Bangalore District Court
The State Of Karnataka vs Roopam Bora on 28 December, 2022
1
S.C.NO.908/2013
KABC010300052013
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-56)
: Present :
SRI. SHRIRAM NARAYAN HEGDE,
B.A, LL.M.
LV Addl. City Civil & Sessions Judge,
Bengaluru
S.C.No.908/ 2013
DATED: THIS THE 28TH DAY OF DECEMBER 2022
COMPLAINANT THE STATE OF KARNATAKA
THROUGH INSPECTOR OF POLICE,
MAHADEVAPURA POLICE STATION,
BENGALURU.
(BY PUBLIC PROSECUTOR)
Versus
ACCUSED 1. ROOPAM BORA
S/O BHOPA RAM BORA,
AGED ABOUT 24 YEARS,
RESIDING AT NOPUMAR VILLAGE,
KOMAMUNAR THANE, GULGAR
DISTRICT, ASSAM STATE.
2. SANJAY HARARIKA
S/O TARUN HAJARIKA
AGED ABOUT 21 YEARS,
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S.C.NO.908/2013
RESIDING AT BARAHI VILLAGE,
KOMAMANDA THANA, GULGHAT
DISTRICT, SALAKI HATH POST, OFFICE,
ASSAM STATE.
(Accused No.1 by Sri.L.M. Advocate,
Accused No.2 by Sri.K.B.K. Swamy,
Advocate)
JUDGMENT
1. Date of commission of 07.02.2013
Offence
2. Date of report of 08.02.2013
Occurrence
3. Date of commencement 07.10.2015
of evidence
4. Date of closing of 19.10.2022
Evidence
5. Name of the complainant Smt. Beverly D.Rozario
6. Offence complained of Sections 392, 302 r/w S.34 of
IPC
7. Date of arrest 09.02.2013
8. Date of release Accused are in JC from the
date of their arrest
9. Opinion of the Judge Offences are not proved
10. Duration: (from date of 09 years 10 months 21 days
commission of offence)
11. Order of sentence Accused No.1 and 2 are
acquitted.
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S.C.NO.908/2013
JUDGMENT
The Inspector of Police, Mahadevapura PS, has filed the charge sheet against the accused for the offences punishable u/Ss. 302, 392 r/w S.34 of IPC.
2. The case of the prosecution in brief is that, the accused No.1 and 2 are friends and residents of State of Assam. They were working in 'Best Securities Company' and they were attending their duties in 'Wind Mills of your Apartments", situated at EPIP Area in White Field, Bengaluru within the jurisdiction of Mahadevapura PS limits. The accused No.1 was serving his duty in the 3 rd Floor near Flat No.D-2033 which belongs to the deceased 'Dr.Amardeep Kainth'. The accused No.2 was doing his duty in the 13th floor of the same Apartment. That on 07.02.2013 at about 7-30 p.m. these accused with an intention to rob the cash and golden ornaments from the deceased in furtherance of their common intention, entered into the apartment and committed murder of Dr.Amar Deep Kainth and robbed Black Berry 4 S.C.NO.908/2013 mobile, cash of Rs.1,100/- and few credit cards and other cards and escaped from the spot. On the next day morning at about 7-55 a.m. the driver of the deceased by name Jude came to this apartment and rang the door bell and there was no response. Immediately, he informed the same to the complainant Smt.Beverly D'Rozario and she came to the apartment and she has informed the same to the apartment Engineer Sri.Puttanna and they have opened the door by using spare key which was with them and found the dead body of Dr. Amar Deep Kainth in a pool of blood. Immediately they have informed the same to the police. The police came with dog squad, finger print experts and on verification, they found that the security guards of the apartment were missing. Hence, by suspecting them the complainant has filed the complaint before the police. The Station House Officer received the complainant and registered a case in Cr.No.112/2013 and sent the FIR to the court Then he went to the spot, conducted the spot mahazar, recovered the material objects, recorded the statements of 5 S.C.NO.908/2013 witnesses and obtained the mobile number of the accused. On the basis of the mobile location, the Investigating Officer went to Howrah Railway Station and brought back the accused No.1 and 2 and recovered the robbed articles from their possession and after completing his investigation he submitted the charge sheet before the X-ACMM, Bengaluru for the aforesaid offences.
3. The accused No.1 and 2 were produced before the learned X-ACMM, Bengaluru on 10.02.2013 and they were given to police custody for a period of 8 days and subsequently, they are remanded to JC.
4. After receipt of the charge sheet the learned X- ACMM, Bengaluru took cognizance of the offences and registered a case in C.C.No.50207/2013 and secured the presence of the accused. Since the accused No.1 has not engaged an advocate to defend his case, he is provided with Legal-Aid counsel from DLSA, Bengaluru Urban. The 6 S.C.NO.908/2013 acused NO.2 engaged his own advocate. All the prosecution papers were made available to the accused as required u/S. 207 of Cr.P.C. Since the offence u/S. 302 of IPC is exclusively triable by the Court of Sessions, the learned 10th ACMM, Bengaluru by an order dated 06.06.2013 has committed this case to Hon'ble Principal City Civil and Sessions Judge, Bengaluru. Then this case is registered in S.C.No.908/2013 and made over to this court for trial in accordance with law. Then arguments were heard before framing charge and charges were framed for the offences punishable U/s. 302, 392 r/w S. 34 of IPC and read over and explained to the accused in the language known to them. The accused pleaded not guilty and claimed for trial. Then the case was posted for prosecution evidence.
5. In order to prove the guilt of the accused, the prosecution in all examined 26 witnesses as PW 1 to 26 and got marked 42 documents as Ex.P1 to P42 and 31 materials objects as MO 1 to 31. Then the statement of 7 S.C.NO.908/2013 the accused was recorded u/S. 313 of Cr.P.C. to enable them to answer the incriminating materials available against them in the evidence of the prosecution witnesses. The accused have denied all the incriminating materials and submitted that they have not committed any murder and on 08.02.2013 they were arrested in Bengaluru from their room and police have created a false story. They did not choose to lead defence evidence. Then the case was posted for arguments.
6. Heard arguments of learned Public Prosecutor and learned counsel for the accused and perused the citations relied upon by them.
7. Now the points for consideration are as follows.
1. Whether the prosecution proves beyond all reasonable doubt that, on 07.02.2013 at about 7- 30 p.m. within the jurisdiction of Mahadevapura PS, at 'Wind Mills of your Apartments' situated at EPIP Area of White Field, these accused No.1 and 2 in furtherance of their common intention to rob cash and golden ornaments entered the flat NO.D-2033 and committed murder of 'Dr. Amar Deep Kainth' by assaulting him with knife, wooden repiece etc. and thereby committed an offence punishable under under Section 302 r/w S. 34 of IPC?
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S.C.NO.908/2013
2. Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date, time and place in furtherance of their common intention accused No.1 and 2 committed robbery of Black Berry mobile phone, cash of Rs.1,100/-, credit cards etc. and thereby committed offence punishable under under Section 392 r/w Sec. 34 of IPC?
3. What order?
8. On the basis of the materials available on record, findings on the above points are as follows.
Point No.1 : In the NEGATIVE Point No.2 : In the NEGATIVE Point No.3 : As per final order, for the following.
REASONS
9. POINT NO.1 & 2: To avoid repetition in the discussion, I will consider these two points together at a time.
10. In order to prove the allegations against the accused, out of 52 witnesses cited in the charge sheet, the prosecution is able to examine 26 witnesses as PW 1 to 26. Now the prosecution is relying on the evidence of those witnesses and the documents which are marked as 9 S.C.NO.908/2013 Ex.P1 to P42 and the material objects which are marked as MO 1 to 31.
EVIDENCE OF THE PROSECUTION
11. The complainant who is Admin Head of 'Dr. Kainth & Associates' is examined as PW 1. The wife of the deceased by name Smt.Sigrid is examined as PW 2. Mahazar witnesses are examined as PWs 3 to 7. The persons who were working in the office of Dr. Amar Deep Kainth are examined as PW 8 to 10, 16 to 19 and 24. The house keeping staff of the apartment are examined as PW 11 and 14. The doctor who treated the accused No.1 in the Majestic on the date of incident is examined as PW 12. The vice-President of 'Total Environmental Project' is examined as PW 13. The Finger Print Experts are examined as PWs 20 and 21. The doctor who conducted the post-mortem of the deceased is examined as PW22. The Engineer who draw the sketch of the spot is examined as PW 23. The Investigation Officer is examined as PW26.
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S.C.NO.908/2013
12. PW1 - Beverley D'Rozario W/o Duglus Rozario, Administrative & Finance Chief of Law firm run by Dr.Amardeep Kainth stated before the court that on 08.02.2013 at about 7-45 a.m. she received a phone call from the driver of Dr. Amardeep Kainth who told that Dr. Amardeep Kainth is not opening the door of the house and not responding to the phone call. Hence, she went to the house of Dr.Amardeep with spare key which she had and tried to open the door along-with driver. Then Manager of the Apartment came there and he opened the door by using the same key. When they entered inside the house, they saw dead body of Dr.Amardeep Kainth, in a pool of blood. On the floor as well as on the walls of the hall there were blood stains. Then she immediately informed her husband who came and informed the police. At about 10-00 a.m. police came to the spot and inspected the spot and instructed her to give the complaint. Accordingly, she filed a complaint as per Ex.P1. Since this accused were absconding on that day she mentioned their names in the complaint as 11 S.C.NO.908/2013 suspects. Then the police drew the mahazar and recovered several material objects and enquired the persons gathered there. She further stated that after few days the police called her to PS and told to identify the accused. There she identified the accused who are before the court. In front of her, the accused told that for money they have committed the murder of Dr.Amardeep Kainth. She has identified her signatures which are on Ex.P1 and P2 and also the material objects which are marked as MO1 to 10.
13. In her cross examination she has stated that she do not know to read and write Kannada. She do not know the phone number of the car driver. She do not know from when the car driver was working with the deceased. She further stated that one more spare key was with the colleagues of the deceased. She has stated that she used to visit the house of the deceased often and often. She admits the suggestion that she had the right to open the door of the apartment even without the permission of 12 S.C.NO.908/2013 the deceased. She has admitted that she had one spare key of the house of the deceased. She has stated that deceased had his branch offices at Chennai, Mumbai, Gurgaon and Germany. She pleads her ignorance when it is suggested that Ram Singh was the security guard in the said apartment from night 8-00 p.m. to morning 8.30 a.m. She has admitted that she had not enquired any of the security guards relating to the death of the deceased. She admits that several persons were entering the house of the deceased for cleaning. She has admitted that as per the say of the police, she had mentioned the names of the accused in the complaint. She has admitted that she had no knowledge about missing of these accused on 08.02.2013. Finally, she has stated that she do not know whether these accused have committed the murder of the deceased or not. She has also admitted that before the registration of the FIR the police have inspected the spot and recovered the material objects. She has also admitted that she had not verified whether the valuables or amount were missing 13 S.C.NO.908/2013 in that apartment before she filed the complaint. She has further admitted that she had not seen these accused. She has also admitted that she was not present when the police recovered material objects from the accused. She has admitted that she believed the opinion of the police that these accused have committed the murder of the deceased.
14. PW 2 Smt.Sigrid w/o Dr. Amardeep Kainth in her evidence has stated about their family life and further stated that on 08.02.2013 when she was in Hamburg, Germany, she received phone call from CW1 Smt. Beverley relating to this incident and then on 10.02.2013 she came to Bengaluru and went to Bowring Hospital and identified the dead body of her husband and subsequently she came to know that security guards of the Apartment have murdered him. She has identified the Blackberry mobile phone shown to her and stated that it was belonged to her husband.
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S.C.NO.908/2013
15. In her cross examination she has stated about her family members and also relationship with the deceased. She has admitted that she believed the words of the police and now saying that her husband is murdered by the security guards. She has admitted that there is no special identification mark on MO 12 mobile phone to say that it belongs to her deceased husband.
16. PW 3 Sri.Kishore is a witness for Ex.P3 seizure mahazar. He has stated before the court that he do not know anything about this case. He has further sated that about 3 years back at Mahadevapura PS the police have shown mobile phone, battery, SIM and Railway tickets and took his signature on a paper. He identified the mobile phone, SIM card, Railway tickets before the court. But he has stated that he cannot identify the cash. In his cross examination he has stated that he is doing real estate business. He is working as Mediator in the business. He has admitted that often and often he is visiting the police station to resolve the real estate 15 S.C.NO.908/2013 disputes. He has admitted that the police are having his mobile number. He has also admitted that he do not know the companies of the mobile and SIM which are identified by him in the court. He has also stated that he do not know about the Railway tickets. He has further admitted that on the date of evidence itself he has seen the accused first time. He has admitted that he had not signed on the chit which are attached to the material objects. He has also admitted that except his signature on MO 3 he do not know anything about this case.
17. PW 4 M.K. Kaviraj is a witness for Ex.P4 Mahazar. IN his evidence he has stated that on 13.02.2013 he was called to Mahadevapura PS relating to murder case. In the PS accused were there. Then he has sated that the police took him and one Prasad and accused in their Jeep to Kundalahalli Gate at about 4-25 p.m. In that Furnace shop the police asked the owner of that shop whether this accused had purchased anything from the shop. At that time, owner of that Furnace shop told that this 16 S.C.NO.908/2013 accused had purchased one Knife about two days back. Near the Furnace shop there was a Circle and in that circle there was one shop and in that shop there was CCTV Camera. Then the police seized that CCTV camera through Ex.P4 Mahazar. He signed on the mahazar and he has identified CD which is marked as MO21.
18. In his cross examination PW 4 has admitted that not only in this case, in other cases also the police are calling him to the PS for mahazar. He has admitted that his hotel is situated in front of the PS. He has admitted that he do not know the contents of Ex.P4 mahazar. He has also admitted that mahazar was written in the PS itself. He has further admitted that he do not know the contents of CD which is marked as MO 21. He has stated that he do not know the name of that Furnace shop. He has also admitted that the police have took him to that Furnace shop. Finally, he has admitted that in the PS he signed on the record which are prepared by the police. 17
S.C.NO.908/2013
19. PW 5 Prasad is also witness for Ex.P4 mahazar. IN his evidence he has stated that about 3 years back he was called to Mahadevapura PS and from there the police took him to Kundalahalli Gate. Along with them this accused had also came to that place. The police asked the accused from where they purchased the knife. The accused have shown the shop. At that time the shop owner has shown CCTV camera. He told that these accused had purchased two knives by paying cash of Rs.200/-. Then the police seized CCTV camera. He has identified the CD which is marked as MO 21.
20. In his cross examination PW 5 has stated that he is doing work at Meru Cab, which is transporting passengers to Airport. He has admitted that his house is situated behind Mahadevapura PS. He has also admitted that he is very well acquainted with the police. He has also stated that the police are using his cabs for their travel. He has admitted that when he signed on Ex.P4 it was a blank paper. He has denied the 18 S.C.NO.908/2013 suggestion that to help the police, he is deposing falsely before the court. Finally this witness has stated that police had taken him to that shop.
21. PW6 - Munirajachari is also witness for Ex.P4 - Mahazar. In his evidence he has stated that he is working in Chowdeshwari Furnace shop from last 3 - 4 years, which is situated at Kundalahalli Gate. The name of his shop owner is Prakash. In that shop they are selling Crowbar, Shovel (Guddali) and vegetable knives and Garden Spade (Nursery knives) and they are having CCTV cameras in their shop. He has further stated that about 3 years back these accused had come to their shop and purchased two knives by paying cash of Rs.200/-. After one week the police had brought these accused to their shop and there the accused shown him. At that time he stated that they can verify the CCTV cameras. Then the police verified the CCTV cameras and seized the set-up box and CD which are marked as MO 21 and 22 and then he signed on Ex.P4 and MO 21 and 19 S.C.NO.908/2013
22. He has identified MO 2 and 3 knives. In his cross examination, he has stated that there is no vehicle parking place near his shop. They have not maintained any register in the shop. He has further stated that he do not know who are these accused. He had not seen this accused in his shop. He further stated that he do not know anything about this incident and deposed as per the instruction given by the police.
22. PW 7 Ambareesh is a witness for Ex.P5 seizure mahazar. He has stated that in the year 2013 Mahadevapura Police had called him to their PS for mahazar and hence, he had been to the PS. Relating to attendance register police drew the seizure mahazar as per Ex.P5 and took his signature. He has identified Attendance register which is marked as MO 23.
23. In his cross examination PW 7 has stated that notice was not given to him to attend the mahazar. The police had not called him to PS for mahazar. He is 20 S.C.NO.908/2013 supplying water cans and when he supplied water can,to the PS there the police took his signature on the mahazar. He do not know what has happened before his appearance in the PS. He has admitted that he do not know the contents of MO 23 book. He do not know the contents of Mahazar. Finally he has admitted that he do not know anything about this case, except his signature on the mahazar.
24. PW 8 Sri.Satish Sreenivasan was working in the Law Firm of the deceased. In his evidence he has stated that in the Law firm of the deceased around 20 advocates and 10 staff were working. The deceased had his office at New Delhi, Mumbai, Chennai and even in abroad. He has further stated that prior to 3 days of death of the deceased he had been to apartment of the deceased and when he was discussing with the deceased he had observed that the deceased had blackberry mobile as well as I-phone. He identified the blackberry mobile which is marked as MO 12 and stated that it was the 21 S.C.NO.908/2013 mobile of the deceased. In his cross examination several questions were put to him relating to office work as well as family relationship of the deceased. He has admitted that the husband of the complainant by name Duglus Rozario was also participating in the business of the firm of the deceased. He has admitted that the complainant had one spare key with her. He has stated that he is also having one spare key. He pleads his ignorance relating to the security guards of the apartment . But he has stated that on 5th February he had seen the 1st accused near the apartment.
25. PW 9 Pushparaju who was working under the deceased has deposed in his evidence that in the year 2013 he was working in the office of the deceased as Assistant. The deceased was staying alone in the apartment. In the office of the deceased there were 15 advocates and staff. He was bringing the dinner to the apartment of the deceased in the evening. On 07.02.2013 at about 6 or 6-15 p.m. he had been to the 22 S.C.NO.908/2013 apartment of the deceased by taking diner and during that time the accused No.1 was security guard of that apartment. After dinner of the deceased he washed the utensils and came out of the apartment at 6-45 p.m. During that time, the accused No.1 and another person were there. He was hiding himself. This witness further stated that on the next day morning when he came to his office at about 10-00 a.m. he came to know that the deceased was murdered in his apartment in the previous night.
26. In his cross examination, PW 9 has stated that in the apartment there was one more spare key. The owner of the apartment had one key. In the main door of that building there were 6 security guards. They will mention the names of the persons who are entering into the apartment and who are going out of the apartment.
27. PW 10 Jude is the driver of the deceased. In his evidence he has stated that in the year 2013 one day at about 6-45 a.m. he had been to the apartment of the 23 S.C.NO.908/2013 deceased and when he pressed the calling bell there was no response from inside. He waited for half an hour. Then he informed the same to Cw 1. After 15 minutes she came to the apartment. Then the Manager of the apartment opened the door by using the spare key which was with him. When he entered inside the apartment he saw the dead body of the deceased in a pool of blood. Then he has identified the blackberry mobile which is marked ass MO 2 and stated that it was the mobile of the deceased. In his cross examination he has stated that since the police told that these accused have committed murder of the deceased, he believed that these accused are the murderers. He has further stated that, in that morning at about 6-30 a.m. he had telephoned to the deceased, but there was no response and the mobile was ringing. Finally, he has admitted that during that period several persons were using this type of blackberry mobile.
28. PW 11 Bheemanna is a House Keeping staff of the 24 S.C.NO.908/2013 deceased. According to him from last 10 year he was working in the company of the deceased and on 07.02.2013 the deceased was murdered in his apartment. He has stated that he had been to the apartment and there he saw the dead body. There was head injury as well as injury on the stomach of the deceased. In his cross examination, he has admitted that only in the PS he had seen these accused. He has further stated that since the police are saying that these accused are the murderers he believed the same. He has also admitted that during that time, several people were using this type of blackberry mobile.
29. PW12 Dr.M.Surendra, who treated the accused No.1 in his clinic situated at Majestic stated before the court that on 07.02.2013 accused No.1 had come to his clinic for his treatment relating to injury on his right hand. On 18.02.2013 Mahadevapura police came along with accused NO.1 and enquired him relating to the treatment taken by the accused. Since he has not deposed in 25 S.C.NO.908/2013 accordance with 161 statement, he is treated as hostile witness. In his cross examination by the learned Public Prosecutor he has admitted that accused No.2 paid Rs.100/- to him. Further he has stated that he had not given statement before the police as per Ex.P6. In his cross examination by the learned counsel for the accused No.1 he has stated that he do not remember where exactly the injury was on the right hand of the accused. Finally, he has stated that he cannot properly identify the accused No.1 before the court.
30. PW 13 Puttanna, the Vice President of 'Total Environmental Project' deposed before this court that on 08.02.2013 he received phone call from CW 1 that the deceased is not picking up his mobile and also not opening the door. Then he went to the apartment at about 8-45 a.m. and during that time, CW 1 was trying to open the door with a spare key which was with her. Then he called carpenter and he came and opened the door. Then CW 1 and the driver went inside the house 26 S.C.NO.908/2013 and came out with screaming. Then he called Mahadevapura Police. Along with police he went inside the house and saw the dead body of the deceased in a pool of blood. By the side of the dead body there was a bronze idol. During that time these accused were not in the apartment. They were absconded. Then on 18.02.2013 he went to PS and there he saw these accused in the police custody. He has further stated that by using knives, wooden pieces, bronze idol this murder is committed. Then he identified the accused before the court.
31. In his cross examination he has stated that, carpenter by name Prayag opened the door. He further stated that now he do not remember the mobile number of carpenter. He has further stated that in that flat there were two entrances and two exists. It was duplex. Inside the apartment there was a way to go to first floor. He has further stated that one spare key was with CW 1, but from that key CW 1 not opened the door. He has further 27 S.C.NO.908/2013 admitted that he do not know whether these accused have committed murder or not. He has believed the version of the police that these accused have committed murder of the deceased. He has further admitted that, at the time of incident, renovation work of the apartment was going on. Several other workers were also working in the apartment from 9-00 a.m. to 6-00 p.m. In the corridor of the apartment of the deceased the painter and carpenters were also working. He has further stated that since the construction work was not completed, they had not fixed the CCTV. He has admitted that he had not identified the mobile phone of the deceased on the basis of any code number. He admits that during that period several persons were using this type of mobiles.
32. When PW 13 is cross examined by the learned counsel for the accused NO.2 he has stated that around 200 workers were working in this apartment complex. They were taking the attendance of all the workers. He do not know how many security guards were working in 28 S.C.NO.908/2013 that apartment.
33. PW 14 Sanjay D'Souza, House keeping staff has deposed that on 08.03.2013 at about 11-30 a.m. he came to know that Dr. Amardeep Kainth is murdered in the apartment. Since he has not deposed before the court as per 161 statement he is treated as hostile witness. In his cross examination by the learned Public Prosecutor he has stated that he has forgotten the date of incident. He has admitted that he identified the accused in the police station. He has admitted that when he visited the apartment, the police instructed not to go out of this place immediately. He further admitted that the police informed him to depose before the court as per his 161 statement. He has also admitted that he came to know from the police that these accused are the murderers.
34. PW 15 Duglus D'Rozario, husband of the complainant, stated in his evidence that on 07.02.2013 29 S.C.NO.908/2013 the driver of the deceased telephoned to his wife by stating that the deceased is not opening the door. Then his wife went to that apartment and subsequently she informed that Dr. Kainth is died. Then he went to that apartment and found that Dr. Kainth is murdered. In that place there was bronze idol and Pawn which is used for cooking. Then the police came to the spot and conducted investigation. Then he stated that after 3 days he went to the police Station and identified the blackberry mobile of the deceased, which is marked as MO12. IN his cross examination, PW 15 has admitted that he cannot identify the accused. He has also stated that he cannot identify the blackberry mobile phone.
35. PW 16 Smt.Madumitha Tallur, PW 17 - Caroline Maria, PW 18 - Nupur, PW 19 - Sandya Susan Bhaskar were the staff working under Dr.Amardeep Kainth. All of them have stated before the court that on 08.02.2013 they came to know that Dr. Kainth is murdered. They have admitted that they do not know who committed 30 S.C.NO.908/2013 murder. In their chief examination they have stated that Dr. Kainth was using MO12 blackberry mobile. In their cross examination they have admitted that they do not know whether this mobile belong to Dr.Kainth or not.
36. PW 20 H.M.Raghu, Police Inspector, Finger Print Expert, deposed before the court that on 08.02.2013 he received a requisition from the police control room and visited the spot at about 12-00 noon and upto 2 'O'Clock they have checked the spot, took photographs which are marked as Ex.P8 to 17 and verified 16 articles. In one wooden almirah they found a chance finger print which is marked by them with letter 'A'. In his cross examination, he has stated that when accused were arrested the finger print of the accused sent to their office and on comparison it is revealed that the said finger print tallied with the thumb impression of accused No.2. He has admitted that they could not able to take any finger print from the bronze idol and other murder weapons. According to him out of 16 items they could 31 S.C.NO.908/2013 able to get a single chance finger print from the wooden almirah. In his cross examination by learned counsel for the accused he has admitted that sample finger print of the accused No.2 was not taken in his presence. He admits that he had not signed the spot mahazar. He has also admitted that prior to their arrival to the scene of occurrence the police had already entered the room.
37. PW 21 Ankegowda, retired Dy.S.P. stated before the court that on 08.02.2013 he had been to the scene of occurrence along with CW 39 and 40 and searched for chance finger prints. Out of 16 items they could able to get only one chance finger print on wooden almirah. They took it to their office and verified it with their finger print database of all the criminals, but it didn't match and hence, they have preserved the finger print. On 10.02.2013 they got sample finger prints from the PS and on comparison sample finger print lifted by them was tallying with the finger print of accused No.2. In his cross examination he has admitted that he was present 32 S.C.NO.908/2013 inside the Court Hall when the evidence of CW 39 was recorded. He has admitted that they have not issued any endorsement for having collected the chance finger print to the IO in the spot. He has admitted that they have not annexed xerox copies of the chance finger print and also finger prints sent by the police. He has admitted that they searched for finger prints on the door handles also. But they could not get the useful finger prints.
38. PW 22 Dr.Suresh who conducted the PM of the deceased has stated before the court that as per the request of the police on 10.02.2013 he had conducted post-mortem of the deceased Dr.Amardeep Kainth who was aged about 53 years and gave report as per Ex.P19. Then on 16.03.2013 he gave opinion as per Ex.P20 after seeing the weapon seized in this case. In his cross examination several questions were put to him relating to the injuries and the weapons. According to the doctor, the injuries were fresh in nature and they were ante- 33
S.C.NO.908/2013 mortem injuries.
39. PW23 Vijaykumar T. Junior Engineer of BBMP has stated before the court relating to Ex.P21 sketch. According to him on 20.03.2013 as per the request of the IO he had been to the scene of occurrence and prepared sketch. In his cross examination he has admitted that he has not mentioned the directions East to West and North to South in his sketch. He has also admitted that he has not furnished the measurement of the room or the flat in the sketch.
40. PW 24 Sagar is an Advocate who worked with the deceased. According to him on 04.02.2013 he had met the deceased in his apartment relating to one case and when he came out of the apartment he had seen this accused No.1 in that flat. He further stated that on 08.02.2013 after hearing the message of the murder of the deceased he had been to the apartment and saw the dead body of the deceased in a pool of blood. He further stated that the deceased was using MO12 blackberry 34 S.C.NO.908/2013 mobile. In his cross examination he has stated that the deceased was using the blackberry mobile and hence, MO 12 may be the same mobile.
41. PW 25 Chandrashekar, Assistant Director, Biology Department, RFSL who collected the blood and hair samples in the spot stated before the court that on 08.02.2013 as per the instruction of the IO he visited the scene of occurrence and collected the samples which are marked as MO 25 to 29. In his cross examination, he has admitted that he had not signed on the mahazar. He admits that on the covers containing MO25 to 29, his signature is not there. He further admitted that he cannot say, whose blood samples and hairs were collected on the spot.
42. PW26 Nagaraj K.S., the Investigating Officer of this case is an important witness. In his evidence he has stated that from 25.07.2011 to 30.09.2013 he was working as PI of Mahadevapura PS. On 08.02.2013 CW 1 35 S.C.NO.908/2013 came to the PS and gave written complaint as per Ex.P1 and accordingly, he registered a case in Cr.No.112/2013 and sent the FIR to the court and then went to the spot and conducted the spot mahazar in front of the Mahazar witnesses as per Ex.P2 between 12-00 noon to 2-00 pm and seized 17 items. He visited the spot by informing the higher officers and also intimated to send Dog Squad, FSL and Finger Print Experts to the spot. They came to the spot. The Finger Print Team started to collect the finger print and afterwards he conducted the mahazar in that place in the presence of CW 3 and 4. Then he conducted inquest in the spot as per Ex.P22 in presence of CW 13 to 15. He has recorded statement of CW 21 and 24. He got photographs taken from the spot, which are marked as Ex.P8 to 17. After post-mortem he had handed over the dead body to the relatives of the deceased. Then he recorded statement of CW3, 4 and 37 and further the statement of CW1. On 09.02.2013 he deputed himself and CW 45 to 47 for search of the accused. They found that the accused were going to 36 S.C.NO.908/2013 Tripura to their native place. Himself and CW 45 to 47 went to Calcutta in a flight and taken the accused into custody at Howrah junction at about 3-00 p.m. on 09.02.2013. Then came to the PS at about 9-00 p.m. Then on the basis of the voluntary statement of the accused he seized mobile phone, SIM, cash of Rs.320/- along with Samsung mobile which is belonged to the accused. He has also seized one receipt issued by the Railway Department relating to penalty paid by the accused. Then he drew seizure mahazar as per Ex.P3 and then produced the accused before the Magistrate on 10.02.2013. then he deposed relating to seizure mahazar and recovery of CD and DVR from Furnace shop. He further stated that, he recorded the statement of all the witnesses and after completing his investigation submitted charge sheet before the court.
43. In his cross examination, he has stated that he is having 28 years of experience. According to him murder took place between 7-00 p.m. and 7-30 p.m., on 37 S.C.NO.908/2013 07.02.2013. The complaint is registered in the PS at 11- 00 a.m. on 08.02.2013. After registration of the FIR he visited the spot and conducted investigation. The security guards were missing. In the complaint itself names of the accused were mentioned and hence, he continued his investigation against this accused. He has stated that he obtained the mobile number and address of the accused from the office and on the basis of mobile location, he found that the accused are in Calcutta. He has admitted that he has not collected the call details of the deceased from the service provider. He has admitted that he has not produced any documents to show that he obtained location of the accused. According to him he had been to Calcutta along with one Rakshim Gogoi. He admitted that the deceased Dr. Amardeep Khanith had his office at Germany, Delhi and Bengaluru. He admits that he had not enquired the clients of the deceased. He had not made any investigation to find out any enmity was there between the deceased and his clients. He admits that he had not 38 S.C.NO.908/2013 conducted any investigation relating to National and International financial transactions which the deceased had. He denied the suggestion that he went to Furnace shop along with accused and Video recorded and created the CD, DVR to suit his claim. He admits that he has not seized the visitors book maintained in the gate of the apartment. He has also admitted that he had not conducted any investigation about the persons who visited the apartment on 07.02.2013. He has denied the suggestion that he only stated the name of the accused to the witnesses and got the statement as per his will. He has stated that he had not taken any help from Howrah police at the time of arrest of the accused at Howrah Railway Station. He admits that he had not obtained any transit remand from Howrah Court. He has stated that he had called the Dog Squad to the scene of occurrence and the Dogs went upto the entrance of the apartment and then they have not moved. He has stated that he has not asked the doctor about the time of the death of the deceased. He admits that he had not 39 S.C.NO.908/2013 taken blood sample of the accused No.1. He admits that he has not obtained mobile identity number of the deceased from the service provider. He admits that he had not sent the mobile to the finger print experts. He has denied the suggestion that this mobile was not belonged to the deceased. He was questioned, as to why he had not sent the blackberry mobile to FSL for analysis. He simply stated that he had not sent. He has admitted that he has not sent any items recovered from the accused for FSL report. He admits that the date mentioned in Ex.P3 mahazar is overwritten. He has admitted that he has not taken CCTV footage at Howrah Railway Station. He denied the suggestion that without making any investigation he has fixed these accused without any evidence.
44. When PW 26 is cross examined by the learned counsel for the accused No.2 he has stated that he has not made any enquiry relating to spare keys of this apartment. He admits that this apartment is a luxurious 40 S.C.NO.908/2013 apartment having 13 floors and strong door locks were fixed to the apartment. A person inside can see the outsiders through a small window available in the door. There was a safety lock for the front door from inside. He admits that he had not contacted the manufacturers of door lock to know how many spare keys were provided to the customers. He admits that in that apartment 46 house keeping staff are working. He pleads his ignorance relating to spare keys. He further stated that finger print experts have taken finger print from all the sides including the outer door. He has stated that he has not enquired the person who supplied the dinner before the death of the deceased. He has stated that he has not made any enquiry by taking customer application form of the mobile of accused No.1 and 2. He admits that it is possible to find out the location of the persons on the basis of income and outgoing call details. He admits that it is an important evidence in this case. He admits that along with charge sheet he has not furnished the call details and location of the accused. He 41 S.C.NO.908/2013 has stated that in Howrah Railway Station he has not seized any luggage bag from the accused. He admits that in MO 20 Rs.250/- is mentioned as luggage freight charges. He admits that he has not taken any reply by writing letter to Railway Department whether this train is going to Howrah junction or not. He admits that Howrah junction is a very big junction which is having CCTV facilities. According to him the police department had borne the expenses of flight charges to go to Howrah and to come back. He admits that name of Veeresh Hiremath of 'Total Environmental' is mentioned in the Air Tickets. He admits that he has not produced any documents to show that flight charges are borne by the police department. He denied the suggestion that on the pressure of Builder he hurriedly completed the investigation and submitted false charge sheet by fixing these accused in this case. He further admitted that in all the Railway Stations CCTV camera is fixed and that can be verified. He has also admitted that he had not verified any CCTV camera in the nearby Railway Stations. 42
S.C.NO.908/2013 He has further denied all other suggestions put to him, at the time of cross examination. He has stated that he had no problem to send the DVR, CCTV camera to FSL. He admitted that he has not furnished 65(B) certificate relating to downloading of photos. He admits that in the Mahazar it is not stated that in the Furnace shop there was CCTV facilities.
ARGUMENTS OF PROSECUTION
45. At the time of his arguments, the learned Public Prosecutor has vehemently contended that even though this case is based on circumstantial evidence, all the circumstances are pointing towards the guilt of the accused and are proved beyond all reasonable doubt. These accused No.1 and 2 belonged to same village in the State of Assam and they are friends. CW 16 Rakshim Gogoi provided the work of security guards to the accused. Everyday the accused had to sign on the attendance register maintained in the apartment. That attendance register is seized and it is marked as MO 23. 43
S.C.NO.908/2013 On 07.02.2013 morning the accused had signed in the attendance register, but in the evening they have not signed on it. At about 6-45 p.m. on of 07.02.2013 PW 9 Pushparaj had seen these accused near the apartment of the deceased. Hence, last seen theory is proved. These accused had taken treatment in the clinic at Majestic from PW 12 - Dr.Surendra. In the incident, the accused No.1 had sustained injuries on his right hand. Subsequently, on the basis of the mobile location these accused were brought from Howrah Railway junction and from their possession blackberry mobile of the deceased, cash and SIM card are seized through mahazar. The mahazar witnesses have supported the case. ON the basis of their voluntary statement, the CCTV footage is recovered from Chowdeshwari Furnace shop. That CCTV footage clearly reveals that on 05.02.2013, these accused persons had purchased two knives by paying cash of Rs.200/-. The complainant, wife of the deceased and other staff of the deceased have identified the blackberry mobile. One finger print lifted from the 44 S.C.NO.908/2013 house of the deceased is tallied with the finger print of the accused No.2. There is no dispute about the death of the deceased. It is not in dispute that the deceased is murdered in the night of 07.02.2013. It is not in dispute that these accused were working as security guards in that apartment. Since the deceased was going and coming in a luxury Benz car these acused thought that he is very rich person and to make wrongful gain they have murdered the deceased. The motive, preparation and conduct are all proved through the evidence of the witnesses. Hence, prayed to convict the accused for the alleged offences. In support of his arguments, the learned Public Prosecutor has relied upon the following reported judgments.
1. 2018 CRL.L.J. (NOC) 477 (MAD)
2. 2017 (1) SUPREME 43.
3. 1996 (2) SCC 676
4. 2007 (1) CRIMES (SC) 262 45 S.C.NO.908/2013 ARGUMENTS OF THE LEARNED COUNSEL FOR ACCUSED NO.1.
46. In his oral arguments as well as in his written arguments, the learned counsel for the accused NO.1 has vehemently contended that the blackberry mobile of the deceased is not identified by the witnesses on the basis of the IMEI number or by way of SIM Card or call list. No finger prints were lifted or verified on the so called murder weapon. The correct time of death of the deceased is not revealed in this case.
47. PW 9 is the last person who saw the deceased alive and hence, last seen theory applies to PW 9 and not these accused. There is no primary evidence to connect the accused with the crime. The so called arrest of the accused from Howrah Railway Station is not proved. The CCTV footage of the so called arrest is not recovered. The transit remand order from the jurisdictional Magistrate, at Howrah is not obtained. The Air Ticket is booked by the Builder and the IO has falsely stated that amount is paid by the Government. There is a remark of Jet Airways 46 S.C.NO.908/2013 at page No.77 as 'FAKE NAME SUSPECT, PLEASE CHECK', which raises doubt as to who travelled in the flight. The builder might have influenced the IO for quick disposal of the case, since a murder in the apartment would reduces his chance of selling balance flats in that building. The attendance register of the visitors of the apartment is a relevant document and it is not seized by the IO. The Flat of the deceased had two entrance and exits and also window is having sliding glasses. The killers could have entered from the window or exit door on the first floor. Several workers were working in that apartment. The IO has made only cursory investigation for name sake and had decide that these accused persons were guilty based on few statements. PW 3 and 4 are stock witnesses. In the FIR only S.302 of IPC is mentioned and subsequently, in the charge sheet S.392 of IPC is also mentioned for creating motive for the crime. The clothes of the deceased are not seized and not sent to FSL. The IO not seized the blood stained clothes of the accused. Relating to Electronic evidence, the IO has not furnished 65(B) 47 S.C.NO.908/2013 certificate. In their 313 statement, the accused have submitted that they have neither committed the said crime nor they have arrested from Howrah Railway junction. By using police camera in Furnace shop CCTV footage is created b the IO. The DVR itself is concocted. For CD there is no 65(B) certificate. No evidence has been produced by the prosecution that the deceased had only Rs.1,100/- + Mobile + Credit Cards. The Credit Cards purportedly stolen have not been submitted before the court. Hence, the learned counsel for the accused No.1 has contended that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. There are other chances for commission of the murder of the deceased. If the IO had collected the call details of mobile of the accused, deceased, complainant and PW 13, the real fact would have been revealed. Without establishing the time of death the prosecution cannot prove the last seen theory. Hence, prayed to acquit the accused. In support of his arguments, he has relied upon the following reported judgments.
48
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1. 2022 (4) AKR 197.
2. AIR 2022 SC 4810
3. AIR 2022 SC 4397
4. 2022 LIVE LAW (SC) 461 ARGUMENTS OF LEARNED COUNSEL FOR THE ACCUSED No.2.
48. At the time of his arguments, the learned counsel for the accused No.2 has vehemently contended that there are four spare keys to the apartment of the deceased. Purposely the IO has not conducted any investigation about these keys. There was no reason for PW 1 to mention in her complaint that these accused are suspects, because she had not acquainted with them. Only at the instigation of the IO these accused are mentioned as suspects in the complaint. On 07.02.2013 Ram Singh was the security guard in the night shifts. He is not examined before the court. He has not signed on the attendance register in the morning of 08.02.2013. The complainant has completely misled the IO. Even though she had spare keys of the apartment when she 49 S.C.NO.908/2013 received a phone call from the driver, she made a panic call to PW 13 Puttanna. The call details of the complainant, accused and the deceased were the important piece of evidence in this case. Those evidence are suppressed by the prosecution. Hence, u/S. 114(g) of the Indian Evidence Act, an adverse inference is to be taken against the prosecution. Mere abscondance cannot be the ground to fix these accused. Naturally, a human conduct is there from absconding from the scene of offence. The complainant has sated before the court that, as per instruction of the IO she mentioned in the complaint that these accused are suspects. To save some one the IO has fixed these accused in this case. Why the builder has booked the flight ticket to the IO is not explained in this case. There is no document to show that the flight charges are paid by the Government. Absolutely there is no reason to say that the accused No.1 and 2 are absconding on 08.02.2013. There is no 'Best Security Agency' in Bengaluru. Dr.Surendra could not identify the accused before the court. Blackberry is 50 S.C.NO.908/2013 an advance mobile and if it was sent to FSL and its call details were secured the real fact would have been revealed. The IMEI number of the mobile is a unique number and on that basis only the mobile can be identified and not from the colour. The IO has not seized the blood stained clothes of the accused. The IO has not followed the procedure of search and seizure. The seizure mahazar itself is in dispute. The Test Identification Parade is not conducted. Section 65(B) certificate is not produced. The finger print should be collected by the Experts and not by the police. Who collected the finger print of the accused is not revealed. The progress of the investigation is not mentioned in the further remand application. What was the nexus between the accused No.1 and 2 is not revealed. The visitors book of the apartment is not seized. The IO has not obtained transit warrant from the local Magistrate at Calcutta. The IO never went to Calcutta and these accused are arrested in Bengaluru itself. The IO has not collected the CCTV footage at Majestic Railway Station or any nearby 51 S.C.NO.908/2013 Railway station. The prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. Hence, prayed to acquit the accused. In support of his contentions, the he has relied upon the following reported judgments.
1. (2015) 12 SCC 644
2. (2014) 12 SCC 133
3. (1973) 2 SCC 808
4. AIR 1974 SC 691 REPLY ARGUMENTS OF THE LEARNED PUBLIC PROSECUTOR
49. In his reply arguments, the learned Public Prosecutor has contended that the complainant as well as the wife of the deceased have identified the mobile of the deceased. Absolutely there is no material on record to show that the PW 3 and 4 are stock witnesses. The worker in the Furnace Shop has identified the knives. Since the DVR is produced there is no question of furnishing 65 (B) certificate. In the cross examination of prosecution witnesses no where it is suggested that 52 S.C.NO.908/2013 these accused have not committed murder of the deceased. The accused have taken keys along with them and they thrown it while they were going to Calcutta and hence, it is not seized. They do not know where exactly thrown the keys. It is an admitted fact that these accused were working in that apartment as security guards. There is no suggestion in the cross examination of the prosecution witnesses that some other persons have committed murder. There is no necessity to seize the visitors book maintained in the apartment. Even for Rs.2/- there will be murder in the society. The accused have committed the murder at 7-30 p.m.. For that there is no need of documentary evidence. In the year 2013 there was no concept of CCTV. Since the accused have thrown blood stained clothes while they were travelling in the train they are not seized. There is no necessity of test identification parade. Why they have absconded on 08.02.2013 is not explained by the accused. U/S. 106 of Indian Evidence Act, the burden is on them to explain that fact. If there is no explanation, it is an extra link to 53 S.C.NO.908/2013 the chain of circumstances. The incident had taken place inside the four walls. The finger print of accused No.2 is tallied. Hence, prayed to convict the accused for the alleged offences.
APPRECIATION OF EVIDENCE AND CONCLUSION
50. This case is entirely based on circumstantial evidence. How the prosecution has to furnish the evidence in these types of cases is explained in the judgments relied upon by the learned counsel for the accused No.1 and 2.
51. In the judgment reported in 2022 (4) AKR 197 (STATE OF KARNATAKA VS. GIRISH HONNAIAH), our Hon'ble High Court held as follows.
"When a case rests upon the circumstantial evidence, such evidence must satisfy three tests:
1) the circumstance from which an inference of guilt sought to be drawn, must be cogently and firmly established;
2) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused.54
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3) circumstances taken cumulatively should form the chain complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else."
52. In the judgment reported in AIR 2022 SC 4397 (RAJU ALIAS RAJENDRA PRASAD VS. STATE OF RAJASTHAN), the Hon'ble Supreme Court has held as follows.
"As held by this Court in a catena of decisions, in case of a circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
53. In the judgment reported in 2022 LIVE LAW (SC) 461 (RAVINDER SINGH @ KAKU VS. STATE OF PUNJAB), the Hon'ble Supreme Court held as under.
"Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with 55 S.C.NO.908/2013 the innocence of the accused. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances."
54. In the judgment reported in (2015) 12 SUPREME COURT CASES 644 (VIJAY SHANKAR VS. STATE OF HARYANA), the Hon'ble Supreme Court has held as follows.
"The normal principle is, that in a case based on circumstantial evidence, the circumstances, from which an inference of guilt is sought to be drawn, must be cogently and firmly established, that these circumstances should be of a definite tendency, unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete, that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
55. In the judgment reported in AIR 1974 SUPREME COURT 691 (NASEEM AHMED VS. DELHI ADMINISRATION), the Hon'ble Supreme Court has held as under.
"In a case of circumstantial evidence it is necessary to find whether the circumstances relied on are 56 S.C.NO.908/2013 capable of supporting the sole inference that the appellant is guilty of the crime charged."
56. Now, in the case in hand, to prove the guilty of the accused, the prosecution has to prove the following circumstances beyond reasonable doubt.
1. On 05.02.2013 the accused No.1 and 2 had purchased two knives (MO2 and 3) from 'Chamundeshwari Furnace shop'.
2. Last seen theory
3. The time of death of deceased Dr. Amardeep Kainth is 7-30 p.m. on 07.02.2013.
4. On 07.02.2013 at about 10-00 p.m. accused No.1 took treatment to the injuries sustained by him to his hand, in the clinic of PW 12 - Dr. Surendra.
5. On 09.02.2013 at 3-00 p.m. the accused were arrested by the Investigating Officer at Howrah Railway junction.
6. Recovery of blackberry mobile, SIM Card, two Railway tickets, two other mobiles, which are marked as MO 12, 16 to 20 from the possession of the accused.
7. The blackberry mobile and SIM card belonged to the deceased and two other mobiles are belonged to the accused.
57
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57. I order to prove the first circumstance, the prosecution is relying upon the evidence of PW 4 to 6 and the mahazar which is marked as Ex.P4 and CD marked as MO21. PW 4 M.K.Kaviraj in his chief examination has stated that on 13.02.2013 he was called by Mahadevapura Police to the PS relating to murder case and he was taken to 'Furnace shop' along with accused and one Prasad and there the police asked PW 6 whether these accused had purchased anything from their shop. At that time, he told that about 2 days back these accused had purchased one knife from him. Then the police have seized the CCTV camera which was fixed in another shop situated near the circle. In his cross examination he has stated that he do not know the owner of the CCTV camera and he do not know the owner of the shop in which CCTV was fixed. He has admitted that in other cases also the police are calling him to the PS and he used to attend the PS and he will be the witness. He further admitted that he signed on the mahazar in the PS. 58 S.C.NO.908/2013
58. The version of PW 5 is quiet different. According to him in the Furnace shop itself there was CCTV and person in the shop had told that these accused had purchased two knives from their shop by paying cash of Rs.200/-. In his cross examination he has admitted that his house is situated behind the PS and the police are using his Cabs on rent and in other cases also he is a witness. He has admitted that one police by name Sri.Dhananjaya took him near the Furnace shop. He has further admitted that when he signed on the mahazar it was blank sheet. He has also admitted that he do not know the contents of CD. He has specifically stated that the police took them to that shop.
59. PW 6 Munirajachari was the worker in that Furnace shop. According to him his owner's name is Prakash. According to him in that shop there was CCTV camera and police had seized them. In his cross examination he has taken 'U' turn and stated that he deposed before the 59 S.C.NO.908/2013 court as per the instruction of the police. He has specifically stated that he do not know anything about the case. Hence, on the evidence of PW 4 to 6 it reveals that PW 4 and 5 are the stock witnesses and PW 6 do not know anything about this case. The owner of the Furnace shop is not cited as witness. The learned counsel for the accused No.1 and 2 have contended that 65(B) certificate is not produced by the IO and there is no material to show that DVR and CD are not manipulated. In their 313 statement the accused have stated that after their arrest they were taken to one shop and there the police have videographed their action.
60. The learned counsel for the accused No.1 has also contended that since the owner of the DVR is not made a party to this case and these DVR and CD cannot be considered in this case. In this regard, he has relied upon the judgment of Hon'ble supreme Court reported in 2022 LIVELAW (SC) 461 (RAVINDER SINGH @ KAKU VS. STATE OF PUNJAB). In this case the Hon'ble Supreme 60 S.C.NO.908/2013 Court held as under.
"The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer"
happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4)."
61. In my opinion, the principles laid down above applies to the case in hand. The owner of the DVR is not made a witness and he has not been examined before the court. Non-examination of owner of DVR is fatal to the case of the prosecution. One more argument of the learned counsel for the accused No.1 is that since it is videographed the accused were seeing the CCTV and also showing the knife to the CCTV. Otherwise, normally the murderer will not show knife to CCTV. Considering the facts and circumstances of this case and also video 61 S.C.NO.908/2013 recording, in my opinion, the arguments of the learned counsel for the accused No.1 cannot be ruled out. The evidence of PW 4 to 6 not inspires the confidence of this court about seizure of DVR and CD in accordance with law. There evidence is not reliable and not credible. The IO has not sent this DVR to the FSL to prove that there was no tampering and the contents are not edited. Hence, I hold that the prosecution has failed to prove the first circumstance.
62. The learned Public Prosecutor has contented that from the evidence of PW9 - Pushparaj, the prosecution has proved the last seen theory. In support of his contention he has relied upon the aforesaid judgments. Among them in the judgment reported in 2018 CRL.L.J. (NOC) 477 ( STATE VS. KAMARAJ), the Hon'ble High Court of Madras has held as under.
"Evidence of a witnesses revealing that accused persons found near house at time of incident - Fingerprints collected from house matching with that of accused - Sister of deceased identifying jewellery recovered at instance of accused persons
- Homicidal death proved by post-mortem report - Conviction proper."62
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63. In my opinion, in the case in hand, the fact is totally different. In the aforesaid case, the murder was committed between 3-15 and 3-30 pm. in the afternoon and after the incident one of the injured came out of that house and entered neighboring house and informed about the incident. In that case, the time of death was proved. Prior to that incident, the accused were found near the place of occurrence and they had met PW 18 and 20. But in the case in hand, there is no evidence about the time of death. Since the accused had not signed on the attendance register at 8-00 p.m. on 07.02.2013 the prosecution is contending that the time of death is 7-30 p.m. In this regard, the evidence of the doctor is important. But the doctor who conducted the post-mortem has not stated anything about the time of death. Without proof of time of death, it is not possible to say that PW 9 Pushparaj is the person who saw the accused near the apartment before the death of the deceased. On going through the attendance register it reveals that one Ram Singh was the security guard of 63 S.C.NO.908/2013 that apartment in the night of 07.2.2013. He had also not signed the register in the morning of 08.02.2013. Further it reveals that Ram Singh had worked even in the night shift of 06.02.2013, day shift of 07.02.2013 and also night shift of 07.02.2013. Why he was entrusted the duty for about 36 hours without even a break is not explained. Under such circumstances, doubt arises relating to MO 23 attendance register book. Dr. Amardeep Kainth might have died during night hours. In this regard, the evidence of Ram Singh is very much important, but he is not examined before the court. Even MO23 attendance register is not seized on 08.02.2013.
64. The facts and circumstances of other three judgments relied upon by the learned Public Prosecutor are also totally different. In the second case, the accused had murdered his wife and on the date of incident they were residing in the same house and murder had taken place during night hours. In the third case referred above, the accused was convicted under 64 S.C.NO.908/2013 TADA Act and in that case also the facts are totally different. Even in the 4th judgment referred by the learned Public Prosecutor accused had killed his wife and daughters in the night hours when he was residing with them. There were other circumstances to prove the guilt of the accused. But in the case in hand, since the prosecution has not placed any materials before the court relating to time of death it is not possible to say that the last seen theory is proved. From the evidence of PW 9 - Pushparaj it reveals that on 07.02.2013 he had seen the accused near the apartment of the deceased. But that alone cannot be a ground to hold that the last seen theory is proved. In this regard, the call details of mobile of the deceased is very important. What was the last call made by the deceased is not revealed. Hence, it has to be held that the prosecution has failed to prove the last seen theory.
65. According to the prosecution, after the incident, the accused had been to Majestic and there they took 65 S.C.NO.908/2013 treatment from PW 12 - Dr. Surendra. No doubt, in his chief examination Dr. Surendra has supported the case of prosecution. He has partly turned hostile also. In his cross examination he has stated that he cannot say the part in which the accused No.1 sustained injuries. He has stated that he cannot say exactly whether the accused No.1 took treatment or not. In this regard, the IO has not collected any nearby CCTV footage. Hence, this circumstance is also not proved.
66. Even though the IO is contending that the time of death is 7-30 p.m. he has not produced any materials before the court. Admittedly, he has not asked the doctor about the time of death. Even the doctor has not stated about the time of death. PM is conducted after about 2 days of the incident. Hence, it has to be held that the prosecution has failed to prove the time of death.
67. The contention of the IO is that, on the basis of the 66 S.C.NO.908/2013 mobile location he went to Howrah Railway junction along with Rakshim Gogoi and brought the accused to Bengaluru. In this regard, he has produced flight tickets which are marked as Ex.P24 to P29. These flight tickets are not booked by the police department. On the other hand, these flight tickets are booked by one Sri.Veeresh Hiremath of 'Total Environmental Project'. In his cross examination the IO has stated that they have subsequently paid the amount to Veeresh Hiremath. Relating to this aspect, no material is produced. Apart from that in Ex.P29 document, there is a remark that 'FAKE NAME SUSPECT, PLEASE CHECK'. In Ex.P28 and P29 there is no details about the flight charges and from where the flight travelled. If really, the IO had been to Calcutta by flight he had to produce the boarding pass. Without boarding pass it is not possible to say that a person travelled in a flight. Anybody can book the flight ticket and subsequently, it may be cancelled or it may not be used. But, to show that a person travelled in the flight he has to produce the boarding pass. Apart from 67 S.C.NO.908/2013 that the IO has not placed any materials to show that the location of the accused is traced on the basis of their mobile location. He has not produced any documentary evidence. Rakshim Gogoi is an important witness to prove that the IO had been to Calcutta in a flight. Even after several opportunities he is not been examined before the court. Under such circumstances, doubt arises relating to the case of prosecution.
68. The prosecution has to prove the seizure mahazar which is marked as Ex.P3. To prove this mahazar prosecution is relying on the evidence of PW 3. In his evidence PW3 Kishore has stated that, about 3½ years back he was called to Mahadevarapura PS and there his signature was taken to Ex.P3 mahazar and the police have seized MO12 and 16 to 20. But in his cross examination he has admitted that he is doing real estate business and often and often he is going to PS to resolve the real estate dispute. He has admitted that in several cases also the police are calling him to the PS. He has 68 S.C.NO.908/2013 further admitted that he do not know what had happened in the PS before his arrival. He do not know about Railway tickets. He has admitted that he had not seen the accused before they were shown to him in the court. Finally, he has admitted that except his signature he do not know anything about this mahazar. Another witness of Ex.P3 mahazar is not examined before the court. Apart form that there is overwriting on the date mentioned in this mahazar. Hence, it has to be held that the prosecution has failed to prove the seizure mahazar Ex.P3.
69. The case of the prosecution is that blackberry mobile which is marked as MO12 belonged to the deceased. To prove this aspect, the prosecution examined around 12 witnesses. On the basis of the colour of the mobile they have stated that it is the mobile belonged to the deceased. In their cross examination, they have admitted that during those time several persons were using this type of mobile. In this regard, the learned counsel for the accused No.1 has 69 S.C.NO.908/2013 contended that on the basis of IMEI number the mobile has to be identified. But, in this case, the IO has not made any investigation about that mobile. In the railway tickers which are marked as MO19 and 20, there is mention about luggage charges. For whose luggage the penalty is imposed is not investigated by the Investigation Officer. In this ticket the name of the accused or the place of imposition of penalty is not mentioned. Except say of the Investigating Officer, there is no material on record to show that these accused were travelling in the railway from Bengaluru to Calcutta and in the middle of the way fine was imposed to them by the Railway Ticket Collector. The railway official, who imposed fine is not examined before the court. Hence, in my opinion, this circumstance is also not proved by the prosecution.
70. In his evidence, PW8 Satish Sreenivasan has stated that the deceased Dr. Amardeep Kainth had I-Phone also. But, there is no investigation about that I-Phone. MO 23 70 S.C.NO.908/2013 attendance register is not seized on 08.02.2013 or 10.02.2013. This attendance register book is seized after two months from the date of incident. In his cross examination, PW 7 Ambareesh has stated that he do not know why this book is seized. He do not know to whom this book belonged. He do not know the contents of this register. This also creates doubt relating to the case of prosecution.
71. On more contention of the prosecution is that one finger print taken out from the scene of occurrence tallies with the finger print of the accused No.2. PW 20 and 21 who are finger print experts have stated that on 08.02.2013 they have verified 16 articles and able to get only one finger print, that was found on the wooden almirah. As per Ex.P2 spot mahazar there is no mention about the existence of wooden almirah in the house of Dr.Kainth. PW 20 and 21 have not signed on the spot mahazar. Their name is also not mentioned. On the other hand, the name of the FSL expert, Chandrashekar is mentioned in the mahazar. That Chandrashekar is 71 S.C.NO.908/2013 examined as PW 25. According to him he had collected blood stains and hair samples from the scene of occurrence. He has also stated that he had not signed on the mahazar. In his cross examination, he has admitted that he cannot say whose blood samples and hairs were collected in the spot. Relating to this aspect the learned counsel for the accused No.2 has contended that finger print from the scene of occurrence is to be taken through a mahazar. Even the finger print of the accused is to be taken by the finger print expert only. In this regard, in the judgment relied upon by him which is reported in (2014) 12 SUPREME COURT CASES 133 (PRAKASH VS. STATE OF KARNATAKA), the Hon'ble Supreme Court has held as follows.
"If latent print are found on portable articles they should be seized under a detailed panchanama duly packed and labelled and sent to the Fingerprint Bureau with a police officer with instructions regarding the care of the package during the journey."
72. In the judgment reported in AIR 2022 SUPREME COURT 4810 (RAVI SHARMA VS. STATE (GOVERNMENT OF 72 S.C.NO.908/2013 NCT OF DELHI) AND ANOTHER), the Hon'ble Supreme Court has held as follows.
"The report of the Ballistic Expert is obviously a scientific evidence in the nature of an opinion. It is required to use this evidence along with the other substantive piece of evidence available."
73. In my opinion, the principles laid down in the aforesaid judgments are aptly apply to the case in hand. Relating to presence of finger print experts and wooden almirah in the house of Dr. Kainth, there is no mention in the spot mahazar. No finger prints are taken from the alleged weapons. Who has taken the finger print of the accused after their arrest is also not revealed by the Investigating Officer. Under such circumstances, the contention of the prosecution that the finger print obtained in the scene of offence tallies with the finger print of the accused is not acceptable one. All these aspects creates doubt relating to the guilt of the accused.
74. In his cross examination, the IO has unequivocally admitted the following.
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1. He had not collected the call details of mobile of the accused, deceased, complainant or PW 13.
2. Not produced the mobile location details of the accused before the court. He has not visited the office of Dr.Kainth in Delhi or Germany.
3. Not conducted any investigation to know whether there was ill-will between Dr. Kainth and his clients.
4. Not conducted any investigation about Dr.Kainth's national and international business financial matters.
5. Not seized the visitors diary of that apartment, which is a vital document.
6. Not sent DVR and CD to FSL to say that they are not edited or tampered.
7. Not obtained IMEI numbers of blackberry mobile and other two mobiles.
8. Not sent any items to the FSL, which were seized from the accused, for their analysis.
9. Not obtained CCTV footage at Majestic as well as Howrah Railway junction. He has admitted that the date of seizure mahazar is over written.
10. Admitted that not investigated about four spare keys of the apartment of the deceased Dr.Kainth.
11. Not obtained any call details of last seen persons.
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75. In this case, the call details of the accused, deceased, PW 1, PW 13 and 15 were very important piece of documents. But, they are not collected. Blood stained clothes of the accused are not seized. Under such circumstances, in my opinion the arguments of the learned counsel for accused No.1 and 2 is acceptable one. The chance of others committing murder of Dr. Kainth cannot be ruled out. When two views are possible the court has to accept the view which is favourable to the accused person. In this regard, the learned counsel for the accused No.2 has relied upon the judgment reported in (1973) 2 SUPREME COURT 808, (KALI RAM VS. STATE OF HIMACHAL PRADESH). In that judgment, the Hon'ble Supreme Court has held as follows.
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted."
76. Hence, I hold that the prosecution has failed to 75 S.C.NO.908/2013 prove the guilt of the accused beyond reasonable doubt. The prosecution has failed to place substantive or corroborative evidence before the court to hold that the accused are guilty of the alleged offences. It is settled position of law that any amount of suspicion would not take the place of proof. The prosecution has to travel a long distance between 'may be' and 'must be' in order to hold that the accused are guilty of the alleged offences. Hence, the aforesaid points are answered in the NEGATIVE.
77. POINT NO.3: For the reasons stated in the aforesaid paragraphs, I have come to the conclusion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt . Such being the case, the accused are entitle for an order of acquittal. But it is proved that Dr. Amardeep Kainth is murdered in the night hours of 07.02.2013. PW 2 Smt.Sigrid and her children are the victims of the offences. Hence, they are to be compensated suitably. Since the accused are to be 76 S.C.NO.908/2013 acquitted they cannot be directed to pay compensation. Under such circumstances, the State has to take responsibility of paying compensation. In terms of mandate under sub-Section (2) of S. 357(A) of Cr.P.C., this court can recommend DLSA, Bengaluru Urban to pay compensation. The DLSA shall determine the compensation payable to PW 2 - Smt.Sigrid and her children in terms of guidelines prescribed under the Karnataka Victims Compensation Scheme, 2011. Hence, the following order is passed.
ORDER Acting under Section 235 (1) of Cr.P.C. the accused No.1 and 2 are acquitted for the offences punishable u/Ss. 392 , 302 r/w S.34 of IPC.
The jail authorities are hereby directed to release the accused No.1 and 2, forthwith, if they are not required in any other case.
Issue intimation to the Jail Authority, accordingly. MO1 to 9, 11 to 30 being worthless, be destroyed after appeal period is over.
MO10 and 31 is hereby confiscated to State after appeal period is over.
77
S.C.NO.908/2013 It is hereby recommended the District Legal Services Authority, Bengaluru Urban shall pay suitable compensation to PW 2 - Smt.Sigrid and her children, who are victims of the offences, under the provisions of Karnataka Victims Compensations Scheme, 2011.
Office to send a copy of this judgment to DSLA, Bengaluru Urban for further needful action. [Dictated to the Judgment Writer, transcribed by him, transcription corrected and then pronounced by me in open court, dated this the 28th day of DECEMBER 2022] (SHRIRAM NAAYAN HEGDE) LV ADDL. CITY CIVIL & SESSIONS JUDGE, (CCH-56), BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:
PW1 Mr.Braverly D'Souza Rozario
PW2 Smt. Sigrid
PW3 Kishore
PW4 Kaviraj
PW5 Prasad
PW6 Muniraja chari
PW7 Ambareesh
PW8 Satish Srinivasan
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PW9 Pushpa Raj
PW10 Jude
PW11 Bheemanna
PW12 Dr.Surendra
PW13 Puttanna
PW14 Sanjay D'Souza
PW15 Duglas Rozario
PW16 Madhumitha Tallur
PW17 Smt.Carlin Maria
PW18 Nupur Kabra Mundra
PW19 Sandhya Susan Bhaskar
PW20 H.M.Raghu
PW21 Ankegowda
PW22 Dr.Suresh
PW23 Vijay Kumar T.
PW24 Sagar
PW25 Chandrashekar
PW26 Nagaraj K.S.
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P1 Complaint Ex.P2 Spot Mahazar Ex.P3 Seizure Mahazar Ex.P4 Seizure Mahazar Ex.P5 Seizure Mahazar Ex.P6 Statement of PW12 Ex.P7 Statement of CW33 Ex.P8to17 Photographs 79 S.C.NO.908/2013 Ex.P18 Report of PW 21 Ex.P19 PM Report Ex.P20 Opinion of PW22 Ex.P21 Sketch Ex.P22 Inquest Mahazar Ex.P23 FIR Ex.P24to26 Tickets of Flight Ex.P27to29 Flight tickets Ex.P30&31 Voluntary Statements. Ex.P32 PF No.19/2013 Ex.P33 Report Ex.P34 PF No.20/2013 Ex.P35 Three sheets of Photos Ex.P36 PF No.23/2013 Ex.P37 Acknowledgement. Ex.P38 PF No.63/2013 Ex.P39 PF NO.18/2013 Ex.P40 Registration certificate Ex.P41 Requisition to Medical Officer. Ex.P42 FSL Report.
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION:
MO1 Macchu
MO2 Knife
MO3 Knife (without handle)
MO4 Wooden piece
MO5to8 Wooden pieces
MO9 Spectacle
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MO10 Idol
MO11 Pan
MO12 Black berry mobile
MO13 Pair of chappal
MO14 One Kurta
MO15 Pyjama
MO16&17 Mobiles
MO18 SIM card
MO19&20 Train ticket
MO21 Compact Disk
MO22 CD Modem
MO23 Attendance register
MO24 Banian sleeveless
MO25 Blood stained cotton
MO26 Sample cotton
MO27 Blood stains collected in the room
MO28&29 Sample hairs
MO30 Plastic cover
MO31 Cashof Rs.320/-.
LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENCE:
NIL LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENCE:
NIL (SHRIRAM NARAYAN HEGDE) LV ADDL. CITY CIVIL & SESSIONS JUDGE, (CCH-56), BANGALORE.81
S.C.NO.908/2013 Judgment passed and pronounced in the open court. The operative portion of the order reads thus.
ORDER Acting under Section 235 (1) of Cr.P.C. the accused No.1 and 2 are acquitted for the offences punishable u/Ss. 392 , 302 r/w S.34 of IPC.
The jail authorities are hereby directed to release the accused No.1 and 2, forthwith, if they are not required in any other case.
Issue intimation to the Jail Authority, accordingly.
MO1 to 9, 11 to 30 being worthless, be destroyed after appeal period is over.
MO10 and 31 is hereby confiscated to State after appeal period is over.
It is hereby recommended the District Legal Services Authority, Bengaluru Urban shall pay suitable compensation to PW 2 - Smt.Sigrid and her children, who are victims of the offences, under the provisions of Karnataka Victims Compensations Scheme, 2011.
Office to send a copy of this judgment to DSLA, Bengaluru Urban for further needful action.
LV ACC&SJ, Bangalore (CCH-56)