Karnataka High Court
State Of Karnataka By vs Santhosh @ Kallu S/O Ravi Kumar on 22 April, 2016
Bench: Mohan M. Shantanagoudar, R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL 2016
PRESENT
THE HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.619 OF 2012
BETWEEN:
State of Karnataka
By Police Inspector
Byatarayanapura Police Station
Bengaluru City. .. APPELLANT
(By Sri Vijayakumar Majage, HCGP)
AND:
1. Santhosh @ Kallu
S/o Ravi Kumar
Aged about 22 years
R/at 14th Cross, 1st Main
Bapujinagar
Mysore Road
Bangalore-26.
2. Ashoka @ Khoki
S/o Sadananda
Aged about 19 years
No.582, 6th Cross
2
Kavika Layout
Maruthinagar
Bapujinagar
Mysore Road
Bangalore-26.
3. Babu @ Auto Babu
S/o Shivaram
Aged about 19 years
R/at No.324, 3rd Cross
Maruthinagar
Chandralayout
Bangalore-26.
4. Arun @ Girish
S/o Lingaraju
Aged about 51 years
R/at No.160
Behind Maramma Temple Road
RPC Layout, Vijayanagar
Bangalore-40
5. Deepak R @ Deepu
S/o Ramegowda
Aged about 20 years
R/at No.67, 13th Main
2nd Cross, Saraswathinagar
Mudalapalya
Vijayanagar
Bangalore-40. .. RESPONDENTS
(By Sri Ambaji Rao Najre, Adv. for R-1, R-2 and R-4
Sri Chandrappa K N, Adv. for R-3 and R-5)
This Criminal Appeal is filed under Section 378 (1)
and (3) of CR.P.C praying to grant leave to file an appeal
against the judgment and order of acquittal dated
25.01.2012 passed by the P.O., FTC-I, Bengaluru city in
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S.C.NO.1171/2008 - acquitting the respondents/accused
of the offences punishable under Sections 143, 144, 147,
148, 120(B), 506(B), 302 read with Section 149 of IPC and
etc.
This Criminal Appeal having been reserved and being
listed for pronouncement today, Budihal R.B., J., delivered
the following:
JUDGMENT
The judgment and order of acquittal dated 25.1.2012 passed by the Fast Track Court No.I, Bengaluru city in Sessions Case No.1171/2008 is challenged in this appeal by the State wherein the respondents-accused are acquitted of all the charges leveled against them.
2. Accused Nos.1, 2, 4, 6 and 7 were charged with the offences punishable under Sections 143, 144, 147, 148, 120(B), 506(B), 302 r/w Section 149 of IPC of Byatarayanapura Police Station in Crime No.280/2008.
3. Briefs facts leading to the case of the prosecution before the trial Court are, P.W.1 one Sri.G.Venkatesh, S/o 4 late B.C.Gundappa, Bapujinagar, Mysore Road, Bangalore has lodged the complaint as per Ex.P1 dated 27/28.6.2008 alleging that Sri.G.Chandrashekar @ cable Chandru, the younger brother of the complainant was having his office in III main road at Bapujinagar and he was giving cable connections to the people of the said area. On 27.6.2008 during night, as there was a birthday party of Sri.B.V.Kumar, the son of the complainant, the relatives, the younger brother of the complainant i.e., cable Chandru and one Praveen who was working under cable Chandru came to the house of the complainant to have dinner. After the dinner, during the night at about 11.45 p.m. cable Chandru and Praveen both went out of the house and within two minutes thereafter complainant heard a loud crying sound from outside the house and immediately complainant and his family members came out of the house and saw that five persons surrounded cable Chandru. When complainant and his family members went near, they saw that two persons out of the five accused 5 assaulted cable Chandru with long choppers on the head, due to which, he fell down at the said place crying and other two persons threw stones on the head of the deceased cable Chandru and another person had just surrounded the deceased. When the complainant and his family members went near to rescue the deceased, accused have shown long chopper and threatened them. After the incident, three persons went on one motorcycle and two others ran away from the spot. Cable Chandru had sustained bleeding injuries to the head wherein his brain matter had come out and he died on the spot. The complainant did not know the reason for such assault on the deceased by the assailants. The assailants were in between the age group of 20-25 years. Later he came to know that the persons who assaulted the complainant's brother are one Santhosh @ Kallu and another is Ashok and that he can identify all the accused if they are shown to him. Hence, he has requested the police to take action against those persons in accordance with law. The 6 complaint was registered at 1.30 a.m. on 28.6.2008 in crime No.280/2008 for the offences punishable under Sections 143, 144, 147, 148 and 302 r/w 149 of IPC. After investigation, the Investigating Officer has filed the charge sheet against accused Nos.1 to 7 for the offences punishable under Sections 143, 144, 147, 148, 120(B), 506(B) and 302 r/w Section 149 of the IPC. Accused No.3 died and case against accused No.5 was split up. Therefore, trial was held as against accused Nos.1, 2, 4, 6 and 7.
To prove its case, the prosecution in all examined 21 witnesses and got marked 26 documents and 12 material objects. On the side of the defence, no witness is examined and no document got marked.
After evaluating the material placed on record, the trial Court has come to the conclusion that prosecution has not proved the fact that accused persons have committed the murder of deceased Chandrashekar by assaulting him with long choppers on the head and dropping stones on his 7 head on 27.6.2008 at 11.45 p.m. and thereby acquitted the accused persons.
Being aggrieved by the judgment and order of acquittal, the State has preferred this appeal challenging the legality and correctness of the judgment of the trial Court on the grounds as mentioned in the appeal memorandum.
4. We have heard the arguments of the learned SPP and also the learned counsel appearing for respondents- accused.
5. The learned SPP during the course of his arguments has submitted that P.Ws.1, 7, 9 and 13 are the eyewitnesses to the incident who were examined before the trial Court and all of them have consistently deposed in their evidence that they have seen the accused persons assaulting the deceased and committing his murder. He has further submitted there was a streetlight at the spot 8 through which they have witnessed the incident. The Doctor who conducted the post mortem examination over the dead body of the deceased has been examined as P.W.2 and he has deposed in his evidence that he has conducted post mortem examination over the dead body of the deceased and issued the report as per Ex.P3. It is also submitted that the Doctor P.W.2 noticed 16 injuries on the body of the deceased and has deposed that all the injuries are anti-mortem in nature and opined that death was due to shock and hemorrhage as a result of multiple chop injuries sustained. The learned SPP has submitted that the versions of the eyewitnesses are also supported by the medical evidence. The weapons used for committing the offence were seized by the Investigating Officer during investigation at the instance of accused persons and the report of the FSL also shows that the blood stains found on M.O.Nos.1 and 2 were of human blood. He has submitted that the trial Court has not at all considered these materials properly. It has wrongly read the evidence of 9 the prosecution witnesses and has wrongly come to the conclusion that prosecution has not proved its case and has acquitted the accused persons. Accordingly, he has submitted to allow the appeal and to convict the respondents-accused herein for the offences with which they were charged by setting aside the judgment and order of acquittal passed by the trial Court.
6. Per-contra, learned counsel appearing for the respondents-accused submitted that the evidence of eyewitnesses is not worth believable. In fact they are not the eyewitnesses to the incident. The evidence of P.Ws.1, 7, 9 and 13 is self-contradictory and full of inconsistencies. When these witnesses claim that they are the eyewitnesses to the incident, their evidence must be consistent and cogent about the incident in question. It is also his submission that there is a delay in lodging the complaint and it has come in evidence that Praveen had lodged the compliant earlier to the complaint of P.W.1 and the said 10 complaint has been suppressed by the prosecution. He has further submitted that the incident in question is said to have taken place in the midnight i.e., at 11.45 p.m. and the evidence of alleged eyewitnesses is not consistent with regard to the streetlight. Though the Doctor P.W.2 who conducted the post mortem examination deposed about the injuries sustained and weapon used in committing the alleged offence, but the prosecution has failed to establish recovery of weapons at the instance of the respondents- accused and even the FSL report Ex.P24 is not helpful to the prosecution since there is no report from the Serology department to give the opinion as to the blood group on the items said to have been sent to the FSL. He has further submitted that it has come on record that deceased was the supporter of congress party and was also having licensed gun with him, which itself shows that he was having enemies because of political rivalry and the murder being caused by the said enemies also cannot be completely ruled out. He lastly contended that all these 11 aspects have been rightly and properly considered by the trial Court while acquitting the accused, as the prosecution has not proved its case beyond all reasonable doubt and hence, there is no merit in the appeal preferred by the State and the same may be dismissed. In support of his case, he has relied upon the following judgments:
(i) AIR 1975 SC 1727 in the case of Ram Narain Jaggar Singh and others Vs. The State of Punjab
(ii) AIR 1987 SC 826 in the case of Amar Singh and others Vs. State of Punjab
(iii) 2002 Crl.L.J. 511 in the case of Ran Tshering Lepcha Vs. State of Sikkim
(iv) 2002 Crl.L.J. 3737 in the case of Toran Singh Vs. State of Madhya Pradesh
(v) AIR 2003 SC 4399 in the case of Mohinder Singh and another Vs. State of Punjab and others
(vi) 2010 AIR SCW 1235 in the case of Jagdish Vs. State of Madhya Pradesh 12
(vii) AIR 2011 SC 1736 in the case of Kuldip Yadav and others Vs. State of Bihar
7. We have perused the grounds of appeal memorandum, judgment and order of acquittal passed by the trial Court, oral evidence of P.Ws.1 to 21 and documents produced at Exs.P1 to P26.
8. As per the case of the prosecution as made out before the trial Court, there are eyewitnesses to the incident in question. The eyewitnesses are P.W.1- G.Venkatesh, who is the complainant and own brother of the deceased, P.W.7 Smt.Mangala Rani, wife of deceased, P.W.9 Srinivas, who is another brother of the deceased and P.W.13 S.Manjunath who is the relative of the deceased. Let us examine the oral evidence of these four witnesses.
9. P.W.1-G.Venkatesh, the complainant has deposed in his evidence in the examination-in-chief that deceased 13 G.Chandrashekar is his younger brother. On 27.6.2008 there was a birthday party of the complainant's son in the night in his house and P.W.1 invited his relatives to his house including his deceased brother Chandru; they all were having dinner; at about 11.45 p.m. Praveen Kumar went out of the house and was talking in mobile and after 10 minutes he came and called deceased Chandrashekar stating that someone is calling him; then Chandrashekar went out along with Praveen Kumar and after two minutes they heard a sound; immediately he came out of the house and ran towards the place where he heard the sound and saw that five persons had surrounded his brother Chandrashekar and three out of five persons were holding long choppers. He tried to go near the spot, but one person out of five threatened him not to come near the spot; by seeing the complainant two persons ran away and other three persons started assaulting deceased with iron long choppers, stones and cement bricks; at that time Praveen Kumar was not in the spot; those three persons 14 left the place in the motorcycle; he has deposed that complainant's sister Seethamma, her daughter Sheela, his wife Susheela, P.W.7 Mangalarani and her children and his another brother P.W.9 G.Srinivas and his wife and children were present along with him at the time of incident. Accused No.1 was present in the spot and threatened him when he went to rescue his brother; accused nos.1 to 3 who are before the Court assaulted his brother Chandrashekar with long choppers, stones and cement bricks; accused Nos.4 and 5 who were present in the spot ran away by seeing him; one Eshwar took him to the police station at 1.30 a.m. to lodge the complaint and he lodged the complaint as per Ex.P1. Then police came to the spot and conducted spot mahazar during night in his presence and seized the stone, cement brick and blood scrapings and the mahazar is at Ex.P2; After two days, police called him to the police station and showed him accused Nos.1 to 5 and he identified them stating that they have assaulted the deceased Chandrashekar; after two days again he was 15 called to the police station and accused no.7 was shown to him and he identified him and after 11 days he went to the police station and identified accused no.6. Three long choppers are at M.Os.1 to 3, stone is marked M.O.4, cement brick is marked as M.O.5 and small size stone is marked as M.O.6.
During the cross-examination by learned counsel for accused Nos.1 and 2, he has deposed that he is aged 68 years and he has undergone eye surgery; he denied the suggestion that he left car driving due to eyesight; he heard the sound of long at 11.45 p.m. from a distance of 70 feet; five persons were present when he came out of the house and two persons ran away out of five by seeing him and there was focus streetlight; he denied the suggestion that the pole only was installed and there was no streetlight and that he cannot identify the persons in the spot due to non-availability of light; when he came out from the house, the accused Nos.1 to 3 were assaulting his brother with long choppers and threatened him saying not 16 come to the spot; one out of accused Nos.1 to 3 threw stone on the deceased; he cannot say who was holding stones and who was holding long choppers; they have not tried to apprehend the accused persons and he does not know who informed the police. Byatarayanapura police, Chandra layout police, Kengeri police and ACP Ramesh Babu came to the spot. Praveen Kumar - C.W.6 told the names of all the accused persons to them; he voluntarily told that Praveen Kumar is involved in the case as an accused; his brother Chandrashekar asked Puneeth not to become President of Kannada Flag Hoisting Committee, due to that said Puneeth went away saying that he will look after his brother Chandrashekar; he was present in the spot when Puneeth warned his brother; till today they are not sure about the persons involved in this case; he denied the suggestion that there was no electricity on that day. He has deposed that police came to the spot in ten minutes; He denied the suggestion that they saw the persons who were running and not the accused persons and also further 17 suggestion that accused Nos.1 and 2 were not holding long choppers; there was no difficulty for him in narrating the incident at the spot when police came to the spot. He was in the spot so long police were there and he went to the police station at 2.30 a.m.; he denied the suggestion that police typed Ex.P1 and he signed the same. He has not stated anywhere except before this Court that accused No.1 threatened him by showing long.
In the cross-examination by learned Advocate for accused Nos.6 and 7 he has deposed that two persons ran away from the spot when he came out from the house; Praveen Kumar was not present in the spot; Accused Nos.1 to 3 might have assaulted the deceased with stones and bricks; Praveen Kumar came from opposite side shouting when two persons were running; within two to three seconds they informed the police through mobile and police came to the spot in 5-10 minutes; Praveen Kumar was present in the spot when police came to the spot; Eshwar and Praveen Kumar went to police station and he 18 went to police station after 2.30 a.m. Praveen Kumar had lodged complaint before he went to police station; he went to police station only after conducting mahazar in the spot and after shifting dead body to the hospital; Praveen Kumar, Eshwar and other boys were present in the police station when he went there. He signed the complaint after it was typed; it was 3.30-4.00 a.m. when he signed the complaint; the distance between the place of incident and focus streetlight may be 25-30 feet; Focus streetlight is by the side of the road; he denied the suggestion that the light first focus to the tree and thereafter to the place of incident; he cannot say specifically which of the accused were holding long choppers; he does not know the names of accused persons who threw stones on the deceased; he came to know about the accused only when police told their names. He has denied the suggestion that he has not witnessed the incident.
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10. P.W.7-Smt.Mangala Rani, another eyewitness who is the wife of the deceased, has deposed in her evidence in her examination-in-chief that she has seen accused Nos.1, 2, 4, 6 and 7 who are before this Court on 27.6.2008 at about 11.45 p.m.; she came out by hearing the sound and saw accused nos.1 to 3 were holding long choppers; they assaulted her husband with long choppers; accused No.4 who was holding size stone threw the same on the head of her husband; herself, P.W.1 and C.W.3 Srinivas went to rescue her husband; accused Nos.1, 2 and 5 threatened her, P.W.1 and C.W.3; accused nos.1 to 3 went away in two wheeler; there was focus streetlight in front of their house; she saw the incident through the focus streetlight; she has stated before the police on 30.6.2008 that accused persons assaulted her husband in respect of Sandeep's matter; she saw three long choppers which are already marked as M.Os.1 to 3; she has seen the size stone M.O.4, cement brick and stone which are M.O.5 and 6 respectively. Later she came to know that 20 accused persons killed her husband in respect of Sandeep's matter.
In the cross-examination by learned counsel for accused Nos.1 and 2 she deposed that she has studied up to SSLC; her husband was doing cable operating business in Bapujingar area since 18 years; he was in politics and involved in sports activities; he was a member of Youth Congress and Rakshana Vedike and he was president of Ayyappa Swamy Temple and he was also a social worker; the deceased was preparing to contest for Corporator from Congress party; he was about to go to Delhi on 30.6.2008; he had a licensed gun and he used to carry the same with him for his safety; he obtained the licence for the gun 7-8 years back. She has deposed that P.W.1 Venkatesh is suffering from eyesight; 1 ½ - 2 months back the complainant P.W.1 has undergone eye surgery. C.W.6 Praveen who was present with them on the date of the incident called her husband outside; deceased and Praveen both went out of the house; she was inside the 21 house and heard the screaming sound; P.W.1 Venkatesh immediately went out from the house and she followed P.W.1. P.W.9 Srinivas also came out from the house; accused Nos.1 to 3 were assaulting her husband with long choppers and he was lying on the ground when she came out from the house; Praveen was not present in the spot, he came to the spot later shouting; she does not know how the information passed on to the police; police came to the spot after one hour; herself and other family members except P.W.1 Venkatesh were present in the spot when police came there; accused nos.1 to 3 went away in two wheeler and the streetlight is at a distance of 25 ft. from her house. She has denied the suggestion that there was no electricity in their house on that day and the streetlight was not switched on on that day. She has deposed that there was heavy rain on 28.6.2008 for about four hours. She denied the suggestion that she has not seen the incident.
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In the cross-examination by learned counsel for accused No.4 she has deposed that she was unable to guess as to what had happened by seeing her husband; police came to the spot at 1.30 a.m. and they were in the spot up to 3.30 a.m. In the cross-examination by learned counsel for accused nos.6 and 7 she has deposed that they heard the sound within ten minutes after Praveen called the deceased; Praveen came to the spot after 5-7 minutes; she came to know about the names of assailants only when Praveen called their names; she has denied the suggestion that light rays will not fall on the place of incident and light rays first fall on the coconut tree.
11. P.W.9 Srinivas who is the another brother of the deceased has deposed in his evidence in the examination- in-chief that on 27.6.2008 there was a birthday party of Kumar in the house of P.W.1 and all the relatives had been there to attend the same; at about 11.40 p.m. C.W.6 23 Praveen called Chandrashekar stating that someone is calling him outside; Chandrashekar went out to the call given by Praveen; Praveen left the place and within a fraction of two minutes, they heard a sound; himself, P.W.1 Venkatesh, and his elder sister and Mangalarani the wife of deceased came out from the house by hearing the sound; they saw six persons attacking the deceased at a distance of 50 ft. from the house of P.W.1; there was mercury street light; all the accused persons were attacking the deceased with long choppers, chopper and stones; accused persons threw stones on the deceased. But he cannot say specifically who threw the stones on the deceased. They informed the police immediately over phone. Police came to the spot and after verifying the spot shifted the body to the hospital. He does not know the reason of killing his brother.
In the cross-examination by learned counsel for accused Nos.1 and 2, he has deposed that when the deceased moved about 50 ft. near the street light five 24 persons attacked him; by hearing the sound himself and other family members came out from the house; P.W.1 gave information to the police through phone in 5-10 minutes of the incident; he does not know whether P.W.1 gave information to the police through landline or mobile; there were about five assailants present; they have not tried to inform the police immediately as they were anxious to save the life of deceased. He denied the suggestion that there was no streetlight at the time of incident and further suggestion that his brother Chandrashekar had developed enemies in the locality.
In the cross-examination by learned counsel for accused No.4 he has deposed that he saw the assailants for the first time; he cannot say the physical features of the assailants as he was upset by seeing the assault on his brother; Byatarayanapura police came to the spot after 15 minutes; Praveen informed the details of assailants to the police; he came to know about the assailants only when Praveen told him; the incident took place at a distance of 25 20 feet from Imax streetlight; body was shifted at 2.30 a.m. Praveen was present till the deadbody was shifted and Police took Praveen to the police station. P.W.1 Venkatesh went to police station along with Praveen.
12. P.W.13 S.Manjunath who is also the relative of the deceased has deposed in his evidence in the examination-in-chief that about 11.45 p.m. C.W.6 Praveen came and called the deceased Chandrashekar and Chandrashekar went out from the house; after ten minutes they heard the sound of assault; himself, P.W.9 Srinivas, Mangalarani the wife of the deceased and P.W.1 Venkatesh came out from the house by hearing the sound of assault; after five minutes he came out from the house and saw three persons were assaulting Chandrashekar with long at a distance of 15 ft.; accused Nos.1 and 2 assaulted the deceased with long chopper; the remaining three persons threw stones on the deceased; three persons left the place in a motorbike; other three persons walked for a 26 distance and went away in a motorbike; after 15 minutes police came to the spot and conducted mahazar and shifted the body at 2.00 a.m.. They saw the accused assaulting the deceased through streetlight.
In the cross-examination by learned counsel for accused Nos.1 and 2 he has deposed that they heard the screaming sound from outside and C.W.1 Venkatesh and his brother Srinivas went out. Later Mangalarani followed Venkatesh and his brother. The deceased was surrounded by six persons; he has seen all the six persons who surrounded the deceased; accused Nos.1 to 3 assaulted the deceased with long choppers 6-7 times; they gave information to the police through phone after the incident; Ten minutes after the incident P.W.1 Venkatesh lodged the complaint to the police through his mobile; after 10 minutes police came to the spot and they were in the spot up to 4.00 a.m.; Praveen was not present when incident took place and he came to the spot after some time; Accused Nos.1 to 3 left the spot in a TVS motorcycle; 27 Accused Nos.4 to 6 ran away in a Kinetic Honda scooter; There was Hymox light pole in the spot at a distance of 20 ft. from the house of Venkatesh; he denied the suggestion that there was no Hymox light installed at the time of incident.
In the cross-examination by learned counsel for accused Nos.6 and 7 he has deposed that Praveen came to the spot after one hour. He has not seen M.Os.1 to 3 in the spot. M.O.4 to 6 were lying at a distance of 3-4 ft.
13. The oral evidence of these four witnesses shows that the complainant as well as other three eyewitnesses were not knowing the names of any of the accused and they came to know the names of the accused only when Praveen (C.W.6) told the names of the accused persons to the above mentioned eye-witnesses, but the evidence of P.W.18 B.S.Rajendra, Police Inspector of Byatarayanapura Police Station, who said to have investigated the matter, discloses that he called eye-witnesses namely C.Ws.1 to 3 28 and 6 to the Police Station. C.W.6 is one Praveen; so according to the investigating officer C.W.6-Praveen is also an eye-witness (which is transpired in his investigation), but the said C.W.6 was not examined before the Trial Court. But the eye witnesses have deposed that, only when Praveen came to the spot and told the names of the assailants they came to know the names of the accused persons. We have already referred above the evidence of P.W.13 Manjunath wherein he has specifically stated that Praveen was not present when the incident took place and said Praveen came to the spot after sometime i.e., after one hour. P.W.13 is also an eye-witness according to the case of the prosecution and he came out of the house along with other family members, when that is so, and as per his evidence, as Praveen (C.W.6) was not present at the spot and came to the spot only after one hour of the incident, how can Praveen tell the names of the assailants that the accused persons herein are the assailants. Therefore, it is very difficult for the Court to accept the 29 case of the evidence of P.Ws.1, 7, 9 and 13 that they came to know the names of the assailants only when Praveen came to the spot and told.
14. In Ex.P-1 complaint, the complainant Venkatesh has mentioned that when he came out of the house after hearing the screaming sound, he saw five (5) persons surrounding his brother and out of five (5), two (2) persons have assaulted his brother with long choppers on the head, other two (2) threw the stones on the head of the deceased and another one (1) surrounded the deceased. But the oral evidence of P.W.1 Venkatesh is again contrary to what he has stated in the complaint Ex.P-
1. In the examination-in-chief itself P.W.1 has deposed that by seeing him two (2) persons ran away out of five (5), and other three (3) persons started assaulting the deceased with iron long choppers, stones and cement bricks. Even in the cross-examination also, he has deposed that out of five (5), two (2) persons ran away by 30 seeing him; so this evidence of P.W.1 shows that after two (2) persons ran away from the spot, the remaining three (3) started to assault the deceased with long choppers, as well as they threw the stones and bricks on the deceased. This version of P.W.1 complainant is again contrary to the contents of Ex.P-1 complaint. Evidence of P.W.9 Srinivas and P.W.13 Manjunath shows that when they came out of the house they saw six (6) assailants surrounding the deceased Chandrashekar. Therefore, even looking to the evidence of the said eye-witnesses, there is no consistency even as to the number of assailants, as who surrounded the deceased Chandrashekar. Some witnesses deposed that the accused were five (5) in number and other two witnesses have deposed that they were six (6) in number.
The oral evidence of the above mentioned eye- witnesses shows that immediately after the incident they gave the phone message to the Police of Batranyapura Police Station within 5-10 minutes, and within 15 minutes thereafter, police came to the spot. So the evidence of the 31 eye-witnesses show that the incident took place at 11.45 p.m. on 27.06.2008, and around at about 12.00 midnight or at 00.30 hours on 28.06.2008 Police were present at the spot. The oral evidence of P.W.18 the Investigating Officer is to the effect that on 28.06.2008 at about 1.30 a.m. Venkatesh (C.W.1) came to the Police Station and gave the oral statement and he reduced the same into writing as per Ex.P-1 and registered the case in Crime No.280/2008, then he submitted the FIR to the Court and to his superior officers as per Ex.P-19 and thereafter he visited the spot and conducted the spot mahazar as per Ex.P-2 between 2.30 a.m. to 4.30 a.m.
15. We have also perused Ex.P-2, the spot mahazar, it is mentioned at the end that it was conducted from 2.30 a.m. to 4.30 a.m. as deposed by P.W.18. The FIR is at Ex.P-19, which was registered in the Police Station at 1.30 a.m. on 28.06.2008. But perusing the oral evidence of P.W.1 complainant, he has deposed on page 32 No.12 of his deposition that he has signed the complaint after it was being typed and it was about 3.30-4.00 a.m. when he signed the compliant. Hence this is again contrary to the case of the prosecution that P.W.1 lodged the complaint at 1.30 a.m. and it was registered at 1.30 a.m. itself.
Not only that, complainant P.W.1 has also deposed that he went to the Police Station after 2.30 a.m. and Praveen Kumar had lodged the complaint before he went to the Police Station. P.W.1 has further deposed that he went to the Police Station only after conducting the mahazar in the spot and after shifting of the dead body to the hospital. If this is taken to be true as deposed by P.W.1, then the Police came to the spot even before P.W.1 lodging the complaint and even before registering of the FIR. Therefore, the evidence of complainant (P.W.1) and the Investigating Officer (P.W.18), are again contradictory with each other and there is no consistency in the evidence of complainant and the Investigating Officer. These factors 33 also raise reasonable doubt in the mind of the Court that whether really the case was registered at 1.30 a.m. itself on 28.06.2008 or it was registered only after 4.30 a.m. as deposed by P.W.1.
P.W.1 has deposed that Praveen Kumar lodged the complaint before he went to the Police Station, if it is so, and as P.W.1 made such statement on oath before the Court, then it is for the prosecution to show what happened that complaint lodged by C.W.6 Praveen Kumar and as to whether the names of the very accused herein were mentioned in the said complaint or not. Considering these materials placed on record by the prosecution, it is not clear as to on whose information the Police came to the spot and exactly at what time. Such factors are not satisfactorily explained by the prosecution with acceptable evidence.
Though P.W.1 claims that he was present at the spot when the Police came to the spot and he was present at the spot up to the completion of the spot mahazar, but the 34 evidence of P.W.7 Mangala Rani, the wife of the deceased, is again contrary to the evidence of P.W.1. P.W.7 has deposed that when the Police came to the spot, herself and all other members of their family were present at the spot except P.W.1 Venkatesh; it was her case that immediately after the incident Venkatesh went to the Police Station to lodge the compliant. As we have already observed above referring to the evidence of P.W.18, the investigating officer, that his investigation transpires that C.W.6 Praveen is also an eye-witness to the incident, but inspite of issuing the process of Court number of times, the prosecution was not able to examine the said Praveen before the Trial Court though he is considered to be the material witness in the case. The evidence of the above mentioned eye-witnesses is also not consistent and cogent that out of the 5-6 accused who have assaulted the deceased with the long choppers and who have assaulted with the stones and bricks, hence, again there is a contradictory version of the 35 said eye-witnesses regarding the assault said to have been made by the assailants.
16. It is the case of the prosecution that at the spot, nearby the house of P.W.1 Venkatesh at a distance of 20- 25 feet there was a electric pole with hymox light and in the said light the witnesses have seen the incident. In this regard, we have perused the spot mahazar (Ex.P-2), wherein there is a mention about the electric pole and Hymox street light to the said pole and it is also mentioned that in the said light itself spot mahazar was conducted. We have perused the evidence of P.W.3 S.C.Ramanjaneya, Asst. Executive Engineer, BBMP Electrical Department, who has deposed that on 01.08.2008 they received a requisition letter Ex.P-7 from Police Inspector Byatarayanapura Police Station to furnish information regarding hymox street light in the II Main Road, 6th Cross Junction of Bapuji Nagar. He verified the complaint register maintained in their office and there was no complaint lodged in respect of the said street light from 36 25.06.2008 to 30.06.2008. He visited 6th Cross Junction of Bapuji Nagar, II Main road, verified with the public about the hymox light on the night of 27.06.2008 and public have not complained about the said light and he wrote letter to Investigating Officer as per Ex.P.8.
In the cross-examination by advocate for accused Nos.1 and 2, he has denied the suggestion that he did not went to the spot and verified the light. He has also denied the suggestion that there was no illumination of light to the place of incident. He has further denied the suggestion that he prepared the report Ex.P-8 in his office without visiting the spot.
It is true, the above mentioned eye-witnesses have deposed that in the street light they have seen the assailants. If it is accepted, and according to the eye- witnesses, if it was clearly visible about the incident and assailants in the said street light, then there could not be any confusion in the mind of the eye-witnesses regarding the exact number of the assailants, who were present at 37 the spot surrounding the deceased and which assailant assaulted the deceased with which weapon. In this regard, we have already observed above in detail the oral evidence of all the four eye-witnesses and there is no worth believable material placed on record to accept the testimony of the said witnesses. Therefore, only on the basis of existence of the street light, it cannot be said that the prosecution has established the case to the satisfaction of this Court that P.Ws.1, 7, 9 and 13 are really the eye- witnesses and they have witnessed the incident, unless and until, it is established with acceptable evidence.
17. We have perused the medical evidence.
K.V.Satish, the doctor, who conducted the post mortem examination over the dead body of the deceased Chandrashekar, has been examined as P.W.2; looking to his evidence, he has mentioned that totally there are 16 external injuries over the body of the deceased and all the injuries are ante mortem in nature and has opined that the cause of death was due to shock and hemorrhage as a 38 result of multiple chop injuries sustained and he has issued P.M. report as per Ex.P-3. He has also deposed that the Police Inspector of Byatarayanapura Police Station also sent requisition Ex.P-4 on 25.08.2008 along with six (6) sealed articles duly sealed as forensic laboratory and he examined those articles and gave his opinion as per Ex.P-5.
In the cross-examination of this witness, nothing has been elicited so as to disbelieve his version.
Though the Trial Court has not framed the specific point for consideration as to whether the death of deceased Chandrashekar is homicidal or not, but perusing the oral evidence of the doctor (P.W.2) and the reports of the doctor i.e., Exs.P-3 and P-5, it is clear that the death of the deceased Chandrashekar is the homicidal death.
18. The case of the prosecution is that accused Nos.1 to 3 gave the voluntary statement as per Exs.P-21, P-22 and P-23, respectively, and led the Police to the place, which is an open area and from the bushes accused 39 Nos.1 to 3 took out the long choppers and produced before the Police and the Investigating Officer has seized the long choppers, which were blood stained and they were sent to FSL for examination and report, the FSL report is marked as Ex.P-24. We have perused the seizure mahazar Ex.P-16 regarding the seizure of the long choppers said to be seized at the instance of accused Nos.1 to 3. It is no doubt true, in the said mahazar at page No.3, it is mentioned at Sl.Nos.1 to 3 about the measurement and other details of each of the three long choppers and there were blood stains on the blade of the long choppers. We have also perused the oral evidence of P.W.20 Malathi D, Incharge Scientific Officer of FSL, who deposed in her evidence that on 29.07.2008 Byatarayanapura Police sent 11 articles to their laboratory for examination and report pertaining to crime No.280/2008 the seals found on the articles tallied with sample seal by the Investigating Officer, all the 11 articles opened in the laboratory and examined and she has issued the certificate as per Ex.P-24. 40
In the cross examination, P.W.20 denied the suggestion that in the absence of blood, the group cannot be determined on the stains found in the articles and denied the further suggestion that the production of blood is very necessary. She has not specifically mentioned on which part, the blood stains found in article Nos.6 to 8.
We have also perused the document FSL Report (Ex.P.24). The articles sent are at item Nos.1 to 11 as mentioned in the said report. It is no doubt true that looking to the result of the analysis, item Nos.1 and 2 to 11 are stained with blood. In the opinion column, it is mentioned at Sl. No.1 that the presence of blood was detected in article Nos.1, 3 to 11. At Sl. No.2, it is also mentioned that the gel diffusion tests have indicated that the origin of the blood stains in item Nos.1, 3 to 11 are of human origin. At Sl. No.3, it is mentioned that the items 3, 4, 5, 9, 10 and 11 are stained with 'AB' blood group determined by adopting absorption and elution. At Sl. No.4, which is important for our discussion so far as item 41 Nos.6 to 8 (long choppers) are concerned, It is mentioned that the blood grouping of the blood stains in item Nos.1, 6 7 and 8 could not be determined as the results of the tests were inconclusive. We will mention here itself that when the prosecution fails to produce the evidence which is creditworthy, in that case, burden on the prosecution to establish with satisfactory material even about the blood groupings on item Nos.6 to 8 i.e., long choppers.
In this connection, we have examined the oral evidence of P.W.15 Anand, who deposed in his oral evidence that he knows accused No.1 present before the Court, but does not know accused Nos.2 and 3; he cannot identify accused No.3 if shown to him. He has further deposed that on 30.06.2008 Police brought accused No.1 and two others to Vinayaka Layout near vacant site situated by the side of the apartment and Police called him to the spot stating that accused No.1 and two others are going to produce the weapons and asked him to act as panch witness. He has further deposed that accused No.1 42 and two others produced three iron long choppers before the Police, Police have seized the said long choppers with white cloth under the mahazar in his presence. Said mahazar is marked as Ex.P-16 and his signature is P.16(a). During his deposition he has identified three long choppers M.Os.1 to 3.
In the cross-examination, he has deposed that accused No.1, Ashok and Sunil took out M.Os.1 to 3 from vacant site and produced before the Police. He has not seen, who has picked up MOs.1 to 3. He has denied the suggestion that he was not present in the spot on that day and Police have not brought accused Nos.1 to 3 to the said place and not seized M.Os.1 to 3 under the mahzar Ex.P-
16.
19. The FSL report (Ex.P-24) discloses that totally 11 articles were sent for examination and report and the result of analysis shows that except item No.2 i.e., cement concrete pieces all other items were stained with human blood.
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It is also mentioned that item Nos.3, 4, 5, 9, 10 and 11 are stained with 'AB' group blood. The blood grouping of the blood stains in items 1, 6, 7 and 8 (long choppers) could not be determined as the results of the test were inconclusive. This shows that the blood grouping of the blood stains on the long choppers were not ascertained by the FSL that they are also 'AB' group because of the inconclusiveness of the test.
20. We have perused the evidence of other witnesses i.e., P.Ws.4 and 5, who are the Police Constables, who have participated in the investigation at different levels. P.W.6 Thangappa is Electrical Worker, and P.W.8 Sandeep; both of them turned hostile and not supported the case of the prosecution. P.W.10 Nagendra Prasad is the panch witness for Ex.P.11 for recovery of motorcycle at the instance of accused No.3. P.W.11 is the PSI, who deposed about the apprehension of accused Nos.1 to 5 on 29.06.2008 and submitting his report as per 44 Ex.P-12. He has also deposed that he apprehended accused No.7 on 02.07.2008 and submitted his report as per Ex.P-13. P.W.12 is the Head Constable, who deposed about apprehending accused No.6 along with Kinetic Honda vehicle and submission of his report as per Ex.P-14.
21. Regarding the oral evidence of P.Ws.1, 7, 9 and 13, we have already observed above that the evidence of these witnesses is self-contradictory, inconsistent with each other and is not cogent and worth believable. The evidence of the eye-witnesses will not inspire confidence of the Court that they have really witnessed the incident. Since, the versions of the eye-witnesses is disbelieved by the Court, the FSL report Ex.P-24 will not be of any help to the prosecution case in establishing the charges leveled against the accused persons as the blood groupings on three long choppers were inconclusive.
It has come in the evidence of the family members of deceased Chandrashekar, that deceased was doing the 45 cable operating business and he had given cable connection for about 500 people in the area of Bapuji Nagar; he was in politics so also in the sports activities, he was a member of Youth Congress and Rakshana Vedike, he was also a president of Ayyappa swamy temple, he was also a social worker and he was preparing to contest for elections to post of Corporator from congress party. It has also come on record that deceased Chandrashekar was possessing a licenced gun and he used to carry the gun wherever he used to go. Therefore, considering these materials on record and as suggested by the defence during the course of cross-examination that deceased was having number of enemies, the possibility of such persons having rivalry with the deceased causing his death also cannot be completely ruled out.
Even the "motive" suggested by the prosecution through the evidence of prosecution witnesses is also not consistent. According to P.W.1 Venkatesh there was a tussle between Chandrashekar and one Punith, and the 46 deceased Chandrashekar asked Punith not to become President of Kannada Flag Hoisting Committee and due to that, said Punith (not an accused) went away saying that he will look after deceased Chandrashekar; P.W.1 complainant has also deposed that he was present in the spot when Punith warned his brother. But according to P.W.2 Mangala Rani, she came to know later that accused persons killed her husband in respect of Sandeep's matter; the other witnesses i.e., P.Ws.9 and 13 have deposed that they don't know the reason as to why accused committed the murder of deceased Chandrashekar. Therefore, even with regard to the motive also there is no consistency in the case made out by the prosecution.
22. Considering the oral as well as documentary evidence and in view of our above discussion, we are of the clear view that the Trial Court has rightly came to the conclusion that prosecution has not proved its case beyond all reasonable doubt.
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We find that, the view taken by the Trial Court is one of the possible views. We do not find any illegality in the view taken by the Trial Court. The view taken by the Trial Court after due appreciation of materials placed on record cannot be said to be perverse or capricious. There are no good grounds for this Court to interfere into the judgment and order of acquittal passed by the Trial Court. Accordingly, the appeal fails and it is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE bkp/BSR