Bangalore District Court
Peenya P S vs A1 Sreenivasa Alias Seena on 8 July, 2024
1 SC No.702/2019
KABC010166172019
IN THE COURT OF THE LXI ADDL. CITY CIVIL
AND SESSIONS JUDGE: BENGALURU CITY.
Dated this the 08 th day of July, 2024
-: PRESENT :-
Sri Anand T. Chavan, B.com., LL.B (Spl),
LXI Addl. City Civil and Sessions Judge,
Bangalore, (CCH-62)
S.C.No.702/2019
COMPLAINANT: State by Peenya P.S.,
Bengaluru.
(By Learned Public Prosecutor)
V/s.
ACCUSED : 1. Srinivas @ Seena
S/o. Kallanagowda,
Aged about 24 years,
R/a. Indirani's house,
Gangondahalli Main Road,
Indiranagara,
Doddabidarakallu,
Nagasandra Post,
Bengaluru.
2 SC No.702/2019
Permanent Address:
Gurlakatte Grama,
Kanakikoppa Post,
Naragunda.
2. Prabhu @ Bhajantri,
S/o. Late Sanna Basappa,
Aged abut 32 years,
Near Ganga International
School, Indiranagara,
Nelagadarahalli Main Road,
Nagasandra Post,
Bengaluru.
Permanent Address:
Bendegamballi Grama Post,
Hobli, Shapura Taluk,
Yadgiri District.
(A1 and 2 Rep. by
Sri.M.R.M., Advocate)
1. Date of Commission
of Offence : 03.12.2018
2. Date of Report : 04.12.2018
of Offence
3. Status of the : Accused Nos.1 and 2
accused are on bail
4. Name of the : Suresh Gowda
complainant
5. Date of : 27.09.2022
Commencement of
evidence
3 SC No.702/2019
6. Date of Closing of : 11.06.2024
Evidence
7. Offences complained : Offence punishable
of under Sections
302, 120(b) R/w.
Section 34 of IPC
8. Opinion of the Judge : Accused Nos.1 and 2
are acquitted for the
offences punishable
under section 302,
120(b) R/w. Section 34
of IPC.
J UD GM E N T
The Police Inspector, Peenya Police Station (C.W.45) has filed
charge sheet against accused Nos.1 and 2 alleging offences
punishable under Sections 302, 120-B R/w. Section 34 of IPC.
2. The brief facts of the prosecution case is that;
On 03.12.2018 at 7.30 pm accused No.1 had been to
Rajkumar Bar and Restaurant situated at Indiranagar Circle,
Doddabidarakallu of Nagasandra Post for consuming alcohol
and after consumption of alcohol he had quarreled with
deceased victim Hanumanthegowda @ Kumar (hereafter referred
4 SC No.702/2019
as deceased for short). Thereafter on same date at 9.00 pm while
said deceased victim Hanumanthegowda @ Kumar was
consuming alcohol in Sangam Wine Stores of Indiranagar Circle
and both accused went to said place. Deceased met both
accused in said bar, he picked up quarrel with them and he
assaulted both of them. Thereafter accused Nos.1 and 2 came to
conclusion that said deceased Hanumanthegowda @ Kumar has
been raising quarrel with them and assaulting them for one and
other reason, they have no peace of mind due to his acts and
hence in order to get rid of him permanently, they conspired to
finish him. Thereafter on said night deceased
Hanumanthegowda @ Kumar after having food, went to the room
of his friend Vijaykumar situated at Mouneshwara Layout and
he slept on floor. Taking advantage of situation and in
furtherance of their conspiracy and common intention, both
accused decided to kill him and accused No.1 threw a big sized
stone on his head. Thereafter accused No.2 also threw another
size stone on the head of deceased. Thereafter accused No.1
secured one more flat sized stone and he repeatedly threw it on
5 SC No.702/2019
the head of deceased. As a result head of deceased is smashed
with fatal injuries and he succumbed at the spot. On next day
morning Informant/CW.1, who is younger brother of deceased,
came to said room of the deceased, as the deceased did not come
back to their house for attending his duty and found that blood
shed body of deceased was lying on floor with fatal head injuries.
Immediately CW.1 lodged first information before Peenya Police
Station, which was registered by them in P.S.Crime
No.605/2018 and FIR is issued accordingly. IO conducted spot
mahazar and inquest of the body of deceased and forwarded the
same to concerned hospital for postmortem. On the basis of
available materials and evidence, IO apprehended accused Nos.1
and 2 and he recorded their voluntary statements. Both accused
admitted to have committed the murder of deceased and their
blood stained clothes were recovered by I.O. from their
respective houses. Thereafter IO recorded the statements of
material witnesses and seized incriminating blood stained
clothes of accused Nos.1 and 2. Further IO also seized DVD of
CCTV footage of Sangam Wine Stores showing movement and
6 SC No.702/2019
presence of accused Nos.1 and 2 with deceased on the night of
alleged incident. After conclusion of investigation, IO filed
charge sheet against both accused for offences punishable under
Sections 302, 120B R/w. Section 34 of IPC. It shows that both
accused persons were arrested on 11.12.2018 during crime
stage. The records further reveal that on receipt of the charge
sheet, the Committal Court took cognizance of the offences cited
above against both accused and since the alleged offences of
Section 302, 120B R/w. Section 34 of IPC are exclusively triable
by the Court of Sessions, the above case is committed to Hon'ble
Prl City Civil and Sessions Court, Bengaluru for trial. Thereafter
the Hon'ble Prl. City Civil and Sessions Court has registered the
case in SC.No.702/2019 and made over the same to this Court
for trial. After receipt of the records and after hearing the
learned Public Prosecutor and defence counsel under Section
227 of Cr.P.C., the charges for the offence under section 302,
120B R/w. Section 34 of IPC is framed against accused No.1 and
2 in view of sufficient prima facie materials. Accused No.1 and 2
did not plead guilt of alleged offences and they claimed to be
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tried then the matter was posted for trial. During trial accused
Nos.1 and 2 have been granted regular bail by Hon'ble High
Court of Karnataka in Crl.P.No.11662/2024 dated 31.01.2024.
3. In order to bring home the guilt of the accused the
prosecution got examined 31 witnesses as per PW.1 to 31 and
got marked 58 documents as per Ex.P.1 to Ex.P.58. Further MO-
1 to MO-23 are identified by witnesses.
4. The statement and further statement of the accused
No.1 and 2 under Section 313 of Cr.P.C.is recorded, wherein,
both accused denied incriminating evidence against them.
However accused nos.1 and 2 have not chosen to lead any
defence evidence nor they have produced any documents in
support of their defence.
5. Heard arguments of both the sides and. Perused oral
and documentary evidence adduced by prosecution along with
material objects.
6. The points that arise for my consideration and
determination are as under;
8 SC No.702/2019
1. Whether the prosecution has proved
beyond reasonable doubts that on
03.12.2018 at 9.00 pm while said deceased
victim Hanumanthegowda @ Kumar was
consuming alcohol in Sangam Wine Stores
of Indiranagar Circle, both accused went to
said place and said deceased picked up
quarrel with them and he assaulted both of
them. Thereafter accused Nos.1 and 2 by
discussing that said deceased
Hanumanthegowda @ Kumar has been
quarreling with them and assaulting them
for one and other reason, both of them in
furtherance of their common intention to get
rid of deceased permanently, conspired to
murder him and thereby accused Nos.1
and 2 committed the offence punishable
under Section 120B R/w. Section 34 of
IPC?
2. Whether the prosecution has proved beyond
reasonable doubts that on 03.12.2018 at
about 11.30 p.m., when deceased
Hanumanthegowda @ Kumar was
sleeping on the floor of room of his friend
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Vijaykumar situated at Muneshwara
layout, in furtherance of aforesaid
common intention and conspiracy,
accused No.1 picked up sized stone lying
in front of the house of the deceased and
threw it on the head of the deceased
while he was sleeping on the floor on his
stomach and immediately accused No.2
picked up another size stone and threw
it with force on the head of deceased.
Thereafter accused No.1 again brought
another flat size stone and he repeatedly
threw it on the head of deceased which
resulted into smashed fatal head injury
to deceased and he succumbed at the
spot. Thereby accused no.1 and 2 in
furtherance of their common intention
committed murder of deceased
Hanumanthegowda @ Kumar within the
limits of Peenya P.S. and committed
offence punishable u/s 302 R/w. Section
34 of IPC within the cognizance of this
Court?
10 SC No.702/2019
3. What order ?
7. My answers to the above points are as follows;
Point No.1& 2 : In the Negative.
Point No.3 : As per final order
for the following;
R E A SON S
8. Point Nos.1 and 2:- These points are taken together
for consideration as finding on one fact may have bearing on
finding of other point and also in order to avoid the repetition of
facts and evidence on record.
9. Cardinal principle of the criminal trial is that accused
shall be presumed to be innocent, till guilt is proved. As per
Section 102 of Indian Evidence Act, burden of proof to prove
ingredients of the charges framed against accused beyond all
reasonable doubts is on the prosecution. To determine whether
prosecution succeeded to discharge burden of proof casts
U/s.102 of Indian Evidence Act, it is just and necessary to
assess evidence adduced, documents produced on behalf of the
prosecution.
11 SC No.702/2019
10. In order to prove the guilt of the accused beyond
reasonable doubt, the prosecution examined 31 witnesses as per
PW.1 to 31.
11. CW.2 Kallangowda S/o Veerannagowda, who is said
to be father of deceased Hanumanthegowda @ Kumar is
examined as PW.1 and he has testified that deceased was his
second son and about 4 years back i.e., on 04.12.2018, he
expired. He has further stated that during such period they all
were residing in Indiranagar of Bengaluru and deceased was
residing at Doddabidarakallu. Further deceased was a driver of a
school bus in Ganga School and he used to leave for said duty at
6.00 to 7.00 am in the morning and he was returning at 6.00
pm everyday. He has further stated that thereafter deceased
used to roam with accused nos.1 and 2 and one Basavaraju,
who were from their place and later he came to know that they
used to consume alcohol together. He has further stated that
deceased was sleeping in the house of his friend Vijaykumar, he
used to come back home morning at 6.00 am and then he used
to go to his duty. He has further stated that on 03.12.2018, as
12 SC No.702/2019
usual deceased left their house in the morning, he did not
return to the house in the evening, but he informed CW.5 i.e.,
his brother Devendragowda that he is not coming home for
dinner. On next day the deceased did not come to their house
and when their son i.e., CW.1 Suresh gowda went to his room,
he found that deceased was murdered by somebody by throwing
stones. PW.1 has further stated that CW.1 lodged first
information before Police, Police conducted inquest of dead body
and he has identified the same as per Ex.P1. Most importantly
he has stated that earlier they had no suspicion on particular
person and later on 11.12.2018, when he went to Police station
with CW.1, 3 and 5, he came to know that both accused
committed murder of his deceased son. He has identified both
accused before court and pleads non-awareness as to for what
reason they killed his deceased son. Further he has identified 8
photos of dead body of his deceased son in crime scene as per
Ex.P.2 to 9 and he has also identified 5 blood stained size stones
said to have been used for his murder as per Mo.1 to 5. Most
importantly he has stated that friend of deceased by name
13 SC No.702/2019
Vijaykumar was from his village, he had vacated the above room
two months prior to above incident and deceased was staying in
said room alone. This witness is partly treated as hostile by
prosecution and in cross-examination by Ld. PP, he has
admitted that both accused, Basavaraju, Vittala and Sathish
used to be present with deceased and accused No.1 used to
complain him that deceased used to assault him and force him
to buy alcohol for him and said accused was also requesting
PW.1 to advice him properly. PW.1 has further admitted that as
deceased did not buy alcohol for accused, they committed his
murder by throwing MO.1 to 5 size stones, which is quite
contrary suggestion to case of prosecution. In relevant portion
of cross-examination by defence side, PW.1 admits that he has
not personally seen as to who murdered his son and he does not
know as to with whom he had quarreled under influence of
alcohol. However he has denied suggestion that accused have
not committed his murder by throwing MO.1 to 5 stones.
12. CW.5 Devendra S/o Kallangowda who is younger
brother of deceased Kumar his examined as PW.2. This witness
14 SC No.702/2019
has also testified with regard to routine work of his elder brother
Hanumanthegowda @ Kumar in attending the school bus driver
work and staying in house of his friend Vijaykumar during
nights. He has also reiterated the version of PW.1 with regard to
non-returning of house by deceased on 04.12.2018 morning and
on visiting of CW1 to the room of Vijaykumar, who found that he
was killed by somebody by throwing MO.1 to 5 stones. He has
testified with regard to scene of crime and investigation
conducted by Police at the spot by conducting necessary
mahazars. He has further stated that on 11.12.2018 Police
called his brother Sureshgowda i.e., CW.1, he accompanied
him to Police station and then Police showed them present
accused Nos.1 and 2 as culprits of said murder, CW.2 has also
identified Ex.P.2 to 9 photographs of dead body of his deceased
brother at the spot and he has also identified MO.1 to 5 stones
said to have been used by accused persons by committal of said
murder. In cross-examination by defence side CW.2 admits that
deceased was addicted to alcohol since 3 to 4 years, but he
denies that he was in habit of quarreling with people and
15 SC No.702/2019
influence of alcohol. In relevant portion of cross-examination
PW.2 has admitted that he has not seen the murder of deceased
personally and after one week Police informed him that accused
themselves have committed said murder. The entire evidence of
this witness is denied by defence side and it is suggested to him
said accused have not committed murder of the deceased.
13. CW.1 Sureshgowda who is first informant and the
other younger brother of deceased Hanumanthegowda by name
Sureshgowda S/o Kallangowda is examined as PW.3. This
witness is secured from Gadag Jail as he was in JC in some
other case. This witness has also reiterated about the daily
routine of deceased Hanumanthegowda in attending his driver
duty at Ganga International School after having bath in the
morning and he has further testified that the deceased used to
stay in the room of Vijaykumar sometimes and thereafter he was
returning back to their house prior to going to duty to above
school. He has also reiterated that on 03.12.2018 the deceased
left to duty in the morning and on said night he did not return
home. He has further stated that on said night deceased
16 SC No.702/2019
informed PW.2 that he is sleeping in the room of Vijaykumar
and next day morning he did not return home as usual.
Thereafter at about 7.30 am he went to the room of deceased
and found his bloodshed body in said room. He has further
identified the first information lodged by him before Police as per
Ex.P.10 and his signature on it as per Ex.P.10(a). He has further
testified that Police visited the spot at about 9.00 am and
conducted the necessary mahazars with regard to murder of his
brother by using MO.1 to 5 size stones. He has identified
mahazar as per Ex.P.11 and his signature on it as per
Ex.P.11(a). He has further testified that Police recovered blood
stained mat, a blood stained pillow, blood present on floor,
quarter packet of liquor, two old slippers and blood stained Boti
packet from the spot as per MO.6 to 12 under aforesaid
mahazar. This witness has also stated that on 11.12.2018
morning Police called them over phone and informed that they
have apprehended the murderers of aforesaid victim. Thereafter
they went to Police station and Police showed them present
accused Nos.1 and 2 as culprits of said murder and they stated
17 SC No.702/2019
that as the deceased was often troubling them to buy alcohol for
him, they committed his murder by using MO.1 to 5 stones.
PW.3 has also identified Ex.P.2 to 9 photographs and MO.1 to 5
stones before court. He further stated that accused No.1 is from
their village and accused No.2 was doing mason work in the
school where deceased was driver. He has identified both
accused persons before court while they were produced through
VC. In relevant portion of cross-examination PW.3 admits that at
the time of lodging complaint, he was not aware as to who had
committed murder of his deceased brother and he has also
admitted that now he is in judicial custody in a murder case at
Nargund Jail. PW.3 has further admitted that since 2 years
deceased was addicted to alcohol and often he was sleeping in
the room of his friend. The entire evidence of this witness is
denied by defence side in toto and it is suggested him that
though there is no nexus between aforesaid murder and accused
persons, he is deposing falsely.
14. The prosecution has got examined CW.13 Chethan
S/o Mahanthesh who is said to be a spot mahazar witness as
18 SC No.702/2019
PW.4. This witness is identified Ex.P.11 mahazar and his
signature on it as per Ex.P.11(b). He has stated that about 4
years back on 4.12.2018 at 9.00 am Police conducted aforesaid
spot mahazar in his presence with regard to murder of deceased
Hanumanthegowda and seized MO.1 to 12 articles in said
mahazar. In cross-examination PW.4 admits that Police have not
issued any written notice to him for attending said mahazar, but
he has denied that though he does not know the contents of said
mahazar, he is deposing falsely as per Peenya Police. The entire
evidence of the this witness is also denied by defence side and it
is suggested him that he is deposing falsely as per instance of
Police by signing above mahazar at Police station. However
alleged materials available at the scene crime are not deemed to
have been seriously disputed by other side. Hence though
evidence of this witness is accepted as it is, it does not help
prosecution to link accused persons with above crime, in the
absence of securing any cogent evidence from the spot.
15. Most importantly Police have got examined one more
material mahazar witness i.e., CW.14 Krishnakumar S/o
19 SC No.702/2019
Rajeshkumar as PW.5 and he has categorically stated that on
12.12.2018 Peenya Police called himself and CW.15 at their
Police station and they showed accused Nos.1 and 2 to them. He
has further stated that initially Police took them to the house of
accused No.1 situated at Gangondanahalli and accused No.1
handed over his blood stained shirt and a black pant to Police.
He has further stated that the stains of blood on said cloths
belonged to deceased Hanumanthegowda and Police seized said
clothes in a white bag in their presence by conducting mahazar
as per Ex.P.12. He has identified his signature on said mahazar
as per Ex.P.12(a) and aforesaid seized clothes of accused No.1
asper MOs.13 and 14. He has further testified that on same day
Police put them along with accused No.2 to the house of said
accused situated at Nelagadarahalli Main Road, Indiranagar
Circle and Police seized blood stained purple shirt and a cement
colour pant of accused No.2 as produced by him under one more
mahazar. This witness has identified said mahazar as per
Ex.P.13 and his signature on it as per Ex.P.13(a). He has
identified said blood stained seized clothes of accused No.2 as
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per MO.14 and 15. However it is pertinent to note that nothing
is put forth before this court to prove that the said blood stains
belong to deceased Hanumanthegowda. PW.5 has further
testified that on next day i.e., on 13.11.2018 at 10.00 am Police
took himself and CW.15 along with accused Nos.1 and 2 to
scene of crime and showed them blood present on the wall and
floor of said room, where deceased was murdered. He has
further stated that in that regard Police conducted mahazar,
which is identified by him as per Ex.P.14 and he has identified
his signature on it as per Ex.P.14(a). PW.5 has further testified
that on 14.12.2018 Police again took himself and CW.15 to
Sangam Bar and showed them a DVR wherein TV of said Bar
was recorded. In this regard another Mahazar was conducted by
Police and he has identified the same as per Ex.P.15 and his
signature on it as per Ex.P.15(a). PW.5 has identified the seized
DVR as per MO.17 and he has further stated that on 15.12.2018
Police again took himself and CW.15 to Police station, they
connected aforesaid DVR to computer and they showed them
CCTV clippings of Sangam Bar, which was later stored in a pen
21 SC No.702/2019
drive. He has further stated that Police seized said pendrive
under Ex.P.16 mahazar and he has identified his signature on it
as per Ex.P.16(a). PW.5 has also identified seized pendrive as per
MO.18, he has stated that Police recorded his statement and he
has identified both accused before court while they were
produced through VC. In relevant portion of cross-examination
PW.5 admits that he had been to Police station about 3 to 4
times as and when called by Police and he was putting leave to
his garment job during such time. He has denied that he is
stock pancha of Peenya Police station, but admits that CW.15 is
his friend and they have come to court together. He has further
stated that he does not remember as to for how many hours he
attended his duty from 12.12.2018 to 15.12.2018. PW.5 further
admits that Police have not issued any notice to him for
attending aforesaid mahazar, but he denies that he is seeing
accused persons for the first time in VC of the court. He has
further admitted that he does not know entire contents of
Ex.P.12 to 16 mahazar and he has just put his signature on said
document. The entire evidence of this witness is also denied by
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defence side and it is suggested to him that though Police have
not conducted aforesaid mahazars and though they have not
seized MO.13 to 18 articles, he is deposing falsely as per
instance of Police.
16. CW.17 Mani S/o Narasimhamurthy who cashier of
Rajkumar Bar and Restaurant is examined as PW 6 and he has
testified in his evidence that deceased Hanumanthegowda @
Kumar was often visiting their bar and on 03.12.2018 at 7.30
pm also he had come to said place along with accused Nos.1 and
2. He has further stated that they quarreled with regard to some
matter and for said reason they were expelled from said bar. He
has further stated that on 05.12.2018 he came to know that
accused Nos.1 and 2 murdered deceased Hanumanthegowda @
Kumar and in this regard Police recorded his statement.
Thereafter on 11.12.2018 Peenya Police called him to their Police
station, they showed both accused present before court to him,
thereafter they recorded his further statement. In relevant
portion of cross-examination this witness states that he does not
know whether accused Nos.1 and 2 had come to their bar on
23 SC No.702/2019
03.12.2018 and he has not personally seen the crime. The entire
evidence of this witness is denied by defence side.
17. CW.17 Chandru S/o Bhoothappa who is said to be a
supplier of Sangam Wine Stores has also supported the case of
prosecution in part by testifying that on 03.12.2018 at 8.45 pm
deceased Hanumanthegowda @ Kumar had come to their
Sangam Stores with accused Nos.1 and 2 present before court
and after consuming alcohol they quarreled with each other.
Thereafter all of them are expelled by them and later on
05.12.2018 he came to know that both accused committed
murder of deceased by throwing stones on him. He has also
stated that on 11.12.2018 Police showed him both accused in
Police station and recorded his statement. This witness is partly
treated as hostile and in cross-examination by learned PP, he
has admitted that on 11.12.2018 Police showed him both
accused saying that they have caught the murderers of deceased
Hanumanthegowda @ Kumar. However in cross-examination by
defence side PW.7 also admits that he had not seen persons
quarreling in their bar earlier and Police had collected DVR of
24 SC No.702/2019
their bar by visiting said shop. However PW.7 also admits that
he has not seen incident personally and hence his hearsay
evidence has to be considered in the light of other evidence on
record.
18. CW.19 Hemaraju S/o Chowdappa who is said to be
cashier of Sangam Bar is examined as PW.8 and he has also
similarly supported the case of prosecution by testifying that on
03.12.2018 at 8.45 pm deceased Hanumanthegowda @ Kumar
had come to their Sangam Stores with accused Nos.1 and 2
present before court and after consuming alcohol they quarreled
with each other. Thereafter all of them were expelled by them
and later on 05.12.2018, he came to know that both accused
committed murder of deceased by throwing stones on him. He
has also stated that on 11.12.2018 Police showed him both
accused in Police station stating that, they themselves
committed alleged crime of murder and recorded his statement.
He has further stated that on 14.12.2018 Peenya Police came to
their Wine Store and they collected DVR containing CCTV
footage showing quarrel between accused person and deceased
25 SC No.702/2019
and later they seized said DVR at Police station and mahazar. He
has identified said mahazar as per Ex.P.15 and his signature on
it as per Ex.P.15(b). He has further identified seized DVR as per
MO.17 and 4 photos extracted from the footage of said DVR as
per Ex.P.17 to 20. However this person does not speak anything
with regard to issuance of certificate under section 65(B) of
evidence act in respect of above DVR by authorized custodian of
said DVR. In relevant portion of cross-examination, PW.8 admits
that while collecting DVR from their Wines Store, Police did not
conduct any mahazar nor obtained his signature. He has further
admitted that Police did not collect any documents of above DVR
and they did not show him its contents by playing it. He has
further admitted that Police did not issue any notice to him and
though hundreds of customers visit their Wine shop, he has not
marked any identification signs of such customers. He has
clearly admitted that he has not seen both accused before
identifying them and as the persons influenced by alcohol
generally speak loudly, he cannot say whether they are
quarreling or they just speaking normally. He has further
26 SC No.702/2019
admitted that he does not know deceased Hanumanthegowda
and no quarrel took place in their bar. He further admits that he
came to know about incident through Police and Ex.P.17 to 20
do not bear his signature.
19. Further prosecution has got examined CW.20
Shivakumar S/o Devappa who is said to be running a Pan/
Beeda shop beside Sangam Wine Store as PW.9 and he has also
testified that on 03.12.2018 suppliers had expelled both
accused, Vittal and Basavaraju from Sangam Bar at 8.45 pm.
Thereafter on 05.12.2018 Police came to his shop and enquired
about incident, wherein he has given statement about above
incident. He has also stated that Police informed him about
murder of deceased Hanumanthegowda by accused and on
11.12.2018 they showed both accused present before court and
recorded his statement. Most importantly this witness does not
say presence of deceased Hanumanthegowda in aforesaid bar on
03.12.2018, which raises serious doubts with regard to case of
prosecution. In relevant portion of cross-examination PW.9
admits that he has never been to Peenya Police station and he
27 SC No.702/2019
has not given any statement before them about quarrel of
Sangam Wine Store. He has further stated that he does not
know who had quarreled and Police have not shown accused
persons at any time.
20. Prosecutor has got examined CW.21 Ashok Patil as
PW.10, who has though stated with regard to daily routine of
deceased Hanumanthegowda, he has stated that on 03.12.2018
at 5.00 pm the deceased was standing in front of the Ganga
International School, he accompanied in bus depot for giving his
leave letter and then they came to second stage Peenya for
consuming alcohol. He has further stated that at 7.00 pm he left
deceased near his house situated near Bidarakallu choutry and
next day morning at 9.00 am he came to know through CW.2
that deceased was murdered by somebody. He has identified
dead body of deceased in Ex.P.2 and 3 photos and MO.1 to 5
stones used for said murder. However he has turned hostile by
stating that he does not know as to who committed his murder
and Police have not shown any persons as culprits of said
murder. Though he has identified accused No.1 to be from his
28 SC No.702/2019
village, he has stated that he does not know as to what he has
done and he denies to have given statement before Police that
accused themselves had committed murder of deceased. This
witness is treated as hostile and in cross-examination by Ld. PP,
wherein though he had admitted that on 11.12.2018 he had
been to Police station as per their phone call, he has denied that
Police showed him both accused as culprits of said murder and
he has also denied to have given statement before IO as per
Ex.P.21.
21. CW.23 Basavaraju Patil S/o Channabasavegowda is
examined as PW.11, who has also testified with regard to life and
job of deceased Hanumanthegowda. But surprisingly he has
stated that the deceased after quarreling with his father and
mother, started residing in aforesaid room of Vijaykumar
situated at Gangoddanahalli, which is not revealed by any of
material relative witnesses of deceased. This aspect raise serious
doubt to believe that deceased was not in good terms with his
family members which led for leaving his house and residing
separately. It also leads to suspicion with regard to his enmity
29 SC No.702/2019
with family members and with regard to his daily routine of
visiting house of his father and brothers everyday as per case of
prosecution. However PW.11 has further stated that he had
accompanied deceased, accused No.1 and 2 to Rajkumar Bar of
Indiranagar in month of December 2018 at 7.30 pm and then
they went Sangam Bar at 8.30 pm for consumption of alcohol,
but he did not go inside the bar. Thereafter there was quarrel
between accused and deceased and on next day morning on
7.00 am brother of deceased by name Mahesh informed him
about aforesaid murder. He has further stated that through one
Vittal he came to know about said incident and he has identified
both accused saying that as per information given by Police he
came to know that accused killed the deceased due to quarrel
took place under influence alcohol. However on plane reading of
evidence of this witness, it shows that absolutely no
incriminating incident is narrated by him to believe that the
quarrel between accused persons and deceased had gone to the
extent of committing murder. In relevant portion of cross-
examination by defence side PW.11 admits that deceased
30 SC No.702/2019
Hanumanthegowda was in habit of raising quarrels under
influence of alcohol and a murder case is also pending against
CW.1/ PW.3 - Sureshgowda who is brother of deceased. Further
PW.11 states that on the date of incident he does not know
where Vittal, Viji and deceased Hanumanthegowda went and he
has not personally seen the incident. Most importantly PW.11
has stated that Police enquired him about the aforesaid murder
for nearly 10 days along with CW.22, 24 and 25 and during said
period they have not given any statement against both accused.
He has clearly admitted further that even till today he does not
know as to who committed murder of deceased
Hanumanthegowda.
22. Prosecution has got examined one more witness i.e.,
CW.6 Rangamma W/o Govindareddy as PW.2, who has testified
that CW.24 is her husband, she knows deceased and his family
members and her husband was also working as driver. She has
further stated that about 5 years back deceased was murdered
in the room of Vijaykumar by throwing stones on his head, but
she has turned hostile by saying that she does not know who
31 SC No.702/2019
murdered him and for what reason he was murdered. She has
identified dead body of deceased in Ex.P.2 to 9 photos and she
has also identified accused No.1 produced through VC, but
denies to know accused No.2. However she has stated the Police
have never called her to Police station and they never shown her
both accused. This witness after being treated as hostile, cross-
examined by Ld. PP, wherein she has denied to know that
accused persons, deceased, CW.23 and 25 used to often
consume alcohol and quarrel with each other. She has further
denied that on 11.12.2018 Police called her to Police station and
showed both accused saying that they themselves committed
murder of deceased and in that regard she has given statement
before IO as per Ex.P22. The hostile evidence of this witness is
not challenged by defence side by way of cross-examination.
23. Similarly CW.7 Savithramma W/o Prakash is
examined as PW 13 and she has also testified that she knows
deceased and his family members and her husband was also
working as driver. She has further stated that about 5 years
back deceased was murdered in the room of Vijaykumar by
32 SC No.702/2019
throwing stones on his head, but she has turned hostile by
saying that she does not know who murdered him and for what
reason he was murdered. She has identified dead body of
deceased in Ex.P.2 to 9 photos and she has also identified
accused No.1 produced through VC, but denies to know accused
No.2. However she has stated the Police have never called her to
Police station and they were never shown to her both accused.
This witness is also treated as hostile and cross-examined by Ld.
PP, wherein she has also denied to know that accused persons,
deceased, CW.23 and 25 used to often consume alcohol and
quarrel with each other. She has further denied that on
11.12.2018 Police called her to Police station and showed both
accused saying that they themselves committed murder of
deceased and in that regard she has given statement before IO
as per Ex.P.23. The hostile evidence of this witness is also not
challenge by defence side by way of cross-examination.
24. CW.22 Vijaykumar S/o Shivaprasad in whose room
the murder has been committed has testified as PW.14 and he
has stated that he knew deceased and his family members,
33 SC No.702/2019
deceased was driver in Ganga International School and he was
often visiting his room situated at Muneshwara Layout for
sleeping at about 7.30 to 8.00 pm and he used to go back at
7.00 am after having bath. He has further stated that prior to
incident deceased had asked him to come to room, but he did
not meet him and after two days brother of deceased by name
Mahesh informed him about aforesaid murder. He has partly
turned hostile by saying that he does not know as to who
committed said murder and Police have not shown him any
persons to be murderers. Further he has identified accused No.1
in VC and he denies to know accused No.2. This witness is also
treated as hostile and in cross-examination by learned PP, he
admits that on 11.12.2018 Police informed him that accused
themselves committed murder of deceased. In cross-examination
by defence side PW.14 admits that deceased was addicted to
alcohol and he was visiting his room about 4-5 times a month.
He has further admitted that he has not given any statement
before Police by identifying accused persons and he does not
know as to who exactly committed murder of deceased.
34 SC No.702/2019
25. CW.24 Sathish S/o Siddareddy who is said to be co-
driver of Ganga International School is examined as PW.15 and
he has also reiterated with regard to job of deceased and alleged
incident on 03.12.2018. He has further stated that often he used
to accompany deceased and accused for consumption of alcohol
and on the date of incident deceased went to Peenya with PW.10
Ashok Patil and later as per phone call of deceased he joined
him at Rajkumar Bar. He has further stated that accused No.1,
one Basavanagowda and Vittal were consuming alcohol in other
chair and they quarreled with each other. Further deceased
pacified said quarrel and at that time accused No.1 thrown a
chair on the floor. As a result Manager of Bar expelled all of
them from said bar and thereafter accused No.1,
Basavanagowda and Vittal went to Thigalarapalya on their bike.
Then the deceased went to room of Vijaykumar and next day
morning he came to know about his death. He has also
identified photo of dead body as Ex.P.2 to 9 and admits that he
was also detained in Police station for four days. Thereafter
Police showed them accused Nos.1 and 2, who admitted to have
35 SC No.702/2019
committed aforesaid crime. However the entire incident narrated
by this witness appears to be quite contrary to the case of
prosecution, which raises doubt with regard to direct quarrel of
accused persons with deceased, much-less with regard to their
immediate motive and conspiracy to commit murder of deceased.
In cross-examination by defence side PW.15 admits that on the
date of incident deceased had drunk too much and after that
himself, accused No.1 and deceased went to their respective
houses. He has further stated that deceased, CW.25 and
accused No.1 were close friends and Police did not recover his
mobile phones during investigation. He has further stated that
Police had detained both accused, himself, CW.23 and 24 for
nearly 4 days in Police station, but both accused were not
enquired in their presence and admits that they did not plead
guilt in their presence. He has clearly admitted that even today
he does not know personally as to who committed above murder
and he has not given any statement before Police that accused
themselves have committed murder of deceased.
36 SC No.702/2019
26. Most importantly CW.25 Vittal S/o Veerappa who
appears to have given his statement before Ld. Magistrate under
Section 164 of Cr.P.C. as last seen material witness of alleged
crime is examined as PW 16 and he has also testified with
regard to close acquaintance with deceased, accused persons
and CW.22 to 24, their regular meet for consumption of alcohol
and visiting a bar by them on 03.12.2018 at 7.30 pm. He has
further stated that there was some quarrel between accused
No.1 and deceased, thereafter they went back to their respective
rooms and he does not know what happened later. He has
turned hostile by stating that he does not know who committed
murder of deceased and for what reason he was killed. He has
further stated that Police did not show him the culprits of said
murder and though he admits to have given statement before a
judge as per Ex.P.24, he states that he does not remember what
he has stated. He has identified his signature on such statement
as per Ex.P.24(a) to (c). This witness is treated as hostile and
cross examined at length by Ld. PP, but nothing worthwhile is
elicited from his mouth to prove the guilt of accused persons. In
37 SC No.702/2019
cross-examination by defence side PW.16 denies to know
contents of Ex.P.24 statement and further states that they used
to never quarrel with deceased and accused. He has further
stated that he had not followed accused persons, while they
were following the deceased till his room and he has not heard
them of throwing stones on deceased while committing his
murder as narrated in his statement under Section 164 of
Cr.P.C. This aspect raises doubt as to whether statement of this
witness was free from any undue influence or coercion. He has
clearly stated that neither on that day or even till today he does
not know as to who committed murder of deceased. Hence the
hostile evidence of this material witness is also fatal to the case
of prosecution.
27. CW.26 Puttaswamy S/o Gangadharappa who is said
to be owner of shed in which the above murder took place is
examined as PW 17 and he has testified that he has constructed
above shed in Site No.121 of Muneshwara Layout,
Doddabidarekallu Village and rented it to deceased
Hanumanthegowda @ Kumar for Rs.500/- per month. He has
38 SC No.702/2019
further stated with regard to information received by him about
said murder and identified photos of deceased as per Ex.P.2 to
9. In cross-examination by defence side he has stated that he
has not prepared any rent agreement in that regard. However
the entire case of prosecution states that the originally above
shed was rented to Vijaykumar and occasionally the deceased
was visiting said place for sleeping. On the other hand evidence
of this witness shows that the shed was rented to deceased
himself and it further raised doubt with regard to strained
relationship of deceased with his family members as he was
residing separately in above shed. This aspect is also ground to
doubt involvement of accused persons in alleged crime.
28. CW.30 Krishnareddy S/o Bheemareddy is examined
as PW 18 and he has also turned hostile by testifying that he
does not know who committed murder of deceased and he
denies to have given statement before Police against accused
Nos,1 and 2. Though this witness is also treated hostile and
cross-examined by Ld. PP, nothing is elicited from mouth and he
has denied to have given statement before IO as per Ex.P.27.
39 SC No.702/2019
29. CW.27 Madegowda S/o Late Earappa who is said to
be one of neighbor of PW.17 Puttaswamy has also testified with
regard to alleged murder of deceased by somebody and he has
identified photo of dead body as per Ex.P.2 to 9. In cross-
examination by defence side PW.19 admits that he does not
know who committed said murder and he has not given any
statement before Police.
30. Most importantly CW.34 Dr.Sujatha who has
conducted the postmortem of body of deceased is examined as
PW 20 and she has testified that on 04.12.2018 she conducted
postmortem of body of deceased Hanumanthegowda in between
2.30 pm to 3.40 pm and she has identified his blood stained
shirt, pant and inner cloths of deceased as per MO.19 to 22. She
has further stated that the head of deceased was crushed by
throwing heavy stones which resulted into fatal injury leading to
his death and she has identified PM report issued by her as per
Ex.P.29 and her signature as per Ex.P.29(a). She has identified
blood sample bottle as per MO.23. She has further stated that
on 17.01.2019 she received MO.1 to 5 stones from IO and
40 SC No.702/2019
further states that she has given a report as per Ex.P.30 saying
that it is possible that any person can sustain injuries
mentioned in above PM report, if assaulted by throwing such
stones on his head and he may die instantly. She has further
stated that she has forwarded said stones to FSL with specimen
seal as per Ex.P.31 letter and identified her signature as per
Ex.P.31(a). Thereafter on 25.10.2019 she received requisition
from IO with FSL report seeking final opinion about cause of
death of deceased and she has given an opinion about said
cause that deceased was due to head injury and deceased had
consumed alcohol during his death. She has identified her
opinion as per Ex.P.32, FSL report as per Ex.P.33 and her
signature as per Ex.P.32(a). However cause of death is
mentioned in above report, is not in serious dispute. In cross-
examination by defence side PW.20 denies that there were no
blood stains on MO.1 to 5 and she admits that she was not
asked by Police to examine the blood present on said stones. She
has further denied the suggestions that such injury may be
caused if a person has self fall on MO.1 to 5 stones. The entire
41 SC No.702/2019
evidence of this witness is denied and it is suggested that she
has given above reports as per convenience of Police.
31. CW.29 Siddu S/o Lingappa who runs a Gobi shop
near Siddharth School of Indranagar is examined as PW.21 and
said witness has completely turned hostile with regard to alleged
incident and he has denied to have given statement before Police
as per Ex.P.34 and 35. Though this witness is also treated as
hostile, nothing worthwhile is elicited from his mouth with
regard to circumstances of murder of deceased and also with
regard to identification of accused No.1 and 2.
32. CW.35 K.R.Nagaraj Sub-Registrar Bengaluru is
examined as PW.22 and he has testified that he received Ex.P.36
request letter from Peenya Police seeking information about
owner of site No.121 in which the seen of crime is situated and
he has identified reply issued by him with two encumbrance
certificates as per Ex.P.37 to 40. He has identified his signature
on relevant letter as per Ex.P.37(a). The evidence of this witness
is formally denied by defence side by way of cross-examination.
42 SC No.702/2019
33. CW.39 Thimmaraju H.N. PC of Peenya PS has
testified with regard to handing over dead body of deceased to
his relatives after conducting of postmortem and receiving
acknowledgment as per Ex.P.41. He has also testified with
regard to handing over blood stained clothes and viscera of dead
body to IO with PM report along with his report as per Ex.P.42
and he has identified his signature on it as per Ex.P.42(a). He
has identified the above clothes as per MO.19 to 21. The entire
evidence of this witness is also denied by defence side.
34. CW.41 Ashwath C. constable is examined as PW.24
and he has testified with regard to forwarding the articles
collected by concerned medical officer while conducting
postmortem of deceased to FSL as per direction of IO on
24.01.2019 and he has identified acknowledgment of FSL as per
Ex.P.43. In cross-examination by defence side he admits that no
written intimation was issued to him in that regard.
35. CW.33 Lakshminarasaiah S/o Late Ganganarasaiah
who is said to be the owner of Ganga International School has
testified with regard to employment of deceased
43 SC No.702/2019
Hanumanthegowda as a driver of their school bus and he came
to know about his murder on 04.12.2018. In cross-examination
by defence side the entire evidence of this witness is denied in
toto.
36. CW.40 Hanumegowda S/o Siddalingappa Head
Constable of Peenya PS is examined as PW.26 and he has
testified that on 04.12.2018 he had obtained photos of dead
body of deceased in their department camera as per direction of
CW.45 IO. He has identified said photos as per Ex.P.2 to 9. In
cross-examination PW.26 admits that there was no written
direction by IO and he cannot say the company of camera. He
has further admitted that Ex.P.2 to 9 do not reveal any dates
and his entire evidence is also denied in toto. However this
witness has not spoken anything with regard to production of
section 65(B) certificate in respect of said photos by authorised
person.
37. CW.42 Rajashekaraiah PC of Peenya PS is examined
as PW 27 and he has testified with regard to carrying the MO.1
to 16 and 19 to 23 articles received during postmortem to FSL
44 SC No.702/2019
as per direction of IO and he has identified acknowledgment of
FSL for handing over above articles as per Ex.P.44. His entire
evidence is also denied by defence side in toto.
38. CW.43 Rangaswamaiah ASI of Peenya PS is examined
as PW 28 and he has testified with regard to his deputation for
apprehending accused persons as per direction of CW.45/IO and
as per credible information, he apprehended both accused near
Nelagadaranahalli Circle along with CW.36, 37 and 44 and he
produced them before CW.15 on 5.00 pm. However in cross-
examination PW.28 admits that the IO had not given the facial
description of both accused and he denies that they were
illegally detained in Police station even prior to above date and
he is deposing falsely as per instance of IO. However as per
version of many witnesses examined above, both accused were
secured immediately after the incident with other friends of
deceased and they were interrogated. Further if really both
accused had committed murder of deceased, their natural
conduct would be to abscond to unknown place and not to be
available easily to police as per case of prosecution. Hence
45 SC No.702/2019
evidence of this witness with regard to apprehension of both
accused appears to be doubtful.
39. CW.45 Srinivas V.T. S/o. Thimmaiah, who is IO of
this case is examined as PW.29 and he has testified with regard
to registration of present case as per Ex.P.10 first information
lodged by PW.3, issuance of FIR as per Ex.P.45, his immediate
visit to crime seen, conducting spot mahazar by collecting MO.1
to 5 stones and other blood stained articles under Ex.P.11
mahazar and he has identified his signatures on above
documents as per Ex.P.10(b), P.45(a) and P.11(c) respectively. He
has further stated with regard to preparing hand sketch of the
spot as per Ex.P.46 and retaining seized above articles as per
Ex.P.47 PF. He has further stated with regard to conducting
inquest of body of deceased as per Ex.P.1, thereafter handing
over the dead body to concerned Medical Officer for postmortem
and then handing over the said body to relatives of deceased
after medical examination by receiving Ex.P.41
acknowledgement. He has identified his signatures on above
documents as per Ex.P.46(a), P.47(a), P1(a) and P.41(a)
46 SC No.702/2019
respectively. He has further stated with regard to recording of
statements of CW.6 and 7 neigbouring witnesses, who have
turned hostile in this case. He has further stated with regard to
recording statements of official witnesses, receiving Ex.P.2 to 9
developed photos of crime seen from CW.32, recording
statements of CW.2 to 5 relatives of deceased and statements of
CW.26 owner of room and other witnesses i.e., CW.16 to 24, 28
to 30. Most importantly he has further stated that on
10.12.2018 he deputed CW.36, 37, 43 and 44 for arresting
accused persons, production of both accused by them as per
Ex.P.48 report of CW.44, recording voluntary statement of both
accused as per Ex.P.49 and 50 and recording further statements
of CW.2 to 5, 17 to 22, 24, 29 and 30 on 11.12.2018 by showing
accused persons.
40. PW 29 has further stated with regard to seizure of
blood stained cloths from the houses of accused Nos.1 and 2 on
12.12.2018 in presence of CW.14 and 15 panchas and Ex.P.12
and 13 mahazar and retaining said clothes as per Ex.P.51 and
52 property forms. He has further stated with regard to
47 SC No.702/2019
conducting mahazar at crime scene in presence of both accused
as per Ex.P.14, production of both accused before court and he
has identified his respective signatures on above documents as
per Ex.P.48(a) to P.50(a), P.12(b), P.13(b), P.14(b), P.51(a) and
P.52(a) respectively. He has further testified that on 14.12.2018
CW.19 produced MO.17 DVR of CCTV footage of Sangam Wine
Stores before Police station and he seized the same in presence
of CW.14 and 15 panchas under Ex.P.15 mahazar and he has
retained it as per Ex.P.53 PF. He has further stated that he
secured CW.31 Technician and copied incriminating footages in
MO.18 pendrive under Ex.P.16 mahazar and retained said pen
drive under Ex.P.54 PF. He has further stated that he obtained
Ex.P.55 certificate of CW.31 with regard to above DVR and
obtained print outs of Ex.P.17 to 20 photos through him. He has
identified his signatures on above documents as per Ex.P.53(a),
54(a), 55(a), 16(b) and 20(a). PW.29 has further stated that on
27.12.2018, he produced CW.25 last seen witness before 1 st
MMTC Court and got recorded his statement under Section 164
Cr.P.C. as per Ex.P.24. Thereafter he received the material
48 SC No.702/2019
objects from concerned hospital through CW.39 under Ex.P.32
report along with PM report as per Ex.P.29. He has further
stated that on 10.01.2019, he issued letter to concerned Sub-
Registrar and obtained details of ownership of room in which the
murder was committed with EC's, as per Ex.P.36 to 40 and
thereafter he received report of examination of weapon of crime
from concerned Medical Officer as per Ex.P.30. He has further
stated with regard to obtaining acknowledgement from FSL with
regard to production of articles seized from crime seen as per
Ex.P.43 and P.44 and after completion of investigation he filed
charge sheet against both accused. Further though this witness
has stated that deceased Hanumanthegowda, CW.25 Vittal and
accused No.1 are found in Ex.P.18 pendrive and Ex.P.17 to 20
photos, the said pendrive could not be played in court and later
the IO has got played MO.17 DVR before court. However in view
of hostile evidence of material witnesses and in the absence of
corroborative evidence of other circumstantial witnesses, the
aforesaid CCTV footage though believed to be true, it appears to
be insufficient to connect both accused to alleged crime. In
49 SC No.702/2019
cross-examination by defence side PW.29 denies that he has not
recorded statements of neighbours, but however so called
neighbours i.e., PW.12 and 13 have turned hostile with regard to
their personal knowledge about alleged crime. He has further
admitted that during inquest the family members of deceased
have not mentioned name of accused and he has not produced
any documents to show that CW.22 Vijaykumar was residing in
aforesaid room of CW.26. He has denied that he has not
mentioned owner of DVR in charge sheet and admits that no
mahazar was conducted with regard to seizure of MO.17 at
Sangam Bar. He has denied suggestions that Ex.P.17 to 20
photos cannot be relied upon in the absence of valid certificates
and it is suggested him to that the same are created for the
purpose of this case. PW.29 has further admitted that no
complaints were registered with regard to alleged quarrel by
accused persons in Sangam Bar on 03.04.2018 and it is
suggested to him that accused have not given any voluntary
statement before him. It is further suggested that they have not
shown any scene of crime under mahazar, but admits that both
50 SC No.702/2019
accused have not signed such mahazar. It is further suggested
that accused were not arrested by him and they were in their
custody since 05.12.2018. It is further suggested to IO that he
has created the statement of witnesses as per convenience of
the case and he has filed false charge sheet against accused
persons on the basis of such materials. Further PW.29 is
recalled for further examination, wherein he has got played
CCTV footage of Sangam Wine Stores before court by using
MO.17 DVR and asserts that witness CW.23 Basavaraj, CW.25
Vittala and deceased Hanumanthegowda are seen in such
footages. He has further stated that MO.18 pen drive could not
be played due to technical reasons. In further cross-examination
by defence side PW.29 admits that name of Sangam Stores is not
displayed in above footages and no mahazar was conducted for
seizure of DVR from said shop. Though he has asserted that
Manager of said wine store by name PW.8 Hemaraj has
produced it, he has admitted that said witness has not produced
any documents to show that the DVR belongs to Sangam Stores
and that details as MO.17 are not mentioned in Ex.P.15
51 SC No.702/2019
mahazar. It is suggested to him that accused and deceased are
not seen in MO.17 and they were not present at said place on
the date of incident. Though PW.29 denies said suggestions, he
admits that he has not forwarded MO.17 DVR and MO.18
pendrive to FSL for its examination and hence it is suggested to
him that same are created for this case. The non-forwarding of
said articles to concerned FSL for ascertaining genuineness of
footages is a ground to discard aforesaid evidence produced by
IO.
41. Muddaraj Y. S/o. Yarrappa, the then Police Inspector
of Pinya Police station is additionally examined by prosecution
as PW.30, though he is not cited as witness in chargesheet. This
witness has tesetified in his evidence that on 19.10.2019, he
received FSL Report of this case bearing No.TS/187/2019 and
handed over the same to concerned Medical officer to obtain
Final Opinion Report of Murder and thereafter he obtained such
final report and on 19.12.2019 he received another FSL Report
under No. BS/122/2019. Thereafter on 04.02.2020 he has
submitted above reports of FSL and Final opinion Report to the
52 SC No.702/2019
Court. He has identified the initial FSL Report dated 19.10.2019
as per Ex.P33 and his signature on it as per Ex.P.33(a). He has
identified Final Report of concerned Medical officer i.e. PW 20 as
per Ex.P32 and his signature on it as per Ex.P32(b). He has
identified FSL Report dated 19.12.2019 as per Ex.P 56 and his
signature on it as per Ex.P56(a). He has further stated that on
04.02.2020, he has requested to enclose above documents with
file of the case and to treat one Dr. Sulochana and Vidya Y as
additional witnesses of this case. He has identified his
requisition as per Ex.P.57 and his signature as per Ex.P.57(a). In
cross examination by defence side, PW30 clearly admits that
material objects of the case were seized on 12.12.2018 and same
were forwarded to FSL on 19.02.2019 as per Ex.P56, But he
pleads that Investigating officer knows the reasons for delay in
sending said articles. He has further admitted that from
19.12.2019 to 04.02.2020 FSL Report was in his custody, but
does not explain anything with regard to delay in submitting the
same to Court. The evidence of this witness is denied by defence
side.
53 SC No.702/2019
42. Finally one Dr. Srividya W/o. Sridhar K.G. Asst.
Director of Biology section Madiwala has testified that she is
serving as senior Scientific officer in FSL, Bengaluru, on
19.12.2019, their office received 21 sealed articles with
documents from Peenya police in this case through PW 27 and
she subjected the same to chemical examination. Most
importantly by referring Ex.P56 report, she has stated that blood
stains detected on articles 1 to 12, 16 to 20 i.e. stones,
mat,pillow blood swab,quarter bottle, plastic boti packet,
chappals and clothes of deceased recovered from crime scene are
not detected on Articles 13 to 15 which are clothes of accused
no.1 and 2. She has further stated that blood found on article
no.1 to 12, 16 to 20 were to be of human origin belonging to B
blood group and Article 21 blood sample was disintegrated. She
has identified her certificate as per Ex.P56, her signature on it
as per Ex.P56(b), Sample seal letter as per Ex.P58, her
signature on it as per Ex.P58(a) and above articles as per M.O.1
to 23. In cross examination by defence side, this witness has
admitted that she does not examine age of blood on articles and
54 SC No.702/2019
does not mention exact time of examination of each articles. She
has further admitted that if articles are not preserved in proper
manner, she cannot give proper opinion and she has examined
aforesaid articles after 7 months from it receipt to FSL. It is
suggested to her that she has issued above report as per
convenience of Police. However most importantly PW31 has
admitted that blood stains found on incriminating articles are
absent on seized clothes of accused no.1 and 2 and Ex.P56
discloses that absolutely no blood stains were detected on item
no.13 to 15 seized clothes of accused no.1 and 2. This aspect is
also fatal to case of prosecution as the sole evidence connecting
both accused to above murder is falsified with above report.
43. Thus on perusal of entire oral and documentary
evidence adduced by prosecution, it shows that, except
inconsistent evidence of hearsay and so called circumstantial
witnesses, absolutely there is nothing on record to prove that
accused themselves committed murder of deceased
Hanumanthegowda. Moreover the evidence of available
witnesses reveal that accused were good friends of deceased with
55 SC No.702/2019
CW 22 to 25 and mere demand of deceased to buy them alcohol
or often raising quarrel by him cannot be a strong ground to
believe motive of accused no.1 and 2 to commit murder of
deceased. Moreover it shows that I.O. has not secured CDR of
deceased to show his conversation on the date of incident and
also at the time prior to commission of his murder. It is also
pertinent to note that some of employees of Sangam bar allege
some quarrel between deceased and accused and some do not
support said version. P.W.10,12 to 14 , 18 and 21 have
completely turned hostile. Further as already discussed above,
I.O. has collected M.O.17 DVD and M.O.18 pendrive and
produced it with Ex.P55 certificate under section 65(B) of
evidence act said to have been issued by CW31 Prabhuraj S/o.
Erappa Hittalmani. However said witness is not secured to prove
authenticity of Ex.P.55 certificate. Further though said
certificate is marked by PW 29 I.O., it does not bear anything
with regard to custody and authority of said witness for issuance
of said certificate under section 65(B) of evidence act as per land
mark case between Arjun Pandit Rao Khotkar Vs Kailash
56 SC No.702/2019
Kishan Rao Gorantyal and others reported in (2020) 7
SCC 1. Hence mere presence of accused persons and deceased
in CCTV camera of M.O.17 DVR and in Ex.P17 to 20 photos do
not help prosecution in any manner, in the absence of other
corroborative evidence. Further Absolutely there is no direct and
substantive evidence of eye witnesses in present case and
material witness, who said to have seen accused person entering
room of deceased and heard throwing stones during murder i.e.
16 Vittal has completely turned hostile and prosecution has
failed to establish that his statement under section 164 Cr.P.C.
was recorded without any coercion and undue influence. Said
witness has clearly stated in cross examination that till today,
he does not know as to who committed above murder. The
materials elicitation from cross examination of witnesses
disclose that none of witness have witnesses murder of deceased
and they came to know about alleged role of accused as per say
of Police. Further as already stated above the sole evidence i.e.
clothes of accused seized by Police during investigation does not
help prosecution in any manner as absolutely no blood stains
57 SC No.702/2019
are found on said clothes as per Ex.P.56 FSL report issued by
PW.31. Further so called voluntary statements of accused No.1
and 2 marked as per Ex.P49 and 50 also do not help
prosecution in any manner for the reasons that absolutely no
blood stains found on seized MOs.13 to 15 clothes of accused
Nos.1 and 2 as per such statement, to connect them to above
crime.
44. Thus this case is squarely depend upon a
circumstantial evidence. There are no eyewitness who had seen
the incident. To bring home the guilty of the accused in the case,
prosecution has to prove either last seen theory or recoveries on
the basis of information given by the accused in the police
custody. In this case there is no such witnesses examined to
prove the fact that deceased was last seen with the accused
immediately prior to happening of the incident and sole such
witness i.e. P.W 16 has completely turned hostile.
45. Further on the basis of information given by the
accused in the police custody, no recoveries are made to link the
accused to the alleged incident of murder and MOs 13 to 15 so
58 SC No.702/2019
called blood stained clothes of accused no.1 and 2, could not
help prosecution, as absolutely no blood stains of deceased are
found on said clothes as per Ex.P.56 FSL report.
46. Out of the examined witnesses, majority of witnesses
have turned hostile to the case of the prosecution. In the cross-
examination of such witnesses by prosecution side also, no such
admissions elicited to prove the allegations made against the
accused in the case of the prosecution. Witnesses who are
supported the case of the prosecution are police staff,
investigation officer and the medical officer. To corroborate the
supported evidence of police officers and medical officers, no
public witnesses supported the version of the case of the
prosecution.
47. Prosecution is unable to prove the motive for
commission of offence of murder of the deceased by the accused
persons and alleged motive does not appear to be strong and
convincing to believe that accused could murder the deceased.
The evidence of available witnesses during trial are insufficient
to establish motive for murder. In the absence of supported
59 SC No.702/2019
evidence adduced by any one of the witnesses to prove the fact
of last seen the accused with deceased immediately prior to
commission of murder, it is difficult to accept the allegations
made by the prosecution that on the date of incident accused
persons alone accompanied the deceased immediately prior to
happening of the incident of murder. As there is no evidence
adduced by any of the witnesses to prove the recovery of any
object to unerringly link the accused to the incident of murder
of the deceased, it is difficult to hold that it is the accused no.1
and 2 caused homicidal death of deceased by smashing head of
the deceased by using MO 1 to 5 stones.
48. Advocate for accused has vehemently argued that
there are no eyewitnesses who had seen the incident of murder
of the deceased. Except official witnesses, no witnesses
examined are supported the case of the prosecution. Prosecution
failed to prove the motive for murder of the deceased by the
accused persons. There are absolutely no recoveries made on the
basis of information given by the accused, except M.O.13 to 15
clothes, which are not helpful to prosecution. There are no
60 SC No.702/2019
circumstances to complete chain to link the accused with the
incident of murder of the deceased. Submissions made by the
advocate for accused was compared with the available evidence,
oral as well as documentary on record. It is clear that there is no
substantive piece of evidence to link the accused with the
incident of murder of the deceased. The counsel for accused has
relied upon following two case laws in support of his arguments.
2022 LIVE LAW (SC) 843 Between Ramanand @
Nandlal Bharti Vs State of Uttar Pradesh.
46. Although there can be no straight jacket formula for
appreciation of circumstantial evidence, yet to convict an accused
on the basis of circumstantial evidence, the Court must follow
certain tests which are broadly as follows:
1. Circumstances from which an inference of guilt is sought to be
drawn must be cogently and firmly established;
2. Those circumstances must be of a definite tendency unerringly
pointing towards guilt of the accused and must be conclusive in
nature;
3. The circumstances, if taken cumulatively, should form a chain
so complete that there is no escape from the conclusion that
within all human probability the crime was committed by the
accused and none else; and
4. The circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other hypothesis
61 SC No.702/2019
than that of the guilt of the accused but should be inconsistent
with his innocence. In other words, the circumstances should
exclude every possible hypothesis except the one to be proved.
47. There cannot be any dispute to the fact that the case on hand
is one of the circumstantial evidence as there was no eye witness
of the occurrence. It is settled principle of law that an accused can
be punished if he is found guilty even in cases of circumstantial
evidence provided, the prosecution is able to prove beyond
reasonable doubt the complete chain of events and circumstances
which definitely points towards the involvement and guilty of the
suspect or accused, as the case may be. The accused will not be
entitled to acquittal merely because there is no eye witness in the
case. It is also equally true that an accused can be convicted on
the basis of circumstantial evidence subject to satisfaction of the
expected principles in that regard.
AIR 2023 Supreme Court 3226 Between State of
Punjab Vs Kewal Krishan.
21. The argument of the learned counsel for the appellant
that since there was no proven enmity between the accused and
the witnesses therefore there was no reason to disbelieve them,
would not be of much help to the appellant because this is a case
based on circumstantial evidence. In a case based on
circumstantial evidence not only do each of the incriminating
circumstances have to be proved beyond reasonable doubt but
those incriminating circumstances must constitute a chain so far
complete that there is no escape from the conclusion that within
all human probability it is the accused who has committed the
crime and further, cumulatively, they must exclude all hypotheses
consistent with the innocence of the accused and inconsistent
with his guilt. As we have found that the incriminating
circumstances were not proved beyond reasonable doubt and
otherwise also the circumstance of last seen was inconclusive, in
our view, the High Court was justified in setting aside the order of
conviction recorded by the Trial Court.
62 SC No.702/2019
22. The argument that the accused has failed to discharge
his burden under section 106 of the Evidence Act and, therefore,
his conviction was justified is misconceived. Section 106 of the
Evidence Act does not absolve the prosecution of discharging its
primary burden of proving the prosecution case beyond
reasonable doubt. It is only when the prosecution has led
evidence which, if believed, will sustain a conviction, or which
makes out a prima facie case, the question arises of considering
facts of which the burden of proof would lie upon the accused.
(See: Shivaji Chintappa Patil v. State of Maharashtra (2021) 5
SCC 626). Here, as we have discussed above, firstly, the
incriminating circumstances were not proved beyond reasonable
doubt and, secondly, they do not form a chain so complete from
which it could be inferred with a degree of certainty that it is the
accused and no one else who, within all human probability,
committed the crime. In these circumstances, there was no
occasion to place burden on the accused with the aid of section
106 of the Evidence Act to prove his innocence or to disclose that
he parted company of the deceased before his murder.
49. Further in the case of Bodh Raj @ Bodha and
others V/s. State of Jammu and Kashmir reported under
AIR 2002 SC 3164, Hon'ble Supreme Court of India has
held that to prove the case based on circumstantial evidence,
prosecution has to prove the facts and set of facts in such a
manner that which shall unerringly indicates towards the
accused. In present case evidence adduced by prosecution is
unable to prove beyond all reasonable doubt that it was the
63 SC No.702/2019
accused and the accused only, who has committed the murder
of the deceased in the manner stated in the charge sheet.
50. As discussed above and for the reasons stated above,
this court is of the opinion that, prosecution has not succeeded
to prove "beyond all reasonable doubt" that accused no.1 and 2
by hatching conspiracy with each other committed murder of
deceased Hanumanthegowda @ Kumar as alleged in charge
sheet and hence both accused deserve to be acquitted.
Accordingly, point Nos.1 and 2 are answered in the Negative.
51. POINT NO.3: In view of the above findings on points
No.1 and 2, accused are entitled for acquittal. Hence, the
following order is made;
ORDER
Invoking provision U/s.235(1) of Cr.P.C., accused Nos.1 and 2 are hereby acquitted for the offences punishable U/s.302 and 120 B R/w. Section 34 of I.P.C.
The bail bonds executed by accused Nos.1 and 2 U/s.437-A of Cr.P.C., shall be in force for a period of six months from this day. 64 SC No.702/2019
M.O.s 1 to 23 shall be destroyed after expiry of appeal period.
No one appeared before the court claiming as heirs, legal representatives of deceased Hanumanthegowda @ Kumar. Hence, no order for compensation as per Section 357-A of Cr.P.C. is passed.
(Dictated to the stenographer Gr.III directly on the computer, thereof corrected, signed and then pronounced by me in the open court, this the 08 th day of July, 2024).
(ANAND T. CHAVAN) LXI ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY.
A NN E X U R E LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.1 Kallanagowda
P.W.2 Devendra
P.W.3 Suresh Gowda
P.W.4 Chethan
P.W.5 Krishnakumar
P.W.6 Manu
P.W.7 Chandru
P.W.8 Hemraj
P.W.9 Shivakumar
65 SC No.702/2019
P.W.10 Ashok Patil
P.W.11 Basavaraj Patil P.W.12 Rangamma P.W.13 Savithramma P.W.14 Vijaykumar P.W.15 Satish P.W.16 Vittal P.W.17 Puttaswamy P.W.18 Krishnareddy P.W.19 Madegowda P.W.20 Dr.Sujatha P.W.21 Siddu P.W.22 K.R.Nagaraj P.W.23 Thimmraju.H.N. P.W.24 Ashwath.C. P.W.25 Lakshminarasimha P.W.26 Hanumegowda P.W.27 Rajashekaraiah P.W.28 Rangaswamy P.W.29 Srinivas.V.T PW.30 Muddaraja Y PW.31 Dr.SriVidya 66 SC No.702/2019 LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Report Ex.P.1(a) Signature of PW.29 Ex.P.2 to 9 Photos Ex.P.10 Complaint Ex.P.10(a) & (b) Signature of PW.3 and PW.29 Ex.P.11 Seizure Panchanama Ex.P.11(a) Signature of PW.3 Ex.P.11(b) Signature of PW.4 Ex.P.11(c) Signature of PW.29 Ex.P.12 Panchanama Ex.P.12(a) Signature of PW.5 Ex.P.12(b) Signature of PW.29 Ex.P.13 Panchanama Ex.P.13(a) Signature of PW.5 Ex.P.14 Panchanama Ex.P.14(a) & (b) Signature of PW.5 and PW.29 Ex.P.15 Panchanama
Ex.P.15(a), (b) & Signature of PW.5, PW.8 and PW.29
(c) Ex.P.16 Panchanama Ex.P.16(a)(b) Signatures 67 SC No.702/2019 Ex.P.17 to 20 Photos Ex.P.20(a) Signature of PW.29 Ex.P.21 Statement of PW.10 Ex.P.22 Statement of PW.12 Ex.P.23 Statement of PW.13 Ex.P.24 Statement of PW.16 Ex.P.24(a) to (d) Signatures Ex.P.25 Statement Ex.P.26 Statement Ex.P.27 Portion of statement of PW.18 Ex.P.28 Further statement of PW.18 Ex.P.29 Medical Report Ex.P.29(a) to (d) Signatures Ex.P.30 Report Ex.P.30(a) & (b) Signature of PW.20 and PW.29 Ex.P.31 Letter Ex.P.31(a) Signature of PW.20 Ex.P.32 Report Ex.P.32(a) & (b) Signature of PW.20 & PW.30 Ex.P.33 FSL Report Ex.P.33(a) Signature of PW.30 Ex.P.34 and 35 Statement of PW-21 68 SC No.702/2019 Ex.P.36 Letter dated 09.01.2019 Ex.P.36(a) Signature of PW.29 Ex.P.37 Letter dated 16.01.2019 Ex.P.37(a) & (b) Signatures Ex.P.38 C/c of sale deed Ex.P.39 and 40 E.C. Ex.P.41 Acknowledgment Ex.P.41(a) Signature of PW.29 Ex.P.42 Report Ex.P.42(a)(b) Signatures Ex.P.43 FSL Acknowledgment Ex.P.44 Acknowledgment Ex.P.44(a) Signature of PW.29 Ex.P.45 FIR Ex.P.45(a) Signature of PW.29 Ex.P.46 Sketch Ex.P.46(a) Signature of PW.29 Ex.P.47 P.F. No.185/2018 Ex.P.47(a) Signature of PW.29 Ex.P.48 Report of Devaraj Ex.P.48(a) Signature Ex.P.49 Statement of accused No.1 69 SC No.702/2019 Ex.P.49(a) Signature Ex.P.50 Statement of accused No.2 Ex.P.50(a) Signature Ex.P.51 P.F. No.188/2018 Ex.P.51(a) Signature Ex.P.52 P.F. No.189/2018 Ex.P.52(a) Signature of PW.29 Ex.P.53 P.F. No.192/2018 Ex.P.53(a) Signature of PW.29 Ex.P.54 P.F. No.193/2018 Ex.P.54(a) Signature of PW.29 Ex.P.55 Statement of CW-31 and certificate under Section 65(b) of Indian Evidence Ex.P.55(a) Signature of PW.29 Ex.P.56 FSL Report Ex.P.56(a) & (b) Signature of PW.30 and PW.31 Ex.P.57 Requisition Letter Ex.P.57(a) Signature of PW.30 Ex.P.58 Sample seal letter Ex.P.58(a) Signature of PW.31 LIST OF WITNESSES EXAMINED FOR DEFENCE: -
NIL 70 SC No.702/2019 LIST OF DOCUMENTS MARKED FOR DEFENCE:-
NIL MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION :-
MO-1 to 5 Stones
MO-6 Mat
MO-7 Pillow
MO-8 Blood on the floor
MO-9 Blood of the wall
MO-10 Alcohol packet
MO-11 One Blood stained boti packet
MO-12 One pair Slipper
MO-13 One Blood stained white shirt
MO-14 One black colour pant
MO-15 & 16 White shirt and black pant
MO-17 DVR
MO-18 Pendrive
MO-19 Shirt
MO-20 Banian
MO-21 Pant
MO-22 Under wear
MO-23 Blood sample
(ANAND T. CHAVAN)
LXI ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY.