Bangalore District Court
The State Of Karnataka vs Sunil Rajbar @ Sunil on 4 May, 2017
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH - 52)
Dated this the 4th day of May 2017
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
S.C.No. 551/2014
Complainant : The State of Karnataka,
Represented by it's
The Police Inspector,
Banashankari Police Station,
Bengaluru City.
(By Public Prosecutor)
Vs.
Accused : Sunil Rajbar @ Sunil,
S/o. Ashok Rajbar,
Aged 23 years,
R/a. No.402, Sarovar Grama,
Katharari Post,
Pekali Grama Panchayath,
Devariya Thahasil, Devariya District,
Uttar Pradesh State.
(By Sri M.R. Harish Kumar,
Advocate)
1 Date of commission of offence 05.01.2014
2 Date of report of offence 06.01.2014
3 Date of arrest of the accused 12.01.2014
4 Date of release of accused on bail 20.10.2015
5 Date of commencement of 03.03.2015
evidence
6 Date of closing of evidence 20.07.2016
7 Name of the complainant Smt Chinnamma
8 Offences complained of Sections 302 & 201 of
IPC.
2 SC No.551/2014
9 Date of pronouncement of 04.05.2017
judgment
10 Opinion of the Judge Guilt of the accused not
proved
11 Order of Sentence As per final-order
JUDGMENT
This is a charge-sheet filed by the Police-Inspector of Banashankari Police Station, Bengaluru City, leveling the charges against the above said accused for the commission of the offences punishable U/Secs.302 & 201 of IPC in the committal III ACMM Court, Bengaluru City, in it's CC No.8781/2014 in connection with the Banashankari P.S. Cr.No.4/2014.
2. The epitomized-facts of the allegations that are leveled against the above said accused in the charge-sheet run thus:
On 06.01.2014 at about 1.00 a.m. in the early-morning-
hours, the accused by name, Sunil Rajbar @ Sunil, S/o. Ashok Rajbar, asked the deceased Ghanashyam to advance Rs.15,000/-
stating that his mother was ill, for which the said Ghanashyam refused, whereby the scramble having raised by the accused with the said Ghanashyam being angry assaulted on the head, chin, forehead, right-eye and nose of Ghanashyam with the wood-
scraper (Cwæ/vÉÆÃ¥ÀqÀ), and caused the grievous-injuries intentionally, knowing-fully-well that such injuries were likely to cause the death of the said Ghanashyam, to which the said Ghanashyam succumbed and thereby, the accused committed the murder of Ghanashyam and thereafter, on the same-day at about 6.00 a.m. 3 SC No.551/2014 in the early-morning-hours, the accused took the mobile-phone of the deceased Ghanashyam, and the said wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) which was used for committing the murder of the said Ghanashyam, thereafter, by locking the door of the house and hided the said wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) in the bushes near the sand-lorry-stand besides Kadhirenahalli-underpass and he threw the key of the house of the deceased Ghanashyam with his mobile-
sim in drainage near Central Silk Board of Madiwala, with an intention to screening himself from the legal-commission by causing the disappearance of the said material-objects/evidence in respect of he having committed the offence of murder and thereby, the accused committed the offences punishable U/Secs.302 & 201 of IPC.
3. After filing the charge-sheet, cognizance of the offences punishable U/Secs.302 & 201 of IPC was taken by III ACMM Court, Bengaluru City.
In response to the process issued against the accused, he has put-in his appearance before the committal-court, through his learned counsel.
On moving for bail, the accused has been released on bail, as per the order dated 26.09.2015 in Crl. Petition No.5642/2015 of the Hon'ble High Court of Karnataka, Bengaluru.
Copies of the charge-sheet and other-documents referred to U/Sec.173 of Cr.P.C. were supplied to the accused by the III 4 SC No.551/2014 ACMM Court, Bengaluru City, in contemplation with the provisions U/Sec.207 of Cr.P.C. and thereafter committed the case to this court in contemplation with the provisions U/Sec.209 of Cr.P.C.
After committing the case to this court by the III ACMM Court, Bengaluru City, the process were issued to the accused and secured the presence of accused before this court.
After hearing both-sides, charges for the offences punishable U/Secs.302 & 201 of IPC were framed, and the same were read-over, and explained to the accused in the vernacular best-known to him.
The accused has denied the same and pleaded not guilty and further claimed to be tried.
4. In order to prove the guilt against the accused, the prosecution has adduced the evidence of the witnesses, in all as PWs.1 to 24, and placed it's reliance-on the documents marked at Exs.P.1 to P.40, P.1(a), P.1(b), P.2(a), P.2(b), P.2(c), P.3(a), P.3(b), P.3(c), P.3(d), P.4(a), P.4(b), P.4(c), P.4(d), P.14(a), P.14(b), P.14(c), P.16(a), P.16(b), P.17(a), P.18(a), P.18(b), P.25(a), P.25(b), P.26(a), P.26(b), P.27(a), P.27(b), P.28(a), P.29(a), P.29(b), P.30(a), P.30(b), P.31(a), P.32(a), P.33(a), P.34(a), P.35(a), P.36(a), P.36(b), P.38(a), P.39(a), P.39(b), P.40(a) & P.40(b), and the material-objects marked on behalf of the prosecution are at MO No's.1 to 12.
5. After the prosecution's-evidence was closed, as the incriminating-circumstances were arising-out of the evidence of the 5 SC No.551/2014 prosecution-witnesses, the statements of the accused under the provisions U/Sec.313 of Cr.P.C., were recorded.
6. I have heard the arguments advanced by both the learned Public Prosecutor for the State as-well-as the learned counsel for the accused.
7. Now, the points that arise for my consideration are:
(1) Whether the death of deceased Ghanashyam is a homicidal-death?
OR ............. deceased Ghanashyam met with the homicidal-death?
(2) Whether the prosecution proves beyond the shadow of all the reasonable-doubts that, on 06.01.2014 at about 1.00 a.m. in the early-morning- hours, the accused by name, Sunil Rajbar @ Sunil, S/o. Ashok Rajbar, asked the deceased Ghanashyam to advance Rs.15,000/- stating that his mother was ill, for which the said Ghanashyam refused, whereby the scramble having raised by the accused with the said Ghanashyam being angry assaulted on the head, chin, forehead, right-eye and nose of Ghanashyam with the wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ), and caused the grievous- injuries intentionally knowing-fully-well that such injuries were likely to cause the death of the said Ghanashyam, to which the said Ghanashyam succumbed and thereby, the accused committed the murder of Ghanashyam and thereby, the accused committed the offence punishable U/Sec.302 of IPC? (3) Whether the prosecution further proves beyond the shadow of all the reasonable-doubts that, on the 6 SC No.551/2014 above said date, time and place, the accused took the mobile-phone of the deceased Ghanashyam, and the said wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) which was used for committing the murder of the said Ghanashyam, thereafter, by locking the door of the house and hided the said wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) in the bushes near the sand-lorry-stand besides Kadhirenahalli-
underpass and he threw the key of the house of the deceased Ghanashyam with his mobile-sim in drainage near Central Silk Board of Madiwala, with an intention to screening himself from the legal-
commission by causing the disappearance of the said material-objects/evidence in respect of he having committed the offence of murder and thereby, the accused committed the offence punishable U/Sec.201 of IPC?
(4) Whether the accused is liable to be convicted for the alleged offences?
(5) What order?
8. My findings on the above said points are as under:
Point No.1 .. In the Affirmative.
Point No.2 .. In the Negative.
Point No.3 .. In the Negative.
Point No.4 .. In the Negative.
Point No.5 .. As per the final-order,
for the following:
REASONS
9. Point No.1:- According to the case of the prosecution, on 06.01.2014 at about 1.00 a.m. in the early-morning-hours, the accused by name, Sunil Rajbar @ Sunil, S/o. Ashok Rajbar, asked 7 SC No.551/2014 the deceased Ghanashyam to advance Rs.15,000/- stating that his mother was ill, for which the said Ghanashyam refused, whereby the scramble having raised by the accused with the said Ghanashyam being angry assaulted on the head, chin, forehead, right-eye and nose of Ghanashyam with the wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ), and caused the grievous-injuries intentionally knowing- fully-well that such injuries were likely to cause the death of the said Ghanashyam, to which the said Ghanashyam succumbed and thereby, the accused committed the murder of Ghanashyam and thereby, the accused committed the offence of murder punishable U/Sec.302 of IPC.
10. Therefore, it is incumbent-upon this court to look-into as to whether the death of the deceased Ghanashyam is a homicidal- death or otherwise?. Undoubtedly, there is no dispute in so-far-as the demise of the deceased Ghanashyam. The only crucial-aspect that which required to be delved-into is as to whether the death of the deceased Ghanashyam is a homicidal-death or otherwise.?
11. In view of the same, the prosecution has got examined the PW.11/Dr. C. Ramesh S/o Chinnappa stated to have conducted the post-mortem and also given the opinion in respect of MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ), has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 10.01.2014 on receipt of a requisition from the Police- Inspector of Banashankari police-station for conducting the post- 8 SC No.551/2014 mortem on the dead-body of deceased Ghanashyam, he has conducted the post-mortem between 12.05 p.m. and 1.05 p.m. in the afternoon in KIMS Hospital & Research Center, Bengaluru, whereby he found the length of the said deceased Ghanashyam was 167 cms aged of 26 years with cold-rigor and post-mortem staining on his back with bleeding from the left-ear. He has further stated regarding the external and internal-injuries and etc., the cause of death in detail in pursuance with the post-mortem report issued by him, as per Ex.P.16, on which his signature is as per Ex.P.16(a) and the injuries are stated to be as under:
(1) Cut lacerated wound measuring 4 X 1 cm X bone-deep present over the right temporo-parietal region. (2) Cut lacerated wound measuring 6 X 1 cm X bone-deep present over the right temporal-region, parallel to and 4 cm below injury No.1.
(3) Lacerated-wound measuring 3 X 1 cm X bone-deep present over the right-forehead 3 cm from right-eyebrow.
(4) Cut lacerated-wound measuring 6 X 1 cm X bone-deep extending from medical cantus of right-eye to medial one third of left-eyebrow.
(5) Right black-eye present.
(6) Cut lacerated-wound measuring 5.5 X 1.5 cm present over base of both nostrils along-with fracture of nasal- cartilage.
(7) Lacerated-wound measuring 3 X 1 cm X bone-deep present overt the chin.
SCALP- As described. Brain covered by
Right temporalis Intact and Sub dural
muscle contused congested hemorrhages all
over the cerebral
SKULL- hemispheres.
Fissured fracture measuring
13 cm extending from left
temporal-bone to the frontal-
bone on the right passing
through middle and anterior
cranial fossae. Another
fissured fracture measuring
7 cm extending from right-
temporal-bone ending in the
9 SC No.551/2014
previous-fracture on the
right-side.
Pleura adherent to Both lungs are
the chest-wall on congested
the left-side.
Stomach contains partially
digested sooji-meal, half-
stomach.
OTHER RELEVANT OBSERVATIONS:
- All Injuries are ANTE-MORTEM in nature.
- Clothes present over the body.
1. Blue coloured vest labeled GOLD, bloodstained.
2. Blue coloured kacha labeled CRAZE.
The clothes are air dried, packed, labeled sealed and handed over to the concerned police along-with sample-seal.
OPINION AS TO CAUSE OF DEATH DEATH is due to HEAD-INJURY sustained.
12. In addition to the same, even the PW.11 has clearly deposed to the effect that, he has identified the banyan and underwear which were on the dead-body of the deceased, as per MO No's.11 & 12, respectively. Further, he has stated that on 12.02.2014 the Police-Inspector of Banashankari police-station having sent a requisition for giving the opinion regarding the wood- scraper (Cwæ/vÉÆÃ¥ÀqÀ) which was also sent to him, wherefore, basing- on the post-mortem conducted by him as per Ex.P.16, he has issued his opinion-report as per Ex.P.17, on which his signature is as per Ex.P.17(a), opining that the external-injuries at Sl.No's.1 to 7 in Ex.P.16 with corresponding internal-injuries mentioned therein could have been caused by the wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) type of weapon examined by him.
10 SC No.551/2014
13. Further, the PW.13/S. Girish S/o Shankarachar being the photographer, has endeavored to depose in favour of the prosecution in respect of he having taken the photographs of the dead-body by visiting to the spot of incident with a Digital Nikon Camera and developed the same as per Exs.P.5 to P.13 & P.19 to P.24, at the request of Banashankari police and since there will be no negatives to the said photographs taken through the digital- camera, he has given a certifying-letter to that effect as per Ex.P.25, on which his signature is as per Ex.P.25(a).
14. But, in the cross-examination by the learned counsel for the accused, he (PW.13) has admitted regarding the date and time of taking the said photographs through the digital-camera could be shown. But, further he has explained that in the professional- camera even if it is depicted, on developing and printing the photographs, such date and time will never come. Therefore, the said versions of the PW.13 in the cross-examination do-not demolish the creditworthiness in the versions of his chief- examination.
15. Further, the PW.14/L. Nagaraj S/o Lakshmanappa being the police-constable as-well-as the circumstantial-witness, has endeavored to depose in favour of the prosecution in his chief- examination with regard to he having carried the MO No's.11, 12 and viscera in all 6 material-objects from KIMS Hospital to police- station and produced before the investigating-officer/CW.30, under 11 SC No.551/2014 his report as per Ex.P.26, on which his signature is as per Ex.P.26(a) and even he has identified the said MO No's.11 & 12 in the open-court.
16. Further, the PW.15/Sanjaykumar Jaadi S/o Dharmanna Jaadi being another police-constable stated to have carried the material-objects to FSL, Madiwala, Bengaluru, and brought-return thereafter as-well-as the circumstantial-witness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, he had taken 14 material-objects at the instructions of the CW.29/PSI to FSL and thereafter sometime he brought 10 sealed material-objects and produced before the CW.29/PSI, along- with his report as per Ex.P.27, on which his signature is as per Ex.P.27(a).
17. Further, the PW.23/Smt. S. Savitha W/o K.R. Chandrababu being the Scientific-Officer of FSL, Madiwala, Bengaluru, has endeavored to depose in favour of the prosecution in respect of she having scientifically examined and analyzed the materials sent to her and thereby stated that on 30.01.2014 the inward-section having received 4 material-objects with a requisition from the Police-Inspector, Banashankari police-station in connection with Cr.No.4/2014, she having been entrusted with the work of scientific-examination and analysis of the said 4 material-objects sent by the Police-Inspector, Banashankari police- station, by her Assistant-Director, on receiving the same she found 12 SC No.551/2014 the seals thereon as intact and also a certification made by the doctor thereon as the said material-objects were pertaining to one Ghanashyam aged of 26 years. On opening the said 4 material- objects, she found the stomach with the contents and the portion of small-intestine with it's contents, the portions of liver and kidneys, blood and sodium-chloride solution; and on scientifically examining and analyzing the same, she has given her detail scientific-opinion-report as per Ex.P.39, on which her signature is as per Ex.P.39(b), opining to the effect that residues of Volatile poisons, Pesticides, Barbiturates, Benzodiazepine group of drugs, Toxic metal ions and anions were not detected in all the above stated articles.
18. In addition to the same, even the PW.24/Smt. D, Malathi W/o Mahesh being the Scientific-Officer of FSL, Madiwala, Bengaluru, has also endeavored to depose in favour of the prosecution in her chief-examination to the effect that, on 30.01.2014 the inward-section of FSL having received a requisition with 7 articles by the Police-Inspector of Banashankari police- station in connection with Cr.No.4/2014 through PC No.12120, the same was handed-over by her Assistant-Director for examining the same scientifically and give her opinion, wherefore, she having received the same, she found the seals thereon as intact and the details mentioned thereon were tallying-with the details furnished by the investigating-officer and thereby, she found 10 articles 13 SC No.551/2014 therein, such as, a mat, a bed, a bed-sheet, a shirt, blood-mixed wall-scratch-powder, wall-scratch sample-powder, one T-shirt, one wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ), one banyan and one underwear, and on examining the same in detail scientifically, she has given her opinion-report as per Ex.P.40, on which her signature is as per Ex.P.40(b), opining to the effect that, presence of blood was detected in article No's.1 to 5 & 7 to 10; presence of blood was not detected in article No.6; item No's.1 to 5 & 6 to 10 were stained with human-blood; and item No's.1 to 5 & 7 to 10 were stained with AB blood-group. She has identified the said MO No's.1 to 7, 9, 11 & 12 also in the open-court.
19. Therefore, on meticulous-consideration of the very- depositions of the PWs.11, 13 to 15, 23 & 24 coupled-with Exs.P.16, P.17, P.19 to P.27, P.39 & P.40, it is clear on the face of record itself that the death of deceased Ghanashyam was not otherwise than a homicidal-death. In respect of the same, the prosecution has prima-facie established basing-on the afore- discussed material. Hence, in view of all these reasons, this court is inclined to answer the Point No.1 in the 'Affirmative'.
20. Point No's.2 & 3:- To avoid reiteration of material available in hand and to appreciate the evidence in better-position, I hereby take-up Point No's.2 & 3 together admixingly for discussion.
14 SC No.551/2014
21. It is the specific-tale of the prosecution that, on 06.01.2014 at about 1.00 a.m. in the early-morning-hours, the accused by name, Sunil Rajbar @ Sunil, S/o. Ashok Rajbar, asked the deceased Ghanashyam to advance Rs.15,000/- stating that his mother was ill, for which the said Ghanashyam refused, whereby the scramble having raised by the accused with the said Ghanashyam being angry assaulted on the head, chin, forehead, right-eye and nose of Ghanashyam with the wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ), and caused the grievous-injuries intentionally, knowing- fully-well that such injuries were likely to cause the death of the said Ghanashyam, to which the said Ghanashyam succumbed and thereby, the accused committed the murder of Ghanashyam and thereafter, on the same-day at about 6.00 a.m. in the early- morning-hours, the accused took the mobile-phone of the deceased Ghanashyam, and the said wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) which was used for committing the murder of the said Ghanashyam, thereafter, by locking the door of the house and hided the said wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) in the bushes near the sand-lorry-stand besides Kadhirenahalli-underpass and he threw the key of the house of the deceased Ghanashyam with his mobile-sim in drainage near Central Silk Board of Madiwala, with an intention to screening himself from the legal-commission by causing the disappearance of the said material-objects/evidence in respect of he having committed the offence of murder and thereby, the 15 SC No.551/2014 accused committed the offences punishable U/Secs.302 & 201 of IPC.
22. At the very outset, the absolute burden of proving the alleged imputations against the accused is casted-upon the prosecution alone in pursuance with the provisions under the Indian Evidence Act, 1872.
23. To substantiate it's case, the prosecution has got examined in all the witnesses as PWs.1 to 22, in which CW.1 is examined as PW.1 who is the complainant, spot-mahazar as-well- as the seizure-mahazar-witness; CW.2 is examined as PW.2 who is the spot-mahazar-witness as-well-as the circumstantial-witness having given the statement during the inquest; CW.5 is examined as PW.2 who is the partial-eyewitness; CWs.7, 8 & 9 are examined as PWs.6, 4 & 9, respectively, who are the inquest-mahazar- witnesses; CWs.10 & 11 are examined as PWs.5 & 7, respectively, who are the seizure-mahazar-witnesses; CWs.12, 13 & 15 are examined as PWs.8, 10 & 12, respectively, who are also the seizure-mahazar-witnesses; CW.16 is examined as PW.20 who is the spot near Central Silk Board drainage mahazar-witness; CW.17 is examined as PW.21 who is the partial-eyewitness, CW.18 is examined as PW.11 who is the Medical-Officer having conducted the post-mortem of the dead-body of deceased Ghanashyam; CW.19 is examined as PW.17 who is the Assistant-Engineer having prepared the hand-sketch map of the spot of the incident as-well- 16 SC No.551/2014 as the circumstantial-witness; CW.20 is examined as PW.18 who is the Nodel-Officer of Airtel Company issued the cell-details as-well- as the circumstantial-witness; CW.21 is examined as PW.13 who is the photographer; CW.22 is examined as PW.14 who is the police- constable having carried the material-objects from KIMS Hospital to police-station as-well-as the circumstantial-witness; CW.23 is examined as PW.15 who is also the police-constable having carried the material-objects to FSL and brought-return as-well-as the circumstantial-witness; CW.25 is examined as PW.16 who is the ASI having traced-out the accused and produced before the investigating-officer as-well-as the circumstantial-witness; CW.29 is examined as PW.19 who is the initial-partial-investigating- officer; CW.30 is examined as PW.22 who is the remaining-partial- investigating-officer and CWs.31 & 32 are examined as PWs.23 & 24, respectively, who are the Scientific-Officers of FSL, Madiwala, Bengaluru, and thereby, the prosecution has placed it's reliance-on the documentations marked at Exs.P.1 to P.40, in which Ex.P.1 is the complaint of PW.1, Ex.P.1(a) is the signature of the PW.1, Ex.P.1(b) is the signature of the PW.19, Ex.P.2 is the seizure- mahazar, Ex.P.2(a) is the signature of the PW.3, Ex.P.2(b) is the signature of the PW.19, Ex.P.2(c) is the signature of the PW.20, Ex.P.3 is the inquest-mahazar, Ex.P.3(a) is the signature of the PW.4, Ex.P.3(b) is the signature of the PW.6, Ex.P.3(c) is the signature of the PW.9, Ex.P.3(d) is the signature of the PW.19, 17 SC No.551/2014 Ex.P.4 is the seizure-mahazar, Exs.P.4(a) & P.4(b) are the signatures of the PW.5, Ex.P.4(c) is the signature of the PW.1, Ex.P.4(d) is the signature of the PW.19, Exs.P.5 to P.13 are the photographs, Ex.P.14 is the seizure-mahazar, Ex.P.14(a) is the signature of the PW.8, Ex.P.14(b) is the signature of the PW.10, Ex.P.14(c) is the signature of the PW.19, Ex.P.15 is the statement of the PW.8, Ex.P.16 is the statement of the PW.11, Ex.P.16(a) is the signature of the PW.11, Ex.P.16(b) is the signature of the PW.22, Ex.P.17 is the opinion of the PW.11, Ex.P.17(a) is the signature of the PW.11, Ex.P.18 is the mahazar, Ex.P.18(a) is the signature of the PW.12, Ex.P.18(b) is the signature of the PW.19, Exs.P.19 to P.24 are the photographs were taken during the time of post-mortem, Ex.P.25 is the letter of declaration issued by PW.13, Ex.P.25(a) is the signature of the PW.13, Ex.P.25(b) is the signature of the PW.22, Ex.P.26 is the report of PW.14, Ex.P.26(a) is the signature of the PW.14, Ex.P.26(b) is the signature of the PW.22, Ex.P.27 is the report of PW.15, Ex.P.27(a) is the signature of PW.15, Ex.P.27(b) is the signature of PW.19, Ex.P.28 is the report of the PW.16, Ex.P.28(a) is the signature of PW.16, Ex.P.29 is the sketch showing the place of occurrence of crime, Ex.P.29(a) is the signature of PW.17, Ex.P.29(b) is the signature of PW.22, Ex.P.30 is the information-letter issued by PW.18, Ex.P.30(a) is the signature of PW.18, Ex.P.30(b) is the signature of PW.22, Ex.P.31 is the copy of application, Ex.P.31(a) is the signature of PW.18, 18 SC No.551/2014 Ex.P.32 is the calls-list containing 11 pages, Ex.P.32(a) is the signature of PW.18, Ex.P.33 is the copy of application, Ex.P.33(a) is the signature of PW.18, Ex.P.34 is the calls-list containing 3 pages in respect of one Birju, Ex.P.34(a) is the signature of PW.18, Ex.P.35 is the First Information Report, Ex.P.35(a) is the signature of PW.19, Ex.P.36 is the voluntary-statement of the accused, Ex.P.36(a) is the signature of the PW.19, Ex.P.36(b) is the signature of the accused, Ex.P.37 is the statement of PW.21, Ex.P.38 is the copy of site-allotment-letter issued by BDA, Ex.P.38(a) is the signature of PW.22, Ex.P.39 is the FSL-report, Ex.P.39(a) is the signature of PW.22, Ex.P.39(b) is the signature of CW.31, Ex.P.40 is the FSL-report, Ex.P.40(a) is the signature of PW.22 and Ex.P.40(b) is the signature of CW.32, and the material- objects marked on behalf of the prosecution are at MO No's.1 to 12, in which MO No.1 is the wood-scraper (thopada), MO No.2 is the mat, MO No.3 is the cloth-bed, MO No.4 is the bed-sheet, MO No.5 is the shirt, MO No's.6 & 7 are the bloodstained-debris, MO No.8 is the lock, MO No.9 is the T-shirt, MO No.10 is the mobile- handset, MO No.11 is the blue-colored-banyan and MO No.12 is the blue-colored-underwear.
24. On meticulous-perusal of the entire-depositions of the PWs.1 to 24, it is crystal clear that, the PW.6/Byataraju and PW.9/B. Mahesh being the inquest-mahazar-witnesses, PW.8/Kumar being the seizure of MO No's.2 to 4, 9 & 10 mahazar- 19 SC No.551/2014 witness, and the PW.21/Prasanna Nayak being the partial- eyewitness, have absolutely turned hostile to the prosecution by exhibiting their animus of hostility, for which the learned Public Prosecutor was inclined to treat them as hostile-witnesses and cross-examine them; But, no worth-relying material has been elicited and extracted through their mouths, wherefore, the prosecution has utterly failed to establish the Exs.P.3, P.4, P.14, P.15 & P.37 and the seizure of material-objects marked at MO No's.2 to 4, 9 & 10 through their mouths.
25. Further, the PW.1/Smt. Chinnamma W/o Ramappa being the complainant as-well-as the spot and seizure-mahazar- witness, has endeavored to depose in favour of the prosecution in her chief-examination to the effect that, earlier her husband was working in MICO company and now he having taken the voluntary- retirement, is doing the social-work and he has given the house and shops situated near Kadhirenahalli park, Banashankari 2nd Stage, on the rental/lease-basis, wherefore, the unmarried/bachelor-boys given with a house on the 1st floor of the said building for Rs.1,700/- rent per-month, where-at 3 boys were staying. On 06.01.2014 the neighboring-persons came to her and stated that the people had gathered near her house and when she went and saw, she found that a person by name, Ghanashyam who was residing in the rented/leased-house was murdered and the police along-with other-persons were also present there-at. 20 SC No.551/2014 The said building is on the other-extreme-end of the road existing in front of her house. She saw the pieces of wood-scraper on the spot of incident nearby the deceased and also the bloodstained- marks on the wards. The friends of deceased Ghanashyam had broken the lock which was put to the said house. She has lodged a complaint before the police as per Ex.P.1, on which her signature is as per Ex.P.1(a). The said police had come to the spot after lodging the complaint and took the material-objects with the photographs. She has identified the said material-objects taken by the police, as per MO No's.2 to 8 and the color-photographs as per Exs.P.5 to P.13. The seizure-mahazar drawn at the time of seizing the MO No's.2 to 8 and Exs.P.5 to P.13 is as per Ex.P.4, on which her signature is as per Ex.P.4(c) and even on 12.01.2014 she having been secured by the police to the police-station, she saw the accused there-at and further she has identified the accused in the open-court stating that he was present on 12.01.2014 in the police-station and he was secured by the police.
26. But, in the cross-examination by the learned counsel for the accused, the PW.1 has clearly admitted that she has signed on Ex.P.4 as per Ex.P.4(c) in the police-station on 12.01.2014. But, on meticulous-perusal of the Ex.P.4, it is stated to be as the seizure-mahazar in respect of the seizure of the alleged bloodstained-mud, bloodstained-bed, a bloodstained-bed-sheet and 5 other articles as per MO No's.2 to 8. It discloses that it has 21 SC No.551/2014 been drawn on the spot of incident itself on 06.01.2014 from 5.15 p.m. to 7.00 p.m. in the evening. If the said Ex.P.4 is taken-into consideration, then as per the very-version of the PW.1 she having signed thereon as per Ex.P.4(c) in the police-station, it creates the absolute suspicious-circumstances in the mind of this court regarding the very-genuinity of the said Ex.P.4 to consider it as having been drawn in presence of the PW.1.
27. In addenda of the same, PW.5/Smt. Padma W/o Krishnamurthy being the another seizure-mahazar in connection with the accused, has also endeavored to depose in favour of the prosecution in her chief-examination to the effect that, on 06.12.2014 at about 5 - 6 p.m. in the evening, the police have seized the said MO No's.2 to 8 under a seizure-mahazar as per Ex.P.4 and thereafter, she has turned hostile-partly, wherefore, the learned Public Prosecutor was inclined to cross-examine her by making specific-suggestions with respect to the seizure of MO No's.2 to 8, whereby PW.5 has clearly admitted.
28. But, in the cross-examination by the learned counsel for the accused, the PW.5 has admitted to the effect that she has signed her signatures on Ex.P.4 as Exs.P.4(a) & P.4(b), respectively, in the police-station and even she has clearly stated that the said Ex.P.4 has been written in the police-station on 12.01.2014 in the afternoon and at that time another-person was present in the police-station; But, she does-not know as to whether 22 SC No.551/2014 the said another-person has signed on the said Ex.P.4 or otherwise. All these versions of the PW.5 in the cross-examination, are absolutely against the said Ex.P.4 and also in the fashion of retracting her own-versions in the chief-examination.
29. In addition to the same, the PW.7/Saddam Hussain S/o Syed Ismail has stated in his chief-examination that, on 06.01.2013 at about 5.00 p.m. in the evening, the police have seized the MO No's.2 to 8 except one Cwæ/vÉÆÃ¥ÀqÀ (wood-scraper) which was also fallen on the spot of incident, and the said MO No's.2 to 8 were bloodstained and the same were seized under Ex.P.4 by the police, on which the police have obtained his fingerprint and thereby identified the MO No's.2 to 8. Though the said deposition of the PW.7 with respect to MO No's.2 to 8 is synchronizing with Ex.P.4, the very-versions of the PWs.5 & 1 are absolutely emanating with each-other in comparison with the very- depositions of the PWs.1, 5 & 7. In addenda of the same, the PW.7 has fatally stated in his chief-examination itself that the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) was also available on the spot at the time of drawing the seizure-mahazar as per Ex.P.4 by the police. If that was to be so, then I fail to understand as to why the police did-not seize the said MO No.1 at the spot. This particular contradictory-version of the PW.7 in the cross-examination by the learned counsel for the accused absolutely dismantles the very creditworthiness adhered-to the chief-examination. Therefore, 23 SC No.551/2014 under these circumstances, the entire-depositions of the PWs.1, 5 & 7 in connection with the seizure of MO No's.2 to 8 under Ex.P.4 the alleged seizure-mahazar, certainly prevailing with the major- contradictions and discrepancies creating the fatal-doubts in the mind of this court do-not deserve to be believed and relied-upon. Further, the PW.1 has stated in her cross-examination that the said house in which the deceased Ghanashyam was residing, is standing in the name of her grandmother and in respect of the deceased residing in the said house/building, there is a lease- agreement made; but, that has not been given to the police. If really there was to be any lease-agreement, then I fail to understand as to what prevented the PW.1 to handover the copy of the same to the police or the police to seize the same. This particular aspect has remained absolutely under suspicious- circumstances. Further, the PW.1 has stated that the said Ex.P.4 has been drawn by the police in the evening from 5.00 p.m. to 7.30 p.m. in the police-station on 12.01.2014 and while she was signing thereon, the CW.8/Krishnamurthy, CW.10/Smt. Padma and CW.11/Muslim-guy were present and signed thereon. But, the signature of the said Muslim-guy who is stated to be none-other than the PW.7, his signature is appearing. But, according to the very-version of the PW.1, the said Ex.P.4 has been drawn and signed thereon by herself, CWs.8, 10 & 11 on 12.01.2014. But, according to the very-version of the PW.7/CW.11, the said Ex.P.4 24 SC No.551/2014 is drawn on 06.01.2014. Apart from the same, the said Ex.P.4 does-not disclose the signature of the CW.8/Krishnamurthy though the PW.1 has stated that he has signed thereon. Therefore, again the said Ex.P.4 the alleged seizure-mahazar certainly stands absolutely under suspicious-circumstances without any clarification. It is pertinent to note that, the PW.1 has stated in the cross-examination that she has lodged the complaint on 07.01.2014 at about 11.00 a.m. in the morning, as per Ex.P.1 and she does-not know as to who has written the said Ex.P.1. But, on meticulous-perusal of the Ex.P.1, it discloses the date of lodging the complaint as 06.01.2014 at about 2.30 p.m. in the afternoon but not on 07.01.2014 at about 11.00 a.m. in the morning. Therefore, the very-genuinity of Ex.P.1 by virtue of the contradictory-versions of the PW.1, stands certainly under suspicious-circumstances creating the fatal-doubts in the mind of this court. In addition to the same, even the PW.1 has stated in her cross-examination that she does-not know the name of the accused.
30. Therefore, under all these circumstances, the entire- depositions of the PWs.1, 5, 7 & 8 prevailing with the absolute suspicious-circumstances creating the fatal-doubts in the mind of this court with the contradictions and the major-discrepancies dismantling the very-crux of the prosecution's-case in respect of drawing the seizure-mahazar as per Ex.P.4 on 06.01.2014 and also 25 SC No.551/2014 seizure of MO No's.2 to 8, their depositions do-not come to the aid and assistance of the prosecution, under any circumstances.
31. Further, the PW.3/Sonu Sharma S/o Yadhunath Sharma being the spot-mahazar as-well-as the circumstantial- witness having given the statement during the time of inquest, has endeavored to depose in favour of the prosecution in his chief- examination to the effect that, since last 7 years he is doing the Carpenter-work in Bengaluru, though he is from Firidpur village in Mou District of Uttar Pradesh and he was knowing the deceased Ghanashyam, as he was from Khazipur village in Azanghada District of Uttar Pradesh, which is at about 35 kilometers away from his village and the said Ghanashyam had come to Bengaluru about 7-8 years-back itself and was staying at Bhavani Nagar in Banashankari of Bengaluru City along-with one Sunil to whom (Sunil), he had seen in the police-station. It is further stated by the PW.3 that, on 06.01.2014 at about 12.00 in the afternoon, one Bijju called him on phone and asked him to visit Ghanshyam's room and inform him regarding what is going-on there-at and accordingly when he went to Ghanashyam's room, the said Bijju, Hariram and Jaihind with the police-people were present, where-at Ghanashyam had died by sustaining injury to his skull and when he asked the said Bijju, he stated that in view of monetary- transaction between the accused and Ghanashyam, the accused/Sunil has assaulted on the head of Ghanashyam. It is 26 SC No.551/2014 further stated by the PW.3 that, on 12.01.2014 he had been to the police-station, where-at the said accused/Sunil and other-persons were there, during which time he having seen the said Sunil, he has identified the said accused/Sunil in the open-court also. The police had taken him and accused/Sunil near the Silk-Board, where-at they searched for the articles related to mobile in the drainage, situated at Silk-Board; but, they could not get any article there-from, wherefore, the police drawn the spot-mahazar, where- at they had searched for mobile-articles as per Ex.P.2, on which his signature is as per Ex.P.2(a).
32. But, in the cross-examination by the learned counsel for the accused, the PW.3 has fatally admitted that he had never seen the said Sunil earlier to the said incident and even he had no any familiarity with him. This particular-version clearly goes to indicate that he has seen the said accused/Sunil for the first-time in the police-station itself on 12.01.2014. It is further stated by the PW.3 that, besides the room of the said Ghanashyam and Sunil, the others were residing; but, he does-not know regarding them. Below the room of Ghanashyam and Sunil, there was a shop and above the said room of Ghanashyam, there was no any other-room. But, in front of the said building, there is a garden and besides the said building, there are various house-properties of the other- residents. But, the PW.2 being the partial-eyewitness though endeavored to depose in favour of the prosecution in his chief- 27 SC No.551/2014 examination, he has stated in his chief-examination itself to the effect that in the 1st floor the Hindi speaking boys were residing on rental-basis and in the 3rd floor he was residing in a room. It is pertinent to note that, according to the very-version of the PW.3 when there was no any room at-all on the top of the room of Ghanashyam and Sunil in the 1st floor, it clearly indicates that the said building was only with a ground-floor and 1st floor. When that is so, how could it be possible to stay in the 3rd floor by the PW.2, which indicates that the said building should be ground-floor with three-floors. Therefore, the said-versions of the PWs.3 & 2 are absolutely in-contravention with each-other creating the doubts in the mind of this court with respect to the same. It is further stated by the PW.3 in the cross-examination that, after receiving the phone-call from Bijju, he went to the spot near the house of Ghanashyam within half-an-hour, where-at in the room of Ghanashyam there was a bed and clothes near the dead-body of Ghanashyam. It is also fatally admitted by the PW.3 that the said alleged wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) stated to have been used by the accused/Sunil to assault on the said Ghanashyam and commit his murder was also available on the spot of incident. This particular- version of the PW.3 is absolutely in-contravention with the very- case of the prosecution creating the fatal-doubt in the mind of this court. Even, the PW.3 has stated that the police had taken him to the police-station and retained him in the police-station for 4 days. 28 SC No.551/2014 The reason behind his retention in the police-station for 4 days is not made known on record. When the learned counsel for the accused had questioned him that, whether the contents of Ex.P.4 were read-over to him, he has responded that as per the say of the Inspector, the said Ex.P.2 has been written and none has signed on Ex.P.2 in presence of him. On perusal of the said Ex.P.2 which is stated to be the seizure-mahazar in respect of the said wood- scraper (Cwæ/vÉÆÃ¥ÀqÀ), it discloses the name and signature of another- witness by name, Rajendra S/o Thangavelu. If none had signed on Ex.P.2 in presence of PW.3, then the question would arise as to when the other-witness by name, Rajendra S/o Thangavelu has signed on the said Ex.P.2. It further indicates that the said Ex.P.2 has not been drawn either in presence of the said alleged co- pancha by name, Rajendra S/o Thangavelu or in presence of the instant PW.3. Apart from the same, the PW.3 has stated that he has signed on Ex.P.2 at about 9.30 a.m. in the morning. But, as per Ex.P.2, the spot-mahazar has been drawn from 9.30 a.m. to 10.30 a.m. in the morning and if really the said PW.3 has signed on Ex.P.2 at 9.30 a.m. in the morning, it clearly indicates that he has not signed after drawing the said alleged mahazar as per Ex.P.2; but his signature was obtained before itself. All these particular aspects have absolutely remained under suspicious- circumstances creating the fatal-doubts in the mind of this court, wherefore, the entire-deposition of the PW.3 prevailing with the 29 SC No.551/2014 major-discrepancies creating the fatal-doubts in the mind of this court, it does-not come to the aid and assistance of the prosecution, in any way, as it has failed to establish the Ex.P.2 through the mouth of the PW.3.
33. Further, the PW.2/Raghavendra S/o Govindegowda being the partial-eyewitness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, he is running Munjunatha Tiffin Center in a building, which is belonging to the husband of the complainant, situated near Kadhirenahalli park, Banashankari 2nd Stage in Bengaluru, and Hindi speaking-boys were staying in the 1st floor of the said building, who were visiting his hotel for tiffin-purpose and he was residing in the 3rd floor of the said building. It is further stated by the PW.2 that, on 05.01.2014 in the night, he heard the noise of scramble in respect of which he kept-quite under the impression that some scramble may be going-on near the park and when he got-up in the early-morning at about 6.00 a.m. and went and saw, the house/room of Hindi speaking-boys, was locked. But, two- boys were standing-down on the ground; out of whom, one broke- open the lock of the said locked-room, whereby it was found that the murder of a boy was taken-place, during which time he got thrilled himself. He saw the face of the dead-body having been assaulted with and it was wound with the cloth. It is further stated by the PW.2 that, he came to know the name of the 30 SC No.551/2014 deceased as Ghanashyam and he having seen the accused, he has identified him in the open-court, as he was residing with the deceased Ghanashyam. When he went near the room of the accused in the early-morning at about 6.00 a.m. on the very-next- day, he found that the accused was wandering there itself holding a bloodstained-club and thereafter the said accused went-away there-from, wherefore, he felt that the said accused himself might have committed the murder of deceased Ghanashyam, in respect of which he has given the statement before the police. On 12.01.2014 the police secured him to the police-station and shown the accused/Sunil, to whom he has identified stating that the accused himself was wandering near the room holding the club. He has identified the said wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) as per MO No.1.
34. But, it is pertinent to note that, in the chief-examination itself he has stated that, when he (PW.2) came and saw near the room of the Hindi speaking-boys on the very-next-day-morning at about 6.00 a.m., the said room was locked from outside and 2 persons were standing outside the room; out of whom, one came and broke-open the said room-lock, wherein he saw a person lying dead on the ground in the said room.
35. But, in the cross-examination by the learned counsel for the accused, he (PW.2) has stated to the effect that when the said room-door was opened at 10.00 a.m. in the morning, he came to know regarding the incident and in the said room, the accused, 31 SC No.551/2014 deceased Ghanashyam and another-boy together were residing there-at since last 3-4 months earlier to the said incident. It is pertinent to note that, at one-point of interval the PW.2 has stated that in the early-morning at 6.00 a.m. when he went near the said room, he found it has locked and 2 persons were standing on the ground-floor; out of whom, one of them came and broke-open the lock of the said room. But, at another-point of interval, he has stated that on the very-next-day-morning at about 6.00 a.m. when he went near the room, the accused was holding the bloodstained- wooden-club and wandering there-at. At another-point of interval, he has stated contrarily by identifying the said MO No.1 stated to be as wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ), which is in-fact not a wood-scraper. It is further stated by the PW.2 that he has not seen as to what was fallen near the said dead-body; but he has seen the dead-body merely, standing near the doors, but he did-not go inside the room and police as-well-as the public-persons had gathered in the said room. It is pertinent to note that, if the public-persons and police had gathered inside the room and if really he had seen the dead- body only by standing outside near the doors, it creates the doubt as to how was it possible for him to see the dead-body from outside by standing near the doors. This particular aspect has remained under darkness without any clarification. Further, in the cross- examination by the learned counsel for the accused, he (PW.2) has stated that at about 5.30 a.m. in the early-morning, the accused 32 SC No.551/2014 was wandering on the staircase by holding the club; but he did-not ask him anything-else since he was not knowing the language of the accused but he used to come to his hotel. Even, he has clearly admitted that he does-not know the name and place of the accused. The PW.2 has volunteered that the name of the deceased having noted in the lease-deed by the owner of the said house, he was knowing the name of the deceased. All these versions of the PW.2 are absolutely emanating in the fashion of overlapping without any synchronization creating the fatal-doubts in the mind of this court. It is further clearly admitted that, there is difference between a club and Cwæ/vÉÆÃ¥ÀqÀ/wood-scraper. But, further he has volunteered that, since the accused was a Carpenter, he thought that the MO No.1 was being held by the said accused. This particular-version of the PW.2 is emanating in the fashion of improvement giving go-bye to his own-earlier-version in his chief- examination and tried to substantiate his own-earlier-version in his chief-examination, wherefore, his way of approach by way of response in various-manner during the various-situations and circumstances create the major-discrepancy to the very-crux of the prosecution's-case creating the fatal-doubts in the mind of this court. It is further stated by the PW.2 in the cross-examination itself that, on the very-next-day of murder, he has given the statement before the police stating that the accused was holding the wooden-club and wandering. But, on comparison of this 33 SC No.551/2014 particular-version of the PW.2 that the said statement available on record stated to be pertaining to the instant PW.2 is absolutely emanating in-contravention with each-other creating the fatal- doubts in the mind of this court regarding the very-genuinity of the said statement available on record stated to be pertaining to the instant PW.2. It is no doubt, again, thereafter the learned Public Prosecutor has re-examined the PW.2, whereby he has stated that the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) itself was the club, which was being held by the accused and wandering. This particular-version of the PW.2 in his re-examination by the learned Public Prosecutor holds no-more weightage in view of lot of veracities and contradictions with major-discrepancies emanating in the very-versions of the PW.2. To put-into simple-terms, the entire-deposition of the PW.2 is prevailing with the plethora of major-discrepancies/contradictions creating the fatal-doubts in the mind of this court, wherefore, the very-deposition of the PW.2 does-not come to the aid and assistance of the prosecution, in any way.
36. Further, the PW.4/Krishnamurthy S/o Narayanappa being one of the inquest-mahazar-witnesses, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 06.01.2014 he having seen the dead-body of the deceased Ghanashyam at Bhavani Nagar, the police had come there and drawn the inquest-mahazar as per Ex.P.3, on which his 34 SC No.551/2014 signature is as per Ex.P.3(a). It is also stated by the PW.4 that, in the spot of incident near the said dead-body, wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) was fallen and therefore, he felt that the assault might have been made with the said wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) itself.
37. But, in the cross-examination by the learned counsel for the accused, he (PW.4) has fatally admitted to the effect that he has signed on Ex.P.3 as per Ex.P.3(a) in the police-station; But, the said Ex.P.3 has been drawn by the police on 06.01.2014 in the early-morning-hours from 5.30 a.m. to 6.00 a.m., on which he has signed in the police-station itself only once and he does-not know all the contents of the said Ex.P.3. It is pertinent to note that, as per Ex.P.3 itself stated to be the inquest-mahazar, it is drawn in the afternoon from 2.45 p.m. to 5.00 p.m. on the spot of incident itself. But, the said-versions of the PW.4 are absolutely emanating in-contravention with the said Ex.P.3, wherefore, it clearly goes to indicate that the said Ex.P.3 has not at-all been drawn in presence of PW.4 and also it creates the suspicious-circumstances with regard to the very-genuinity of the said Ex.P.3. It is also clearly stated by the PW.4 that, he cannot specifically and definitely say that the injury was caused due to the said wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) only. Even, he has stated that he cannot say the name of the person who has written the said Ex.P.3. Apart from the same, he has stated that he cannot say as to who-else have signed on the said Ex.P.3. If really the said Ex.P.3 was drawn in presence of 35 SC No.551/2014 PW.4, he was expected to speak-out regarding who-else have signed thereon. It is further stated by the PW.4 that, he has not seen the entire-body to say as to whether any injuries were appearing on the body except the face of the dead-body. By virtue of all-these-versions of the PW.4, it is clear that the said Ex.P.3 itself is absolutely under doubt regarding it's genuinity. Apart from the same, the PW.4 has stated that the said wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) was on the spot itself at the time of the inquest-mahazar. It is significant to note that, the other-inquest-mahazar-witnesses who are stated to have been examined as PWs.6 & 9, respectively, have absolutely turned hostile to the prosecution. Therefore, under all-these-circumstances, the prosecution has utterly failed to establish the Ex.P.3 through the mouths of the PWs.4, 6 & 9.
38. Further, the PW.12/P.S. Siddaraju S/o Puttasubbegowda being the seizure of wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) mahazar-witness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, about 2 years-back one-day-morning when he had been to the police- station at about 6.45 a.m. in the morning to give the flowers in as usual-course, the police and the accused were present, during which time the accused and the police took him near the lorry- stand near Kadhirenahalli-underpass, from which place the accused took a wood-scraper (Cwæ/vÉÆÃ¥Àq)À and handed-over to the police, whereby the police seized the same under the seizure- 36 SC No.551/2014 mahazar as per Ex.P.18 from 7.00 a.m. to 8.00 a.m., on which his signature is as per Ex.P.18(a) and even he has identified the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) in the open-court.
39. But, in the cross-examination by the learned counsel for the accused, he (PW.12) has clearly stated that everyday he gives the flowers to the Banashankari police-station. This-version clearly goes to indicate that he is well-conversant with the Banashankari police-station and interested-persons. Apart from the same, he has further stated that he has seen the accused in the police- station itself and he does-not know to write Kannada language, but he is capable of reading. Even, he has stated that he does-not know the contents of Ex.P.18. When he was capable to read Kannada language, I fail to understand as to how the contents of Ex.P.18 are not known to him, if really the said Ex.P.18 was drawn in presence of him by seizing the alleged MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) at the instance of accused himself. Even, he has stated that he cannot understand as to what were the boundaries of the said spot from which the accused removed the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) and handed-over to the police. If really the said PW.12 had been to the said spot near the sand- lorry-stand situated near Kadhirenahalli-underpass, he was expected to be conversant with the boundaries and speak-out the same. All-these-versions of the PW.12 create the suspicious- circumstances in the mind of this court regarding the genuinity of 37 SC No.551/2014 the said Ex.P.18 and also his visit to the said alleged spot near the sand-lorry-stand near Kadhirenahalli-underpass. Therefore, under these circumstances, it is clear that the prosecution has utterly failed to establish the seizure of the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) through the PW.12.
40. It is pertinent to note that, the PW.2 has stated in the chief-examination at one-point of time that the accused was holding the bloodstained-wooden-club and wandering, whereas, at another-point of time in the chief-examination itself, he has identified the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) as the club held by the accused. But, in the cross-examination by the learned counsel for the accused, he has stated that there is difference between the club and thopada. Apart from the same, the PW.3 has stated in his cross-examination by the learned counsel for the accused that the said MO No.1/Thopada was fallen in the spot of incident. According to PW.7 in his chief-examination itself, except the said thopada as per MO No.1 which was fallen on the spot of incident, the other-material-objects which were available on the spot of incident were seized by the police. But, in the cross- examination, the PW.7 has stated that the said MO No.1 itself was the thopada, which was available on the spot of incident on 06.01.2013. If really the said MO No.1/Thopada was on the spot itself, I fail to understand as to how the police did-not seize the same except the other-material-objects available on the spot of 38 SC No.551/2014 incident. Even, the PW.19 being the initial-investigating-officer, who has endeavored to depose in favour of the prosecution in his chief-examination, he has clearly stated that the said MO No.1/Thopada has been seized from the spot near the sand-lorry- stand situated near Kadhirenahalli-underpass at the behest and show of the accused himself, under a seizure-mahazar as per Ex.P.19 in presence of CWs.14 & 15 as the panchas. But, unfortunately, the said CW.15 having been examined as PW.12 has not at-all supported the prosecution's-case by deposing in various-ways during the different-intervals, without sticking-on to a firm-stand. Apart from the same, the CW.14 has not been got examined by the prosecution, whereas, the learned Public Prosecutor has voluntarily given-up the said CW.14. It is no doubt, the PW.24/Scientific-Officer, FSL, Madiwala, Bengaluru, has deposed in favour of the prosecution in respect of she having examined and analyzed scientifically the 10 material-objects sent by the investigating-officer, inclusive of instant MO No.1/wood- scraper (Cwæ/vÉÆÃ¥ÀqÀ) and issued her opinion-report as per Ex.P.40. But, her deposition alone does-not come to the aid and assistance of the prosecution's-case. If really the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) was still available on the spot when the police visited the spot of incident on 06.01.2014 and seized MO No's.2 to 8 under alleged Ex.P.4, what prevented the police to seize the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) there-from the spot of incident itself. 39 SC No.551/2014 This particular aspect has absolutely remained under doubt without any clarification. As per the case of the prosecution, the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) has been seized from the place near the sand-lorry-stand situated near Kadhirenahalli- underpass. If this particular aspect is taken-into consideration, the entire-depositions of the PWs.2, 3 & 7 are absolutely emanating in-contravention with each-other. Even, the very- deposition of the PW.12 is emanating with the plethora of suspicious-circumstances in-contravention with the very-versions of the PWs.2, 3 & 7. Merely basing-on the very-depositions of the PWs.19 & 24, it cannot be stated conclusively that the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) has been seized from the spot near sand-lorry-stand situated near Kadhirenahalli-underpass at the behest and show and instance of the accused stating that he had used the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) itself to assault on the deceased Ghanashyam and commit the alleged murder. Therefore, when the seizure of the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) itself is absolutely under suspicious-circumstances, the question of showing the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) and handing-over the same to the police in presence of the alleged seizure-mahazar-witnesses/CWs.14 & 15 on the spot near the said sand-lorry-stand situated near Kadhirenahalli-underpass, does- not arise at-all. Therefore, to put-into simple-terms, the entire- 40 SC No.551/2014 seizure of MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) at the instance of the accused itself has not been established by the prosecution. Apart from the same, admitting by the accused regarding the use of the said MO No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) for the purpose of committing of the alleged murder before the police and the seizure- mahazar-witnesses and showing and handing-over the same to the police, does-not arise at-all. Therefore, the prosecution having utterly failed to prove regarding the same, it is absolutely amounts to fatal to the prosecution's-case.
41. Further, the PW.10/Manju S/o Mallappa being the seizure of mobile of the accused mahazar-witness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, one-day in the month of January 2014 the Banashankari police seized a mobile-handset with one brown-color T-shirt as per MO No's.9 & 10 in presence of him, under a seizure- mahazar as per Ex.P.14, on which his signature is as per Ex.P.14(b) from 7.00 p.m. to 8.00 p.m. in the evening, and he has identified the said MO No's.9 & 10.
42. But, in the cross-examination by the learned counsel for the accused, he (PW.10) has clearly stated that the police never issued the prior-notice to him calling-upon him to be a mahazar- witness. It is further stated by the PW.10 in the cross-examination that, he does-not know the contents of Ex.P.14 and CW.12 who was alone with him, has signed thereon the said Ex.P.14 and also 41 SC No.551/2014 he cannot say as to who has written the said Ex.P.14. It is significant to note that, admittedly, the CW.12 has been examined as PW.8, who has absolutely turned hostile to the prosecution. If really the said Ex.P.14 was drawn in presence of the PW.10 by seizing the alleged MO No's.9 & 10, then he was expected to be conversant with the contents of Ex.P.14. But, unfortunately, he has depicted his ignorance and innocence regarding the contents of the said Ex.P.14, wherefore, it creates the absolute suspicious- circumstances in the mind of this court regarding the very- genuinity of Ex.P.14 and also seizing of MO No's.9 & 10 in presence of him. Further, the PW.10 has stated in the cross- examination that the police have not inquired the accused in presence of him and it is very difficult to identify the object which was seized about 2 years-back. When that is so, I fail to understand as to how the said MO No's.9 & 10 have been identified in the chief-examination. The said very-version of the PW.10 is absolutely emanating in the fashion of retracting his own- versions in the chief-examination. It is further stated by the PW.10 that, on that day the police have obtained his 3 signatures on 3 documents, but no signatures on MO No's.9 & 10 have been obtained. Even, he has stated that except the bloodstain, he has not retained any specific-identification-mark to identify the MO No.10 and if the said MO No.10 is mixed-with the other- articles/material-objects, it is very difficult to identify the said MO 42 SC No.551/2014 No.10 and even he has retained any specific-identification-mark to identify the said MO No.9/mobile specifically to say that the same was seized by the police. But, again he has stated that he has retained in his mind. The base for his version regarding the identification of MO No.9 in his mind, is not at-all been clarified by him, wherefore, his latter-version does-not prevail by overriding his own various-earlier-versions. It is also clearly admitted by the PW.10 that, number of mobile-handsets are available in the market similar to MO No.9 and if it is mixed-with the similar- mobile-handsets, it is very difficult to identify the MO No.9. It is also fatally admitted by the PW.10 that, he has signed as a witness in various-cases of the said Banashankari police-station, as he is very good and familiar to the police since he is working as Painter since many-years and accordingly, his signature will be obtained by the police at the time of drawing/preparing the panchanamas. It is pertinent to note that, in view of the fatal-admissions given by the PW.10, it creates the suspicious-circumstances in the mind of this court regarding the very-genuinity of Ex.P.14 and also the seizure of MO No's.9 & 10 by the police in presence of PW.10 and also regarding the production of the said MO No's.9 & 10 by the accused himself in the police-station. Therefore, the prosecution has utterly failed to establish the Ex.P.14 through the instant PW.10.
43 SC No.551/2014
43. Further, the PW.20/Rajendra S/o Thangavelu being the spot as-well-as seizure-mahazar near Central Silk Board witness, has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, he has not seen the accused; but about 2 years-back, one-day the police had taken him near the drainage situated near Madiwala and obtained his signature on Ex.P.2, on which his signature is as per Ex.P.2(a), but he does-not know the contents of the same and thereby exhibited his animus of hostility, for which the learned Public Prosecutor was inclined to treat him as hostile and cross-examined him by making the suggestions to the effect that on 12.01.2014 the accused stating that, after murdering the deceased Ghanashyam, he had locked the Ghanashyam's room and thereafter, he had taken the Ghanashyam's mobile and thereafter, he had thrown the key of the said door-lock and mobile-sim of the deceased Ghanashyam in the drainage near Central Silk Board of Madiwala; took him and the police-people to the spot and on searching for the said key and sim-card in the said drainage, they could not find the same and therefore, the police drawn the spot-panchanama from 9.30 a.m. to 10.30 a.m. in the morning, and accordingly by drawing the said mahazar, the police have obtained his signature thereon. The said suggestions have been clearly admitted by the PW.20. But, unfortunately, the learned counsel for the accused has remained absent and not chosen to cross-examine the PW.20. Therefore, 44 SC No.551/2014 though the entire-deposition of the PW.20 has remained unchallenged and undisputed by the accused-side, his deposition more-particularly with regard to the portion that the PW.20 has turned hostile cannot be relied-upon absolutely unless it is substantiated by the other-corroborative-material on record by way of documentaries as-well-as the oral-evidence.
44. Further, the PW.22/H.S.Jagadish S/o H.P.Shankarappa being the later-partial-investigating-officer, has endeavored to depose in favour of the prosecution in respect of he having conducted the investigation and further stated in his chief- examination itself that, he was working as Police-Inspector in Banashankari police-station from 30.09.2013 to 08.05.2015, during which time, more-specifically, on 20.01.2014, while on returning to his duty, he received the case-file from CW.29 for further-investigation and accordingly, on 22.01.2014, he obtained the apparels on the dead-body with viscera and post-mortem report from KIMS Hospital, through the CW.22 under his vide- report as per Ex.P.26, on which his signature is as per Ex.P.26(b) and the said post-mortem-report as per Ex.P.16, on which his signature is as per Ex.P.16(b) and thereafter, he got subjected the said apparels on the dead-body and viscera into PF No.18/2014 and he has identified the banyan and kacha as per MO No's.11 &
12. On 30.01.2014, he sent the MO No's.11 & 12 with viscera and etc., articles to the FSL, Bengaluru, for scientific-examination. On 45 SC No.551/2014 01.02.2014, he sent a requisition through his ACP to Airtel Nodel- Officer to furnish the CAF copies and call-details relating to Sim No's.8861961448, 9632776019 & 8197068686. On 13.02.2014, he has received the said details, such as, CAF and call-details of the said mobile-sims from Airtel-Officers through ACP and he has identified the same as per Ex.P.30 to P.34 and his signature on Ex.P.30 is as per Ex.P.30(b). Sim No.9632776019 belonged to the deceased Ghanashyam, sim No.8861961448 belonged to the accused/Sunil Raj, and sim No.8197068686 belonged to the CW.3/Virjun @ Birju @ Bijju S/o Lal Vishwakarma. There is a reference in the last-page of Ex.P.32 in connection with the sim No.9632776019 belonging to the deceased Ghanashyam with respect to the call made on 05.01.2014 at 9.33.49 p.m. in the night with the mobile-handset IMEI No.355837054987600, which was a last-call. In the said last-page of Ex.P.32, the sim No.9632776019 belonging to the deceased Ghanashyam was changed on 06.01.2014 at 6.18.37 a.m. in the morning and since-then the mobile-handset used is changed IMEI No.352272054333870, to which the first SMS-message is referred to have received. On 06.01.2014 right-from 6.19.37 a.m. in the morning till 10.6.9 a.m. in the morning after converting the sim No.9632776019 belonging to the deceased Ghanashyam to the mobile-handset of the accused bearing IMEI No.352272054333870, the messages and calls have come, in respect of which it is referred in the last-page of Ex.P.32. 46 SC No.551/2014 It is also clearly mentioned and referred in the last-page of Ex.P.32 that, on 06.01.2014 at 10.6.56 a.m. in the morning, the accused has used the sim of the deceased Ghanashyam bearing No.9632776019 to his own-mobile-handset bearing IMEI No.352272054333870 and made the calls to CW.3/Birju @ Bijju, whose sim-number is 8197068686. Ex.P.33 is the copy of CAF belonging to CW.3/Birju. It is also mentioned in Ex.P.34 which is the call-details pertaining to CW.3's sim No.8197068686, in which at page No.13, line No.18 discloses the sim-number of the deceased Ghanashyam as 9632776019, through which a call is received to the sim No.8197068686 of the CW.3 on 06.01.2014 at 10.6.56 a.m. in the morning. MO No.10 being the double-sim mobile-handset belonging to the accused bearing IMEI No.352272054333870, has been seized by the CW.29/initial- investigating-officer from the accused, on producing the same by the accused himself. On 21.02.2014, he has received the hand- sketch map pertaining to the spot of incident having got prepared through the CW.19, as per Ex.P.29, on which his signature is as per Ex.P.29(b). On the same-day he obtained 5 documents pertaining to the house in which the spot of incident is, as per Ex.P.38, on which his signature on the first-page is as per Ex.P.38(a). On 22.02.2014, he has recorded the CW.1/complainant's additional-statement. On 03.03.2014, reserving/awaiting the receipt of the FSL-report from FSL, 47 SC No.551/2014 Bengaluru, he has submitted the charge-sheet to the court. On 13.03.2014, he has received the FSL-report from first-section of FSL, Bengaluru, as per Ex.P.39, on which his signature is as per Ex.P.39(a). On 03.04.2014, he has further received the FSL-report from the other-section as per Ex.P.40, on which his signature is as per Ex.P.40(a). On 08.04.2014, he has obtained the certifying- letter of the CW.21/Girish, who had taken the photographs during the investigation, as per Ex.P.25, on which his signature is as per Ex.P.25(b).
45. Further, the PW.18/Stanley S/o Peter being the Airtel Nodel-Officer having given the call-details, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 02.02.2014, a requisition from Banashankari police- station having received seeking for the call-details and etc., in connection with mobile-sim No's.8861961448, 9632776019 & 8197068686 for the period from 25.12.2013 to 15.01.2014, accordingly, he furnished the said details under an information- letter dated 12.02.2014, as per Ex.P.30, on which his signature is as per Ex.P.30(a). The mobile-sim No.9632776019 is standing in the name of deceased Ghanashyam, in respect of which he has furnished the application-copy as per Ex.P.31, with call-record- details in page No's.1 to 11 as per Ex.P.32 and his signatures on the said Exs.P.31 & P.32 are as per Exs.P.31(a) & P.32(a), respectively. The mobile-sim No.8197068686 is standing in the 48 SC No.551/2014 name of Birju and his application-copy is as per Ex.P.33, on which his signature is as per Ex.P.33(a) and also furnished call-record- details in 3 pages as per Ex.P.34, on which his signature is as per Ex.P.34(a) and the said Exs.P.32 to P.34 are furnished by enclosing with Ex.P.30.
46. Further, the PW.19/K.T. Krishna S/o Thimmegowda being the initial-partial-investigating-officer, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, he was working as PSI in Banashankari police-station right-from November 2013 to February 2014, during which time on 06.01.2014 at about 2.20 p.m. in the afternoon while he was on duty in the police-station, the complainant/CW.1/Smt. Chinnamma appeared before him and lodged an oral-complaint, for which he reduced-into writing and thereafter registered the Cr.No.4/2014 for the offence punishable U/Sec.302 of IPC and thereafter sent the First Information Report as per Ex.P.35 with the complaint as per Ex.P.1 to the court with the copies of the same to the higher-authorities and his signatures thereon are as per Exs. P.35(a) & P.1(b), respectively. Further, he has deposed that on the same-day in the afternoon from 2.45 p.m. to 5.00 p.m. he visited the spot of incident and drawn the inquest-mahazar of the dead- body as per Ex.P.3 in presence of CWs.7 to 9 and his signature thereon is as per Ex.P.3(d) and on the same-day he has recorded the statements of CWs.2 & 3. Thereafter, he sent the dead-body to 49 SC No.551/2014 the KIMS Hospital, Bengaluru, under the escort of PC No.8663 /Srinivas and on the same-day from 5.15 p.m. to 7.00 p.m. in the evening, he visited the spot of incident at the show and behest of the CW.1/complainant and drawn the spot-panchanama as per Ex.P.4 in presence of CWs.10 & 11 and his signature thereon is as per Ex.P.4(d). During the said spot-panchanama, he has seized the MO No's.2 to 8 from the spot and thereafter he has got subjected the said MO No's.1 to 8 into PF No.8/2014 and on the same-day he has recorded the statements of the CWs.5 & 6. At the time of drawing the inquest-mahazar, he has got clicked the color- photographs of the deceased Ghanashyam through the photographer, as per Exs.P.5 to P.8 and also Exs.P.9 to P.13 in respect of the spot of incident. On 07.01.2014, he has recorded the statements of the CW.17 and on 08.01.2014, he sent a request-memo to the CW.19 for preparing hand-sketch map of the spot of incident. On 09.01.2014, he deputed his police-staff in 3 groups for tracing-out the accused. On 10.01.2014, he sent a requisition to KIMS Hospital, Bengaluru, to hand-over the dead- body after conducting the post-mortem, to the CW.4/Rajesh/elder- brother of the deceased Ghanashyam after his arrival. Similarly, PC No.8663 returned-back to the police-station and submitted his report stating that he has handed-over the dead-body to CW.4 after conducting the post-mortem by the Medical-Officer. On the same-day he has recorded the statements of the CW.4. On 50 SC No.551/2014 11.01.2014, CW.25/C. Chikkanna/ASI and his co-police-officials traced-out the accused and produced before him and on following the mandatory-rules of arrest, he arrested the accused and inquired, whereby the said accused has given the self-voluntary- statements as per Ex.P.36, on which his signature is as per Ex.P.36(a) and the signature of the accused is as per Ex.P.36(b). In the self-voluntary-statement of the accused, the accused has clearly admitted that, at the time of committing the murder of deceased Ghanashyam, he had taken the mobile-handset of the deceased Ghanashyam and thereafter, he had put the said sim of the deceased to his own-mobile-handset and then phoned to CW.3 and stated that he had murdered; Thereafter, to destroy the said sim of the deceased and mobile-handset which were the evidence against him, he has thrown-away the same and in case if he is permitted, he would lead them to the spot where he has thrown- away the said sim as-well-as the mobile; and accordingly took the PW.19 and police-people with the panchas/CWs.12 & 13 and produced his bloodstained T-shirt, which was worn at the time of commission of the murder and his own Samsung Duo mobile- handset as per MO No's.9 & 10, respectively, and the same have been seized under a seizure-mahazar as per Ex.P.14, on which his signature is as per Ex.P.14(c), in presence of CWs.12 & 13/panchas, and thereafter he got subjected the said MO No's.9 & 10 to PF No.10/2014. On the same day he has recorded the 51 SC No.551/2014 statements of the CWs.12 & 13. On 12.01.2014, as admitted by the accused in his self-voluntary-statement, he seized the wood- scraper (Cwæ/vÉÆÃ¥ÀqÀ) as per MO No.1, which is stated to have been used by the accused to assault and murder the said deceased Ghanashyam, by leading the police and the CWs.14 & 15/panchas to a corner near the sand-lorry-stand near Kadhirenahalli- underpass and accordingly, he seized the same under a seizure- mahazar as per Ex.P.18, on which his signature is as per Ex.P.18(b). Thereafter, he has got subjected the same MO No.1 to PF No.11/2014. Thereafter, he visited the spot where the mobile- handset of the accused and sim along-with door-lock-key thrown by the accused, situated near the drainage besides Central Silk Board of Madiwala, as the said accused led the police as-well-as the CWs.2 & 17 there-at and searched for the said articles which were thrown-away by the accused. But, in view of having not traced-out the same, merely the spot-mahazar is drawn as per Ex.P.2, on which his signature is as per Ex.P.2(b). Thereafter, on the same day he has recorded the statements of the CW.16 and additional-statement of the CW.2. Thereafter, he has recorded the additional-statements of the CW.1/complainant by getting identified through her. Again on the same day he has recorded the statements of the CW.21/photographer and then produced the accused before the court. On 30.01.2014, he sent the MO No's.11 & 12 to FSL through PC No.12120, who has returned-back and 52 SC No.551/2014 submitted his report as per Ex.P.27, on which his signature is as per Ex.P.27(b) and after internal-organs of the deceased having been examined by the FSL, it has destroyed them, there-itself. Thereafter, he has handed-over the entire-case-file to the concerned Police-Inspector/CW.30 for further-investigation.
47. On meticulous-consideration of the entire-depositions of the PWs.22, 18 & 19 under the comparative-analysis, coupled-with the Exs.P.32 & P.34, admittedly, the learned counsel for the accused has not chosen to cross-examine the PW.19, wherefore, the entire-deposition of the PW.19 stood as unchallenged and un- vibrated by the learned counsel for the accused.
48. Now, on coming-over to the very-depositions of the PWs.18 & 22, undoubtedly, the copies of the applications submitted by the deceased as-well-as the CW.3 as per Exs.P.31 & P.33 along-with their respective call-records as per Exs.P.32 & P.34, respectively, are placed on record by the prosecution, in respect of which both the PWs.18 & 22 have endeavored to depose in favour of the prosecution corroboratingly.
49. But, it is significant to note that, though it has been stated by the PW.22 regarding the sim No.9632776019 of deceased Ghanashyam by the accused in his own-mobile-handset bearing No.IMEI 352272054333870, it has been pressed-into service by the learned Public Prosecutor that after commission of the offence of murder by the accused, he has taken-away the mobile-handset 53 SC No.551/2014 with the sim of the deceased Ghanashyam and changed the said sim of the deceased Ghanashyam to his mobile-handset and phoned the CW.3/Bijju intimating him that he had committed the murder and in respect of the same, there is the phone-call-records in Exs.P.32 & P.34.
50. It is significant to note that, undoubtedly, there is no any dispute in respect of the calls from the sim of the deceased Ghanashyam through the mobile-handset bearing No.IMEI 352272054333870; but to link the said mobile-handset with the accused, the heavy-burden is lying on the prosecution. In respect of the same, when the learned counsel for the accused questioned the PW.22 who is none-other than the partial-investigating-officer in respect of the later-part of the investigation, he has fatally stated in the cross-examination to the effect that he has not produced any documents to depict that the mobile-handset as per MO No.10 bearing No.IMEI 352272054333870 was belonging to the accused himself. But, the PW.22 has volunteered that the said MO No.10 has been seized from the accused himself. Even, the PW.22 has fatally stated that he has not produced any document to show that the 2 sims used through the mobile-handset as per MO No.10 were standing in the name of accused himself. Even, on percolation of the entire-case-file, no iota of documentary-evidence finds place on record to depict that the said mobile-handset as per MO No.10 was belonging to the accused, as-well-as the said 2 sims used through 54 SC No.551/2014 the MO No.10/mobile-handset were standing in the name of the accused.
51. It is significant to note that, as discussed at much-length herein before supra, the said seizure of the MO No.1 having been endeavored to establish by the prosecution through the PWs.8 & 10 (CWs.12 & 13) coupled-with it's alleged seizure-mahazar as per Ex.P.14; but, unfortunately, PW.8 has turned hostile to the prosecution and moreover the entire-deposition of the PW.10 is prevailing with the major-discrepancies and the contradictions creating the fatal-doubts in the mind of this court, in respect of which it has been discussed at much-length herein before supra and arrived-at a conclusion to hold that the said seizure-mahazar in connection with the MO No.10/mobile-handset bearing IMEI No. 352272054333870 is belonging to the accused and it has been seized from the accused himself. To put-into simple-terms, the said Ex.P.14 has not been established by the prosecution beyond the suspicious-circumstances. When that is so, the said voluntary- version of the PW.22 that the said MO No.10 has been seized from the accused himself is not absolutely believable and unreliable- one. When that is so, it is clear on the record itself that when MO No.10 has not been established by the prosecution that it has been seized from the accused, the question of using the said MO No.10 by the accused by putting the alleged sim of the deceased Ghanashyam, does-not arise at-all. Apart from the same, 55 SC No.551/2014 admittedly, neither the sim-card, mobile-handset and the door- lock-key belonging to the deceased Ghanashyam have been seized, nor they have been traced-out. Therefore, there is no connectivity/nexus established by the prosecution between the said MO No.10/mobile-handset and the accused, in any manner. Therefore, the urge taken by the learned Public Prosecutor that the accused had phoned to CW.3 by putting the sim-card of the deceased Ghanashyam in his own-mobile-handset marked at MO No.10 holds no water.
52. Further, the PW.17/S. Ramu S/o T. Siddappa being the Assistant-Engineer, PWD, has endeavored to depose in favour of the prosecution in respect of he having prepared the hand-sketch map of the spot of incident, as per Ex.P.29, on which his signature is as per Ex.P.29(a).
53. Apart from the same, the PW.16/P. Chikkanna S/o Puttegowda being the ASI, has also endeavored to depose in favour of the prosecution in respect of he having traced-out the accused and produced before the investigating-officer, under a report as per Ex.P.28, on which his signature is as per Ex.P.29(a).
54. During the time of trial, the learned Public Prosecutor has voluntarily given-up the CWs.14, 24 & 26 to 28. In-spite of having issued sufficient-process to the CWs.3, 4 & 6, they have neither been produced before this court by the concerned-police, nor they have appeared before the court to depose in favour of the 56 SC No.551/2014 prosecution in the witness-box, wherefore, in the lack of substantial-grounds, this court was inclined to reject the prayer of the learned Public Prosecutor and dropped the CWs.3, 4 & 6 and closed the prosecution's-side.
55. On meticulous-consideration of the entire-depositions of the PWs.1 to 24, it is crystal clear that the PWs.6 & 9 being the inquest-mahazar-witnesses, PW.8 being the seizure-mahazar- witness and PW.21 who is the partial-investigating-officer, have absolutely turned hostile to the prosecution, wherefore, the prosecution has utterly failed to establish the Exs.P.3, P.4, P.14 & P.37 through their mouths. In addition to the same, even the PW.10 who is the seizure-mahazar-witness and PW.20 who is the spot-mahazar-witness in respect of the spot near the Silk Board drainage, have utterly turned hostile to the prosecution. Apart from the same, the entire-depositions of the PWs.1 to 5, 7, 10 & 12 are prevailing with the major-discrepancies and contradictions creating the fatal-doubts in the mind of this court, wherefore, their depositions do-not come to the aid and assistance of the prosecution, in any way, for the reasons discussed at much-length herein before supra. Merely, basing-on the very-depositions of the PWs.11, 13 to 19 & 22 to 24, this court cannot arrive-at a conclusion to target the accused for the conviction holding that he has committed the murder of the deceased Ghanashyam, by assaulting on his head and other parts of his body with MO 57 SC No.551/2014 No.1/wood-scraper (Cwæ/vÉÆÃ¥ÀqÀ) and thereafter, he took-away his mobile-phone with sim-card and locked the doors of the said room of the deceased Ghanashyam and took-away the key of the said lock and then went-away and threw-away the same with an intention to cause disappearance of himself by screening-away from the commission of the alleged offence, as the prosecution has utterly failed to establish all the essential-mandatory-ingredients of the alleged commission of the offence of murder punishable under Sec.302 of IPC and also causing disappearance of the vital- evidence punishable under Sec.201 of IPC, by making-out and establishing the complete un-detachable nexus and connectivity between the sequential each and every-circumstances to constitute the complete ring/circle of the commission of the offences punishable under Sections 302 & 201 of IPC, by the accused himself.
56. Therefore, the question of the accused holding that he has committed the alleged murder and also caused the disappearance of the material-evidence to screen-out himself from the alleged commission of the offence, does-not arise at-all. Therefore, with these observations, this court is inclined to answer the Point No's.2 & 3 in the 'Negative'.
57. Point No.4:- Undoubtedly, while answering the Point No.1 in the Affirmative, prima-faciely, the said death of the deceased Ghanashyam has been established by the prosecution as 58 SC No.551/2014 the homicidal-death basing-on the documentary-evidence as-well- as the very-evidence of the PWs.11, 13, 23 & 24; But, it does-not mean that the commission of the offences punishable under Sections 302 & 201 of IPC have been established by the prosecution against the accused. Because, as discussed at much- length herein before supra, while answering the Point No's.2 & 3 in the Negative, the prosecution has utterly failed to establish the interlink and nexus between the sequential-circumstances to constitute a complete circle/ring of the commission of the said alleged offences by the accused himself and also it has utterly failed to establish the essential-mandatory-ingredients of the said offences punishable under Sections 302 & 201 of IPC. When that is so, it cannot be arrived-at a conclusion to hold the accused specifically that he has committed the offences punishable under Sections 302 & 201 of IPC. Therefore, the accused cannot be made liable for the same and also cannot be targeted for the conviction.
58. Therefore, under all these circumstances, this court is of the clear opinion that, the entire-case of the prosecution is prevailing with the major-discrepancies, discrepanting the entire- case of the prosecution, creating the fatal-doubts in the mind of this court, without any alimentation. Therefore, the benefit of such doubts will have to be given to the accused by virtue of a well-settled principle of criminal jurisprudence. Under all these circumstances, even it is highly impossible and improbable to 59 SC No.551/2014 ameliorate regarding the alleged imputations against the accused. Therefore, in view of all these reasons, this court is of the clear opinion that, the prosecution has utterly failed to establish and prove the Point No.4 beyond the shadow of all the reasonable- doubts. Hence, this court is inclined to answer Point No.4 in the 'Negative'.
59. Point No.5:- For the reasons discussed at much-length while answering the Point No.1 in the Affirmative and Point No's.2 to 4 in the Negative herein before supra, this court is inclined to proceed to pass the following:
ORDER The prosecution has utterly failed to prove the guilt against the Accused and therefore, the Accused is found not guilty for having committed the offences U/Secs.302 & 201 of IPC.
In exercise of the powers conferred-upon me U/Sec.235(1) of Cr.P.C., I hereby acquit the instant Accused by name, Sunil Rajbar @ Sunil, S/o. Ashok Rajbar, aged 23 years, residing at No.402, Sarovar Grama, Katharari Post, Pekali Grama Panchayath, Devariya Thahasil, Devariya District, Uttar Pradesh State, and set him to liberty forthwith in this case.
The Accused is hereby discharged of his bail-bond, along-with his surety.
The seized-properties marked at MO No's.8 & 10, namely, lock and mobile-handset, respectively, are hereby ordered to be confiscated to the Exchequer of the State Government after the efflux of the appeal-period.60 SC No.551/2014
The seized-properties marked at MO No's.1 to 7, 9, 11 & 12, namely, wood-scraper (thopada), mat, cloth-bed, bed-sheet, shirt, 2 bloodstained-debris, T-shirt, blue-
colored-banyan and blue-colored-underwear, respectively, being worthless, are hereby ordered to be destroyed after the efflux of the appeal-period.
(Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 4th day of May, 2017) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.
APPENDIX List of the witnesses examined for the prosecution-side:
PW.1 Smt. Chinnamma
PW.2 Raghavendra
PW.3 Sonu Sharma
PW.4 Krishnamurthy
PW.5 Smt. Padma
PW.6 Byataraju
PW.7 Saddam Hussain
PW.8 Kumar
PW.9 Mahesh B
PW.10 Manju
PW.11 Dr. C. Ramesh
PW.12 P.S. Siddaraju
PW.13 Girish S
PW.14 Nagaraj L
PW.15 Sanjaykumar Jaadi
PW.16 P. Chikkanna
PW.17 Ramu S
PW.18 Stanley
PW.19 Krishna K.T.
PW.20 Rajendra
PW.21 Prashanth Nayak
PW.22 Jagadish H.S.
61 SC No.551/2014
PW.23 Smt. S. Savitha
PW.24 Smt. D. Malathi
List of documents exhibited for the prosecution-side:
Ex.P.1 Complaint of PW.1.
Ex.P.1(a) Signature of the PW.1.
Ex.P.1(b) Signature of the PW.19.
Ex.P.2 Seizure-mahazar.
Ex.P.2(a) Signature of the PW.3.
Ex.P.2(b) Signature of the PW.19.
Ex.P.2(c) Signature of the PW.20.
Ex.P.3 Inquest-mahazar.
Ex.P.3(a) Signature of the PW.4.
Ex.P.3(b) Signature of the PW.6.
Ex.P.3(c) Signature of the PW.9.
Ex.P.3(d) Signature of the PW.19.
Ex.P.4 Seizure-mahazar.
Exs.P.4(a) & (b) Signatures of the PW.5.
Ex.P.4(c) Signature of the PW.1.
Ex.P.4(d) Signature of the PW.19.
Exs.P.5 to P.13 Photographs.
Ex.P.14 Seizure-mahazar.
Ex.P.14(a) Signature of the PW.8.
Ex.P.14(b) Signature of the PW.10.
Ex.P.14(c) Signature of the PW.19.
Ex.P.15 Statement of the PW.8.
Ex.P.16 Statement of the PW.11.
Ex.P.16(a) Signature of the PW.11.
Ex.P.16(b) Signature of the PW.22.
Ex.P.17 Opinion of the PW.11.
Ex.P.17(a) Signature of the PW.11.
Ex.P.18 Mahazar.
Ex.P.18(a) Signature of the PW.12.
Ex.P.18(b) Signature of the PW.19.
Exs.P.19 to }{ Photographs were taken during the time of
P.24 }{ post-mortem.
Ex.P.25 Letter of declaration issued by PW.13.
Ex.P.25(a) Signature of the PW.13.
Ex.P.25(b) Signature of the PW.22.
Ex.P.26 Report of PW.14.
Ex.P.26(a) Signature of the PW.14.
Ex.P.26(b) Signature of the PW.22.
Ex.P.27 Report of PW.15.
Ex.P.27(a) Signature of the PW.15.
Ex.P.27(b) Signature of the PW.19.
Ex.P.28 Report of the PW.16.
Ex.P.28(a) Signature of PW.16.
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Ex.P.29 Sketch showing the place of occurrence of crime.
Ex.P.29(a) Signature of PW.17.
Ex.P.29(b) Signature of PW.22.
Ex.P.30 Information-letter issued by PW.18.
Ex.P.30(a) Signature of PW.18.
Ex.P.30(b) Signature of PW.22.
Ex.P.31 Copy of application.
Ex.P.31(a) Signature of PW.18.
Ex.P.32 Calls-list containing 11 pages.
Ex.P.32(a) Signature of PW.18.
Ex.P.33 Copy of application.
Ex.P.33(a) Signature of PW.18.
Ex.P.34 Calls-list containing 3 pages in respect of one Birju.
Ex.P.34(a) Signature of PW.18.
Ex.P.35 First Information Report.
Ex.P.35(a) Signature of PW.19.
Ex.P.36 Voluntary-statement of the accused.
Ex.P.36(a) Signature of PW.19.
Ex.P.36(b) Signature of the accused.
Ex.P.37 Statement of PW.21.
Ex.P.38 Copy of site-allotment-letter issued by BDA.
Ex.P.38(a) Signature of PW.22.
Ex.P.39 FSL-report.
Ex.P.39(a) Signature of PW.22.
Ex.P.39(b) Signature of CW.31.
Ex.P.40 FSL-report.
Ex.P.40(a) Signature of PW.22.
Ex.P.40(b) Signature of CW.32.
List of material-objects marked for the prosecution-side:
MO No.1 Wood-scraper (Thopada). MO No.2 Mat. MO No.3 Cloth-bed. MO No.4 Bed-sheet. MO No.5 Shirt. MO No's.6 & 7 Bloodstained-debris. MO No.8 Lock. MO No.9 T-shirt. MO No.10 Mobile-handset. MO No.11 Blue-colored-banyan. MO No.12 Blue-colored-underwear.
List of witnesses examined for the defence-side:
- NIL -63 SC No.551/2014
List of documents exhibited for the defence-side:
- NIL -
LI Addl. City Civil & Sessions Judge, Bengaluru City.64 SC No.551/2014
(Judgment pronounced in the open-court. Operative-portion of the same is extracted as under) ORDER The prosecution has utterly failed to prove the guilt against the Accused and therefore, the Accused is found not guilty for having committed the offences U/Secs.302 & 201 of IPC.
In exercise of the powers conferred-upon me U/Sec.235(1) of Cr.P.C., I hereby acquit the instant Accused by name, Sunil Rajbar @ Sunil, S/o. Ashok Rajbar, aged 23 years, residing at No.402, Sarovar Grama, Katharari Post, Pekali Grama Panchayath, Devariya Thahasil, Devariya District, Uttar Pradesh State, and set him to liberty forthwith in this case.
The Accused is hereby
discharged of his bail-bond, along-
with his surety.
The seized-properties marked
at MO No's.8 & 10, namely, lock and
mobile-handset, respectively, are
hereby ordered to be confiscated to
the Exchequer of the State
Government after the efflux of the
appeal-period.
The seized-properties marked
at MO No's.1 to 7, 9, 11 & 12,
namely, wood-scraper (thopada),
mat, cloth-bed, bed-sheet, shirt, 2
bloodstained-debris, T-shirt, blue-
colored-banyan and blue-colored-
underwear, respectively, being
worthless, are hereby ordered to be
destroyed after the efflux of the
appeal-period.
LI Addl. City Civil & Sessions Judge,
Bengaluru City.
65 SC No.551/2014