Bangalore District Court
State By vs N.Shivakumar on 11 February, 2020
S.C.No.1449/2017
1
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.K.SUBRAMANYA, B.Com., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE ,
BENGALURU.
Dated this the 11 th day of February 2020.
S.C.No.1449/2017
COMPLAINANT : State by
City Market Police,
Bengaluru.
.Vs.
ACCUSED: N.Shivakumar,
S/o.S.Nanjundappa,
24 years,
R/at.No.9/1-1,
Near Bandari School,
Anchepete, R.T.Street,
Bengaluru.
JU DG M E NT
The Police Inspector of City Market Police Station,
Bengaluru has laid the charge sheet against the accused
for the alleged offence punishable under Section 302 of IPC.
2. The brief facts of the prosecution case are as under:
That on 26.06.2017, the accused purchased a plastic
rope and kept it in the house with an intent to murder his
S.C.No.1449/2017
2
sister Mahalakshmi as she was not allowing him to work
and to marry, as she was alone and insisted the accused to
look after her in the house.
In furtherance of the said intention, on 28.06.2017 at
about 12.00 p.m., while Mahalakshmi was slept in the
room situated at House No.9/1-1, near Bandari School,
Anchepete, within the limits of City Market Police Station,
Bengaluru, after having the meals with the his brother-
accused, the accused entered into the room with plastic
rope and tied her and strangulated and throttled to death,
knowing such an act and injury will cause the death of
your sister Mahalakshmi and thereby committed her
murder. Hence, this charge sheet.
3. After securing the presence of accused, the charge has
been framed against him for the alleged offence under
Section 302 of IPC. The accused has pleaded not guilty
and claims to be tried. The prosecution in proof of its case
examined P.Ws.1 to 15 and got marked the documents
Exs.P.1 to 21 and M.O.1. After closure of the evidence of
prosecution witnesses, the statement of accused under
Section 313 of Cr.P.C., was recorded. The accused has
denied the incriminating evidence stated against him. The
accused has not chosen to adduce any defense evidence.
S.C.No.1449/2017
3
4. After hearing the arguments, the points raised for my
determination are as under:
1.Whether the prosecution proves beyond reasonable doubt that on 28.06.2017 at about 12.00 p.m., while Mahalakshmi was slept in the room situated at House No.9/1-1, near Bandari School, Anchepete, within the limits of City Market Police Station, Bengaluru, after having the meals with the his brother-
accused, the accused entered into the room with plastic rope, which was already purchased on 26.07.2017 and tied her and strangulated and throttled to death, as she was not allowing him to work and to marry, as she was alone and insisted the accused to look after her in the house, knowing such an act and injury will cause the death of Mahalakshmi and committed her murder and thereby, committed an offence punishable under Section 302 of IPC ?
2. What Order ?
5. My findings on the above points are as under :
POINT No.1 - In the Negative, POINT No.2 - As per final order, for the following :
R E A S ON S
6. POINT No.1 : P.W.1-The then P.S.I., of City Market Police Station, Bengaluru, has deposed that on 29.06.2017, while he was on duty, he has intimated the S.C.No.1449/2017 4 phone call received by him from Victoria Hospital Outpost and directed the A.S.I.-Munesh to bring the death memo and accordingly, he has brought the death memo and handover to the A.S.I.-Manchegowda. On perusal of the death memo, it is revealed that the deceased Mahalakshmi was written the death memo. On the same day, while he was on duty as S.H.O., one Nanjundappa came to the Police Station and given the complaint Ex.P.1. On the basis of the said complaint, he has registered the case in UDR No.27/2017 as per Ex.P.2. He has forwarded the UDR to SDM & Higher Officers. Thereafter, he visited Victoria Hospital, Bengaluru and enquired the Doctors and came to know the death of Mahalakshmi and has given a requisition to conduct post mortem. He has conducted the inquest of the dead body as per Ex.P.3. At the time of inquest, he has noticed the old wound on the back of the neck and also ligature mark. He has entrusted the body to the complainant through the staff. He sent A.S.I.- Sri.Krishnappa to bring the P.M.Report from Victoria Hospital. On 7.07.2071, he received the P.M.Report-Ex.P.4 through the staff. He has further deposed that on perusal of the P.M.Report, it is revealed that the death is due to ligature strangulation. He suspected that somebody has murdered her. He had submitted the report to the Police Inspector. Thereafter, he had been to the house of S.C.No.1449/2017 5 deceased situated at Anchepete, Bengaluru and C.W.18 has conducted the mahazar as per Ex.P6 and he has attested his signature. The Police Inspector/C.W.18 has issued a Memo to himself and C.Ws.16 and 17 to trace the accused. On 8.07.2017, they received information from the informants that the accused is in the same house and they brought him to the Police Station and produced before C.W.18 along with the report Ex.P.7.
In the cross examination, it is clear that he had registered a case in UDR No.27/2017 on the complaint of Nanjundappa. It is revealed in the complaint that deceased Mahalakshmi was suffering from mental illness due to the death of her mother. It is also stated that she was suffering from mental illness and due to non-recovery of mental retardation, she was died. There was no suspicion expressed against anybody while complaint and registering the UDR case. Therefore, the evidence of this official witness is not indexing any culpable act of the accused. At first, it is stated to be the natural death due to mental retardation of the deceased. It is admitted in the cross examination that in the inquest at column No.11, it was mentioned that she was died due to mental ill-health and disability. The harassment or ill-treatment and weapon used is not mentioned in the inquest. In column No.13(a), it is mentioned that none has suspected regarding any S.C.No.1449/2017 6 offence. In Ex.P.4-P.M.Report, it is mentioned that the ligature material is not provided before the concerned police at the time of autopsy. Therefore, the accused purchasing the rope on 26.06.2017 and used the same for the purpose of commission of offence on 28.06.2017 is not evident. If at all, the rope is available at the time of inquest or Post Mortem, it would have been revealed in those relevant documents. Therefore, the user of rope by the accused and committing the murder of his siser is not evident.
P.W.1 has also admitted that till the receipt of P.M.Report, he has conducted investigation, but has not taken any report as to ligature strangulation. He do not know whether strangulation is due to homicidal or suicidal or accidental. He has visited the place of incident on 7.07.2017. Therefore, there is delay in investigating the spot by P.W.1. The deceased was slept in III Floor room and the mahazar was conducted in that place. Therefore, the evidence that the accused also resided with her is not forthcoming. The other witnesses have deposed that she was residing independently in III Floor and there is a staircase leading to each floor. Therefore, the circumstantial evidence that the accused is only having the access and nexus to enter the staircase of III floor is not evident. It is also clear from the cross examination of S.C.No.1449/2017 7 P.W.1 in page No.5 that at the time of mahazar Ex.P.6, he has not seized any material. Therefore, the seizure of rope and other associated materials so as to prove the culpable act of the accused is not forthcoming in the official testimony of P.W.1. In Ex.P.1, there is no reference to the presence of accused in the house. Therefore, the burden is heavily cast on the prosecution to prove the presence of accused and his overt act of committing murder by strangulating his sister.
7. P.W.2 has deposed as to the signature made on Ex.P.6-Mahazar on 7.07.2017 near Bandri School, Anchepete, Bengaluru.
In the cross examination, it is stated that the Police Inspector called him to the spot, but he do not know C.W.3. The police have not given any written notice. He do not know who have shown the spot to the police. This witness has also admitted that the building is consisting of 3 to 4 floors and the mahazar was conducted in III floor. He has not deposed the direction of the door and boundaries and location. Therefore, the evidence of this witness is also not in any way aiding to prove the circumstances prevailed in the spot of incident.
S.C.No.1449/2017 8
8. P.W.3-Another mahazar witness has deposed as to attesting the mahazar Ex.P.6. He has signed the same in the market and he do not know the date and time at which he has signed the mahazar. Therefore, this witness visiting the place of incident and came to know the murder of Mahalakshmi and the police drawing the mahazar in the spot is not evident.
The prosecution treated this witness as hostile and suggested that on 7.07.2017, the police have called him to the spot i.e., building No.9/1-1, Bandari School, Anchepete, City Market, Bengaluru and drawing the mahazar is denied. Therefore, the prosecution has failed to prove the mahazar so as to prove the place of incident and state of things existing on the date of mahazar.
9. P.Ws.4 and 5 have turned hostile to the prosecution case and they have deposed that the police came to the spot with regard to the murder of the sister of accused. They have signed in the spot 3½ years back. The accused is residing in the upstairs of their shop in the same building. They have not visited the house of accused along with police. The police have not seized the material object in their presence by drawing mahazar Ex.P.8. Therefore, the prosecution has treated these witnesses as hostile and S.C.No.1449/2017 9 suggested that on 8.07.2017, they have signed the mahazar, but the same is not remembered by these witnesses. They have denied the suggestion that the police went to the house of accused and the accused produced the rope and accordingly, the same is seized by the police by drawing mahazar. Therefore, the seizure of rope effected by the police on its production by the accused is not evident. Hence, the prosecution has miserably failed to prove the seizure of rope and its user by the accused for committing the murder of his sister.
10. P.W.6 has deposed that he has signed the inquest Ex.P.3 in the Police Station. He has seen the dead body in Vicoria Hospital, but he has not noticed any injury on the body. Therefore, the prosecution has treated this witness as hostile and suggested that he has signed the inquest in the Victoria Hospital and not in the Police Station, but the same is denied. Therefore, the injury found on the body whether correlate to the prosecution case is not forthcoming from the evidence of this witness.
11. P.W.7 has also turned hostile to the prosecution case. He has the relative of the deceased. He do not know whether she was died, but he went to Victoria Hospital and S.C.No.1449/2017 10 saw the dead body. This witness has also deposed that the deceased was suffering from ill-health and she was not healthy. The accused has not complained about her regarding ill-treatment. The accused has not informed regarding the death of his sister.
Therefore, the prosecution has treated this witness as hostile and suggested that the sister of accused was sleeping and it was informed by the accused that she is not wake up. Hence, they went to the house and saw her and transmitted her to the hospital. In the hospital, she was declared to be dead, the same is denied. It is also denied that the father of deceased namely Nanjundappa went to the Police Station and lodged the complaint. Therefore, his evidence is quite contradictory and inconsistent to the prosecution case. The suggestion that the accused has committed the murder of his sister by strangulating her and the statement given as per Ex.P.9 is also denied. Therefore, the evidence of this witness is not in any way helpful to the prosecution case. If at all, such suspicion existed against the accused, while complaint itself, the father of deceased would have lodged the act of the accused in the complaint. Therefore, there is material omissions and contradictions in his evidence.
S.C.No.1449/2017 11
12. P.W.8-Goldsmith having a shop in the ground floor of the house of accused has deposed that the deceased Mahalakshmi is the sister of accused. He do not know when she was died and whether there was any quarrel between the accused and deceased in their house. The police have not recorded his statement.
Therefore, the prosecution treated this witness as hostile and suggested that there was a quarrel between the accused and deceased and in certain occasion, this witness intervened and pacified the quarrel, but the same is denied. The suggestion that the accused strangulated her and caused the death is also died. The statement given as per Ex.P.10 is also denied. Therefore, there is no corroboration from this witness to the prosecution case.
13. P.Ws.13 and 14 have also turned hostile to the prosecution case and they do not know the manner in which and the circumstances under which the said Mahalakshmi died.
P.W.13 has stated that the deceased is his daughter and he do not know how his daughter died. It is stated that she was suffering from insanity since two years and died in the hospital. His son/accused has not murdered her. He has denied the statement given to the police as per S.C.No.1449/2017 12 Ex.P.17. The prosecution has suggested that the accused was looking after her and she insisted the accused to look after her without attending to any work and not allowed him to marry, but the same is denied.
In the cross examination, it is admitted that the house is consisting of three floors and there are tenants in the first floor and in the second floor, the accused is residing with him. Therefore, the deceased Mahalakshmi resided in the III floor independently is forthcoming and as such, the act of the accused is to be proved with sufficient evidence, but the prosecution has miserably failed to place authenticated testimony of the eye witnesses or relative witnesses, who have seen entering of the accused to the III floor with rope and strangulating her to death. It is an admitted fact that there is a separate kitchen and bathroom and as such, the persons, who are entered the house at the relevant point of time causing the death of deceased Mahalakshmi is not evident in the prosecution witnesses testimony.
P.W.14 has denied the statement given to the police as per Ex.P.18. Therefore, there is no corroboration from these close relative witnesses to the prosecution case.
14. P.W.9-Official witness has deposed that on S.C.No.1449/2017 13 29.06.2017, he was deputed to subject the body to Post Mortem in UDR No.27/2017 under Section 174 of Cr.P.C. He went to Victoria Hospital, Bengaluru and after post mortem, he has handed over the body to the parents with acknowledgement.
The evidence of P.W.9 is only as to the procedural aspect regarding handover the body after post mortem.
Here in this case, the death is not in dispute, but the manner in which and the circumstances under which the death is occurred is to be scrutinized with proper care and caution.
15. P.W.10-The then Police Inspector of City Market Police Station, Bengaluru has deposed that on 7.07.2017, he received the report from C.W.1 as per Ex.P.5. On the basis of it, he has registered the case in Crime No.131/2017 as to the alleged offence under Section 302 of IPC. He has forwarded the FIR Ex.P.11 to his superior officers. He has further deposed as to deputing his staff to trace the accused. He has visited the spot and conducted mahazar as per Ex.P.6 in the presence of C.Ws.1 to 3. On 8.07.2017, C.W.1 has produced the accused and the arrest procedure has been followed. The accused has given voluntary statement and revealed that he will show the S.C.No.1449/2017 14 rope used for committing the murder of deceased Mahalakshmi. The relevant portion of the voluntary statement is marked as Ex.P.12. Further, the mahazar is conducted to seize the rope as per Ex.P.8. But, there is an inordinate delay in following these procedure of seizure of rope as well as arrest of the accused. The delay has not been properly explained. Therefore, the evidence of this witness is leading to doubt. The independent witnesses have not stated that the rope was available in the spot. It is not recovered on the date of death of the deceased. It is also admitted in the cross examination of P.W.10 that he has not seized the rope on the date of mahazar. It is stated that the accused brought a plastic rope from the footpath lady vendor by paying Rs.50/-, but the lady vendor is not available. Hence, her evidence is not forthcoming on record. The evidence of P.W.10 is not corroborated with the testimony of any neighbouring person or public, who have noticed carrying of plastic rope by the accused on the eventful day. The mahazar is not conducted on the date of arrest of the accused. Therefore, there is quite contradictory version forthcoming from the testimony of P.W.1 and to that of independent witnesses and mahazar witnesses.
16. P.W.11-Doctor has deposed that on 29.06.2017, he S.C.No.1449/2017 15 received a requisition from PSI of City Market Police Station, Bengaluru to conduct the autopsy of the deceased Mahalakshmi. On examination, the dead body is that of a female measuring 158 cms., in length moderately built and obese. Early signs of decomposition present, pretechiae present in the conjunctiva and blood stained fluid in the nostrils. He found ligature mark horizontally placed over the neck measuring 42 X 1 complainant above the level of thyroid cartilage and it is situated 6 cms., below the right ear lobule, 6 cms, below the chin, 6 cms., below the left ear lobule and 2.6 cms., elow the hairline at the back. The skin over ligature mark is hard and parchmentised on right side of the neck. The ligature mark is in two rows with the gap of 3 cms. A contusion measuring 3 X 4 cms., is present on the right side of the neck. The ligature material is not provided by the concerned police at the time of autopsy. After post mortem examination, he has given the Report as per Ex.P.4.
He has further deposed that on 27.07.2017, the police given a plastic rope along with requisition for examination and given the opinion. It is a green plastic rope measuring 205 cms., and circumstances is 1.2 cms. He has given the opinion as per Ex.P.15 that the injuries found on the neck of deceased Mahalakshmi as described in Ex.P.4- P.M.Report could be caused by the type of ligature material S.C.No.1449/2017 16 examined. Thereafter, he has returned the said material object to the concerned police.
In the cross examination, it is admitted that the Doctor has not mentioned the ligature material, as it was not provided at the time of autopsy. The ligature strangulation and ligature could be homicidal or suicidal or accidental. Therefore, it is burden on the prosecution to prove the strangulation by force has caused the death of the deceased. Unless such evidence is forthcoming in the prosecution case, it is difficult to hold that the accused has committed the murder. It is also admitted by P.W.11 in the cross examination that he has not found any fiber particulars in dissection mark, even though the plastic rope is made up of some kind of fiber. It is also admitted that he will give the cause of death, but not the manner of death in P.M.Report. It is also admitted that he has not mentioned the time of strangulation and time of death. Therefore, the evidence of the Doctor is only revealing the death and cause for the death that is not at all disputed in this case. In the further cross examination, this witness has admitted that he has not mentioned about the the history of deceased regarding the health. In the partial hanging, if the body is on the floor, the partial ligature mark could be caused. There is ancestry of injury in the P.M.Report also. The quarrel between the accused and deceased is not evident S.C.No.1449/2017 17 soon before her death.
17. P.W.12-Official witness has deposed that while he was on duty, the Police Inspector directed him to forward the FIR-Ex.P.11 in Crime No.131/2017 for the offence under Section 302 of IPC and the complaint Ex.P.1 to the concerned court. This procedural aspect is not disputed in this case.
18. P.W.15-Police Inspector has deposed that he took up further investigation from C.W.18 and scrutinized the records. On 27.07.2017, he has examined the plastic rope M.O.1 and sent the same to the Doctor of Victoria Hospital, Bengaluru for opinion. The requisition is also marked as per Ex.P.14 for gave the opinion as per Ex.P.15. On 26.07.2017, he has given a requisition to the Assistant Executive Engineer, P.W.D., to prepare the rough sketch of the place of incident. On 31.08.2017, he has given another requisition to the Assistant Executive Engineer, PWD to prepare the rough sketch of the place of incident, which is marked as Ex.P.19. The rough sketch is marked as Ex.P.21.
In the cross examination, it is admitted that according to the sketch Ex.P.21, the place of crime is at II Floor. But, S.C.No.1449/2017 18 according to the mahzar and other evidence of official witnesses P.W.13, the place of incident is III floor. Therefore, there is vital contradiction, which is affecting the proof of prosecution case as to the proof of place of incident of murder and tracing the body. Therefore, the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. The official testimony is not inspiring confidence to rely upon in proof of the prosecution case in the absence of authenticated independent witnesses and residents/inmates of the house.
19. Even the PWD Engineer, who has prepared the rough sketch has not been examined in this case so as to prove the place of incident and recovery of the body. There is no ocular evidence is forthcoming from the reliable witnesses. The premeditation and preparation and with an intention to cause the death of her sister, the accused resorted to strangulate her to death is not proved with the cogent reliable, consistent and correlative evidence. The protest made by the deceased while act of force to strangulate is not forthcoming in the evidence of any eye witnesses or circumstantial witnesses.
20. It is not proved that the trivial aspect of not allowing the accused to work or got married leading to commission S.C.No.1449/2017 19 of heinous nature of offence that too on his own sister is not evident. It is not revealed in evidence that the accused gone such an extremity in view of prevention of his work and forced him to look after her by the deceased.
21. Even administering of any stupefying object is revealed in autopsy as the P.M.Report reveals that the abdomen organs are normal and no peculiar substance traced. On considering the cumulative effect of the evidence, the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. The intention and perpetration of the offence with an ulterior motive to take away the life of the sister of accused is not evident. The omissions, contradictions and inconsistencies in the evidence of prosecution witnesses is to be conferred in favour of the accused. The official testimony by itself is not sufficient to prove the guilt of the accused when there is contradictory hostile testimony of the independent witnesses including that of mahazar witnesses.
22. It is also pertinent to note that the deceased was suffering from mental disability and mental retardation and under such circumstances, the burden is heavily cast upon the prosecution to prove that the strangulation or injuries found on the neck as to ligature mark has been caused by S.C.No.1449/2017 20 some other person other than the victim. The prosecution has miserably failed to prove that the accused had committed the murder in pursuance of ill-treatment given by his sister. The earlier incident of quarrel and act and omissions of the deceased leading the accused to commit the murder of his own sister is not evident on record. The complaint lodged against the accused as to ill-treatment and harassment given to the deceased soon before her death is not evident. Even the father of deceased has not imputed the act of the accused in the commission of alleged offence. Therefore, the prosecution has miserably failed to establish the crime committed by the accused with conscious and with an ulterior motive. Hence, the benefit of doubt is to be conferred in favour of the accused. Accordingly, I answer the Point No.1 in the Negative.
23. POINT No.3 : My finding on this point is as per the following :
OR D E R Acting under Section 235(1) of Cr.P.C., accused is acquitted for the alleged offence punishable under Section 302 of IPC.
The bail bond and surety bond of the accused stands cancelled, subject to appeal/appeal period.
S.C.No.1449/2017 21 M.O.1-Plastic Rope being worthless, is ordered to be destroyed, after the appeal period is over. (Dictated to the Judgment-writer, transcript thereof is corrected and then pronounced by me in the open court on this the 11th day of February 2020) ( K.SUBRAMANYA ) LXVII Addl.City Civil and Sessions Judge, BENGALURU.
A N NE X U R E
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION :
P.W.1 Channegowda
P.W.2 P.Kumar
P.W.3 Mahendra
P.W.4 Lakshminarayana
P.W.5 Premkumar
P.W.6 S.Anantharaj
P.W.7 K.V.Mohan
P.W.8 Prabhakarachari
P.W.9 Vishakantaiah
P.W.10 Jagadish
P.W.11 Dr.Geraldin Sanjay
P.W.12 Chandra D.M.
P.W.13 Nanjundappa
P.W.14 Suraj Kumar
P.W.15 Maruthi
2. LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 Complaint
Ex.P.1(a) Signature of the complainant/P.W.13
Ex.P.1(b) Signature of P.W.1
Ex.P.2 Complaint in UDR No.27/2017
Ex.P.2(a) Signature of P.W.1
S.C.No.1449/2017
22
Ex.P.3 Inquest Mahazar
Ex.P.3(a) Signature of P.W.1
Ex.P.3(b) Signature of P.W.6
Ex.P.4 P.M.Report
Ex.P.4(a) Signature of P.W.1
Ex.P.4(b) Signature of P.W.11
Ex.P.5 Report
Ex.P.5(a) Signature of P.W.1
Ex.P.5(b) Signature of P.W.10
Ex.P.6 Spot Mahazar
Ex.P.6(a) Signature of P.W.1
Ex.P.6(b) Signature of P.W.2
Ex.P.6(c) Signature of P.W.3
Ex.P.6(d) Signature of P.W.10
Ex.P.7 Report
Ex.P.7(a) Signature of P.W.1
Ex.P.7(b) Signature of P.W.10
Ex.P.8 Mahazar
Ex.P.8(a) Signature of P.W.4
Ex.P.8(b) Signature of P.W.5
Ex.P.8(c) Signature of P.W.10
Ex.P.9 Statement of P.W.7
Ex.P.10 Statement of P.W.8
Ex.P.11 F.I.R.
Ex.P.11(a) Signature of P.W.10
Ex.P.12 Voluntary statement of accused (Relevant
portion)
Ex.P.12(a) Signature of accused
Ex.P.12(b) Signature of P.W.10
Ex.P.13 Property Form
Ex.P.13(a) Signature of P.W.10
Ex.P.14 Requisition
Ex.P.14(a) Signature of P.W.11
Ex.P.14(b) Signature of P.W.15
Ex.P.15 Opinion
Ex.P.15(a) Signature of P.W.11
Ex.P.15(b) Signature of P.W.15
S.C.No.1449/2017
23
Ex.P.16 Sample Seal
Ex.P.16(a) Signature of P.W.11
Ex.P.17 Statement of P.W.13
Ex.P.18 Statement of P.W.14
Ex.P.19 Requisition
Ex.P.19(a) Signature of P.W.15
Ex.P.20 Rough Sketch
Ex.P.20(a) Signature of P.W.15
Ex.P.21 Rough Sketch
3. LIST OF MATERIAL OBJECTS PRODUCED AND GOT MARKED FOR PROSECUTION :
M.O.1 Plastic Rope
4. LIST OF WITNESSES EXAMINED & DOCUMENTS EXHIBITED FOR ACCUSED :
- NIL -
( K.SUBRAMANYA ) LXVII Addl.City Civil and Sessions Judge, BENGALURU.