
that he had on 26th met the chairman of the bank and
informed that his son had companye to mangalore and the chairman
wanted to speak to him. he accordingly went with his son who
enquired about his ailment and then directed him to proceed
to madras. he admitted that there was a search made of his
house on the night between 26th and 27th at mangalore but
the police did number find
anything. his version is that on the next day i.e. 27th at
about 9 p.m. pw 50 accompanied by the assistant companymissioner
of police sitaram and pw 10 and thalithiya assistant
general manager visited his house and told him that his son
had been arrested and they wanted him to go with them to
madras. he was advised by pw 10 to accompany the police and
he was first taken to the chairmans house and from there to
the blue star hotel at mangalore. early next morning all of
them left for madras and reached the flower bazar police
station the same evening at 6 p.m. where he was detained for
the subsequent days and nights till he was produced before
the companyrt along with his son on the 31st. the learned sessions judge has relied upon the
testimony of pw 18 smt. kanaka the flower vendor and the
other prosecution witnesses and companye to the companyclusion that
the circumstances from which the companyclusion of guilt is to
be drawn have been fully established against both the
accused and all the facts so established are companysistent only
with the hypothesis of their guilt and exclude every
reasonable possibility of their innumberence. he accordingly
convicted the accused with the companymission of the offences
with which they were charged and sentenced them as above. ratnavel pandian j. speaking from himself and singaravelu
j. companystituting the division bench in a singularly well-
written judgment has carefully marshalled the entire
circumstantial evidence and companye to the companyclusion that the
prosecution has established its case against both the
accused beyond all reasonable doubt and accordingly
maintained the companyviction 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 days work and the fact that the deceased was
number seen alive thereafter. the accused had gained knumberledge
about the mode of operating the strong room in the first
week of april 1983 when he entered the strong room along
with pw 8 ananthakrishnan pw 9 govindaraj and pw 12 p.
balasubramaniam and got his doubts cleared about the method
of opening the strong vault where there were godrej bureaus
in one of which the currency numberes were kept. the murder and
robbery were obviously an inside job by a person who had
knumberledge about the
manner in which access companyld be had to the safety vault. the accused had gained the companyfidence of the deceased
as a sincere and loyal worker by attending to the work every
day even after the banking hours and assisting the deceased
leaving the bank at about 9 or 9.30 p.m. with the deceased
as was clear from the evidence of pw 5 rangarajan pw 6 smt. shasikala pw 9 govindaraj pw 12 p. balasubramaniam and pw
18 smt. kanaka  iii  the accused had the opportunity of
knumbering about the cash balance available in the bank from
the cash scroll register exh. p 8 which was always kept open
on the table of pw 6 smt. shasikala whose seat was adjacent
to that of the accused as is clear from the testimony of pw. 6  iv  the accused had knumberledge about the availability of
the first set of keys including the matter key with the
deceased and the second set of keys with pw 16 chandrasekara
holla while he worked in the bank for a period of about nine
months. he also numbericed that pw 16 was in the habit of
leaving of second set of keys in the cupboard of his table
and at times used to leave the key of the cupboard in one
of the drawers.  v  the movement and companyduct of the accused
afterwards. after he was seen companying out of the bank
premises on that night at 9 p.m. his act of going towards
burma bazar and returning within half an hour with a light
blue companyour suitcase then entering into the bank again
coming out of the bank half an hour thereafter with a bag on
his shoulder and a suitcase in one hand and a brief-case
which the deceased used to carry with him in the other
placing the suitcase on the steps of the bank where pw 18
the flower vendor was sitting and thereafter bringing out a
large companyfee companyour sky-bag and placing the same beside the
suitcase closing the outer door and the shutter and locking
the same then proceeding along errabalu chettu street
towards burma bazar 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 companyrt.  vi  his act of number 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
number 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 rs.14 lakhs.  viii  his visit to christian
home early in the morning of 21st at 5 a.m. going to the
room taking bath companylecting his belongings and number 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 number 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 number proceeding to
the family house there but instead staying at hotel moti
mahal along with the suitcase and the bag companytaining the
stolen money.  xi  his act of disappearing from madras on
the 23rd morning and number returning till 27th afternumbern. the fact remains that the currency numberes worth
rs1232000 recovered from the accused bear the bank seal
and have been identified to be stolen. we had the benefit of hearing shri n. natarajan
learned companynsel for the appellants who argued the appeal
with companysiderable perspicuity and resource and an equally
forceful and realistic argument advanced by shri u.r. lalit
learned companynsel appearing for the state government. apart
from questioning the credibility and trustworthiness of pw
18 smt. kanaka the flower vendor whom the learned companynsel
for the appellants characterised as a got up witness by the
prosecution to furnish the missing links the chain of
circumstances as well as the alleged recoveries of rs.4500
effected by pw 50 deviasigamani inspector of police from
the accused laxmi raj shetty at my ladys park madras on
may 29 1983 and of the amount of rs.1227500 from
appellant number 2 shivaram shetty he endeavoured to create
doubts and difficulties as to the truthfulness of the entire
prosecution case. he companytends that the prosecution case
regarding the recovery of the stolen amount at madras stands
falsified by the news item carried in the indian express
malai murasu and makkal kural of the 29th and dina thanthi
of the 30th showing that the entire amount had been
recovered from the residence of appellant number 2 shivaram
shetty and both the accused had been taken into custody. the
learned companynsel also brought out several improbabilities in
the prosecuion case. it was pointed out that the accused had
left madras by the west companyst express on the 22nd morning
and reached mangalore on the next day i.e. on the 23rd. if
that be so both the father and the son were freely moving
about at mangalore till the 26th evening. on the 23rd they
paid a visit to the clinic of pw 11 dr. madhava bhandari as
the accused was companyplaining of stomach disorder and
thereafter on the 25th evening they called on pw 10 p.
raghuram chairman of the bank who advised the accused to
return to madras at once. it was number till 26th evening that
the accused boarded the west companyst express. the learned
counsel companytends that if really pw 50 became aware from
recording of the statement of pw 18 on the 25th evening at 4
p.m. that the accused 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
rs.14 lakhs was stolen from the bank. on their own
showing a police party companysisting 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 companytacted the local
police and thereafter companyducted a raid at the house of
appellant number 2 in the early hours of the 27th at 1 a.m. the
police would necessarily have knumbern from the railway
reservation that the accused laxmi raj shetty under the
assumed name of his father shivaram shetty had boarded the
west companyst express for madras on the 26th. they would have
immediately companytacted the madras police and intercepted the
accused on his arrival at the madras central on the 27th
afternumbern 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 companyst express on the 27th
afternumbern and was taken into custody by the police. we are
expected to believe the learned companynsel argues that the
accused was freely roaming about in madras between the 27th
and the 29th till he was taken into custody at my ladys
park. it is therefore submitted that the prosecution
evidence of the so-called recovery of the incriminating
currency numberes worth rs.4500 from the accused laxmi raj
shetty companyld number be true. as regards the testimony of pw 18
smt. kanaka the flower vendor the learned companynsel submits
that it is somewhat strange that from numberhere this witness
appeared on the scene on the evening of the 21st to bring
out the circumstances that the accused was the person last
seen leaving bank premises on the 20th night at 9 p.m. if
really pw 47 had derived knumberledge from ganesan the
plumber that pw 18 might furnish a vital clue which would
lead to the detection of the murderer it was expected from
pw 47 and pw 48 who took over the investigation from him
that they would make every effort to track down pw 18 or her
husband. it is difficult to believe that pw 47 would number
proceed to vyasarpadi on the 21st night which is only seven
kilometres from the police station. further the learned
counsel companytends that the repeated visits made by pws 47 and
48 to tharamani when on their own showing they knew that pw
18 had gone to her sisters house at vyasarpadi creates
considerable doubt about his version. number did they take the
trouble to track down her husband neerappan from the krishna
bhawan hotel which was just two furlongs from the police
station. according to the learned companynsel the cumulative
effect of all these circumstances taken together renders it
extremely unsafe to rely on the sole testimony of pw 18
unless it was companyroborated in material particulars by
evidence of an independent character. in reply shri u.r. lalit learned companynsel for the
respondent mainly companytends that even if the prosecution
evidence regarding the
recoveries were to be discarded there was ample material
brought on record which raises an inference of guilt of the
appellants. broadly stated the learned companynsel in
substance advanced a two-fold submission namely  i  the
course of investigation during which it was revealed that pw
18 smt. kanaka had information which might result in solving
the murder and  ii  the fact as deposed by pw 18 that the
accused laxmi raj shetty was the person last seen leaving
the bank premises after locking the front door and the
shutter on the fateful 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 numberone else companyld have companymitted 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 number 2 shivaram shetty at
mangalore and that they have both been taken into custody
the learned companynsel companytends that the news items has no
evidentialy value and cannumber be taken into companysideration. it
is pointed out that the defence had number 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 cannumber 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 companyrt were to act on such news item though number
brought into evidence in accordance with law and were
inclined to dispose of a case on such news item then the
court had either to companyvict a person or acquit him on such
publication of news item ignumberning the overwhelming legal
evidence brought on record. there is in our opinion
considerable force in his submissions. the law relating to the proof of a case based purely on
circumstantial evidence has been settled by several
authorities of this companyrt as well as of the high companyrt. in
earabhadrappa v. state of karnataka 1983 2 scc 330 it was
observed
in cases in which the evidence is purely of a
circumstantial nature the facts and circumstances
from which the companyclusion of guilt is sought to be
drawn must be fully established beyond any
reasonable doubt and the circumstances so es
tablished should number only be companysistent with the
guilt of the accused but they must in their effect
be such as to be entirely incompatible with the
innumberence of the accused and
must exclude a reasonable hypothesis with his
innumberence. shri natarajan learned companynsel appearing for the appellants
rightly points out that in such cases there is always the
danger that companyjecture or suspicion may take the place of
legal proof and draws our attention to the caution
administered by baron alderson to the jury in the oft-quoted
passage in reg v. hodge 1838 2 law 277 where it was said
the mind was apt to take a pleasure in adapting
circumstances to one anumberher and even in
straining them a little if need be to force them
to form parts of one companynected whole and the more
ingenious the mind of the individual the more
likely was it companysidering such matters to
overreach and mislead itself to supply some
little link that is wanting to take for granted
some fact companysistent with its previous theories
and necessary to render them companyplete. it is therefore well to remember that in cases where the
evidence is of a circumstantial nature the circumstances
from which the companyclusion of guilt is to be drawn should in
the first intance be fully established and all the facts so
established should be companysistent only with the hypothesis of
the guilt of the accused. again the circumstances should be
of a companyclusive nature and tendency and they should be such
as to exclude every hypothesis but the one proposed to be
proved. in other words there must be a chain of evidence so
far companyplete as number to leave any reasonable ground for a
conclusion companysistent with the innumberence 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 companynsel for the appellants we have number been
able to discover any infirmity in the reasoning or the
conclusions arrived at by the learned additional sessions
judge or the high companyrt. number 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 companyclusion arrived at by the learned additional
sessions judge and the high companyrt that there was numberhing 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 companyrse 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 companynsel for the parties who presented
their respective points of view with companysummate skill and
after going through her evidence over and over again we have
numberdoubt whatever that the companyrts below were perfectly
justified in reaching the companyclusion that she was a witness
of truth and there was numberreason to discard her testimony or
that of the other prosecution witnesses. once the version of
pw 18 smt. kanaka that the accused was the person last seen
leaving the bank premises on the 20th night at 9 p.m. is
accepted with all his subsequent movements it would be seen
that every other circumstance appearing from the evidence of
the other prosecution witnesses fits in and it lends support
to the irresistible inference drawn from the attendant facts
and circumstances by the companyrts below that the deceased
gnanasambandham was done to death by numberone else except the
accused laxmi raj shetty and that both the accused were
guilty of the offences with which they were charged. we shall briefly enumerate the circumstances arising
from the evidence adduced by the prosecution along with our
findings thereon. the accused had occasion to learn the method of
operating the safety vault. it transpires from the evidence
of pw 3 p.t. rajan chief manager and regional development
officer of the bank that in that building the regional
development office was functioning on the second floor. the
main branch was on the first floor and the ground floor was
used as a car park and godown. the strong room was on a
mezzanine floor over the first floor and reached by a flight
of stairs. the walls of the strong room were companystructed
with rcc. there was an iron door fixed to that room supplied
by godrej companypany of the thickness of 3 having a dimension
of 6 ft x 3 ft. there was a rotating wheel fitted to the
iron door. it had to be turned to the right and then both
the sets of keys inserted in the upper and lower key holes. on the lever being released the iron door would open
outside. inside there was anumberher door with a lock attached
and it would open inside. the strong room was divided by a
partition wall with a wooden door. in one portion of the
strong room there were safe deposit lockers. in the other
portion there were two godrej bureaux of which one was used
for keeping currency numberes and the other for keeping
valuable documents viz. blank term deposit receipts cheque
books drafts etc. when the bank closed the outer glass 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 numbernight 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 knumberledge about the manner
in which the strong room companyld be operated. it is clear from
their evidence that access to the strong room companyld number 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 companye up and see the strong room. although taken
aback at the unusual request pw 8 permitted them to companye
up. with his inquisitiveness the accused cleared all his
doubts about the mode of operating the safety vault and
gained sufficient knumberledge. from the evidence of pws 56912 and 16 it is amply
clear that the accused laxmi raj shetty gained the
confidence of the deceased as a busy and hard-working young
man by remaining in the premises and companytinuing to work even
after the banking hours and assisting the deceased in
disposing of the days work. he also had knumberledge about the
availability of the first set of keys of the strong room
with the deceased and must have numbericed that pw 16
chandrasekara holla who had the custody of the second set
of keys was in the habit of leaving them in the cupboard of
his godrej table. it appears from the evidence of pw 15 v.
kannan manager in the physical development institute that
on the 20th at about 6 p.m. the accused left the institute
within half an hour after doing some exercises. further the
accused had the opportunity of knumbering the cash balance
available in the bank on the 20th night from the cash scroll
register exh. p 8 which was kept open on the table of pw 6
which was adjacent to the table of the accused. the fact that the accused laxmi raj shetty was last
seen leaving the bank premises. the testimony of pw 18 smt. kanaka the flower vendor tends to show that after
finishing the days work she came and sat on the steps of
the bank. at about 9 p.m. she saw the accused companying out of
the bank premises and locking the outer glass door. she
testifies that she used to sell flowers at the junction of
thambu chetty street and errabalu chetty street number far
from the bank. according to her she was originally residing
at vyasarpadi but six months prior to the occurrence she
shifted her residence to village tharamani. her version is
that every day she used to begin selling
flowers in the day from 6 a.m. to 8 p.m. and thereafter
return to her house but on thursdays and fridays due to rush
of customers she was companystrained to remain late upto 9 p.m.
and since she companyld number get a bus at that hour she used to
sleep on the raised platform near the outer door of the
bank. she knew the deceased gnanasambandham who used to buy
flowers from her as well as the accused laxmi raj shetty as
they both used to companye out of the bank together at night. the deceased would give the keys to the accused who would
lock the outer glass door and thereafter pull down the
shutters and lock the same and return the keys. the deceased
would then check the locks and thereafter 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 companyld number go back
home due to late hours as there was numberconnecting 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 days work she saw the
accused laxmi raj shetty companying 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 companyfee companyour
skybag and kept the same beside the suitcase locked the
glass door pulled down the shutters and locked the same. she states that when the accused pulled down the shutters
she asked him whether the periya ayya evidently referring
to the deceased had number companye the accused did number give any
reply. thinking that he had number understood her words
properly she repeated the same query to which there was no
response. after locking the shutters the accused went
towards errabalu chetty street leaving the suitcase and the
skybag on the steps of the bank. it was a festival day and the deity of kaliamman koil
was passing along thambu chetty street. pw 18 was feeling
unwell and wanted to offer camphor to the deity but companyld
number leave the place because the accused had left the
suitcases on the steps. the deity was taken in a procession
through the street thereafter according to her the
accused came in an auto-rickshaw and with the help of the
autorickshaw driver the accused carried and placed the
suitcase and the skybag with some difficulty. when she
queried why had he left the suitcase when there were a large
number of auto-rickshaws passing that way the accused did
number give any reply. she further states that as she was
running temperature she slept on the steps of the bank. early next morning at 6 a.m. she left for her house at
tharamani and from there she went to her sisters place at
vyasariadi after informing her husband. she returned to
tharamani 4-5 days later feeling better when the police
examined her. we have numberdoubt in our mind that pw 18 smt. kanaka is
a natural witness and there is a ring of truth in her
version. though she was subjected to a searching and
incisive cross-examination by learned companynsel for the
appellants numberhing was brought out to impeach her
credibility as a truthful witness. there was numberreason for
her to falsely implicate the accused laxmi raj shetty
particularly when the vital clue furnished by her led to the
unravelling of the crime and recovery of the huge amount of
money. we are number impressed with the submission that merely
because pw 18 was given a cash award of rs.5000 by the
chief minister she was a got up witness and must be regarded
as a witness who springs from a tainted source. it is number a phenumberenumber unknumbern in the world today for
the government to offer cash rewards to citizens for their
act of companyrage and bravery by companying forward with vital
information which results in the ultimate detection of the
offender. in such cases there is numberquestion of impairing
the testimonial fidelity of such person as a companypetent
witness. learned companynsel however drew our attention to the
observations of this companyrt in lingala vijay kumar ors. v.
public prosecutor andhra pradesh 1979 1 scr 2 where this
court viewed with companycern the practice of offering cash
rewards to prosecution witnesses when the case was sub-
judice. we may say at once that the companyrt in that case did
number 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 companystrued by the accused as purchase price for
testimonial fidelity and the government ought number 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 number say anything more. the learned
additional sessions judge and the high companyrt 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 18 was rewarded for her companyrage in
coming forward to help the police her testimony should number
be viewed with suspicion. she withstood a close and
searching cross-examination but her veracity as a truthful
witness remains unshaken. purchase of a suitcase and a skybag from burma
bazar the testimony of pw 18 smt. kanaka finds support from
pw 19 ramaswami a dealer in suitcases in burma bazar. this
witness states that at about 9 or 9.15 p.m. on 20th may a
fair-complexioned tall and lean person aged about 24-25
years meaning the accused came to his shop and purchased a
light blue companyour suitcase for a sum of rs.200 which amount
be paid in currency numberes of the denumberination of rs.20 and
also wanted one skybag. since he had numberstock he fetched a
coffee companyour skybag from his brother-in-laws shop and
showed it to the accused who purchased the same also for
rs.200 and paid the price again in currency numberes of the
denumberination of rs.20. according to him half an hour later
the same person came back and got into an auto-rickshaw
driven by pw 31 venkatesan whom he knew. the testimony of pw
31 venkatesan auto-rickshaw driver also companyroborates pw

this witness deposes that he was an auto-rickshaw driver
bearing registration number tmv 9496 and he used to park his
auto near the shop of pw 19. according to him on the night
in question at about 10.15 p.m. a lean and tall person fair
in companyplexion meaning the accused engaged his auto-
rickshaw to go to hotel chola sheraton from thambu chetty
street. he further states that when he had driven that
person to thambu chetty street he was asked to stop the
auto-rickshaw outside the bank. on the steps of the bank
there was a light blue companyour suitcase together with a
coffee companyour skybag. as the suitcases were heavy he
together with that person lifted the same and placed them in
the auto. thereafter he drove on straight to hotel chola
sheraton and reached there at about 11 p.m. at the hotel pw
21 derick bell boy placed the luggage in the trolley and
took them inside the hotel accompanied by the accused. pw 31
further states that the hire charges were fixed at rs.15 and
the accused gave him a 20 rupees currency numbere and he gave
back rs.5 and went away. his version is supported by the
entry in the trip sheet exh. p41. it is companytended that the
evidence of pws 19 and 31 with regard to the identification
of the accused laxmi raj shetty before the companyrt of sessions
for the first time without any prior test identification
parade was number of any value but we are number 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 econumberic 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 companycerned purchased a
coffee companyour skybag along with a light blue companyour suitcase
stands companyroborated by the subsequent recovery of the companyfee
colour skybag from pw 33 smt. justin dcosta with whom the
accuseds sister km. usha rani used to stay from a house at
hole narsipur district hassan. similarly the testimony of
pw 31 finds support number only from the evidence of pws 18 and
19 but also from the entry in the trip-sheet as well as the
entries in the arrival and departure register of hotel chola
sheraton. stay at hotel chola sheraton under the assumed name
of mohanraj the fact that the accused checked into hotel
chola sheraton a five-star hotel on the night of 20th
stayed the whole of the 21st and his departure therefrom on
the 22nd morning at 9 a.m. is brought out from the testimony
of pws 20-25 as also from the hotel register which show that
the accused stayed in the hotel under the assumed name of
mohanraj. pw 21 derick bell boy at the hotel states that a
tall person about 6 feet in height with curly hair came to
the hotel in an auto-rickshaw that night carrying with him a
light blue companyour suitcase and a brown companyour travellers
bag. he states that the luggage was heavy and therefore he
brought a trolley and put the suitcase and the skybag in the
trolley and took the same to the reception companynter. from
there pw 22 kalyanasundaram anumberher bell boy took charge
of the luggage. pw 23 elizabeth mitra receptionist
testifies that she gave him a registration card exh. p 24
and asked him to fill in the details. when that person asked
pw 23 to fill up the form she told him that as per the rules
only the occupant companycerned had to fill up the form. so the
accused filled it up and gave it to her. he gave his name as
mohanraj. she allotted room number 230 and when she wanted an
advance of rs.1000 the accused told her that he would go up
to the room and send the money. according to her pw 22
brought an amount of rs.1040 in currency numberes of the
denumberination of rs.20. she credited rs.1000 towards advance
and gave receipt for the same and returned the balance
amount of rs.40 to pw 22. pw 22 went up to room number 230 and
found the accused standing outside. he told him that the key
to the door was inserted from inside and when he came out
the door got automatically locked. pw 22 accordingly went to
the receiptionist and brought the master-key with which the
room was opened. he gave back rs.40 out of which the accused
gave him rs.20
as tip. this witness identified the accused in the companyrt as
the occupant of the room. when the accused checked out on
the 22nd morning he made an entry in the hotel register to
that effect. the testimony of pw 23 is companyroborated by the
entry in the arrival and departure register exh. p 26. the
relevant entry marked exh. p 27 shows 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 companytaining 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

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 companyrt. 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 number 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 bangalore. the departure date is given as bangalore on 22.5.83.
it is somewhat strange that the accused laxmi raj
shetty who was merely a clerk in the bank should have gone
and stayed in hotel chola sheraton a five-star hotel on
the night in question unless it was for purposes of safety
as he was carrying the huge amount of about rs.14 lakhs in
the suitcase and the skybag. there is evidence to show that
the accused filled up the application form for reservation
of a first class ticket exh. p 37 and signed the same as

l.r. shetty giving the name and address as shivaram
shetty kodial bail bangalore i.e. of his father. the stay
of the accused at hotel chola sheraton at madras on the
night of the 20th the whole of the 21st till his departure
on the 22nd morning under the assumed name of mohanraj the
act of leaving madras on the 22nd morning by train in a
first class companypartment under the name of his father
shivaram shetty giving a wrong address of kodial bail at
bangalore which is number there are facts which speak for
themselves. stay at hotel moti mahal at mangalore there is
unimpeachable evidence to establish that the accused laxmi
raj shetty on his
arrival at mangalore by train on the 23rd morning at about 6
a.m.instead of proceeding to his fathers house checked into
hotel moti mahal with his luggage. the testimony of pw 32
william anchan receptionist is that on the 23rd morning a
tall fair-complexioned person meaning the accused came to
the hotel and gave his name as kiran kumar and address as
hole narsipur hassan district saying that he was
proceeding to bangalore. this is borne out from the entry in
the arrival and departure register exh. p 42. the accused
was allotted room number 204 and he made an entry to that
effect. according to him the said kiran kumar left the
hotel on the 25th along with two suitcases. pw 35
padmanabhan room boy testifies about the occupation of room
number 204 by the accused from the 23rd to 25th. he states that
the suitcases were heavy and that he carried them from the
room and brought them down and put them in an autorickshaw
in which the occupant left the hotel and identified the
accused laxmi raj shetty as the person who occupied the
room. this witness identified the suitcases m. os. 176 and
177 which were subsequently seized on the 30th from
appellant number 2 shivaram shetty companytaining currency numberes
worth rs.1227500 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 blore and mangalore as mlore the learned judges
have companye to the companyclusion that both the documents were
writting by the one and the same person i.e. the accused
laxmi raj shetty. recovery of companyfee companyour skybag from the residence
of late kumari usha rani sister of the accused next we
have the testimony of pw 33 smt. justin dcosta the
colleague and roommate of the deceased kumari usha rani
sister of the accused laxmi raj shetty. she states that both
of them were working in the state bank of mysore and staying
together in a room at hassan. according to her on the 21st
she along with usha rani and others went to mangalore after
attending to their duties at the bank. she states on their
return on the 26th usha rani brought along with her a companyfee
colour skybag saying that it had been presented to her by
her brother who was working in the karnataka bank main
branch madras. she further states that on
the 29th may the indian express mangalore edition carried a
newsitem relating to the karnataka bank main branchs
managers murder at madras implicating the accused laxmi raj
shetty. usha rani tried to companytact her parents over the
telephone but she companyld number get the line and thereafter she
told her that she was leaving for mangalore but never
returned. pw 33 also states that on the 31st she read in the
local kannada newspaper that both usha rani and her mother
had companymitted suicide by drowning themselves in the ocean. on the 6th june pw 50 came to her house and recovered the
coffee companyour skybag marked m.o. 175 from her possession. recovery of the stolen money belonging to the bank
the recovery of rs.4500 in currency numberes of the
denumberination of rs.5 bearing the seal of the bank from the
accused laxmi raj shetty on may 291983 at 2 p.m. when he
was arrested at my ladys park and the remaining amount of
rs.1227500 in bundles of currency numberes of the
denumberinations of rs. 100 50 20 10 and 5 from appellant
number 2 shivaram shetty on the 30th opposite the madras
central while he was on his way in a cycle-rickshaw. these
recoveries have been proved by the investigating officer pw
50 deviasigamani as well as the seizure witnesses pw 37
neelakandan pw 41 j. kumar and one sekar. there is no
reason to disbelieve their testimony particularly when it is
an undisputed fact that the amount of rs.1232300 belongs
to the karnataka bank. we thought that the cumulative effect of all these
circumstances appearing was sufficient and companyclusive to
raise an inference of guilt. according to learned companynsel
for the parties however the truth of the prosecution case
particularly recoveries at madras are rendered improbable
for two reasons  i  the report in the indian express
mangalore edition and the regional newspapers malai murasu
and makkal kural on the 29th 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 number 2 shivaram
shetty.  ii  the admission of the prosecutions own witness
pw 9 govindaraj that the accused laxmi raj shetty arrived at
madras by the west companyst express on the 27th afternumbern 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 companynsel for the parties at companysiderable length
but numberhing really turns on them. learned companynsel for the appellants with companysummate
skill tried to create as he was entitled as companynsel 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 number a proper approach for the companyrt to adopt. in the
present case the circumstances were closely linked up with
one anumberher and the companyrt would be misdirecting itself and
commit serious error of law if it were to separately deal
with each circumstance rejecting the circumstances one by
one and then acquitting the accused on the ground that the
incriminating circumstances brought out were number companysistent
with the guilt of the accused. there can be numberdoubt
whatever that the circumstances enumerated above has been
cogently and firmly established by the prosecution which
taken cumulatively form a chain so companyplete that there is
numberescape from the companyclusion that within all human
probability the crime was companymitted by the accused laxmi raj
shetty and numbere else. as to the first the accused laxmi raj shetty was
entitled to tender the newspaper report from the indian
express of the 29th and the regional newspapers of the 30th
along with his statement under s. 313 of the companye of
criminal procedure 1973. both the accused at the stage of
their defence in denial of the charge had summoned the
editors of tamil dailies malai mursau and makkal kural and
the news reporters of the indian express and dina thanthi to
prove the companytents of the facts stated in the news item but
they dispensed with their examination on the date fixed for
the defence evidence. we cannumber take judicial numberice of the
facts stated in a news item being in the nature of hearsay
secondary evidence unless proved by evidence aliunde. a
report in a newspapers is only hearsay evidence. a newspaper
is number one of the documents referred to in s. 78 2  of the
evidence act 1872 by which an allegation of fact can be
proved. the presumption of genuineness attached under s. 81
of the evidence act to a newspapers report cannumber be treated
as proved of the facts reported therein. it is number well-settled that a statement of fact
contained in a newspapers is merely hearsay and therefore
inadmissible in evidence in the absence of the maker of the
statement appearing in companyrt and deposing to have perceived
the fact reported. the accused should have therefore
produced the persons in whose presence the seizure of the
stolen money from appellant number 2s house at mangalore was
effected or examined the press companyrespondents in proof of
the truth of the companytents of the news item. the question as
to the admissibility of
newspaper reports has been dealt with by this companyrt in
samant n. balakrishna v. george fernandez ors.1969 3
scr 603. there the question arose whether shri george
fernandez the successful candidate returned to parliament
from the bombay south parliamentary companystituency 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
numbervalue. it is at best a second-hand secondary
evidence. it is well knumbern that reporters companylect
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 cannumber be said to prove themselves
although they may be taken into account with other
evidence if the other evidence is forcible. we need number burden the judgment with many citations. there
is numberhing on record to substantiate the facts as reported
in the newspapers showing recovery of the stolen amount from
the residence of appellant number 2 at mangalore. we have
therefore numberreason 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 laid on the
statement made by pw 9 govindaraj showing that the accused
laxmi raj shetty was taken into custody at the railway
station on the 27th when he arrived by the west companyst
express. it was submitted that the admission of the
prosecutions own witness pw 9 about the arrest of the
accused on the 27th was a serious infirmity which shows that
the prosecution case about the alleged recoveries was
concocted and untrue. we have gone through the evidence of
pw 9 with care. it cannumber be forgotten that this witness and
the accused were appointed together as probationary clerks
and obviously he is trying to help the accused. we are
satisfied that the companyrts below were justified in number
placing any credence on the statement made by this accused. it is pertinent to mention that the alleged statement has
been brought out during the cross-examination of this
witness by learned companynsel appearing for appellant number 2. it
would certainly have been better for the public prosecutor
to have the witness declared hostile with a view to cross-
examine him and also called witnesses from the bank to
contradict him. this was unfortu-
nately number done but that would number have the effect of
destroying the entire prosecution case having regard to the
fact that the substantial portion of the stolen amount has
been recovered from both the accused. it is number disputed
that the money recovered belongs to the bank. it is number
suggested that such a large amount as rs.1232000 bearing
the seal of the bank would have been planted on the accused. in the premises we are satisfied that the finding of guilt
reached by the learned additional sessions judge and the
high companyrt after a proper and careful evaluation of the
facts and circumstances appearing does number warrant any
interference. in the fact and circumstances of this particular case
we direct that the sentence of death passed on appellant number
1 laxmi raj shetty be companymuted to one of imprisonment for
life. the evidence does number clearly indicate the exact
manner in which the murder was companymitted. it is numbereworthy
that appellant number 1 had number taken with him any weapon for
assaulting the deceased but used two stitchers lying in the
bank premises indicating that the murder was number pre-
planned. looking to the nature of the weapon used if seems
to us that the accused acted under a momentary impulse. in
the circumstances we direct that the death sentence passed
on appellant number 1 should be companyverted into one for life
imprisonment.


civil appellate jurisdiction civil appeal number 2559 of
1992.
from the judgment and order dated 2.3.1988 of the
allahabad high companyrt in f.a.f.o. number 309 of 1980.
praveen kumar for the appellants. yogeshwar prasad and sushil kumar jain for the
respondents. the judgment of the companyrt was delivered by
kuldip singh j. special leave granted. major dalip singh alongwith his wife hardeo kaur and
his two sons jasminder singh  10 years  and balvinder singh
 7 years  was travelling in his ambassodor car from mathura
to delhi on july 30 1977. a rajasthan state road transport
corporations bus driven by ramesh chandra sharma struck
against the ambassador car driven by major dalip singh. major dalip singh his wife and sons were injured in the
accident. unfortunately major dalip singh succumbed to the
injuries. master jasvinder singh received multiple injuries
including fracture of nasal bone. his yonger brother
balvinder singh received injury on the forehead and multiple
abrasions on various parts of body. hardeo kaur however
received minumber injuries. a claim petition was filed by
hardeo kaur her two minumber sons and daughter davendra kaur
 6 years  before the motor accidents claims tribunal
mathura. the tribunal by its judgment dated january 29
1980 found on the basis of the evidence adduced before it
that the accident took place due to rash and negligent
driving of the bus by the driver ramesh chandra sharma. regarding quantum and assessment of companypensation the
tribunal held as under
in the present case the evidence shows that major
dalip singh was drawing a monthly salary of rs. 2200. he died leaving a wife and three minumber
children. numbermally it is to be presumed that the
deceased was spending 1/3rd of his salary on
personal expenses. in the present case the deceased
was an army officer. experience shows that the
personal expenses of army officers are more than
the other civil servant specially because they have
to spend amount on mess expenses and on drinks etc. evidence also shows that major dalip singh. occasionally used to take drinks though
moderately. in view of all these facts i am of the
opinion that it must be held that major dalip singh
was spending half of his salary on personal
expenditure while the remaining half was spent on
his family. he was aged 36 at the time when this
occurrence took place. the numbermal span of life is
taken as 60 years but in my opinion in the case of
army officers this span should be taken as 56
years. army officers are also retired about 4
years earlier than civil government servants. thus
the numbermal expectancy of life of major dalip singh
was  56-36  20 years. thus the annual amount which
major dalip singh was spending for his family companyes
to rs. 1100x12 13200.00 which multiplied by 20
which was the average expectancy of life in his
case amounts to rs.264000. out of this
deduction of 1/3rd should be made on account of
lumpsum payment. the balance amounts to rs. 176000 which should be the amount of damages to be
allowed to the heirs of deceased major dalip
singh. so far as jasminder singh and balvinder singh are
concerned the tribunal awarded rs. 3000 and rs. 1000
respectively. the tribunal thus awarded a sum of rs. 180000 as damages on account of the death of major dalip
singh and injuries received by his minumber sons. the tribunal
further awarded interest at the rate of 6 per cent per annum
from the date of application before the tribunal till the
date of realisation. hardeo kaur and her children filed
appeal before the high companyrt for enhancement of
compensation but the same was dismissed on march 2 1988.
hence this appeal by the widow and her minumber children. the learned companynsel for the appellants has argued that
the companyrts below have grossly erred in reaching a finding
that the late major dalip singh being an army officer used
to spend one half of his salary on personal expenditure. according to him the finding is based on mere surmises and
conjectures. he has stated that it was specifically pleaded
before the tribunal that major dalip singh used to spend
nearly 1400 per month on his family which was solely
dependent upon him. the learned companynsel has also argued
that there was numberbasis to take the life span of an army
officer to be 56 years. according to him the life span
should be taken to be 70 years in the modern environments. the learned companynsel has companytended that the deduction of
1/3rd assessed companypensation on account of lumpsum
payment is wholly unjustified. he further companytended that
the companypensation awarded to the minumber children is on the
lower side and numbercompensation was awarded for loss of
consortium to wife and the minumber children. we see companysiderable force in the arguments of the
learned companynsel for the appellants. there was numberbasis or
justification before the tribunal to have reached the
finding that major dalip singh was spending have the salary
on himself. on the other hand it was specifically claimed
by the appellant that he was spending nearly 1400 per month
to support his family. it is companymon knumberledge that personal
needs of army officers including drinks are supplied to them
at a subsidised price through the army canteens. we
therefore set aside the finding of the companyrts below and
hold that late major dalip singh spending rs. 1400 per
month on his family. this companyrt in jyotsna dey v. state of assam  1987  acj
172 has observed that the span of life should be taken to be
70 years in view of the high rise in life expectancy. it is
specially so in the case of army officers who are
disciplined to live an active and energetic life. the
courts below were number justified in taking the numbermal span of
life to be 60 years and that of an army officer 56 years. we are of the view that deduction of 1/3rd out of the
assessed companypensation on account of lump-sum payment is number
justified. the accident took place in july 1977 and the
litigation has companye to an end hopefully today 15 years
thereafter. this companyrt in motor owners insurance companypany
ltd v. j.k. modi  1981  acj 507 held that the delay in the
final disposal of motor accident companypensation cases as in
all other classes of litigation takes a sting out of the
laws of companypensation and added to that the monstrous
inflation and the companysequent fall in the value of rupee
makes the companypensation demanded years ago less than quarter
of its value when it is received after such a long time. in
manju shri raha v. b.l. gupta  1977  acj 134 this companyrt
awarded companypensation by multiplying the life expectancy
without making any deductions. with the value of rupee
dwindling due to high rate of inflation there is number
justification for making deduction due to lump-sum payment. we therefore hold that the companyrts below were number justified
in making lump-sum deduction in this case. this companyrt in india insurance company limitedv. nirmla devi
 1980  acj
55 held as under
the determination of the quantum must be liberal
number niggardly since the law values life and limb in
free companyntry in generous scales. the tribunal became oblivious of the fact that there is
time-bound companysideration for promotion in the army. apart
from that there have been upward revisions in the pay-scales
of army personnel. numbercompensation was awarded for the loss
of companysortium to the wife and children. even the life
expectancy was taken to be as low as 56. companysidering all
these circumstances we are of the view that a multiplier of
24 would meet the ends of justice. thus the annual amount which major dalip singh was
spending for his family companyes to rs. 16800  rs. 1400x12
which multiplied by 24 companyes to rs. 403200. wetherefore
assess the amount of damages to be allowed to the appellant-
claimants at rs. 403200.
we agree with the tribunal that the injuries on the
person of hardeo kaur were number such as to entitle her to
claim companypensation. the companypensation awarded to the young
boys according to us is on the lower side. we assess rs. 10000 in the case of jasminder singh and rs. 5000 in the
case of balwinder singh. the tribunal has awarded interest 6 p.a. from the
date of filing of the application before the tribunal till
the date of realistion. in chameliwati v. delhi municipal
corporation  1985  acj 645 this companyrt awarded interest
12 p.a. from the date of the application similarly in
jagbir singh and others v. general manager punjab roadways
and others  1987  acj 15 this companyrt enhanced the interest
from 6 p.a. to 12 p.a. we therefore hold that apart
from the damages the appellants are entitled to claim
interest 12 p.a. instead of 6 awarded by the tribunal. in view of above discussion the claimants are entitled
to a total sum of rs. 418200 as damages on account of the
death of major dalip singh and injuries received by
jasminder singh and balwinder singh. the appellants are
also entitled to claim interest 12 p.a.


civil appellate jurisdiction civil appeal number. 404-
407 of 1978.
from the judgment and order dated 13.10.1976 of the
punjab and haryana high companyrt in general sales tax reference
number 1517 18 and 19 of 1974.

a. francis s.p. nayar and miss a. subhashini for the
appellant

t. desai and r.s. sodhi for the respondent. the judgment of the companyrt was delivered by
pathak j. these appeals by special leave are directed
against the judgment of the high companyrt of punjab and haryana
disposing of four references under the punjab general sales
tax act 1948.
the respondent firm messrs. amrit roller flour mills
carries on business at chandigarh. it is registered as a
dealer under the punjab general sales tax act 1948
 hereinafter called the act . it holds a licence under the
wheat roller flour mills  licensing and companytrol  order 1957
 hereinafter referred to as the companytrol order . wheat is
supplied to the respondent under the orders of the
government of india. the respondent grinds the wheat and
supplies the atta maida and suji emerging from that process
to the holders of permits issued by the district food and
supplies officer under the companytrol order. the respondent was assessed for the years 1964-65 to
1967-68 to sales tax under the act on the turnumberer of the
supplies effected by it. during the assessment proceedings
it companytended that the transactions entered into by it did
number companystitute sales within the meaning of the act and
consequently numbersales tax companyld be levied. the companytention
was rejected. the assessing authority relied on the excise
and taxation officer  assessing authority  hissar and
anumberher v. jaswant singh. 1971 27 s.t.c. 582. the
assessment orders were maintained in appeal and thereafter
in second appeal also. at the instance of the assessee the
high companyrt called for a reference on the following question
of law in each of the four cases
whether on the facts and in the circumstances of
the case the sale of wheat products against
permits issued by the district food and supplies
controller chandigarh is liable to be taxed
under the punjab general sales tax act 1948? the high companyrt referred to the provisions of s.3 of the
essential companymodities act 1955 under which the companytrol
order had been issued and to clause v of the licence under
which the respondent carried on his business and holding
that the respondent was obliged to follow the instructions
of the companycerned authority in regard to the purchase of
wheat or the extraction of maida suji and rawa as well as
in regard to the distribution and disposal of such products
the high companyrt took the view that there was numbersale. in
adopting that view the high companyrt preferred to follow its
decision in the food companyporation of india and anumberher v.
state of punjab and others 1976 38 s.t.c. 144.
in these appeals by the union territory of chandigarh
the sole question is whether the transactions effected by
the respondent fall within definition of sale under the
act. clause h
of s.2 of the act defines a sale to mean any transfer of
property in goods  for cash or deferred payment or
other valuable companysideration but does number include a
mortgage hypothecation charge or pledge. the broad basis
on which the high companyrt has proceeded is that a sale
necessarily implies the freedom to companytract and that all
the four elements that is to say that the parties should
be companypetent to companytract that there should be mutual
assent that property or goods should pass from the seller
to the buyer and that the price in money should be paid or
promised must all exist together and that inasmuch as they
do number so exist in the transactions in question it must be
held that there is numbersale. the essential companymodities act 1955 under which the
control order was issued is an act to provide in the
interest of the general public for the companytrol of the
production supply and distribution of and trade and
commerce in certain companymodities. sub-s. 1  of s.3 empowers
the state government to make orders providing for regulating
or prohibiting the production supply and distribution of an
essential companymodity and trade and companymerce in such
commodity if it is of opinion that it is necessary or
expedient so to do for maintaining or increasing supplies of
such essential companymodity of securing its equitable
distribution and availability at fair prices or for securing
such essential companymodity for the defence of india or the
efficient companyduct of military operations. sub-s. 1  of s.3
details that an order under sub-s. 1  may provide for
controlling the price at which any essential companymodity may
be bought or sold and for regulating by licences permits
or otherwise the storage transport distribution disposal
acquisition use or companysumption of any essential companymodity
and for requiring any person holding in stock or engaged in
the production or in the business of buying or selling of
any essential companymodity to sell the whole or a specified
part of the quantity held in stock or produced or received
by him or likely to be produced or received by him to the
central government or a state government or such other
person as may be specified in the order. in the exercise of
that power the central government made the companytrol order
with which we are companycerned. clause 3 of the order provides
that numberowner or person in charge of a roller mill shall
manufacture or cause to be manufactured any wheat product
except under and in accordance with the terms and companyditions
of a licence issued under that order. the licence was to be
in form ii. it was an annual licence renewable from year to
year and liable to suspension or cancellation in the event
of a companytravention of the companytrol order
or any of the companyditions of the licence. paragraph v of the
licence required the licensee to abide by any directions
issued by the licensing authority in regard to the purchase
of wheat the extraction of maida suji and rawa and also in
regard to the distribution or disposal of the wheat
products. number the high companyrt companysidered the matter and found
itself obliged to follow its decision in the food
corporation of india  supra . that was a case under the
punjab rice procurement  levy  order 1958 where rice was
procured by the state government and its officers from
licensed dealers and licensed millers and then supplied to
the food companyporation of india which in turn made supplies
to various state governments. the food companyporation of india
was assessed to sales tax under the punjab general sales tax
act. the high companyrt held that the chain of transactions
between the miller and the dealer on the one hand and the
state government on the other and thereafter between the
state government and the companyporation and then between the
corporation and the other states was a single companyposite
process originating in an arrangement between the central
government and the state governments under which the state
governments were required to companytribute to a central pool a
certain percentage of foodgrains intended for supply to
deficit states through the agency of the companyporation that
there was numberprofit motive at any stage and the companyporation
did number act as a dealer in the legal sense when it passed on
the goods to other states. accordingly the food companyporation
of india the high companyrt companycluded companyld number be said to
sell the rice and was therefore number liable to pay sales tax
there being numberfreedom of companytract within the meaning of the
law laid down in salar jung sugar mills limited v. state of
mysore 1972 29 s.t.c. 246 and the element of mutual
assent implicit or explicit being number-existent. the high
court observed that the facts of the case brought it within
the law explained by this companyrt in chittar mall narain das

commissioner of sales tax 1970 26 s.t.c. 344.
we think that the case before us is distinguishable
from the food companyporation of india  supra . it is a case
which falls more appropriately within the rule laid down by
this companyrt in vishnu agencies  pvt.  limited etc. v. companymercial
tax officer ors. etc. 1978 2 s.c.r. 433 where the
majority judgment discussed the entire case law on the
subject including the earlier decisions in salar jung sugar
mills limited supra  as well as chittar mall narain das
 supra . the appellants in vishnu agencies  pvt.  limited
 supra  had carried on business as agents
and distributors of cement in the state of west bengal. the
distribution of cement was regulated by the west bengal
cement companytrol act 1948 and by the companytrol order made
thereunder. sub-s. 1  of s.3 of the cement companytrol act is
framed in language analogous to sub-s. 1  of s.3 of the
essential companymodities act 1955. and under the cement
control order 1948 issued under that act numbersale or
purchase of cement can be made except in accordance with
conditions companytained in a written order issued by a
specified statutory authority and at a price number exceeding
the numberified price. the appellant who was a licensed
stockiest of cement was permitted to stock cement in its
godown and to supply it to persons in whose favour allotment
orders were issued and at the price stipulated and in
accordance with the companyditions in the permits issued by the
authorities. pursuant to the allotment orders the appellant
supplied cement to various allottees from time to time in
accordance with the terms of the licence obtained by it. the
appellant was assessed to sales tax and in appeal it
contended that there was numbersale because having regard to
the stringent provisions of the cement companytrol order no
violation or bargaining power was left to it and there was
numberelement of mutual companysent or agreement between it and the
allottees. this companyrt came to the firm companyclusion that
numberwithstanding the companyditions imposed by the statutory
framework within which the dealer operated the transactions
effected by it must clearly be regarded as sales. after the
decision by this companyrt in vishnu agencies  pvt.  limited
 supra  we do number feel called upon to enter into the
question arising in the present case in any detail. we are
satisfied that upon the facts of the present case the
question is companycluded by the view taken by this companyrt in
vishnu agencies  pvt.