Bangalore District Court
State By vs M.T.Gajendra on 2 March, 2021
S.C.No.1451/2012
1
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.K.SUBRAMANYA, B.Com., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE ,
BENGALURU.
Dated this the 2 nd day of February 2021.
S.C.No.1451/2012
COMPLAINANT : State by
Peenya Police,
Bengaluru.
.Vs.
ACCUSED : M.T.Gajendra,
S/o.Thimmegowda,
28 years,
R/at.No.63/1, 7th Main,
6th Cross, Om Shakthi Layout,
Garebhavipalya,
Near Electronic City,
Bengaluru.
Native Place :
Jodi Machenahalli Village & Post,
Lakya Hobli,
Chickmagalur Taluk & District.
J UD GM E N T
The Police Inspector of Peenya Police Station, Bengaluru
has laid the charge sheet against the accused for the
alleged offence punishable under Section 302 of IPC.
S.C.No.1451/2012
2
2. The brief facts of the prosecution case are as under:
That on 22.10.2010 at about 12-00 p.m., the accused
had been to the house of M.R.Asha situted at No.92, First
Floor, Bhavani Nagar, Channanayakanahalli, within the
limits of Peenya Police Station, Bengaluru and asked for
certain sum of money to buy the car and also forced her to
have sexual intercourse and when she refused, he has
intentionally closed her nose and mouth by hands and
smothered and throttled and pressed her to the shelf stone
in the kitchen and committed murder, knowing that such
act is likely to cause the death of a person and thereby,
committed the murder of Smt.Asha. Hence, this charge
sheet.
3. After securing the presence of accused, my learned
predecessor has framed the charge against him for the
alleged offence under Section 302 of IPC. The accused has
pleaded not guilty and claims to be tried. The prosecution
in proof of its case examined P.Ws.1 to 13 and got marked
the documents Exs.P.1 to 18. After closure of the evidence
of prosecution witnesses, the statement of accused under
Section 313 of Cr.P.C., was recorded. The accused has
denied the incriminating evidence stated against him and
he has not chosen to adduce any defense evidence.
S.C.No.1451/2012
3
4. After hearing the arguments, the points raised for my
determination are as under:
1.Whether the prosecution proves beyond reasonable doubt that on on 22.10.2010 at about 12-00 p.m., the accused had been to the house of M.R.Asha situted at No.92, First Floor, Bhavani Nagar, Channanayakanahalli, within the limits of Peenya Police Station, Bengaluru and asked for certain sum of money to buy the car and also forced her to have sexual intercourse and when she refused, he has intentionally closed her nose and mouth by hands and smothered and throttled and pressed her to the shelf stone in the kitchen and committed murder, knowing that such act is likely to cause the death of a person and thereby, committed an offence punishable under Section 302 of IPC ?
2. What Order ?
5. My findings on the above points are as under :
POINT No.1 - In the Negative, POINT No.2 - As per final order, for the following :
R E A SON S
6. POINT No.1 : P.W.1-The owner of the house in which the deceased Asha is residing i.e., at No.92, Channanayakanapalya, Bhavaninagar, Bengaluru. He has deposed that the deceased is a house wife and her husband S.C.No.1451/2012 4 was working in Garments and they are living cordially in the house. During 2010, some boys came and informed that Asha was murdered. Immediately, himself, his younger brother Manjunatha and sister-in-law Smt.Rathnamma had been to the house of Asha and saw that there was a gas leakage and gas smell in the house. One aged person was dragging Asha from the kitchen. At that time, her husband Suresh was in the house. We told the police about the incident. The police came to the spot and taken the dead body of Asha. On seeing the dead body, he has noticed a ligature mark around the neck. The police have drawn the mahazar between 10-00 p.m., and 11-30 p.m., as per ex.P.1 and he has attested his signature. The police have also taken his statement. He has further deposed that after lapse of two years, the police have brought the accused Gajendra, who is the relative of deceased Asha and told that he has committed the murder of Asha. He has not seen the said Gajendra/accused prior to the alleged incident. He has not stated before the police that he has seen the accused on the date of alleged incident.
The prosecution has treated this witness as hostile and suggested that on 22.10.2010, the accused took the cigarette in his shop and asked the house of Asha, but the same is denied. He has denied the statement given as per S.C.No.1451/2012 5 Ex.P.2. Therefore, the evidence of this witness does not in any way help the prosecution to prove the presence of this accused and taking cigarette from his shop and went to the house of deceased.
7. P.W.2 has deposed that he is runing a provision store at House No.92, Bhavani Nagar, Chennanayakanapalya, Bengaluru. During 2010, Suresh came to the house and shouted in the loud voice. Thereafter, he had been to the house of Suresh and saw his wife was dead. Later, he has informed his brother P.W.1. Thereafter, the police came to the spot and took the dead body by drawing mahazar and locked the house and he has attested his signature.
This witness has not deposed about the presence of the accused on the eventful day and has not stated that the accused had been to the house of deceased. Therefore, the evidence of this witness is also not in any way implicating the accused in the commission of the murder of deceased Asha.
8. P.W.3-Father of deceased has deposed that he know the accused, as he is his relative. About four years back from the date of giving evidence, his deceased daughter Asha's marriage was performed with C.W.12-Suresh and S.C.No.1451/2012 6 both of them were living cordially. His son-in-law was working as Mechanic in the Garments. His daughter and son-in-law were living in a rented house belongs to P.W.1 and they had one male child, aged about seven years. His son-in-law informed over phone that Asha is not well and hence, come immediately. Accordingly, P.W.3 had been to the house of his daughter at 8-30 p.m., and saw the police and public gathered in the house and when he entered the house, he saw the bleeding in the mouth of his daughter and she was dead. The police have took the dead body in an ambulance to the hospital for conducting post mortem. On the same day, he has lodged the complaint Ex.P.18. The police have drawn the mahazar Ex.P.1. After conducting P.M.Examination, the police have handed over the dead body to their custody. On seeing the neck portion of the dead body, he came to know that the deceased was murdered by throttling. On that day, he was not aware who has murdered her and he has not seen the accused. The accused is residing in his village and he do not know whether his daughter had love affair with the accused. He came to know that the accused has committed the murder of his daughter.
In the cross examination, it is clearly stated that prior to the death of his daughter, he was running a Hotel in Nelamangala and his daughter is working in a Garments S.C.No.1451/2012 7 Factory at Madanayakanahalli. It is also admitted that she had love affair with C.W.12-Suresh and married him. It is also alleged that the said Suresh has falsely pretended that he belong to Lingayath caste and married his daughter, even though he belongs to Schedule Caste. It is also elicited that he do not know as to whether Suresh married one Yashodamma, resident of Mylarapatna near Nelamangala and concealed the first marriage. It is also admitted that on 22.10.2010 at about 8-00 p.m., his son- in-law informed that his daughter Asha was struggling in kitchen and the froth was coming from her mouth and she was not well. Immediately, he had been to the house of her daughter and saw his son-in-law, police and the neighbours gathered in the said house. His daughter was died. Two years after the death of his daughter, the police came to Machenahalli and informed about the accused. Therefore, the evidence of this witness does not inspire confidence to rely upon in proof of the involvement of the accused in the commission of offence. This witness has not stated any love affair between the deceased and accused. It is pertinent to note at this juncture itself that the case was registered in UDR No.97/2010 under Section 174(c) of Cr.P.C., and after two years, the case is registered in Crime No.477/2012. There is an inordinate delay in registering the case against the accused. There is due deliberation and S.C.No.1451/2012 8 after thought in registering the case, which is leading to doubt the prosecution case.
9. P.W.4-Husband of the deceased has deposed that he had worked as Mechanic during 2010-2011. During her life time, his wife was working as a Tailor. He know the deceased and he came to know through his landlord that the accused has committed the murder of his wife. On 22.10.2010 at about 4-00 p.m., the accused came near his house. At that time, his landlord enquired about the accused and the accused had stated that he is the relative of deceased Asha.
10. It is pertinent to note that P.W.4 has deposed his presence while the accused came near his house and after taking food, he went to work leaving the accused with his wife. But, on 22.10.2010, he returned back to the house at 8-10 p.m., and saw the house door was latched outside. He called his wife and received no response. Hence, he entered the house and saw that the LPG gas was leaking and there was pungent smell. He entered the kitchen and switched off the gas and saw his wife lying in the kitchen facing towards sky. He screamed for help and the neighbours came to the house and taken the dead body to S.C.No.1451/2012 9 the Hall and he noticed the blood near neck and noticed on foam from the mouth. The neighbours telephoned to the police and the police came and on information, his father- in-law came to the house. They have shifted the dead body to M.S.Ramaiah Hospital, Bengaluru. It is also stated that when he was working at Tumkur during 2007, the accused came to his house at 2-00 p.m., situated at Sathyamangala, Puttaswamaiahnapalya. The accused has stated that he is the relative of his wife. After lunch, P.W.4 went to the factory work and he has seen the accused second time in the Police Station on 17.07.2012.
Therefore, the evidence of this witness is also not consistent to the presence of the accused in the huse on the eventful day i.e., on 22.10.2010. If at all, P.W.4 being the husband of deceased Asha suspected the commission of murder by the accused, then he would have lodged the complaint immediately against the accused, but that is not forthcoming from his evidence.
11. It is also pertinent to note that there is delay in registering the case suo-moto by P.W.12. According to the investigation, he has registered the case on suspicion against the accused. Therefore, the suspected version implicating the accused does not inspire confidence to S.C.No.1451/2012 10 prove the case of prosecution beyond all reasonable doubt. The evidence of P.W.3 is quite contradictory to the evidence of P.W.4, as P.W.1 has also turned hostile and has not deposed as to purchase of cigarette from his shop and asking the house of Asha. Even, Smt.Asha came to the shop of P.W.1 and accompanied the accused to her house is also not evident. It is stated in the prosecution case that the accused came to the shop of P.W.1 on scooter, but the number of the said scooter and the R.C.Owner and whether the accused had custody of the vehicle on the eventful day is also not established. The Test Identification Parade as contemplated under Section 9 of Indian Evidence Act is also not forthcoming so as to identify the accused by P.W.1 or any local residents within the vicinity of the residents of the deceased. Therefore, the benefit of doubt is deserves to be conferred in favour of the accused.
12. P.W.4 even though has stated that he came to know that the accused has committed the murder of his wife and the Landlord has witnessed the accused at 2-00 p.m., on the date of murder, what prevented him from lodging the complaint against the accused remains unexplained. Even P.W.1 has clearly stated that the police have told that the accused have committed the murder and he has not given any statement that the accused has S.C.No.1451/2012 11 committed the murder. Further more, he has stated that he has not seen the accused Gajendra prior to the police brought him near his house. This vital material contradictions in the evidence of prosecution witnesses is decisively effect the prosecution case.
13. P.W.5 has also deposed that Suresh was working in Garments Factory and fell in love with Asha and married her. They were resided at Machenahalli, near Javagal, Arasikere. P.W.5 is the distant relative of deceased Asha. Therefore, his evidence is to be scrutinized with proper care and caution. It is also stated that after completion of S.S.L.C., he has joined a JOC at Tumkur and stayed in the house of deceased Asha. Thereafter, he has shifted to Hotel at Nelamangala. His evidence does not in any way help the prosecution to prove the guilt of the accused. He has received information on phone by C.W.7 that Asha was murdered with strangulation and assault near neck with stick "Muddekolu". This is quite contradictory as to the nature of injury and the ligature mark found on the neck of the deceased as per the opinion of Scientific Officer, F.S.L., Bengaluru. But, P.W.9-Scientific Officer, F.S.L., Bengaluru has deposed that their office received four sealed articles from Peenya Police Station, Bengaluru pertaining to this case in Cr. No. 477/2012 and the said articles are stomach S.C.No.1451/2012 12 and its contents, Liver and Kidney, Blood, Preservative. On examining these articles and chemical examination, she has opined that Residues of Volatile poisons, Pesticides, Barbiturates, Benzodiazepine group of drugs, Toxic metal ions and anions were not detected in all the above stated exhibits and accordingly, she has given the certificate to the Assistant Director.
14. It is revealing that the death is due to asphyxia as a result of compound effect of smothering and compression of neck. It is also opined by the Experts that the residues of of Volatile poisons, Pesticides, Barbiturates, Benzodiazepine group of drugs, Toxic metal ions and anions were not detected in all the exhibits i.e., Brain, Lungs, Liver, Spleen, Kidney, Heart. Therefore, the user of material object so as to cause the death is not substantially correlate with the nature of injury sustained by the deceased on the neck.
15. Further more, the finger prints of the accused found in the house of the deceased is not proved by the Finger Print Expert as per Section 45 of Indian Evidence Act. The Investigating Officer has not collected the Finger Prints found on any material object or on the body of the deceased. All these vital aspects remains not proved by the prosecution.
S.C.No.1451/2012 13
16. P.W.6 has also turned hostile to the prosecution case. He do not know the deceased Asha and the police have not called him to any place, but he had been to the Police Station during December 2012 and obtained his signature on Ex.P.9 and nothing were seized in his presence. Therefore, the prosecution has treated this witness as hostile and suggested that on 12.07.2012, the police have called him initially to the Police Station and thereafter taken to the house of deceased and the police have drawn the mahazar in the spot, wherein the deceased was murder and the said spot was shown by the accused to him and also to the police at the time of drawing mahazar, but the same has been denied. He has also denied that the accused has taken themselves and police near Chikkabidrakallu and shown the shop of P.W.1, where he has purchased cigarette on the date of alleged incident. Further, he has denied that the accused has taken them to the place i.e., kitchen of the house of Asha, where he has pulled Asha to the kitchen and thereafter, closed her mouth and nose and squeezed her neck to the shelf stone. Therefore, the procedure adopted by the Investigating Officer does not corroborate with the testimony of independent witnesses or mahazar witnesses. Hence, the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt.
S.C.No.1451/2012 14
17. P.W.7 has deposed that he is having Idea Coin Booth and many persons are visiting his shop and also using said coin booth by putting coin in it. He has seen the accused in the Police Station during 2012. He has seen the accused near his shop, as he came to his shop in order to use the said Idea coin booth and once he has identified him. He do not know anything about this case.
18. P.W.8-Associate Professor, Department of Forensic Medicine, M.S.Ramaiah Medical College, Bengaluru has deposed that on 23.10.2010, he received a requisition from Special Executive Tahasildar, Bengaluru North Taluk to conduct the P.M.Examination on the dead body of Smt.Asha, aged about 23 years. Accordingly, he has conducted the P.M.Examination on the dead body of deceased between 2-30 p.m., and 3-30 p.m. As per the information furnished by the Magistrate, the deceased is said to have found dead in the kitchen of her resident with the door bolted from outside. While conducting the P.M.Examination, he has noticed the following injuries on the body of deceased.
1. Multiple abraded contusion ;
2. Abrasion over front of neck ;
3. Abraded contusion below right side of chin ;
S.C.No.1451/2012 15
4. Multiple abraded contusion over both cheek ;
5. Contusion present over front of right side of chest below the middle of clavide ;
6. Contusion present over front of left side of chest below the middle of clavide All other inter organs are intact. All injuries are anti mortem and fresh in nature. On perusal of autopsy finding, HPE Report and chemical analysis report, the death is due to asphyxia as a result of combined effect of smothering and compression of neck. Accordingly, he had issued P.M.Report as per Ex.P.10.
In the cross examination, it is admitted that the compression of the neck by any means and the throttling may be strangulation by using hands. The material used for smothering to put pressure around the neck. But, the Investigating Officer has not produced any material to get the opinion as to the material used to strangulate and cause the death. It is also elicited in the cross examination that except the Injury No.2, all the other injuries mentioned in P.M.Report could be occurred if a person suffers from epileptic fall and struggles. It is also elicited that if fingers are used directly for smothering or compressing, the finger impression and nail marks will appear, but the witness says if intervening material or object is used, such mark S.C.No.1451/2012 16 will not appear. But, the Investigating Officer has not produced any cloth or material object, which was used while commission of the offence. Therefore, the medical evidence is not conclusively establishing that the object used by the culprit is likely to cause such death.
19. P.W.10-The then Police Constable of Peenya Police Station, Bengaluru has deposed that on 29.12.2010, he had been to M.S.Ramaiah Hospital to collect the viscera of deceased Smt.Asha and accordingly, he has collected the same and transmitted to the SHO along with his report as per Ex.P.13. His evidence is formal in nature.
20. P.W.11-The then Police Constable of Peenya Police Station, Bengaluru has deposed that on 17.07.2012, he has carried the Articles 1 to 4 to FSL, Madiwala, Bengaluru and handed over the acknowledgement to the PSI. His evidence is also formal in nature.
21. P.W.12-The then P.S.I., of Peenya Police Station, Bengaluru has deposed that on 22.10.2010, C.W.1 has given written complaint and on the basis of it, he had registered a case in UDR No.97/2010 under Section 174(c) of Cr.P.C., and forwarded the same to the Tahsildar, S.C.No.1451/2012 17 Bengaluru North. As per the directions of Tahsildar, the mortem of deceased was shifted to M.S.Ramaiah Hospital Mortuary. On the same day, he has drawn the spot mahazar Ex.P.1. Since the marriage of deeased was not completed seven years, he has given a requisition to the Tahsildar to conduct Inquest. On 23.10.2010, he has recorded the statements of C.Ws.1, 2, 12 to 16. He has further deposed that on 21.12.2010, he has forwarded the P.M.Report to the Tahsildar and taken the acknowledgement. He has received the viscera from M.S.Ramaiah Hospital and set it in P.F.No.169/2010 as per Ex.P.16. He has received the copy of P.M.Report Ex.P.10 on 6.02.2012. He has further deposed that on 6.07.2012, he has received the P.M.Report regarding UDR No.97/2010 under Section 174 of Cr.P.C., from Tahsildar Officer, Bengaluru North. The Tahsildar has issued direction to further investigate the case. Accordingly, he has registered the case in Crime No.477/2012 and forwarded the FIR- Ex.P.15 to the concerned authorities and later, he has handed over further investigation to the Police Inspector. On 11.07.2012, as per the instructions of Police Inspector, he has arrested the accused at Omshakthi Layout, Garebhavipalya, Bengaluru with the assistance of C.Ws.26 to 28 and produced him before the SHO along with his report Ex.P.17.
S.C.No.1451/2012 18 This evidence is also formal in nature. This witness has not been cross examined by the defense.
22. P.W.13-The then Police Inspector of Peenya Police Station, Bengaluru has deposed that on 11.07.2012, he took up futher investigation from P.W.12 and he has scrutinized the records and conducted further investigation. He has deputed the P.S.I., and his staff to trace the accused. On the same day at about 9-30 p.m., the P.S.I., has produced the accused along with report Ex.P.17. He has arrested the accused after observing the arrest formalities and the accused has admitted the commission of offence. He has recorded the voluntary statement of the accused and also recorded the statements of C.Ws.26 to 28. On 12.07.2012, the accused has stated that he will show the spot of incident and the spot of telephone coin booth. Accordingly, he had been to the said spot along with his staff and the accused and conducted the mahazar Ex.P.9. After completing the investigation, he has laid the charge sheet.
In the cross examination, it is elicited that C.W.2 has not stated that on 22.10.2010 at 4-00 p.m., the accused came near the house, at that time, my landlord has enquired about him and the accused has told that he is the relative S.C.No.1451/2012 19 of deceased Asha. Even it is admitted the suggestion that C.W.12 has not given statement that when he was working at Tumkur during 2007, the accused has came to his house at Sathyamangala, Puttaswamaiahnapalya. It is also elicited that C.W.12 has not stated that his wife was also stated that the accused is her relative. Therefore, there is material omission in the statement and evidence of P.W.4, who is C.W.12. Even, his wife has not revealed or disclosed that she was love affair with the accused. Further, C.W.12 has not stated in the statement that his wife Asha was asked Rs.25,000/- to give to the accused and C.W.12 has expressed his inability to give the said amount. C.W.12 has not stated that the ornaments worn by the deceased were missing. Therefore, the accused demanded for money and to make sexual intercourse and on refusal, committed the murder is not evident. If he really wanted money, he would not have left the ornaments intact after the alleged act.
23. Here in this case, the voluntary statement of the accused recorded by the Investigating Officer is not admissible as per Sections 25 to 27 of Indian Evidence Act, as it is recorded in the police custody. It is not an extra judicial confession. It is not free from any threat, inducement, coercion. The deceased screamed for help while incident and the neighbours have noticed her voice S.C.No.1451/2012 20 and went to help is also not forthcoming from the testimony of independent witnesses.
24. The learned counsel for accused has relied upon the following dictums.
1. AIR 1966 SC 119 (Aghnoo Nagesia .Vs. State of Bihar) , wherein Their Lordships have clearly observed as under :
"In proof of the confession is excluded by any provision of law such as Section 24, Section 25 and Section 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as Section 27 of the Evidence ct. Little substance and content would be left in Sections 24, 25 and 26 if proof of admissions of incriminating facts in a confessional statement is permitted".
"If the confession is caused by an inducement, threat or promise as contemplated by Section 24 of the Evidence Act, the whole of the confession is excluded by Section 24. Proof of not only the admission of the offence, but also the admission of every other incriminating fact such as the S.C.No.1451/2012 21 motive, the preparation and the subsequent conduct is excluded by Section 24. To hold that the proof of the admission of other incriminating facts is not barred by Section 24 is to rob the section of its practical utility and content. It may be suggested that the bar of Section 24 does not apply to the other admissions, but though receivable in evidence, they are of no weight, as they were caused by inducement, threat or promise. According to this suggestion, the other admissions are relevant, but are of no value. But we think that on a plain construction of Section 24, proof of all the admissions of incriminating facts contained in a confessional statement is excluded by the Section. Similarly, Sections 25 and 26 bar not only proof of admissions of an offence by an accused to a police officer or made by him while in the custody of a police officer but also admissions contained in the confessions statement of all incriminating facts related to the offence".
2. 2012 Criminal Law Journal 582 (State of Karnataka .Vs. Paniyeravara Mani) , wherein Their Lordships have clearly observed as under :
"Evidence Act (1 of 1872), Section 24
- Extra Judicial Confession - Murder case - Extra judicial confession is to S.C.No.1451/2012 22 be made before a neutral person - Confession of accused, before witness who was none other than brother of deceased - Said witness certainly have some interest in perpetuation - Being weak type of evidence cannot be relied on to convict accused for commission of offence".
3. (2015) 11 sCC 31 (Indra Dalal .Vs. State of Haryana) , wherein Their Lordships have clearly observed as under:
"B. Evidence Ct, 1872 - Sections 25 to 27 - Nature, scope and basis of - "Confession" meaning of - Rules of admissibility of confessions made to police officer or in police custody, summarised and reiterated - Role of Section 27 as a proviso to Sections 25 and 26, explained".
4. (2017) 16 SCC 353 (Ganpat Singh .Vs. State of Madhya Pradesh) , wherein Their Lordships have clearly observed as under :
"A. Criminal Trial - Circumstantial Evidence - Generally - Requirements of c(2019) 4 SCC 522 (Digamber Vaishnav & Another .Vs. State of Chattisgarh)ase resting on circumstantial evidence - What are - Principles summarised"
S.C.No.1451/2012 23 "C. Penal Code, 1860 - Section 302 -
Murder trial - Circumstantial evidence - Links in the chain of circumstances, not established - Material contradictions present in the case of prosecution -
Benefit of doubt - Entitlement to -
Conviction reversed".
5. (2019) 4 SCC 522 (Digamber Vaishnav & Another .Vs. State of Chattisgarh) , wherein Their Lordships have clearly observed as under :
"C. Criminal Trial - Circumstantial Evidence - Generally - Conviction solely on basis of circumstantial evidence -
When sustainable - Principles
summarised" .
In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied.
The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;
those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused ; and the circumstances, taken cumulatively, should form a chain so complete that here is no escape from the conclusion that within all human probability the S.C.No.1451/2012 24 crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
6. (2009) 9 SCC 152 (Pannayar .Vs. State of Tamil Nadu, by Inspector of Police) , wherein Their Lordships have clearly observed as under :
"D. Evidence Act, 1872- Sections 137 and 138 - Examination-in-chief, cross-
examination and re-examination - Purpose of - Held, purpose of re- examination is only to get clarifications of some doubts created in cross examination - One cannot supplement examination-in-chief by way of a re- examination and for the first time, start introducing totally new facts, which have no concern with the cross examination - In the instant case, no question was put to P.W.1 (husband of deceased) regarding clothes worn by the deceased, or identification or ornaments worn by her - It was during re- examination that P.W.1 was confronted with the questions and trial court obviously erred in allowing such re- examination - Further held, even if it is accepted that trial court was justified in allowing re-examination, but th evidentiary value of same was nil".
S.C.No.1451/2012 25 The principles enunciated by Their Lordships in the above said dictums are relied adverting to the facts and circumstances of this case and the evidence on record.
25. The death of deceased is homicidal or suicidal or accidental or intentionally causing death are not established in this case.
26. The prosecution has placed reliance only on the official testimony without being any cogent, credible, convincing and corroborative evidence of independent witnesses. The evidence of prosecution witnesses is quite contradictory to the procedure adopted by the Investigating Officer. Therefore, the evidence does not inspire confidence to rely upon in proof of the prosecution case. The evidence does not in any way entangle the accused in the commission of offence of murder of the deceased. Further more, the evidence is not unerringly lead to the fact of murder committed by the accused. The cumulative effect of evidence assessed comprehensively does not in any way lead to the commission of offence by the accused. The contradicting, conflicting and re-sailing evidence is quite opposed to the prosecution case.
S.C.No.1451/2012 26
27. The state of things, which constitute the incriminating circumstance on the accused is also not forthcoming in the prosecution evidence. The opportunity used by the accused in order to commit the murder and the overt act are not brought out in the reliable testimony of the prosecution witnesses.
28. The motive, preparation, previous and subsequent conduct are not proved as per Section 8 of Indian Evidence Act. It is ruled in (1997) 2 Crimes 38 (Bombay) (Ganpat Kondiba Chavan .Vs. State of Maharashtra) that the conduct of an eye witness in non-disclosing the incident to anybody for a number of days, is highly unnatural one and is sufficient to reject his testimony.
Here in this case, none of the witnesses, who have seen the murder, have not revealed the same to anybody. Even though, the husband of the deceased left the house allowing the accused in the house along with his wife and has not suspected the commission of the offence by the accused at the initial stage itself will leading to doubt the prosecution case. This is also leading to doubt the testimony of the prosecution witnesses.
28. It is also held in the dictum reported in AIR 1999 SC 1574 (Ramesh Chandra Sao .Vs. State of Bihar), wherein S.C.No.1451/2012 27 Their Lordships have clearly observed as under :
"Presence of blood stains on floor of room of house and the shawl by themselves are not such circumstances to establish the guilt of accused, grant of benefit of doubt proper".
Here in this case, the blood stains on the cloth of the accused and it is correlating to the blood stains of the deceased and it is occurred while assault made by the accused is not established with cogent testimony.
29. Further, in the dictum reported in (1991) Criminal L12aw Journal 345 (SC) (Hardyal and Prem .Vs. State of Rajasthan) , Their Lordships have clearly observed as under :
"In case where facts and circumstances from which conclusion of guilt was sought to be drawn by prosecution was not established beyond reasonable doubt, the conviction under Section 302 r/w. Section 34 and under Section 392 had to be quashed"
30. Further, in the dictum reported in AIR 2002 SC 3206 (Ashish Batham .Vs. State of Madhya Pradesh) , Their Lordships pleased to observe as under :
(A) Evidence Act (1 of 1872), Section 3 -
S.C.No.1451/2012 28 Circumstantial Evidence - Conviction on basis of - Principles which should guide and weigh with court - Reiterated.
(B) Evidence Act (1 of 1872), Sections 3, 100 - Criminal case - Proof - Suspicion however strong - Not substitute for legal proof - Graver the charge greater has to be the standard of proof - Courts to keep in mind that there lies long mental distance between 'may be true' and 'must be true".
Here in this case also, the proof is not sufficient and it is suspicious - Graver the charge greater has to be standard of proof. The court has to keep in mind that there lies long mental distance between 'may be true' and 'must be true'. Therefore, the realities or truth apart fundamental basic presumption in the administration of criminal law and jurisdiction delivery system is innocence of the alleged accused and till charge are proved beyond all reasonable doubt. On the basis of clear, cogent, credible and unimpeachable evidence, the question of indicting or punishing the accused does not arise merely carried away by heinous nature of the crime.
(C) Penal Code (45 of 1860) Section 300
- Murder, Circumstantial evidence -
Failure in love affair alleged to be the motive - Circumstances of presence of accused at scene, false plea of alibi, S.C.No.1451/2012 29 recovery of chain of deceased from and knife and blood stained clothes at instance of accused relied upon by prosecution - Prosecution however suppressing results of finger print and lie detector examination and report of independent investigation made by CID
- Held, it casts shadow of doubt on credibility of prosecution case -
Evidence adduced to prove incriminating circumstances also lacking in legal credibility - Accused held was somehow roped in - Liable to be acquitted.
The FSL Report is also not revealing the blood samples so as to prove the blood sample of the deceased, which is correlating with the blood stains found on the floor and clothes of the accused . Therefore, the observations in the above said dictum is aptly applicable to the case on hand.
31. Further, in the dictum reported in AIR 2008 Criminal Law Journal 1775 (Leela Ram and Ashok & Another .Vs. State of Rajasthan) , Their Lordships pleased to observe as under :
"Penal Code (45 of 1860), Section 300 - Murder - Circumstantial evidence - Accused were in police custody where they allegedly gave disclosure statements about their involvement in crime - Their foot prints matched with foot impressions taken on spot - Stolen S.C.No.1451/2012 30 articles recovered from their houses - However, foot impression moulds were not taken before or under orders of Magistrate - Cannot be accepted in evidence - Stolen articles not recovered during 1 st search of house, but recovered during 2 nd search - Evidence of witnesses to recovery not found truthful - Moreover these articles were of such little value that no accused would carry them home after commission of murder - Evidence adduced not sufficient to connect accused with crime - Doctrine of confirmation by subsequent fact "not applicable" - Conviction liable to be set aside.
Here in this case also, the mahazar was conducted,but the material objects were not seized while the accused was in custody. Therefore, the prosecution has miserably failed to prove the case with reliable testimony of the mahazar witnesses, as they have been turned hostile.
32. The last seen theory is also not established with the testimony of prosecution witnesses. All these factors are leading to doubt the prosecution case. Therefore, the presence of the deceased and the accused and smothering and throttling to commit murder are not established with circumstantial evidence of "Last Seen Witnesses". There is no reliable evidence is forthcoming in this case. In this S.C.No.1451/2012 31 context, it is observed by Their Lordships in the dictum reported in 2007 Criminal Law Journal 1972 (Gopal Singh .Vs. State of Uttaranchal) , as under :
(A) Penal Code (45 of 1860), Section 302
- Evidence Act (1 of 1872), Section 3 -
Murder - Circumstantial evidence -
Chain of circumstances - Last seen evidence - Time gap theory - Accused and deceased went together on 16 th April 1987 and dead body was found on 18 th April 1987 - There was thus long gap between two and last seen theory would not come into play - Deceased did not come back on 16 th , but no 12complaint of missing was lodged with police.
(B) Evidence Act (1 of 1872), Section 8 - Penal Code (45 of 1860), Section 300 -
Murder - Circumstantial evidence -
Subsequent conduct of accused -
Deceased alleged to be went out with accused and did not return back and his body recovered after two days -
Accused stated to have come to house of deceased on very next day - He had also gone to see dead body of deceased when it was recovered - He was all the time present in village - If he had committed murder, it would be natural conduct to abscond from there and not to go there - It reveals that appellant was not guilty of offence alleged against him - Moreover he had good relations with deceased - Facts and S.C.No.1451/2012 32 circumstances not consistent with hypothesis of his guilt.
(D) Penal Code (45 of 1860), Section 302/34 - Murder - Conviction of appellant No.2 along with appellant No.1 - Trial Court observed that appellant No.1 who took out deceased with him had a fractured hand and could not inflict injuries as sustained by deceased - Deceased had allegedly stolen wood of appellant No.2 -
Therefore it was inferred that appellant No.2 had assisted appellant No.1 in committing murder - Finding of trial court bases on surmises and conjectures - No legal evidence on record against him - None of witnesses had stated about his participation and there was no direct or circumstantial evidence against him - Finding of guilt perverse - His conviction liable to be set aside.
33. The credible testimony of any of the witnesses is not adduced on behalf of the prosecution regarding the murder, which is worthy of credence and to believe the version of prosecution. In the absence of such credible evidence, the hostile testimony of the prosecution witnesses does not in any way lead to infer the guilt of the accused beyond all reasonable doubt.
S.C.No.1451/2012 33
34. The identity of the accused and any witness seen him near the place of incident soon prior to the incident or after the incident fleeing away from the scene is not evident.
35. Further more, the Test Identification Parade as required under Section 9 of Indian Evidence Act is not conducted so as to identify the accused, who has participated in the commission of murder of the deceased.
36. The role of accused and the motive to commit offence is very important and the prosecution has to prove the motive, then it becomes more easier to connect the accused in the incident. But, here in this case, the motive, preparation and conduct of the accused is not brought out by the testimony of eye witnesses or with reliable circumstantial witnesses. The accused has demanded the deceased to give money and to have sexual intercourse, but the deceased has refused his demand by itself leading to commit the murder is not an extreme circumstance, which could be inferred with the state of things transpired as stated by the prosecution. There is no ocular evidence, which is convincing and proving the role of the accused person in the crime. The prosecution has miserably failed S.C.No.1451/2012 34 to establish the guilt of the accused beyond all reasonable doubt. Therefore, the benefit of doubt is to be conferred in favour of the accused. Hence, I answer the Point No.1 in the Negative.
37. POINT No.2 : My finding on this point is as per the following :
O R DE R Acting under Section 235(1) of Cr.P.C., accused is acquitted for the alleged offence punishable under Section 302 of IPC.
The bail bond and surety bond of the accused stands cancelled, subject to appeal/appeal period. (Dictated to the Judgment-writer, transcript thereof is corrected and then pronounced by me in the open court on this the 2nd day of March 2021) ( K.SUBRAMANYA ) LXVII Addl.City Civil and Sessions Judge, BENGALURU.
A NN E X U R E
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION :
P.W.1 Mahalingegowda
P.W.2 Manjunatha
P.W.3 Ramesh
P.W.4 Suresh
P.W.5 Kiran
S.C.No.1451/2012
35
P.W.6 Ramu
P.W.7 Umesh Kumar
P.W.8 Dr.Basappa S. Ugar
P.W.9 Dr.Kumudamma Patil
P.W.10 Nandish
P.W.11 Chandrashekar
P.W.12 Sunil H.B.
P.W.13 B.N.Shamanna
2. LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 Spot Mahazar
Ex.P.1(a) Signature of P.W.1
Ex.P.1(b) Signature of P.W.2
Ex.P.1(c) Signature of P.W.12
Ex.P.1(d) Signature of P.W.3
Ex.P.2 Statement of P.W.1
Exs.P.3 to 8 Photos of the deceased
Ex.P.9 Spot Mahazar
Ex.P.9(a) Signature of P.W.6
Ex.P.9(b) Signature of P.W.13
Ex.P.10 P.M.Report
Ex.P.10(a) Signature of P.W.8
Ex.P.10(b) Signature
Ex.P.10(c) Signature of P.W.13
Ex.P.11 Requisition of Tahsildar
Ex.P.12 F.S.L.Report
Ex.P.12(a) Signature of P.W.9
Ex.P.12(b) Signature of P.W.13
Ex.P.13 Report of P.W.10
Ex.P.13(a) Signature of P.W.10
Ex.P.14 Report
Ex.P.15 F.I.R.
Ex.P.15(a) Signature of P.W.12
Ex.P.16 Property Form
Ex.P.16(a) Signature of P.W.12
Ex.P.17 Report of P.W.12
Ex.P.17(a) Signature of P.W.12
S.C.No.1451/2012
36
Ex.P.17(b) Signature of P.W.13
Ex.P.18 Xerox copy of complaint
Ex.P.18(a) Signature of P.W.3
3. LIST OF MATERIAL OBJECTS PRODUCED AND GOT MARKED FOR PROSECUTION :
-NIL-
4. LIST OF WITNESSES EXAMINED & DOCUMENTS EXHIBITED FOR ACCUSED :
- NIL -
( K.SUBRAMANYA ) LXVII Addl.City Civil and Sessions Judge, BENGALURU.