Bangalore District Court
The State Of Karnataka vs No. 1. Ranjith H.D on 22 April, 2019
IN THE COURT OF THE LIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 16th day of April 2019
PRESENT
*******
Sri B. B. Jakati, B.A., LL.M.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
S.C.No.779/2013
COMPLAINANT: The State of Karnataka,
By Banashankari
Police Station,
Bangalore.
(Represented by Learned Public
Prosecutor, City Civil Court
Complex, Bengaluru)
-Vs-
ACCUSED No. 1. Ranjith H.D.,
S/o Deve gowda
Aged about 20 years,
R/.at H. Hosur,
Vannalagere Post,
Sigekere Hobli,
Maddur Taluk,
Mandya District.
2. Eshwar Nayak @ Eshwar,
SC.No.779/2013
2
S/o Govindappa Nayak
Aged about 23 years,
R/at Bingi Mane
Melinakere Gadde,
Sirali Post,
Batkal Taluk,
Karwar District.
3. K. Muniraju,
S/o Krishnappa
Aged about 26 years,
R/at No.57, 1st Cross,
1st Stage, Near Dayananda
Sagar college,
Kumaraswamy Layout,
Bengaluru.
(A-1 by Sri B.N.Manjunath,
A2-by Sri V. Lakshmikanth
Rao, A3-by Sri S. Mala &
M.T. Harish., Advocates)
1. Date of Commission : 11.02.2013
of Offence
2. Date of Report : 11.02.2013
of Offence
3. Status of the accused : Accused No.1 to 3 are
on bail
4. Name of the : Smt. Vasundhari
complainant Hande
5. Date of :
08.07.2014
Commencement of
SC.No.779/2013
3
evidence
6. Date of Closing of :
14.11.2018
Evidence
7. Offences complained of : Section 120B, 302,
392, 457, read with
Section 34 of I.P.C.
8. Opinion of the Judge : Accused No.1 to 3 are
held guilty
JUDGMENT
The Police Inspector of Banashankari Police Station, Bengaluru city has filed this charge sheet against the accused No.1 to 3 for the offences punishable under Sections 120B, 302, 392, 457 read with Section 34 of I.P.C.
2. The case of the prosecution in brief is that, Smt Vipula was working as Supervisor / In-charge Officer in S.V.S. Products Company, situated at No.6, K.R. Road, Bengaluru - 560 004, Owned by P.W.3/Varadaraju Nayak. She was divorcee. She had no issue. The SC.No.779/2013 4 P.W.1 / Smt. Vasundhari Hande, P.W.2/ Smt. P.R. Vidya are the sisters of Smt. Vipula, who were residing at Bengaluru. Smt. Vipula was residing in ground floor of house bearing No.954 situated at 2nd Main, 15th Cross, Banashankari, Bengaluru. This house was owned by P.W.4 / Smt. Vanishree. P.W.4 was residing with her family members in the house on the first floor. Smt. Vipula purchased valuable golden and silver ornaments. She had many valuable movable properties kept in her house.
3. The prosecution further alleged that accused No.2/Eshwar Naik was working in S.V.S. Fctory and he was also driver to the car of Smt. Vipula. Even accused No.2 was attending minor housework of Smt. Vipula and he was frequently visiting to the house of Smt. Vipula. The accused No.1/Ranjith was also working in S.V.S. Fctory as labour and accused No.3/Muniraju was SC.No.779/2013 5 working in the same factory as security guard. The accused Nos.1 to 3 were having knowledge of single residence of Smt. Vipula and even they had knowledge of valuable movable properties of Smt. Vipula kept in her house.
4. The prosecution has contended that on 11.02.2013 Smt. Vipula after attending her work in the factory went to the house of her sister / P.W.1 in the night along with accused No.2, who was the driver of the car. Then she returned to her house at about 9.30 P.M. on 11.02.2013. On 12.02.2013 in the morning at 7.15 a.m. the accused No.2 visited to the house of Smt. Vipula and found abnormal condition of the house. Therefore, the accused No.2 called P.W.3/Varadaraju Naik over phone and informed him the suspicious circumstances in the house. Therefore, Varadaraju Naik reached to the house of Smt. Vipula. He found the SC.No.779/2013 6 dead body of Smt. Vipula in the house. Then he informed P.W.4/Smt. Vanishree who is landlady and even informed such fact to P.W.1, 2 and other relatives of Smt. Vipula. The matter was informed to the Police. On 11.02.2013 the P.W.3 filed his information in writing before Banashankari Police. The report was received by P.W.25/T.M. Dharmendra, PSI and registered it as UDR.No.4/2013 on 11.02.2013 at about 8.35 A.M. The Police Officer inspected the spot and conducted the inquest. Thereafter, the body of Smt. Vipula was sent to hospital for postmortem. The postmortem was conducted on 11.02.2013 and body was handed over to the relatives for funeral.
5. It is further alleged by the prosecution that the sister of Smt. Vipula noticed that ornaments worn by Smt. Vipula were missing. The sisters of Smt. Vipula went to the deceased house on 12.02.2013 and found SC.No.779/2013 7 that some of the valuables were missing. Therefore, the P.W.1 suspected and accordingly, she approached Banashankari Police on 12.02.2013 and filed her first information making allegation of murder of Smt. Vipula and robbery. Therefore, the Police registered FIR on 12.02.2013 at 2.15 P.M. and launched the investigation.
6. It is the case of the prosecution that the P.W.29 / P. Muralidhar, Police Inspector searched the house of Smt. Vipula in the presence of P.W.1 to 3 and found many valuable golden and silver ornaments and he has seized all those ornaments by drawing Panchanama on 12.02.2013. The P.W.29/P. Muralidhar asked the DNA expert to verify the spot and expert visited to the house and collected the hair found in the house. The Investigating Officer found that accused Nos.1 to 3 who were working in the factory of Smt. SC.No.779/2013 8 Vipula committed murder and also robbery of ornaments of Smt. Vipula. Therefore, P.W.29 arrested the accused Nos.1 to 3 on 17.02.2013. He interrogated the accused Nos.1 to 3 and they have given voluntary statement to P.W.29. Based on such voluntary statement, the P.W.29 recovered sum of the ornaments of Smt. Vipula at the instance of accused Nos.1 to 3. He found that Smt. Vipula was died because of strangulation. He obtained information from the Medical Officer and found that through wale Smt. Vipula was strangulated and that was the reason for her death.
7. On these contentions, the prosecution has alleged that the accused Nos.1 to 3 who were working under Smt. Vipula in S.V.S. Factory committed murder of Smt. Vipula between 9.30 P.M. on 11.02.2013 and 7.15 A.M. on 12.02.2013 in her house by way of SC.No.779/2013 9 strangulation in order to get her valuable golden and silver ornaments and thereby committed the offences referred above.
8. The accused Nos.1 to 3 were in judicial custody during crime stage and they were enlarged on bail. All the accused are represented through Legal Practitioners. After hearing the prosecution and the defence, my learned-Predecessor-in-Office framed the charge against the accused Nos.1 to 3 for the offences punishable under Sections 120B, 302, 392, 457, read with Section 34 of I.P.C. The accused Nos.1 to 3 pleaded not guilty and claim to be tried.
9. In order to prove the guilt of the accused Nos.1 to 3, the prosecution has examined thirty witnesses as P.W.1 to P.W.30 and got marked documents at Ex.P.1 to Ex.P.175 and Material Objects at M.O.1 to M.O.117.
SC.No.779/2013 10
10. The accused are examined under Section 313 of Cr.P.C. The accused have denied the incriminating evidence appearing against them. However, none of the accused adduced any defence evidence.
11. The learned Public Prosecutor has argued that the fact of service of Smt. Vipula in SVS Products factory owned by P.W.3 has been proved through the evidence of P.W.1 to 3, P.W.6/P. Srinath and P.W.7/Ramesh Kumar. It is also proved through the relatives of Smt. Vipula that Smt. Vipula was residing in a rented house owned by P.W.4. The prosecution by producing M.O.1 to M.O.39 has proved that Smt. Vipula was having valuable golden and silver ornaments. Even the relatives of Smt. Vipula have stated that the ornaments seized under Ex.P.18, 20, 22 and 23 belong to Smt. Vipula which are also valuables. These valuables show that Smt. Vipula was having wealth in SC.No.779/2013 11 the form of movable properties. He has argued that through the evidence of P.W.3 the prosecution has established that the accused No.2 was the driver of the car of Smt. Vipula, accused No.1 was labour and accused No.3 was security guard working in SVS Products factory Through the evidence of P.W.1 to 3, the prosecution has also proved that Smt. Vipula was Supervisor in the factory and all the accused were working under her. The P.W.1, 2 and 7, the relative of Smt. Vipula have stated that accused No.2 was driver of the car and he was allowed to enter in the house of Smt. Vipula and this evidence supports the evidence given by P.W.3. Therefore, the evidence on record show that accused No.1 to 3 were knowing Smt. Vipula, which shows the possibility of entry by the accused in the house of Smt. Vipula on 11.02.2013. The learned Public Prosecutor has argued that the accused No.1 to 3 have given their voluntary statement and based on SC.No.779/2013 12 such voluntary statements, the place of hiding the ornaments of Smt. Vipula were discovered and at the instance of accused No.1 to 3 the ornaments of Smt. Vipula have been seized under the Panchanamas at Ex.P.18, 20, 22 and 23. Such Panchanamas have been proved through the evidence of P.W.3. It is his further argument that the expert has collected hair found on the spot and subjected for DNA test. The P.W.30/L. Purushotham, expert has given his opinion that hair found on the spot tallied with the sample hair collected from accused No.1, which shows the presence of accused No.1 when the death of Smt. Vipula occurred in her house. He has argued that P.W.4 has stated the presence of accused Nos.1 and 2 near the house of Smt. Vipula on the date of alleged incident in the night who came with auto. Such evidence has not been shaken in the cross-examination and such evidence is one of the strong circumstances to show the SC.No.779/2013 13 involvement of the accused No.1 and 2 in the murder of Smt. Vipula. On these main grounds and by referring relevant evidence of the witnesses and by highlighting the relevant documents, the learned Public Prosecutor has submitted that evidence on record is sufficient to prove the guilt of the accused No.1 to 3 beyond reasonable doubt. Accordingly, he prayed to convict the accused Nos.1 to 3.
12. The counsel for accused Nos.2 and 3 not advanced the argument inspite of sufficient opportunity. The learned counsel for the accused No.1 argued at length and even submitted his written argument under Section 314 of Cr.P.C. I have carefully gone through with the written submission made by the accused No.1. The learned counsel for the accused No.1 has argued that the incident took place between 9.30 P.M. on 10.02.2013 and 7.15 A.M. on 11.02.203.
SC.No.779/2013 14 The P.W.3 has given his opinion about death of Smt. Vipula and the Police registered such information in UDR and no FIR was registered on 11.02.2013. After sifting the body from the house, the house of Smt. Vipula was not guarded and on 12.02.2013 the P.W.1 filed first information making allegation of missing of ornaments of Smt. Vipula. Then FIR has been registered on 12.02.2013 at 2.15 P.M. There is inordinate delay in registration of the FIR. There was access to the relatives of Smt. Vipula in the house after shifting the body till filing of FIR on 12.02.2013. Therefore, in such period the Investigating Officer has plotted the accused Nos.1 to 3. All the ornaments said to be recovered under Ex.P.18, 20, 22 and 23 are not at the instance of accused Nos.1 to 3. However, by taking photographs at the time of seizure the Investigating Officer arranged for the scenes as if he has recovered the ornaments at the instance of SC.No.779/2013 15 accused Nos.1 to 3. Therefore, recovery Panchanama shall not be believed. He has argued that there are reasonable doubt in the case of the prosecution and benefit of doubt has to be given to the accused. On these amongst other grounds shown in the written- argument, he has prayed to acquit the accused.
13. The P.W.1/Vasundari, P.W.2/B.R. Vidya and Ganesh Aithal filed two applications under Section 451 and 457 of Cr.P.C. for custody of M.O.1 to 97 and properties seized in P.F.No.67/2013. In the applications they have stated that they are the legal heirs of Smt. Vipula and entitled for her ornaments seized in this case. They have obtained Succession Certificate in P&SC No.253/2016 to get the possession of Material Objects referred above. Accordingly, prayed to release the Material Objects in their favour. The prosecution filed objections to these applications SC.No.779/2013 16 contending that properties are still required. Alternatively submitted to release the properties by taking sufficient bond to secure the properties in future.
14. These applications were filed at the stage of argument on merit of the case. Therefore, these applications are also taken up for consideration along with main matter. Heard the argument of applicants and also learned Public Prosecutor on the release applications.
15. I have carefully gone through the material evidence on record and given anxious thoughts to the submissions made by both the parties. In the light of such submissions and the evidence on record, the following points arise for my determination:
1. Is the death of Smt. Vipula on 10.02.2013 was homicidal?
SC.No.779/2013 17
2. Has the prosecution proved that the accused No.1 to 3 have caused the death of Smt. Vipula?
3. Whether the act of the accused No.1 to 3 in causing the death of Smt. Vipula is culpable homicide amounting to murder or not amounting to murder?
4. Whether the prosecution proves beyond reasonable doubt that between 9.30 P.M. on 10.02.2013 and 7.15 A.M. on 11.02.2013, the accused No.1 to 3 have committed robbery of golden/silver ornaments of Smt. Vipula from her house and thereby committed the offence under Section 392 of IPC?
5. Whether the prosecution proves beyond reasonable doubt that between 9.30 P.M. on 10.02.2013 and 7.15 A.M. on 11.02.2013, the accused No.1 to 3 have committed lurking house trespass in the house bearing No.954 nd situated at 2 Main, 15th Cross, Banashankari, Bengaluru of Smt. Vipula in SC.No.779/2013 18 order to commit robbery and murder and thereby committed the offence under Section 457 of IPC?
6. Whether the P.W.1, 2 and Ganesh Aithal are entitled for custody/possession of valuables at M.O.1 to 97, 106 and 107?
16. My findings to the above points are as under:-
POINT Nos.1 & 2 :- In the Affirmative POINT No.3 :- The act of the accused in causing the death of Smt. Vipula is culpable homicide amounting to murder POINT No.4 & 5 :- In the Affirmative POINT No.6 :- In the Affirmative for the following:-
REASONS
17. POINT NO.1 :- The prosecution has alleged that the death of Smt. Vipula took place between 9.30 P.M. on 10.02.2013 and 7.15 A.M. on 11.02.2013 in her SC.No.779/2013 19 rented house. The P.W.1 is the sister of Smt. Vipula and she last seen the deceased at 9.30 P.M. on 10.02.2013. Even Smt. Vipula attended her duties in S.V.S. Product factory on 10.02.2013, which has been spoken by P.W.3. The inquest at Ex.P.14 was drawn on 11.02.2013. P.W.3 given his information at Ex.P.12 on 11.02.2013 at about 8.35 .AM. and it was registered as UDR. There is a P.M. Report at Ex.P.121, which shows that postmortem was conducted on the body of Smt. Vipula between 11.30 and 1.15 P.M. on 11.02.2013. The death of Smt. Vipula is not disputed by the accused. Therefore, these evidence on record are sufficient to hold that Smt. Vipula died in her rented house between 9.30 P.M. on 10.02.2013 and 7.15 A.M. on 11.02.2013. Accordingly, I hold that the prosecution has proved the death of Smt. Vipula.
SC.No.779/2013 20
18. The P.W.1 and 2 have stated that they are the sisters of Smt. Vipula. P.W.3 has stated that he was running SVS Product factory and in such factory Smt. Vipula was working as Supervisor and In-charge Officer. P.W.6 has stated that he is the nephew of Smt. Vipula and P.W.7 has stated that he is the husband of sister of P.W.1. These relationship spoken by P.W.1 to 3, 6 and 7 has not been disputed by the accused. The statement made by these witnesses is sufficient to hold that they are the close relatives of Smt. Vipula and accordingly, I hold that the prosecution has proved the relationship between these witnesses and Smt. Vipula.
19. The P.W.1 to 3 and 7 have stated that Smt. Vipula was divorcee and she was residing in the rented house at Banashankari, Bengaluru. The P.W.4 has stated that she is the landlady of Smt. Vipula. Her house was consisting of ground floor and first floor.
SC.No.779/2013 21 She has stated that in the ground floor Smt. Vipula was residing as a tenant and in the first floor she was residing with her family. The house where Smt. Vipula was residing has been described fully in Ex.P.1 and Ex.P.2. According to such description the house was bearing No.954 situated in 2nd Main, 15th Cross, Banashankari, Bengaluru. The evidence of P.W.1 to 4, 6 and 7 that Smt. Vipula was divorcee and she alone was residing in the ground floor of the house owned by P.W.4 as on the date of the incident is not seriously disputed. Even if it is disputed, the evidence of P.W.1 to 4, 6 and 7 is sufficient to prove the residence of Smt. Vipula in the ground floor of house owned by P.W.4 and the residence of P.W.4 in the first floor. For proof of such residence of Smt. Vipula, the rent agreement or lease deed is not required. Thus, I hold that the prosecution has proved that Smt. Vipula was residing SC.No.779/2013 22 alone in a rented house owned by P.W.4 as on the date of the incident.
20. The prosecution has proved the residence of Smt. Vipula in a rented house owned by P.W.4 and her death in the said house between 9.30 P.M. pm 10.02.2013 and 7.15 A.M. on 11.02.2013. During the cross-examination of P.W.16/Dr. S.R. Jagannath, Medical Officer, the defence has suggested that death was as a result of hanging and not as a result of strangulation. By taking this defence, the accused disputing homicidal death of Smt. Vipula. Therefore, whether the death of Smt. Vipula is suicide or homicidal death is to be decided.
21. The P.W.3 went to the police station and filed his information at Ex.P.12 before P.W.25 / PSI and such information has been registered as UDR. Thereafter, the P.W.25 rushed to the house of Vipula, conducted SC.No.779/2013 23 inquest at Ex.P.14 and he has shifted the body to KIMS hospital for postmortem. At that time he has taken photographs produced at Ex.P.25 to Ex.P.29. These photographs are not disputed by the defence. Even the prosecution examined the photographer and produced the receipt. The contents of inquest and photographs show that body was lying in the house. The P.W.16 conducted postmortem on 11.02.2013. The P.W.25 has given requisition produced in Ex.P.140 to Sub- Divisional Magistrate informing the death of Smt. Vipula. The Executive Magistrate or Sub-Divisional Magistrate not conducted any inquest on the dead body of Smt. Vipula inspite of receipt of information produced at Ex.P.140.
22. The learned counsel for the accused No.1 in his written argument has submitted that it was the duty of Police Officer to inform the death caused under the SC.No.779/2013 24 circumstances shown in Section 174 of Cr.P.C. to Executive Magistrate and the Police Officer authorized under the said Section shall proceed to the spot and to prepare the report of cause of death. Such report shall be prepared in the presence of two or more inhabitants of the neighbour hood and report has to be sent to Sub- Divisional Magistrate. Thereafter, he has to forward the body to Civil Surgeon. He has submitted that P.W.25 not mentioned ligature mark found on the body, which has been shown in postmortem report and therefore, postmortem report creates doubt about sustaining of ligature mark. He has submitted that after receipt of report under Section 174 of Cr.P.C. the Executive Magistrate is required to draw the inquest and such procure has not been followed. The P.W.25 is not authorized to draw inquest and therefore, inquest at Ex.P.14 has not been proved by the prosecution in accordance with law.
SC.No.779/2013 25
23. This argument of the defence is not sustainable under law for the reasons stated hereinafter. Section 174 of Cr.P.C. provides that when the Officer in charge of police station or some other Police Officer specifically empowered by the State Government, receives information that a person has committed suicide or has been killed by another or by animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall give intimation to the nearest Executive Magistrate empowered to hold inquests and shall proceed to the place where the dead body of such deceased person is. The Police Officer is required to conduct the inquest to know the reason for the death in presence of two or more respectable inhabitants of the neighbour hood and shall draw up the report which shall be signed by him.
SC.No.779/2013 26 Section 174(2) and 174(3) of Cr.P.C. provides that the report prepared by the Police Officer under Section 174(1) shall be forthwith forwarded to the District Magistrate or the Sub-Divisional Magistrate when the case involves in any of the categories prescribed under Section 174(3) of Cr.P.C.
24. In the present case P.W.25 received the information from P.W.3 that Smt. Vipula died in her house under the circumstances raising reasonable suspicion that some other person has committed the offence and therefore, P.W.25 registered the information in Ex.P.12 and he rushed to the spot where the dead body was lying immediately. He drawn the inquest at Ex.P.14 in the presence of C.W.6 to 8 and one of them has been examined as P.W.6. In Ex.P.14, the P.W.25 has noted the abrasion on neck of Smt. Vipula, which has been shown in Page No.7 of Ex.P.14. Thereafter, he has reported the death of Smt. Vipula to SC.No.779/2013 27 Sub-Divisional Magistrate, Bengaluru South Sub- division produced at Ex.P.140. This report was signed on 11.02.2013 itself at 8.45 A.M. However, the seal of Sub Divisional Magistrate on Ex.P.140 indicates that the office has received the information on 13.02.2013. In Ex.P.14, the P.W.25 has stated that unless P.M. Report is received, he could not form opinion of death. So, P.W.25 has complied the mandatory provision of Section 174(1) and also Section 174(2) and 174(3) of Cr.P.C.
25. The C.W.6 to 8 are the residents of Canara Bank Colony, Nagarabhavi, Bengaluru. The C.W.8 has been examined as P.W.6. P.W.6 is the relative of Smt. Vipula. The scene of offence was in 2nd Main, 15th cross, Banashankari, Bengaluru. The address of C.W.6 to 8 and the address of scene of offence differs. However, whether the residence of C.W.6 to 8 in SC.No.779/2013 28 Canara Bank colony was far away from Banashankari is to be seen in the cross-examination of P.W.6. The defence not asked about the distance between his residence and the residence of Smt. Vipula. Even during the cross-examination of P.W.25 the defence has not suggested that C.W.6 to 8 are not inhabitants of neighbourhood. Even in the cross-examination of P.W.25 the difference between residence of C.W.6 to 8 and residence of Smt. Vipula has not been elicited. So, there is no evidence on record to show that Canara Bank colony, Nagarabhavi where C.W.6 to 8 were residing was far away from Banashankari where the house of Smt. Vipula was situated. Therefore, in the absence of specific evidence it cannot be held that the residence of C.W.6 to 8 was far away from the house of Smt. Vipula. Even in the cross-examination of P.W.6 and P.W.25 there is no suggestion that C.W.6 to 8 were not the inhabitants of neighbour hood of Smt. Vipula.
SC.No.779/2013 29 Having regard to these evidence on record, I hold that P.W.25 prepared the report at Ex.P.14 in presence of more than two inhabitants of neighbour-hood and thereby complied magnate of Section 174(1) of Cr.P.C. Even if it is held that C.W.6 to 8 were not the inhabitants of neighbour-hood of Smt. Vipula, then also evidence of P.W.6 and 25 is sufficient to prove the inquest. Only because inhabitants of neighbour-hood were not called for inquest, the inquest at Ex.P.14 and evidence of P.W.6 and 25 shall not be brushed aside.
26. The P.W.25 in Ex.P.14 has specifically shown the abrasion found on the neck of Smt. Vipula. Which has been noticed by Medical Officer, who has conducted postmortem. Therefore, submission of the defence that P.W.25 not mentioned any mark on the neck of Smt. Vipula is not acceptable. There is no contradiction between the observation of P.W.25 and the Medical SC.No.779/2013 30 Officer, who has conducted the postmortem on the dead body of Smt. Vipula.
27. Section 176 of Cr.P.C. provides procedure for the Executive Magistrate to conduct the inquest about the death after receipt of information from the Police Officer. Under Section 176(1) the Executive Magistrate shall hold inquiry into the cause of death in cases referred under Section [174(3)(i) & (ii) of Cr.P.C. i.e. if the case involves suicide of woman within seven years of her marriage or the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman. This provision is not applicable to the case in hand. Second part of Section 176(1) of Cr.P.C. provides discretion to the Executive Magistrate either to hold or not to hold inquiry into the cause of death in SC.No.779/2013 31 cases specified under Section 174(3)(iii) to (v) of Cr.P.C. The present case falls under Section 174(3)(iv) & (v) of Cr.P.C. Therefore, the Executive Magistrate under such circumstances is having discretion either to conduct inquiry or not to conduct inquiry. There is no mandate on Executive Magistrate to hold inquiry in case of death covering under Section 174(3)(iv) & (v) of Cr.P.C. Accordingly, in the present case even though the Sub-Divisional Magistrate received the information at Ex.P.140 not decided to exercise discretion to hold inquiry about the death of Smt. Vipula.
28. Admittedly the postmortem of Smt. Vipula was conducted on 11.02.2013 and her funeral was conducted on the same day. The Sub-Divisional Magistrate received information on 13.02.2013. There was no dead body at that point of time. Section 176(3) of Cr.P.C. provides procedure to the Executive SC.No.779/2013 32 Magistrate to hold inquiry in case body was interred. He has discretion to disinter the body for examination if he decides to hold inquiry under Section 176(1) of Cr.P.C. Even though the Sub-Divisional Magistrate received Ex.P.140 not disinterred the body for holding inquiry as there was no necessity.
29. Considering Section 174 and 176 of Cr.P.C. and the evidence on record referred above, I hold that P.W.25 has conducted inquiry about death of Smt. Vipula as he was SHO of police station when information was given by P.W.3. Special authorization empowering the SHO to conduct inquiry under Section 174 of Cr.P.C. is not necessary. Therefore, the P.W.25 has conducted inquiry as required under Section 174 of Cr.P.C. legally and there is no illegality. Thus, the contentions raised by the defence in this regard not sustainable under law.} SC.No.779/2013 33
30. P.W.16/Medical Officer has conducted postmortem on Smt. Vipula and he is competent person to depose as to whether death of Smt. Vipula is homicidal death or natural death or suicide. The P.W.16 in his evidence has stated that on 11.12.2013 he received requisition from Banashankari Police Station for conducting of postmortem and he has conducted the postmortem on the same day between 11.50 A.M. and 1.15 P.M. He has stated that on verification of the body he found eight external injuries, ligature mark and even after neck dissection, he found internal injuries which are as under:
External injures:-
i. Two contusions noted below the right ear measuring 1x1 cms and 2x2 cms respectively, 1 cm apart from each other.
ii. Two abrasions present over the left side front of neck, 6cms below the chin measuring 3x2 cms and 2x2 cms respectively, 1 cm apart from each other.
SC.No.779/2013 34 iii. Contusion present over back of right shoulder measuring 4x2cms.
iv. Contusion present over back of right arm measuring 3x2 cms.
v. Contusion present over back of left shoulder measuring 5x2 cms.
vi. Two contusions present over back of left upper thigh measuring 3x3 cms and 4x3 cms respectively.
vii. Contusion present over left cheek above angle of mandible 2x1 cms.
viii. Contusion present over left side inner aspect of lower lip 2x0.5 cms.
Ligature Mark:
A faint transverse ligature mark present over the front, sides of neck at and below the level of thyroid cartilage, measuring 19x2.5 cm. It is situated 5.5 cm from right ear lobule, 6 cm from left ear lobule, 7cm from chin.
On neck dissection:
Subcutaneous tissues beneath the ligature mark are contused. Contusions are SC.No.779/2013 35 present over sternocleimastoid muscle on right side. Laryngeal muscles contused. Hyoid bone is intact. Greater horn of thyroid cartilage on the left side is fractured, blood effused around.
Internal examination:
Scalp contusion size 2x2 cms present over the right partial region. Skull intatct.
Meninges congested.
Brain congested. ( C/s petechial haemorrhages present in white matter).
Larrynx- laryngeal muscles are contused.
Trachea- contains blood stained froth.
Lungs-Edematous and congested. Petehial haemorrahages present over surface. (C/s- dark colour fluid blood oozes out) Stomach contains partially digested rice meal, full stomach smell and mucosa- normal.
All other organs are intact and congested.
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31. He has given his opinion that death was 12 to 18 hours prior to conducting postmortem. The P.W.16 has found veil on the body of Smt. Vipula at the time of conducting postmortem, which is at M.O.112.
The P.W.29 sent veil to P.W.16 asking his opinion as to whether there was possibility of Asphyxia as a result of ligature strangulation by using veil. After examination the P.W.16 has given his opinion at Ex.P.123. The P.W.16 has categorically stated that the death was due to Asphyxia as a result of ligature strangulation. Even he has given opinion that ligature mark found on the neck of Smt. Vipula could be caused by using the veil at M.O.112. He has opined that there is possibility of causing injury No.1, 2 and 7 shown in P.M. report which are abrasion and contusions present over the neck through gold ornaments due to compression over the neck. He has stated that other injuries found on SC.No.779/2013 37 the body could have been caused due to application of blunt force during struggle.
32. This opinion given by the P.W.16 has been denied by the defence in the cross-examination. He was tested through medical jurisprudence. P.W.16 has categorically stated that the death was by ligature strangulation possibly through veil at M.O.112. He is firm in his opinion. He is expert in the field. He has no enmity with accused. He is not the relative of deceased or her family members. Therefore, there is nothing on record to disbelieve the opinion given by P.W.16 about the cause of death.
33. The contents of Ex.P.14, photographs at Ex.P.25 to Ex.P.29, evidence of P.W.16 and 25 including the relatives of Smt. Vipula, more particularly the evidence of P.W.3/Varadaraju Nayak, it is evident that Smt. Vipula died because of ligature strangulation SC.No.779/2013 38 and it is not suicide by hanging. Thus, I hold that the death of Smt. Vipula is homicidal death. Hence, I answer this point in the Affirmative.
34. POINT Nos.2, 4 & 5 :- The entire case of the prosecution is based on circumstantial evidence. In other words there is no direct evidence to prove the involvement of accused Nos.1 to 3 in the murder, house lurking trespass or the robbery. Therefore, whether the prosecution has produced sufficient circumstantial evidence to link the accused and the alleged crime is to be scrutinized.
35. The prosecution has alleged that accused Nos.1 and 2 were labours and accused No.3 was the security guard working in SVS Product Factory owned by P.W.3/Varadaraju Nayak. In order to prove this allegation, the prosecution has relied upon the evidence of P.W.1 to 4, P.W.29 and Ex.P.4 to Ex.P.8. During the SC.No.779/2013 39 course of argument the defence not seriously disputed the employment of accused Nos.1 to 3 in SVS Product Factory. However, the prosecution has led evidence to prove such fact.
36. The P.W.1 to 3 have categorically stated that Smt. Vipula was working in SVS Product Factory and a Car was provided to her by the Company and that car was being driven by accused No.2. They have also stated that accused No.2 was visiting to the house of P.W.1, 2 along with Smt. Vipula as a driver of the car. The P.W.3, owner of the factory has stated that accused No.2 was picking Smt. Vipula from her house and dropping her to the house daily in a car. The P.W.4 who is landlady of Smt. Vipula has also stated that accused No.2 was visiting to the house of Smt. Vipula and he was driving the car. These statements made by P.W.1 to 4 are consistent with each other and SC.No.779/2013 40 such statements are not discredited in the cross- examination.
37. The counsel for accused No.1 has argued that driving license of accused No.2 is not produced to show that he was the driver to the car of Smt. Vipula. This contention is not sustainable under law for the reason that when the employer and relatives of Smt. Vipula seen accused No.2 when he was working as a driver on the car, such fact itself is sufficient to hold that accused No.2 was driver. The non-production of driving license is not sufficient to discard the evidence of P.W.1 to 4.
38. The P.W.3/Varadaraju Naik, owner of the factory has stated that accused No.1 was worker and accused No.3 was security guard in his factory and all the accused were working under Smt. Vipula. He has SC.No.779/2013 41 reiterated such statements even in the cross- examination.
39. The P.W.29 called P.W.3 to produce records relating to service of Smt. Vipula and accused Nos.1 to 3 in SVS Product factory. Accordingly, the P.W.3 has furnished his report at Ex.P.4 to Ex.P.7 and Ex.P.8. In Ex.P.4 it has been shown that accused No.1/Ranjith joined to his duties in the factory on 29.09.2012. There is photograph of accused No.1 in Ex.P.4. In Ex.P.8 the P.W.3 has stated that Smt. Vipula was working as in-charge Officer, accused No.1 and 2 were working as daily workers and accused No.3 was working as security guard. According to this letter the accused No.1 was working from December 2012 to January 2013 and accused No.2 was working from December 2012 till some period in February 2013. Along with report at Ex.P.8, the P.W.3 has produced SC.No.779/2013 42 time record card of each of the accused. The entries made in these records show that accused Nos.1 to 3 worked in the factory of P.W.3 till 09.02.2013. Accordingly, the P.W.3 has deposed.
40. The P.W.3 has not produced the original time record card and original bio-data of each accused. However, the evidence of P.W.3 is consistent about employment of accused Nos.1 to 3 in his factory till 09.02.2013. Such statement of P.W.3 has been corroborated by P.W.1, 2 and 4, more particularly in respect of accused No.2. Looking to the evidence brought on record, I hold that these evidence on record is sufficient to prove the employment of accused Nos.1 to 3 in SVS Product factory from December 2012 till 09.02.2013. Accordingly, I hold that prosecution proved the employment of accused Nos.1 to 3 in the same factory where the deceased Vipula was working.
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41. This employment of accused No.1 to 3 show that accused No.1 to 3 were knowing the behaviour of Smt. Vipula and they were knowing where Smt. Vipula was residing and whether any family members were residing with Smt. Vipula. It is on record that Smt. Vipula was divorcee and she alone was residing in a rented house. These circumstances show the probability of knowledge of behaviour and family background of Smt. Vipula by each of the accused prior to the incident.
42. According to prosecution the murder of Smt. Vipula is for gain. In order to establish this fact the prosecution has tendered many evidence to show that Smt. Vipula had valuable golden and silver ornaments and she kept such ornaments in her house. Therefore, whether there was valuable properties in the house of SC.No.779/2013 44 Smt. Vipula so as to commit her murder for gain by any person is the matter for consideration.
43. Ex.P.2 is the Panchanama drawn by P.W.29 in the house of Smt. Vipula on 12.02.2013 between 3.00 P.M. and 5.15 P.M. Under this Panchanama it has been shown that as many as 38 golden, silver ornaments, various types of lady's wrist watches and cash of Rs.28,905/- found in the house has been seized in the presence of P.W.1 to 3, G.V. Nayak, Shivanna, B.V. Ramesh Kumar, Narayanappa and Manjunath. In the Panchanama it has been shown that all these items were owned by Smt. Vipula. On perusal of the documents, it is evident that all the articles were having more value as on the date of the incident.
44. P.W.1 to 3, 9, 7, and P.W.11/Narayanappa including P.W.29 have deposed that the items shown in Ex.P.2 have been recovered from the house of Smt. SC.No.779/2013 45 Vipula on 12.12.2013. The P.W.29 is the goldsmith and he has given his opinion that some of the ornaments seized are golden and silver ornaments. These witnesses have identified such properties produced in M.O.1 to M.O.39. The defence denied the seizure at Ex.P.2 and taken the defence that there was no necessity for P.W.29 to seize the articles found in the house of Smt. Vipula. The P.W.1 to 3, 7 have categorically stated that M.O.1 to 39 belong to Smt. Vipula and from her house those articles were seized. That part of evidence is consistent and there is no reasonable doubt. The P.W.1, 2 and 7 are the relatives of Smt. Vipula. P.W.3 is the employer of Smt. Vipula. P.W.9 and 11 are independent witnesses. Therefore, their evidence is trustworthy. Thus, I hold that from the evidence of these witnesses, the prosecution proved the seizure of M.O.1 to M.O.39 from the house of Smt. Vipula on 12.02.2013.
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45. The P.W.29 has given explanation that these valuables were found in the house of Smt. Vipula, Smt. Vipula was alone residing in the house and there were no legal representatives to take care of such ornaments and therefore, articles have been seized. This explanation given by the Investigating Officer appears to be correct for the reason that when Smt. Vipula was alive, she alone was residing and she died leaving behind his sisters and distant relatives. The sisters were residing separately. At the time of seizure, the sisters of Smt. Vipula were not having legal authority to receive the valuables. Therefore, the Investigating Officer not handed over the valuables found in the house of Smt. Vipula to the sisters or any relatives which cannot be faulted with.
46. It is the case of the prosecution that murder is for gain. In order to establish such fact, the SC.No.779/2013 47 prosecution is required to prove the existence of wealth/valuables with Smt. Vipula. In order to prove such fact the seizure of valuables found in the house of Smt. Vipula is necessary and accordingly, the Investigating Officer has rightly seized M.O.1 to M.O.39 from the house of Smt. Vipula. The value of these articles show that there was sufficient wealth with Smt. Vipula so as to attract other people to get such properties. This probablize that accused Nos.1 to 3 were attracted with such wealth of Smt. Vipula.
47. The prosecution has seized many valuables/other Material Objects under the Panchanamas at Ex.P.18, 20, 22, 23 and 120. Those articles are at M.O.40 to M.O.100, M.O.102, 103, 106 and 107. The P.W.1 and 2, who are the sisters and even P.W.3 who is the employer of Smt. Vipula have stated that M.O.40 to 97, 106, 107 also belong to Smt. SC.No.779/2013 48 Vipula. They have identified such ornaments before the Court.
48. P.W.19/Sripathi Bhat is the Manager of Bhima Jewellers, Jayanagar. He has stated that under the receipts at Ex.P.130 to 132, the ornaments have been sold in favour of Smt. Vipula. He has given letter at Ex.P.129. These records show that Smt. Vipula purchased necklace and bangles worth of Rs.1,62,455/- on 08.04.2005, she purchased necklace worth of Rs.22,395/0 on 11.05.2005 and another necklace worth of Rs.15,976/- on 14.06.2005.
49. P.W.26/Shivaprasad is the Manager of Tanishq Jewellary, situated in 3rd Block Jayanagar. He has stated that from 2018 he is working as with Manager in the above said Jewellary shop and the Police asked him to furnish the bills for having sold ornaments in the name of Smt. Vipula. Accordingly, he SC.No.779/2013 49 has furnished the bills in Ex.P.142 to 159. Even he has identified M.O.8, 9, 11, 13 and 18, which were sold from his shop to Smt. Vipula. In Ex.P.142 to Ex.P.159, the name of customer is shown as Smt. Vipula and description of the ornaments sold in her favour on various dates have been mentioned. These are the duplicate copies retained by the seller. On perusal of Ex.P.142 to 159, it is found that ornaments worth of Rs.27,99,833.26 have been purchased by Smt. Vipula during her lifetime.
50. In the bills/invoices produced by P.W.26, the address of Smt. Vipula has been shown as SVS Product factory, No.6, K.R. Road, Basavanagudi, Bengaluru. This address is the place of employment of Smt. Vipula and it tallies with the name and address of deceased. In Ex.P.130 to Ex.P.132 issued by P.W.19, the detailed address of purchaser Smt. Vipula has not been shown.
SC.No.779/2013 50 However, from the receipts it is evident that even the ornaments at Ex.P.30 to Ex.P.32 were purchased by deceased Vipula. Apart from this the accused not able to show that these receipts belong to some other Vipula and not the deceased. The P.W.1 to 3 and 7 identified all the ornaments seized in the case stating that those ornaments belong to Smt. Vipula. They are natural witnesses who had occasion to see the ornaments purchased, worn by Smt. Vipula. Therefore, their evidence is to be believed. The defence has argued that all the ornaments were created to fix the accused No.1 to 3 in the case. This argument is not acceptable for the reason that value of these ornaments is about Rupees one Crore and there is no such enmity between P.W.29 and the accused to create records by spending Rupees one Crore. Therefore, considering these evidence on record I hold that the prosecution has proved that ornaments at M.O.1 to 97, 106, 107 owned SC.No.779/2013 51 by Smt. Vipula and value of such properties was more than Rupees one Crore. This shows that there was probability of murder of Smt. Vipula for gain. This evidence on record is sufficient to prove that there was motive on the part of accused to commit murder of Smt. Vipula and to commit robbery and to commit house lurking trespass.
51. The accused No.2 first seen abnormal situation in the house of Smt. Vipula on 11.02.2013 and he informed the same to P.W.3. P.W.3 rushed to the house of Smt. Vipula and found dead body. Therefore, he has given his report at Ex.P.12 on 11.02.2013 and it was registered by P.W.25 at 8.35 A.M. In Ex.P.12 the P.W.3 has reported that death was in mysterious circumstances and requested the Police to unearth the facts in the matter. In Ex.P.2, the P.W.3 not reported cognizable offence and therefore, P.W.25 chosen to SC.No.779/2013 52 register the report in UDR No.4/13. Accordingly, P.W.25 has spoken before the Court. P.W.25 drawn the inquest at Ex.P.14 on 11.02.2013 in the same house and found abrasion on the neck of deceased. However, he was not able to form opinion as to whether death was natural or unnatural. Hence, he decided to send the dead body to postmortem to ascertain the nature of the death. From P.M. Report the P.W.29 came to know that the death was homicidal death. Postmortem was conducted on 11.02.2013 but report was given subsequently.
52. In the meantime the P.W.1, who is the sister of Smt. Vipula given her first information produced at Ex.P.1. Therefore, FIR was registered on 12.02.2013 at about 2.15 P.M. Even though the death was noticed on 11.02.2013 at 7.15 A.M. the FIR was registered on 12.02.2013 at 2.15 P.M. and therefore, there is delay SC.No.779/2013 53 in registration of FIR. This delay has been explained through the evidence of P.W.1, 3, 25 and 29. The P.W.1, 3 and 25 were not in a position to ascertain as to the nature of death of Smt. Vipula on 11.02.2013. All of them suspected murder on 12.02.2013 and therefore, immediately report has been given at Ex.P.1. If really the P.W.1 to 3, 25 or 29 intending to implicate accused No.1 to 3, they would have given first information on 11.02.2013 itself naming the accused before P.W.25. The P.W.1 and 3 naturally acted as prudent man in reporting the incident to the Police. Till 12.02.2013 neither the relatives nor the Police had clue of homicidal death of Smt. Vipula by any body and therefore, FIR was not registered till 05.02.2013. Thus, I hold that the prosecution has properly explained the delay in registration of FIR. Such delay is not caused for false implication of accused No.1 to 3.
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53. The P.W.29 has stated that he has arrested the accused Nos.1 to 3 on 17.02.2013 and all the accused have given their voluntary statement produced at Ex.P.168, 169 and 171 making discovery of the place where the stolen properties were kept. On perusal of voluntary statements referred above, it has been shown that Ex.P.168 was given by accused No.1, Ex.P.169 was given by accused No.2 and Ex.P.171 was given by accused No.3 on 17.02.2013. In these statements the accused have disclosed the fact that they have hidden ornaments in different places. These voluntary statements are admissible under Section 27 of Indian Evidence Act. The P.W.29 has spoken about these statements and all these statements bear the signature of accused Nos.1 to 3.
54. Ex.P.18 is the seizure Panchanama dated 18.02.2013 drawn by P.W.29 in presence of SC.No.779/2013 55 Shashikumar (P.W.8) and M.B. Mukesh Kumar. Under this Panchanama it has been shown that accused No.2 led the Investigating Officer and the panch witnesses to SVS Product factory where Smt. Vipula was working and shown the place where ornaments at M.O.40 to 47 were kept. It has been shown that such ornaments were recovered by P.W.29 between 1.30 P.M. and 3.00 P.M. The photographs of this recovery are produced at Ex.P.33 to Ex.P.57.
55. Ex.P.20 is seizure Panchanama dated 18.02.2013 drawn by P.W.29 wherein it has been shown that accused No.3 / Muniraju taken the Investigating Officer and panch witnesses to the house of Madhu and Lakshmidevi situated in Kumaraswamy Layout, Bengaluru and shown the golden ornaments produced at M.O.48 to 60 and such ornaments have been recovered by P.W.29. The photographs taken at SC.No.779/2013 56 the time of seizure of these ornaments are at Ex.P.59 to Ex.P.68.
56. Ex.P.22 is another Panchanama drawn by P.W.29 on 19.02.2013 between 11.00 A.M. and 2.00 P.M. In this Panchanama it has been shown that accused No.1 taken the Investigating Officer and the panch witnesses to the land bearing Sy.No.170 situated in H. Hosur Village of Maddur Taluk and shown the place where golden ornaments were hidden in the land. It has been shown that those ornaments were taken out and those ornaments are at M.O.61 to M.O.97. The bag under which these ornaments were kept is at M.O.98 and banian used for keeping these ornaments is at M.O.99. The photographs relating to this seizure are at Ex.P.70 to 78.
57. Ex.P.23 is another Panchanama dated 19.02.2013 drawn between 3.15 P.M. and 4.15 P.M. in SC.No.779/2013 57 the house of accused No.1 at H. Hosur Village. It has been shown that accused No.1 shown the SSLC Marks card and health insurance policy of Smt. Vipula in his house in bag, which are produced at M.O.100, 102 and 103 and such articles have been seized by P.W.29.
58. Ex.P.120 is another seizure Panchanama dated 17.02.2013 wherein it has been shown that P.W.29 arrested accused No.1 at Harohalli on Bidadi road and at that time the P.W.29 searched the body of accused No.1 and found two pairs of bangles. Such ornaments are at M.O.106, 107 and those ornaments have been seized.
59. The P.W.8 is panch witness to Ex.P.18, 20, 22 and 23. P.W.10/Girish is the Photographer and P.W.9 is the goldsmith. P.W.9 and 10 have been cited as witnesses to Panchanamas at Ex.P.22 and 23. P.W.15 is one of the panch witnesses to Ex.P.120. The SC.No.779/2013 58 Panchanamas at Ex.P.18, 20, 22, 23 and 120 if proved, they establish the link between the offence reported and the accused Nos.1 to 3. Therefore, these seizure Panchanamas are very important documents and hence, the evidence relating to these Panchanamas is to be scrutinized carefully.
60. In Ex.P.18, 20, 22 and 23 Shashikumar B. and M.B. Mukesh Kumar have been cited as panch witnesses and it has been shown that both of them were employees of BBMP, Padmanabhanagar Sub- division as on 18.02.2013. The P.W.9 is the goldsmith, who has weighed the ornaments shown in Ex.P.22. P.W.10 is the photographer who has taken the photographs relating to recovery shown in Ex.P.18, 20, 22 and 23 and the photographs are at Ex.P.33 to Ex.P.111 and the receipts are at Ex.P.112 to Ex.P.114.
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61. The P.W.29 has stated that he arrested the accused Nos.1 to 3 on 17.02.2013 and after recording voluntary statements given by the accused, he has issued notice to Shashikumar and M.B. Mukesh, P.W.9 and 10. Such copies of notice have been produced by him. The P.W.8/Shashikumar who is the employee of BBMP has categorically stated that as per the instruction given by his higher Officers in BBMP who received requisition from P.W.29 deputed him to assist P.W.29 for Panchanamas. The P.W.8 in his examination-in-chief narrated the places where the Panchanamas have been drawn including the nature of the property recovered under Ex.P.18, 20, 22 and 23. In the examination-in-chief the P.W.8 has stated that the accused No.2 taken himself, other panch witnesses and the Investigating Officer to SVS Product factory and shown hidden ornaments produced at Ex.P.40 to Ex.P.47 and also stated seizure of these articles by SC.No.779/2013 60 P.W.29. He has spoken to the fact that accused No.3 taken himself and other panch witnesses and P.W.29 to the house of Madhu and Lakshmidevi in Kumaraswamy Layout and shown hidden ornaments kept in the house which are produced at Ex.P.48 to Ex.P.60. He has stated that P.W.29 has seized these articles shown by accused No.3. The P.W.8 further stated that on 19.02.2013 accused No.1 has taken to the land at H. Hosur and stated that the accused No.1 has shown the place where the ornaments were hidden. He has also stated that accused No.1 taken him to his house in H. Hosur Village and shown M.O.100, 102 and 103. he has stated that P.W.29 has seized all these ornaments. The examination-in-chief of P.W.8 tallies with the seizure shown in Ex.P.18, 20, 22 and 23.
62. In the cross-examination of P.W.8 the defence asked the details of each of the places shown in SC.No.779/2013 61 the Panchanamas. The witness in detail has spoken all the places from which the ornaments have been recovered under the Panchanamas. He has also stated that at the time of seizure of properties shown by accused No.2, photographer and goldsmith were present. He has also stated the manner in which himself, other panch witnesses, photographer and Police traveled from the police station to each of the places shown in the Panchanamas. In the cross- examination the P.W.8 has stated that when he went to SVS Product factory, it was locked and some one opened the door. He is not able to name such person. In the cross-examination he has pleaded his ignorance about ownership of Sy.No.170. He has stated about the height of sugarcane in Sy.No.170 when the Panchanama was drawn. On perusal of the cross- examination of P.W.8 and the answers given by this witness, it is evident that the witness has naturally SC.No.779/2013 62 spoken and he was present on all the places shown in seizure Panchanamas referred above. Therefore, the defence has not shaken the statements of P.W.8 in the cross-examination.
63. The defence has raised the question as to choosing the BBMP employees as panch witnesses to the Panchanamas. Under law there is no bar to secure employees of the Government as panch witnesses at the time of drawing Panchanamas. In fact if the Investigating Officer secures the employees of Government as panch witnesses, it will be very helpful to the Court to ascertain the truth of the matter. Only because the P.W.8 is secured for Panchanamas, who was employee, doubt cannot be entertained unless there is something shown in the cross-examination about enmity. The defence in the cross-examination not elicited that the P.W.8 is interested or he is SC.No.779/2013 63 permanent pancha of the police station or he is having grudge against the accused. Therefore, there is nothing on record to disbelieve the evidence of P.W.8. Accordingly, evidence of P.W.8 is accepted.
64. P.W.9/Shivanna has spoken about seizure of M.O.1 to M.O.39 from the house of Smt. Vipula under Ex.P.2. There is no serious dispute about such seizure. The P.W.9 has also spoken about seizure of articles shown under Ex.P.22. Such articles are marked at M.O.61 to 97. He has stated that the accused No.1/Ranjith taken him, panch witnesses, photographer and the Police to Hosur Village to the land where the ornaments were hidden and he sown the place. He has also stated that from the place which has been shown by the accused No.1, M.O.61 to 97 have been recovered. This evidence is supporting the evidence of P.W.8. P.W.9 is working in Jewellary shop situated in SC.No.779/2013 64 Jayanagara 7th block. Without any Certificate of Occupation, the oral testimony is sufficient to believe that he is running jewellary business and he accompanied Police at the time of drawing Ex.P.22. In the cross-examination of P.W.9, nothing has been elicited. On the other hand, details of the land where from ornaments were seized has been extracted and the witness has naturally spoken. Therefore, even the evidence of P.W.9 is not having any contradiction or omission. Therefore, evidence of P.W.9 is also accepted.
65. P.W.10/Girish is the photographer and his photo studio was situated in Kaveri Nagar. He has stated that on 11.02.2013 Banashankari Police taken him to the house where the dead body was laying and as per the instructions given by the Police he took the photographs at Ex.P.25 to Ex.P.29. He has also stated SC.No.779/2013 65 that Police taken him to the places shown in Ex.P.18, 20, 22 and 23. In those places he has taken the photographs produced at Ex.P.33 to Ex.P.57, 59 to 68, 70 to 111. He has identified his receipts at Ex.P.112 to Ex.P.114. He has not produced the negatives or the C.D. He is the person who has taken the photographs, developed and issued receipts. Such photographs have been identified by P.W.8 and 9 and P.W.29. In the photographs each places shown in Ex.P.18, 20, 22 and 23 including the presence of witnesses and Investigating Officer is visible. It is not the case of the defence that photographs not relating to the places shown in each Panchanama. It is also not the case of the defence that P.W.10 is not a photographer. The evidence of P.W.10 has been corroborated by P.W.8 and 9. In the cross-examination of P.W.10, nothing has been elicited to disbelieve the statements. Therefore, I hold that P.W.10 accompanied the Police and he took SC.No.779/2013 66 the photographs in each places shown in Ex.P.2, 18, 20, 22 and 23. Such evidence and the photographs support the evidence of P.W.8 and 9.
66. The P.W.29 / Investigating Officer spoken about drawing of Panchanamas at Ex.P.2, 18, 20, 22, 23 in presence of panch witnesses and recovery of ornaments and certificates of Smt. Vipula. Such statement of Investigating Officer is corroborated by P.W.8, 9 and 10. The P.W.29 not admitted any of the defence of the accused. Even the statement of P.W.29 regarding seizure Panchanamas not been discredited. Therefore, the evidence of P.W.29 with regard to seizure of properties shown in the Panchanamas is accepted.
67. On scrutiny of the oral and documentary evidence referred above, it is found that accused Nos.1 to 3 have given their voluntary statements before SC.No.779/2013 67 P.W.29 discovering the places where the stolen ornaments were kept. Based on such discovery statements, the P.W.29 secured the panch witnesses, photographer and goldsmith and went to all the places shown in Ex.P.18, 20, 22 and 23 along with accused and each of the accused shown respective places where the ornaments were hidden. Therefore, the Investigating Officer has seized the ornaments shown in the Panchanamas at the instance of the accused in presence of panch witnesses. Thus, I hold that prosecution has proved recovery Panchanamas at Ex.P.18, 20, 22 and 23.
68. When the prosecution has established that the ornaments shown in Panchanamas belong to Smt. Vipula and those were recovered at the instance of accused, the accused have to give explanation under which circumstances they came in possession of SC.No.779/2013 68 ornaments belong to Smt. Vipula. The accused Nos.1 to 3 not given any explanation in the cross-examination of material witnesses or in their examination under Section 313 of Cr.P.C. Therefore, the recovery of ornaments belonging to Smt. Vipula established the link between the murder of Smt. Vipula, robbery took place in the house of Smt. Vipula with the accused Nos.1 to
3.
69. Ex.P.120 is another seizure Panchanama drawn on 17.02.2018 at Harohalli when the accused No.1 was arrested by P.W.29. Under this Panchanama two pairs of bangles were recovered by P.W.29. These properties are at Ex.P.106 and 107.
P.W.15/Sampangiram is one of the panch witnesses to Ex.P.120. P.W.14/Hanumanrama is the goldsmith who weighed the ornaments at M.O.106 and 107 after recovery. The P.W.15 has stated that P.W.29 given SC.No.779/2013 69 notice produced at Ex.P.119 to him near Engineering College of Harohalli and called for Panchanama. He went to the place and saw the accused No.1. He has further stated that he found two pairs of bangles in the pocket of accused No.1 and accused No.1 has handed over those ornaments to the Police. The Police seized M.O.106 and 107 in his presence and he signed on Ex.P.120.
70. The P.W.15 has stated that he is lorry driver. He has explained under what circumstances he was present at the time of Panchanama. He has stated that he went to the spot at about 4.00 P.M. He has stated that Manju, who is other pancha was also present. He has given the boundaries of the place of recovery. He has stated that he does not know whether the bangles seized were of golden or some other metal. By looking into the statements made by P.W.15 in the cross-
SC.No.779/2013 70 examination it is credible that he was present when P.W.29 has seized bangles produced at M.O.106 and M.O.107 from the possession of accused No.1. The P.W.29 has also spoken about the seizure of these articles. His evidence is supported by the evidence of P.W.15. Therefore, the evidence of P.W.15 and P.W.29 is sufficient to prove the Panchanama at Ex.P.120. The prosecution has proved the recovery of bangles of Smt. Vipula from the possession of accused No.1 on 17.02.2013 which establish the link between the offence and the accused No.1.
71. Another circumstantial evidence brought on record by the prosecution is witnessing of accused No.1 and 2 near the house of Smt. Vipula by the landlady/P.W.4 including the presence of auto used by the accused in the night of 11.02.2013. The P.W.4/landlady has stated that on 10.02.2013 she was SC.No.779/2013 71 in her house and since she was suffering from headache, she was near the window of her house at about 9-9.15 P.M. At that time she saw an auto parked near the transformer and seen two persons. She has also stated one of them was walking towards the house of Smt. Vipula and he is accused No.2. Even she has identified the accused No.3. She has stated that she saw signals given by accused No.2 to accused No.3. She has stated that auto went away within short time. According to her again the auto came near her house and parked near electric pole where there was street light. She saw back of auto wherein the name of "Swabhimani" was written. This auto was witnessed by P.W.4 at about 10.00 P.M. and 10.15 P.M. and she went for sleep. She has stated that on the next day morning she came to know that there was death of Smt. Vipula. The statements made by P.W.4 in the examination-in- chief show that she saw auto and accused Nos.2 and 3 SC.No.779/2013 72 in the auto who visited near the house of Smt. Vipula on 10.02.2013 twice.
72. The statements made by P.W.4 has been tested in the cross-examination. In the cross- examination the P.W.4 has stated that she was residing in the first floor and Smt. Vipula was residing in the ground floor. She has stated that there was a balcony in her house and from balcony, main road was visible and therefore, she was in a position to see the auto and the persons who came in auto. She has stated that the transformer was at a distance of 5-6 ft. from her house wherein auto was parked. This distance probabilize witnessing of auto by P.W.4. This witness not in a position to say the colour of the dress worn by the accused. This witness stated first witnessing of auto between 9.00 P.M. and 9.15 P.M. This evidence is contradicting with the statement of P.W.1, who has SC.No.779/2013 73 stated that Smt. Vipula left her house at 9.30 P.M. on 10.02.2013 along with accused No.2. Therefore, there was no possibility of presence of accused No.2 near the house of Smt. Vipula between 9.00 P.M. and 9.15 P.M. It appears that the P.W.4 while deposing about the time was not sure and time spoken by her might be approximate time. Exact time cannot be expected from witness. Only because there is contradiction in the timing, the entire evidence of P.W.4 cannot be brushed aside unless there is material contradiction. In the cross-examination nothing has been elicited to disbelieve the statement made by P.W.4. Therefore, from the evidence of P.W.4 it has been established that the accused Nos.1 and 2 visited near the house of Smt. Vipula along with auto on 10.02.2013 twice in the night after 9.30 P.M. and before 10.15 P.M. SC.No.779/2013 74
73. The auto spoken by P.W.4 has been seized by P.W.9. The auto belong to P.W.5. The P.W.5 in his evidence has stated that he was owning the auto and it was given to accused No.3 / Muniraju on hire. It was seized by the Police and he got interim custody. He has stated that auto was given to accused No.3 on 05.02.2013. This witness was not cross-examined by accused No.3 and thereby admitted that he took the auto of P.W.5 on 05.12.2013. The accused No.1 and 2 cross-examined P.W.5 and in the cross-examination he has stated there was agreement for payment of Rs.200/- as hire charges per day between himself and accused No.3. He has also stated that there was sticker of "Swabhimani" on the backside of auto. In the cross- examination he has admitted that his brother was managing the auto and his brother appointed accused No.3 on the auto. These statements made by P.W.5 clearly show that he was knowing accused No.3 and by SC.No.779/2013 75 entering into the agreement he has given the auto to accused No.3 and that auto was managed by brother of P.W.5. The statement of P.W.5 about handing over of auto to the accused No.3 is consistent and such evidence is sufficient to hold that accused No.3 was in custody of auto wherein "Swabhimani" was written on the backside and same auto was witnessed by P.W.4 in the night on 10.02.2013. Therefore, the evidence of P.W.4 and 5 further establish the link between accused No.2 and 3 and the murder of Smt. Vipula. There might be many autos having written "Swabhimani" on the backside, but when the P.W.4 witnessed accused No.1 and 2 and in view of the examination of the owner of the auto, it has been believed that the auto of P.W.5 has been used by accused No.1 and 2 to reach the house of Smt. Vipula.
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74. Another circumstance relied upon by the prosecution is that there were hair found near the dead body of Smt. Vipula on 11.02.2013 and such hair were collected by expert. Thereafter, the Investigating Officer sent the accused No.1 and 2 to the Medical Officer for collection of sample hair and after collection sample hair and disputed hair were sent to DNA and expert has given his opinion that hair found on the spot tallied with the sample hair of accused No.1. Through this circumstantial evidence, the prosecution intending to link murder of Smt. Vipula with the accused No.1. Whether such circumstance has been properly proved by the prosecution is to be looked into.
75. P.W.25/PSI has stated that he reached to the spot where dead body was lying on 11.02.2013 after registration of UDR at Ex.P.12, conducted inquest and called FSL expert to the spot by giving requisition and SC.No.779/2013 77 the expert visited to the spot, found hair near dead body and those hair were collected and such hair were seized by drawing Panchanama. In support of such statement, the prosecution has produced requisition given by P.W.25 to the FSL authorities at Ex.P.133. This requisition is dated 11.02.2013 and it has been addressed to FSL, Madiwala, Bengaluru. Such authorities received the requisition on 11.02.2013. Ex.P.30 is the Panchanama drawn by P.W.25 on the spot and in this Panchanama it has been shown that hair were found on the spot and such hair have been seized in the presence of panch witnesses.
76. The P.W.21/B.C. Ravindra, Scientific Officer, FSL has also stated that his Office received the requisition at Ex.P.133 on 11.02.2013 from PSI and accordingly, he went to the house where the dead body of Smt. Vipula was laying. He has stated that he found SC.No.779/2013 78 few hair fallen on the ground, which were scattered. He collected those hair and handed over to the Investigating Officer in the spot itself.
77. The P.W.11/Narayanappa has stated that on 11.02.2013 Police called him to the house of Smt. Vipula for Panchanama and he went to the house. The P.S.I. and another expert were present on the spot and verifying the spot. He has also stated that the expert collected hair found on the ground and such hair were packed and sealed. He has also stated that after seizure of such hair he put his signature on Panchanama at Ex.P.30.
78. The P.W.21, 25 and P.W.11 have identified such hair at M.O.105. These three witnesses have been cross-examined by the defence at length in respect of seizure of hair. P.W.11 has stated that earlier he was also working in SVS Product factory and therefore, he SC.No.779/2013 79 was knowing Smt. Vipula. Therefore, Police called him and informed death of Smt. Vipula, he went to the house of Smt. Vipula. He has also stated before he visiting to the house, the Police were present and searching. The answers given by the P.W.11 in the cross-examination creates no doubt about his presence on the spot at the time of seizure of hair at M.O.105 by P.W.21 and 25. His evidence is consistent about seizure of hair on the spot. Even the P.W.21, who is official witness has stood for his statement about falling of hair on the spot at M.O.105 and collection of such hair. In the cross-examination he has admitted that hair were not seized by the Police Officer in his presence and he do not know whether such hair of human being or animal. These statements of P.W.21 show that he found hair on the ground where the dead body was found, collected such hair and handed over such hair to P.W.25. He has not seen process of SC.No.779/2013 80 seizure of hair and he has not given any opinion as to whether hair belong to human being or animal. His evidence clearly shows that he saw hair at M.O.105 on the spot and such evidence supports the statement of P.W.11 and 25. Such evidence on record is sufficient to prove the fact of falling of hair at M.O.105 on the ground near the dead body and seizure of such hair under Panchanama at Ex.P.30. Accordingly, I hold that seizure of disputed hair shown in Ex.P.30 has been proved by the prosecution beyond reasonable doubt.
79. The P.W.29 has stated that after arrest of accused No.1 and 2 he sent those accused to KIMS hospital, Bengaluru on 21.02.2013 along with PSI/Dharmender with requisition to collect sample hair of both accused. P.W.17/Dr. Navinkumar T. has stated that he received requisition on 21.02.2013 from Banashankari Police Station to collect the scalp hair of SC.No.779/2013 81 accused No.1 and 2 and both accused were produced before him in KIMS hospital, Bengaluru. He has also stated that he collected sample hair of accused No.1 and 2 and thereafter, he sent the sample hair to Investigating Officer. He has identified the requisition given by Police produced at Ex.P.124.
80. The learned counsel for the accused No.1 has argued that without order of the Court, the sample hair of accused No.1 and 2 were collected and therefore, such procedure is bad in law.
81. P.W.17 in the cross-examination has admitted that he has not obtained the consent of accused No.1 and 2 for taking sample hair. The P.W.29 not taken any permission of the Court for subjecting the accused No.1 and 2 to take sample hair. Therefore, whether permission is required to take sample hair of accused is the matter for consideration.
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82. Section 53(1) of Cr.P.C. provides that when a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered Medical Practitioner, acting at the request of a Police Officer, not below the rank of Sub-Inspector and for any person acting in good faith in his aid and under his direction to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence and to use such force as is reasonably necessary for that purpose. The explanation (a) of sub-Section (2) of Section 53 of Cr.P.C. provides for examination of hair also.
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83. In the present case the P.W.29 is Police Inspector and he requested P.W.17 for collection of sample hair. The P.W.17 is Medical Officer working in KIMS and he is Registered Medical Officer. P.W.25 had collected disputed hair on the spot and therefore, there was necessity of collecting sample hair of accused No.1 and 2. Therefore, P.W.29 and P.W.17 by following the procedure under Section 53(1) of Cr.P.C. collected sample hair. There is no necessity of permission from the Magistrate or the Court to collect sample hair of the accused during investigation. Thus, I hold that the contention of the counsel for the accused No.1 is not sustainable under law.
84. The P.W.17 in his examination-in-chief has stated that the sample hair collected by him are at M.O.105. But in the re-examination conducted by the prosecution he has stated that sample hair are at SC.No.779/2013 84 M.O.113 and 114. These hair were separately sealed and produced before the Court and such sealed covers were opened before the Court and the witness identified those hair. So, there is some contradiction in the evidence of P.W.17 regarding identification of sample hair. In the cross-examination the P.W.17 has stated that he had not separately packed hair which were cut from the scissor and removed from the accused. this shows some confusion as to whether sample hair were separately packed or not. P.W.17 has stated that he has not personally packed and sealed the sample hair. His handwritings are not are not appearing on covers of M.O.113 and 114. Such handwritings are of his assistant. He has not maintained the records regarding collection of hair.
85. On scrutiny of evidence of P.W.17 it is evident that Police produced accused No.1 and 2 in SC.No.779/2013 85 KIMS Hospital on 21.02.2013 with requisition at Ex.P.124 for collection of sample hair. P.W.17 collected sample hair. However, such sample hair were not personally sealed by P.W.17, but it was sealed by the assistant. It is not the case of the accused that sample hair produced at M.O.113 and 114 not belong to them or doctor not collected sample hair. Therefore, the contradictions appearing in the evidence of P.W.17 referred above is not sufficient to discard the evidence of P.W.17 totally. Such evidence is sufficient to prove the collection of sample hair from accused No.1 and 2.
86. P.W.29 has stated that he sent hair at M.O.105, sample hair at M.O.113 and 114 to FSL , Bengaluru for examination and opinion. The P.W.30 is the expert of FSL and he has stated that on 12.03.2013 P.C.No.8193 of Banashankari police station produced four sealed intact articles along with case file to the SC.No.779/2013 86 office of DNA Centre. He has also stated that as per the instructions given by his higher officers he received four articles and documents for examination. He found hair in one sealed paper packet collected from the scene of crime, scalp hair of deceased collected during postmortem in another sealed cloth packet, he found scalp hair of accused No.1 / Ranjith, accused No.2/Eshwar Nayak in separate sealed paper packets. He has tested such hair scientifically and found that hair found on the scene of crime tallied with scalp hair of accused No.1 / Ranjith under DNA profile. Accordingly, he has given his expert opinion at Ex.P.172 along with two annexures at Ex.P.173, 174 and sample seal at Ex.P.175. The report at Ex.P.172 is spoken by P.W.30. The P.W.30 has also stated that sample hair of accused No.2/Eshwar Nayak not matched with disputed hair found on the spot. According to expert opinion the hair at M.O.105 tallied with the hair of accused No.1.
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87. The P.W.30/expert was cross-examined by the accused No.1 and the expert has stated that he cannot say hair sent to him belong to which part of the body. He has stated that the root of the hair is not required for DNA test, root is required for nuclear DNA profile examination and without root mitochondrial DNA can be conducted. He has stated that he taken the root portion of the hair for examination and given his opinion. The entire cross-examination of P.W.30 shows that he has examined sample hair and disputed hair scientifically and given his opinion. To disbelieve his opinion, there is no other evidence brought on record. Therefore, the evidence of P.W.30 and his report at Ex.P.172 to 174 are accepted.
88. From the discussion made above I hold that through the evidence of P.W.11, 21 and 25, the collection of hair found on the ground near the dead SC.No.779/2013 88 body was seized properly. The evidence of P.W.29 and 17 show that P.W.17 collected sample hair of accused No.1 and 2 and subjected for DNA test. Through evidence of P.W.30, the prosecution established that the disputed hair tallied with the sample hair of accused No.1. Therefore, the prosecution has established the presence of accused No.1 in the house of deceased Smt. Vipula on the date of death in the night. Now it is for the accused No.1 to explain why he went to the house of Smt. Vipula or how his hair found in the house of Smt. Vipula. The accused No.1 not given any explanation either in the cross-examination of prosecution witnesses or in his examination under Section 313 of Cr.P.C. Thus, I hold that the presence of hair of accused No.1 on the spot show the participation of accused No.1 in the crime in committing murder, robbery and house-lurking trespass.
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89. According to the prosecution the accused No.2 went to P.W.13/Venkatesh, who is key maker and from him the accused No.2 got duplicate keys of the house of Smt. Vipula and by using duplicate keys the house of Smt. Vipula was opened in the night on 10.02.2013. The allegation of the prosecution has been denied by the accused. This is another circumstance relied upon by the prosecution to connect the accused with the crime. Whether the prosecution is able to prove such circumstance is to be scrutinized.
90. P.W.13 has stated that from 40 years he is engaged in preparing the keys and his shop situated in Gandhi Bazar Circle, Basavanagudi. He has also stated that about two years back prior to his deposition the accused No.2/Eshwar Nayak approached him for duplicate key and accordingly, he prepared the duplicate key and given to accused No.2. He has SC.No.779/2013 90 identified the three duplicate keys produced at M.O.101. He has stated that at the time of preparing the duplicate key the accused No.2 has stated that original keys were produced by stating that another original set is lost and therefore, duplicate key set is required. He has stated, by looking into the original key set, he prepared the duplicate keys. P.W.13 further stated that Police came to his shop along with accused No.3 and at that time he identified the accused. The P.W.13 has stated that the Police taken him and the accused No.2 to the house where murder took place and at that time photographs were taken and even his signature was taken on the Panchanama at Ex.P.116.
91. The P.W.13 in his cross-examination has stated that his shop is on the footpath and many customers approach him for duplicate keys. He has SC.No.779/2013 91 admitted that there are no marks at M.O.101 to show that he prepared such duplicate keys. In the cross- examination the P.W.13 has stated that he does not remember exactly whether he prepared the duplicate keys. These statements made by P.W.3 show that many customers approach P.W.13 and it was not humanly possible to identify each of such customers. It appears that when Police taken accused No.2 to the shop of P.W.13, on guess work he identified the accused No.2. Such statement based on guess work creates doubt. Therefore, the evidence of P.W.13 is not sufficient to hold that prior to the incident the accused No.2 got prepared duplicate keys of the house of Smt. Vipula. To that extent, the prosecution has failed to prove the circumstances referred above.
92. The prosecution has examined P.W.20/Abhishek to show that on 10.02.2013 accused SC.No.779/2013 92 No.2 purchased milk in the booth run by P.W.20 and he taken the milk to the house of Smt. Vipula. P.W.20 in his evidence has stated that from 2010 he is running milk booth near Kempegowda College, II Stage, Banashankari. He has not supported the case of the prosecution in the examination-in-chief and therefore, he was cross-examined. In the cross-examination conducted by the prosecution, the P.W.20 has stated that on 10.02.2013 at about 10.20 P.M. the accused No.2 came to his booth, purchased four liters of milk and he questioned the purchase of four liters of milk and at that time the accused No.2 told that milk is required for dogs and cats maintained by Smt. Vipula. He has also stated that on 20.02.2013 the Police brought the accused No.2 to his milk booth. By these statements the P.W.20 supported the case of prosecution when he was cross-examined.
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93. This witness was cross-examined by accused No.2 and in the cross-examination P.W.20 has stated that his shop opens at 6.00 A.M. and closes at 10.00 P.M. or 11.00 P.M. He has admitted that normally he would not ask the customers the purpose of purchase of milk and it is not possible for him to observe every customer. The P.W.20 categorically admitted in the cross-examination that Police told him to depose that accused No.2 purchased four liters of milk and at their instance he has deposed. Looking to two versions given by P.W.20, the Court questioned him and the witness has stated that because of confusion he has given two versions. When P.W.20 admitted that he deposed at the instance of Police and changed his version, it is not safe to believe his evidence. Therefore, the evidence of P.W.20 is discarded. Accordingly, I hold that the prosecution has not proved the circumstance that accused No.2 was present near SC.No.779/2013 94 the house of Smt. Vipula on 10.02.2013 after 10.00 P.M. and went to the house of Smt. Vipula by purchasing four liters of milk.
94. The prosecution has produced call details of Idea mobile phone in Ex.P.163. Ex.P.161 is requisition given by ACP, Banashankari Sub-Division to the Nodal Officer, Idea Limited, asking the Company to furnish call details of mobile No.8747987416. Ex.P.162 is the requisition of P.W.29 given to the Nodal Officer of Idea Limited asking the call details of above said phone number. Based on such requisition, the call detail at Ex.P.163 has been furnished by the Company.
95. P.W.28 is the Nodal Officer who has given call details. He has stated the receipt of requisition at Ex.P.161, 162 and also call details furnished by him at Ex.P.163 including the customer application form produced at Ex.P.160. He has stated that mobile SC.No.779/2013 95 number belong to Meenakshi and her photograph is appearing in Ex.P.160. The evidence of P.W.28 has not been denied by the defence by way of cross- examination. Therefore, the evidence of P.W.28, Ex.P.160 to Ex.P.163 are not disputed by the accused.
96. P.W.29 in Para No.41 of his cross- examination has stated that mobile No.8747987416 was purchased in the name of Meenakshi, who is the mother of accused No.1/Ranjith. That mobile was used by accused No.1 on 10.02.2013 and he has called the accused No.3 on 10.02.2013. The prosecution has not examined Meenakshi to show that she purchased mobile and it was given to her son accused No.1. The prosecution not produced any material on record to show that accused No.1 called either accused No.2 or 3 over phone on 10.02.2013. There is no record to show that mobile No.9900870566, 9538312965 and SC.No.779/2013 96 9632693434 either belong to accused No.1 to 3 or the accused No.1 to 3 have used such mobile on 10.02.2013. Therefore, the calls from mobile No.8747987416 to the mobile Nos.9900870566, 9538312965 and 9632693434 cannot be held that such calls were made in between the mobiles of accused No.1 to 3 on 10.02.2013. Thus, the evidence of P.W.28, 29 and Ex.P.160 to 163 would not help the prosecution to prove the conversation between accused No.1 to 3 on 10.02.2013 and their presence near the house of Smt. Vipula.
97. From the discussion made above in nutshell it can be stated that Smt. Vipula was working as in- charge Officer in SVS Product factory owned by P.W.3 and in the same factory, the accused No.1 to 3 were employed. The accused No.1 to 3 were having the knowledge of single residence of Smt. Vipula and they had knowledge of wealth/golden and silver ornaments SC.No.779/2013 97 kept in the house of Smt. Vipula. The circumstances referred above show that the accused No.1 to 3 made criminal conspiracy to commit robbery of such ornaments in the house of Smt. Vipula and therefore, with such intention they entered in the house of Smt. Vipula by house-lurking trespass on 10.02.2013 after 10.00 P.M. Further, the evidence show that the accused No.1 to 3 strangulated Smt. Vipula with veil and committed robbery of M.O.40 to 97, M.O.106 and
107. The prosecution established such fact through chain of circumstances referred above. Such chain is complete and all the circumstances pointing fingers towards accused No.1 to 3 only. Thus, I hold that the accused No.1 to 3 made criminal conspiracy on 10.02.2013 and prior to such date in order to commit robbery and to commit murder of Smt. Vipula. Thereafter, the accused No.1 to 3 in furtherance of their common intention, committed robbery of ornaments SC.No.779/2013 98 and thereby committed the offence under Section 302, 392, 457 read with Section 34 of IPC. Hence, I answer these points in the Affirmative.
98. POINT No.3 :- The evidence referred above show that the accused No.1 to 3 had motive to get valuable articles from deceased Smt. Vipula. The accused No.2 had access to the house of Smt. Vipula. After preparation, the accused No.1 to 3 went to the house of Smt. Vipula in night by using Auto. Thereafter, entered the house of Smt. Vipula and committed her murder with an intention to commit murder. Such act of accused No.1 to 3 is not falling in any exceptions under Section 300 of IPC. Even such acts are not falling under Section 304 of IPC. Therefore, when the offence has been committed intentionally, which has been proved, it has to be held that the act of the accused in causing death of Smt. Vipula is culpable homicide amounting to murder SC.No.779/2013 99 punishable under Section 302 of IPC. There are no circumstances to show that the act of the accused in causing death of Smt. Vipula is culpable homicide not amounting to murder. Accordingly, I answer this point.
99. POINT No.6:- The applicants in the application filed under Section 451 and 457 of Cr.P.C. are P.W.1, P.W.2 and Ganesh Aithal. They are the sisters and brother of Smt. Vipula. It has been proved by the prosecution that the ornaments shown in M.O.1 to 97, 106 and 107 belong to Smt. Vipula. Apart from that, the accused are not making any claim over such properties. Further, excluding the applicants, there is no rival claim for the custody of ornaments belonging to Smt. Vipula. The applicants have obtained Succession Certificate in P&SC No.253/2016 on the file of LXVIII Addl.City Civil & Sessions Judge (CCH-69) on 03.08.2018 to get various ornaments of Smt. Vipula.
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100. When there is no rival claim and when the applicants have obtained Succession Certificate to get movable properties of Smt. Vipula, the custody of such properties are to be given to the applicants.
101. Section 451 of Cr.P.C. provides for disposal of property produced before the Court during inquiry or the trial. Section 457 of Cr.P.C. provides for disposal of properties wherein Police Officer reports the seizure during inquiry or trial. Now the inquiry and trial has been completed and therefore, Section 451 or 457 cannot be pressed into service.
102. Section 452 provides for disposal of properties at conclusion of the trial. under Section 452(1) of Cr.P.C. the Court is required to pass order in respect of disposal of Material Objects either by distribution or by confiscation or by delivery to any person claiming to be entitled for possession thereof. The Court can deliver the properties to the person SC.No.779/2013 101 entitled to the possession with condition or without condition. Looking to the various properties produced in this case, I am of the opinion that bond has to be taken from the applicants along with surety for release of Material Objects in favour of applicants. Further at the time of release of properties, photograph has to be taken at the cost of applicants. If practicable videography is to be made at the time of releasing the properties to the applicants in their cost. With this observation, I hold that the applicants who filed applications under Section 451 and 457 are entitled for possession of articles shown in M.O.1 to 97, 106, 107 after executing bond for Rupees One Crore with two sureties for the like-sum. Accordingly, I answer this point in the Affirmative.
103. The Investigating Officer in the charge sheet has shown the age of accused No.1 to 3. He has shown that accused No.1 was aged 20 years and accused No.2 SC.No.779/2013 102 was aged 23 years and accused No.3 was aged 26 years. So, accused No.1 was under 21 year and other accused were not under 21 years of age. This age is relevant to ascertain whether the accused are entitled for benefit under Section 360 of Cr.P.C. The benefit under Section 360 of Cr.P.C. cannot be extended to the accused who has committed offence punishable with death or imprisonment for life. In the present case the offence under Section 302 of IPC is punishable with death or imprisonment for life. The offence under Section 392 is punishable with rigorous imprisonment for a term which may extend to ten years and also liable for fine. The offence under Section 457 of IPC is punishable with imprisonment of either description for a term which may extend to five years and also fine. The offence under Section 302 of IPC is the major offence committed by the accused No.1 to 3. When the offence under Section 302 of IPC is punishable with death or SC.No.779/2013 103 imprisonment for life, I hold that benefit of Section 360 of Cr.P.C. shall not be extended to any of the accused. Even the accused No.1 to 3 are not entitled for benefit under Section 3 or 4 of Probation of Offenders Act, 1958. Thus, the accused No.1 to 3 are to be heard on sentence. Accordingly, I proceed to pass the following:-
ORDER Acting under Section 235 of Cr.P.C., the accused No.1 to 3 are convicted for the offences under Sections 120B, 302, 392, 457, read with Section 34 of I.P.C.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 16th day of April, 2019).
(B.B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BANGALORE CITY.
SC.No.779/2013 104 22.04.2019:
ORDER REGARDING SENTENCE
104. Accused Nos.1 to 3 are produced from J.C. through V.C. Heard the accused Nos.1 to 3, learned Public Prosecutor and counsel for accused No.1 on quantum of sentence.
105. The accused Nos.1 and 2 have submitted that they have not committed any offence. They have not submitted anything to impose less punishment. The accused No.3 has submitted that he has got old aged parents. The learned Public Prosecutor submits to impose minimum punishment prescribed for the offence under Section 302 of IPC. He has also submitted that maximum punishment has to be imposed on the accused No.1 to 3 for other offences committed by them.
106. The offence under Section 302 of IPC is punishable with death or imprisonment for life and fine. So, minimum punishment prescribed under this Section is imprisonment for life and fine. The SC.No.779/2013 105 death penalty has to be given in rarest of rare case. The present case is not the rarest of rare case and therefore, there is no necessity to impose death penalty on the accused Nos.1 to 3. The accused Nos.1 to 3 are to be sentenced with imprisonment for life for the offence under Section 302 of IPC. Section 120B of IPC prescribes the same punishment as prescribed under Section 302 of IPC and accordingly, the same punishment has to be imposed on the accused.
107. The offence under Section 392 and 457 of IPC are not punishable with death or imprisonment for life. The punishment prescribed for these offences is lesser than the offence punishable under Section 302 and 120B of IPC.
Therefore, looking to the punishment prescribed under these provisions of law, I am of the opinion that an Order has to be passed to run the sentence concurrently. The accused Nos.1 to 3 were in judicial custody during crime stage and during trial for some period. When the punishment prescribed for the offence under Section 302 of IPC is imprisonment for life, there SC.No.779/2013 106 is no necessity to pass order of set-off under Section 428 of Cr.P.C. With these observations, I proceed to pass the following:
ORDER Accused No.1 to 3 are sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- each, in default shall undergo further S.I. for 3 months for the offence under Section 302 read with Section 34 of IPC.
Accused No.1 to 3 are sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- each, in default shall undergo further S.I. for 3 months for the offence under Section 120B of IPC.Further, the accused Nos.1 to 3
are sentenced to undergo R.I. for 3 years and to pay fine of Rs.10,000/- each, in default shall undergo S.I. for 3 months for the offence SC.No.779/2013 107 punishable under Section 392 read with Section 34 of IPC.Lastly, the accused Nos.1 to 3
are sentenced to undergo S.I. for 1 year and to pay fine of Rs.5,000/- each, in default shall undergo S.I. for 1 month for the offence punishable under Section 457 read with Section 34 of IPC.
All the sentence of
imprisonment shall run
concurrently.
The bail bonds and surety
bonds of accused Nos.1 to 3 stand
cancelled.
The applications filed under
Section 451 and 457 of Cr.P.C. are
allowed acting under Section 452 of Cr.P.C.
It is ordered to handover the possession of valuable articles produced and marked in M.O.1 to M.O.97, M.O.106 and 107 to the applicants i.e. P.W.1/Smt. SC.No.779/2013 108 Vasundhari Hande, P.W.2/P.R. Vidya and Sri Ganesh Aithal on the following conditions:
(a) The applicants shall execute indemnity bond for Rs.1,00,00,000/- (Rupees One Crore only) along with two sureties for like-sum;
(b) They shall produce the above said articles whenever called by this Court or Superior Courts;
(c) The applicants shall make arrangement to take photography and videography of the above said M.O.s at the time of release, in their cost;
(d) The C.D. containing the photography and videography shall be produced and it has to be kept with the file.
The office is directed to furnish free copy of judgment to accused Nos.1 to 3 immediately and to SC.No.779/2013 109 obtain the acknowledgement. If the Advocates appearing for accused Nos.1 to 3 are not available to receive the copy of the judgment, then Office is directed to send the copy to the concerned Jail for supply to the accused Nos.1 to 3.
M.O.102 and 103, which are the documents are ordered to be kept with the file.
M.O.98 to 101, 104, 105 and M.O.108 to 117 are ordered to be destroyed after the appeal period.
Issue warrant of commitment accordingly.
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.1 Vasundhari Hande
P.W.2 P.R. Vidya
P.W.3 Varadaraju Naik
P.W.4 Vanishree
P.W.5 S. Prabhu
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P.W.6 P. Srinath
P.W.7 Ramesh Kumar B.V.
P.W.8 Shashikumar
P.W.9 Shivanna
P.W.10 Girisha
P.W.11 Narayanappa
P.W.12 Shekhar
P.W.13 Venkatesh
P.W.14 Hanumanram
P.W.15 Sampangirama
P.W.16 Dr. S.R. Jagannatha
P.W.17 Dr. Naveen Kumar T.
P.W.18 Sridhar
P.W.19 Sripathi Bhat
P.W.20 Abhihek
P.W.21 B.C. Ravindra
P.W.22 A. Sridhar
P.W.23 D.V. Thimmarajappa
P.W.24 Shivakumaraiah
P.W.25 T.M. Dharmendra
P.W.26 Shivaprasad S.
P.W.27 B.P. Manju
P.W.28 Rajesh K.
P.W.29 P. Muralidhar
P.W.30 L. Purushothama
2. LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 Complaint
Ex.P.1(a) Signature
Ex.P.2 Panchanama
Ex.P.2(a) Signature of
to (f) P.W.1,2,3,7,9,11
Ex.P.3 Letter from SVS Products
containing the details of
employees
Ex.P.4 Bio data of A-1
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111
Ex.P.5 Bio date of Shantha
Gowda
Ex.P.6 Bio data of Paramesha
Ex.P.7 Bio date of Ranganna
Ex.P.8 Letter from SVS Products
containing the details of
daily wage workers
Ex.P.9 Police Notice
Ex.P.9(a) Signature of P.W.4
Ex.P.10,11 Photos
Ex.P.12 UDR complaint
Ex.P.12(a) Signature of P.W.1
Ex.P.13 Notice
Ex.P.14 Inquest mahazar
Ex.P.15-17 Police notices
Ex.P.18 Panchanama
Ex.P.19 Notice to panchas
Ex.P.20 Panchanama
Ex.P.21 Police notice
Ex.P.22 Panchanama
Ex.P.23 Seizure mahazar
Ex.P.24 Police notice
Ex.P.25-29 Photos
Ex.P.30 Panchanama
Ex.P.31 C.D.
Ex.P.32 Police notice
Ex.P.33-57 Photos
Ex.P.58 Police notice
Ex.P.59-68 Photographs
Ex.P.69 Police notice
Ex.P.70-111 Photographs
Ex.P.112-114 Bill2 of Gayathri digital
photos and videos
Ex.P.115, 116 Panchanama
Ex.P.117 Police notice
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112
Ex.P.118 Letter written from
Parvathi bankers and
jewelers to Police
Inspector
Ex.P.119 Police notice
Ex.P.120 Seizure mahazar
Ex.P.121 PM report
Ex.P.122 Requisition
Ex.P.123 Medical report
Ex.P.124 Letter dated 21.2.2013
Ex.P.125 Letter dated 02.03.2013
issued by P.I.
Ex.P.126 Sketch
Ex.P.127 Letter dated 07.03.2013
Ex.P.128 Letter
Ex.P.129-132 Bills of Bhima Jewellers
Ex.P.133 Letter dated 11.02.2013
Ex.P.134 Submission
Ex.P.135, 136 FSL acknowledgement Ex.P.137, 138 Movement warrants given to Police Ex.P.139 Report by P.W.23 Ex.P.140 Report given to Sub-
Divisional Magistrate Ex.P.141 Report given by PSI to Police Inspector Ex.P.142-159 Invoice of Tanisq Ex.P.160 Customer application form Ex.P.161, 162 Requisition to furnish call details Ex.P.163 Call details Ex.P.164 FIR Ex.P.165 Letter dated 12.02.2013 Ex.P.166 Report by H.C.No.3354 Ex.P.167 Letter dated 14.02.2013 SC.No.779/2013 113 Ex.P.168 Voluntary statement of A1 Ex.P.169 Voluntary statement of A2 Ex.P.170 Report by PSI, BSK P.S. Ex.P.171 Marked portion in voluntary statement of A3 Ex.P.172-174 DNA Reports Ex.P.175 Sample seal
3. LIST OF WITNESSES EXAMINED AND DOCUMENTS EXHIBITED FOR ACCUSED: NIL
4. LIST OF MATERIAL OBJECTS PRODUCED AND GOT MARKED FOR PROSECUTION:
M.O.1 one pair of ear studs
M.O.2 One thuft chain
M.O.3 & 4 Two pair silver leg chain
M.O.5 2 dollars Ganapati and
Saibaba
M.O.6 10 pockets of 1 pocket
containing gold coins
M.O.7 Silver plated Lakshmi and
plastic stand with Ganesh
picture
M.O.8 4 thread gold step chain
M.O.9 1 gold chain with green
dollar
M.O.10 One gold biscuit
M.O.11 2 gold biscuits
M.O.12 4 gold biscuits
M.O.13 Gold Lakshmi coin
M.O.14 12 pockets containing ingots
M.O.15 One pair gold ear rings
M.O.16 Gold chain with Lakshmi
Krishna picture
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M.O.17 2 green and red stone
bangles
M.O.18 Gold chain with green, red
stone with Krishna picture
M.O.19 One gold and diamond
necklace and hangings
M.O.20 One silver panner dani
M.O.21 & 22 One silver mugs
M.O.23 2 silver karpuradaarathi
M.O.24 14 silver deepa
M.O.25 10 silver cups
M.O.26 2 silver uddarni
M.O.27 2 silver panchapatre
M.O.28 10 silver bowls
M.O.29 5 silver olates
M.O.30 Bow and plate looks like
silver
M.O.31 One silver kalasa
M.O.32 Kunkuma Bharani
M.Os.33 Ladies Rado watch
M.O.34 Ladies Tisot watch and steel
chain
M.O.35 Ladies Raymond watch
M.O.36 Ladies Titan watch
M.O.37 Quartz watch
M.O.38 One past tract watch
M.O.39 Amount of cash Total Rs.
28,905/-
M.O.40 One pair of Hangings and
Necklace
M.O.41 One Kaddi Necklace
M.O.42 One Kalasada Necklace
M.O.43 One gold Torana Necklace
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115
M.O.44 White Stone Gold Necklace
with shanka type earring.
M.O.45 Diamond Necklace One pair
Diamond Bangle, Diamond
earring. One diamond
earring
M.O.46 Bell design gold Necklace
with One pair of earring
Jumkas
M.O.47 One gold green stone
Necklace
M.O.48 One pair of gold bangles
M.O.49 Two pair of pepper design
gold bangles
M.O.50 One pair plain gold bangles M.O.51 Box type gold bangles M.O.52 White stone gold Necklace (Diamond type) M.O.53 Red bead toran Design gold Necklace M.O.54 Karimani & gundu of gold chain M.O.55 Blue stone one gold necklace M.O.56 Peacock photo five line one pair gold kenneya sarapali M.O.57 Rounds one pair earring and jumuki M.O.58 One pair of Pearl and red stone earring M.O.59 Green & Red stone of one pair of earring M.O.60 Red stone broken one gold necklace M.O.61 Flower design one pair gold bangles SC.No.779/2013 116 M.O.62 Green & Red stone one pair gold bangles M.O.63 Screw Bangali type gold bangles M.O.64 4 pair Gold bangles M.O.65 3 pair square type gold bangles M.O.66 4 pair plain cutting gold bangles M.O.67 One pair fance design gold bangles M.O.68 One pair gold pepper design gold bangles M.O.69 One gold Kada M.O.70 One gold queen head shaped kada and queen head shaped earring M.O.71 One pair of blue stone gold bangles M.O.72 Peacock design color one gold Hara and one pair peacock design mati M.O.73 Red stone faince dollar six line chain and red stone hangings M.O.74 Kundan stone Necklace have a thread Kuchu M.O.75 Havala Dollar rope design gold chain M.O.76 Karimani two mangalya chain tyre design gold chain M.O.77 Havala & Pearl fancy gold necklace M.O.78 Triangle shape dollar gold necklace SC.No.779/2013 117 M.O.79 Red and white stone & pearl necklace one pair gold earring & gold ring M.O.80 Shanku design dollar 3 line gold necklace & one pair gold hangings M.O.81 Red, Green M.O.82 Dollar Mani chain thread kuchu M.O.83 Lakshmi Dollar Jilebi gold necklace M.O.84 Karimani fancy gold chain M.O.85 Plain karimani chain M.O.86 Moon shape dollar red mani necklace M.O.87 Red, Green Mani one pair gold hangings M.O.88 Three steps design one pair jumuki M.O.89 One pair Pearl gold kenne sarapali M.O.90 One pair plaint Jumki M.O.91 One pair green stone earring No. Tirupu M.O.92 Blue Stone , one red maniya hanging M.O.93 White stone hand chain M.O.94 One gold baitale battu M.O.95 One Chamundeswari dollar & karimani dollar M.O.96 Green, white stone one pair gold earring & one pair white stone earring SC.No.779/2013 118 M.O.97 One gold Navarathna ring, one gold white & red stone ring M.O.98 One plastic hand cover M.O.99 One blue colur banian M.O.100 Cement brown colour college bag. (Mdista) brand M.O.101 3 set keys M.O.102 SSLC marks card of Vipula M.O.103 United India Ins. Booklet M.O.104 Curtain with green stripes M.O.105 Strands of deceased hair in postal cover (brown) M.O.106 One pair of bangles with pepper design M.O.107 Golden bangles with white and red stones M.O.108 Black panties M.O.109 Braziers M.O.110 Chudidar top M.O.111 Chudidar pant M.O.112 Veil M.O.113 Strands of hair of accused /Ranjith H.D. (A-1) M.O.113(a) Signature of P.W.17 M.O.114 Strands of hair of A2/Eashwar Naik M.O.114(a) Signature of P.W.17 M.O.115 Carton boxes M.O.116 Sealed cover envelope M.O.117 Strand of scalp hair (B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
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