Bangalore District Court
The State Of Karnataka vs Manjunath on 21 December, 2017
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
Dated this the 18th Day of December 2017
- : PRESENT: -
SMT. SUSHEELA B.A. LL.B.
L Additional City Civil & Sessions Judge,
Bangalore
SPECIAL C.C. No. 231/2015
COMPLAINANT:
The State of Karnataka,
By Chandra Layout Police Station,
Bangalore.
[Public Prosecutor-Bangalore]
/ VERSUS /
ACCUSED:
Manjunath
S/o G.Murthy, Aged 22 years,
R/at No.528, 10th C Cross,
Sanjeevini Nagar,
Moodalapalya,
Bangalore-72.
[By Sri.M.R.N.Advocate.]
1 Date of commission of offence 04-02-2015
2 Date of report of occurrence 05-02-2015
2 Spl.C.C.No.231/2015
3 Date of arrest of Accused 11-02-2015
Date of release of Accused
Date of arrest of Accused 02days, 10 months
Period undergone in custody & 2 years
by Accused
4 Date of commencement of evidence 05-01-2016
5 Date of closing of evidence 06-12-2017
6 Name of the complainant B.M.Ravikumar
7 Offences complained of Section 364, 302,
201 of IPC
8 Opinion of the Judge Accused is
convicted
9 Order of Sentence As per the final
order
JUDGMENT
This charge sheet filed by Police Inspector, Chandra Layout Police Station-Bengaluru against the accused for the offences punishable under Section 364, 302, 201 of I.P.C.
2. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
The accused is the resident of house bearing No.528, 'C' Cross, 10th Main of Sanjeevini Nagar in Chandra Layout, Bengaluru and the complainant-B.M.Ravi Kumar is the resident of house situated opposite to the house of accused bearing 3 Spl.C.C.No.231/2015 No.522/A, along with his wife-Cw.2-Premila and two sons, viz., deceased-Kiran Yadav and Tilak Yadav, deceased-Kiran Yadav was his eldest son. During the month of December-2014, Cw.2- Premila made complaint with the mother of the accused against him, for that the parents of accused and his other family members scolded him, as such the accused got angry with Cw.2-Premila, with an intention to take revenge against her, on 04-02-2015 he has decided to take away the son of Cw.2- Premila viz., Kiran Yadav, aged about 14 years some where, without the knowledge of anybody and to murder him. As a result he went to the shop of Cw.14-Prabhu Dev, purchased five super max shaving blades, kept them in his bike and at about 05.45 p.m., he went near Vishwa Bharathi School where Kiran Yadav used to get down from the school van, since he was used to board the school van there itself in the morning, waited there up to getting down of Kiran Yadav from the school van, talked with Kiran Yadav stating that his brother fell down on the ground and received injuries on his head, his family members taken him to the hospital and told him to accompany him to go to hospital. At that time Kiran Yadav was with school uniform 4 Spl.C.C.No.231/2015 and having school bag. The accused took the Kiran Yadav in a black motor bike bearing No.KA-02-HX-7901, towards Jnana Bharathi University Campus inside Sai Grounds, where the thick forest trees are grown with bushes, the accused with an intention to murder Kiran Yadav, closed the mouth of deceased-
Kiran Yadav through his hand, pushed him and got fell down on the ground, sat on him and taken one blade from his pocket and cut the neck of Kiran Yadav brutally, as a result Kiran Yadav received heavy bleeding injuries and died at the spot itself. After committing murder in order to conceal the same he threw the dead body towards bushes. On the basis of voluntary statement of accused, the complainant police registered case against accused for the offences punishable under Section 364, 302, 201 of IPC.
3. Earlier to that missing complaint of Kiran Yadav was lodged by his father-the complainant on 05-02-2015 at about 09.40 a.m., and the police registered the said complaint in Cr.No.50/2015 and the same was pending. During the course of investigation of tracing of deceased-Kiran Yadav and on the basis of credible information and on seeing the CCTV camera 5 Spl.C.C.No.231/2015 footages of a shop on 10-02-2015 where the accused had taken the deceased in a motor bike, as such he was arrested on the very same day at the time of enquiry he revealed about the murder of Kiran Yadav by him. On the basis of said voluntary statement, police inserted offences under section 364, 302 and 201 in Crime No.50/2015.
4. The Investigation Officer has investigated the same and filed charge sheet against accused for the offences punishable under Section 364, 302, 201 of IPC. Thereafter, after filing charge sheet, as the accused was in judicial custody, he was produced before 8th A.C.M.M., Court Bengaluru in C.C. No. 11819/2015. The said Court being committal Court furnished the copy of charge sheet to him as contemplated under Section 207 of Cr.P.C. Since the offences are triable by Court of Sessions, the committal Court passed an order for committing the case to the Hon'ble Principal City Civil and Sessions Judge, Bengaluru, for further proceedings. In turn the said case made over to this Court for further proceedings.
5. After receiving the record by this Court, as usual 6 Spl.C.C.No.231/2015 warrant was given to the jail authorities to produce the accused before the Court, on the basis of said information the jail authorities produced the accused before the Court and he is in judicial custody. Therafter the learned advocate for accused and the learned Public Prosecutor addressed their arguments before framing charge. On perusal of charge sheet, the learned predecessor in office framed charges against the accused in respect of section 364, 302 and 201 of IPC. The contents of the charge read over and explained to the accused in Kannada. The accused pleaded not guilty and submit crimes to be tried. Thereafter the case against accused was set down for prosecution evidence.
6. The prosecution in order to establish the guilt of the accused has examined in all 26 witnesses as Pw.1 to Pw.26, got marked 38 documents as Ex.P1 to Ex.P38 and also marked 20 material objects as MO1 to MO20 and closed its side evidence. In view of available incriminating evidence appeared against the accused, he was examined under Section 313 of Cr.P.C., by recording his statement. The accused denied the alleged incriminating evidence appeared against him. During the course 7 Spl.C.C.No.231/2015 of cross-examination of Pw.3, the accused got marked 14 documents Ex.D1 to Ex.D14, but no defense evidence is produced.
7. Thereafter arguments heard from both the sides. The learned Public Prosecutor relied on the decisions reported in (1) 2017 (2) Crimes Page 154 (SC) Para-86, 127, 136, (2) 2017 (2) SCC Page 372, (3) 2017 (3) SCC Page 881, (4) 2017 (3) SCC Page 343, (5) AIR 2003 SC Page 539, (6) 2003 Crl.L.J. Page 4782 (SCC), (7) 2008 (2) K.L.J. Page 624, (8) 2011 Crl.L.J. Page 663 (SC), (9) 2013 Crl.L.J. Page 56, (10) 1999 Crl.L.J. Page 2025, (11) 2002(1) SCC Page 622 and (12) 2012 Crl.J.J. Page 4657 SC and photos of scene of occurrence for reference. The learned counsel for the accused relied on the following decisions reported in (1) AIR 2015 SC Page 180, (2) 2015 Crl.L.J. Page 4776 (SC), (3) 2012 Crl.L.J. Page 2096 (SC), (4) 2000 Crl.L.J. Page 739 (SC), (5) AIR 2016 SC Page 2381, (6) 2003 Crl.L.J. Page 5054 (SC), (7) 2010 Crl.L.J Page 4 (CHG), (8) 2016 Crl.L.J. Page 1453 (Kar), (9) 2017 Crl.L.J. 2109, (10) 2015 (4) AKR Page 382 (SB), (11) 2005 Crl.L.J. Page 2565 (SC), (12) 2016 Crl.L.J.(NOC) Page 35 (BOM), (13) 2012 Crl.L.J. 1991 (SC), (14) 8 Spl.C.C.No.231/2015 2003 Crl.L.J. Page 2302 (SC), (15) 2016 (3) AKR 561, (16) 1996 Crl.L.J. page 506 (All), (17) 2017 Crl.L.J. Page 749 (SC), (18) AIR 2011 SC Page 2302, (19) 1999 Crl. L.J. Page 3698 (SC), (20) ILR 2016 Kar Page 2737, (21) 1971 SCC (Cri) page 684, (22) AIR 1974 SC 344 and (23) (1976) 1 SCC Page 542 and thereafter matter is set down for judgment.
8. Having regard to the facts, circumstances and arguments submitted by both the sides, the following points that arises for my consideration are as under:-
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9 Spl.C.C.No.231/2015
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4. AiÀiÁªÀ DzÉñÀ?
9. My findings on the above points are as under:-
Point No.1: In the Affirmative.
Point No.2: In the Affirmative.
Point No.3: In the Affirmative.
Point No.4: As per the final orders for the following:
REASONS
10. Point No.1 to 3:-As these points are interrelated 10 Spl.C.C.No.231/2015 one, hence, I have taken up together for my consideration in order to avoid repetition of reasoning.
11. Perused the entire record, charge sheet, evidence produced both at oral and documentary by the prosecution as well as by the accused, the relied on decisions and arguments canvassed by the learned advocate for the accused and the learned Public Prosecutor.
12. In order to prove the alleged offences against the accused the prosecution examined in all 26 witnesses as Pw.1 to Pw.26 got marked 38 documents as Ex.P1 to Ex.P38 and MO1 to MO20 with Ex.D1 to Ex.D14 and this Court perused the same.
13. As per the prosecution case, Pw.1 is the complainant and father of deceased-Kiran Yadav, Pw.2 is the car driver of the complainant, Pw.3 is the wife of the complainant and mother of deceased-Kiran Yadav, Pw.4- is the technician who had taken CCTV Camera footage to pen drive, Pw.5 is the owner of Sri. Lekha Enterprises, Pw.6 and Pw.7 are the panch witnesses, Pw.8 to Pw.15 and Pw.20 and Pw.23 are the 11 Spl.C.C.No.231/2015 circumstantial witnesses, Pw.16 is the doctor, Pw.17 to Pw.19, Pw.21, Pw.22 and Pw.24 are the police officers and police personnel, Pw.25 and Pw.26 are the scientific officers. Hence, this Court shall proceed to see whether the available evidence of said witnesses is sufficient for establishing the alleged offences against the accused.
14. In order to establish the alleged offences against accused the prosecution is required to prove that the accused is the resident of house bearing No.528, 'C' Cross, 10th Main of Sanjeevini Nagar in Chandra Layout, Bengaluru and the complainant-B.M.Ravi Kumar is the resident of house situated opposite to the house of accused bearing No.522/A, along with his wife-Cw.2-Premila and two sons, viz., deceased-Kiran Yadav and Tilak Yadav, deceased-Kiran Yadav was his eldest son. During the month of December-2014, Cw.2-Premila made complaint with the mother of the accused against him, for that the parents of accused and his other family members scolded him, as such the accused got angry with Cw.2-Premila, with an intention to take revenge against her, on 04-02-2015 he has decided to take away the son of Cw.2-Premila viz., Kiran Yadav, 12 Spl.C.C.No.231/2015 aged about 14 years some where, without the knowledge of anybody and to murder him. As a result he went to the shop of Cw.14-Prabhu Dev, purchased five super max shaving blades, kept them in his bike and at about 05.45 p.m., he went near Vishwa Bharathi School where Kiran Yadav used to get down from the school van, since he was used to board the school van there itself in the morning, waited there up to getting down of Kiran Yadav from the school van, talked with Kiran Yadav stating that his brother fell down on the ground and received injuries on his head, his family members taken him to the hospital and told him to accompany him to go to hospital. At that time Kiran Yadav was with school uniform and having school bag. The accused took the Kiran Yadav in a black motor bike bearing No.KA-02-HX-7901, towards Jnana Bharathi University Campus inside Sai Grounds, where the thick forest trees are grown with bushes, the accused with an intention to murder Kiran Yadav, closed the mouth of deceased-Kiran Yadav through his hand, pushed him and got fell down on the ground, sat on him and taken one blade from his pocket and cut the neck of Kiran Yadava brutally, as a result Kiran Yadav received 13 Spl.C.C.No.231/2015 heavy bleeding injuries and died at the spot itself. After committing murder in order to conceal the same he threw the dead body towards bushes and thereby committed offences punishable under section 364, 302, 201 of I.P.C. Hence, this Court shall proceed to see whether the prosecution has succeeded in establishing all the aforesaid ingredients of the alleged offences against the accused beyond all reasonable doubt.
15. Before venturing into scan the available material evidence on record, it is necessary to mention the very definition of offences under Section 364, 302 and 201 of IPC.
Section 364 of IPC defines that:
Kidnapping or abducting in order to murder-
Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with (imprisonment for life) or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 302 of IPC defines that:
Punishment for murder.-Whoever commits murder shall be punished with death, or (imprisonment for life) and shall also be liable to fine.14 Spl.C.C.No.231/2015
Section 201 of IPC defines that:
Causing disappearance of evidence of offence, or giving false information to screen offender.- Whoever knowing or having reason to believe, that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment or with that intention gives any information respecting the offence which he knows or believes to be false.
If a Capital offence.-Shall if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
If punishable with imprisonment for life.-And if the offence is punishable with (Imprisonment for life), or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
If punishable with less than ten years' imprisonment- And if the offence is punishable with imprisonment for any term not extending ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
With these observations now left with available material evidence produced by the prosecution to consider whether the prosecution proved the alleged offences against the accused beyond all reasonable doubt or not or the defense to probabalises the defense of the accused.15 Spl.C.C.No.231/2015
16. By going through the facts and circumstances and evidence available on record, it is just and proper to mention the common contentions of the prosecution with regard to the admitted facts between parties and also earlier to lodging of missing complaint. Now left with the available admitted facts between the complainant and the accused.
17. By going through the evidence of Pw.1 and Pw.3- B.M.Ravi Kumar and his wife-Premila, it is not in dispute that they are residents of House No.522/A, 'C' Cross road, 10th Main, Sanjeevini Nagar, Chandra Layout, Bengaluru. It is also not in dispute that the accused and his parents and other family members are residing at the opposite house situated in front of the house of complainant bearing No.528, 'C' Cross Road, 10th Main, Sanjeevini Nagar, Chandra Layout, Bengaluru. It is also not in dispute that the complainant is having two sons viz., Kiran Yadav and Tilak Yadav, Kiran Yadav is his eldest son, aged about 14 years at the time of his death, Tilak Yadav is the younger son of the complainant. It is also not in dispute that both of his sons are studying at Sri.Chaitanay Techo School at Mallatha Halli. The deceased-Kiran Yadav was studying in 8th 16 Spl.C.C.No.231/2015 Standard during the year 2015. It is also not in dispute that the deceased Kiran Yadav every day used to go to school in school van at about 07.45 a.m., and to return home in the evening at about 05.40 or 06.00 p.m. in the same school van and get down at the place in front of Vishwa Bharathi School, situated within five minutes walk from the house of the complainant.
18. Initially the complainant lodged complaint on 05-02- 2015 at about 09.40 a.m., stating that the deceased-Kiran Yadav went to school on 04-02-2015 as usual in the morning, but he didn't return home in the evening, and they waited up to 06.00 p.m., to 10.00 p.m. Coupled with above said admitted evidence, at the cross-examination the accused also elicited admitted fact of cordiality between the accused and his family members with complainant and his family members and the deceased boy and also though the complainant shown his ignorance, but the suggestion is very clear that whenever the time is available to the accused, he used to play Cricket and Badminton with the deceased boy Kiran Yadav. It is also an admitted fact that the deceased having habit of going to the 17 Spl.C.C.No.231/2015 house of accused and occasionally the deceased taken meals from the house of accused, even for some time he used to take tiffan from the house of accused to school when preparation of tiffian was late in his house. The above said suggestion also crystallizes the cordiality between the complainant's family and accused's family earlier to the alleged incident.
19. Further on perusal of evidence of Pw.3-Premila, the mother of the deceased, the accused tested her veracity and also elicited with regard to accused and his family known to her and having chit transactions with her by the accused's family. The above said facts and circumstances and evidence on record clinches the issue unequivocally points out that the accused and the deceased are not strangers, they are known persons, having cordiality and friendship between them. With these admitted facts, now left with the available material facts and circumstances in respect of lodging of missing complaint by the complainant as per Ex.P1.
20. By going through the evidence of Pw.1-B.M.Ravi Kumar, in his chief examination he has deposed that he has 18 Spl.C.C.No.231/2015 lodged complaint on 05-02-2015 at about 09.40 a.m, due to non-returning to home by his son-Kiran Yadav from 06.00 p.m., onwards, after closing of school and thinking that he might have gone along with his friends they waited up to 10.00 p.m., but he didn't return to home. He has also deposed that one Prema, resident of opposite house and tenant of father of accused told that his son was the pillion rider of black clour bike and the rider was wearing white helmet and the deceased after seeing said Prema told 'bye' and went as pillion rider in the said bike. She thought that the rider of said motor bike was known to him. This witness phoned to the driver of school van and ascertained that his son was dropped at about 05.55 pm., at the place where he was used to pick and drop. He has also affixed the photo of Kiran Yadav in the said complaint-Ex.P1 and his signature is Ex.P1(a). On perusal of Ex.P1, it is also clear that the contents of Ex.P1 corroborate the evidence of Pw.1 and the said complaint is purely a missing complaint and there is no allegation against anybody. This piece of documentary evidence discloses that at that time, the complainant was not having any revenge against anybody, only 19 Spl.C.C.No.231/2015 he has requested the police to trace out his missing son, since he has not come to the house and he was found missing.
21. On perusal of cross-examination of Pw.1 in respect of missing complaint the accused tested the veracity of evidence of this witness and elicited the admitted fact in respect of family members, where the house is situated of the complainant and accused and also tested the veracity whether he has ascertained from the Principal about the conduct of the missing boy or not and the complaint is not in his hand writing and he has no problem to lodge complaint on the night itself. But his answer is that he and his wife searched up to 12.00 hours in the night of their son and they were accompanied with 10 to 15 members for searching of the missing boy. It is also the suggestion that in the night the father of the accused and his family members also searched the missing boy up to 12.00 hours in the night, but he has not traced out. No doubt it is true, through this witness the accused elicited about the accused's father and his family members also searched for the missing boy along with the complainant, but at what time the accused accompanied with them for searching the missing boy is not elicited through this 20 Spl.C.C.No.231/2015 witness. When there is a drastic stand taken by the accused, it is his bounden duty to elicit through this witness that between 05.45 p.m., to 06.00 p.m., or up to 08.00 p.m., the accused was very much accompanied with the complainant to search the missing boy. Non-elicitation of specific stand of alleged time of searching by accused accompanying with the complainant is absolutely fatal to the defense taken by the accused herein.
22. By going through the evidence of Pw.3-Premila, the mother of deceased-Kiran Yadav, she has also deposed that on 04-02-2015 as usual the deceased-Kiran Yadav at about 07.45 a.m., went to the school wearing white colour uniform with maroon colour blazer and he has boarded the school van in front of Vishwa Bharathi School and normally he used to get down from the van at the same place itself at about 05.45 p.m., since her house is situated nearby the said school having five minutes walk. On that day the deceased-Kiran Yadav not return to home up to 06.00 p.m. After that she has telephoned to the van driver and he informed that the deceased was dropped near Vishwa Bharathi School. As a result she was afraid and enquired with the friends of the deceased, but no 21 Spl.C.C.No.231/2015 such answer received by her about the availability of the deceased-Kiran Yadav. She has searched the deceased along with her husband at the house of friends of the deceased and also relatives up to 10/11.00 p.m. Thereafter on the next day her husband lodged missing complaint. After 2 days of lodging of missing complaint the tenant of accused-Prema told that the deceased-Kiran Yadav was taken by accused in his bike. The said information was given to the police by her, the police called upon the accused and enquired the same, but he has denied the same and he has told that he has seen the deceased about two days back.
23. This witness was also cross-examined by the accused by testing her veracity. Except eliciting her conduct with regard to chit transactions, nothing has been tested her veracity with regard to the missing of deceased-Kiran Yadav on 04-02-2015. She was also elicited with regard to, on that day nearly 25 to 30 persons searched the deceased-Kiran Yadav, but she cannot remember the names of those persons since she was not in a mood to ascertain the names of said persons. 22 Spl.C.C.No.231/2015
24. Now left with the evidence produced by the prosecution in respect of deceased-Kiran Yadav attended the school on 04-02-2015 by boarding the school van at about 07.45 a.m, and not return to home from the school. In order to establish the said fact and circumstances, the prosecution produced the evidence of Pw.11-Umesh.M.L., the driver of school van of Sri.Chaithanya Techno School. He has deposed that he is working in that school as school van driver since more than 2½ years. At the time of pick up and drop of the students who board to his van, one Ayya used to attend said student. Normally every day the school starts at 08.30 a.m., and ends at 05.00 p.m. Every day he used to do his work for three times. He used to pick up the students from 07.00 a.m., to 08.30 a.m. and take them to school and in the evening he is going to drop the students up to 05.45 p.m., from 05.00 p.m. He was allotted duty at Papareddy Palya, Bandemaramma Temple and Malagala, nearly 12 Kms. Every day he used to take 22 students in his van. He does not know the facts and circumstances of this case. Every day he used to take the deceased-Kiran Yadav and his brother-Tilak Yadav to school 23 Spl.C.C.No.231/2015 and in the evening since the Tilak Yadav was studying in 4th standard, he return to home at about 03.00 p.m., and this witness used drop Kiran Yadav at about 05.45 p.m., since the point at Vishwa Bharathi school is the last point to him. On that day he has dropped Kiran Yadav at about 06.10 or 06.15 p.m. He is aged about 12 or 13 years. On that day in the evening at about 06.30 or 06.45 p.m., the mother of deceased called him over phone stating that her son not return to home, but he has answered that he has dropped the deceased-Kiran Yadav at about 06.10 or 06.15 p.m. If this piece of evidence is taken into consideration, there is minor discrepancy in respect of timing of dropping of deceased-Kiran Yadav, but on that day the deceased-Kiran Yadav has attended the school and he returned from the school in the school van to his house is believed to be true. Further he has deposed that on the next day Kiran Yadav not boarded the bus and after 5-6 days, he came to know through TV channel news that the incident was taken place and Kiran Yadav was dead and his dead body was lying in Bangalore University forest area. He has identified MO13- Idenity card of Kiran Yadav, MO8-belt issued by school 24 Spl.C.C.No.231/2015 authority, but he has not identified MO2-school uniform since it was with mud stains, dust and also blood stains.
25. The prosecution treated this witness to some extent as hostile to the prosecution case and elicited in respect of this witness used to pick up Kiran Yadav and Tilak Yadav both in the morning every day and Tilak Yadav who was studying in 4th standard return to house at about 03.30 p.m., and he was brought by Route No.2 driver-Lokesh and cleaner-Ganesh. This witness in the evening dropped Kiran Yadav at about 05.45 p.m. p.m., on 04-02-2015. This piece of evidence is very clear that he has taken both Kiran Yadav and Tilak Yadav at 07.45 a.m., and dropped Kiran Yadav at about 05.45 p.m. He denied of giving statement as per Ex.P12.
26. The accused tested the veracity of evidence of this witness by eliciting some commission and omission and also elicited the job of Ayya to pick up the children to the bus and drop the children from the bus and it is not his job. He was also tested his veracity with regard to the points where he used to pick and drop the children. He has also shown his ignorance 25 Spl.C.C.No.231/2015 about identity of the children who board the school van and get down from the school van. He has also shown his ignorance about MO8-Belt pertains to his school only through the emblem affixed to the belt. He has also clearly admitted that where ever he drops the children the parents or their relatives take the children to their home. Here it is relevant to note that the deceased-Kiran Yadav is not a child and he is aged about 14 years, hence question of considering his parents used to board him to school van and taking him to the home doesn't arises. Viewing from available material evidence through this witness, this Court feels to observe that, in respect of boarding of school van and attended the school and get down from school van on 04-02-2015 by the deceased-Kiran Yadav is believable one. No doubt in the cross-examination the accused tested his veracity, but nothing has been elicited to disbelieve that on that day the deceased-Kiran Yadav not boarded the school van, not attended the school and not return to home in the said school van.
27. By going through the evidence of Pw.13-Manjushree
-the Ayya of Sri.Chaitanya Techno School, she has deposed that her job is to pick up the children to the school van and drop the 26 Spl.C.C.No.231/2015 children wherever the point is fixed by the school authority. Normally she used to pick up the school children at about 07.00 a.m., and drop the school children up to 05.45 p.m., after closing of school hours. She made known about missing of Kiran Yadav on the next day of his missing and the said fact was told to her by the van driver and supervisor. She cannot remember the date, but about 2½ years back Kiran Yadav boarded the bus near Vishwa Bharathi School and after closing of school he was dropped near the said school. She cannot remember what dress was worn by him on that day, but he has worn the school uniform. After one week of missing of said child she came to know that he was murdered in vacant yard at Bangalore University.
28. The accused tested her veracity by eliciting some commssion and omission and also elicited that she doesn't know the names of all the children and she cannot remember their identity. She has also admitted that normally the relative of the children come near the stop, where the children were dropped and take them to their house. Further she has admitted that she doesn't personally know whether Kiran Yadav 27 Spl.C.C.No.231/2015 on that day came to the school or not. She has not given any statement before the police. She knows the facts through the driver-Umesh and she doesn't know the facts personally. At this stage, this Court feels to observe that no doubt it is true, through the evidence of this witness the accused elicited the alleged fact that on that day the deceased-Kiran Yadav not attended the school, but no such supporting documents like attendance register extract placed by the accused to believe that on that day the deceased has not attended the school, not boarded the school van to go to school and not dropped by the school van at about 05.45 p.m.
29. By going through the evidence of Pw.14- T.V.N.Kishore-The Academic Dean of Sri.Chaitanya Tecno School, he has deposed that on 12-02-2015 the police came near the school and enquired about Kiran Yadav and given requisition as per Ex.P15 and his signature is Ex.P15(a). He has also deposed that the school starts from 08.30 a.m., and ends at 05.00 p.m. He has also deposed that in order to pick up and drop the children school van facility is also made available. He has also given information as per Ex.P16 and his signature 28 Spl.C.C.No.231/2015 is Ex.P16(a). On perusal of Ex.P16 it discloses that deceased- Kiran Yadav was the student of said school having I.D. No.SCS 307092 and he used to come to school in school van, the pick up and drop timings is 07.50 a.m., and 05.45 p.m., he was coming by vehicle bearing No.KA-53-B-4944 of Route No.3 and the driver was M.L.Umesh and Ayya is Manjushree. Here on perusal of identity card of the deceased it was signed by this witness, the 5th column- SCS 307092 tallies with each other. He has also identified MO13-I.D.proof, MO8-red coloured belt, MO3-school; bag, MO7-Tie, MO8-Socks, MO2-Shirt and MO4- Pant and also lab manual and one folder file as per MO16 to MO18. He has also deposed that on 04-02-2015 at about 07.30 or 08.00 p.m., the parent of Kiran Yadav telephoned to him to enquire about non-returning of Kiran Yadav from the school, for that he has collected the information from the transport-in- charge and answered that there is no problem in dropping of the child and the child was dropped at the place where he was usually dropped. The above said evidence crystallizes that the material objects seized on the body of deceased and near the dead body pertains to Kiran Yadav. Through this witness it is 29 Spl.C.C.No.231/2015 clear that on that day Kiran Yadav attended the school and he was dropped at Vishwa Bharathi School.
30. In the cross-examination the accused tested his veracity in respect of Ex.P16 is not in his hand-writing and he cannot say who has written the contents of Ex.P16. He has not produced the attendance register or its extract to show that deceased-Kiran Yadav has attended the school on that day and also he cannot say about MO2 and MO4 not pertains to white colour. At the same time he has deposed that MO2 and MO4 having stains and dirty, as such he is unable to say the colour of the clothes as white colour. Here it is relevant to note that the incident was taken place on 04-02-2015, the day was Wednesday. It is undisputed that on Wednesdays the school children wearing white colour uniforms to the school. The body was traced after lapse of six days on the voluntary statement of the accused, he himself took the police near the dead body, as such it is quite natural that white colour becoming colour less due to natural calamity and decoy of the dead body. At this stage this court feels to observe that in the cross-examination there is some minor discrepancies elicited through this witness, 30 Spl.C.C.No.231/2015 but it is not safe to disbelieve that on that day the deceased- Kiran Yadav has not attended the school, not boarded the school van and not get down from the school van at a particular point and at particular time. Viewing from available material evidence through Pw.11, Pw.13 and Pw.14 this Court has no impediment to accept that on 04-02-2015 the deceased-Kiran Yadav attended the school and he has boarded the school van at about 07.45 a.m., in the morning and got down from the school van at about 05.45 p.m., near Vishwa Bharathi School.
31. Now left with the available material evidence placed on record with regard to missing boy traced out as dead body and in order to trace out the dead body of missing boy, what steps the police have taken and to establish the same whether the prosecution produced corroborative, cogent, oral and documentary testimony or the defense of the accused probablises to believe he is an innocent have to be looked into.
32. By going through the evidence of Pw.21-C. Ravi Kumar-P.S.I. of Chandra Layout Police Station, he has deposed that on 05-02-2015 at about 09.45 a.m., the complainant-Ravi 31 Spl.C.C.No.231/2015 Kumar came and lodged complaint as per Ex.P1 and he has received the said complaint, registered the case in Crime No. 50/2015 and his signature is Ex.P1(b). He has also prepared FIR as per Ex.P24 and his signature is Ex.P24(a). Further he has entrusted the work of searching the missing boy to his police personnels-P.C.7054-Kaza Ajmeer and P.C.13020, on that day they have made attempt to search, but no such credible information received of whereabout of missing boy and thereafter they have continued the search from 05-02-2015. On 10-02-2015 at about 08.00 a.m., again he has entrusted the work of tracing the missing boy to Cw.21 and Cw.22 and he went to attend the Bandobasth duty at Freedom Park at about 09.00 a.m. After completion of Bandobasth duty he return to the station at about 05.00 p.m., at that time the complainant also came to the station to know about his son's whereabout. When they were in discussion as to how to work for tracing the missing boy, at that time Cw.21-Manjuanth Vaddar called this witness over phone and asked him to come urgently near Sri.Lekha Enterprises, Cement and Iron shop, Chalukaya Nagar, Nagarabhavi, Bengaluru and also requested to come with 32 Spl.C.C.No.231/2015 the complainant immediately. Thereafter this witness along with complainant went to the said shop, where Cw.21 and Cw.22 were waiting for this witness, when this witness along with the complainant reched the said shop they told in CCTV camera a scenary of a child as pillion rider in a motor bike is recorded. On hearing the said words, this witness also with the permission of the owner of the said shop opened the recorded scenary from 06.00 p.m., to 06.07.42 hours of dated 04-02- 2015 and came to know that the accused had taken the deceased-Kiran Yadav in the motor bike. The complainant also identified the pillion rider of said bike was his son and the rider of said bike was the accused. The said bike was moving from Moodalapalya towards Nagarabhavi Circle and the pillion rider boy was wearing school uniform and was also having school bag on his back. On seeing the said scenary this witness also come to conclusion that the said boy was the son of the complainant, since he has received identification information about him. Immediately he went near the house of the accused along with Cw.21 and Cw.22 and was observing secretly about the accused near his house. At about 09.00 p.m., the accused came to his 33 Spl.C.C.No.231/2015 house, immediately he has taken the accused to his custody at about 09.15 p.m., and brought him to the station. In the police station on enquiry the accused has revealed that:
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33. After hearing the words of the accused he came to know that due to vengeance with Cw.2-Premila, the mother of 34 Spl.C.C.No.231/2015 deceased-Kiran Yadav, he has murdered Kiran Yadav and it is an heinous offence and he has submitted his report as per Ex.P25 and his signature is Ex.P25(a) and handed over the accused along with his report to the Police Inspector. The Police Inspector after receiving the said report along with accused had further investigated the case, again enquired the accused and recorded his voluntary statement and as per his voluntary statement, the accused himself taken the Police Inspector and other police personnel to the spot at about 01.00 a.m, in the mid night of 10-02-2015 and early hours of 11-02-2015 to Bangalore University Campus, with in a distance of 200 to 300 meters of Sai Grounds, in a bush where the child's dead body was lying and also near the dead body the school bag was also lying and the dead body was wearing school uniform. Since the time was night and odd hours no such independent Panchas were available at that time, as such the mahazar was not drawn and the Police Inspector appointed a police personel for guarding the dead body and return to police station along with the accused. Pw.21 also identified the motor bike along with the rider of the motor bike and the pillion rider of the motor 35 Spl.C.C.No.231/2015 bike in Ex.P6(a) pen drive.
34. Through this witness the prosecution produced corroborative evidence of initially this witness arrested the accused on the basis of missing complaint and as per the scenary recorded in the CCTV camera of Sri. Lekha Enterprises and as per the statement of accused that he has murdered Kiran Yadav, it became heinous offence, he has handed over the record and the accused to Police Inspector along with his report as per Ex.P25 and the Police Inspector conducted further investigation by taking accused into his custody. Here there is no doubt and it is true that through the statement of the accused the motive of murder of Kiran Yadav is clearly elicited by the prosecution.
35. The accused tested the veracity of evidence of this witness by eliciting some commission and ommission and also elicited about his work on 05-02-2015 and roll call patrol on that day and he has also appointed the police personnels for searching the missing boy. He has also admitted that except photo affixed to the complaint for identifying of the missing boy, 36 Spl.C.C.No.231/2015 no such information given to him by the complainant. He was also tested with regard that no such enquiry conducted by the official in respect of missing boy, for that he has denied the same. Here it is relavent to note that while deposing by this witness he has deposed that at 09.00 p.m., the accused was for the first time arrested, but on that day, the accused was taken to custody by this witness near his house and not arrested and brought him to the station. He has also clearly deposed that on 10-02-2015 he has enquired the accused and the accused orally stated the act done by him and thereafter he has handed over the accused to the Police Inspector. But while deposing the date, instead of deposing 10-02-2015, he has deposed 05-02- 2015. Merely some descripency arose in the date of taking into custodyof the accused is not fatal to the case of prosecution. At the same time in his chief examination he has clearly deposed that on 10-02-2015 at about 09.00 p.m., he has taken custody of accused near his house and brought him to the police station at about 9.15 p.m.
36. Further the accused tested the veracity of evidence of this witness and elicited in respect of Ex.P25 that he has 37 Spl.C.C.No.231/2015 taken the accused to his custody at about 09.00 p.m., and brought him to the police station at about 09.15 p.m. But on perusal of Ex.P25 no such statement mentioend as suggested by the accused. But this fact is to miss guide the witness and suggested the same. As such it is not safe to accept whatever the suggestion made by the accused to this witness and obtained answer. He was also tested with regard to sending of F.I.R through woman P.C. 13259 and the timings of sending of said FIR. It is the suggested that on 05-02-2015 the accused was taken into custody by this witness, for that he has denied the same. He has also admitted that he has not written in C.D. in respct of missing case from 05-02-2015 to 10-02-2015, but his answer is that he has orally submitted report to his higher officer and in respect of missing case, since it was under search of missing boy. He has also admitted about non-returning of Memorandum of Arrest by him. At the same time he has admitted that he has only taken custody of the accused near his house at about 09.00 p.m., and brought him to the police station at about 09.15 p.m., and enquiured him and whatever arrest procedure in respect of the accused is done is by the 38 Spl.C.C.No.231/2015 Police Inspector and not by this witness. In this regard whatever arguments canvassed by the learned advocate for the accused is not acceptable one. It is the suggestion of accused that in order to go towards the shop Sri.Lekha Enterprises, he alone went to said shop, for that he has denied the same and stated that he was accompanied by the complainant to Sri.Lekha Enterprises shop. Further he was tested in respect of CCTV camera footage, but nothing has been elicted favourable to the defense taken by the accused herein. It is tried to elicit that he cannot see the colour of the pant worn by the rider of the motor bike is visible in the CCTV camera footage. He has also admitted that the registration number of said bike is not visibile and no such picture found on the helmet. At the same time, he has deposed that the pillion rider was a boy having school bag on his back. He has admitted that the colour of the shirt of the pillion rider is not found in the CCTV camera footage. He has also admitted that the case was not registered for the offence under setion 302 of IPC at initial stage, but on seeing CCTV camera footage of Sri.Lekha Enterprises on 10-02-2015 and on enquiry of accused at about 09.15 p.m., in the station, and as per statement of 39 Spl.C.C.No.231/2015 accused he submitted Ex.P25 and on that basis the case regitered as missing complaint was inserted the offence under setion 302 of IPC. But that does not mean this witness not enquired the accused about the incident as defence of accused. He has admitted that at that time he has not seized CCTV Camera hard disk and compact disc.
37. Here it is the case of the prosecution that after seeing the said CCTV camera footage secnary, he went near the house of the accused along with police personnel and secretly watched the accused and when the accused came to the house at about 09.00 p.m., he has taken custody of the accused, brought him to the station and on enquiry the accused revealed about his criminal act done with the missing boy and thereafter this witness handed over the accused to the Police Inspector with his report as per Ex.P25. As such the question of arresting the accused at that time and seizing of CCTV camera hard disc and compact disc does not arise. No doubt it is true that the accused suggested about he has not engaged any police personnel to guard the dead body personnly, but at this stage this Court feels to observe that whatever the suggestion is made 40 Spl.C.C.No.231/2015 to this witness by accused it doesn't helps to his defense, since further investigation taken by the Police Inspector, who has arrested the accused by following arrest procedure and register the case for the offence punishable under section 302 and 201 of IPC. He has also admitted about entrusting of Cw.21 and Cw.22 for searching of missing boy on 10-02-2015 at about 08.00 a.m. But the procedure of Roll Call of Police personnels normally mentioned in the Station House diary. Mere suggesting the said suggestion and obtaining answer is not fatal to the case of the prosecution. He was also elicitated his veracity in respect of Ex.D10-photo taken through CCTV camera footage, that the face of the accused not visible, due to wearing of helmet, even vehicle number is also not visible. No doubt it is true that in CCTV camer footage, as per Ex.D10 the said informationis not found, but at the same time the accused himself has stated about the commission of offence by him in his statement, when such being the case, question of accepting the veracity of evidence tested by accused to this witness by eliciting some commission and omission does not arise. Through the evidence of Pw.21, the prosecution produces about reciving of missing 41 Spl.C.C.No.231/2015 complaint as per Ex.P1, entrusting the work of searing of missing boy to police personnels-Cw.21 and Cw.22 and on 10- 02-2015 through CCTV camera footage in Sri.Lekha Enterprises the Cw.21 and Cw.22 found a school boy going on a motor bike wearing school bag on his back as pillion rider and the rider wearing white coloured helmet, the complainant identified the said school bag is of his son and doubted about the accused, who is residing opposite to his house and this witness taken custody of the accused and enquired about missing boy, at that time he came to know the criminal act of the accused done on missing boy and the same is proved beyond all reasonable doubt.
38. In support of the evidence of this witness, the prosecution has also produced the evidence of Pw.19- Manjunath.R.V-P.C.No.13020 of Chandra Layout Police Station. He has deposed that on 05-02-2015, P.S.I-Ravi Kumar entrusted the work of tracing of missing boy to him along with Cw.22, since on 04-02-2015 the missing boy-Kiran Yadav went to school, but he didn't return to home. On 05-02-2015 both were searching by verifying the CCTV camera fixed at different 42 Spl.C.C.No.231/2015 places. But no such information received by them. On 10-02- 2015 again the said work was entrusted by P.S.I. to them and on that day they searching the missing boy and also they are verifying the CCTV camers fixed from Moodalapalya Circle to Nagarabhavi Cirle and in shops. In one shop viz., Sri.Lekha Enterprises, having cement and iron business they came to know the missing boy was a pillion rider of a bike and the rider of the motor bike taking him from northern side to southern side and he was wearing white helmet, black coloured T-shirt and also wearing chappals. The pillion rider was wearing school uniform and was having school bag on his back. It is also found that the said boy was laughing by talking with the rider. On seeing the said secenary they doubted about the pillion rider was the missing boy and informed the same to P.S.I-Ravi Kumar over phone. After reaching to the shop by P.S.I., along with the complainant the CCTV camera was displayed and the complainant identified the pillion rider as his son and doubted about the rider was the accused. After seeing the said secene, the P.S.I. has taken this witness and Kaza Ajmeer near the house of accused and secretly watched about 43 Spl.C.C.No.231/2015 the accused, at about 09.00 p.m., the accused came to his house, immediately the P.S.I. taken the accused to his custody, brought him to the police station. He has also identified Ex.P5(a) and Ex.P6(a)-the pen drives and also after inserting pendrive-Ex.P6(a) to the laptop, he has also identified the seceneary what was seen on that day.
39. No doubt it is trued that the accused tested the veracity of evidence of this witness by eliciting some commission and omission and also with regard to identity of the missing boy and on that day no such technician was available to see the said scenery in the said camera. Here it is relevant to note that on that day only the scenery was seen by the P.S.I., along with this witness and the complainant, but the scenery of CCTV camera footage was taken to pen drive by P.I. with the assistance of technician-Ravichandra. As such whatever test made on this witness by the accused is not acceptable for consideration. The accused also elicited about the CCTV camera fixed to Vishwa Bharathi School, where the said camera recorded about boarding and getting down of Kiran Yadav from the school van was recorded on 04-02-2015, for that he has 44 Spl.C.C.No.231/2015 deposed that the same was recorded, but at the same time it is the case of the prosecution that on enquiry by the Investigation Officer, on that day the CCTV camera fixed to Vishwa Bharathi School was not working. If really the said CCTV was working on that day there is no impediment to produce the same by the accused by way of defense, but no such document placed by the accused to believe the same. He was also tested the veracity with regard to that on 10-02-2015 whether spot mahazar was conducted by P.S.I., at Sri.Lekha Enterprises or not and no such independent witness summoned to see the CCTV camera footage recorded, but at the same time it is his evidence that at that time, himself, Kaza Ajmeer, P.S.I., owner of the shop with two customers were present. He has also deposed that he has not seen whether the rider of the motor bike wearing spectacles or not since he was wearing helmet with glass. He was also tested with regard to the pillion rider whether he was boy or girl, but he has deposed by expressing his doubt. This witness was also tested with regard to whether on 10-02-2015 at about 09.00 p.m., near the house of accused whether he was arrested by issuing arrest memo or not, but it is the case of the 45 Spl.C.C.No.231/2015 prosecution that on that day he was not arrested, and he was taken to custody for enquiry purpose and brought to the police station, whatever the arrest procedure made is only by the Police Inspector and continued the investigation and not earlier to that. He was also tested with regard to maintaining of dairy but the same is noway helpful to the accused to establish his innocence of alleged crime. He was also tested his veracity by showing Ex.D10, but when the accused himself admitted about the commission of crime by saying in his voluntary statement, question of disbelieving the evidence of this witness along with Ex.P5(a) and Ex.P6(a) does not arise. Viewing from material evidence available on record produced by the prosecution through this witness there is no reason to disbelieve the evidence of this witness with regard to tracing of deceased-Kiran Yadav as a pillion rider along with the rider the accused in a motor bike as per the scenery recorded in the CCTV camera fixed at Sri.Lekha Enterprises.
40. By going through the evidence of Kaza Ajmeer- Pw.22, he has also deposed in his chief examination in support of the case of prosecution in respect of entrusting the work of 46 Spl.C.C.No.231/2015 tracing of missing boy on 05-02-2015 along with Cw.19, accordingly they searched by verifying the CCTV cameras and on 10-02-2015 they traced the missing boy as pillion rider in a motor bike along with the rider, the accused in the CCTV camera fixed in Sri.Lekha Enterprises. But in the cross- examination the accused tested the veracity of evidence of this witness with regard to roll call duty and entrusting work on 05- 02-2015 to him and at the time of entrusting the work the P.S.I. showed the photo of the missing boy in order to identify the missing boy at the time of search. Further he was also tested in respect of whether he has checked the CCTV camera of Vishwa Bharathi School or not. He has also not seen any picture on the helmet of the rider of the motor bike. He has not seen the bike number and the face of the pillion rider and the rider of bike properly and the name of the motor bike was also not seen in Ex.D10. No doubt it is true, whatever suggestions made on this witness, he has accepted the said suggestions, but at the same time the accused voluntarily stated about the commission of offence and the manner in which he has committed the offence, and recovery of dead body by P.I., shown by this accused, then 47 Spl.C.C.No.231/2015 the question of disbelieving the evidence of this witness does not arises. With regard to his arrest, the accused tested his veracity, but what ever arrest procedure done is by Police Inspector and not by this witness or by the P.S.I., only they have taken the custody of the accused for enquiring about the scenery recorded in the CCTV camera footage as per Ex.P5 and Ex.P6.
41. At this stage this Court feels to observe that no doubt it is true that the accused tested the veracity of evidence of this witness at length, but nothing has been elicited to disbelieve the genuinety of Ex.P5(a) and Ex.P6(a) and the statement given by the accused before the Investigation Officer. Viewing from available material on record produced by the prosecution through Pw.21, Pw.19 and Pw.22-the police personnel, this Court has no impediment in arriving into conclusion that while searching of missing boy, Pw.19 and Pw.22 traced the missing boy as pillion rider and the rider as accused in front of Sri.Lekha Enterprises CCTV camera footage and brought the same to the notice of P.S.I., and on seeing the said scenery recorded in the said C.C.T.V camera footage, the 48 Spl.C.C.No.231/2015 P.S.I., along with these two police personnel went near the house of accused, taken him to their custody, brought him to police station and enquired about the missing boy, at that time the accused revealed about the criminal act done on the missing boy, as a result he has handed over the accused to the Police Inspector by giving his report as per Ex.P25 and on the basis of Ex.P25, the Investigation Officer registered the case for the offences punishable under Section 302, 201 of IPC has proved beyond all reasonable doubt. Now left with the available material evidence placed on record about the investigation of Police Inspector and during the course of investigation he has conducted mahazar and seized Ex.P5(a) and Ex.P6(a) and then recorded the statements.
42. By going through the evidence of Pw.24- P.S.Sudharsan-The Investigation Officer, he has deposed that on 10-02-2015 at about 10.45 p.m., Pw.21-P.S.I. Ravi Kumar produced the accused along with his report as per Ex.P25. He has taken the accused to his custody and on the basis of Ex.P25 he has inserted offences under section 302 and 201 of IPC on the original complaint by giving requisition on 11-02- 49 Spl.C.C.No.231/2015 2015 as per Ex.P27 to the Court and obtained permission and his signature is Ex.P27(a). At about 11.00 p.m., on 10-02-2015 he has enquired the accused and arrested by following arrest procedure. He has also intimated the same to the relative of the accused. The accused has given voluntary statement before him stating that:
"ªÀÄÈvÀ£À vÁ¬Ä¬ÄAzÀ vÀ£ÀUÉ CªÀªÀiÁ£ÀªÁVzÉAiÉÄAzÀÄ D zÉéõÀPÌÉ DPÉUÀÆ CzÉà jÃw CªÀªÀiÁ£ÀªÁUÀ¨ÃÉ PÉA§ GzÉÃÝ ±À¢AzÀ DPÉAiÀÄ ªÀÄUÀ££ À ÄÀ ß PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃV ¨ÉÃè qï¤AzÀ PÀÄwÛUÉ PÉÆAiÀÄÄÝ PÉÆ¯É ªÀiÁr ºÉtªÀ£ÀÄß ªÀÄvÀÄÛ ¨ÉÃè qï£ÀÄß ©¸Ár §A¢gÀĪÀ eÁUÀª£ À ÀÄß vÉÆÃj¸ÀÄvÉÃÛ £ÉAzÀÄ C®èzÉ PÀÈvÀåPÉÌ G¥ÀAiÉÆÃV¹zÀ ªÁºÀ£À ºÁUÀÆ G½zÀ ¨ÉÃè qï£ÀÄß EnÖgÀĪÀ ¸À¼ Ü ª À £ À ÀÄß vÉÆÃj¸ÀÄvÉÃÛ £ÉAzÀÄ ºÉýgÀĪÀ£ÄÀ ."
as per Ex.P28 and his signature is Ex.P28(a), the accused's signature is as per Ex.P28(b) and Ex.P28(c). After recording the voluntary statement, in order to conduct mahazar, he has summoned-K.Murthy and Harish as Panchas after obtaining their consent, he has taken torch, battery, petromax light for lighting purpose and then immediately went along with the accused, Panchas in a departmental vehicle. The accused had taken him towards Nagarabhavi Circle, Ambedkar College Circle, Ring road, Kengeri Upa Nagar and through Mysore road and then entered Jnana Bharathi Campus, near Sai Ground and told this witness to stop the vehicle and get down from the 50 Spl.C.C.No.231/2015 vehicle, the accused taken him inside the said campus with the distance of 100 to 150 meters and shown the dead body lying near Vrushabhavathi drainage having bushes and plants with forest trees. Further on seeing the dead body the same was:
"D zÉúÀªÀÅ PÉƼÉvÀ ¹ÜwAiÀÄ°èzÀÝ ±Á¯Á ¸ÀªÀĪÀ¸ÀÛç zÀj s ¹zÀÝ ¨Á®PÀ£À zÉúÀªÁVvÀÄ.Û DgÉÆæAiÀÄÄ D zÉúÀª£ À ÀÄß vÉÆÃj¹ EzÉà zÉúÀ £Á£ÀÄ PÉÆ¯É ªÀiÁrzÀ QgÀuïAiÀiÁzÀªï£ÀzÀÄ JAzÀÄ ºÉýzÀ£ÀÄ. ±ÀªªÀ ÀÅ ¸ÀA¥ÀÇtð PÉƼÉvÀ ¹ÜwAiÀÄ°èvÀÄÛ, ºÀļÀU¼ À ÀÄ ªÀÄÄwÛzª ÝÀ ÀÅ, mÁZÀÄð, ¨Áålj ªÀÄvÀÄÛ ¥ÉmÉÆæªÀiÁåPïì ¨É¼QÀ £À°è D ¸À¼ Ü ª À À£ÀÄß UÀªÄÀ ¤¹zÁUÀ D zÉúÀ ©¢ÝzÀÝ ¸À¼ Ü z À À ¥ÀPÀÌzÀ°è MAzÀÄ ¸ÀÆ¥ÀgïªÀiÁåPïì ¨ÉÃè qï ºÀjvÀªÁVzÀÄÝ ¸Àé®à ¨ÉAqÁVzÀÄÝ gÀPz ÀÛ À PÀ¯¬ É ÄAzÀ PÀÆrvÀÄÛ, CzÀ£ÀÄß DgÉÆæAiÉÄà vÉUz É ÀÄ vÉÆÃj¹zÀ£ÀÄ. EzÉà ¨ÉÃè qï¤AzÀ £Á£ÀÄ ºÀÄqÀÄUÀ£À PÀvÛÀ£ÄÀ ß PÉÆAiÀÄÄÝ PÉÆ¯É ªÀiÁrzÉ£A É zÀÄ ºÉýzÀ£ÀÄ."
This witness also identified MO15-blade used by the accused for committing the murder of Kiran Yadav. At that time the said blade was seized by conducting seizure mahazar as per Ex.P7 by following seizure procedure from 01.45 a.m., to 02.45 a.m. and obtained signatures of Panchas and his signature is Ex.P7(e). He has also deputed the police personnel to guard the dead body, since at that time the relative of deceased not accompanied with them and they return to the station.
43. At this stage it is relevant to consider whether the voluntary statement is to be taken into consideration or not. 51 Spl.C.C.No.231/2015 Admittedly except the voluntary statement, no such other oral and documentary testimony available for tracing out of the dead body of Kiran Yadav. As per the evidence of Pw.1-the complainant and his wife-Pw.3-Premila, no such ill-will between themselves with the accused earlier to the incident. Even at the cross-examination of Pw.1 and Pw.3 the accused tested the veracity of evidence of conduct of complainant and his wife- Premila with regard to the chit transaction. The learned Public Prosecutor argued that the complainant and his wife-Pw.3- Premila not disputed of having chit transaction by Pw.3 with the publics, wherein the father of the accused was also one of the members of chit transaction. But earlier to the incident no such misappropriation or cheating or any other conduct of complainant or his wife established by the accused by way of producing defense evidence. On the other hand the very cross- examination of Pw.1 and Pw.3 it discloses that the were in cordial in nature, whatever mis-appropriation taken place in respect of chit transactions is only after the incident, and produced documents at Ex.D1 to Ex.D9-Chit Pass books and Daily Newspapers are all pertains to the year 2016 and not 52 Spl.C.C.No.231/2015 earlier to the year February 2015. Even the complainant and his wife-Pw.3 not deposed against accused till they came to know the criminal act of the accused against their son-deceased Kiran Yadav and they came to know only after giving of voluntary statement by the accused before the police as per Ex.P28. When such being the case, question of disbelieving the voluntary statement as per Ex.P28 does not arises.
44. At this stage, it is worthwhile to emphasis on the decision relied on by the learned Public Prosecutor reported in (2017) 3 SCC. (Cri) 343 in Chandraswamy Vs. State of Gujarat & Others, wherein it had been observed that:
"Evidence Act, 1872-Ss.27 and 3-"Fact" discovered pursuant to disclosure-Scope of-Principles summarized-Includes mental facts-physical object concerned whose location was disclosed by accused already standing recovered from that very location-Admissibility of fact that accused had disclosed that the physical object concerned would be at that very location.
-Pursuant to disclosure made by A-3, dead body identified as being that of the deceased victim in present case, which until then was recorded as dead body of unknown person, and had been recovered from location disclosed by the accused-Facts discovered pursuant to disclosure made by accused need not be self-probatory and word "fact"
contemplated by S.27 is not limited to "actual physical material object"-Further held, discovery of fact arises by reason of fact that information given by accused exhibited knowledge or mental awareness of information as to its existence at a particular place-Thus, held, fact that dead body had already been recovered from same place does not undermine admissibility of disclosure made by A-3 to IO about location 53 Spl.C.C.No.231/2015 where dead body of deceased was dumped by him, which information was exclusively within his personal knowledge, and as rightly found by courts below was admissible under S.27- Besides, on subsequent medical examination, dead body was found to be of deceased-Penal Code, 1860, S.302 r/w Ss.120-B, 364 and 201.
Criminal Trial-Circumstantial Evidence-Links in the chain of circumstances-Established-Conviction confirmed." Here also the accused himself disclosed the location of lying of dead body and not through any other persons. Even the circumstances links in the chain of accusation against accused, since the said information was exclusively within his personal knowledge and not through any other sources. Though the facts and circumstances of the above case decision and the facts and circumstances of the case on hand are different one, the ratio of principle is clearly applicable to the present case on hand. The learned advocate for accused has also relied on the decision reported in 2003 Cri.L.J. 5054 (SC) in respect of extra judicial confession and its credibility as mentioned in Head Note-B and C, but with due respect to the learned advocate for accused, this Court feels to observe that the facts and circumstances of the above case decision and the facts and circumstances of the case 54 Spl.C.C.No.231/2015 on hand are different one and its ratio of principles not applicable to present case on hand.
45. Now left with the material evidence in respect of seizure of material object-MO15-Super Max Blade shown by the accused at the time of showing the dead body by him. Pw.24 deposed that the accused has shown MO15 and he has seized the same, covered it by pasting the slip after obtaining signature of Panchas and the same was written in the hand-writing by P.C.7172 at about 01.45 a.m., to 02.45 a.m., and his signature is Ex.P7(e). On perusal of Ex.P7-the seizure mahazar drawn on 10/11-02-2015 at Bangalore University Campus, Sai Grounds towards western side near Vrushabhavathi drainage, in the place where the tress, plants and bushes grown and the said MO15 shown by the accused before Panchas-K.Murthy and Harish who signed as per ex.P7(a) and Ex.P7(d).
46. In order to prove the seizure mahazar conducted, the prosecution produces the evidence of Pw.6-K.Trimurthy. He has deposed in respect of murder of a boy, the police summoned to Chandra Layout Police station for seizing of Helmet and bike at 55 Spl.C.C.No.231/2015 Bangalore University and the police taken him inside Bangalore University, where the trees, plants and bushes are there and drawn mahazar as per Ex.P7 and obtained his signature as per Ex.P7(a). He has also identified MO15-blade used by the accused for committing murder. He has also deposed that the accused had not taken him to any where, but the police went inside the Bangalore University and this witness was standing near the gate of Bangalore University. If this piece of evidence is taken into consideration, at the time of recovery of MO15, it is clear that he has also accompanied with the police is proved by the prosecution. In the cross-examination the accused tested the veracity of evidence of this witness by eliciting some commission and commission and also elicited that he has not received any memo or notice from the police to participate in the seizure mahazar conducted. He went towards Bangalore University on his bike and was standing near the gate, the police went inside the University forest and brought a blade. No doubt it is true that there is some discrepancy in giving answer by this witness at the cross-examination and the learned Public Prosecutor treated him as hostile to the prosecution case and 56 Spl.C.C.No.231/2015 cross-examined also and he has denied conducting of seizure mahazar as per Ex.P7. But what he has stated in his chief examination has to be accepted to consider the genuinety of existence of Ex.P7 and process of conducting mahazar by Pw.24.
47. On perusal of evidence of Pw.9-Harish, another Panch witness, he has also deposed that, about 1½ years back the police summoned him and obtained his signatures as per Ex.P7(c) and Ex.P7(d). To some extent this witness also turned hostile to prosecution case. The prosecution treated him as hostile witness and suggested the contents of Ex.P7, but he has denied the same except admitting his signatures as per Ex.P7(c) and Ex.P7(d). The learned advocate for accused also cross- examined this witness and suggested that police had only taken his signature and except signing the same, he doesn't know anything about process of conducting mahazar as per Ex.P7. No doubt both the mahazar witnesses have turned hostile to prosecution case, but that doesn't mean the recover of MO15 on the voluntary statement of accused is in doubtful as the accused himself has shown the said movable to the police and 57 Spl.C.C.No.231/2015 the same is believable one.
48. Pw.24 further deposed that as the time was odd hours and as the relative of deceased boy not available at that time, he has deputed the police personnel to guard the dead body. Here the learned advocate for accused argued that non examining of that police personnel it is absolutely fatal to the case of prosecution, but when the accused voluntarily stated about his criminal act done on the deceased as per Ex.P28, he himself shown the dead body of Kiran Yadav, question of disbelieving the case of prosecution, merely the prosecution not tendered the evidence of the police personnel who guarded the dead body does not arise. Pw.24 further deposed that at about 03.30 a.m., he along with the accused and Panchas went to the house of accused in a departmental vehicle, the accused was get down from the vehicle, shown the motor bike parked in the compound of said house and the said vehicle was bearing No.KA-02-HX-7901 and also stated that he has used the said motor bike to take the deceased-Kiran Yadav towards Bangalore University inside the forest area and murdered him. He has also handed over the helmet which was on the motor bike 58 Spl.C.C.No.231/2015 having white and black colour. Then he went inside the house and also in his bed room he has put the remaining four super max blades in his bath room, near washing machine and handed over the same to this witness. As a result he has drawn mahazar as per Ex.P8 from 04.00 a.m., to 05.00 a.m., and P.C- 8382 wrote the said mahazar on his dictation and his signature is Ex.P8(e). He has also identified MO15 along with blade used for the crime, Mo11 was the helmet. He has also identified motor bike as per Ex.P5 and Ex.P6. He has also identified signature on the Kaki colour cover-Ex.P29 where four Super Max blades were kept and sealed as per Ex.P10 and his signature is Ex.P10(b). The Panchas also signed on the cover as per Ex.P29 and his signature is Ex.P29(a). Thereafter he brought the accused to the station and kept in lock up and said properties were subjected to P.F.No.14/2015.
49. In order to prove the above process of conducting mahazar of motor bike, helmet and other four Super Max blades, again the prosecution produced the evidence of Pw.6- Trimurthy. He has deposed similar facts and circumstances what he has deposed in respect of Ex.P7, but he has admitted 59 Spl.C.C.No.231/2015 his signature as Ex.P8(a) and Ex.P8(b). He has also identified motor bike, helmet and four Super Max blades in his chief examination. To some extent he has turned hostile to prosecution case and the prosecution suggested the contents of Ex.P8, for that he has denied the same. At the same time he has shown his ignorance about conducting of seizure mahazar as per Ex.P8 from 04.00 a.m., to 05.00 a.m. But admitted his signatures at Ex.P8(a) and Ex.P8(b). The accused tested his veracity by eliciting some commission and omission and except denial suggestion; nothing has been elicited favourable to the defense of the accused in respect of Ex.P8 through this witness.
50. On perusal of evidence of Pw.9-Harish, another pancha, he has also deposed similar evidence of him in respect of Ex.P7, but he has admitted his signature in Ex.P8 and Ex.P8(c) and Ex.P8(d). Further through him Ex.P10-slip affixed to the cover where the Super Max blades are sealed. The accused also tested the veracity of evidence of this witness by eliciting some commission and omission and nothing has been elicited favourable to the defense taken by the accused herein. Admittedly this witness not disputed about the identification of 60 Spl.C.C.No.231/2015 motor bike in Ex.P5 and Ex.P6, MO11-Helmet and MO15-Super Max Blade. Merely these two witnesses turned hostile to the prosecution case to some extent that is not a ground to disbelieve the process of conducting of seizure mahazar by Pw.24 at the instance of accused.
51. Here it is relevant to note that while addressing the arguments the learned advocate for accused has argued that while giving statement as per Ex.P28 the accused stated the same with fear of ill treatment by police and he has not stated on his own will and wish. But on perusal of entire order sheet, no such complaint made by the accused before the Court when he was produced at 09.15 p.m., before the Magistrate in home office on 11-02-2015 and also he was taken to police custody up to 13-02-2015 and on 13-12-2015 before the Court he has not complained any ill-treatment by the police during police custody. As such question of believing the arguments canvassed by the learned advocate for accused about alleged ill-treatment caused to the accused and obtained voluntary statement as per Ex.P28 does not arises.
61 Spl.C.C.No.231/2015
52. Now left with the further available material evidence produced by Pw.24-Investigation Officer. On 11-02-2015 at about 07.30 a.m., he has summoned the relative of deceased boy and Panchas and also FSL expert-Ravindra and visited the spot along with said persons and the accused and conducted inquest from 08.30 a.m., to 11.30 a.m., as per Ex.P18. Earlier to that he has issued notice to Panchas-Madhu, Prasad and Surya as per Ex.P17 and his signature is Ex.P17(b). Here on perusal of Ex.P18-inquest mahazar the Investigation Officer mentioned in column No.7 that:
"ºÉtªÀÅ ¸ÀA¥ÀÇtðªÁV PÉƼÀvÀ ¹ÜwAiÀÄ°èzÀÄÝ ºÀļÀÄUÀ¼ÀÄ ©¢ÝgÀÄvÀª Û .É PÉlÖ ªÁ¸À£É §gÀÄwÛgÀÄvÀz Û .É ªÀÄÄRzÀ ZÀªÀÄð, ªÀiÁA¸À E®èzÉ vÀ¯É §ÄgÀÄqÉ PÀAqÀÄ §A¢gÀÄvÀz Û .É PÀtÄÚU¼ À ÀÄ ¸ÀºÁ EgÀĪÀÅ¢®è. zÉúÀªÀÅ GÁ¢PÉÆArgÀÄvÀz Û .É vÀ¯A É iÀÄ PÀÆzÀ®Ä QvÀÄÛ §A¢gÀÄvÀz Û .É F JgÀqÀÄ PÉÊU¼ À £À ÀÄß CzÀð s zÀµÉÖ ¨sÁUÀ ¥ÁætôU¼ À ÀÄ QvÀÄÛ wA¢gÀĪÀÅzÀÄ PÀAqÀÄ §A¢gÀÄvÉ.Û PÀÄwÛUÉ Pɼ¨ À sÁUÀz° À B "°" DPÁgÀz° À è PÉÆAiÀÄgÝ ÀĪÀAvÉ PÀAqÀÄ §gÀÄvÀz Û .É PÀÄwÛUÉ Pɼ¨ À sÁUÀz° À è JzÉAiÀĪÀgÉUÉ ªÀiÁA¸À RAqÀU¼ À ÀÄ EgÀĪÀÅ¢®è. CªÀ£ÀÄß AiÀiÁªÀÅzÉà ¥ÁætôU¼ À ÀÄ QvÀÄÛ wA¢gÀĪÀAvÉ PÀAqÀÄ §A¢gÀÄvÉ.Û Pɼ¨ À sÁUÀzÀ zÀªq À É ºÀ®ÄèU¼ À ÀÄ EgÀĪÀÅ¢®è. ªÉÄð£À zÀªq À AÉ iÀÄ°è 12 ºÀ®ÄèU¼ À ÀÄ EgÀÄvÀª Û .É ±ÀªªÀ ÀÅ PÉƼÉvÀÄ ZÀªÀÄðªÀÅ ¸ÀÄ°zÀAvÉ PÀAqÀÄ §A¢zÀÄÝ EvÀgÀ AiÀƪÀÅzÉà UÁAiÀÄUÀ¼ÀÄ UÀÄgÀÄw¸À®Ä DVgÀĪÀÅ¢®è.
ªÀÄÊvz À ÃÉ ºÀzÀ ªÉÄÃ¯É ©½AiÀÄ §tÚzÀ ¥ÁåAlÄ, ©½AiÀÄ §tÚzÀ CzÀðs vÉÆý£À µÀlÄð, EzÀg° À è eÉé£À ªÉÄÃ¯É ZÉÊv£ À Àå ±Á¯ÉAiÀÄ ¯ÉÆUÉÆà (¯Éç¯ï) Can¹gÀÄvÉ.Û §® ¨sÁUÀz°À è ºÀj¢gÀÄvÉ.Û ¤Ã° PÁZÁzÀj s ¹gÀÄvÁÛ£.É ¸ÉÆAlzÀ°è ¹ ZÉÊv£ À Àå mÉPÉÆÌ£ÉÆ ¸ÀÆ̯ï EArAiÀiÁ JA§ EAVèõï CPÀëgÀzÀ §PÀ¯ï EgÀĪÀ PÉA¥ÀÅ ©½ PÀAzÀÄ §tÚzÀ ¨É¯ïÖEgÀÄvÉ.Û PÁ°£À°è ©½AiÀħtÚzÀ PÁ®Ä aî ºÁUÀÆ µÀÆUÀ¼ÀÄ EgÀÄvÀª Û .É PÀÄwÛUA É iÀÄ°è ZÉÊvÀ£Àå ±Á¯ÉAiÀÄ mÉÊ EgÀÄvÀz Û .É ¸ÀªÄÀ ªÀ¸æÛÀ zÀ ªÉÄïÁâUÀ PÉA¥ÀÅ §tÚ ¨ÉæÃdgï EgÀÄvÀz Û .É ªÀÄÊv£À À ¨É¤ß£À Pɼ¨ À Ás UÀ ±Á¯Á ¥ÀŸÀP Û ÀU½ À gÀĪÀ ¨ÁåUï EgÀÄvÀz Û .É ±ÀªzÀ À JqÀ§¢AiÀÄ°è w½UÉA¥ÀÅ §tÚzÀ ¥Áè¸ÀÖPïªÁlgï ¨Ál¯ï ©¢ÝgÀÄvÉ.Û CzÀgÀ ¥ÀPÀÌzÀ°è ªÀÄÈvÀ£À ¨sÁªÀavÀæ, 62 Spl.C.C.No.231/2015 ºÉ¸g À ÀJ, 8£Éà vÀgÀUÀw, ¸ÀÆÖqÉAqï L.r. £ÀA.J¸ï.¹.J¸ï.307092 JAzÀÄ £ÀªÀÄÆzÀÄ ªÀiÁrgÀĪÀ ¸ÀÆÖqÉAqï ¥ÀzÀ EgÀÄvÀz Û .É ±Àªz À À §® ¨sÁUÀz° À è ¸Àé®à vÀ¯A É iÀÄ PÀÆPÀ®ÄUÀ¼ÀÄ QvÀÄÛ ©¢ÝgÀĪÀÅzÀÄ PÀAqÀÄ §A¢gÀÄvÀz Û .É ¸À¼ Ý z À ° À è ¥ÉÇð¸ÀgÀÄ ±Àªz À À ¥ÀPÀÌzÀ°è £É®zÀ ªÉÄÃ¯É ©¢ÝzÀÝ ¥Áè¹ÖPï ªÁlgï ¨Ál¯ï£ÀÄß ªÀÄÈvÀ£À ¸ÀÆÖqÉAqï PÁqÀð£ÀÄß ±Àªz À À PÉ®¨sÁUÀz° À zè ÝÀ ¸Àé®à ¸ÁåA¥À¯ï ªÀÄtÚ£ÀÄß ºÁUÀÆ ±ÀªÀ¢AzÀ 3 Cr zÀÆgÀz° À z è ÝÀ ¸ÁåA¥À¯ï ªÀÄtÚ£ÀÄß vÀ¤SÉAiÀÄ ¸À®ÄªÁV DªÀiÁ£ÀvÀÄÛ¥Àr¹zÀÝ ªÀ¸ÀÄÛU¼ À £À ÀÄß ¥ÉÃ¥Àgï PÀªgÀ ï£À°è ºÁQ ¨Á¬Ä CAn¹ "N" JA§ DAUÀè CPÀëgÀzÀ ªÀÄÄzÉæAiÀÄ£ÀÄß ºÁQ ªÉƺÀgÀÄ ªÀiÁrzÀgÀÄ."
No doubt it is true that the learned advocate for accused tested the veracity of evidence of this witness and went to the extent of denying that the said body is not of Kiran Yadav. At the same time it is relevant to note that it is not in dispute that the accused himself has taken the police to the incident spot and showed the dead body to the police in the mid-night itself. When he has revealed about his criminal acts, as stated in Ex.P28-voluntary statement and due to odd hours and non availability of relative of deceased-Kiran Yadav to identify the dead body this witness has summoned the father of deceased- Kiran Yadav in the morning and taken him along with Panchas and the father of deceased-Kiran Yadav to identify the said dead body with the help of material objects available nearby the dead body.
53. If this piece of documentary evidence is taken into 63 Spl.C.C.No.231/2015 consideration, on perusal of evidence of Pw.1-the complainant also deposed in his chief examination about the identification of dead body and also deposed what ever mentioned in column No.7 of Ex.P18 is true. He has also deposed similar things and identified MO1 to MO13 viz., shoes, shirt, tie, belt, buckle with the emblem of Sri.Chaitanya Techno School, Tayatha, Udidara, blazer, water bottle, I.D. card with name Kiran Yadav and the school address. When the complainant himself identified the dead body through seizure of MO1 to MO10, MO12 and MO13, question of disbelieving the identity of dead body pertaining to Kiran Yadav does not arises. No doubt it is true that the learned advocate for accused cross-examined this witness in this regard and elicited some commission and omission and he has shown some ignorance in respect of material objects not pertains to Kiran Yadav, but he has denied the same.
54. On perusal of evidence of Pw.15-Madhu Kiran he has deposed in his chief examination that about 2 years back Kiran Yadav was missing, since his mother was known to him, he has also accompanied with the parents of Kiran Yadav to trace said Kiran Yadav. He was accompanied with the mother 64 Spl.C.C.No.231/2015 of Kiran Yadav in the station up to 09.00 p.m., and at about 10.00 p.m., the police went outside along with the accused coupled with 3-4 police personnel, but he doesn't know where they have gone. He has admitted his signature as Ex.P17(a) and the same was signed by him on 10-02-2015 in the police station. Here it is the case of the prosecution that said notice was issued by police to him. At that time he came to know that the accused murdered Kiran Yadav and his dead body was lying in Bangalore University Campus. He has also deposed that the accused had taken the police and Panchas to the said spot at that time. He has also deposed that the spot was near to Sai Sports Road, inside Bangalore University and the place was forest area and he has shown the dead body where it was full of insects and near the dead body school bag, belt, I.D, card, water bottle were also lying. He has also identified MO1 to MO4, MO7 to MO10, MO12 and MO13. The police also taken the photo of dead body. It is true that while giving evidence the prosecution has not produced those photos, but at the time of arguments and on perusal of C.D., the learned Public Prosecutor produced said photos. On perusal of said photos, it very clearly discloses 65 Spl.C.C.No.231/2015 what ever contents mentioned in column No.7 are reflects in the said photos. In the said photo also discloses the accused along with Panchas and police personnel were accompanied at that spot. When the photos produced by the prosecution clearly supports the case of the prosecution in respect of accused himself taken the police personnel and Panchas and shown the dead body at the spot, question of disbelieving the contents of column No.7 mentioned by the Investigation Officer in Ex.P18 does not arises. This witness also admitted his signature as per Ex.P18(a). He has also deposed that:
"±Àªz À À ªÉÄʪÉÄÃ¯É , PÀÄwÛUA É iÀÄ §½ ªÀiÁPïð EvÀÄ.Û D ªÀiÁPïð JAvÀºÀ ªÀiÁPïð JAzÀÄ ºÉüÀ®Ä £À£ÀUÉ DUÀĪÀÅ¢®è PÁgÀt ±ÀªP À ÌÉ ºÀļÀ ºÀwv Û ÀÄÛ ºÁUÀÆ ±ÀªÀ «PÁgÀªÁVvÀÄ.Û "
If this piece of evidence is taken into consideration, question of disbelieving the case of prosecution and giving benefit of doubt to the accused does not arise.
55. This witness was cross-examined by the learned advocate for accused by eliciting some commission and omissions in respect of timings of conducting of inquest and also tested his veracity with respect to chit transactions which 66 Spl.C.C.No.231/2015 was run by the mother of the deceased-Kiran Yadav and he is also one of the members of said Chit transaction. No doubt it is true in his cross-examination he has deposed that, he was not accompanied with the police personnel as pancha for inquest, but he has admitted that on seeing the dead body the head become skin less and no muscle found from neck to chest. At the same time the admitted photos produced by the prosecution is otherwise. The accused denied the alleged process of conducting mahazar by denial suggestion and identification of MO1 to MO4, MO7 to MO10, MO12 and MO13 by denial suggestion, but nothing has been elicited favourable to the defense of the accused.
56. By going through the evidence of Pw.2-Darshan another Panch for inquest he has also deposed about his participation as pancha at the time of inquest conducted by Pw.24 as per Ex.P18. It is his evidence that he was accompanied with the police personnel, accused and another pancha towards the spot where the dead body was lying and found near the dead body water bottle, tie, school bag of the child, school I.D. Card and the school uniform was also found. 67 Spl.C.C.No.231/2015 The face of dead body was eaten, the muscles were eaten by insects. The police had taken photo of the dead body at that time. No doubt the said photo produced by the prosecution at the time of arguments which were kept in C.D. He came to know that the accused murdered the said child. He has also deposed that the accused had taken the police officials and police personnel to the incident spot where he has murdered Kiran Yadav. He has also identified his signature as per Ex.P18(b).
57. The accused cross-examined this witness by eliciting some commission and omissions and also elicited that he was in the police station at about 10.30 p.m., to 11.30 p.m., in the night. He has not received any notice from the police, but Ex.P17 clearly indicates issuance of notice to Panchas summoning them to participate in the process of conducting inquest mahazar. The accused also made suggestion with regard to the dead body as per his defense and suggested about non-availability of muscle in the body, but the photos are very clearly shows the situation of the dead body lying on the ground. When such being the case, mere some discrepancies 68 Spl.C.C.No.231/2015 elicited by the accused, it is not safe to accept the defense taken by the accused at the cross-examination of this witness to give benefit of doubt in favour of the accused. The prosecution proved the process of conducting mahazar by producing the evidence of Pw.15 and Pw.20 and the said inquest conducted by Pw.24.
58. Now left with the further evidence of Pw.24 in respect of further investigation. Pw.24 further deposed that he has sent the dead body to Victoria Hospital through escort of police for post-mortem. He has also seized MO1 to MO11, MO16 and MO18 at the spot itself and subjected them to P.F. No.15/2015 and obtained permission from the Court. After postmortem he has handed over the dead body to Pw.1 and Pw.3 and obtained acknowledgement from them. At the time of inquest one Rajesh given statement as per Ex.P9. Here on perusal of evidence of Pw.7-Rajesh, he has deposed that he is the resident of Moodalapalya, Sanjeevini Nagar since from 30 years. The accused is also resident of Sanjeevini Nagar where his house is situated in the next cross of the house of this witness. He knows Pw.1 and Pw.3 whenever they were walking 69 Spl.C.C.No.231/2015 on the road in front of his house since 2-3 years. He has not seen Kiran Yadav, the son of Pw.3. About 2-3 years back when he was near his house the police obtained his signature. But at the time of obtaining the said signature the police not stated the contents of said document and he turned hostile to the case of prosecution. He has also deposed that he doesn't know the incident on 04-02-2015 and he has not given any statement before police. The prosecution treated this witness as hostile to the prosecution case and suggested each and every contents of Ex.P9, but he has stated that he has not given any such statement before police. The accused not cross-examined this witness. Here through this witness the prosecution wants to elicitate that he has lastly seen the deceased-Kiran Yadav along with the accused, for that he has denied the same. When accused himself has admitted by giving voluntary statement before police about commission of offence, question of disbelieving the case of prosecution by considering evidence of this witness who deposed hostile to prosecution case does not arise.
59. Now left with the further evidence of Pw.24, he has 70 Spl.C.C.No.231/2015 deposed that at the time of commission of offence the accused also received some injuries at his right hand fingers and as such he has sent the accused on 13-02-2015 for medical examination. At the same time it is just and proper to consider the evidence of doctor who conducted postmortem examination.
60. By going through the evidence of Pw.16-Dr.Dilip Kumar.K.V., he has deposed that on 11-02-2015 he has conducted post mortem on the dead body of Kiran Yadav. It is his evidence that:
"±ÀªÀ¥j À ÃPÀëÁ PÁ®zÀ°è ±ÀªÀzÀ ºÉÆgÀCAUÁAUÀU¼ À À ZÀºÀgÉ, §mÉÖUÀ¼ÄÀ ªÀÄvÀÄÛ ªÀ¸ÀÄÛU¼ À ÀÄ F PɼP À A À qÀvÉ PÀAqÀħA¢ªÉ. PÀ¥ÀÅà §tÚzÀ ¸ÀÆÌ¯ï ¨ÁåUï CzÀg° À è ªÉʯïØPÁæ¥sï JA§ ¯Éç¯ï EgÀÄvÀz Û É, D ¨ÁåUï£À°è ¥ÀŸÀP Û À ªÀÄvÀÄÛ n¥À£ s ï¨ÁPïì EvÀÄ.Û EzÀÄ ±Àªz À À ªÉÄʪÉÄÃ¯É EvÀÄ.Û 2) JuÉÚUA É ¥ÀÅ UÀtz Ú À ¨ÉÃè dgï, vÉÆý£À°è C®è°è ºÀj¢vÀÄÛ EzÀÄ ¸ÀºÀ ±Àªz À À ªÉÄðvÀÄ.Û 3) ©½ §tÚzÀ CzÀð s vÉÆý£À ±Àmïð C®è°è ºÀj¢zÀÄÝ ºÁUÀÄÁ PÀ¯¬ É ÄAzÀ PÀÆrvÀÄ.Û 4) ©½§tÚzÀ vÀÄA§¼ÀvA É iÀÄ ¥ÁåAmï C®è°è PÀ¯U É ¼ À ÁVvÀÄ.Û 5) ¨ÁzÁ«Ä ªÀÄvÀÄÛ PÉA¥ÀŧtÚzÀ PÀÄwÛUA É iÀÄ mÉÊ CzÀÄ ¸ÀºÀ C®è°è PÀ¯¬ É ÄAzÀ PÀÆrvÀÄÛ 6) ¨ÁzÁ«Ä © ªÀÄvÀÄÛ PÉA¥ÀÅ §tÚ¢AzÀ «Ä²ævÀªÁzÀ ¨É¯ïØ CzÀg° À è MAzÀÄ ¯ÉÆúÀzÀ §PÀ¯ï ªÀÄvÀÄÛ ¯Éç¯ï EzÀÄÝ D ¯Éç¯ï ²æÃZÉÊv£ À Àå mÉPÉÆßøÀÆ̯ï, EArAiÀiÁ JA§ÄzÁV £ÀªÀÄÆzÀ£É EvÀÄ,Û 7) ©½ §tÚzÀ ¸ÉÆm à ïðì ±ÀÆ EvÀÄÛ, 8) ©½§tÚzÀ ¸ÁPïì CzÀg° À è PÉA¥ÀÅ ªÀÄvÀÄÛ ¤Ã° §tÚzÀ ¨ÁqÀðgïUÀ½zÀÄÝ C®è°è PÀ¯ÉU½ À AzÀ PÀÆrvÀÄ,Û 9) ¤Ã° §tÚzÀ PÁZÁ«vÀÄÛ, 10) PÉA¥ÀÅ ªÀÄvÀÄÛ PÀ¥Àŧ à tÚzÀ GrzÁgÀEvÀÄ,Û CzÀg° À è ¯ÉÆúÀ ¸ÀºÀ EvÀÄ.Û zÉúÀzÀ GzÀÝ 140 ¸ÉAn«ÄÃlgï ªÀAiÀĹìUÉ vÀPÀÌAvÀ ¨É¼ª À tÀ U ô É EgÀÄvÀzÛ .É zÉúÀzÀ ªÉÄÃ¯É ªÀiÁåUÉÃmïì(aPÀÌ ºÀļÀ) CzÀð s ¸ÀAn«ÄÃlgï¤AzÀ 3.1 ¸ÉAn«ÄÃlgï GzÀz Ý À aPÀÌaPÀÌ ºÀļÀU¼ À ÄÀ zÉúÀzÀ ªÉÄÃ¯É C®è°è PÀAqÀÄ §A¢vÀÄ.Û ºÁUÀÆ vÀ¯É, ªÀÄÄR, PÀÄwÛUA ÉÀ iÀÄ ªÀÄÄA¨sÁUÀ ªÀÄvÀÄÛ PÀÄwÛUAÉ iÀÄ ¥ÀPÀÌUÀ¼° À è ZÀªÀÄð ªÀÄvÀÄÛ ªÀiÁA¸ÀRAqÀU À ¼ À ÄÀ EgÀ°®è. PÀÄwÛUÉ ªÀÄƼÉU¼ À ÀÄ ºÁUÀÆ ªÀÄÄRzÀ ªÀÄƼÉU¼ À ÀÄ PÁtô¸ÄÀ wÛvÄÀ ,Û zÀªq À AÉ iÀÄ ªÀÄÆ¼É ¸ÀºÀ EgÀ°®è. §®PÉÊ, §®vÉÆüÀÄ, JqÀPÉÊ ºÁUÀÆ JqÀvÆ É Ã½£À CzÀðs ¨sÁUÀ ¸ÀºÀ EgÀ°®è, G½zÀ eÁUÀz° À è PÉʪÀÄƼÉU¼À ÄÀ PÁtô¸ÄÀ wÛzª ÀÝ ÀÅ. 71 Spl.C.C.No.231/2015 PÉÊvÀÄ¢AiÀÄ°è ªÀÄÄvÀÄÛ ªÀÄÄAUÉÊ£° À è ¥Áætô wA¢zÀÝ UÀÄgÀÄvÀÄ PÁtô¸ÀÄwÛvÀÄ.Û JzÉ ªÀÄvÀÄÛ PÁ®ÄUÀ¼ÀÄ ªÉÄÃtzÀ jÃwAiÀÄ°è ±ÉÃRgÀuA É iÀiÁVvÀÄ,Û JgÀqÄÀ ¥ÁzÀzÀ ZÀªÀÄðUÀ¼ÀÄ ¸É¼É¢vÀÄÛ, UÀÄ¥ÁÛAUÀU¼ À ÀÄ H¢PÉÆAqÀÄ PÀAzÀħtÚ¢AzÀ PÀÆrvÀÄ.Û zÉúÀzÀ ªÉÄÃ¯É PÀAqÀÄ §AzÀAvÀºÀ UÁAiÀÄUÀ¼ÀÄB 1) PÀÄwÛUA É iÀÄ ¨sÁUÀ¢AzÀ JzÉAiÀÄ ¨sÁUÀzª À gÀ É«UÀÄ 24 ¸ÉAn«ÄÃlgï GzÀz Ý À PÉÆAiÀÄÝ UÁAiÀÄ EzÀÄÝ CzÀÄ PÀÄwÛUA É iÀÄ MAzÀÄ ¨sÁUÀ¢AzÀ PÀÄwÛUA É iÀÄ ªÀÄvÉÆAÛ zÀÄ ¨sÁUÀzª À g À É«UÀÄ, JzÀA É iÀÄ ªÀÄÄA¨sÁUÀ¢AzÀ PÉÆAiÀÄA Ý vÀºÀ UÁAiÀÄ zÉúÀª£ À ÀÄß bÉâ¹ £ÉÆÃrzÁUÀ vÀ¯§ É ÄgÀÄqÉ ºÁUÀÆ PÀÄwÛUA É iÀÄ ªÀÄƼÉU¼ À ÀÄ AiÀÄxÁ¹ÜwAiÀÄ°èvÀÄ.Û ªÉÄzÀļÀÄ ªÉÄvÀÛUÁV PÀAzÀħtÚ¢AzÀ PÀÆrvÀÄ.Û JzÉAiÀÄ UÀÆqÀÄ ªÉÄÃtzÀ jÃwAiÀÄ°è ±ÉÃRgÀuA É iÀiÁVvÀÄÛ, ¥ÀPÉ̮ħÄUÀ¼ÀÄ AiÀiÁxÁ¹ÜwAiÀÄ°èvÀÄÛ, ±Áé¸P À ÉÆñÀ ºÁUÀÆ ºÀÈzÀAiÀÄ ªÉÄvÀÛUÁV CzÀgÀ §tÚ ¸Àé®à §zÀ¯ÁVvÀÄ.Û ºÉÆmÉÖAiÀÄÄ ¸ÀºÀ ªÉÄÃtzÀ gÀÆ¥Àz° À è ±ÉÃRgÀuA É iÀiÁVvÀÄÛ, ºÉÆmÉÖAiÀÄ°è 60 «Ä°AiÀĵÀÄÖ CzÀð s CgÀVzÀÝ Hl ¥ÀzÁxÀðUÀ¼ÀÄ EvÀÄ.Û ¦vÀd Û £ÀPÁAUÀ ªÀÄvÀÄÛ UÀįÁä ¸ÀºÀ ªÉÄvÀU Û ÁV §tÚ §zÀ¯ÁVvÀÄÛ, ªÀÄÆvÀæ¦AqÀU¼ À ÀÄ ¸ÀºÀ ªÉÄvÀÛUÁV §tÚ§zÀ¯ÁVvÀÄ.Û ºÀ®ÄèU¼ À ÀÄ ªÉÄîàAQÛAiÀÄ°è 13 ºÀ®ÄèU½ À zÀÄÝ CzÀg° À è §®¨sÁUÀzÀ ªÉÆzÀ®£É zÀªq À AÉ iÀÄ ºÀ®£ è ÀÄß rJ£ïJ ¥ÀjÃPÉëUÉ PÉÆnÖgÀÄvÉÃÛ £É. zÉúÀzÀ ªÉÄÃ¯É PÀAqÀħAzÀAvÀºÀ §mÉÖ ªÀÄvÀÄÛ E¤ßvg À À ªÀ¸ÀÄÛU¼ À £ À ÀÄß ±ÉÃRgÀ¹ ¹Ã¯ï ªÀiÁr ¥ÉÇðøÀgÀ ªÀ±P À ÉÌ PÉÆnÖzÉÃÝ £É. £À£Àß ¥ÀæPÁgÀ ªÀÄÈvÀ£À ¸ÁªÀÅ zÉúÀzÀ ªÉÄÃ¯É PÀAqÀħAzÀAvÀºÀ UÁAiÀÄ¢AzÀ GAmÁVzÉ. ¸Àzj À UÁAiÀĪÀÅ ªÀÄgÀt¥ÀǪÀð UÁAiÀÄUÀ¼ÁVzÀÄÝ CzÀÄ PÀÄwÛUAÉ iÀÄ MAzÀÄ ¨sÁUÀ¢AzÀ JzÀA É iÀÄ ªÀÄÄA¨sÁUÀ¢AzÀ ºÁAiÀÄÄÝ PÀÄwÛUA É iÀÄ ªÀÄvÀÉÆA Û zÀÄ ¨sÁUÀPÌÉ ºÉÆÃVgÀĪÀ UÁAiÀĪÁVzÉ. F §UÉÎ £Á£ÀÄ ±ÀªÀ¥j À ÃPÀëÁ ªÀgÀ¢ PÉÆnÖzÉÃÝ £É. FUÀ £ÉÆÃrzÀ zÁR¯É ±ÀªÀ¥j À ÃPÀëÁ ªÀgÀ¢AiÀiÁVzÀÄÝ CzÀg° À è £À£Àß ¸À» EzÉ, ¸ÀzjÀ zÁR¯ÉAiÀÄ£ÀÄß ¤.¦.19, ¸ÁQëAiÀÄ ¸À»UÀ¼£ À ÀÄß ¤.¦.19(J) ªÀÄvÀÄÛ ¤.¦.19(©) JAzÀÄ UÀÄgÀÄvÀÄ¥Àr¸À¯Á¬ÄvÀÄ. F ¢£À £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ ºÁdgÀÄ¥Àr¹gÀĪÀ ªÀÄÄ.ªÀiÁ®Ä 1 jAzÀ 10 ªÀÄÄ.ªÀiÁ®Ä 12, 13 ªÀ¸ÀÄÛU¼ À £À ÀÄß £Á£ÀÄ ¸ÀAUÀ滹 ¥ÉÇðøÀgÀ ªÀ±P À ÉÌ PÉÄÁlÖAvÀºÀ ªÀ¸ÀÄÛU¼ À ÁVªÉ."
The above said evidence coupled with inquest report if taken into consideration, the dead body is the dead body of Kiran Yadav and not of any other person. No doubt it is true that the learned advocate for accused denied the process of conducting of post mortem by this witness. At the same time it is not the defense of accused that this witness having personal 72 Spl.C.C.No.231/2015 interest to give such report. But this Court has no impediment to consider that, there is no personal interest having by this witness to depose favourable to the prosecution. Whatever he has observed during postmortem as per Ex.P19, he has deposed the same before the Court. When such being the case, question of considering the elicitation of some commission and omission through this witness does not give the benefit of doubt to the accused. On the other hand the evidence given by this witness supports the case of prosecution against accused. It is true that at the cross-examination he has admitted that he has not written Ex.P19-postmortem repot in is own hand writing, but it is in the hand writing of P.G. student and said P.G. student had written the post mortem report on his dictation and said P.G. student signed in the P.M. Register. He has also mentioned the name of P.G. Student as Dr. Vedant Kulakshetra.
61. The doctor also deposed in respect of examining the accused on 12-02-2015 in respect of injuries received by him at the time of the alleged incident and also mentioned the same in Ex.P21. It is his evidence that:
73 Spl.C.C.No.231/2015
"zÉúÀzÀ ªÉÄÃ¯É PÀAqÀÄ §AzÀAvÀºÀ UÁAiÀÄUÀ¼ÀÄ 1) PÀÄAiÀÄÝ UÁAiÀÄ- §®PÉÊ£À ºÉ¨Én â Ö£À vÀÄ¢AiÀÄ°è EzÀÄÝ CzÀgÀ C¼ÀvÉ .8 ¸ÉAn«ÄÃlgï EzÀÄÝ CzÀÄ CzÀð s ªÁ¹AiÀiÁVvÀÄÛ, 2) §®PÉÊ£À vÉÆÃgÀĨÉg¼ À À ªÀÄzÀås ¨sÁUÀzÀ ªÀÄÄA¨sÁUÀz° À è 1.2 ¸ÉAn«ÄÃlgï GzÀz Ý À PÉÆAiÀÄÝUÁAiÀĪÁVzÀÄÝ CzÀÄ CzÀðs ªÁ¹AiÀiÁVvÀÄÛ 3) .3 ¸ÉAn«ÄÃlgï C¼ÀvA É iÀÄ PÉÆAiÀÄÝUÁAiÀÄ vÉÆÃgÀĨÉg½ À £À vÀÄ¢AiÀÄ ªÀÄÄA¨sÁUÀz° À è EvÀÄÛ, 4) .6 ¸ÉAn«ÄÃlgï GzÀz Ý À PÉÆAiÀÄÝ UÁAiÀÄ §® PÉÊ£À ªÀÄzÀåzÀ ¨Ég½ À £À ªÀÄÄA¨sÁUÀz° À è EzÀÄÝ CzÀÄ ¸ÀºÀ CzÀðs ªÁ¹AiÀiÁzÀ jÃwAiÀÄ°èvÀÄÛ 5) .6 ¸ÉAn«ÄÃlgï GzÀz Ý À PÉÆAiÀÄÝ UÁAiÀÄ §®PÉÊ£À GAUÀÄgÀzÀ ¨Ég½ À £À ªÀÄÄA¨sÁUÀzÀ vÀÄ¢AiÀÄ°è EzÀÄÝ CzÀÄ ¸ÀºÀ CzÀð s ªÁ¹AiÀiÁzÀ jÃwAiÀÄ°èvÀÄÛ, 6) .3 ¸ÉAn«ÄÃlgï GzÀz Ý À §®UÉÊ£À GAUÀÄgÀzÀ ¨Ég½ À £À vÀÄ¢AiÀÄ°è PÉÆAiÀÄÝUÁAiÀÄ«zÀÄÝ CzÀÄ ¸ÀºÀ CzÀðs ªÁ¹AiÀiÁzÀ jÃwAiÀÄ°èvÀÄÛ, 7) JgÀqÀÄ vÀga À zÀ UÁAiÀÄUÀ¼ÀÄ §®UÉÊ£À CAUÉÊ£À »A¨sÁUÀz° À è EzÀÄÝ CzÀgÀ C¼ÀvÉ 3.00 ¸ÉAn«ÄÃlgï x .2 ¸ÉAn«ÄÃlgï ªÀÄvÀÄÛ 2.00 ¸ÉAn«ÄÃlgï x .2 ¸ÉAn«ÄÃlgï EvÀÄÛ 8) JqÀUÉÊ£À ªÀÄzÀsåzÀ ¨Ég½ À £À vÀÄ¢AiÀÄ°è 0.4 ¸ÉAn«ÄÃlgï C¼ÀvG É ¼Àî UÁAiÀÄ«zÀÄÝ CzÀÄ ¸ÀºÀ CzÀð s ªÁ¹AiÀiÁzÀ jÃwAiÀÄ°èvÀÄÛ 9) vÀga À zÀ UÁAiÀÄ JqÀCAUÉÊ£À »A¨sÁUÀz° À zè ÀÄÝ CzÀÄ 1.5 ¸ÉAn«ÄÃlgï x 0.2 ¸ÉAn «ÄÃlgï GzÀÝ«vÀÄ.Û F ªÉÄÃ¯É ºÉýzÀ J¯Áè UÁAiÀÄUÀ¼ÄÀ 7 jAzÀ 10 ¢£ÀzÀ ºÀ¼A É iÀÄ UÁAiÀÄUÀ¼ÁVzÀÄÝ CªÀÅUÀ¼ÀÄ ¸ÁªÀiÁ£Àå¸ÀégÆ À ¥ÀzÀ UÁAiÀÄUÀ¼ÁVzÀª Ý ÀÅ. F §UÉÎ £Á£ÀÄ UÁAiÀÄzÀ ¥ÀæªÀiÁt¥ÀvÀæªÀ£ÀÄß PÉÆnÖzÉÃÝ £É. FUÀ £ÉÆÃrzÀ zÁR¯É ¸Àzj À UÁAiÀÄzÀ ¥ÀæªÀiÁt ¥ÀvÀæªÁVzÀÄÝ CzÀg° À è £À£Àß ¸À» EzÀÄÝ DgÉÆæAiÀÄÄ M¦àUÉ PÉÆlÖ §UÉÎ DvÀ£À ¸À» ¸ÀºÀ EzÉ."
If the above said document coupled with the injuries received on the right hand finger taken into consideration, this Court has no impediment to believe the case of prosecution against accused about commission of offence. No doubt it is true that the learned advocate for accused argued that since the DNA report not received from the competent authority, question of considering the identity of dead body belongs to Kiran Yadav does not arises. But at the same time the other circumstantial evidences fingers towards the dead body as the dead body of 74 Spl.C.C.No.231/2015 Kiran Yadav. When such being the case question of disbelieving the case of prosecution does not arises.
62. At this stage it is worthwhile to emphasis on the decision relied on by the learned Public Prosecutor reported in (2017) 2 SCC (Cri) Page 372, wherein it had been observed that:
"Criminal Procedure Code, 1973-S.53.A-Non- holding of DNA test, or failure to prove DNA test report, or DNA test result favouring accused-Effect of-Held, conviction may still be possible based on remaining evidence, depending on facts and circumstances of the case.
-Failure to conduct DNA test of samples taken from accused or to prove the report of DNA profiling, as in the present case, would not necessarily result in failure of prosecution case-Though a positive result of DNA test would constitute clinching evidence against accused, if however, result of test is in the negative i.e., favouring accused or if DNA profiling had not been done or proved in a given case, weight of other materials and evidence on record will still have to be considered."
Here also non-production of DNA test report is not fatal to the case of prosecution to believe that the dead body was the dead body of Kiran Yadav. Though the facts and circumstances of the above case decision and the facts and circumstances of the case on hand are different one, but the ratio of principle is clearly applicable to the present case on had. 75 Spl.C.C.No.231/2015
63. Pw.24 further deposed that he has obtained B- Register extract of offending vehicle from RTO as per Ex.P30 and his signature is Ex.P30(a). The said bike standing in the name of accused. Thereafter on 13-02-2015 the accused taken him to a shop to show that he has purchased Super Max blades in Hampi Nagar, 9th Main Road from Jagadishwara Provision Stores and on enquiry with the shop owner-Prabhu Dev, he has also admitted about purchase of blade by the accused from his provision store and he has given statement as per Ex.P13 and Ex.P13(a).
64. Here on perusal of evidence of Pw.12-Prabhu Dev, he has identified MO16-Super Max blade, but he has not identified the accused. The learned Public Prosecutor treated him as hostile to prosecution and suggested each and every content of Ex.P13 and Ex.P13(a), for that he has denied the same. The accused not cross-examined this witness. No doubt it is true that this witness turned hostile to prosecution case, but at the same time the accused himself admitted about purchase of MO15 and MO16 from this shop in his voluntary statement and he himself produced the said movables from his house and at 76 Spl.C.C.No.231/2015 the incident spot. Hence question of disbelieving the using of MO15 for commission of offence and remaining blades as MO16 does not arises.
65. Pw.24 further deposed that he has kept the accused in safe custody. He has also recorded the statement of mother of deceased-Kiran Yadav, bus driver-Umesh, bus Ayya- Manjushree, Prema, Krishnappa, Kaza Ajmeer and Manjunath. Krishnappa stated as per Ex.P11 and Ex.P11(a) and Ex.P11(b), Umesh stated as per Ex.P12 and Ex.P12(a), Prema stated as per Ex.P26.
66. Here on perusal of evidence of Pw.23-Prema she has not supported to the case of prosecution and in the cross- examination except testing her veracity with regard to conducting of chit transactions and denial of suggestion about commission of offence by the accused, nothing has been elicited favourable to the defense of the accused herein.
67. On perusal of evidence of Pw.10-Krishnappa, he has deposed that since 35 years he is residing at Moodalapalya by doing vegetable vending business. He is also running Lakshmi 77 Spl.C.C.No.231/2015 Provision store. He hails from Magadi Taluk, Kudur Hobli, Bichana Halli. He is residing at Panchasheela Nagar, Moodala Palya, 3rd Main, 2nd Cross. Moodalapalya and Sanjeevini Nagar situated between the distances of 1 K.M. He know the complainant since from past 5-6 years, he doesn't know the person by name Kumar. He doesn't know the children of complainant. He used to go to the house of complainant to pay chit amount on 10th of every month. He is the member of 5-6 chits run by the complainant and denied rest of the facts and circumstances stating that he doesn't know anything about the same. He has also shown ignorance about what happened to the first son of complainant and he has not seen MO1 to MO10, MO12, MO13 and turned hostile to the prosecution.
68. The prosecution treated this witness as hostile to prosecution case and suggested the contents of his statement as per Ex.P11, Ex.P11(a) and Ex.P11(b), for that he has denied the same. No doubt it is true that this witness turned hostile to the case of prosecution, but at the same time in his cross- examination the accused elicited that he had given complaint against Pw.3-Premila stating that she has cheated in Chit 78 Spl.C.C.No.231/2015 transaction. This piece of elicitation if taken into consideration, though he has stated as per Ex.P11 in his statement before the police, he came to depose falsely against the prosecution and favourable to the accused. When the accused himself has admitted about the commission of offence by giving his voluntary statement, question of disbelieving the case of prosecution through the evidence of this witness does not arise.
69. Now left with the evidence of Pw.24, he has deposed that on 13-02-2015 he has produced the accused before Court, after subjecting him for medical examination. He has also identified the accused. On 14-02-2015 he has conducted mahazar in the presence of panchas viz., Darshan, coupled with C.C.T.V. camera technician-Ravi Chandra in the house of complainant and recorded the scenery of 04-02-2015 and also recorded the scenery at the shop of Sri. Lekha Enterprises and conducted mahazar as per Ex.P2 and his signature is Ex.P2(d). He has also identified the scenery in Ex.P5(a) and Ex.P6(a) and the Pancha-Sony given statement as per Ex.P14 and Ex.P14(a). He has also recorded statement of owner of Sri.Lekha Enterprises-Umesh.
79 Spl.C.C.No.231/2015
70. On perusal of Ex.P2-mahazar, it was drawn at the house of complainant at No.522/10, 10th cross, Sanjeevini Nagar in the presence of Panchas-Darshan, Sony, CCTV technician-Ravi Chandra and the said panchanama was prepared by H.C.1318 on the dictation of Pw.24 from 04.15 p.m., to 05.00 p.m.
71. Here on perusal of evidence of Pw.2-Darshan, he has deposed that he is the car driver of the complainant, he knew Kiran Yadav. On 14-02-2015 the Investigation Officer has taken scenery of CCTV camera footage dated 04-02-2015 recorded the same to pen drive with the assistance of Ravi Chandra at about 04.00 p.m., to 05.00 p.m. near the house of complainant and he has signed the mahazar as per Ex.P2(a). Thereafter the police taken him along with another pancha to Sri.Lekha Enterprises and also conducted mahazar by recording scenery of accused taking Kiran Yadav in a bike from 05.30 p.m., to 06.00 or 06.15 p.m. he has also supported to the case of prosecution in his chief examination. At his cross-examination he was tested the veracity of his evidence by eliciting some commission and omission and also scenery recorded in CCTV camera footage 80 Spl.C.C.No.231/2015 taken to pen drives as per Ex.P5(a) and Ex.P6(a). Except denial suggestion nothing has been elicited favourable to the defense taken by the accused. Mere elicitation that he has signed to Ex.P2 and Ex.P3 is not fatal to the case of prosecution, since the pen drives produced by Pw.24 as per Ex.P5(a) and Ex.6(a) clearly discloses the accused coming to the house at about 07.56 p.m., and on the way in the road run in front of Sri.Lekha Enterprises at 6-7-42 to 47 pm., as shown in the C.C.T.V. cameras.
72. By going through the evidence of Mallesh-Pw.5, he has also supported the case of prosecution in his chief examination in respect of recording scenery in his shop CCTV camera as per Ex.P6(a). He has also given certificate as per Ex.P4 and Ex.P4(a). The accused tested his veracity of his evidence by eliciting some commission and omission and with regard to his computer knowledge and who is handling the CCTV camera footage, but nothing has been elicited favourable to the defense of the accused except denial suggestion.
73. Here the learned advocate for accused argued that 81 Spl.C.C.No.231/2015 while exhibiting Ex.P5(a) and Ex.P6(a), the prosecution has not complied provision of section 65(B) of Indian Evidence Act and relied on the decision reported in AIR 2015 SCC Page 180. But the learned Public Prosecutor argued that he has complied the said provision by producing Ex.P4-certificate issued by Mallesh and also certificate issued by P.S.I., who has recorded scenery of CCTV camera footage through the assistance of technician- Ravi Chandra. At this stage this court feels to observe that the facts and circumstances of the above case decision and the facts and circumstances of the case on hand are different one. With due respect to the learned advocate for accused, the ratio of principle of said decision is not applicable to the present case on hand. With regard to seizure of scenery as per Ex.P5(a), Ex.P6(a) along with Ex.P5 and Ex.P6, this court has no impediment in accepting the genuinty of recording of scenery of accused taking the deceased Kiran Yadav in his bike at about 06.07.42 p.m. in front of Sri.Lekha Enterprises and on the very same day he came alone at about 07.56 p.m. to his house in a bike. Even this Court also perused Ex.P5(a) and Ex.P6(a)-the pen drives in the lap top supplied to the Presiding Officer to 82 Spl.C.C.No.231/2015 know the genuinty of existence of scenery as stated by the prosecution.
74. By going through the evidence of Pw.8-Sonia, she has deposed that about two years back the police came near her father's house and obtained his signature stating that murder was taken place and Ex.P2(c) and Ex.P3(c) are her signatures. Further the prosecution elicited through this witness in respect of she came to know about the murder of Kiran Yadav and conducting of mahazar as per Ex.P2 and Ex.P3 near the house of complainant and near Sri.Lekha Enterprises. To some extent she turned hostile to the prosecution case, the prosecution tested her veracity by suggesting each and every contents of Ex.P2 and Ex.P3. Though she has denied stating that she doesn't know anything about process of conducting mahazar as per Ex.P2 and Ex.P3 and she has not given statement as per Ex.P14 and Ex.P14(a), but it is her evidence that she cannot remember about process of conducting mahazar on 14-02-2015 near the house of complainant and obtaining of her signature as per Ex.P2(c), but within 15 days and after 10 days of the alleged incident her signature was taken by the police. No doubt the 83 Spl.C.C.No.231/2015 accused cross-examined this witness by eliciting that the police obtained her signature on blank paper, but that does not mean to disbelieve the process of conducting of mahazar since the scenery recorded in pen drives are very clear about the involvement of accused in the commission of offence.
75. Now left with the further evidence of Pw.24 that on 03-03-2015 he has received P.M. report and also 10 sealed packet and one small bottle having teeth of the deceased child from P.C.No.4276 who brought the same from the doctor and handed over the same to this witness along with report as per Ex.P22 and his signature is Ex.P22(a) and he has subjected the said articles to P.F. No.30/2015 and received Ex.P19-P.M. report, Ex.P20-model seal and Ex.P21-injury certificate of the accused and his signature is ExP19(c), Ex.P20(b) and Ex.P21(b).
76. On perusal of evidence of Pw.17-Hanuma Murthy, he has deposed that he has received the articles from Victoria Hospital Forensic Medicine Division in respect of articles pertains to deceased-Kiran Yadav in 10 packets, P.M. report, sample seal, injury certificate and one teeth packed in a bottle 84 Spl.C.C.No.231/2015 and handed over the same to the Police Inspector along with his report as per Ex.P22. Thereafter on 12-03-2015 as per the instructions of Police Inspector, he had taken the blood sample of parents of the deceased-Kiran Yadav and handed over the same to Police Inspector along with his report as per Ex.P23. The accused tested his veracity by eliciting some commission and omission, except denial suggestion nothing has been elicited favourable to the defense taken by the accused.
77. Pw.18-Thopaiah-H.C.5225 has deposed that on 11- 02-2015 he has received the dead body of Kiran Yadav and handed over the same to doctor for post mortem. Thereafter he received the dead body and handed over to the parents of Kiran Yadav. In the cross-examination the accused tested his veracity about his duty and other work entrusted to him, but nothing has been elicited favourable to the defense taken by him. At this stage the evidence of Pw.17 and Pw.18 are not formal one.
78. Now left with the further evidence of Pw.24. He has deposed that on 03-03-2015 he has sent the blood stained mud, sample mud and MO15 for chemical examination and for 85 Spl.C.C.No.231/2015 scientific report and also received acknowledgement as per Ex.P31 and his signature is Ex.P31(a). He has also filed application before the Court for drawing blood of parents of deceased for DNA examination on 07-03-2015 as per Ex.P32 and his signature is Ex.P32(a). On 12-03-2015 the Victoria Hospital Forensic Medical Officer has drawn the blood samples of the parents of Kiran Yadav on his request and sent the same through Police Constable-4276 and the same was subjected to P.F.No.36/2015 and obtained permission of the Court for subjecting the above said article to Malupatti. He has also received requisition from Pw.17 as per Ex.P23 and his signature is Ex.P23(b). He has sent the blood samples of deceased and his parents for chemical examination on 16-03-2015 and obtained acknowledgement as per Ex.P33 and his signature is Ex.P33(a). As per the investigation the facts and circumstances established against the accused for the offences under section 364, 302 and 201 of IPC and as such he has filed charge sheet against accused on 08-04-2015. Thereafter he was transferred and one Anand-Police Inspector taken charge and thereafter one-Veerendra Prasad has taken charge as Police Inspector. 86 Spl.C.C.No.231/2015
79. The accused tested his veracity by eliciting some commission and omission and also elicited in respect of earlier to 10-02-2015 he has not arrested the accused. He was also tested in respect of contents of Ex.P25 given by Pw.21-Ravi Kumar. He was also tested in respect of missing case registered by Pw.21. He was also tested in respect of statement given by Pw.3-the mother of deceased. But nothing has been elicited favourable to the defense taken by the accused herein. The accused denied the process of conducting mahazar and investigation by this witness by denial suggestion. When the prosecution has taken drastic stand in respect of voluntary statement given by the accused and through the said voluntary statement the investigation taken place and articles MO1 to MO10, MO11 to MO13 pertaining to Kiran Yadav identified by the complainant, and also recovered the weapons viz. blade used by the accused for cutting the neck of Kiran Yadav, question of disbelieving the investigation conducted by this witness doesn't arises. This witness was also tested in respect of CCTV camera scenery recorded to the pen drives and also at the house of the complainant the P.S.I. has given certificate as 87 Spl.C.C.No.231/2015 per section 65(B) of Indian Evidence Act. As such the question of disbelieving the geniunity of scenery recorded through pen drives does not arises.
80. Now left with the evidence of Pw.4-Ravi Chandra the technician. He has supported to the case of prosecution in his chief examination and also Ex.P5(a) and Ex.P6(a) and process of conducting mahazar as per Ex.P2 and Ex.P3 and his signature as per Ex.P2(b) and Ex.P3(b). He has also deposed that in respect of scenery found in Ex.P6(a). But in the cross- examination he was tested his veracity in respect of technical process and denied the existence of geniunity of Ex.P5(a) and Ex.P6(a), but while fixing pen drive to lap top and shown scenery recorded in CCTV camera, whatever the defense taken by the accused is not acceptable for consideration. In order to believe the geniunity of Ex.P5(a) and Ex.P6(a) and process of conducting mahazar as per Ex.P2 and Ex.P3 the prosecution proved the same through this witness beyond all reasonable doubt.
81. Now left with the evidence of Scientific Officer- 88 Spl.C.C.No.231/2015 Pw.25-Sri.Vidya. She has deposed that she has examined two articles and issued opinion as per Ex.P34 and sample seal as per Ex.P35 and her signature is Ex.P34(a) and Ex.P35(a). As per the opinion of the Scientific Officer no such stains found in MO19 and MO20. The accused cross-examined this witness except denial suggestion nothing has been elicited favourable to the defense taken by the accused.
82. On perusal of evidence of Pw.26-Dr.Chandrashekar, he has deposed that he has chemically examined MO15 and issued opinion as per Ex.P36 and sample seal as per Ex.P37 and his signature is Ex.P36(a) and Ex.P36(b) and Ex.P37(a). As per his opinion presence of blood stain was detected in Item No.1 i.e., MO15 and presence of bloodstain was not detected in item No.2 and 3 i.e., MO19 and MO20-mud. Further he has opined the blood stain item No.1 was disintegrated, hence its origin could not be detected. If this opinion is taken into consideration the Court further elicited through him by putting question in respect of disintegration, he has deposed that: 89 Spl.C.C.No.231/2015
"ªÀÄÄRå«ZÁgÀuÉ ºÁUÀÆ ¥Ánà ¸ÀªÁ°£À°è gÀPz ÀÛ À PÀ¯U É ¼ À ÀÄ r¸ïEAnUÉæÃmÉqï DVvÀÄÛ JAzÀÄ ºÉýzÀÄÝ F jÃw r¸ïEAnUÉæÃmÉqï AiÀiÁªÀ AiÀiÁªÀ ¸ÀAzÀ¨ð Às UÀ¼À°è DUÀÄvÀz Û É JA§ ¥Àæ±ÉßUÉ ¸ÁQë ºÀªÁªÀiÁ£À ªÀåvÁå¸À¢AzÀ ¸ÀjAiÀiÁV gÀPª ÀÛ £ À ÀÄß ¸ÀAgÀQë¹qÀzÀ PÁgÀt, ¸ÀÆPÀëÁätÄ fëUÀ¼ÀÄ D gÀPz ÀÛ À ªÉÄÃ¯É zÁ½ ªÀiÁrzÁUÀ gÀPª ÀÛ ÀÅ r¸ïEAnUÉæÃmÉqï DUÀĪÀ ¸ÁzÀsåvÉ EgÀÄvÀz Û É JAzÀÄ GvÀj Û ¹gÀÄvÁÛg.É "
Admittedly as per the voluntary statement of accused he has murdered Kiran Yadav on 04-02-2015 in between 06.50 p.m, to 07.56 p.m, and MO15 was seized in the mid-night of 10- 02-2015 in open yard, that too in forest area of Bangalore University. There may be natural calamity attacked on MO15, as such bloodstain was disintegrated.
83. With these now left with the available material evidence placed on record and the arguments canvassed by the learned advocate for accused has to be looked into. The learned advocate for accused argued that the complainant and his wife- Premila does not know about the ill-will developed by the accused against Premila in view of the information given against him with his mother and in turn his mother scolded him as stated in his voluntary statement, they are also thinking that the accused is also a good person. They came to know about the ill-will developed by the accused only when the accused's 90 Spl.C.C.No.231/2015 voluntary statement was recorded, they came to know his attitude towards complainant and his wife-Premila. As such the Motive not proved by the prosecution. But on perusal of entire evidence it reveals that the accused having Motive to teach Premila by killing her son. When such being the case it is worthwhile to emphasis on the decision reported in AIR 1981 Page 1021 State of Hariyana Vs.Sher Singh wherein it is observed that:
"The prosecution is not bound to prove Motive of any offence in a criminal case, in as much as Motive is known only to the perpetrator of the crime and may not be known to others. If the Motive is proved by the prosecution, the court has to consider it and see whether it is adequate."
Further in AIR 1997 SC 318-State of M.P.Vs. Dhirendra Kaur, wherein it is observed that:
"Evidence as to Motive in a Murder trial-Accused, a tenant in the house of father-in-law of deceased for whom the accused allegedly had an evil eye. Family of deceased coming to know about intentions of the accused from deceased herself as she reported the matter to her mother-in- law and Mother-in-law in turn, reporting to her husband who asked the accused to vacate premises. Mother-in-law stated that she spoke about it to her husband, fifteen days before occurrence. Father-in-law stated it was 7-8days before 91 Spl.C.C.No.231/2015 occurrence. Statement of father-in-law that he had asked to vacate house not challenged in cross-examination, little discerepency bout number of days does not warrant discarding otherwise consistent evidence of witnesses, Motive of killing was proved."
As such at this stage this Court feels to observe that though the facts and circumstances of the above case decision and the facts and circumstances of the case on hand are different one, but the ratio of principle is clearly applicable to the present case on hand in respect of motive need not be proved by the prosecution.
84. The learned advocate for accused has also argued in respect of complaint's wife running chit transaction, she developed so many rivals in her chit transactions and also produced Ex.D1 to Ex.D9 the chit transactions pass books, news paper cuttings stating that she has cheated the public and in turn for revenge, any one person has done the criminal act against her son-Kiran Yadav. But on perusal of above said news paper cuttings, it is all done only after the alleged incident and not earlier to that and as such it is not safe to consider the very conduct of the complainant and his wife as alleged by the 92 Spl.C.C.No.231/2015 accused in respect of filing of case against the wife of complainant-Pw.3-Premila.
85. The learned advocate for accused also produced copy of order sheet in C.C.No.9352/2016 as per Ex.D11 to Ex.D14. But the said documents also pertain to subsequent of the incident. As such the same is not acceptable for consideration of defense that the accused is an innocent and he has not committed any offence as alleged against him. At the same time the motive of the accused is clearly established by the prosecution through his voluntary statement and it supplied the chain of link of taking Kiran Yadav on 04-02-2015 after he getting down from the school van at about 05.45 p.m., stating that his brother fell down and received injuries and his parents have taken him to the hospital and he is ready to take him to the hospital and then he has taken him in his bike and the same was recorded in CCTV footage of Sri.Lekha Enterprises while he was passing from Moodalapalya towards Nagarabhavi Circle. After that he alone return to his house in the same bike at about 07.56p.m., was recorded in the CCTV camera of the complainant. Even in the absence of chain of links also it is not 93 Spl.C.C.No.231/2015 a ground to reject the case of the prosecution in respect of motive not proved.
86. The learned advocate for accused relied on the decision reported in 2015 Crl. L.J., Page 4774(SC) in respect of recovery of MO15-bloodstain blade and sent for FSL examination and FSL examination report stating that the stain is disintegrated as such not much weight is to be attached to the blood stain and the ratio of principle laid down in the above cited decision is applicable to the facts and circumstances of the present case on hand in order to acquit the accused. But with due respect to the learned advocate for accused, the facts and circumstances of the above case decision and the facts and circumstances of the case on hand are different one and the ratio of principle not applicable to the present case on hand. The learned advocate for accused also cited the decisions reported in (1) 2012 Crl.L.J. Page 2096 (SC), (2) 2000 Crl.L.J. Page 739 (SC), (3) AIR 2016 SC Page 2381, (4) 2003 Crl.L.J. Page 5054 (SC), (5) 2010 Crl.L.J Page 4 (CHG), (6) 2016 Crl.L.J. Page 1453 (Kar), (7) 2017 Crl.L.J. 2109, (8) 2015 (4) AKR Page 382 (SB), (9) 2005 Crl.L.J. Page 2565 (SC), (10) 2016 Crl.L.J.(NOC) 94 Spl.C.C.No.231/2015 Page 35 (BOM), (11) 2012 Crl.L.J. 1991 (SC), (12) 2003 Crl.L.J. Page 2302 (SC), (13) 2016 (3) AKR 561, (14) 1996 Crl.L.J. page 506 (All), (15) 2017 Crl.L.J. Page 749 (SC), (16) AIR 2011 SC Page 2302, (17) 1999 Crl. L.J. Page 3698 (SC), (18) ILR 2016 Kar Page 2737, (19) 1971 SCC (Cri) page 684, (20) AIR 1974 SC 344 and (23) (1976) 1 SCC Page 542. But with due respect to the learned advocate for accused, the facts and circumstances of the above case decisions and the facts and circumstances of the case on hand are different one and the ratio of principle is not applicable to the present case on hand.
87. The learned Public Prosecutor relied on the decision reported in AIR 2009 SC Page 2573 in respect of circumstantial evidence and it can be basis to prove the guilt of the accused and also doctrine of 'falsus in unofalsus in omnibus' and also relied on the decision reported in AIR 2010 SC Page 3071 in respect of minor discrepancy not touching core of the case cannot be the ground for the rejection of evidence in entirety and minor omissions in police statement cannot be considered fatal. Further he has also relied on the decision reported in AIR 2003 SC Page 539, wherein it had been observed that establishment 95 Spl.C.C.No.231/2015 of motive is not a sine-qua-non for proving the prosecution case, failure to prove motive for crime is of no consequence especially when the role of accused persons in the crime stands established the oral evidence. Further he has also relied on the decision reported in 2003 Crl.L.J. Page 4782, wherein it had been observed that proof of motive generally lends corroboration to the prosecution case. However, the absence of motive or non- proof of motive does not always create a doubt on the prosecution case, if the circumstantial evidence adduced by the prosecution is otherwise considered reliable and trustworthy.
88. He has also relied on the decision reported in 2013 (3) Kar. L.J. Page 298 (SC), wherein it had been observed that when prosecution case is established fully by reliable ocular evidence coupled with medical evidence and also relied on the decision reported in 2011 Crl.L.J. Page 4943 (SC) wherein it had been observed that absence of motive in cases where ocular and medical evidence prove the crime-Held, motive is immaterial in such cases. Further he has also relied on the decision reported in AIR 2011 SC Page 200 wherein it had been observed that if motive is proved that would supply a link in the chain of 96 Spl.C.C.No.231/2015 circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. He has also relied on the decision reported in 2008 Crl. L.J. Page 808 (SC) wherein it had been observed that it is true that in a case relating to circumstantial evidence motive does assume great importance but it is not correct to say that the absence of motive would dislodge the entire prosecution story. The motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. Further he has also relied on the decision reported in 2005 Crl. L.J. Page 4518 wherein it had been observed that where oral evidence and circumstances of the case proves the participation of the accused persons in the commission of the crime, it would be hardly relevant to prove motive. Conviction of the accused appellant under section 446 and 302 of IPC was held proper.
89. Here the prosecution established the motive of the accused murdering of Kiran Yadav due to his mother spoken about his character connecting with Ashwini. No doubt it is true that the accused argued in respect of prosecution not producing said Ashwini and mother of the accused, as prosecution witness 97 Spl.C.C.No.231/2015 as such it is fatal to the case of prosecution. Further he has also argued that earlier to incident about 15 days back the accused quarreled with Pw.3-the wife of complainant when she was purchasing vegetables and also not produced the recorded scenery of the said incident through CCTV camera footage of complainant's house and the same is the best evidence to prove the ill-will of the accused with Pw.3. But the accused not produced either in the cross-examination of Pw.1 and Pw.3 that the quarrel was taken place in front of house of complainant or else where. Non-elicitation said fact through the mouth of Pw.3 it is not safe to accept the arguments canvassed by the learned advocate for accused. On the other hand in order to consider the motive of the accused to kill Kiran Yadav the ratio of principle laid down in the decisions relied on by the prosecution, this Court also followed the ratio of principle laid down in the decision mentioned above and relied on by the prosecution.
90. The learned Public Prosecutor also relied on the decision reported in 2013 Crl.L.J. Page 56 (SC) in respect there was no independent witness of recoveries and pancha witnesses were only police personnel, it may not affect the merits of the 98 Spl.C.C.No.231/2015 case. Here also MO15 seized at the instance of the accused in the mid-night of 10-02-2015 in the forest area of Bangalore University Campus where non-availability of independent persons. No doubt it is true that the prosecution produces the evidence of Madhu Kiran and Surya and other witnesses, there are some discrepancies found, but that does not mean it is fatal to the case of the prosecution. The learned Public Prosecutor also relied on the decision reported in AIR 1999 SC 1293 in respect of there is nothing in section 27 which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is open or accessible to others. In order to prove the seizure of MO1 to MO5 near the dead body this court also followed ratio of principle of the above stated decisions.
91. The learned Public Prosecutor also relied on the decision reported in (2015) Volume-1 SCC Page 253 and submitted the ratio of principle of the said decision is also applicable to the present case on hand. The learned Public Prosecutor also relied on the decision reported in 2017(2) Crimes 154 SCC Page 154, Para-86, 127, 136 and submitted that the 99 Spl.C.C.No.231/2015 ratio of principle is applicable to the present case on hand. This court perused the above cited decisions and while coming to the conclusion against accused about the commission of offence by him, this Court also followed the ratio of principle laid down in the decision relied on by the prosecution.
92. Viewing from available material evidence both at oral and documentary placed on record as per Section 106 of Indian Evidence Act, the burden of proof lies on the prosecution to prove the guilt of the accused and the prosecution has proved the guilt of the accused beyond all reasonable doubt by leading evidence to show that shortly before commission of crime, he has taken the deceased-Kiran Yadav when he was getting down from the school van at about 05.45 p.m, and taken him towards Jnana Bharathi Campus and murdered him. Here it is not in dispute that as per the cross-examination of Pw.1 and Pw.3, deceased-Kiran Yadav was close to accused and he used to call him as 'Anna', he was very much acquainted with the accused and believing the accused he went along with him, but the accused having ill motive and having grudge with the mother of deceased-Kiran Yadav has committed the said offences. 100 Spl.C.C.No.231/2015
93. The learned counsel for the accused argued that there are so many improvements and omissions in the evidence of prosecution and benefit of doubt is to be given to the accused, but the evidence of prosecution witnesses are very clear about the commission of offence by the accused. Hence, the argtuments canvassed by the learned advocate for accused in respect of so many improvements and omissions available in the evidence of prosecution cannot be considered. At this stage it is worth while to emphasis on the decision reported in (2011) 3 SCC (Cri) Page 803 (Rakesh and another Vs. State of Madhya Pradesh), wherein it is held that:
" F.Criminal Trial-Proof-Recovery of crime/ incriminating material/other articles-Recovery of weapons on disclosure statements-Depositions of Investigating Officer had been natural-There was no proof that I.O. had any animosity or any kind of interest and closeness to deceased-Question of not believing his statement does not arise-Evidence Act, 1872,S.27."
Here also the evidence of Investigation Officer is very clear about the accused had given voluntary statement and he himself shown the dead body and commission of offence by him with the deceased Kiran Yadav, till then no such 101 Spl.C.C.No.231/2015 clue was received from any other source. Though the facts and circumstances of the above case decision and the facts and circumstances of the case on hand are different one butthe ratio of principles is clearly applicable to the present case on hand.
94. Further it is the submission of accused that he is working in BHEL and his working hour is up to 07.00 p.m., and he is studying B.Com., at evening college. But in order to establish the same, no such documentary evidence or oral evidence or statement given at the time of recording his statement under section 313 of Cr.P.C., to show that on 04- 02-2015 was working day and he was on duty at 06-07-42 p.m. to 06-07-42 p.m., and not on the road in a bike along with the deceased-Kiran Yadav. At this stage it is worth while to emphasise on the decision reported in (2012) 3 SCC (Cri) Page 271 (Neel Kumar @ Anil Kumar Vs. State of Haryana), wherein it had been held that:
" C. Criminal Procedure Code, 1973-S.313- Statement of accused under-Duty of accused while 102 Spl.C.C.No.231/2015 making such statement-Failure to discharge such duty-Effect of-Held it is duty of accused while making statement under S.313, to explain incriminating circumstance proved against him- Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain charges against him-Criminal Trial-Circumstantial Evidence-Failure to explain incriminating circumstances."
Failure on the part of accused to explain or to produce evidence on his behalf to prove his defense, this Court feels to observe that though the facts and circumstances of the above case decision and the facts and circumstance of case on hand are different one, but the ratio of principle is clearly applicable to the present case on hand.
95. The oral and documentary evidence placed on record by the prosecution is sufficient to prove the alleged offences against the accused beyond all reasonable doubt. The defense of the accused not established by him through cross-examination of prosecution witnesses. The facts and circumstances of the case including materials on record discussed above probabalises the case of the prosecution rather than the defense of the accused.
103 Spl.C.C.No.231/2015
96. In view of the above said reasons, I hold that the evidence of Pw.1 to Pw.26 and documentary evidence of Ex.P1 to Ex.P37 and M01 to MO20 placed on record in respect of alleged offences is sufficient to prove that the accused is the resident of house bearing No.528, 'C' Cross, 10th Main of Sanjeevini Nagar in Chandra Layout, Bengaluru and the complainant-B.M.Ravi Kumar is the resident of house situated opposite to the house of accused bearing No.522/A, along with his wife-Cw.2-Premila and two sons, viz., deceased-Kiran Yadav and Tilak Yadav, deceased-Kiran Yadav was his eldest son. During the month of December-2014, Cw.2-Premila made complaint with the mother of the accused against him, for that the parents of accused and his other family members scolded him, as such the accused got angry with Cw.2-Premila, with an intention to take revenge against her, on 04-02-2015 he has decided to take away the son of Cw.2-Premila viz., Kiran Yadav, aged about 14 years, some where, without the knowledge of anybody and to murder him. As a result he went to the shop of Cw.14-Prabhu Dev, purchased five super max shaving blades, kept them in his bike and at about 05.45 p.m., he went near 104 Spl.C.C.No.231/2015 Vishwa Bharathi School where Kiran Yadav used to get down from the school van, since he was used to board the school van there itself in the morning, waited there up to getting down of Kiran Yadav from the school van, talked with Kiran Yadav stating that his brother fell down on the ground and received injuries on his head, his family members taken him to the hospital and told him to accompany him to go to hospital. At that time Kiran Yadav was with school uniform and having school bag. The accused took the Kiran Yadav in a black motor bike bearing No.KA-02-HX-7901, towards Jnana Bharathi University Campus inside Sai Grounds, where the thick forest trees are grown with bushes, the accused with an intention to murder Kiran Yadav, closed the mouth of deceased-Kiran Yadav through his hand, pushed him and got fell down on the ground, sat on him and taken one blade from his pocket and cut the neck of Kiran Yadav brutally, as a result Kiran Yadav received heavy bleeding injuries and died at the spot itself. After committing murder in order to conceal the same he threw the dead body towards bushes and thereby the accused committed offences punishable under Section 364, 302 and 105 Spl.C.C.No.231/2015 201 of I.P.C., beyond all reasonable doubt. Consequently, I hold Point No.1 to 3 in the "Affirmative".
97. Point No.4:- For the above said reasons and discussions on Point No.1 to 3, I hold that the accused is entitled for an order of conviction. Hence, in the final result, I proceed to pass the following:
ORDER Acting under Section 235(2) of Cr.P.C., the accused is found guilty and convicted for the offences punishable under Section 364, 302 and 201 of I.P.C.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open court on this the 18th Day of December 2017.) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE 106 Spl.C.C.No.231/2015 ORDER ON SENTENCE Heard the arguments from the learned advocate for the accused regarding sentence and learned Public Prosecutor from prosecution side. The learned advocate for accused relied on the decision reported in 1989 Crl.L.J. Page 636 (SC).
2. The learned advocate for the accused submitted that the accused is the only son to his parents, having age of 25 years, he is un-married, his parents became old and requested to take lenient view in respect of imposing sentence on the accused and also relied on the decision mentioned above. Further the learned advocate for accused submitted that the accused was convicted purely on circumstantial evidence, as such the ratio of principle of the above case decision is applicable to the present case on hand and requested to consider the same. On the other hand the learned Public Prosecutor submitted that looking into the facts and circumstances of the case and commission of offences, lenient view cannot be taken regarding sentence.
3. It is not in dispute that the accused committed murder of Kiran Yadav, who was aged 14 years, studying in 107 Spl.C.C.No.231/2015 8th standard and minor. The said fact admitted by him by stating voluntary statement. When such being the case, I feel the ends of justice will be met by imposing the minimum sentence to the accused for the offences punishable under Section 364, 302 and 201 of IPC as prescribed in I.P.C.
4. Further punishment for the offence under Section 364 of I.P.C., fixed for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In respect of offence under Section 302 of I.P.C., shall be punished with death or life imprisonment and shall also be liable to fine. In respect of causing disappearance of evidence of offence under section 201 of IPC coupled with 302 of IPC, the Capital offence punishable with death, be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. Thus in my opinion if the Court has to impose sentence of life imprisonment with fine of Rs.20,000/- and in default of payment of fine, to under go simple imprisonment for a period of four months in respect of offence under Section 364 of I.P.C., against accused, life imprisonment with fine of Rs.25,000/- and in default of payment of fine to under go simple imprisonment for a period six months in respect of offence under Section 302 108 Spl.C.C.No.231/2015 of I.P.C., fixed to accused and simple imprisonment for a period of seven years with fine of Rs.10,000/- and in default of payment of fine to under go simple imprisonment for a period two months in respect of offence under Section 201 of I.P.C., no impediment will be caused to him. Hence, I proceed to pass the sentence as under:
SENTENCE Accused is sentenced to under go Life Imprisonment and to pay a fine of Rs.20,000/- for the offence under Section 364 of I.P.C., and in default of payment of fine, he shall further under go Simple Imprisonment for a period of four months.
Accused is sentenced to under go Life Imprisonment and to pay a fine of Rs.25,000/- for the offence punishable under Section 302 of I.P.C. and in default for payment of fine he shall further undergo simple imprisonment for a period of six months.
Accused is sentenced to under go simple imprisonment for a period of seven years and to pay a fine of Rs.10,000/- for the offence 109 Spl.C.C.No.231/2015 punishable under Section 201 of I.P.C. and in default for payment of fine he shall further undergo simple imprisonment for a period of two months.
All the three sentences of accused shall run concurrently.
The accused is entitled for benefit of set-off for the period for which he has already undergone imprisonment as under trial prisoner during the course of trial as provided under Section 428 of Cr.P.C.
MO-1 to MO-13, MO15 to MO20 are treated as worthless and shall be destroyed after appeal period is over and if appeal is preferred, after disposal of appeal subject to the result of said appeal.
Out of deposit of Rs.55,000/- by the accused, Cw.2-Pw.3/Premila-the mother of deceased-Kiran Yadav is entitled to Rs.50,000/- as compensation. The remaining amount of Rs.5,000/- is considered as State expenses. Office is directed to return Rs.50,000/- to Cw.2-Pw.3/Premila as compensation in accordance with law.110 Spl.C.C.No.231/2015
Issue conviction warrant.
Furnish free copy of judgment and order of sentence to the accused person forth with.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open court on this the 21st Day of Decenber 2017.) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
Pw.1 B.M.Ravi Kumar Cw.1 05-01-2016
Pw.2 Darshan Cw.9 05-01-2016
Pw.3 G.R.Premila Cw.2 16-02-2016
Pw.4 P.Ravichandra Cw.11 11-03-2016
Pw.5 S.Mallesh Cw.17 05-10-2016
Pw.6 Trimurthy Cw.3 16-03-2017
Pw.7 Rajesh Cw.8 07-06-2017
Pw.8 Sonia Cw.10 21-07-2017
Pw.9 Harish Cw.4 28-07-2017
Pw.10 Krishnappa Cw.13 31-07-2017
Pw.11 Umesh Cw.15 31-07-2017
111 Spl.C.C.No.231/2015
Pw.12 Prabhu Dev Cw.14 03-08-2017
Pw.13 Manjushree Cw.16 07-09-2017
Pw.14 Kishore Cw.18 07-09-2017
Pw.15 Madhukiran Cw.5 13-09-2017
Pw.16 Dr. Dilip Kumar Cw.19 07-10-2017
Pw.17 Hanuma Murthy Cw.20 24-10-2017
Pw.18 S.R.Thopaiah Cw.23 24-10-2017
Pw.19 Manjunath Cw.21 24-10-2017
Pw.20 Surya Cw.7 02-11-2017
Pw.21 Ravi Kumar. C. Cw.24 07-11-2017
Pw.22 Kaza Ajmeer Cw.22 07-11-2017
Pw.23 Prema Cw.12 07-11-2017
Pw.24 P.S.Sudharshan Cw.25 22-11-2017
Pw.25 C.Sri Vidya Addl Wit-1 28-11-2017
Pw.26 Dr.Chandrashekar Addl Wit-2 06-12-2017
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION
Ex.P 1 Complaint Pw.1 05-01-2016
Ex.P 1a Signature of Pw.1 Pw.1 05-01-2016
Ex.P 2 Mahazar (in house) Pw.2 05-02-2016
Ex.P 2a Signature of Pw.2 Pw.2 05-02-2016
Ex.P 2b Signature of Pw.4 Pw.4 11-03-2016
Ex.P 3 Mahazar Pw.2 05-02-2016
Ex.P 3a Signature of Pw.2 Pw.2 05-02-2016
Ex.P 3b Signature of Pw.4 Pw.4 11-03-2016
Ex.P 4-6 Positive Photos Pw.1 17-02-2016
112 Spl.C.C.No.231/2015
Ex.P 4 Certificate u/s. 65-B Pw.5 05-10-2016
of IEA( as per order-
24-10-2017)
Ex.P 4a Signature of Pw.5 Pw.5 05-10-2016
Ex.P 5a Pen drive (residence) Pw.5 22-10-2016
(as per order-24-10-
2017)
Ex.P 6a Pen drive (Sri.Lekha Pw.5 22-10-2016
Enterprises) (as per
order-24-10-2017)
Ex.P 7 Seizure mahazar Pw.6 16-03-2017
Ex.P 7a,b Signature of Pw.6 Pw.6 16-03-2017
Ex.P 8 Seizure mahazar Pw.6 16-03-2017
Ex.P 8a, b Signatures of Pw.6 Pw.6 16-03-2017
Ex.P 9 Statement of Pw.7 Pw.7 07-06-2017
Ex.P 10 Slip on cover Pw.6 28-07-2017
Ex.P 10a Signature of Pw.6 Pw.6 28-07-2017
Ex.P 11 Portion of statemnt of Pw.10 31-07-2017
Pw.10
Ex.P 11a Portion of statemnt of Pw.10 31-07-2017
Pw.10
Ex.P 12 Portion of statemnt of Pw.11 31-07-2017
Pw.11
Ex.P 12a Portion of statemnt of Pw.11 31-07-2017
Pw.11
Ex.P 13 Portion of statemnt of Pw.12 03-08-2017
Pw.12
Ex.P 13a Portion of statemnt of Pw.12 03-08-2017
Pw.12
Ex.P 14 Portion of statemnt of Pw.8 07-09-2017
113 Spl.C.C.No.231/2015
Pw.8
Ex.P 14a Portion of statemnt of Pw.8 07-09-2017
Pw.8
Ex.P 15 Requisition Pw.14 07-09-2017
Ex.P 15a Signature of Pw.14 Pw.14 07-09-2017
Ex.P 16 Letter Pw.14 07-09-2017
Ex.P 17 Police Notice Pw.15 13-09-2017
Ex.P 18 Inquest Pw.15 13-09-2017
Ex.P 19 P.M. Report Pw.16 07-10-2017
Ex.P 20 Sample seal Pw.16 07-10-2017
Ex.P 21 Injury certificate Pw.16 07-10-2017
Ex.P 22 & Reports of Pw.17 Pw.17 24-10-2017
23
Ex.P 24 FIR Pw.21 07-11-2017
Ex.P 25 Requisition Pw.21 07-11-2017
Ex.P 26 Statement of Pw.23 Pw.23 07-11-2017
Ex.P 27 Requisition Pw.24 22-11-2017
Ex.P 28 Voluntary statement Pw.24 22-11-2017
of accused
Ex.P 30 Register extract Pw.24 22-11-2017
Ex.P 31 FSL acknowledge Pw.24 22-11-2017
Ex.P 32 Requisition Pw.24 22-11-2017
Ex.P 33 FSL Pw.24 22-11-2017
acknowledgtement
Ex.P 34 FSL report Pw.24 28-11-2017
Ex.P 35 Sample seal Pw.24 28-11-2017
Ex.P 36 FSL report Pw.24 22-11-2017
Ex.P 37 Sample seal Pw.24 22-11-2017
114 Spl.C.C.No.231/2015
LIST OF MATERIAL OBJECTS MARKED ON
BEHALF OF PROSECUTION
MO 1 White colour sports Pw.1 05-01-2016
shoe
MO 2 Half sleve shirt Pw.1 05-01-2016
MO 3 School bag Pw.1 05-01-2016
MO 4 Full pant Pw.1 05-01-2016
MO 5 Underwear Pw.1 05-01-2016
MO 6 Socks-red & blue Pw.1 05-01-2016
colour
MO 7 Tie-cream & blue Pw.1 05-01-2016
colour
MO 8 Red colour belt with Pw.1 05-01-2016
metal
MO 9 Waist threat with a Pw.1 05-01-2016
metal
MO 10 Blazer-Maroon Pw.1 05-01-2016
MO 11 White colour sports Pw.1 05-01-2016
shoe
MO 12 Half sleve shirt Pw.1 05-01-2016
MO 13 School bag Pw.1 05-01-2016
MO 14 Full pant Pw.1 05-01-2016
MO 15 Underwear Pw.6 28-07-2017
MO 16 Socks-red & blue Pw.14 07-09-2017
colour
MO 17 Tie-cream & blue Pw.14 07-09-2017
colour
MO 18 Red colour belt with Pw.14 07-09-2017
metal
MO 19 Waist threat with a Pw.24 22-11-2017
metal
115 Spl.C.C.No.231/2015
MO 20 Blazer-Maroon Pw.24 22-11-2017
LIST OF DOCUMENTS MARKED ON BEHALF OF
DEFENCE
Ex.D1 SLV Chit Fund books Pw.3 28-01-2017
Ex.D1(a) Signature of Pw.3 Pw.3 28-01-2017
Ex.D2 SLV Chit Fund books Pw.3 28-01-2017
Ex.D2(a) Signature of Pw.3 Pw.3 28-01-2017
Ex.D3 SLV Chit Fund books Pw.3 28-01-2017
Ex.D3(a) Signature of Pw.3 Pw.3 28-01-2017
Ex.D4 SLV Chit Fund books Pw.3 28-01-2017
Ex.D4(a) Signature of Pw.3 Pw.3 28-01-2017
Ex.D5 News paper dated 08- Pw.3 28-01-2017
01-2016
Ex.D5(a) Portion marked in red Pw.3 28-01-2017
ink
Ex.D6 News paper dated 08- Pw.3 28-01-2017
01-2016
Ex.D6(a) Portion marked in red Pw.3 28-01-2017
ink
Ex.D7 News paper dated 08- Pw.3 28-01-2017
01-2016
Ex.D7(a) Portion marked in red Pw.3 28-01-2017
ink
Ex.D8 News paper dated 08- Pw.3 28-01-2017
01-2016
Ex.D8(a) Portion marked in red Pw.3 28-01-2017
ink
116 Spl.C.C.No.231/2015
Ex.D9 News paper dated 07- Pw.3 28-01-2017
01-2016
Ex.D9(a) Portion marked in red Pw.3 28-01-2017
ink
Ex.D10 Photo Pw.21 16-11-2017
Ex.D11 Copy of order sheet in Pw.24 28-11-2017
C.C.No.9352/2016
Ex.D12 Copy of charge sheet Pw.24 28-11-2017
Ex.D13 Copy of order sheet in Pw.24 28-11-2017
Cr.No.13/2016
Ex.D12 Copy of charge sheet Pw.24 28-11-2017
LIST OF WITNESSES EXAMINED & MO.S MARKED ON
BEHALF OF DEFENCE
-NIL-
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
***