Bangalore District Court
State Of Karnataka vs Abhishek @ Kapperaya on 31 August, 2020
1
S.C.No.1074/2017
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-70)
Present: Sri Gururaj Somakkalavar, M.A.,LL.B.,
LXIX Additional City Civil and
Sessions Judge, Bengaluru.
Dated this the 31 st day of August, 2020
SESSIONS CASE No.1074/2017
Complainant : State of Karnataka
By City Railway P.S.
(By Learned Public Prosecutor )
-V/S-
Accused : 1. Abhishek @ Kapperaya
S/o Siddaraju
Aged about 22 years,
R/at Opp 1st Cross, Old
Post Office Road Bust
Stand, Kumbalagod,
Ramanagara.
(Accused No.1)
2. Madhukar @ Pikka
S/o Rajanna
Aged about 19 years,
R/at Temple Road,
1st Cross, Hejjala Gate,
Bidadhi Hobli,
Ramanagara.
(Accused No.2)
3. Manoj @ Manu
2
S.C.No.1074/2017
S/o Rangegowda,
Aged about 19 years,
R/at BDA Road,
Juthana Palya, Hejjala,
Bidadhi Hobli,
Ramanagara.
(Accused No.3)
(By Sri MDP, Advocate)
1 Date of commission of offence 03.03.2017
2 Date of report of occurrence 04.03.2017
3 Date of commencement of 07.03.2018
evidence
4 Date of closing of evidence 23.10.2018
5 Name of the complainant City Railway P.S
6 Offence complained of Sec. 302, 201
R/w 34 of IPC
7 Opinion of the Judge Accused found
guilty
: JUDGMENT :
This Charge Sheet is filed by the PI of City Railway Police against the accused for the offence punishable U/Sec. 302, 201 R/w 34 of Indian Penal Code.
2. The case of the prosecution in brief is as follows:-
On 3.3.3017 at about 9.15 pm the accused with common intention of taking mobiles from Srinivas, they took Srinivas @ Chinni near the place in between Kengeri and Hejjala Railway stations at Railway KM No. 3 S.C.No.1074/2017 14/500-600, Nice road Bridge and the accused made Srinivas to consume ganja and after consuming ganja when Srinivas became drowsy A1 took the big stone and crushed on his head and all the 3 accused persons put Srnivas on railway track and again A2 crushed on his head and all of them killed him and in order to conceal the crime they laid the body on the railway track so as to pass the train on him and thus committed the offence punishable u/sec. 302, 201 and 397 r/w 34 of IPC.
3. The committal court after taking cognizance of the charge-sheet registered C.C. No.17196/2017 and committed the case for trial under Sec. 209 of Code of Criminal Procedure, after having complied with the provisions of Sec. 207 and 208 of Code of Criminal Procedure. In pursuant to the committal order, on committal of the case, present case has been registered and assigned to this Court for disposal in accordance with law. At the time of committal, Accused was in JC. They represented through their advocate. My learned Predecessor after hearing the accused and counsels on both side perused and found sufficient materials for presuming the commission of offence by the accused and hence framed the charge against the accused for 4 S.C.No.1074/2017 the offence punishable U/Sec. 302, 201 r/w 34 of Indian Penal Code. Contents of the charge were read over and explained to the accused. The accused pleaded not guilty and claims to be tried.
4. While submitting the Charge Sheet the IO has cited 27 witnesses, but examined only 15 witnesses as PW.1 to 15 and got marked 27 documents exhibited as Ex.P1 to P.27 and also got marked 14 Material Objects as MO1 to MO.14. After completion of prosecution side evidence, accused are examined u/sec. 313 of Cr.P.C. in order to explain the incriminating evidence appeared against them and their answers are recorded in their own words. The accused denied the entire incriminating evidence as false, not aware and also that they have been falsely implicated in this case.
5. Heard the arguments of the learned P.P. and the counsel for the accused. Perused the oral and documentary evidence available on records.
6. In the light of above materials and allegations of prosecution, following points are arises for my consideration:-
1. Is the death of deceased Srinivas is a homicidal one?5
S.C.No.1074/2017
2. Is the prosecution proves beyond all thereby the accused committed the offence punishable u/sec. 397, 302 r/w 34, 201 of IPC?
3. What order?
7. This court upon appreciation of available materials, with reference to prevailing legal aspects, give findings to the above points as follows:-
Point No.1 : In affirmative
Point No.2 : In negative
Point No.3 : As per final order, for the
following:-
: R EAS O N S :
8. POINT NO.1: - On appreciation of the above evidence it is found that it is the case of the prosecution that On 3.3.2017 at about 9.15 pm the accused 1 to 3 with common intention of taking mobiles from Srinivas, they took Srinivas @ Chinni Nice road Bridge in between Kengeri and Hejjala Railway stations at Railway KM No. 14/500-600, and the accused made Srinivas to consume ganja and after consuming ganja when Srinivas became drowsy A1 took the big stone and crushed on his head and all the 3 accused persons put Srnivas on railway track and again A2 crushed on his head and all of them killed him and in order to 6 S.C.No.1074/2017 conceal the crime they laid the body on the railway track so as to pass the train on him and thus committed the offence punishable u/sec. 302, 201 and 397 r/w 34 of IPC.
9. It is the argument of the prosecution that the accused with common intention to rob took deceased near bridge near railway track and made him to consume ganja and when he was under drowsiness assaulted with block stone and caused grievous injuries and after that they took the deceased and laid his body on the track and to see that the rail ran over his body and by that they have with common intention planned and committed his murder.
10. The stand of the defense though not clear as to the death of the deceased regarding homicidal or accidental the two points are important to come to conclusion that the stand of the defense regarding death, one the defense has consented for marking of PM report, FIR and inquest panchanama. This stand show the in consistent stand of the accused. As because when the homicidal death is not disputed then usually the defense consent for marking of PM report and other medical record. But here in this case the accused side consented for the marking of PM report and inquest and also consented for giving up CW. 16 i.e. Doctor who 7 S.C.No.1074/2017 has conducted PM and this court on consent of both side and marking of PM report and other medical record by order dated 26.5.2018 given up CW. 16 and 25. The defense have not chosen to contest on the said aspect regarding death of the deceased. The second point regarding death of the deceased though they have not seriously took any defense regarding death of deceased whether they admit it as homicidal or whether they took stand of accidental death. But from the cross- examination of PW. 1 wherein the defense took defense and cross examined on the line and put up suggestion that when the person fall from bridge and if the train run over, there is possibility that blood stain will be seen nearby and put up suggestion that when a person come in front of railway there is possibility that train may drag body. Another point which points at the defense is Ex.D.1 the 161 statement of CW. 9/PW.3 Manjunath Chari wherein he gave statement that his brother Manjunath on 11.3.2017 called him over phone and stated that PW. 3`s son met with railway accident as informed by railway police and he has to come down. This statement of PW3/CW.9 indicates at the defense which is marked as Ex.D.1. Further during cross- examination of PW. 14 who is the IO, suggestion was put up regarding informing of PW.3 as to death of deceased as railway accident. These suggestions 8 S.C.No.1074/2017 indicates at the defense of the accused that the defense disputeds the death of the deceased as to the accidental and not as homicidal. Here it is necessary to find out whether the death of the deceased is homicidal or accidental. As per the prosecution version the accused took deceased near nice road bridge beside railway track at Railway KM 14/500-600 and made him to consume ganja and when he was in drowsiness took stone and thrown on the head of the deceased and then took his body to railway track and see that rail run over his body and by that committed murder. Whereas defense took version that under the influence of the alcohol deceased fall from the bridge over the railway track and train ran over him.
11. To substantiate the fact regarding death of the deceased prosecution examined PW. 9 and 13. PW. 9 deposed that regarding the articles related to Cr. No. 84/2017 which were received in the FSL office. After receiving the articles Assistant Director of FSL instructed to examine 4 articles, as per the instruction received the articles and the said articles belong to one Srinivas and PM report No. 599/2017 dated 12.1.2017. The articles received are related parts of stomach, liver and kidneys, blood and swab. After receiving the articles he conducted scientific examination as color 9 S.C.No.1074/2017 tests and gas chromatography methods and found ethyl alcohol in article No.1 to 3 i.e. stomach, liver and kidney and blood of the deceased, but no poison was detected in the said articles. Alcohol percentage is 65.25 mg/100 ml of blood and as per that he prepared report and after obtaining signature of his senior officer sent to concerned P.S. the said report is marked as Ex.P.13 and 14. The said PW. 9 is cross examined by the defense counsel and put up suggestion that if a person had 65% of alcohol he cannot walk naturally, the said suggestion was denied by PW.9. Further there is no much cross examination on the death of deceased, but only denial.
12. From the evidence of PW. 9 it is very much clear that the deceased had alcohol to the extent of 62.25 mg/100 ml of blood. That means he has consumed the alcohol. Though the case of the prosecution that the accused made deceased to consume ganja but the said contents of ganja not found in the body of the deceased.
13. On considering these argument if the P.M report and the Inquest report is now seen, it is clear that in Ex.P.11-PM report there are many injuries are mentioned. The PM is conducted on 12.3.2017 between 10.30 to 11.30 am. The said PM conducted after 9 days 10 S.C.No.1074/2017 of the incident. At the time of conducting the PM there is signs of decomposition are present. As per the PM report as many as 10 injuries on the body of deceased are found. The injury No.1, 2, 7, 9 and 10 are antemortem in nature and injury No. 3,4,5,6 and 8 are postmortem in nature. As per the opinion of the Doctor who conducted the PM, the death is due to head injury sustained. On perusal of the PM report it is found that in injury No.1 there is crush injury involving the right ear and right temporal region over an area of 6 cms X 4 cms X fracturing the underlying bone. Injury No.2 laceration present over the right side of chin measuring 3 cm X 2 cm and bone deep, fracturing the mandible. Injury No.7; incised would present obliquely in the upper part of the occipital region measuring 3 cms and 1 cms X bone deep. Injury N.9; multiple abrasion around the left ear, Left zygoma,left cheek and left side of nose and left forehead ranging from 1cm X 1 cm to 4cm X 3 cm. Injury. No.10; found superficial stab wounds behind the right ear and right side of occipital region, each measuring 3 cm X 1 cm X bone deep, margin are irregular. The injuries are mentioned in PM report are ante mortem and post mortem. Ante mortem injuries occur before death whereas postmortem injuries occur after death. The anti mortem refers to events occur prior to death.
11S.C.No.1074/2017
14. That being the medical analysis of the injury, here in this case it has to be observed that there are 2 impacts on deceased body, one as per prosecution case hit by stone on head and another rail ran over the deceased and by that there are injuries on the body. It is relevant to mention here that the Prosecution has given up the medical witness. To ascertain the medical aspects the evidence of medical wittiness is very much necessary. The giving up of said witness is fatal to the case of the prosecution as because it is the Doctor who will describe the injuries, age of injuries and explain how the injuries caused. By which impact what are injuries will cause. But here the prosecution has given up the Doctor. Hence there is no assistance of the oral medical evidence except the medical record. As stated above there are two impacts on the body of the deceased. It is not clear that on which impact the deceased got injuries which caused his death. The body hit by train separated into parts, it is not clear that the said antemortem or postmortem injuries are because of put up of stone on head by accused or it is because of hit by train. It is not clear that antemortem injury are because of putting stone on deceased and the fact are not clear which are postmortem injury in that case. Or otherwise because of hitting of train, which are ante mortem injuries and which are postmortem injuries.
12S.C.No.1074/2017 However the prosecution has not puts up case that train ran over the deceased but the records speaks that thigh part and other parts is not found. That means the part is dragged by train. The record speaks that body of deceased hit by train and due to that body get separated and as per PM report Greece and oil of train found on body. It is not case of the prosecution that accused chopped the deceased. The prosecution case is silent on the fact of train running over body. But on perusal of the record mainly the injury No.10 wherein it is mentioned that there are 4 superficial stab wounds behind the right ear and right side of occipital region and also injury No.1 crush injury involving the right ear and right temporal region over an area fracturing the underlying bone. Apart from this inquest report wherein the injuries also mentioned that on the right side of head, ear and cheek there are crush injuries and the lips of deceased are crushed. However it is not clear whether those injuries caused are because of hit by train or putting of stone on his right side. But the injuries and PM report mainly the blood stains found on MO.7 the size stone and blood stains found on pillars and walls of nice bridge on concrete cement which reveals that the stone is used to cause injury to the deceased and he might be smashed with the size stone on his right side and the crush injuries caused 13 S.C.No.1074/2017 because of that, which is corroborated by the PM report and inquest report. Apart from this there is blood stains on the railway track from the wall of bridge to track which reveals from the inquest and also corroborated by evidence of PW. 1 and further the Ex.P.1 the complaint and Ex.P.7 the spot panchanam speaks and PW. 1 deposed that on the direction of PSI he visited the spot and he deposed that he found body is separated in parts and at the distance of 30 feet found head on eastern side bridge between wall and pillar on cement concrete, there found blood which got dried and from that place on railway track there are blood stains here and there. He further deposed that the deceased was murdered some where and he was thrown on railway track. Apart from the medical record the corroborative evidence as stated above led to infer that the death of the deceased is homicidal. Accordingly point No.1 is answered in the affirmative.
15. POINT NO.2; Before appreciating the evidence it is better to have glimpse on the evidence given by the witnesses;
PW. 1 the ASI has deposed that on 4.3.2017 when he was on platform duty he and PSI were deputed to Mysore road to investigate about the dead body lying near railway track and hence they reached KM No. 14 S.C.No.1074/2017 14/500 and found one dead body and it was cut into pieces and the the right leg was found at the distance of 8 sq. ft and left hand was found at the distance of 50 feet and in between wall and piller the blood was found on cement concrete and blood stains found and they suspect the murder and hence CW. 2 was deputed to watch the dead body and then he returned to PS and submitted his report as per Ex.P.1. He identified the clothes, slippers of the deceased which are marked as MO.1 to 3. In the cross-examination he admitted that he had not drawn any panchanama at the spot and he had not mentioned the timings in the complaint, he deposed that the skin of the dead body was not attached to railway track, he denied the suggestions that he is deposing falsely and he has not visited the spot and not found the dead body etc.
16. PW. 2. the seizure mahazar witness has deposed that Ex.P.2 seizure mahazar is drawn near his house and the police have brought 3 accused persons, out of them one Madhukar had pledged one mobile for Rs. 500/- and he had pledged the mobile prior to one day, he returned the said mobile to police and the police have drawn the mahazar and seized the said mobile and in this regard the police have recorded his statement and he alongwith one more persons have 15 S.C.No.1074/2017 signed the said mahazar. He identified A1 to A3 and said mobile before the court. Learned PP treated the witness as hostile and in the cross-examination he admitted that alongwith Madhu one Abhishek and Manoj were also came and alongwith him one Nagaraj and Somachari have also put their signature to mahazar and he also admitted that he came to know accused have killed Srinivasa and took the mobile.In the cross-examination by the defense he deposed that he has no acquaintance with the accused and he denied the suggestion that he is deposing falsely at the instance of the police.
17. PW. 3 the father of deceased Srinivas has deposed that Srinivas is his son, CW. 10 is his wife and his son used to visit Bengaluru frequently and on 11.3.2017 his brother had informed him that his son met with accident near railway track and he has to come near railway station. Hence he came to the Railway statement and saw the photos and identified his son and then gone to Victoria Hospital and identified his body and found that the head, hands and legs were cut and the police have intimated that somebody committed murder and thrown the dead body near railway track and hence after PM examination he received the dead body. He further 16 S.C.No.1074/2017 deposed that he gave his statement. He identified the photos atEx.P.3. He has not identified the accused and deposed that he had not found the accused in the company of his son. In the cross-examination he admitted that his son used to come to home once in 3-4 months and their son was not informing to them about his stay and he do not know whether his son was quarreling with others. He came to know about the death of their son from the police.
18. PW. 4 the seizure mahzar witness for seizure of mobile as per Ex.P.2 has deposed that the police seized the mobile at Kumbalagodi and the accused were present at the time of seizure of mobile, but he do not know why the police seized the said mobiles and to whom those mobiles belongs and. He identified the mobiles before the court which are marked as MO.5. He further deposed that Ex.P.4(a) is his signature and Ex.P.4 is the mahazar which is drawn by the police and the police he saw 4 boys were going and the police transferred the CCTV footages to CD and seized th said CD. He deposed that the persons seen in the CCTV footages are the persons before the court and one more person. He cannot identify the person by seeing Ex.P.3. He identified the said CD which is marked as Ex.P.8. He further deposed that the video clippings appearing in 17 S.C.No.1074/2017 the laptop before the court are the same videos which he saw in the CC TV and he identified in the 4 persons in the videos. Learned PP treated the witness has hostile and cross examined him in which he admitted the seizer of mobile by the police at the instance of the accused and he also identified the accused before the police and he further denied that when CC TV footages were transferred to CD the accused were not present. In the cross examination by the defence he admitted the suggestion that MO.5 do not content his signature and he deposed that he do not know to whom MO.5 belongs and he deposed that he put his signature at police station. He further denied that he had not gone to police station and not saw the CC TV footages.
19. PW.5 has deposed that on 04.03.2017 railway police called him, Chandra and Srinivas and shown the dead body and drawn the mahazer and seized one blood stained stone, concert Pieces, blood stained mud and sample mud and took the photos of dead body. The said notice and mahazers are marked as Ex.P5 to 7, Ex.P5(A) to 7(A) are his signatures. He identified M.O.6 to 7 before the court and he further deposed that he gave his statement before the police. In the cross- examination by the defence he deposed that at the time of mahazer apart from Chandra, Srinivas nobody were 18 S.C.No.1074/2017 present. He denied the suggestion put to him, and he admitted that MO.11 and 12 do not contain his signature.
20. Pw.6 has deposed that he is doing his business near Kengeri Railway station and 03.03.2017 at about 8.00 PM the accused before the court and the person shown in photo Ex.P3 have came to his shop and took egg fried rice and instead of giving money they gave one samsung mobile to him and told that they have no money to give and hence they gave mobile and they will take back the mobile after giving the money. But he returned the said mobile to them and after 15 days railway police brought 3 persons and enquired and he identified them and stated that these three persons and one more person took egg fried rice from his hotel. He further deposed that the police have instructed him to give evidence. He identified the accused before the court. In the cross-examination by the defence he deposed that he cannot say the description and the colors of the cloths of the accused. He admitted that he is acquaint with railway police. He denied the suggestion that he is deposing as per the say of the police and his deposing falsely and he identified.
21. Learned PP again examined the witness and put question and he deposed that he remember the 19 S.C.No.1074/2017 incident since the accused instead of giving money they gave the mobile and he deposed that the accused before the court and the person appearing in Ex.P3 have came to his hotel and the person in Ex.P3 possessed mobile at that time and he deposed that totally four persons came his hotel. In further cross-examination by the defence he deposed that he had not kept remembrance of any special identification marks of these four persons.
22. PW.7 the seizer mahazar witness has deposed that he is running mobile repair shop mysore road, kumblagodu and on 18.03.2017 the accused before the court visited his shop and gave the redmi phone and iphone for repair and he produced those two phones before the police and the police drawn the mahazar as per Ex.P9 and seized those mobiles and the put his signature and he had not saw the other panchas. He identified those mobiles marked as MO.13 and 14 before the court and he also identified the accused and he deposed that he did not know that those mobiles are connected any crime. The Learned PP treated the witness as hostile and in the cross examination he deposed that he had not observed due to fear that other panchas have put their signature to mahazer, since the police visited his shop for the first time.
20S.C.No.1074/2017
23. In the cross-examination by the defence he deposed that Ex.P9 is drawn at his shop and at that time 5-6 persons were present but he cannot identified those persons and he admitted that he had not written any receipt in respect of taking mobile for repair and he admitted that there is no mark to show that MO.13 and 14 have given for repair and he denied the suggestion that he is seeing the accused for the first time before the court and he further deposed that after 3-4 days he had been to the police station and the police took the print out but he do not know the contents of print out. He denied the suggestion that the police and the accused have not visited his shop at the time of mahazer and he further denied that he is deposing falsely at the instance of the police.
24. PW.8 has deposed that he is working as police and on 19.03.2017 CW.26 and other staff have produced three persons and stated about the murder and hence he verified the CC TV and saw that those three persons in the CC TV and hence he transferred the said CC TV footages to CD as per Ex.P12 and gave his statement. He identified the accused before the court. In the cross-examination by the defence he denied the suggestions that CW.26 has not come with accused and he admitted that the faces of those 21 S.C.No.1074/2017 persons is not captured and it is captured from their back side and there are four CC TV cameras are installed and only in one camera the video of accused is captured. He denied the suggestions that he had not transferred any CC TV footages and he admitted that Ex.P8 do not contain his signature and he denied that he has no information about this case.
25. PW.9 the senior officer of FSL has deposed that she examined four items in Cr.No.84/2017 and found ethyl alcohol on item no.1 to 3 and not found any poisonous contents and ethyl alcohol range was 65.25 mg/100 ml blood was found and she issued her opinion as per Ex.P14. In the cross examination by the defence she denied the suggestions that she has not issued Ex.P4.
26. PW.10 and 11 the seizer mahazer witnesses for seizer of mobiles as per Ex.P9 are turned hostile and in the cross-examination by the PP they have not deposed anything regarding the seizer. Their statements are marked as Ex.P15 and 16 respectively. PW.12 the Railway Inspector has deposed that he received the case file from CW.26 and on 15.06.2017 after completion of investigation filed the charge sheet against the accused.PW.13 The Assistant Director of RFSL has deposed that on 19.04.2017 railway police of bangalore 22 S.C.No.1074/2017 have submitted 10 articles and he examined those articles and found Human blood of O group on item no.1, 3, 5, 7 to 10 and hence he issued his report as per Ex.P18. He identified Ex.P17 to 19. He also identified his signature on MO.1 to 3 and 6 to 12. In the cross-examination he admitted that he has not verified that the blood found on those items is the blood of deceased and he denied the suggestion that he has not examined MO.1 to 3 and 6 to 12 and do not issued opinion.
27. Going by the arguments of the learned Public Prosecutor if it is considered that this case is depending on the circumstance to be established, then the circumstances to be proved are;
1. accused and deceased know to each other and accused have hatched plan to rob 3 mobiles from deceased.
2. accused assaulted deceased with size stone and thrown body of deceased on the tack to destroy evidence.
3. last seen theory of accused being with the deceased.
4. recovery of articles
5. Motive.
23S.C.No.1074/2017 It is seen from the evidence of the witnesses that PW. 10 and 11 turned hostile. Those two are the panchas for recovery mahazar. Further PW. 15 turned hostile who is the pancha to recovery mahazar of CCTV footage and who have identified the deceased and accused first time. The rest of the witnesses PW. 1 to 9, 13 and 14 have supported the case of the prosecution. So from the evidence of these witnesses it has to be seen whether the prosecution case stands established or not and whether the defense demolish the case of the prosecution. The witnesses can be classified as below. PW.2,4,5,7 and 8 are examined for establishing the recovery of mobile phones as per Ex.P.4,5,7 and 9. PW. 6 and 15 are examined for establishing the circumstances of A1 to A3 being last seen with deceased and PW. 9 and 13 are examined to establish forensic evidence PW. 1,14 are official witnesses.
28. The prosecution has to prove the fact that A1 to A3 and deceased are known to each other and A1 to A3 hatched plan to rob 3 mobiles from the deceased. The said circumstance also connected to the motive to commit offence. Hence both are discussed together. As per the case of the prosecution on 3.3.2017 at about 9.15 pm the accused having common intention to rob the 3 mobiles from the deceased Srinivas @ Chinni they 24 S.C.No.1074/2017 took him to nice road bridge besides railway track at railway KM No. 14/500-600 between Kengeri and Hejjala railway stations. They made deceased to consume ganja and when he got drowsiness, A1 took size stone laying beside and smashed on the head of deceased and caused grievous injury. All A3 took deceased to railway track wherein again A2 took same stone and smashed on head of deceased and committed murder. They see that the train ran over the deceased so as to conceal murder and destroy the evidence, by that they have committed offence u/sec. 302, 201, and 397 r/w 34 of IPC.
29. The prosecution argues that there is recovery of mobiles at the instance or discloser of accused 1to3 which proves that accused murdered deceased for mobiles and also argues that PW. 6 last seen the accused 1 to3 with deceased. This fact proves that the accused are involved in the commission of offence. It is necessary to observe that to prove the guilt of the accused apart from the above said circumstances the prosecution has to prove the acts of the accused in committing the crime.
30. It is not disputed by the defense that deceased is the friend or known to accused 1 to 3. It is not disputed then same is admitted by defense. Hence 25 S.C.No.1074/2017 there is no much discussion needed on that point. The question would arise how prosecution came to know that accused 1 to 3 hatched plan to rob the 3 mobiles and assaulted the deceased with size stone and caused injury to deceased and committed murder. That none of the witnesses have deposed regarding the acts of the accused 1 to 3 in commission of crime. The facts has to be established purely on the basis of circumstances.
31. The entire case of the prosecution stands on 2 aspects on the recovery of 3 mobiles from PW. 2 and 7 and completely relied on the statement of PW. 15 Srikanth who first identified the deceased on 16.3.2017 on inquiry by police. He further identified the accused and gave statement as per Ex.P.26 that he know deceased, his name is Srinivas @ Chinni resident of Kadugodi. He used to come to play cricket as he know to him. He had habit of consuming ganja in the evening on the side of Kadugodi Railway track and he consume ganja with Kengeri boys. He states that the kengeri boys and deceased consume ganja and used to steal mobile phones. He has last seen him with Kengeri boys on 3.3.2017 evening at Whitefield railway station. On the basis of this statement the prosecution built its theory of murder of deceased by the accused, Making deceased to have ganja and when he get drowsiness 26 S.C.No.1074/2017 smashed stone on his head and thrown body on track. Apart from this they completely relied on the voluntary statement of the accused. Except above said observation there is absolutely no material to show fact that accused have hatched plan to rob 3 mobiles. It is very pertinent to observe that though the police recovered 3 mobiles from PW. 2 and 7, but there is no material that the said mobiles belongs to deceased. This fact is very crucial as because the entire case revolves around the robing of 3 mobiles and that is the motive for the commission of crime. This fact cannot be brushed aside. The prosecution has not placed any material to show that the said mobiles belongs to accused or examined any witness to prove that the 3 mobiles are in possession and belongs to deceased. As from the statement of witnesses and same is corroborated by evidence of PW. 14 that deceased had bad habits and he had habit of stealing. Under such circumstance it cannot be said that there is absolutely no corroborative evidence to prove the fact that accused hatched plan to rob the mobiles. Apart from this the motive for commission of offence put forth by the prosecution is not strong enough and moreover the said motive is not corroborated with any substantial evidence, that for 3 mobiles the accused have committed murder of deceased. As stated above the 27 S.C.No.1074/2017 entire case of the prosecution is built on the statement of PW. 15.
32. The case of the prosecution and how it is build is to be observed. The prosecution put up theory that the accused are friends of deceased and with common intention the accused hatched plan to rob 3 mobiles which are in possession of deceased. They brought deceased to crime spot and made him to consume ganja and when he got intoxicated under the influence of ganja A1 took size stone which laying beside and smashed on the head of deceased and caused injury and then the accused took the body of deceased and thrown on the railway track and again by the same size stone smashed head of the deceased on track and to see that the train run over his body and by that they murdered deceased and destroyed the evidence. They took 3 mobiles from deceased and A2 sold one mobile to PW.2 and 2 mobiles given to PW. 7 for repair and by that they committed the offence u/sec. 397, 302, 201 of IPC. This being the case of the prosecution, lets see how it built the same with what evidence and circumstance.
33. As stated above the entire case of the prosecution built on two aspects one on the statement of Srikanth PW. 15 recorded on 16.3.2017 and another recovery of mobile and by that they conclude 28 S.C.No.1074/2017 that the accused committed the offence. Before the statement of PW. 15 Srikanth as per PW. 1 there is a body lying on the track, the parts of the body separated and some of the body parts missing. Since there is blood stain on the track PW. 1 suspect that the deceased might have murdered somewhere and thrown body on the track. Subsequently inquest and spot mahazar is conducted. Since there is no eye witness to incident the police investigated and collected the evidence.
34. That on 16.3.2017 the police issued notice to PW. 15 Srikanth, shown photo of deceased stating that some body has killed unknown person aged about 18 years by putting stone on his head and to hid murder thrown body on railway track near nice road bridge and to see that rail run over body. The said Srikanth identified the deceased as Srinivas @ Chinni, resident of Kadugodi who used to come to play cricket in Government school ground and at that time he came to know him. The deceased had habit of consuming ganja and he use to organize ganja meeting along with Kengeri boys beside Kadugodi Railway Track. The Kengeri boys work in Kalpabruksha hotel at Whitefield. In the evening Kengeri boys and deceased togather smoke ganja and steal mobile phones. He last seen 29 S.C.No.1074/2017 them together in the evening of 3.3.2017 in front of white field railway station. It is to be observed, Why this court to infer that prosecution built its case on the basis of statement of Srikanth, For that the facts are to be dissected. Firstly it is the case of the prosecution that A1 to A3 hatched plan to rob 3 mobiles from deceased and for that they made the deceased to smoke ganja and when he get drowsiness A1 smashed his head with seize stone laying beside. This fact is very crucial because this is where the entire case of prosecution is begins with mobile phones. As discussed above, it is not clearly established by prosecution whether those mobiles are in possession of deceased or they belongs to deceased. As already discussed this aspect lets not discuss again. Coming to the second part whether the deceased and accused consumed or smoke ganja to see that deceased get drowsiness. It is clear case of prosecution that the accused made deceased to consume or smoke ganja and when he get drowsiness smashed head with stone. To ascertain these facts lets take the help of forensic evidence. The police sent the parts of deceased such as stomach and its contents and portion of small intestine and its contents, porion of liver and kidney, blood, preservative used, sodium chloride for forensic examination. PW. 9 conducted the examination and gave report as per 30 S.C.No.1074/2017 Ex.P.14. The report at Ex.P. 14 contains opinion and as per said report color test and gas chromatography methods have responded for the presence of ethyl alcohol in article No. 1,2,3 those are stomach and its contents and small intestine, liver and kidney and blood. But no other poison was detected in all the above stated articles. Quantum of ethyl alcohol 65.25 mg/100 ml of blood. Further the PW. 9 deposed to that effect and deposed that the parts are subjected to forensic examination. When the parts were subjected to color and gas chromatographic test the article No.1 to 3 contain ethyl alcohol and there is no other poison was detected. That PW. 9 prepared report and with signature of higher officer sent to P.S. However the defense has denied the same in the cross-examination. It is questioned by defense that when a person consume 65% alcohol he cannot walk naturally which is denied by PW. 9. Rest of the cross-examination is denial by defense.
35. From the forensic report at Ex.P.14 there is ethyl alcohol found in the body of the deceased, but no other poison and certainly not the substance of ganja or any drug. This report and evidence of PW. 9 goes against the case of the prosecution. There is no contents of ganja in the body off the deceased. Even in 31 S.C.No.1074/2017 the PM report also there is no substance regarding finding of ganja in the body of deceased and further more it is not the case of the prosecution that before or after reaching the crime spot the accused and deceased had consumed alcohol. Further more there is no evidence or material that the accused are also subjected for medical examination and the drug or ganja found in the body of the accused. The theory of prosecution is not supported with forensic evidence or even the PM report. On careful scrutiny of records the police have no idea regarding death of deceased till Srikanth gave statement that deceased and the accused were habit of consuming ganja and stealing mobile phones. On the basis of the said statement of Srikanth regarding ganja and stealing mobiles, the prosecution built case that A1 to A3 made deceased to consume/smoke ganja and gave him drowsiness to rob mobile, but the evidence mainly the forensic evidence speaks otherwise on the contrary to the case of the prosecution.
36. As per prosecution the said Srikanth PW. 15 is also the pancha to Ex.P.4 recovery mahazar of CCTV footage at railway station . The police gave notice to him to be as pancha and on 19.3.2017 he was taken to railway security office and there he identified the accused along with deceased. Further police also came 32 S.C.No.1074/2017 to know that A1 to A3 are known to deceased on the basis of statement of Srikanth. They together consume ganja and steal mobile phones. Apart from the said statement of Srikanth PW. 15 there is absolutely no material to corroborate the theory of prosecution that A1 to A3 and deceased use to consume ganja and steal the mobiles.
37. It has to be seen whether really the testimony of Srikanth PW. 15 helps the case of the prosecution. The prosecution examined Srikanth as PW.15. He deposed that he identified his signature in Ex.P.4 recovery panchanama. He signed the said document on 19.3.2017 in RPF office at Platform of Bangalore City Railway station. He deposed that police shown CCTV footage and that he saw deceased Srinivas alongwith 3 people and he identified. After that said footage was transferred in CD and police seized said CD. He identified Ex.P.8. he deposed that he saw those people and Srinivas from behind, he can identify those images. Srinivas use to come to play cricket around from one year, he know him. During evidence the footage at Ex.P.8 C.D played in open court. Witness does not identified the footages in the CD. He also not identified the A1 who is present in court and also A3 present through V.C. The advocate for A2 has not objected to 33 S.C.No.1074/2017 identify A2 in his absence. He identified photos of deceased in Ex.P.3. he deposed that he does not know how the deceased Srinivas died. At the time of writing he was not shown the accused. He had not gave statement regarding incident. Prosecution treated him as hostile and cross examined him. The very crucial cross-examination of prosecution is that, it was suggested that on 16.3.2017 police gave notice and shown the photo of deceased in Bengaluru City Police Cr. No. 84/2017 and on showing the photo he identified deceased as Srinivas @ Chinni resident of Kadugodi, whitefield. He admitted the suggestion. It is further suggested that his statement to the effect that deceased and accused are friends and the said boys are from Kengeri and he last seen deceased alongwith accused on the evening of 3.3.2017 in front of whitefield Station. which was denied by PW. 15 and statement is marked as Ex.P.26. On 19.3.2017 he was again called by the police and they shown 3 accused who are in their custody and at that time he identified 3 accused are with Chinni and he came to know that on 3.3.2017 at whitefield Railway Station they and the kengeri boys Abhishek, Madukar and Manoj and 3 accused having eye on 3 mobiles in possession of deceased, took him from whitefiled railway station to kengeri towards nice road bridge and made him to consume ganja and when 34 S.C.No.1074/2017 he is in intoxication put stone on his head and killed him and to hide murder lay his body on track so that train ran over his body. He gave statement to that effect, which was denied by PW. 15.
38. It is further suggested that he gave statement that he identified deceased alongwith accused in footage in CCTV of Railway Platform NO.6. the said footage are copied in CD by RPF staff Vinaykumar and same was seized by IO in front of panchas which also denied by PW. 15. The portion of said statement of witness is marked as Ex.P.27. it is suggested that the accused before the court in VCTV and absent accused and person saw and identified in Railway Station are one and the same, which is also denied by him.
39. On perusal of evidence of PW. 15 he completely turned hostile to the case of the prosecution. Though the prosecution built its entire case, but he has completely denied the case of the prosecution. He in his chief examination identified deceased Srinivas @ Chinni but he has not identified the accused. He deposed that police have not shown accused during mahazar. Inspite of cross-examination by prosecution there is nothing material elicited in support of the case of the prosecution from the mouth of PW.1. The Ex.P.26 and 27 completely goes against the case of the prosecution.
35S.C.No.1074/2017 From the evidence of PW. 15 another interesting fact get revealed, on perusal of records including statement and material placed, it is clear that Srikanth identified the deceased and accused. The said fact was categorically that on the say of CW.14 /PW 15 the accused are identified by IO and same is admitted by IO PW 14 in his evidence. The police came to know the deceased and the accused are known to each other and they use to smoke ganja and steal phones. This is how it depicts from the material of prosecution. On identification of deceased and accused mainly in CCTV footage of Railway Station the police came to know about accused and deceased. The interesting part is from the statement alongwith the testimony of PW. 15 it reveals that the police called PW. 15 on 16.3.2017 and shown the photo of deceased wherein he identified the deceased at that time he was not shown the accused, but he was informed that somebody has murdered the deceased and thrown his body on the track. It is very much clear that on the said day the accused are not shown to PW. 15 for identification. On 19.3.2017 he identified the accused in CCTV footage and police came to know about the accused. There is no material placed to show that before he identified the accused in CCTV footage police were knowing about the accused. It is clear from the record mainly statement of PW. 15 on 36 S.C.No.1074/2017 19.3.2017 he identified the accused. But before that accused are not shown to PW. 15 for identification. But interesting part as per statement of PW. 15, that on 19.3.2017 he was again called by giving notice by Railway Police at Plat form No. 6 of Bengaluru Railway Station and shown 3 persons who are in the custody of the police and he identified 3 persons were they on 3.3.2017 with deceased. The very relevant thing to observe here that he was identified the accused on 19.3.2017 in CCTV footage, but as per his statement the accused are already in the custody of police on 19.3.2017. it is not forthcoming that how the police came to know about 3 accused persons who has committed the offence before PW. 15 identified them and how they came in custody of police earlier to identification by PW. 15. On 19.3.2017. It seems that they are already arrested before PW. 15 identified them with deceased. This sequel of facts clearly creates doubt in the case of the prosecution. Though prosecution builts its entire case on the statement of PW. 15, but same is completely taken away as he completely turned hostile and the identification of accused and their involvement comes under cloud.
40. Now coming to commission of offence by accused, it has to be analyzed whether prosecution able 37 S.C.No.1074/2017 to prove that accused assaulted deceased with size stone and then thrown body of deceased on the track to destroy evidence. It is the case of the prosecution that A1 to A3 to rob 3 mobiles took deceased to nice road bridge at Railway KM No. 14/500-600 between Kengeri and Hejjal Railway Station and doped him ganja and when the deceased was in intoxication A1 took size stone laying beside and smashed on head of deceased and caused injury, further to hide murder they took his body and thrown on track so that the train ran over his body and by that they try to destroy the evidence. On the other hand defense puts up theory that the accused No.1 to 3 have not committed any offence. The deceased was under intoxication and he fell on track and train ran over his body. The accused are falsely implicated in the case. Let us dissect the case of the prosecution and see whether prosecution proves the facts.
41. To substantiate the fact the prosecution examined PW. 1, 5, 13, 14. PW. 1 who is the first informant, he deposed that PSI called him and stated that he got information under nice road bridge at Kengeri Hejjala Station, Mysore road a dead body is found and informed him to inspect the same. On instruction alongwith CW. 2 he visited the spot and on 38 S.C.No.1074/2017 inspection a body of 25 years male laying and the body parts are separated and the head and body were dragged for about 10 sleepers. His right leg laying from 8 feet from his head beside railway track, 50 feet from his body his left hand laying, 30 feet from head towards east on wall of bridge and pillars on cement concrete there was blood and same got dry. From there, here and there blood stains on the railway track. From that it seems that deceased murdered somewhere and thrown body on track. After returning to P.S. he gave report as per Ex.P.1 to PSI. He identified Ex.P.1. He deposed that deceased wore blue jeans pant, coffee color underwear and blue T shirt, shirt was tore. chappals were found at the spot and he can identify them. The said witness is subjected to cross- examination, during the cross-examination he deposed that he has not drawn mahazar at the spot. Whether he inquired the local people, he deposed that there were nobody at the spot. To the suggestion that complaint was written in P.S., witness deposed that after writing at the spot gave it to Police Station. He deposed and admitted that he has not mentioned in complaint time of visiting spot. He deposed to the suggestion by the counsel for the accused that if person falls from bridge and rail ran over him there is chances of blood may be seen nearby, to which he deposed that if rail ran over 39 S.C.No.1074/2017 any person the skin of that person stick to track, but no such things in this case. It is suggested if any person comes in front of rail his body may dragged, he admitted the same. Subsequently the cross examination is in denial.
42. From the evidence of PW. 1 two things came to light that, the body is hit by train and body parts get separated and another thing there are blood on the wall and pillars of bridge. The police conducted spot and recovery mahazar and inquest. During spot and recovery mahazar as per EX.P.7 and 10 articles were collected, among them article 7 size stone is also recovered which very relevant. the said articles were sent to forensic examination and PW. 13 examined the articles the articles are jully stone, stone, mud and grass, sample soil, cement concrete, one stone, jeans pant, 9 T shirt and underwear. After examination gave report as per Ex.P.18. As per the report blood stains were detected in article No. 1,3,5,7,8,9 and 10 and they are the human blood of `O` group blood. Among them article No.7 stone also contain blood stains. PW. 13 gave evidence and deposed regarding examination of articles and report. He was subjected to cross- examination by defense. He deposed that he cannot say the blood stain are how many days old. Further he 40 S.C.No.1074/2017 admit that he has not examined the blood found on articles belongs to deceased and rest is denial.
43. The prosecution on the basis of testimony of PW1 and the report as per Ex.P1 and mainly on the basis of fact that there is blood on the pillar and wall of bridge and blood on stone i.e., article No.7, the prosecution try to establish fact that the deceased is murdered. Added to this the blood stains on the track from the wall of the bridge leads to suspect the deceased was murdered and the body was thrown on the track. It is pertinent to observe that as per the chargesheet the case of the prosecution is that, on 3.3.2017 at about 9.15PM Accused no. 1 to 3 with common intention to rob 3 mobiles which are in possession of deceased, when he was alive took him under the Nice Road bridge at Railway K.M 14/500-600 between Kengeri- Hejjal Railway station. Made him to consume Ganja and intoxicated him. At that time the Accused No.1 took size stone laying beside and smashed on head of deceased and caused grievous injuries and all 3 together took deceased and lay him on track and Accused No.2 with same stone again put on the head of the deceased and committed murder and with intention to hide murder, see to it that train run over his body and by that they destroyed evidence and 41 S.C.No.1074/2017 committed offence u/s 302, 201 R/w 34 of IPC.
44. That being the case of prosecution on commission of offence, it is to be observe that as per prosecution case the head of the deceased was smashed twice, once by Accused no.1 near the pillar of the bridge and on second time by Accused no.2 on track. If that is taken into consideration and also on perusal of spot and recovery mahazar, it is found that 30 feet from dead body on concrete cement attach to Nice Bridge pillar and bridge wall there are blood stains and 12 feet from separated head found one 1½ foot long and ½ foot in width size stone and on reversing stone there is blood stain size of hand palm found on it. Further on perusal of inquest, it is found that on near by inspection, it is suspected that somebody killed deceased and thrown on railway and on suspicion when inspected by the side and collected articles, it is found there are blood stains on jully stone and 4 feet from body on dry grass and soil there is dry blood and 30 feet from body there are blood stained jully stone and 1½ foot long and ½ width size stone was collected. And in addition to above on perusal of 4 th photo in Ex.P3 the stone found beside the wall of bridge. If all these above scenario analyzed, as per mahazar the size stone is 12 feet from body and as per inquest it is 30 42 S.C.No.1074/2017 feet far. Further on perusal of photo the stone found near wall. As per prosecution Accused no. 1 to 3 put size stone on the head of deceased near pillar and wall of bridge and after took deceased on track and again put stone on deceased head second time, but if 2 times the stone was put on deceased, first near wall of bridge and again with same stone on track, then how come the stone found laying besides the wall of bridge as per 4 th photo of Ex.P 3. If the Accused no.2 put stone 2 nd time on the deceased when he was laying on track, then stone must be found on the by the side of track, however it is not clear that after putting stone second time on deceased Accused 1 to 3 thrown the stone by the side of wall. There is absolutely no clarity regarding commission of crime, how the murder is committed by the accused. It is surprising to observe that there is no sketch of crime scene, details regarding crime scene. what is the exact picture of the crime scene, what situation look alike, which parts placed where like pillar, wall, stone, what is the distance of track from bridge, on what distance the body was laying on track and details or photographs of blood stains on the track. The finger prints of Accused 1 to 3 in stone. There is no details placed regarding crime scene. The photos produced at Ex.P3 are not sufficient to ascertain exact crime scene. Except spot mahazar at Ex.P7 and Inquest 43 S.C.No.1074/2017 Ex.P6 that too will not give clear picture of crime scene. The court can not imagine the crime scene. When the offences are serious nature, prosecution has to place details of crime scene to ascertain the exact situation or picture of crime. The prosecution has not properly projected the scene of crime. That being the state regarding crime scene, there is no absolute material to show that Accused 1 to 3 were on crime spot with deceased and they have committed offence exactly as put up by the prosecution. Except the voluntary statement of accused there is no material placed by prosecution. The prosecution completely relay on last seen in the CCTV footage to establish fact that Accused 1 to 3 committed offence as narrated by the prosecution. But said be corroborated with some evidence or material regarding commission of crime. Merely on the basis surmises and conjecture court cannot come to conclusion that the offence is committed in such manner.
45. That another point to be observed that leads to state that investigation is not proper in this case is, as per PW1 when he visited the spot he saw blood stained spots and after he came back to station and submitted report as per Ex. P1. He saw deceased wore Blue jeans pant, coffee color underwear, Blue T shirt. Shirt tore.
44S.C.No.1074/2017 Sleeper were at the spot and he can identify them. But as per IO examined as PW14 depose that, on 17.3.2017 Accused shown crime spot and he seized blue hawai chappal on producing by accused and same is marked as MO 4. Further as per spot and seizer mahazar at Ex. P 25, from crime spot 200 meter away, from bush at Hajjal electrical calpol No.14/26 one pair of blue color chappal of spark company of deceased Shrinivas are shown and produced and same are seized by IO. The said point is contrary to PW1. As PW1 states he saw chappals on the spot, whereas IO state that on disclose by accused IO seized the said chappal of deceased. There are contradiction in the evidence of witnesses. Further as admitted by IO there is only his signature on MO 1 to 5 and 11 and 12 and there is no sign of panchas.
46. As per case of prosecution when the Accused 1 to 3 was with deceased there was another person with Accused 1 to 3 and deceased by name Kulla Madan and he is visible in CCTV footage also. But the IO has not cited him as witness or even Accused. He is not examined regarding incident. He is the key witness or person to the said incident as because he is very much present with Accused 1 to 3 and deceased at the last time. What happened to him is not clearly explained by 45 S.C.No.1074/2017 the prosecution and during cross examination by defense IO depose that Kulla Madan is not available at the time of investigation, hence not examined him. This piece of evidence is fatal to the prosecution case. The explanation by IO to go away with the said witness is not reasonable explanation. Which goes against the prosecution. Because he is the main link in the entire incident. Further there is no sign on MO5 and 13, 14 to show that those articles are seized in the presence of panchas.
47. It is pertinent to observe that IO during cross examination admitted the suggestion that, the face of accused and front images are not visible in CCTV footage. However, when footage shown in court in laptop during evidence, he deposes that in CCTV footage on 3.3,2017 in footage of 18:29:28 time, 3 persons are visible and they are deceased, Abhishek, Madukumar. In footage of 18:29:45 2 persons are visible and they are Manoj and KullaMadan. Further he admits that the faces of persons whom he identified are not visible in CCTV footage. He categorically admits that he identify Accused on identification of CW14 i.e., PW.15 Shrikant. He further deposes and admit that he has not sent CD and footage to forensic examination for exact identification of Accused persons. From the 46 S.C.No.1074/2017 testimony of PW14 it can be observed that the faces of Accused and front images of footage are not visible. The images captured are of backside images. The IO identified the Accused 1 to 3 on identification of PW.15 shrikant who has completely turned hostile. This will lead to infer that identification of Accused 1 to 3 under cloud.
48. Apart from this PW3 the father of deceased depose that on 11.3.2017 he received call from his brother and he informed that there is accident to his son at Kengeri to enquiry same come to city railway police station. Then he identified his son from phot of dead body. This fact was put to IO PW14, during cross examination, it is suggested that CW3/PW3 gave statement that on 11.3.2017 his brother Manjunath called him at Chiktirupathi and informed that Bangalore Railway police called him to inform that, his 2nd son Srinivas met with railway accident and informed to comedown. IO PW14 admits the suggestion and said part of statement is marked as Ex.D1. It is pertinent to observe that if on 4.3.2017 FIR registered and suspected that the deceased was murdered then why the police informed Manjunth and Manjunath informed PW3 that his son met with rail accident. Here it is noticed that the brother of PW3 Manjunath is not cited 47 S.C.No.1074/2017 as witness. These discrepancy and contradiction are fatal to prosecution case. The prosecution is not able to put up uncontroverted evidence to establish fact of commission of offence.
49. From above discussion it can be inferred that the prosecution has not placed any material to establish that Accused 1 to 3 committed offence as narrated by it. There is no sufficient material to establish crime scene and investigation in that regard is not proper and full of contradiction. By that the prosecution is not able to establish commission of offence by Accused 1 to 3. Apart from voluntary statement of Accused prosecution has no material to substantiate that the offence is committed in such manner. As stated above on the basis of conjecture and surmises it can not be come to conclusion the offence is committed by Accused 1 to 3.
50. It is Argument of prosecution that the deceased Srinivas was seen last together with Accused no. 1 to 3 before his death by PW6 and PW15 identified in CCTV footage of Railway station. That is sufficient to hold that Accused 1 to 3 have committed murder of deceased. The entire case of the prosecution rests on this piece of evidence that PW6 last seen Accused no.1 to 3 and deceased together and CCTV footage which 48 S.C.No.1074/2017 discloses that Accused 1 to 3 and deceased together. To establish this fact the prosecution examined PW6. He depose that he is doing his business near Kengeri Railway station and 03.03.2017 at about 8.00 PM the accused before the court and the person shown in photo Ex.P3 have came to his shop and took egg fried rice and bill was Rs.120/-. instead of giving money they gave one samsung mobile to him and told that they have no money to give and hence they gave mobile and they will take back the mobile after giving the money. But he returned the said mobile to them by saying pay amount tomorrow and after 15 days railway police brought 3 persons and enquired and he identified them and stated that these three persons and one more person took egg fried rice from his hotel. He further deposed that the police have instructed him to give evidence. He identified the accused before the court. He is subjected to cross examination during cross examination he admits that he cannot remember every person who comes to his shop. He deposes further that he cannot say the description and the colors of the cloths of the accused. He admitted that he is acquaint with railway police. He deposes that he alone does all work in his shop. It is cross examined how he remember these 4 persons he states that on the said date there was film shoot in the railway station so he 49 S.C.No.1074/2017 remembers date of visit of 4 persons. Further on later part of cross examination he depose to the suggestion that he is seeing accused first time before this court. To the said suggestion he states that there were public in the shop and also there is dark, he has not notice properly and further he voluntarily states that he himself saw 4 persons but he can't clearly notice these persons were there. After that the prosecution reexamined him and he is question that how he remember them, to which he depose since after eating egg rice since they don't have money gave mobile, hence he remember them. To question among 4 who said to keep mobile, which he depose that person seen in VCTV and person in Ex.P 3 photo that is Accused no.3 and deceased. Further he identified that among 4 persons, 2 persons present in court and person in VCTV and person in Photo. Again he is cross examined by defense he admits to the suggestion that he has no special identification to say accused persons are the 4 persons who visited the shop.
51. Apart from him the prosecution also relays on the CCTV footage which is recovered from Railway station platform CCTV where in the Accused 1 to 3 and deceased along with Kulla Madan seen together. To substantiate this fact, prosecution examined PW8 who 50 S.C.No.1074/2017 is the constable in RPF Bangalore office. He depose on 19.3.2017 police visited their office with 3 panchas and 3 accused inrespect of murder on railway track between Kengeri Hejjal railway station. It is informed to him that 3 accused person going on platform no6 of station at about 6.00-6.30 and he checked the CCTV footage installed in that platform and show the images of 6 th platform. on said time accused and deceased are visible and person by name srikant identified the accused and deceased. The said footage he transferred to CD and gave it to police. He identified the Ex.P 8 and also certificate which is marked as EX.P 12. Further he also identified the Accused persons and footage before the court. He is subjected to cross examination by defense. During cross examination he depose that he get information that accused are going through Platform no.6 on say of CW26. He admit the suggestion that the footage are persons who are walking, covered from the backside and the faces are not visible. He cannot say from where they came and where they are going. Further he depose that they are visible in the said CCTV footage and he gave said footages. To the question that whether 4 camaras are not checked to which he answered that in other 3 camaras there are no said footages. On the say of CW26 he transferred the said footages and gave it to police. He further admits 51 S.C.No.1074/2017 that on CD Ex.p8 there is no signature of him and panchas.
52. Further the prosecution examined PW4 pancha to the mahazar of recovery of CCTV footage. He depose that around one year back CCTV footage are shown to him and in that 4 persons are going together and said footages are transferred to CD and same is seized by police. Further he depose that the among 4 persons 2 persons are before court and one person in VCTV. And one person he seen from back side and he cannot identify. Further he cannot identify the person in EX.P3. he identify the footage played in court. He is cross examined by prosecution treating him partly hostile. During cross examination it was suggested that 4 persons visible in CD are Accused persons and deceased to which he depose he does not know. He deny the suggestion that accused were brought while transferring the CCTV footages. Subsequently he is subjected to cross examination by defense during cross examination he depose to suggestion that the persons who are before court and VCTV are not visible, to which he depose that he has not identified them but another person identify them. Apart from this not much elicited from him.
53. Further the prosecution examined PW15 52 S.C.No.1074/2017 Srikant to establish fact of last seen. His evidence is discussed in the above. The said PW15 has not supported the case of the prosecution and completely turned hostile.
54. On analysis of these evidence mainly PW6 who saw Accused and deceased together last time. He identified 4 persons however in cross examination by defense he depose that since there is public in his shop at that time and there is dark he has not properly noticed them. But during reexamination by prosecution he again identified the accused and deceased. There is no reason to disbelieve the testimony of the PW6 but on his sole testimony it can not be conclude that accused have committed murder of deceased. The testimony of the PW6 must be corroborated with other material evidence as because apart from his evidence there are lot of discrepancy in the case of the prosecution as discussed above. It is also relevant to observe that from the evidence of the PW4,8 it is clear that the CCTV footages are covered from backside and the faces of persons in footage are not visible and same is corroborated with evidence of PW14 IO. The IO PW14 specifically depose that the faces of accused and front portion of footage are not visible in CCTV footage and more he depose that he has not sent the CD and 53 S.C.No.1074/2017 footage to forensic examination to identity accused accurately. He depose that in CCTV footage the persons identified by him are not visible. Even PW4 states he does not know that 4 persons visible in CD are accused and deceased and also deny that during transfer of footage accused were brought. That clearly shows that the witnesses are not accurately identified the accused and deceased in CCTV footages. However, PW 8 and 4 corroborates that PW15 identified the accused and deceased but said witness tuned completely hostile. The prosecution completely built its case on the basis of testimony of PW15 but he has not supported the case. The same can not be brushed aside as he only turn hostile to his testimony, that non supporting of PW15 will take away the case of prosecution, as because the prosecution rests its entire case on the basis of Srikanth. Apart from this the theory of Last seen prosecution has to place corroborative evidence. The last seen can not be sole reason to held accused guilty.It is worth relay on observation by Hon'ble Apex Court in 2019 (1) Kar.L.R 35 (SC) in case of Reena Hazarika v/s State of Assam " 8. The essentials of circumstantial evidence stand well established by precedent sand we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suffice it to 54 S.C.No.1074/2017 observe that in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act,1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given.
In the light of above observation in the present case though prosecution relay on last seen theory to establish the commission of offence by the accused 1 to 3 but the said theory to be corroborated with other substantial material but as discussed above the prosecution case suffers from lot of discrepancy and contradiction which will not link the chain and points at the guilt of the accused.
55. The prosecution further rests its case on the basis of recovery of 3 mobile phones on disclosure of accused persons. It is case of prosecution that on 55 S.C.No.1074/2017 disclosure of accused persons the 3 mobile phones recovered one from PW2 MO 5 and 2 mobiles from PW 7 MO13 and 14. Which is one of the circumstances to infer the accused committed the murder of deceased for 3 mobile phones which are in possession of the deceased. To substantiate the said fact the prosecution examined PW2 and PW7. PW2 has received the MO5 from the Accused no.2. he deposes that Accused no.2 pledged one mobile for Rs. 500/- and he informed him that after returning from his native he will collect the mobile. He knows Accused no.2 as he belongs to his village. One day before the visit of phone accused no. 2 pledged mobile. The said phone is I phone of appeal company. He identified accused persons. He depose mahazar drawn as per Ex.P2. He is subjected to cross examination by defense but nothing material is elicited from him.
56. Further PW7 is examined he depose that on 18.3.2017 police visited his shop with 3 accused persons. At that time, he returned 2 mobile phones which are given by accused 1 to 3 for repair. He knows accused since 3 accused visited his shop for recharge. He deposes that he has not seen pachas signing mahazar. The Prosecution treat him partly hostile and cross examined him. He deposes during cross to the 56 S.C.No.1074/2017 suggestion that Srinivas and Mahash who come along with police as panchas singed mahazar. To which he deposes that he has not seen them signing. He is subjected to cross examination by defense. To the suggestion that when any mobiles given to repair, receipts to be written one has to be given to Customer and another to be kept. To which witness answer that when mobile given to repair he just mention for what problem the given and within one or two days repairs mobile and give it, hence he will not write any receipts. Further when question asked whether it is possible to show any writing when MO13 and 14 given to repair. He depose that since the one mobile repaired and new touchpad inserted hence writing is not visible and in another one the writing is not visible. He admits the suggestion that there is no special mark to show that MO13 and 14 were given for repair in his shop. He depose that there is no sign of him and panchas on the chit of MOs.
57. The prosecution to substantiate the fact of recovery examined PW 4 pacha to recovery Mahazar at Ex.P4. He depose that about one year by Kubalgol police him and along with another was taken some place and from one person seized mobile phone. He identify the Accused. He depose that he does not know 57 S.C.No.1074/2017 for what purpose the said mobile seized and to whom it belongs. He identifies the mobile. Prosecution treat him partly hostile and cross examined him. In cross examination by prosecution he admit the suggestion put up by prosecution. Subsequently he is cross examined by defense wherein he depose that there is no sing of him on MO5. He can not say MO5 is of which company and what color. He does not know to whom the said MO5 belongs. He depose that he singed mahazar in police station.
58. Further prosecution examined PW10 and 11 to substantiate recovery of 2 mobiles from PW7 as per Ex.P9. But the said witnesses turned completely hostile to the case of the prosecution. Prosecution failed to discredit them. Hence the evidence of the said witnesses are not helpful for the prosecution.
59. To analyses the said evidence of recovery, first and foremost thing is that the prosecution has not placed material to show that to whom those mobile phones belong or even placed evidence that the said mobile are in possession of the deceased. This fact are very relevant as because the said mobiles are the reason for the offence as per prosecution and they become part of motive as because to rob the said mobiles accused 1 to 3 committed the murder. Hence 58 S.C.No.1074/2017 the identity of those mobiles become significant in the present case. Those prosecution put up material that on disclosure of accused the mobiles are recovered but the basic fact is that to whom those mobile belongs. There is no material to show the said fact. Moreover the PW 4 states that he does not know to whom they are belongs. Apart from this PW 10 and 11 who are the panchas to the EX.P9 recovery mahazar have not supported the recovery. Here also apart from apart from the statement of accused nothing on recorded to show that said Mobiles are with the deceased. Before recovery of mobiles they must be with somebody that deceased herein. Even if the evidence is looked into in respect of recovery. The PW 4 said he does not know to whom to mobiles belong, he cannot say mobiles of which company and he cannot say the color of mobile. Further PW7 he has not seen singing of panchas on mahazar and he has not special identification that MO 13 and 14 were given to repair, this aspect become relevant as because there are number of mobiles which resembles each other. The said recovery has to be corroborated with the substantial material. In the background of the case built by the prosecution, with discrepancy and contradiction, only on recovery it can not be said that the accused are guilty of offence.
59S.C.No.1074/2017
60. On analyses of entire case of prosecution, it seems that only on speculative theory built up case without substantive material. The prosecution has to prove facts which points at the guilt of the accused. The guilt of the accused must be beyond reasonable doubt. The case in hand being relied on circumstantial evidence the prosecution place facts which connect the chain and completes the chain. The prosecution has not placed sufficient material which completes the chain and prove the guilt of the accused. As discussed above the case based on circumstantial evidence the prosecution has to place the details of commission of crime. Though prosecution relied its case on recovery and last seen theory. But the said theory has to be corroborated with other circumstances which completes the chain and points at the guilt of the accused. It is worth to rely on the observation of Hon'ble Apex Court in (1991) 3 SC 609 Harendra Narian Singh, Etc. vs State Of Bihar wherein it is observed that :
"These principles were reiterated by this Court in Shivaji Saheb Rao Bobde and Anr. v. State of Maharashtra wherein it was emphasised that where the prosecution rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other 60 S.C.No.1074/2017 hypothesis except that the accused is guilty. The Court further observed that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved and the chain of evidence should be so complete as to rule out any reasonable ground for the conclusion consistent with the innocence of the accused and the circumstances must show that in all human probability the act must have been done by the accused.
In another Judgment of Hon'ble Court it is Observed and same is quoted as under :
AIR 2002 SC 3164(1) Bodh Raj @ Bodha And Ors vs State Of Jammu And Kashmir the Hon'ble Apex Court observes that
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused. that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a 61 S.C.No.1074/2017 conclusive nature and tendency, (4) they should exclude very possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
And also in AIR 2005 SC 1000(1) (State Of U.P vs Satish) The Hon'ble Apex Court observes that;
It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.
In Bhagat Ram v. State of Punjab, AIR (1954) SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
17. (5) there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
62S.C.No.1074/2017
61. As observed by the Apex when the prosecution rests its case on circumstances, the facts established should be consistent only with hypothesis of the guilty of accused and circumstances should be conclusive nature and tendency and the chain of evidence should be so complete as to rule out any reasonable ground for conclusion consistent with the innocence of the accused. But here case in hand the facts try to be established are not consistent from the date of occurrence of the incident and till investigation, the prosecution built theory only the statement of the srikant who even stand with the case of the accused apart from that the crime scene is not properly described and further investigation is not consistent to bring the accused to book. On perusal of the entire case of the prosecution it cumulative effect of the all evidence will not points at the guilt of the accused. Further in (1991) 3 SC 609 Harendra Narian Singh, Etc. vs State Of Bihar it is observed that :
" merely because the appellants fails to raise any such plea in their defense does not lend any support to the prosecution case. The prosecution has to succeeded on the basis of on its own evidence and it cannot relay on the absence of defense to sustain the guilt as there is no justification for raising such assumption against the appellants. The circumstances established by the prosecution are not sufficient 63 S.C.No.1074/2017 to conclusively point to the appellants as the perpetrator of the crime or to rule out the hypothesis of their innocence."
Herein this case also the defense is not sufficiently puts up its case. The stand of the defense is not consistent, but the prosecution has to succeeded on its own evidence. But as discussed above the prosecution has not placed sufficient material to sustain the guilt of the accused. Another Important aspect is that as observed by the Hon'ble Court in Harendra Narain Singh case "There is yet another basic rule of criminal jurisprudence that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused. We have reminded ourselves of these principles with a view to ascertain as to whether the High Court has correctly applied these principles in convicting and sentencing the appellants."
It is observed by the Apex court if two views are equally possible the view favors the accused to be taken into consideration. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. Here also there are two are emerging from the 64 S.C.No.1074/2017 evidence of the case. As per the observation of the Hon'ble Apex Court the if two views are possible the benefit of doubt to be given to the accused. Applying the said principal the benefit of doubt is extended to the accused 1 to 3 of this case. Accordingly point No.2 is answered in negative.
62. POINT NO.3; In the result, this court proceeds to pass the following:-
ORD ER In exercise of power vested with this court U/Sec.235(1) of Criminal Procedure Code, it is ordered that accused No.1, 2 and 3 are acquitted for the offences punishable U/Sec.397, 302, 201 r/w 34 of Indian Penal Code.
Accused No.1 to 3 are set at free for the said offences.
The bail bond and surety bonds stands cancelled.
The bail bond and surety bonds executed in compliance of 437A of Cr.P.C. shall be in force for 6 months.
Issue release order to release A3 if his custody is not required in any other case.
M.Os are ordered to be preserved till
appeal period is over.
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(Dictated to the Judgment writer on computer, corrected, signed and then pronounced by me in the open court on this the 31st day of August, 2020.) (Gururaj Somakkalavar) LXIX Addl.C.C. & Sessions Judge, Bengaluru.
A N N EXU RE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW 1 A. Prakash
PW 2 Prashanth
PW 3 Manjunatha Chari
PW 4 Somachari
PW 5 Pruthvi Raj
PW 6 Rajesh
PW 7 Dananjaya
PW 8 Vinay Kumar
PW9 Savitha S
PW 10 Srinivas
PW 11 Mahesha
PW 12 Lakshmi Narayana Prasad
PW 13 Dr. Chandrashekar
PW 14 Nagaraju M.N
PW 15 Srikanth
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LIST OF DOCUMENTS EXHIBITED FOR
PROSECUTION:
Ex.P.1 Complaint
Ex.P.2 Spot mahazar
Ex.P.3 5 Photos
Ex.P.4 PM report
Ex.P.5 Notice
Ex.P.6 Case Diary
Ex.P.7 Mahazar
Ex.P.8 Sony CD
Ex.P.9 mahazar
Ex.P.10 FIR
Ex.P.11 Postmortem Report
Ex.P12 Requisition
Ex.P.13 Acknowledgement
Ex.P14 Forensic Lab Report
Ex.P 15 Statement of Witness
Ex.P.16 Statement of Witness
Ex.P.17 Forensic Lab Report
Ex.P.18 Report
Ex.P.19 Sample Seal
Ex.P.20 Acknowledgement
Ex.P. 21 Acknowledgement
Ex.P.22 Voluntary Statement
Ex.P.23 Voluntary Statement
Ex.P.24 Voluntary Statement
Ex.P.25 Mahazar
Ex.P.26 Statement of Witness
Ex.P.27 Statement of Witness
LIST OF MATERIAL OBJECTS MARKED FOR
PROSECUTION:
MO-1 Pant
MO 2 Shirt
MO-3 Inner Wear
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MO-4 Slipper
MO-5 Apple I phone
MO-6 Blood stained size stone
MO-7 Plain size stone
MO-8 Plain gross and blood stained
mud
MO-9 Plain Mud
MO-10 Cement Pieces
MO-11 Plain Cement pieces
MO-12 Size stone
LIST OF WITNESSES EXAMINED FOR ACCUSED:
NIL LIST OF DOCUMENTS EXHIBITED AND MOS MARKED FOR ACCUSED;
Ex.D1 - Written Statement (Gururaj Somakkalavar) LXIX Addl.C.C. & Sessions Judge, Bengaluru.