Bangalore District Court
The State Of Karnataka By vs Mohankumar on 16 May, 2023
IN THE COURT OF THE LVIII ADDL.CITY CIVIL AND
SESSIONS JUDGE (CCH-59), BENGALURU CITY.
Dated this the 16th day of May, 2023
PRESENT:
Sri.N.Krishnaiah, B.Sc.. LL.B,
LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru City.
SESSIONS CASE NO.1167/2021
COMPLAINANT: The State of Karnataka by:
Rajagopalanagar Police Station,
Bangalore.
(By learned Public Prosecutor)-
-V/S-
ACCUSED : 1. Mohankumar,
S/o Anandamurthy,
Aged about 32 years,
Residing at No.297,
11th Cross, Peenya 2nd Stage,
Bengaluru.
2. Nagaraj.H,
S/o Huchappa,
Aged about 36 years,
Residing at No.372,
4th Cross, 5th Main,
Rajagopalanagara,
Bengaluru.
(By Sri.B.L., Advocate)
2 S.C.No.1167/2021
1/2020
1. Date of commission of offence 16.06.2021
2. Date of report of occurrence 16.06.2021
3. Date of arrest of the accused A1 & 2: 17.06.2021
Released on A1- 26.08.2022
Period of custody A1-1 year 2 months 9 days
A2- Judicial Custody
4. Date of commencement of 13.12.2022
Evidence
06.02.2023
5. Date of closing of evidence
6.Name of the Complainant Smt.Prabhavathi
7.Offence complained of 302, 341, 504 and 506
r/w 34 of IPC
8.Opinion of the Judge Offences not proved
9.Order of sentence Accused found not guilty
and acquitted for the said
offences.
JUDGMENT
The Police Inspector of Rajagopalanagar police station, Bengaluru City, has laid this charge sheet against the 3 S.C.No.1167/2021 1/2020 accused Nos.1 and 2 for the offences punishable under sections 302, 341, 504 and 506 read with section 34 of IPC.
2. The brief facts in nut-shell of the case of prosecution is that, in the year 2019, deceased Karthick had agreed to purchase two flats bearing Nos.008 and 009 of Sri Sai Sumukha Serenity Apartment, situated at Peenya 2 nd Stage, I.P.Nagar for Rs.61,00,000/- from its owner CW-12 and 14 at the instance of accused No.1. The deceased had paid advance amount of Rs.40,00,000/- to the owners and get executed sale agreements dated 20.04.2018. Subsequently, the deceased Karthick along with his wife CW-1 and his father CW-10 were residing in the said flats. But due to difference arose between deceased and owners of the flats, the owners have refused to execute regular sale deeds by receiving balance sale consideration amount. On this back ground, deceased has also filed a civil suit in O.S.No.1470/2021 against CW-12. When the owners have refused to execute the sale deed, the deceased had thought that, the accused No.1 himself is responsible for non 4 S.C.No.1167/2021 1/2020 execution of sale deed by the owners. About five months back to the date of this incident, accused No.1 obtained a contract to construct a building on opposite side of the said Apartment in the site No.03 and he has started constructing a house. In order to lay Sanitary pipes, accused No.1 got digged road on 21.05.2021. On this background, the deceased Karthick had lodged a complaint against this accused No.1 at Rajagopalanagar Police Station as accused No.1 had digged the road without permission and illegally. Then the police called this accused No.1 to the police station and enquired and recorded his statement. On 12.06.2021 at the instance of the deceased, CW-13 uploaded a message in whats-app status as accused No.1 is having illicit relationship with CW-11. On this background, accused No.1 developed enmity against the deceased and decided to eliminate the deceased permanently. Then, he contacted his friend accused No.2 and decided to commit murder of deceased.
5 S.C.No.1167/20211/2020
3. On 16.06.2021 at about 6-35 pm, both these accused with their common intention to commit murder of deceased, they went to the house of deceased, in search of him. When they did not find the deceased inside the house, they have abused the deceased in filthy language and threatened to commit murder of the deceased by addressing the wife and father of the deceased CW-1 and 10, who were in the house and went outside the house. Subsequently, they came near constructing house in site No.03 and waiting by the side of the road expecting the deceased. In the meantime, CW-1, the wife of deceased informed through mobile to her husband deceased as these accused were searching of him to commit murder. Then, the deceased in order to go to his house was coming in his Suzuki Axis Motorbike bearing No.KA01-EY-5474. When he reached the scene of crime, accused Nos.1 and 2 have wrongfully restrained the deceased without going further and pushed the deceased from the bike on the ground. Immediately accused No.1 picked up a Cement brick 6 S.C.No.1167/2021 1/2020 weighing about 8 kgs and hit on the head of deceased at 2- 3 times forceibely by stating that, he should die as he was always giving trouble. Then accused No.2 has also picked up another Cement brick weighing about 3.5 kgs and abused him in filthy language as he is giving false complaints against accused No.1 and hit on the head of Karthick at 2-3 times and crushed the head of deceased and brutally committed murder. When CW-1, 7, 10, 15, 16 and 20 by observing the incident, rushed to the spot, both these accused fled away from spot in their Hero Honda Splendor bearing No.KA-03-HN-4226. Subsequently, CW-1, who is the wife of the deceased initiated written first information at Ex.P.1.
4. Based on the said first information, the Police Sub-Inspector of Rajagopalanagar Police Station had registered this case in crime No.212/2021 for the offences punishable under sections 302, 341, 504 and 506 read with section 34 of IPC and send FIR. After conducting the spot mahazar, inquest mahazar and also post mortem report, the 7 S.C.No.1167/2021 1/2020 body of the deceased handed over over to their relatives. On 17.06.2021 these accused were arrested by the police Inspector, who is the Investigating Officer of this case and produced before the learned Magistrate and remanded for police custody for investigation. He has recorded the voluntary statement of the accused and recovered bloodstained clothes at the instance of these accused by drawing mahazars at Ex.P.18 and 19. Subsequently, these accused were produced before the learned Magistrate and they were remanded to judicial custody. The Police Inspector/CW-32 further investigated this case and filed this charge sheet against these accused for the offences punishable under sections 302, 341, 504 and 506 read with section 34 of IPC.
5. After filing the charge sheet the Learned Magistrate has taken cognizance and registered this case. The accused Nos.1 and 2 were produced before the learned Magistrate through judicial custody. On subsequent date, accused No.1 was released on bail by the Hon"ble High 8 S.C.No.1167/2021 1/2020 Court of Karnataka. Accordingly, he has appeared before the learned Magistrate through his counsel. Accused No.2 was produced before the learned Magistrate from judicial custody and he was also represented through his counsel. After securing these accused, the learned Magistrate has furnished the copy of the charge sheet to these accused and complied under section 207 of Cr.P.C and committed this case to the Court of Sessions, as the alleged offence punishable under Section 302 of IPC is exclusively triable by the Court of Sessions. After receipt of the records, the Hon'ble Principal City Civil and Sessions Judge has registered this case in S.C.No.1167/2021 and made over the same to this court for trial.
6. In response to the intimation, the accused No.2 produced from judicial custody. Accused No.1 appeared before this court. Both these accused were represented through their counsel. On subsequent date, after hearing both the parties, being satisfied with the prima facie 9 S.C.No.1167/2021 1/2020 materials on record, this Court has framed the charges against these accused for the offences punishable under Sections 302, 341, 504 and 506 read with section 34 of IPC. When read over the same to the accused, they pleaded not guilty and claimed to be tried. Hence, the matter was posted for prosecution evidence.
7. To bring home the guilt of the accused, the prosecution got examined among CW-1 to 32 charge sheet witnesses, in all twenty five witnesses as PW-1 to 25 and produced 65 documents and got marked Ex.P.1 to 65 and also identified 13 material objects and got marked as M.O.1 to 13. After closing the evidence of the prosecution, the statement of the accused under section 313 of Cr.P.C., was also recorded. The accused Nos.1 and 2 have denied all the incriminating circumstances elicited from the prosecution witnesses and they have not chosen to lead any defence evidence. Hence, the matter was posted for arguments on merits.
10 S.C.No.1167/20211/2020
8. The learned Public Prosecutor, during the course of his argument has vehemently argued that, on the background of old enmity, these accused have committed murder by hitting with big Cement bricks on the head of the deceased and brutally committed murder. The accused have not disputed the death of deceased is a homicidal death. Moreover, the post mortem report and evidence of the Doctor, who conducted post mortem clearly indicates that, the death was caused due to shock and hemorrhage, as a result of head injury sustained. Though the relatives and independent eyewitnesses turned hostile, but the scientific evidence produced before this court can be believed. PW-20, who is an Investigating Officer has clearly deposed about the entire investigation conducted by him and filing of charge sheet. Absolutely, there is no material placed by the accused as to why the evidence of Investigating Officer cannot be believed. So, the evidence of Investigating Officer is corroborated with the medical evidence and succeeded to prove that these accused 11 S.C.No.1167/2021 1/2020 themselves have committed murder of the deceased on the background of old enmity. The bloodstains found on the clothes of these accused, which were recovered at the instance of the accused, tallied with the bloodstains of the deceased found in the spot and also weapon. Therefore, based on the evidence of this Investigating Officer and medical officer, the conviction can be based and these accused were deserves to be convicted with maximum sentence.
9. On the contrary, the learned counsel for the accused has submitted that though the death of deceased is homicidal death, but the accused have taken a defence of total denial. Accordingly, the primary burden lies on the prosecution to establish the charges leveled against these accused by producing consisting and corroborative evidence beyond all reasonable doubt. Towards this end, except the evidence by the police officer, absolutely there is no corroborative evidence by any one of the independent witnesses including the blood relatives of deceased and 12 S.C.No.1167/2021 1/2020 independent eyewitnesses. Almost all the material witnesses examined before this court have not supported the theory of prosecution. The prosecution has also not proved the recovery of any bloodstained clothes from the accused and weapon from the spot by drawing any mahazar. All the independent panch witnesses and also relatives of the deceased have totally turned hostile. Hence, absolutely, there is no corroborative evidence by any one of the independent witnesses to prove the spot mahazar and recovery of any incriminating materials at the instance of the accused or from the custody of the accused. Though the Investigating Officer has deposed about the investigation conducted by him and filing of charge sheet, but mere registering FIR, drawn a mahazar is not sufficient proof of recovery. First of all, the prosecution has not established as there is any enmity or motive to these accused to commit murder. When the prosecution has failed to prove the recovoery of bloodstained clothes, based on the FSL report and also medical evidence, it cannot be 13 S.C.No.1167/2021 1/2020 held that, the accused themselves are responsible for the said incident. Therefore, absolutely, there is no incriminating evidence placed by the prosecution to prove any of the ingredients of the alleged offences. Hence, it creates a serious doubt about the involvement of these accused in the alleged offence. Therefore, the benefit of doubt should be extended to these accused and they are entitled for acquittal.
10. In support of his arguments, the learned counsel for the accused has placed reliance upon the following rulings reported in:
1. Criminal Appeal No.118/2021 in case of Sri.Rangaswamy @ Ranga and others.
2. 2015 SCC Online Kar 2749 in case of Chethana V/s State of Karnataka by Dhabaspet police.
3. 2016 SCC Online Kar 9048 in case of State V/s P.Mohammed Ashraf.
4. 2017 SCC Online Kar 4033 in case of The State through Indi Police Station, Bijapur V/s Babu and others.14 S.C.No.1167/2021
1/2020
5. 2018 SCC Online Kar 2025 in case of Kenchappa V/s The State of Karnataka by Singatagere Police Station.
11. In view of the aforesaid rival submissions and also charges leveled against the accused, the following points that would arise for my consideration:-
1. Whether the prosecution proves beyond reasonable doubt that, the death of deceased-Karthick is culpable homicide?
2. Whether the prosecution further proves that, on 16.06.2021 at about 6.30 PM, these accused Nos.1 and 2 with their common intention went to the house of CW-1 and intentionally insulted by abusing filthy language to the deceased and thereby committed an offence punishable under section 504 read with section 34 of I.P.C?
3. Whether the prosecution further proves that, they have also committed criminal intimidation by threatening to cause death 15 S.C.No.1167/2021 1/2020 of the deceased as he is obstructing all the work of accused No.1 and thereby committed an offence punishable under section 506 read with section 34 of I.P.C?
4. Whether the prosecution further proves that, these accused Nos.1 and 2 with their common intention decided to commit murder of the deceased. When deceased was coming in his Suzuki Motorbike bearing No.KA01-EY-5474, both these accused wrongfully restrained the deceased and pushed to fell down the deceased with an intention to commit murder and thereby committed an offence punishable under section 341 read with section 34 of IPC?
5. Whether the prosecution further proves that, on the same day at about 6-50 pm, both these accused with their common intention wrongfully restrained the deceased and pushed to fell down and accused Nos.1 and 2 picked up big sixe Cement bricks and hit on the head of deceased at 2-3 times forcibly, knowingly if such act is done, death will be ensured 16 S.C.No.1167/2021 1/2020 and brutally murdered the deceased and thereby committed an offence punishable under section 302 read with section 34 of I.P.C?
6. What order?
12. I have heard the arguments on both sides and perused the materials placed on record.
13. My findings on the above points are as follows:-
POINT NO.1 - In the Affirmative.
POINT NO.2 - In the Negative.
POINT NO.3 - In the Negative.
POINT NO.4 - In the Negative.
POINT NO.5 - In the Negative.
POINT NO.6 - As per final order for the following:-
: REASONS :
14. POINT NO.1: In order to prove the guilt of the accused, the prosecution got examined the first informant and eyewitness, who is the wife of deceased as 17 S.C.No.1167/2021 1/2020 PW-1. PW-14 is the father of the deceased and also eyewitness. PW-15 is the sister of the deceased and circumstantial eyewitness. PW-6, 13, 16 and 18 are the independent direct eyewitnesses. PW-2, who is another relative of deceased and also circumstantial evidence. PW- 5, 9 to 12, 17 and 19 are the circumstantial witness. PW-3, 4, 7, 8 and 21 are the spot and seizure mahazar witnesses. PW.24 is the Medical Officer, who conducted postmortem on the body of the deceased. PW.25 is the Assistant Director of FSL. PW-22 and 23 are the police constables, who assist the investigation. PW-20 is the Investigating Officer.
15. On the background of aforesaid rival submissions made by both the parties, on perusal of entire evidence on record, it is not in dispute that, the deceased Karthick and accused No.1 are known to each other. In fact, earlier to the incident, accused No.1 helped the deceased Karthick to purchase two flats from its owners as a mediator. But, during the course of prosecution evidence the accused have taken a defence of total denial about entire incident, 18 S.C.No.1167/2021 1/2020 and their involvement in the death of deceased. Therefore, the primary burden lies on the prosecution to prove the death of deceased is a homicidal death.
16. In order to discharge its primary burden, the prosecution has mainly relied upon the evidence of PW.24- Medical Officer, who conducted the postmortem on the dead body of the deceased in corroboration with the evidence of PW-1, 2, 5, 6 and 9 to 19. During the course of his evidence, this PW.24 has clearly stated that, on the request of Investigating Officer, he has conducted postmortem on the dead body of the deceased and he has noted the injuries found on the body of the deceased in his report at Ex.P.42 as follows:
EXTERNAL INJURIES:
1. Crush injury of head and face exposing underlying fractured skull through which brain matter drained out. The underlying bones are fractured into multiple fragments.19 S.C.No.1167/2021
1/2020
2. Split laceration measuring 5 x 1.5cm x bone deep present over chin.
3. Split laceration measuring 6 x 1cm x bone deep present 2cm below the chin.
4. Abrasion measuring 5 x 3cm present over back of left forearm.
5. Abrasion measuring 4.5 x 2cm present over inner aspect of lower 1/3rd of left forearm.
6. Abrasion measuring 10 x 0.7cm present over back of left shoulder.
INTERNAL INJURIES:
1. Scalp described. Skull fractured into multiple fragments and few parts are missing. Membranes lacerated corresponding to the fractured site.
Vertebrae intact. Brain described.
2. Chest wall, Ribs and cartilages, Pleurae & Larynx & Raches -Intact.
Lungs right and left are oedematious, Cut section ecudes froth mixed with blood. Heart - Intact. Coronary artery Limens are patent.
3. Abdomen, wall, peritoneum, Mouth, Pharynx and oesophagus are Intact.
Stomach is empty, no unusual smell present. Mucosa is normal. Small intestine and large intestine contains 20 S.C.No.1167/2021 1/2020 gas and its content. Liver and spleen are intact.
4. Geneito-Urinary organs are intact.
17. He has also given his final opinion at Ex.P.59 stating that "Injury Nos.1, 4, 5 and 6 can be caused by weapon No.2. Injury Nos.2 to 6 may be caused by weapon No.1. He is of the opinion that, "the death is due to head injury sustained".
18. During the course of cross-examination, though he has admitted the suggestion that, he has not mentioned the time since death since the body was kept in cold storage and he has also not mentioned the manner of death. But, he has specifically denied the suggestion that, he has given false report at the instance of police. Therefore, if it is carefully considered the nature of injuries sustained on the body of the deceased and opinion of this expert, which clearly corroborates with each other and establish the fact that the death of deceased Karthick is 21 S.C.No.1167/2021 1/2020 homicidal death. Therefore, without any much probe based in this medical evidence, it can be concluded as death of deceased is culpable homicide. In view of the aforesaid reasons, I answer point No.1 in "Affirmative".
19. POINT NOS.2 TO 5: Since all these points are inter linked with each other, they are taken up together for discussion, in order to avoid repetition of facts and evidence.
20. As rightly submitted by the learned counsel for the accused, merely proving the death of deceased as culpable homicide is not sufficient to prove that, the accused themselves have involved in this crime and committed the alleged offences. Therefore, again the primary burden lies on the prosecution to prove that these accused themselves have committed murder of the deceased by producing consisting and corroborative evidence beyond all reasonable doubt. 22 S.C.No.1167/2021 1/2020
21. As rightly submitted by the learned Public Prosecutor, in two folds the said incident was occurred. In the first fold of incident, these accused came to the house of the deceased, in search of him with an intention to kill. But at that time, the deceased was not available in his house. At that time, they have disclosed their intention to kill the deceased in front of the wife and father of the deceased. Subsequently, they went out side the house and waiting for the deceased in the scene of occurrence. When the deceased was coming towards his house on the way, these accused restrained him and they have executed their plan by committing murder. When the accused were committing murder of deceased, CW-1, 7, 10, 15, 16, 20 came to the spot and observed the incident. So, the prosecution is based on direct evidence to prove the incident.
22. In order to prove the said incident, the prosecution has mainly rested upon the evidence of PW.1 6, 13, 14, 16 and 18, who are the direct eye-witnesses. But, 23 S.C.No.1167/2021 1/2020 PW-1, who is none other than the wife of the deceased, during the course of her evidence, she has specifically stated that she does not know what was the transaction between her husband and accused No.1. She does not know where accused No.1 was residing. On 16.06.2021 her husband went out side of her house, but subsequently, somebody came and informed as her husband fell down on the road. When she went to the spot, her husband was lying in a pool of blood. But, she does not know who has committed murder of her husband. She came to know that, somebody might have hit on the head and committed murder of her husband. Though she identified her signature found in the complaint at Ex.P.1, but she does not know the contents of the same. She does not know anything about the spot mahazar and recovery of any articles in her presence in the scene of occurrence. Prior to the said incident these accused Nos.1 and 2 did not come to her house and threatened with dire consequences to her husband. She has not identified these accused in any place 24 S.C.No.1167/2021 1/2020 and also in the police station. Hence, this PW-1, who is none other than the wife of the deceased and also first informant has deposed entirely contrary to the contents of her own complaint.
23. PW-14-Rajendra Prasad, who is none other than the father of the deceased, during the course of his evidence, though he has stated that, on 16.06.2021 at about 11-00 am, when he himself and his deceased son were going on the road, accused No.1 had digged the road. When his son deceased Karthick questioned accused No.1 as to why he digged the road, it would cause inconvenient to the public, accused No.1 abused him in filthy language. Again, at 6-00 pm, accused No.1 came to his house and abused him in filthy language to his son. Subsequently, at 6-30 pm, when his son was coming towards his house, the accused No.1 has committed his murder. But, he does not know what was the enmity or transaction between his son and accused No.1. He does not know how the incident was happened. He was not present at the time of committing 25 S.C.No.1167/2021 1/2020 murder of his son. He has not given any statement to the police about this incident. Hence, as rightly pointed out by the learned counsel for the accused, this PW-14 has deposed entirely contrary to his statement at Ex.30. As per his statement Ex.P.30, he is the direct eyewitness to the said incident, but he has not whispered anything about the said incident. Hence, this PW-14 who is another blood relative of the deceased has turned hostile.
24. PW-6-Aravinda Reddy, PW-13-Harisha, PW-16- Lokesh, PW-18-Manjunatha, who are neighbourers and independent eyewitnesses, but during the course of their evidence, though they have stated that, deceased Karthick was committed murder by somebody, but they do not know, who have committed murder of the deceased. They do not know anything about the transaction or any enmity between the deceased and accused No.1. They were not present at the time of the incident in the spot. They came to the spot after the incident. They have not seen these accused in the spot. They have not given any statement to the police about 26 S.C.No.1167/2021 1/2020 this incident. Hence, these PW-6, 13, 16 and 18, who are star witnesses to the case of the prosecution have totally turned hostile.
25. PW-15-Smt.Rachitha, who is none other than the sister of the deceased, but during the course of her evidence, she has also stated that, she does not know who have committed murder of her brother deceased Karthick. She does not know what was the transaction between her brother and accused No.1. She does not know, where and how and who have assaulted and committed murder of her brother. She has not enquired her father and came to know about this incident. Hence, this PW-15, who is another material witness has turned hostile.
26. PW-2-Balaji, who is also one of the relative of the deceased, during the course of his evidence, though he has stated that, there was a misunderstanding between the deceased Karthick and accused No.1, but he does not know who has committed murder of the deceased. He came to 27 S.C.No.1167/2021 1/2020 know about this incident through police. During the course of his cross examination, he has specifically stated that, he never went to the spot and watched the incident. He does not know personally anything about the said incident. He has not given any statement to the police about this incident. Hence, this PW-2, who is another material witness has not consistently and firmly deposed about the said incident.
27. In order to prove the other circumstances under which there was an enmity between accused No.1 and the deceased Karthick, the prosecution got examined the apartment owner and her family members as PW-9 to 12. But, during the course of their evidence, all these witnesses have not whispered anything to prove that, there was an enmity between the deceased and accused No.1 on any aspect and on this background, the deceased was murdered by these accused Nos.1 and 2. They have not given any statement to the police about this incident. Hence, these 28 S.C.No.1167/2021 1/2020 PW-9 to 12 have also not supported the case of the prosecution.
28. PW-17-Smt.Kavitha, who is another circumstantial witness has stated that, she does not know anything about deceased Karthick and accused No.1. She does not know whether there was any enmity between accused No.1 and Karthick in respect of digging road to lay sanitary pipe to her newly constructed house. She has not given any statement to the police about this incident. PW-19- Puttamallegowda, who is another circumstantial witness, during the course of his evidence, he has also stated that, he does not know who has committed murder of deceased Karthick. He does not know what was the transaction held between accused No.1 and deceased. He never went to the place of incident and watched the incident of murder. He never enquired the wife of the deceased about the incident. He has not given any statement to the police about this incident. Hence, these PW-17 and 19 who are other material witnesses have also totally turned hostile. 29 S.C.No.1167/2021 1/2020
29. Even in respect of recovery of weapons used by these accused to kill the deceased, sample blood in the spot, by drawing mahazar at Ex.P.2 in corroboration with the evidence of Investigating Officer, absolutely there is no evidence by any one of the independent panch witness. PW.1 who is none other than the wife of the deceased and PW-2 and 21, who are other panth witnesses have clearly stated that, the police never came to the spot and drew the spot mahazar at Ex.P.2 and recovered any sample blood or bloodstained Cement bricks (weapons) and other material objects from the spot. Hence, these PW-1, 2 and 21 have totally turned hostile even about recovery of incriminating material articles from the spot.
30. In order to prove the recovery of two wheeler, which was used by these accused in corroboration with the evidence of Investigating officer though prosecution got examined three witnesses as PW-2 to 4, but they have also admitted that, they do not know anything about seizure of any vehicle at the instance of the accused by drawing any 30 S.C.No.1167/2021 1/2020 mahazar at Ex.P.2. They do not know the contents of this mahazar. Hence, these PW-2 to 4 have also not whispered anything about recovery of any vehicle which was alleged used by these accused in the said crime.
31. In order to prove the recovery of bloodstained clothes from the accused in corroboration with the evidence of Investigating officer, the prosecution got examined two independent panch witnesses as PW-7 and 8. but, during the course of their evidence, these two witnesses have also stated that, they do not know anything about seizure of any bloodstained cloths from any of these accused by drawing any mahazarsat Ex.P.18 and 19. Except putting signature on these mahazars at police station, they do not know the contents of the same. They never seen these accused in any place in the custody of the police. They have not given any statement to the police about this incident. Hence, these PW-7 and 8 have also totally turned hostile.
32. On the request of the learned Public Prosecutor, all these PW-1 to 19 and 21 were treated as hostile and the 31 S.C.No.1167/2021 1/2020 learned Public Prosecutor was permitted to cross-examine. Though he cross has examined at length, but except denial nothing is elicited in favour of the version of the prosecution to prove any of the circumstances which connect the guilt of the accused. All these material witnesses were not whispered anything against these accused Nos.1 and 2 to prove any of the circumstances and incident. Hence, absolutely there is no whisper to incriminate these accused in the alleged offences.
33. No doubt PW-22, who is the police constable has deposed that, as per the direction of his Investigating Officer, he went to BBMP office and secured the spot sketch, katha extract of the spot and hand over the same to Investigating officer. On the same day, he brought Cement bricks and handed over to Medical officer to give opinion.
34. PW-23. Who his another police constable, during the course of his evidence,he has stated that as per the direction of the Investigating Officer,he was on duty in the 32 S.C.No.1167/2021 1/2020 spot from 10-00 pm to 8-00 am and guarded the evidence in the spot.
35. PW-20, the Investigating officer, during the course of his evidence, he has deposed that, on 16.06.2021 at about 7-00 pm, he received information about death of a person in front of Sri.Sai Sumukha Apartment Gate. Then, immediately he rushed to the spot and appointed his staff to preserve the evidence. He received the complaint from the wife of the deceased and registered this case and send FIR at Ex.P.36. On the next day morning he visited the spot and drew the spot mahazar at Ex.P.2 at the instance of PW-1 and recovered bloodstained sample mud, two cement bricks, two slippers. He has also drawn the inquest mahazar. He has referred the body of the deceased for post mortem. After postmortem he has handed over the body in favour of his wife PW-1. On the same day, he has arrested these accused Nos.1 and 2 and recorded their voluntary statements. He has seized the motorcycle at the instance of these accused by drawing a mahazar at Ex.P.12. He has 33 S.C.No.1167/2021 1/2020 also recovered bloodstained clothes from the custody of the accused Nos.1 and 2 by drawing mahazar at Ex.P.18 and
19. He has followed the procedure of arrest and produced before the learned Magistrate. He has recorded the statement of the witnesses. He has also obtained opinion from the medical officer. He has referred the seized material articles to the FSL and obtained report at Ex.P.64. He has further investigated and filed this charge sheet against the accused Nos.1 and 2 for the alleged offences.
36. PW-25, who is an Assistant Director of FSL has deposed that he received 13 articles from the Investigating Officer and examined in his lab. He has issued a report at Ex.P.64. According to his opinion, the presence of bloodstain was detected on Item Nos.1, 3 to 13, which is human blood and 'B' group. But, except evidence by these PW.20 to 25, absolutely there is no corroborative evidence to prove the recovery of these item Nos.1 to 13. When the prosecution has failed to prove the recovery of those articles by producing any corroborative evidence, this scientific 34 S.C.No.1167/2021 1/2020 evidence is no way helps the case of the prosecution to prove any of the circumstances, which connect the guilt of the accused. Therefore, except evidence by these PW-20 and 25, absolutely, there is no corroborative evidence by any one of the independent witnesses, including the blood relatives of the deceased and eyewitnesses to prove any of the circumstances, which connect the guilt of the accused persons.
37. Therefore, the prosecution has not placed any evidence to prove the motive and intention of the accused to kill the deceased. None of the witnesses have whispered anything about the previous galata or ill-will between the accused and deceased. The prosecution has also not proved the last scene theory to prove the alleged incident. The prosecution has not proved the recovery of the weapon and vehicle allegedly used by the accused and bloodstained cloths seized from the custody of the accused. All most all the eyewitnesses and circumstantial witnesses, spot and seizure mahazar witnesses have totally turned hostile and 35 S.C.No.1167/2021 1/2020 they have not supported the case of the prosecution to prove the said incident.
38. Under similar circumstances, our Hon'ble High Court of Karnataka in a recent ruling rendered in Crl.Appeal No.118/2021 connected with 53/2021, 54/2021, 1068/2020 in case of Rangaswamy @ Ranga V/s State of Karnataka, has acquitted the accused by observing that:
"It is settled position of law that when doubt arises in the evidence of prosecution, benefit of doubt shall be extended to the accused. In all these appeals pertaining to accused Nos.1 to 12, though several witnesses have been subjected to examine including the material witnesses namely PW-1 and 2, who are eyewitnesses, it is seen that, both these witnesses have given a go-bye to the version of their statements inclusive of the substance in the FIR said to be recorded by the Investigating Agency. In the Criminal justice Delivery system, when doubt arises in the 36 S.C.No.1167/2021 1/2020 mind of the Court, the said benefit shall be extended to the accused alone.
40. In another ruling reported in 2016 SCC Online Kar 9048 in case of State V/s Mohammed Ashraf , wherein the our Hon'ble High Court under similar circumstances has acquitted the accused by observing that:
"Be that as it may, the fact remains that all the eyewitnesses including the injured eyewitness have turned hostile and they have pointedly answered that, they do not know as to who stabbed the injured PW-2. Even PW-2 as deposed that, he does not know as to who stabbed him".
41. In another ruling rendered in Criminal Appeal Nos. 430-431 of 2015, in the case of Jafarudheen and others Vs. State of Kerala, the Hon'ble Apex Court has further held that:
"The onus is on the prosecution to prove the fact discovered from the information 37 S.C.No.1167/2021 1/2020 obtained from the accused. This is also for the reason that the information has been obtained while the accused is still in the custody of the police. Having understood the aforesaid object behind the provision, any recovery under Section 27 will have to satisfy the Courts conscience. One cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the accused, by other means. The Court will have to be conscious of the witness's credibility and the other evidence produced when dealing with a recovery under Section 27 of the Evidence Act. As the section is alleged to be frequently misused by the police, the Courts are required to be vigilant about its application. The Court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. The Court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple case of recovery as the case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act."38 S.C.No.1167/2021
1/2020
42. In the light of principle laid down in the aforesaid rulings, on perusal of the entire evidence on record, except the evidence by Police Officers, who have registered this case, investigated and filed this charge sheet, absolutely there is no corroborative evidence by any one of the independent witness, including the blood relatives, friends of the deceased to prove any of the circumstances which connect the guilt of the accused. The prosecution has also not proved the motive, pre-plan or preparation made by these accused just earlier to the said incident. It is also not proved what is the strong motive to commit murder by producing any evidence. Though there are direct eye-witness to prove committal of murder, but they have not supported the case of the prosecution.
43. Under these circumstances, in the absence of consisting and corroborative evidence, solely based on the evidence of Investigating Officer and scientific officer, it cannot be held that, the prosecution has proved the 39 S.C.No.1167/2021 1/2020 charges leveled against the accused beyond reasonable doubt.
44. During the course of cross examination, PW-20 Investigating officer has admitted that, the deceased Karthick used to making galata with his neighbourers on the background of not sufficient set back leaving. He had also lodged complaint against one Gujari owner, who is an influential person and at his instance his lorry was seized. He used to make galata with neighbourers for silly reasons. This admission clearly shows that, not only accused No.1, several persons had developed enmity against this deceased. Under these circumstances, in the absence of consisting and corroborative evidence, it create a serious doubt about involvement of any other persons in the said incident. So in view of the settle principle laid down in the aforesaid rulings, when the doubt arises in the mind of the Court, the said benefit shall be extended to these accused. When the prosecution has failed to prove the charges by producing corroborative and consisting evidence, without 40 S.C.No.1167/2021 1/2020 any alternative, the accused are entitled for acquittal by extending benefit of doubt. In view of the aforesaid reasons, I answer point No.2 to 5 in "Negative"
45. POINT NO.6:- In the result, for the reasons stated above, I proceed to pass the following:-
ORDER By exercising the power conferred under Section 235(1) of Cr.P.C., the accused Nos.1 and 2 are hereby acquitted for the offences punishable under sections 302, 341, 504 and 506 read with section 34 of Indian Penal Code.
The bail bond of accused No.1 and his surety stands canceled.
The accused No.2 is produced from judicial custody. The office is hereby directed to issue intimation to the concerned Jailer to release the 41 S.C.No.1167/2021 1/2020 accused No.2 forthwith if he is not required for any other case.
M.O.1 to 13 being worthless are ordered to be destroyed, after the appeal period is over.
The Hero Honda Splendor Plus bearing registration No.KA-03-HN-4226 seized under P.F.No.139/2021 is to be returned to the RC owner of the vehicle, after the appeal period is over.
(Dictated to the Judgment Writer directly on computer, corrected, signed and then pronounced by me in the open court on this the 16th day of May 2023) (N.KRISHNAIAH) LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W-1 Prabhavathi 42 S.C.No.1167/2021 1/2020 P.W-2 Balaji P.W-3 Manjunatha P.W-4 Harisha P.W-5 Nithin Bhakthavathsala P.W-6 Aravinda Reddy P.W-7 Balakrishna P.W-8 Ramakrishna P.W-9 Roopashree P.W-10 Sarojamma P.W-11 Ravi P.W-12 Ramanna P.W-13 Harisha P.W-14 Rajendra Prasad P.W-15 Rachitha P.W-16 Lokesha P.W-17 Kavitha P.W-18 Manjunatha P.W-19 Puttamallegowda P.W-20 B.Iyanna Reddy P.W-21 Hemanth Jadav P.W-22 Srikantha Kuri P.W-23 Umesh P.W-24 Dr.M.P.Pradeep Kumar P.W-25 Dr.Srivudya.Y 43 S.C.No.1167/2021 1/2020
2. LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 Complaint
Ex.P.1 (a & b) Signatures
Ex.P.2 Spot mahazar
Ex.P.2 (a to d) Signatures
Ex.P.3 Police Notice
Ex.P.4 Police Notice
Ex.P.4(a) Signature
Ex.P.5 Photo
Ex.P.6 Further statement of PW-1
Ex.P.7 Police Notice
Ex.P.7(a to c) Signatures
Ex.P.8 Rough sketch
Ex.P.8(a & b) Signatures
Ex.P.9 Inquest Mahazar
Ex.P.9(a to e) Signatures
Ex.P.10 Photo of deceased
Ex.P.11 Further statement of PW-2
Ex.P.12 Seizure mahazar
Ex.P.12(a to c) Signatures
Ex.P.13 Police Notice
Ex.P.13(a to c) Signatures
Ex.P.14 Photograph
Ex.P.15 Further statement of PW-3
Ex.P.16 Further statement of PW-4
Ex.P.17 Further statement of PW-6
Ex.P.18 Seizure mahazar
Ex.P.18(a to c) Signatures
Ex.P.19 Seizure mahazar
Ex.P.19(a to c) Signatures
Ex.P.20 Police notice
Ex.P.20(a & b) Signatures
Ex.P.21 & 22 Photographs
Ex.P.23 Statement of PW-7
Ex.P.24 Statement of PW-8
Ex.P.25 Statement of PW-9
Ex.P.26 Statement of PW-10
44 S.C.No.1167/2021
1/2020
Ex.P.27 Statement of PW-11
Ex.P.28 Statement of PW-12
Ex.P.29 Statement of PW-13
Ex.P.30 Statement of PW-14
Ex.P.31 Statement of PW-15
Ex.P.32 Statement of PW-16
Ex.P.33 Statement of PW-17
Ex.P.34 Statement of PW-18
Ex.P.35 Statement of PW-19
Ex.P.36 F.I.R
Ex.P.36(a) Signature
Ex.P.37 Photograph
Ex.P.38 Acknowledgment letter
Ex.P.39 Report
Ex.P.39(a) Signature
Ex.P.40 Voluntary statement of A-1
Ex.P.40(a & b) Signatures
Ex.P.41 Voluntary statement of A-2
Ex.P.41(a & b) Signatures
Ex.P.42 Postmortem report
Ex.P.42(a & b) Signatures
Ex.P.43 Report
Ex.P.43(a) Signature
Ex.P.44 Copy of the Agreement of sale
Ex.P.45 Certified copy of order sheet in
O.S.No.1470/2021
Ex.P.46 Certified copy of the plaint
Ex.P.47 Requisition given by IO
Ex.P.48 Requisition given by IO to PWD
Department
Ex.P.49 FSL acknowledgment
Ex.P.50 Endorsement given by BBMP
Ex.P.51 Spot sketch
Ex.P.52 Requisition of IO
45 S.C.No.1167/2021
1/2020
Ex.P.53 E-mail Extract
Ex.P.54 Statement of Mohankumar
Ex.P.55 Requisition given by IO to BWSSB
Ex.P.56 C/c of the sale deed
Ex.P.57 Report
Ex.P.58 B-register Extract
Ex.P.59 Final opinion of Doctor
Ex.P.60 Extract of registration certificate
Ex.P.61 Whats app message
Ex.P.62 Statement of Hemanth Jadav
Ex.P.63 Sample seal
Ex.P.64 FSL Report
Ex.P.64(a) Signature of PW-24
Ex.P.65 Sample seal
Ex.P.65(a) Signature of PW-24
3. LIST OF WITNESSES EXAMINED & DOCUMENTS EXHIBITED FOR ACCUSED:
- NIL -
4. LIST OF MATERIAL OBJECTS PRODUCED AND GOT MARKED FOR PROSECUTION M.O.1 Bloodstained mud M.O.2 Sample mud M.O.3 Cement brick 8 kg M.O.4 Cement brick 3.5 kg M.O.5 Left leg chappal M.O.6 Right leg chappal M.O.7 Shirt 46 S.C.No.1167/2021 1/2020 M.O.8 Half pant M.O.9 T-shirt M.O.10 Night pant M.O.11 ¾ pant M.O.12 T-shirt M.O.13 Baniyan (N.KRISHNAIAH) LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
47 S.C.No.1167/20211/2020 A1 present.
A2 produced from JC
physically.
Ld. Counsel for accused
present.
Judgment pronounced in the Open Court (vide separately) ORDER By exercising the power conferred under Section 235(1) of Cr.P.C., the accused Nos.1 and 2 are hereby acquitted for the offences punishable under sections 302, 341, 504 and 506 read with section 34 of Indian Penal Code.
The bail bond of accused No.1 and his surety stands canceled.
The office is hereby directed to issue intimation to the concerned Jailer to release the accused No.2 forthwith if he is not required for any other case.
48 S.C.No.1167/20211/2020 M.O.1 to 13 being worthless are ordered to be destroyed, after the appeal period is over.
The Hero Honda Splendor Plus bearing registration No.KA-03-HN-4226 seized under P.F.No.139/2021 is to be returned to the RC owner of the vehicle, after the appeal period is over.
(N.KRISHNAIAH) LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.