Bangalore District Court
State By High Ground Police Station vs C.Dhanraj on 23 April, 2018
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this 23rd day of April, 2018
-: P R E S E N T :-
Sri. MADHUSUDHAN B.,
B.Com, LL.B (Spl.).,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.761/2014
COMPLAINANT:- State by High Ground Police Station,
Bengaluru.
-Vs-
ACCUSED: C.Dhanraj,
S/o. Chikkanarasimhaiah,
Aged about 44 years,
R/at.No.77, Pipeline Road,
Magadi Road, Byadarahalli,
Bengaluru.
1. Date of commission of offence : 20.3.2014
2. Date of report of offence : 20.3.2014
3. Date of arrest of the Accused : 20.3.2014
4. Name of the complainant : Subramani
5. Date of recording evidence : 8.2.2016
6. Date of closing evidence : 1.1.2018
7. Offences complained of : U/Sec.302 of IPC.
2 S.C.No.761/2014
8. Opinion of the Judge : Accused found not guilty
9. State represented by : Public Prosecutor
10. Accused defended by : Sri. C.H.Hanumantharayappa
Advocate.
JUDGMENT
Police Inspector of High Ground police station, Bengaluru submitted charge sheet against accused, for trial of offence punishable U/s.302 of I.P.C., in Cr.No.86/2014 of High Ground Police Station.
2. Brief facts of prosecution case may be stated as under;
High Ground police have registered a case against accused in Cr.No.86/2014 alleging commission of offence punishable U/s.302 of I.P.C., on the report submitted by Head Constable of High Ground Traffic Police Station, Bengaluru by name Subramani.
3. Facts contained in the report are that, on 20.3.2014 in between 7.00 a.m. and 2.00 p.m., informant by name Subramani, who was serving as Head Constable in High Ground 3 S.C.No.761/2014 Traffic Police Station, Bengaluru city was deputed to perform traffic control duty at Trilight Point Circle situated at Race Course Road, Bengaluru. Just abutting to Race Course Road, Bengaluru Turf Club, Race Course is situated. On that day one Race was to commence at noon. Therefore, public and even officials of Race Course Club were proceeding inside Turf Club. It was about 1.30 p.m. when informant Subramani was performing his traffic control duty, public in large number were assembled in between 3rd and 4th Gate of Turf Club. Therefore, informant went near the place, where public assembled and noticed that, one person wearing blue pant and blue with white checks half shirt was stabbing with a knife on chest of a lady, wearing white chudidhar. When public saw informant, they started to shout by saying as "police, police", which is over heard by the person, who was stabbing. Thus, assailant tried to escape by throwing knife on the spot. But public, who assembled there caught hold him and started to assault with their hands. Therefore, informant/Subramani in order to rescue him, took him near High Ground Traffic Police Station, where police inspector by name Naveen Kumar was conducting role call to depute police officials 4 S.C.No.761/2014 to perform their duties from 2.00 p.m. onwards. Informant produced assailant before police inspector/Naveen Kumar, at that time, another Head Constable of High Ground Traffic Police Station was also present. Assailant possessed his Driving Licence, I.D.Card containing his photo issued by Karnataka Television Association, contents of which were perused by Naveen Kumar/Police Inspector and confirmed the name of assailant as 'Dhanraj' with his full address. Victim/Sunitha, who is employee of Race Course Club, was taken to Mallige Medical Centre Hospital in an Ambulance, but succumbed to injuries, while on the way to hospital. Police Inspector/Naveen Kumar directed informant to lodge report/complaint with High Ground Police station. Thus, informant went to High Ground police station, where he lodged a report, on the basis of which, Police Inspector of High Ground police station registered a case in Cr.No.86/2014 alleging commission of offence punishable U/s.302 of I.P.C., indicating this accused as assailant.
4. Thereafter, Police Inspector/Naveen Kumar took accused to High Ground police station in an official Jeep and 5 S.C.No.761/2014 produced him before Police Inspector of High Ground Police station, who took this accused in his custody and on search, he noticed that, accused possessed his Driving Licence, I.D. Card issued by Karnataka Television Association. After registration of the crime, accused was detained in police station. On the same day in between 5.30 p.m. and 7.10 p.m. spot mahazar is conducted in the presence of panch witness, during which sample of soil/mud, bloodstained soil/mud and one knife were seized from the spot of incident. Further, on the same day, in between 2.20 p.m. and 2.50 p.m., police inspector also conducted seizure mahazar for having seized ATM card, one I.D.Card containing his photo issued by Karnataka Television Association, Driving Licence, bloodstained shirt from the possession of accused. On the same day, dead body was transported to Bowring Hospital, where Inquest Mahazar is also conducted. Doctor at Bowring Hospital conducted Autopsy. During custodial interrogations, accused disclosed that, he purchased one knife from the shop of Pw.19. On 20.3.2014, accused was detained in the police station. On 21.3.2014, accused was produced before Learned Magistrate with remand application with requisition for committing accused 6 S.C.No.761/2014 into police custody. Learned Magistrate committed accused to police custody for one day. On 21.3.2014, on the basis of voluntary statement of accused, Investigating Officer took accused to the shop of Pw.19/Mohammed Ifran, where he recorded statement of Pw.19. On 22.3.2014, accused was re- produced before Learned Magistrate, who remanded him to judicial custody. Meanwhile, Investigating Officer recorded statements of witnesses and secured P.M.Report, F.S.L., Report and sketch map prepared by Assistant Executive Engineer. After completion of investigation, charge sheet is laid.
5. Learned Magistrate took cognizance of the offence and passed orders for registration of one criminal case against accused in C.C.No.15597/2014. On 11.7.2014 Learned Magistrate passed orders for committal of this case to the court of Sessions, since offence alleged against accused is triable exclusively by the court of Sessions. After committal, case is re-registered as S.C.No.761/2014. After hearing, charge against accused framed, which he denied, hence, claims to be tried.
6. In order to bring home the guilt of accused, prosecution in altogether cited 41 witnesses, among them 33 7 S.C.No.761/2014 witnesses are examined as Pw.1 to Pw.33. During course of trial prosecution got exhibited 29 documents marked at Ex.P.1 to P.29 and got identified 10 material objects at Mo.1 to 10.
7. On completion of the evidence of prosecution side, this court examined accused as required U/s. 313 of Cr.P.C., and recorded his statement by giving an opportunity for explaining incriminating circumstances appearing in the evidence of the prosecution. Defence of accused is one of total denial of prosecution case. Though accused has not led defence evidence, but , during trial, defence got exhibited one document marked at Ex.D.1.
8. I have heard arguments.
9. Following are points that have arisen for my consideration:
1. Whether prosecution proves beyond reasonable doubt that, death of S.Sunitha is homicide?
2. Whether prosecution proves beyond reasonable doubt that, accused committed offence punishable U/s.302 of I.P.C., as alleged in the charge sheet?
3. To what Order ?8 S.C.No.761/2014
10. My findings on the above points are as under:
Point No.1 : In Affirmative
Point No.2 : In Negative
Point No.3 : As per final order
for the following:
REASONS
11. POINTS NO.1:- In order to prove offence of
murder, prosecution is expected to prove that, death of Sunitha is homicide. In order ascertain whether death of Sunitha is homicide or suicide or otherwise, I have gone through the material collected by Investigating Officer, during investigation and the evidence of doctor, who conducted autopsy, since in ascertaining cause of death, evidence of doctor is not only relevant but very significant. In this connection ,I have gone through the contents of Ex.P.29 with contents of Ex.P.2, which are P.M.Report and Inquest Mahazar, respectively. As per the opinion of doctor, cause of death is due to shock and hemorrhage, consequent upon stab wounds sustained to chest and abdomen. Further, on going through the contents of Ex.P.29/P.M.Report, it is clear that, doctor has indicated detail stab injuries, which are as under;
9 S.C.No.761/2014
1. Stab wound, over left chest measuring 4 x 1 cm placed 9 cm left midline 2cm above left nipple, oblique, upper outer sharp, lower blood x 4.5 cms muscle and subcutaneous tissue towards right side sternal fossa depth of 6.5 cms.
2. Stab wound, left chest measuring 4.5 x 1.5 cms x cavity deep placed obliquely and 0.5 cm above left nipple cutting costal cartilage IV, on which if measures 3 cms x 1 cm upper outer sharp lower inner blunt for a depth of 4 cms.
3. Stab wound, left chest 0.5 cm below left nipple oblique measuring 6 cm x 1 cm x cavity deep, another slab wound placed 0.5 cm midcavity the mentioned injury, measuring 7 cms x 4 cms rocking stab wounds upper sharp lower blunt both have cut costal cartilage V th cutting measuring 6.5 cm x 0.5 cms with extended to pericardium has cut liver which shows incised wound of 4 cms x 0.5 cm x 1 cm deep, directed inwards, 10 S.C.No.761/2014 right side for depth of 5 cms.
4. Stab wound measuring 6cms x 2 cms horizontally placed medium sharp outer blunt placed 3cms left midline and 2cms below the leval of left nipple x cavity deep.
5. Stab wound measuring 2.5 cms x 0.5 cm placed 0.5 cm midline and 8 cms below the level of left nipple inner sharp outer blunt horizontally placed 2.5 cms muscle plane x abdominal cavity deep of 3.5 cms.
6. Stab wound measuring 5.5 cms x 3 cms x abdominal cavity deep placed 5 cms left of midline 1 cms below left nipple oblique placed upper medial blunt lower outer sharp x cavity deep.
7. Stab wound measuring 3.5 cms x 1 cm x cavity deep seen over left chest placed 12 cms midline 12 cm below nipple obliquely placed upper outer blunt inner lower sharp.
8. Stab wound measuring 3.5 cms x 2 cms left side chest placed 6 cms from midline 5 11 S.C.No.761/2014 cm below left nipple x muscle plane for depth of 3 cms upper medial blunt lower outer sharp.
9. Stab wound measuring 10.5 cms x 4 cms obliquely placed with Rocking incised over its upper middle x cavity deep medial and mid wound are sharp.
10. Stab wound vertically placed right arm measuring 3 cms x 1.5 cms x 2 cms muscle plane. Placed 2 cms above elbow joint. Upper sharp lower blood.
11. Stab incised wound Right Forearm outer and blunt placed 10 cms below elbow measuring 8 cms x 3 cms x muscle deep.
12. Stab wound Left Forearm measuring 4cms x 1 cm x 3cms deep. Outer sharp in the blunt placed 5 cms below elbow.
13. Stab wound left Forearm outer measuring 4.5 cms x 2 cms x 2.5 cms muscle deep placed 8 cms below elbow outer lower sharp.
14. Stab wound left Forearm oblique measuring 4.5 cms 12 S.C.No.761/2014 x 2 cms x 2.5 cms x 3 cms muscle deep placed 6 cms previous injury, upper outer sharp.
15. Incised wound (Rocking stab wound) measuring 10.5 cms x 3.5 cms x 3.5 cms muscle deep placed 10 cms above wrist joint.
16. Incised wound measuring 6.5 cms x 2 cms back of Fore arm placed 12 cms below elbow.
17. Stab wound Rocking star shaped outer forearm measuring 4.5 cms x 3.5 cms x 3.5 cms muscle plane outer upper and inner ends are sharp.
18. Incised wound left wrist outer measuring 4.5 cms x 2.5 cms x 0.5 cm deep and muscle deep.
19. Incised wound left outer hand measuring 4 cms x 1 cm x muscle deep (1 cm).
12. Even during course of evidence of Pw.33/Doctor, he has re-iterated almost all injuries in his evidence and also opined that, death of Sunitha is due to shock and hemorrhage, consequent upon stab wounds. Further, Pw.33 opined that, 13 S.C.No.761/2014 such injuries as indicated in P.M.Report are likely to be caused if a person has been assaulted with Mo.5/Knife. Autopsy is conducted on the date of her death. Thus, considering the nature of the injuries and total number of injuries, which she sustained, it can be inferred that, death of Sunitha is homicidal and more over, though defence of accused is total denial of prosecution case, but he never disputed the injuries, which are indicated in P.M.Report. Further, more no where it is suggested by defence that, she died because of suicide or her death is due to accident. Considering the content sof P.M.Report, and evidence of Pw.33/doctor, this court is of the opinion that, death of Sunitha is homicidal. Accordingly, I answer point No.1 in Affirmative.
13. POINT NO.2:- During course of arguments, learned Public Prosecutor vehemently argued contending that, version of Pw.1 clearly discloses that, it is this accused, who attacked deceased/S.Sunitha and assaulted with knife, due to which she suffered serious stab injuries on her body, as a result of which, she died while on the way to hospital. He also argued contending that, merely because Pw.1 happens to be the police 14 S.C.No.761/2014 official, his evidence cannot be brushed it aside, as he is not only informant but also eye witness to the scene of incident. He also argued contending that, Pw.1 is not having any ill will against accused, so as to infer that, he has deposed falsity before the court. He further submitted that, Pw.1 clearly identified this accused, as real assailant and presence Pw.1 near the spot of incident is most natural. Hence, he insisted this court to believe his version, which is free from all doubts. He also argued contending that, even Investigating Officer conducted detail investigation, during which, it is revealed that, it is this accused, who committed murder of S.Sunitha. He further, submitted that, merely because other eyewitnesses turned hostile, this circumstance is not ground to acquittal of accused. Hence, prayed for recording conviction.
14. Per contra, learned advocate appearing for accused also vehemently argued contending that, entire case of the prosecution is based on evidence of Pw.1, who claims to be the eyewitness. He also argued contending that, version of Pw.1 cannot be believed or accepted, since his version is unworthiness 15 S.C.No.761/2014 of credence. Version of Pw.1 cannot be accepted, since there are many contradictions and improvement, during trial, which does not deserves to be considered. He also argued contending that, Pw.1 is not author of Ex.P.1, on the other hand, police inspector of High Ground Traffic police station is the author of Ex.P.1. But Pw.1 at the instance of Inspector of High Ground Traffic police station, subscribed his signature on Ex.P.1. He further submitted that, Pw.1 has not seen the assailant, who inflicted stab injuries on deceased-S.Sunitha. He submitted that, his version is not free from suspicion and case projected against accused suffers from improbabilities. He also argued contending that, though prosecution cited other witnesses as eyewitnesses to the scene of incident, but none of them have supported prosecution version. He further submitted that, no procedure is adopted by Investigating Officer before or soon after arrest of this accused, which clearly indicates that, this accused has been falsely implicated. In this connection, he has drawn my attention to evidence of Investigating Officer. He further, submitted that, Pw.1 is planted witness as presence of Pw.1 near Trilight Circle is highly improbable to believe, as prosecution failed to prove that, 16 S.C.No.761/2014 Pw.1 was deputed to perform traffic control duty at Trilight Circle, on that day. Therefore, with these among other grounds, he insisted this court to acquit accused, as prosecution failed to prove guilt of accused beyond reasonable doubt.
15. In support of his submission, he has relied upon the principles laid down in the following decisions;
1. (2012) 4 Supreme Court Cases 722 in case of Govindaraju Alias Govinda V/s. State by Srirampuram police station and another.
2. (2006) 11 Supreme Court Cases 323 in case of Bhimapa Chandappa Hosamani and others V/s. State of Karnataka.
3. AIR 2013 Supreme Court page 3150 in case of Raj Kumar Singh @ Raju Batya V/s. State of Rajasthan.
4. 2004 Crl.L.J. page 22 in case of Badam Singh V/s. State of M.P.
16. On the aspect of arrest of accused also, defence has relied upon decision reported in AIR 1997 Supreme Court page 610 in case of D.K.Basu V/s. State of West Bengal and another decision reported in (2002) 1 Supreme Court Cases 702 in case of Subhash Chand and State of Rajsthan.
17 S.C.No.761/2014
17. Keeping these rival contentions in my mind, I have gone through the material on record.
18. Though it is held that, death of Sunitha is homicidal, but this itself is not suffice to hold that, it is accused, who committed murder of Sunitha. In order to prove the guilt of accused, prosecution is expected to prove the overt act of accused, as alleged in the charge sheet.
19. As already observed, in altogether prosecution examined as many as 33 witnesses. Pw.1/Subramani claims to be not only informant, but also eyewitness to the scene of incident, when alleged incident took place. Pw.1 was serving as Head Constable at High Ground Traffic police station, Bengaluru, when incident took place.
Pw.2/Manjula and Pw.3/Kappanaiah are the panch witnesses for Inquest Mahazar marked at Ex.P.2.
Pw.5/Shankar and Pw.7/Sathyaprasad are the panch witnesses for spot mahazar marked at Ex.P.4.
Pw.11/Somashekhar is panch witness for seizure mahazar marked at Ex.P.5.
18 S.C.No.761/2014
Pw.6/Muktha, Pw.14 to Pw.18, Pw.20 to Pw.28 are the employees of Bengaluru Turf Club and as per case of prosecution are eye witnesses to the scene of incident.
Pw.8/N.Kumar is husband of deceased/Sunitha, while Pw.9/Gangamma and Pw.10/Sannegowda are the mother and father of deceased/Sunitha.
Pw.12/Rajendra is doctor serving at Apollo Hospital, while Pw.13/Nagendra is driver of Ambulance of Apollo Hospital. As per case of prosecution, Sunitha shifted to Mallige Medical Centre in the said Apollo Hospital Ambulance.
Pw.19/Mohammed Irfan is shop owner where accused said to have purchased one knife, identified as Mo.5, with which accused alleged to have committed offence.
Pw.29/N.Naveen Kumar is Police Inspector of High Ground Traffic Police Station, Bengaluru.
Pw.30/Shanta Kumar is doctor serving at Mallige Medical Centre, Bengaluru, who issued Ex.P.23/Death Intimation to the police.
Pw.32/K.N.Rajesh is Assistant Executive Engineer, who drawn Sketch map of spot of incident.
19 S.C.No.761/2014
Pw.33/K.V.Sathive is doctor, who conducted Autopsy at Bowring Hospital.
Pw.31/P.B.Sridhar is Investigating Officer, who conducted entire investigation and submitted charge sheet.
Thus, it is clear that, prosecution examined almost all material witnesses.
Though prosecution projected Pw.6, Pw.14 to Pw.18 and Pw.20 to Pw.28 as eyewitnesses to the scene of incident, but none of them supported prosecution version, except Pw.6. Even Pw.19, who according to the prosecution is owner of shop, where accused alleged to have purchased one knife, also not supported prosecution case. He never states that accused purchased Mo.5/knife from his shop.
Pw.8, Pw.9 and Pw.10 are not eyewitnesses to the scene of incident. Therefore, evidence of husband, mother and father of deceased/Sunitha is not significant in proof of commission of offence by accused.
20. Out of remaining witnesses, except panch witnesses, other material witnesses are Pw.1, Pw.29 and Pw.31, Pw.32 and 20 S.C.No.761/2014 Pw.33, who are police officers, Assistant Executive Engineer and Doctor, who conducted Autopsy. As per case of prosecution, employees of Bengaluru Turf Club, who were projected as eyewitnesses have not supported the case of prosecution, except Pw.6. Therefore, Pw.6 and Pw.1, are the only eye witnesses available for prosecution to prove the alleged act of accused.
21. Before dealing with version of Pw.1, I feel it necessary to analyze evidence of Pw.6, who according to the case of prosecution is eye witness to the scene of incident. I have gone through her version. In her examination-in-chief, she states that, on 20.3.2014 at about 1.30 a.m., incident occurred near Gate No.3 of Turf Club. She also stated that, on that day, she came from Shivananda Circle, and when she was near the spot of incident, she has seen accused/Dhanraj, who attacked deceased-Sunitha and stabbed on her body with knife. She also stated that, she had seen the incident at a distance of about 40 feet. She also stated that, public assembled there and police officials have caught hold Dhanraj and were assaulting him. She also stated that, injured-Sunitha was taken to Mallige Medical Centre in an ambulance. She also states that, later on she came 21 S.C.No.761/2014 to know that, Sunitha succumbed to injuries. In her evidence she also identified this accused, as assailant. But if I scrutinize her cross-examination, it appears that, she has given complete go by to the case of prosecution. Though in her examination-in-chief, she states that, she has given statement before police. But during course of her cross-examination, she has stated facts, which are contrary to her statement, as stated in her examination-in-chief. In her cross-examination, she has clearly admitted that, material facts, which she has deposed in her examination-in-chief have not been stated in her statement before Investigating Officer, during investigation. Thus, I feel it necessary to re-produce cross- examination of Pw.6, which reads as under;
"£Á£ÀÄ ¢£ÁAPÀ B 20-03-2014 gÀAzÀÄ ¸ÀĪÀiÁgÀÄ ªÀÄzsÁåºÀß 1-30 gÀ ¸ÀªÀÄAiÀÄzÀ°è UÉÃl £ÀA-3 £ÉÃzÀÝgÀ PÀA¥ËAqÀ §½ WÀl£ÉAiÀiÁVvÀÄÛ J£ÀÄߪÀ «ZÁgÀªÀ£ÀÄß ¥ÉÇðøïgÀ ªÀÄÄAzÉ ºÉýgÀĪÀÅ¢®è. D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ²ªÁ£ÀAzÀ ¸ÀPÀð¯ï PÀqɬÄAzÀ ¨ÉAUÀ¼ÀÆgÀÄ l¥Àð PÀè¨ï §½ §gÀÄwÛgÀĪÁUÉÎ DgÉÆæ-zÀs£ÀgÁd MAzÀÄ ZÁPÀÄ«¤AzÀ ¸ÀĤvÁ½UÉ 22 S.C.No.761/2014 ZÀÄZÀÄÑwÛzÀÝ CAvÁ ºÉýPÉÆAqÀÄ ¥ÉÇðøïgÀ ªÀÄÄAzÉ ºÉýgÀĪÀÅ¢®è. ¸ÀzÀj WÀl£ÉAiÀÄ£ÀÄß £Á£ÀÄ ¸ÀĪÀiÁgÀÄ 40 CrUÀ¼À CAvÀgÀ¢AzÀ £ÉÆÃrzÉÝ ªÀÄvÀÄÛ ¸ÀzÀj ¸ÀܼÀPÉÌ ºÉÆÃV £ÉÆÃqÀ¯ÁV DgÉÆæ-zÀs£ÀgÁd¤UÉ £ÉgÉzÀ d£À ªÀÄvÀÄÛ ¥ÉÇðøïgÀÄ ºÉÆqÉAiÀÄÄwÛzÀÝgÀÄ J£ÀÄߪÀ «µÀAiÀĪÀ£ÀÄß £Á£ÀÄ ¥ÉÇðøïgÀ ªÀÄÄAzÉ ¤ÃrzÀ £À£Àß ºÉýPÉAiÀÄ°è ºÉýgÀĪÀÅ¢®è.
¸ÀĤvÁ¼À£ÀÄß ªÀÄ°èUÉ ªÉÄrPÀ¯ï ¸ÉAlgïUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀgÀÄ ªÀÄvÀÄÛ ¸Àé®à ¸ÀªÀÄAiÀÄzÀ £ÀAvÀgÀ CªÀ¼ÀÄ ªÀÄÈvÀ¥ÀlÖ¼ÀÄ J£ÀÄߪÀ «µÀAiÀĪÀ£ÀÄß £Á£ÀÄ ¥ÉÇðøïgÀ ªÀÄÄAzÉ ¤ÃrzÀ £À£Àß ºÉýPÉAiÀÄ°è ºÉýgÀĪÀÅ¢®è."
In her further cross-examination, she states as under;
"D ¢£À ªÀÄzsÁåºÀß 1-45 gÀ ¸ÀªÀÄAiÀÄzÀ°è ¸ÀĤvÁ ªÀÄÈvÀ¥ÀlÖ «ZÁgÀ £À£UÀ É M§â ªÀåQÛ¬ÄAzÀ UÉÆvÁÛ¬ÄvÀÄ. CA§Äå¯É£Àì ¸ÀzÀj ¸ÀܼÀ¢AzÀ ºÉÆÃzÀ £ÀAvÀgÀ £Á£ÀÄ ¸ÀܼÀPÉÌ ºÉÆÃzÁUÉÎ ¸ÀĤvÁ ªÀÄÈvÀ¥ÀlÖ «ZÁgÀ M§â ªÀåQÛ¬ÄAzÀ w½¬ÄvÀÄ. £Á£ÀÄ 23 S.C.No.761/2014 ¥ÉÇðøïgÀ ªÀÄÄAzÉ, DgÉÆæ- zÀs£ÀgÁd£À£ÀÄß £Á£ÀÄ £ÉÆÃrgÀÄvÉÃÛ £É CAvÁ ºÉýgÀĪÀÅ¢®è."
Therefore, if versions of Pw.6 as re-produced above is considered with her examination-in-chief, it appears that, material facts as stated before court has not been stated by her during investigation before Investigating Officer. Thus, say of Pw.6 that, she has seen accused as assailant on that day, appears to be material improvement, during trial, which cannot be considered. Under these circumstances, I have not placed any reliance on her version.
22. Thus, only witness available for prosecution is Pw.1, who as per the case of prosecution not only informant, but also eyewitness. But it is specific defence of the accused that, Pw.1 neither informant nor seen the incident, which occurred on that day. It is also defence of accused that, on that day, Pw.1 never performed his duty of controlling traffic at Trilight Circle, in which case, I feel it necessary to ascertain the evidence on record to find out whether prosecution could able to prove that, on that 24 S.C.No.761/2014 day, Pw.1 was really deputed at Trilight Circle to perform his duties between 7.00 a.m. and 2.00 p.m. Before analyzing evidence of Pw.1 on the aspect of attack of assailant on deceased with knife, I will have to scrutinize his version with reference to his deputation to perform his duty at Trilight Circle. Prosecution has to prove that, Pw.1 served his duties at Trilight Circle and only thereafter, his evidence so for as scene of incident can be appreciated. In this regard, I have gone through the version of Pw.1. In his examination-in-chief, he states that, on 20.3.2014, he was directed to perform his duty at Trilight Circle and performed his duties on that day, till 1.30 p.m. Relevant portion of cross-examination of Pw.1, reads thus;
"D ¢£À ¨É½UÉÎ 7-00 UÀAmɬÄAzÀ ªÀÄzsÁåºÀß 2-00 UÀAmÉAiÀĪÀgÉUÉ ¸ÀAZÁj ¤ªÀðºÀuÁ PÀvÀðªÀå ¤ªÀð»¸À®Ä £À£ÀߣÀÄß ¤AiÉÆÃf¸À¯ÁVvÀÄÛ. D ¢£À £Á£ÀÄ ¸ÀzÀj PÀvÀðªÀå ¤ªÀð»¹zÀ §UÉÎ £ÀªÀÄä oÁuÁ ¢£ÀªÀ» ¥ÀŸÀPÛ ÀzÀ°è £ÀªÀÄÆ¢¸ÀÄvÁÛgÉ. DzÀgÉ £ÀªÀÄä oÁuÁ¢üPÁj D ¢£À £Á£ÀÄ PÀvÀðªÀå ¤ªÀð»¹zÀÝ §UÉÎ oÁuÁ ¢£ÀZÀjAiÀÄ°è 25 S.C.No.761/2014 §gÉ¢zÀÝgÉÆà CxÀªÁ E®èªÉÇà CAvÁ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è."
In his further cross-examination he deposed as under;
"¥ÉÇÃ°Ã¸ï ªÀÄÁå£ÀĪÀ¯ï £ÀªÀÄÆ£Á £ÀA-80 gÀ £ÉÆÃmï§ÄPï£ÀÄß £À£ÀUÉ ¤ÃrgÀ°®è. »ÃUÁV WÀl£ÉAiÀiÁzÀ ¸ÀAUÀwAiÀÄ£ÀÄß ¸ÀzÀj £ÉÆÃmï§ÄPï£À°è §gÉAiÀÄĪÀ ¥Àæ¸ÀAUÀ §A¢gÀ°®è. D ¢£À £À£Àß §½ £ÀªÀÄÆ£Á £ÀA-80 gÀ £ÉÆÃmï§ÄPï EvÀÄÛ DzÀgÉ D ¢£À £ÀqÉzÀ WÀl£ÉAiÀÄ£ÀÄß £Á£ÀÄ ¸ÀzÀj £ÉÆÃmï§ÄPï£À°è £ÀªÀÄÆ¢¹gÀ°®è »ÃUÁV £ÀªÀÄÆ£Á £ÀA-80 gÀ £ÉÆÃmï§ÄPï£ÀÄß £À£ÀUÉ ¤ÃrgÀ°®è CAvÁ ¸ÀļÀÄî ¸ÁQë £ÀÄrAiÀÄÄwÛzÉÃÝ £ÀAzÀgÉ ¸ÀjAiÀÄ®è. DzÀgÉ £Á£ÀÄ £À£ÀßzÉà DzÀ MAzÀÄ ¸ÀéAvÀ CAzÀgÉ ¥À¸Àð£À¯ï £ÉÆÃmï§ÄPï CAzÀgÉ ¥À¸Àð£À¯ï qÉÊj ºÉÆA¢gÀÄvÉÃÛ £É. ¢£ÁAPÀB 20-03-2014 gÀAzÀÄ £Á£ÀÄ ¤ªÀð»¹zÀ PÀvðÀ ªÀåªÀ£ÀÄß ¥À¸Àð£À¯ï qÉÊjAiÀÄ°è £ÀªÀÄÆ¢¹gÀÄvÉÛãÉ. ¸ÀzÀj ¥À¸Àð£À¯ï qÉÊjAiÀÄ°è D ¢£À ªÀÄzsÁåºÀß 1-30 gÀ ¸ÀªÀÄAiÀÄzÀ°è DzÀ WÀl£É §UÉÎ 26 S.C.No.761/2014 §gÉzÀÄPÉÆArgÀĪÀÅ¢®è. D £À£Àß ¥À¸Àð£À¯ï qÉÊjAiÀÄ°è £Á£ÀÄ ¥Àæw¤vÀå ¤ªÀð»¹zÀ PÀvðÀ ªÀåªÀ£ÀÄß £ÀªÀÄÆzÀÄ ªÀiÁrPÉÆArgÀÄvÉÃÛ £É. D ¥À¸Àð£À¯ï qÉÊjAiÀÄ£ÀÄß F ¢£À £Á£ÀÄ £À£ÉÆßA¢UÉ £ÁåAiÀiÁ®AiÀÄPÉÌ vÀA¢gÀÄvÉÛãÉ."
If these portions of cross-examination of Pw.1 is considered, it is very much clear that, there is no any documentary proof that, Pw.1 performed his duties on 20.3.2014 in between 7.00 a.m. and 1.30 p.m. Though Pw.1 in his cross- examination stated that, he has maintained personal dairy in which he has recorded the incident, which took place on that day. If really, Pw.1 has mentioned fact of incident which occurred on that day, in his dairy, nothing prevented Pw.1 to produce his personal dairy, even during course of recording his cross-examination. Though he states that, on that day, he appeared before court with his personal dairy, but he has not given any explanation as to why he did not produce his personal dairy, even during trial. No any explanation is rendered by Pw.1 for not submitting or producing his personal dairy before court 27 S.C.No.761/2014 for its inspection. Thus, it is clear that, on going through the version of Pw.1, no documents from prosecution side to believe that, Pw.1 did performed his duties at Trilight Circle, Bengaluru.
23. It is pertinent to note that, Pw.1 is Head Constable at High Ground police station, when incident took place. Pw.29 was Inspector of High Ground Traffic Police Station, Bengaluru. I have gone through his version with reference to performance of duty or deputation of Pw.1 to Trilight Circle on that day. In this connection, I have gone through the version of Pw.29, who though in his examination-in-chief has stated that, on that day, Pw.1/Subramani was deputed to perform his traffic control duty at Race Course Junction. But during course of his cross- examination, he states as under;
"D ¢£À ¨É¼ÀV£À 'J' ¥Á¼ÉAiÀÄ gÉÆïïPÁ¯ï gÀf¸ÀÖgï£À zÀÈrüÃPÀÈvÀ £ÀPÀ®£ÀÄß vÀ¤SÁ¢üPÁjAiÀĪÀjUÉ ¤ÃrgÀĪÀÅ¢®è, KPÉAzÀgÉ D §UÉÎ vÀ¤SÁ¢üPÁjAiÀĪÀgÀÄ £À£ÀUÉ gÉÆïïPÁ¯ï gÀf¸ÀÖgï£À zÀÈrüÃPÀÈvÀ £ÀPÀ®£ÀÄß MzÀV¸À¨ÉÃPÀÄ CAvÁ PÉýPÉÆArgÀ°®è. MAzÀÄ ªÉÃ¼É 28 S.C.No.761/2014 vÀ¤SÁ¢üPÁj gÉÆïïPÁ¯ï gÀf¸ÀÖgï£À zÀÈrüÃPÀÈvÀ £ÀPÀ®£ÀÄß MzÀV¸À¨ÉÃPÀÄ CAvÁ PÉýPÉÆArzÀgÝ É £Á£ÀÄ CzÀ£ÀÄß MzÀV¸ÀÄwÛzÉÝ."
He also states as under;
"D ¢£À ªÀÄzsÁåºÀßzÀ CAzÀgÉ '©' ¥Á¼ÉAiÀÄ gÉÆïïPÁ¯ï gÀf¸ÀÖgï£À zÀÈrüÃPÀÈvÀ £ÀPÀ®£ÀÄß vÀ¤SÁ¢üPÁj AiÀĪÀjUÉ ¤ÃrgÀĪÀÅ¢®è, KPÉAzÀgÉ D §UÉÎ vÀ¤SÁ¢üPÁjAiÀĪÀgÀÄ £À£UÀ É gÉÆïïPÁ¯ï gÀf¸ÀÖgï£À zÀÈrüÃPÀÈvÀ £ÀPÀ®£ÀÄß MzÀV¸À¨ÉÃPÀÄ CAvÁ PÉýPÉÆArgÀ°®è. MAzÀÄ ªÉÃ¼É vÀ¤SÁ¢üPÁj gÉÆïïPÁ¯ï gÀf¸ÀÖgï£À zÀÈrüÃPÀÈvÀ £ÀPÀ®£ÀÄß MzÀV¸À¨ÉÃPÀÄ CAvÁ PÉýPÉÆArzÀgÝ É £Á£ÀÄ CzÀ£ÀÄß MzÀV¸ÀÄwÛzÉÝ."
In his further cross-examination, he states as under;
"C¸Á-1 gÀªÀgÀÄ vÀ£Àß ¢£ÀZÀjAiÀÄ ¥ÀŸÀPÛ Àª£À ÀÄß £À£ÀUÉ PÉÆnÖgÀĪÀÅ¢®è ªÀÄvÀÄÛ C¸Á-1 gÀªÀgÀÄ D ¢£ÀzÀ PÀvðÀ ªÀå ªÀÄÄVzÀ £ÀAvÀgÀ vÀ£Àß ¢£ÀZÀj ¥ÀŸÀPÛ Àª£À ÀÄß oÁuÁ¢üPÁjAiÀĪÀjUÁUÀ° 29 S.C.No.761/2014 CxÀªÁ oÁuÁ °¦PÀjUÉ ¤ÃrgÀ°®è. C¸Á-1 gÀªÀgÀ ¢£ÀZÀj ¥ÀŸÀPÛ ÀªÀ£ÀÄß £Á£ÀÄ UÀªÀĤ¹gÀĪÀÅ¢®è. D ªÀåQÛAiÀÄ §½ EzÀÝ zÁR¯ÁwUÀ¼À£ÀÄß ¤ÃqÀÄ CAvÁ PÉüÀ¯ÁV D ªÀåQÛ ¤ÃqÀ°®è J£ÀÄߪÀ «µÀAiÀĪÀ£ÀÄß £Á£ÀÄ vÀ¤SÁ¢üPÁjAiÀĪÀgÀ ªÀÄÄAzÉ ºÉýzÀ £À£Àß ºÉýPÉAiÀÄ°è ºÉýgÀĪÀÅ¢®è CAvÁ ºÉüÀĪÀÅzÀÄ ¤d«gÀÄvÀÛzÉ."
If these versions of Pw.29 are considered, it appears that Pw.29 has given some explanation for non-production of Extract of Role Call Register to Investigating Officer, which cannot be accepted or believed. Pw.29 being the police inspector should have provided Extract of Role Call Register to Pw.31, who is Investigating Officer. Therefore, even on going through the version of Pw.29 also, it is very much clear that, except oral evidence, no documentary evidence to believe or to infer that, Pw.1 did his duties at Trilight Circle, on that day, between 7.00 a.m. and 1.30 p.m. 30 S.C.No.761/2014
24. Even a step ahead, if I perused the version of Pw.31 again it creates complete doubt in my mind about truthful ness of version of Pw.1, so for as performance of his duties on that day, at Trilight Circle.
In his examination-in-chief Pw.31 states as under;
"£À£Àß vÀ¤SÁPÁ®zÀ°è C¸Á-1 gÀªÀgÀÄ PÀvðÀ ªÀå ¤ªÀð»¹zÀ §UÉÎ EzÀÝ AiÀiÁªÀÅzÃÉ zÁR¯ÁwUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉƼÀî°®è. C¸Á-1 gÀªÀgÉà £À£ÀUÉ PÀÊvÀå £ÀqÉzÀ §UÉÎ ªÉÆlÖ ªÉÆzÀ® ¨ÁjUÉ ªÀiÁ»w ¤ÃrzÀ ªÀåQÛAiÀiÁVgÀÄvÁÛ£É."
In his further cross-examination Pw.31 states as under;
"£À£Àß vÀ¤SÁPÁ®zÀ°è C¸Á-1 gÀªÀgÀÄ ¢£ÁAPÀB 20-03-2014 gÀAzÀÄ ºÉÊUËæAqïì ¸ÀAZÁj ¥ÉÇðøï oÁuÉAiÀÄ°è PÀvÀðªÀå ¤ªÀð»¹zÀ §UÉÎ ªÀÄvÀÄÛ gÉÆïïPÁ¯ïUÉ ºÁdgÁVzÀÝ §UÉÎ EzÀÝ AiÀiÁªÀÅzÃÉ zÁR¯ÁwAiÀÄ£ÀÄß CAzÀgÉ J¸ï.JZï.r. AiÀÄ JPÁìæÖPïÖ£ÀÄß ¥Àq¢ É gÀĪÀÅ¢®è. £À£Àß vÀ¤SÁPÁ®zÀ°è C¸Á-1 gÀªÀgÀ §½ EzÀÝ CªÀgÀ £ÉÆÃmï§ÄPï£ÀÄß £Á£ÀÄ 31 S.C.No.761/2014 ¥Àj²Ã°¹gÀĪÀÅ¢®è CAvÁ ºÉüÀĪÀÅzÀÄ ¤d«gÀÄvÀÛzÉ."
Therefore, on going through the evidence on record, it is very much clear that, material document in proof of deputation of Pw.1 to perform his traffic control duty, on that day at Trilight Circle has not been produced. Pw.31, who conducted entire investigation ought to have obtained at least Certificate from Pw.29 certifying that, on that day, Pw.1 did performed his duties at Trilight Circle. Non-production of documents in proof of performance of duty of Pw.1 on that day, creates entire doubt in my mind about say of Pw.1 that, he did performed his duties at Trilight Circle. Even court can draw an inference that, if Pw.31 obtained Extract of Role Call Register of both morning as well as noon Role Call Register Extracts, then real truth would have been come out, in which case, contents of such Role Call Register would have gone against the contention of prosecution that, Pw.1 did served as traffic control duty on that day. So in the absence of documentary evidence in proof of performance of duties of Pw.1 on 20.3.2014, at Trilight Circle, it is highly risky to 32 S.C.No.761/2014 place reliance on the testimony of Pw.1, Pw.29, and Pw.31 about performance of duty of Pw.1 on that day, at Trilight Circle.
25. In a trial of this nature of offence, registration of F.I.R., is most significant. As per case of prosecution, alleged incident took place on that day, at about 1.30 p.m. F.I.R., is registered on that day, at 2.15 p.m. Before registration of F.I.R., as per case of prosecution, accused was caught hold by Pw.1 and other public and he was taken to High Ground Traffic police station, where accused has been produced before Pw.29/inspector of police of Traffic police station, which is situated opposite to Bengaluru Turf Club, Race Course premises. In between premises of High Ground Traffic police station, and race course premises, one road proceeding towards Anand Rao Circle and Shivanand Circle and another road from Shivanand Circle where both roads joins at Trilight Circle from there again road leads towards Eastern side. So to say, roads situated in between High Ground Traffic police station and race course premises one road towards East- West and another road towards West-East in between these roads, there is divider, which bifurcates both roads, which are one way road. Thus, it is clear 33 S.C.No.761/2014 that, High Ground Traffic police station is situated opposite to Race Course, but there is distance of about more than 350 feet. Pw.1 stated that, he took assailant to High Ground Traffic police station and produced him before Pw.29/ Police Inspector of Traffic police station. But it is pertinent to note that, Pw.29 neither informant nor Investigating Officer and is only a witness of prosecution. Pw.1 has not lodged report in Traffic police station. Reasons assigned by Pw.1 for not lodging F.I.R.,/report with Traffic police station is that, Pw.29 instructed him to lodge report/complaint with High Ground police station. If contents of Ex.P.1 is read as whole, it is abundant clear that, Pw.1 has not at all seen dead body. Recitals of Ex.P.1 discloses that, Pw.1/complainant came to know about the fact of death of Sunitha through one employee of Turf Club. Since in his cross- examination Pw.1 states that, he came to know about her death prior to lodging the complaint and he also states that, he came to know the name of deceased through employee of Turf Club, who accompanied him at police station.
34 S.C.No.761/2014
26. Pw.31, who registered F.I.R., states that, when he was performing his duty at High Ground police station, at that time, Pw.1 orally stated that, one murder has been committed. He further states that, he directed Pw.1 to lodge a complaint and only thereafter Pw.1 got prepared Ex.P.1 with the help of computer operator. If really Pw.1 has lodged Ex.P.1, he himself would have drafted report indicating detail facts, which happened on that day. In normal circumstances, if really Pw.1 is author of Ex.P.1, he would not taken the assistance of computer operator in preparation of Ex.P.1. If really F.I.R., is registered on that day, at about 2.15 p.m., original F.I.R., would have been sent to concerned Magistrate without further delay. On going through the contents of Ex.P.22, which is original F.I.R., I have noticed that, F.I.R., is received by Learned Magistrate on 20.3.2014 at 7.45 p.m., which means there is inordinate delay in sending F.I.R., to the Magistrate. F.I.R., was delivered to the Magistrate after more than 5 hours, after its registration. No explanation by prosecution why such delay has been caused to deliver original F.I.R., to the Magistrate, soon after registration of F.I.R. at about 2.15 p.m. Seizure mahazar marked at Ex.P.5 is conducted in 35 S.C.No.761/2014 between 2.20 p.m. and 2.50 p.m at police station itself. Investigating Officer seized copy of Driving Licence, I.D.Card issued by Television Association, A.T.M.Card.
27. On perusal of contents of Ex.P.23, which is death intimation issued by Mallige Medical Centre, Crescent Road. On perusal of Ex.P.23, death intimation is received by police official at 2.00 p.m., as is evident from contents of Ex.P.23.
28. In this case, as already observed, offence punishable U/s.302 of I.P.C., is registered not on the basis of Ex.P.23. Before registration of F.I.R., Mallige Medical Centre doctor issued death intimation which is received by Head Constable at 2.00 p.m. Pw.31 in his cross-examination stated that, on 20.3.2014 he had been to Mallige Medical Centre, at about 2.55 p.m. and at that time, he received death intimation report marked at Ex.P.23. If the time of visit of Pw.31 to Mallige Medical Centre and the time at which, Ex.P.5/mahazar is considered, it is highly improbable to believe the version of Pw.31 that, he had been to Mallige Medical Centre at 2.55 p.m., since within 5 minutes after conducting mahazar, it is highly improbable to reach Mallige 36 S.C.No.761/2014 Medical Centre at 2.55 p.m., since High Ground Police Station is situated for away from Mallige Medical Centre, Crescent Road. High Ground police station is located at Infantry Road. Thus, no reliance could be placed on the testimony of Pw.31, so for as his visit to hospital at 2.55 p.m. In addition to this, on perusal of contents of Ex.P.23, it is clear that, Pw.31 has not received death intimation from Mallige Medical Centre. Ex.P.23 bears the signature of one Head Constable and not the signature of Investigating Officer-Pw.31. If really Ex.P.23 is received by Pw.31, then in normal course, Pw.31 would have subscribed his signature on Ex.P.23. Thus, looked with these circumstances, say of Pw.31 that, he had been to hospital appears to be untrue.
29. Further, on perusal of contents of Ex.P.22, it is clear that, Pw.1 has not subscribed his signature on Ex.P.22 at column No.12, of F.I.R. Thus, if really F.I.R., lodged by Pw.1 at 2.15 p.m., in normal circumstance Pw.31 would have insisted complainant to subscribe his signature on Ex.P.22 and even Pw.1 who is Head Constable would also subscribed his signature on Ex.P.22. If this circumstance is considered, a serious doubt has arisen about lodging of report by Pw.1.
37 S.C.No.761/2014
30. Yet another circumstance, which again creates doubt about lodging of F.I.R., is that, Pw.1 in his cross-examination states as under;
"D ¢£À £Á£ÀÄ ªÀÄzsÁåºÀß 1-30 PÉÌ DgÉÆævÀ£À£ÀÄß oÁuÉUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀ «µÀAiÀĪÀ£ÀÄß oÁtÁ ¢£ÀZÀjAiÀÄ°è £ÀªÀÄÆzÀÄ DUÀĪÀAvÉ £Á£ÀÄ £ÉÆÃrPÉƼÀî°®è."
31. At this juncture itself, I have gone through the version of Pw.29, who in his evidence states as under;
"C¸Á-1 gÀªÀgÀÄ DgÉÆævÀ££À ÀÄß £À£Àß ªÀÄÄAzÉ ºÁdgÀÄ¥Àr¹ WÀl£É «ZÁgÀ w½¹zÀ £ÀAvÀgÀ £Á£ÀÄ £ÀªÀÄä ºÉÊUËæAqïì ¸ÀAZÁj ¥ÉÇðøï oÁuÉAiÀÄ°è ¥ÀæPÀgt À zÁR°¹PÉÆAqÀÄ ¥ÀæPÀgÀtzÀ vÀ¤SÉAiÀÄ£ÀÄß ºÉÊUËæAqïì ¥ÉÇðøï oÁuÉUÉ ªÀUÁð¬Ä¸À®Ä ¸ÁzÀsåvÉ EvÀÄÛ CAvÁ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è."
32. In his further cross-examination, he has given some explanation for non-registering F.I.R., in High Ground Traffic 38 S.C.No.761/2014 police station. I feel it necessary to re-produce cross-examination of Pw.29, which reads as under;
"¸ÀAZÁj ¥ÉÇðøï oÁuÉAiÀÄ°è ¨sÁgÀvÀ zÀAqÀ ¸ÀA»vÉAiÀÄ°èAiÀÄ C¥ÀgÁzÀsUÀ¼À£ÀÄß zÁR°¹PÉƼÀî®Ä PÁ£ÀÆ£Àr §gÀÄvÀÛzÉ CAvÁ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è. J®è ¥ÉÇðøï oÁuÉUÀ¼À°èzÀÝ gÀf¸ÀÖgïUÀ¼À£ÀÄß ¸ÀAZÁj ¥ÉÇðøï oÁuÉU¼À À°èAiÀÄÆ PÀÆqÀ §gÉ¢qÀ¯ÁUÀĪÀÅzÀÄ CAvÁ ºÉüÀĪÀÅzÀÄ ¤d«gÀÄvÀÛzÉ. ºÉÊUËæAqïì ¸ÀAZÁj ¥ÉÇðøï oÁuÉAiÀÄÄ MAzÀÄ ¸ÀévÀAvÀæ ¥ÉÇðøï oÁuÉAiÀiÁVgÀÄvÀÛzÉ CAvÁ ºÉüÀĪÀÅzÀÄ ¤d«gÀÄvÀÛzÉ. D ¢£À C¸Á-1 gÀªÀgÀÄ ºÉÊUËæAqïì ¸ÀAZÁj ¥ÉÇðøï oÁuÉAiÀÄ°è ¦ügÁå¢ ¸À°è¹zÀÝ ¸ÀAzÀ¨ÀsðzÀ°è ¸ÀzÀj ¥ÀæPÀgtÀ zÀ vÀ¤SÉAiÀÄ£ÀÄß ºÉÊUËæAqïì ¥ÉÇðøï oÁuÉUÉ ªÀUÁð¬Ä¸À®Ä ¸ÁzÀsåvÉ EvÀÄÛ CAvÁ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è."
Pw.29 in his cross-examination states as under;
"D ¢£À C¸Á-1 gÀªÀgÀÄ £À£ÀUÉ WÀl£É «ZÁgÀªÀ£ÀÄß w½¹zÀÄÝ, D «µÀAiÀiªÀ£ÀÄß £Á£ÀÄ £À£Àß qÉð 39 S.C.No.761/2014 qÉÊjAiÀÄ°è £ÀªÀÄÆ¢¹gÀĪÀÅ¢®è. DzÀgÉ ¸ÀzÀj «µÀAiÀĪÀ£ÀÄß oÁuÁ ¢£ÀZÀjAiÀÄ°è £ÀªÀÄÆ¢¹zÉÝ. ¸ÀzÀj ¢£ÀZÀjAiÀÄ°è £ÀªÀÄÆ¢¹zÀ «µÀAiÀĪÀ£ÀÄß £À£Àß ºÉýPÉAiÀÄ°è ºÉýgÀĪÀÅ¢®è ªÀÄvÀÄÛ ¢£ÀZÀjAiÀÄ zÀsÈrÃPÀÈvÀ £ÀP®À £ÀÄß £Á£ÀÄ vÀ¤SÁ¢üAiÀĪÀjUÉ MzÀV¹gÀĪÀÅ¢®è."
If really, information about incident is reported to Pw.29, then same would have been entered in Station House Dairy, which is very material document. Even Pw.31 during course of investigation has not made any efforts to get Extract of Station House Dairy of Traffic police station. If really Pw.1 and other persons produced accused before Pw.29, then Pw.29 would have recorded this fact, and same would have been indicated in Station House Dairy. Even Investigating Officer has not given any explanation as to why he has not made any efforts to get extract of Station House Dairy maintained by High Ground Traffic police station.
33. Pw.31 in his cross-examination states as under; 40 S.C.No.761/2014
"¤.¦.-23(©) CAvÁ UÀÄgÀÄw¹zÀ gÀÄdÄ £ÀªÀÄä oÁuÁ ¥ÉÃzÉAiÀiÁzÀ ±ÀgÀt¥Àà J£ÀÄߪÀªÀgÀ gÀÄdÄ EgÀ§ºÀÄzÀÄ. ¸ÀzÀj ¥ÉÃzÉAiÀiÁzÀ ±Àgt À ¥Àà J£ÀÄߪÀªÀg£À ÀÄß zÉÆõÁgÉÆÃ¥ÀuÉ ¥ÀnÖAiÀÄ°èAiÀÄ ¸ÁQë ¸ÀASÉå ZÁ¸Á-34 CAvÁ ¸ÉÃj¸À¯ÁVzÉ. ZÁ¸Á-34 gÀªÀgÀ ºÉýPÉAiÀÄ£ÀÄß £Á£ÀÄ ¥ÀqÉzÀÄPÉÆArgÀĪÀÅ¢®è DzÀgÉ ZÁ¸Á-34 gÀªÀgÀÄ £À£ÀUÉ MAzÀÄ ªÀgÀ¢ ¸À°è¹zÀÝgÀÄ. ¸ÀzÀj ªÀgÀ¢AiÀÄ£ÀÄß zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÉÆA¢UÉ ¸À°è¹gÀÄvÉÛÉãÉÉ. ¸ÀzjÀ ªÀgÀ¢AiÀÄ£ÀÄß FUÀ £Á£ÀÄ £ÉÆÃqÀÄwÛzÀÄÝ CzÀgÀ°è ¤.¦.-23 £ÀÄß ¸ÀzÀj ¥ÉÃzÉAiÀĪÀgÀÄ ¥ÀqÉzÀÄPÉÆAqÀ §UÉÎ G¯ÉèÃT¹gÀĪÀÅ¢®è.
If this portion of evidence of Pw.31 is considered, it is highly improbable to believe that, on 20.3.2014 at 2.00 p.m., Pw.31 was S.H.O. of High Ground police station, Bengaluru city.
When ever death intimation is received from hospital, on the basis of death intimation, case will be registered by preparing F.I.R., and at the same time, police official who produced death intimation will submit his report or else Investigating Officer will 41 S.C.No.761/2014 record statement of such police official, for having submitted death intimation to the police. In this case, prosecution neither produced report submitted by Head Constable for having obtained death intimation from hospital nor Pw.31 recorded state of Head Constable for having produced death intimation before Pw.31. Thus it is clear that, there is no any conclusive proof as to who actually obtained death intimation from hospital.
34. At this juncture itself, I feel it necessary to refer cross-examination of Pw.31, which reads as under;
"¢£ÁAPÀB 20-03-2014 gÀAzÀÄ ªÀÄzsÁåºÀß 2-00 UÀAmÉUÉ £Á£ÀÄ £ÀªÀÄä oÁuÉAiÀÄ°è oÁuÁ¢üPÁjAiÀiÁV EgÀ°®è CAvÁ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è. ¢£ÁAPÀB 20-03-2014 gÀAzÀÄ ªÀÄzsÁåºÀß 2-00 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è, ¤.¦.-23 gÀ zÁR¯ÁwAiÀÄ£ÀÄß, D ¸ÀªÀÄAiÀÄzÀ°èzÀÝ oÁuÁ¢üPÁjAiÀĪÀgÃÉ ¥ÀqÉzÀÄPÉÆArzÀÝgÀÄ ªÀÄvÀÄÛ £Á£ÀÄ CzÀ£ÀÄß ¥ÀqÉzÀÄPÉÆArgÀ°®è CAvÁ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è."
Pw.31 in his further cross-examination states as under; 42 S.C.No.761/2014
"FUÀ £Á£ÀÄ ¤.¦.-23 gÀ zÁR¯Áw £ÉÆÃqÀÄwÛzÀÄÝ, MAzÀÄ ªÉÃ¼É ¤.¦.-23 gÀ DzsÁgÀzÀ ªÉÄðAzÀ¯Éà MAzÀÄ UÀÄ£Éß CAzÀgÉ ¨sÁgÀvÀ zÀAqÀ ¸ÀA»vÉ PÀ®A-302 gÀ Cr DgÉÆævÀ£À ºÉ¸ÀgÀÄ zÁR°¸ÀzÉà UÉÆwÛ®èzÀ DgÉÆævÀ£À «gÀÄzÀÝ MAzÀÄ ¥ÀæPÀgt À zÁR®Ä ªÀiÁqÀ®Ä ¸ÁzÀsåvÉ EvÀÄÛ CAvÁ ºÉüÀĪÀÅzÀÄ ¤d«gÀÄvÀÛzÉ."
Contents of Ex.P.1 does not discloses name of the person from whom informant came to know about name of deceased. But during course of his cross-examination, Pw.1 states that, on that day, one official of Turf Club accompanied him as Police station, who disclosed the name of deceased as Sunitha, who was employee of Turf Club, which clearly indicates that, informant neither acquaintance with deceased nor was knowing the name of deceased. In the complaint marked at Ex.P.1, complainant never disclosed the name of the person, who disclosed the name of deceased. Ex.P.23 is obtained by Head Constable at 2.00 p.m. But Investigating Officer neither obtained the report of said Head Constable nor recorded his statement. 43 S.C.No.761/2014 On the other hand, Pw.31 stated that, he himself has received Ex.P.23, which clearly contradicts contents of Ex.P.23/Death Intimation Report in which signature of head constable is found.
35. Therefore, cumulative effect of evidence brought on record, so for as registration of one F.I.R., appears to be more suspicion. Explanation rendered by Pw.29 as to why he has not registered F.I.R., in Traffic police station cannot be believed and such explanation cannot be accepted. Even there is no any record to indicate that, information, which Pw.29 received on that day at about 1.30 p.m. has been recorded in Station House Dairy maintained by High Ground Traffic police station. Even there is no any endorsement on Ex.P.1 that, it is Pw.1, who submitted Ex.P.1 personally, by appearing before Pw.31,. Thus, defence of accused that, Ex.P.1 was not prepared and not submitted by Pw.1, appears to be more probable. Under these circumstances, the only inference that could be drawn is that, author of Ex.P.1 is not Pw.1 but author of Ex.P.1 is Pw.29, as suggested by defence.
44 S.C.No.761/2014
36. I have also gone through evidence on record with reference to arrest of accused. Pw.1 states that, he caught hold accused at the spot of incident. Admittedly, Pw.1 is Head Constable. Whenever Head Constable arrested accused, he is expected to cause necessary entry or note about the fact of arrest in his personal dairy or dairy furnished by his department. But to believe this statement, he has not produced his personal dairy for inspection of this court. In addition to this, even Pw.29 though he states that, Pw.1 produced accused before him at about 1.30 p.m., when he was engaged in role call duty, but he being the S.H.O. of High Ground Traffic police station, at that time, he has also not indicated or recorded fact of production of accused by Pw.1 in Station House Dairy. Though, Pw.29 states that, he has confirmed the name of accused on the basis of I.D.Card issued by Karnataka Television Association, but in fact he has also not adopted the procedure for arrest and detention of accused. As per the say of Pw.29, he took accused to High Ground Police station, and produced him before Pw.31/Police Inspector of High Ground police station, but there also Inspector of High Ground police station -Pw.31 also not followed the 45 S.C.No.761/2014 procedure before and after arrest of accused. On this aspect, evidence of Pw.31 is most relevant and significant. In cross- examination what all Pw.31 stated is reads as under;
"DgÉÆævÀ£À£ÀÄß AiÀiÁªÀ ¸À¼Ü ÀzÀ°è ªÀÄvÀÄÛ AiÀiÁªÀ ¸ÀªÀÄAiÀÄzÀ°è §A¢ü¸À¯ÁVvÀÄÛ J£ÀÄߪÀ §UÉÎ AiÀiÁªÀÅzÉà zÀ¸ÀÛVj ªÉĪÉÆà vÀAiÀiÁgÀÄ ªÀiÁrgÀĪÀÅ¢®è CAvÁ ºÉüÀĪÀÅzÀÄ ¤d«gÀÄvÀÛzÉ. AiÀiÁªÀÅzÃÉ C¥ÀgÁ¢üAiÀÄ£ÀÄß zÀ¸ÀÛVj ªÀiÁrzÁÝUÉÎ zÀ¸ÀÛVj ªÉĪÉÆà vÀAiÀiÁj¹ ¸ÀzÀj ªÉĪÉÆÃUÉ, M§â ¸ÀܽÃAiÀÄ UÀtåªÀåQÛAiÀÄ gÀÄdÄ ¥Àqz É ÀÄPÉƼÀî¨ÉÃPÁUÀÄvÀÛzÉ CAvÁ ºÉüÀĪÀÅzÀÄ ¤d«gÀÄvÀÛzÉ. F ¥ÀæPÀgÀtzÀ°è AiÀiÁªÀÅzÃÉ zÀ¸ÀÛVj ªÉĪÉÆêÀ£ÀÄß vÀAiÀiÁj¹gÀĪÀÅ¢®è."
In his further cross-examination, Pw.31 states as under;
"£ÀªÀÄä E¯ÁSÉAiÀĪÀgÀÄ «rAiÉÆà ªÀÄvÀÄÛ DrAiÉÆà jPÁrðAUï ªÀiÁrPÉƼÀî®Ä G¥ÀPÀgÀtUÀ¼À£ÀÄß ¤ÃrgÀÄ vÁÛg.É DgÉÆævÀ£À£ÀÄß £À£Àß ªÀÄÄAzÉ ºÁdgÀÄ¥Àr¹zÀ ¸ÀAzÀ¨ÀsðzÀ°è ªÀÄvÀÄÛ DgÉÆævÀ£ÀÄ £À£ÀߪÀÄÄAzÉ vÁ£ÀÄ ¤ÃrzÀ ¸ÀéEZÉÒ ºÉýPÉ ¤ÃqÀĪÀ ¸ÀAzÀ¨ÀsðzÀ°è 46 S.C.No.761/2014 «rAiÉÆà ±ÀÆnAUï ªÀiÁrPÉƼÀî®Ä CªÀPÁ±À«vÀÄÛ CAvÁ ºÉüÀĪÀÅzÀÄ ¤d«gÀÄvÀÛzÉ. DzÀgÉ D ¸ÀAzÀ¨ÀsðzÀ°è £Á£ÀÄ «rAiÉÆà ±ÀÆnAUï ªÀiÁrPÉÆArgÀĪÀÅ¢®è."
If this version of Pw.31 is considered, it is very much clear that, Investigating Officer has not at all followed the procedure for arrest and detention of accused as laid down by Hon'ble Supreme Court in a decision reported in AIR 1997 SC page 610 in case of D.K.Basu V/s. State of West Bengal. Further, no records to indicate that, after arrest of accused, Investigating Officer produced accused before Medical officer for his medical checkup, which is very much necessary and mandate on the part of arresting authority to get medical checkup of arrestee. No records to indicate that, fact of arrest has been entered in Prisoners Arrest Register maintained in the police station. Place of detention regarding the arrest of accused, preparation of memo of arrest at the time of arrest is mandate. But this mandatory requirement has not been followed by Pw.31. Thus, it is unsafe 47 S.C.No.761/2014 to believe that, Pw.31 arrested accused on 20.3.2014, soon after registration of F.I.R.
37. Now, I will deal with the recovery of material objects under two different panchanamas. As per the case of prosecution, Pw.31 conducted seizure mahazar marked at Ex.P.5 in between 2.20 p.m. and 2.50 p.m., in the presence of Pw.11/Somashekhar and Cw.6/H.Krishna, under this mahazar material objects were seized. I.D.Card issued by Karnataka Television Association and Xerox copy of Driving Licence, which were secured by Pw.29, when accused was produced by Pw.1 at High Ground Traffic Police Station and other material objects i.e., A.T.M.Card, Debit Card and Shirt of accused were seized from the possession of accused. To prove the contents of Ex.P.5, prosecution has not examined Cw.6/Krishna. On the other hand, Pw.11/ Somashekhar in his evidence stated that, on that day, police seized one A.T.M.Card, Driving License, Debit Card and one shirt seized from the possession of accused. He never states that, I.D.Card issued by Karnataka Television Association also seized from the possession of accused. In his cross-examination, he has clearly stated that, no prior notice is issued to him by Pw.31, 48 S.C.No.761/2014 prior to conducting mahazar. Pw.31 in his cross-examination stated as under;
"C¸Á-29-£À«Ã£ÀPÀĪÀiÁgÀgÀªÀgÀÄ DgÉÆævÀ£À §½ ZÁ®£Á ¥ÀvÀæ ªÀÄvÀÄÛ PÀ£ÁðlPÀ mÉ°«¸À£ï C¸ÉÆùAiÉÄñÀ£À ïìgÀªÀgÀÄ ¤ÃrzÀ UÀÄgÀÄw£À aÃn DvÀ£À §½ EgÀÄvÀÛªÉ CAvÁ w½¹zÀÝgÀ ªÉÄÃgÉUÉ £Á£ÀÄ ¥ÀAZÀgÁzÀ C¸Á- 11-¸ÉÆêÀıÉÃRgÀ ªÀÄvÀÄÛ C¸Á-16-PÀȵÀÚgÀªÀgÀ ¸ÀªÀÄPÀëªÀÄzÀ°è MAzÀÄ ªÀĺÀdgï ªÀiÁr MAzÀÄ ZÁ®£Á ¥ÀvÀæ ªÀÄvÀÄÛ PÀ£ÁðlPÀ mÉ°«¸À£ï C¸ÉÆùAiÉÄñÀ£À ïìgÀªÀgÀÄ ¤ÃrzÀ UÀÄgÀÄw£À aÃnUÀ¼À£ÀÄß CªÀiÁ£ÀvÀÄÛ ¥Àr¹PÉÆAqÉ."
So as per version of Pw.31, Driving Licence and I.D.Card issued by Karnataka Television Association were seized not from the possession of accused, but on production of Cw.29/Naveen Kumar. In this regard, I have gone through the version of Pw.29. In his examination-in-chief, he never states that, he handed over I.D.Card issued by Karnataka Television Association and copy of Driving Licence to Pw.31, when he produced accused before Pw.31. On going through the recitals of Ex.P.5, with evidence of Pw.11, there is glaring discrepancies between his version and 49 S.C.No.761/2014 contents of Ex.P.5, so for as recovery of I.D.Card issued by Karnataka Television Association and copy of Driving Licence, because Pw.11 in his evidence stated that, on that day, police have seized one A.T.M.Card, Driving Licence, Debit Card, shirt were seized from the possession of accused, which are clearly contradicts the contents of Ex.P.5. Therefore, even there is no any conclusive proof that, I.D.Card issued by Karnataka Television Association and Xerox copy of Driving Licence were seized either from possession of accused or were seized when Pw.29 produced these two documents before Investigating Officer/Pw.31.
38. After conducting seizure mahazar, marked at Ex.P.5, spot mahazar marked at Ex.P.4 is conducted on the same day in between 5.30 p.m. and 7.00 p.m. Recitals of Ex.P.4 discloses that, spot of the incident was shown by Pw.1/Subramani. But on going through the evidence of Pw.1, it is clear that, he never states that, he has shown the spot of incident to Pw.31 and to the panch witnesses by name Pw.5/ Shankar and Pw.7/ Sathyaprasad. On going through the evidence of Pw.5 and Pw.7, it is clear that, neither Pw.5 nor Pw.7 states that, spot of incident was shown by Pw.1. I have also gone through the version of 50 S.C.No.761/2014 Pw.31 on the aspect of contents of Ex.P.5 and Ex.P.4, which reads as under;
"DgÉÆævÀ£À£ÀÄß zÀ¸ÀÛVj ªÀiÁrzÀ vÀPÀëtªÉà DvÀ£À §½ EgÀĪÀ ªÀ¸ÀÄÛUÀ¼À£ÀÄß ¥ÀvÉÛ ºÀaÑ CªÀÄÁ£ÀvÀÄÛ¥Àr¹PÉƼÀî®Ä §gÀÄvÀÛzÉ. MAzÀÄ ªÉÃ¼É zÀ¸ÀÛVjAiÀiÁzÀ DgÉÆævÀ£À §½ ªÀ¸ÀÄÛUÀ½zÀgÝ É D ªÀ¸ÀÄUÛ À¼À vÀ¥À²Ã®ÄUÀ¼À£ÀÄß £ÀªÀÄä oÁuÉAiÀÄ°èzÀÝ ¦æ¸À£Àgïì ¸ÀZïð jf¸ÀÖgï£À°è £ÀªÀÄÆzÀÄ ªÀiÁqÀÄvÉÛêÉ. F ¥ÀæPÀgÀtzÀ°è DgÉÆævÀ£À£ÀÄß zÀ¸ÀÛVj ªÀiÁrzÀ ¸ÀAzÀ¨ÀsðzÀ°è ¸ÀZïð °¸ïÖ£ÀÄß vÀAiÀiÁgÀÄ ªÀiÁrgÀĪÀÅ¢®è."
In his further cross-examination, he states as under;
"¤.¦.-5 £ÀÄß N¢zÀgÉ CzÀgÀ°è DgÉÆævÀ£À CAUÀ±ÉÆÃzÀs£AÉ iÀÄ£ÀÄß AiÀiÁgÀÄ ªÀiÁrzÀÝgÀÄ CAvÁ §gÉ¢gÀĪÀÅ¢®è. ¤.¦.-
5 £ÀÄß N¢zÀgÉ AiÀiÁªÀ ªÀåQÛAiÀÄ ¸ÀªÀÄPÀëªÀÄ DgÉÆævÀ£À CAUÀ±ÉÆÃzÀs£É ªÀiÁqÀ¯ÁVvÀÄÛ CAvÁ ¤.¦.-5 gÀ°è £ÀªÀÄÆ¢¹gÀĪÀÅ¢®è.
C¸Á-11-¸ÉÆêÀıÉÃRgÀ ªÀÄvÀÄÛ ZÁ¸Á-6- JZï.PÀȵÀÚ gÀªÀgÀÄ UËgÀªÁ¤évÀ ªÀåQÛUÀ¼ÀÄ CAvÁ RavÀ¥Àr¹PÉƼÀî®Ä £Á£ÀÄ D §UÉÎ 51 S.C.No.761/2014 UÀªÀÄ£À PÉÆnÖgÀĪÀÅ¢®è. C¸Á-11- ¸ÉÆêÀıÉÃRgÀ gÁªÀÄ£ÀUÀgÀ f¯ÉèAiÀÄ gÀAUÀ£ÁAiÀÄPÀ zÉÆrØ UÁæªÀĸÀܤgÀÄvÁÛ£É.
ZÁ¸Á-6-JZï.PÀȵÀÚ gÀªÀgÀÄ ªÉÊAiÀiÁ°PÁªÀ¯ï £ÀªÀjgÀÄvÁÛgÉ. £ÀªÀÄä oÁuɬÄAzÀ ªÉÊAiÀiÁ° PÁªÀ¯ï ¸ÀĪÀiÁgÀÄ 4 Q.«ÄÃ. CAvÀgÀ zÀ°ègÀÄvÀÛzÉ. »ÃUÁV C¸Á-11 ªÀÄvÀÄÛ ZÁ¸Á-6 gÀªÀgÀÄ PÀÈvÀå £ÀqÉzÀ ¸Àܼz À À, ¸ÀܽÃAiÀÄ ¤ªÁ¹UÀ¼ÁVgÀĪÀÅ¢®è."
In his further cross-examination he states as under;
"FUÀ £Á£ÀÄ ¤.¦.-4 ¸ÀܼÀ ¥ÀAZÀ£ÁªÉÄAiÀÄ£ÀÄß £ÉÆÃqÀÄwÛzÀÄÝ, ¸ÀzÀj ¥ÀAZÀ£ÁªÉÄUÉ C¸Á-7-¸ÀvÀå¥Àæ¸ÁzÀ M§â ¥ÀAZÁAiÀÄvïzÁgÀ¤zÀÄÝ DvÀ ¸ÀįÁÛ£À¥ÃÉ mÉ AiÀÄ°ègÀĪÀ ªÀÄ£ÀévÀð ¥ÉÃmÉAiÀÄ ¤ªÁ¹ EgÀÄvÁÛ£É. ¸ÀįÁÛ£ï ¥ÉÃmÉAiÀÄÄ gÉøïPÉÆøïð eÁUÀ¢AzÀ ¸ÀĪÀiÁgÀÄ 3 jAzÀ 4 Q.«ÄÃ. CAvÀgz À À°ègÀÄvÀÛz.É ¤.¦.- 4 PÉÌ ªÀÄvÉƧ Û â ¥ÀAZÀ£ÁzÀ C¸Á-5-±ÀAPÀgï EgÀÄvÁÛ£É. ¸ÀzÀj ±ÀAPÀgï gÁªÀÄ£ÀUÀgÀ f¯ÉAè iÀÄ ¤ªÁ¹¬ÄgÀÄvÁÛ£É. UÀÄ£Áß ¸ÀܼÀ¢AzÀ gÁªÀÄ£ÀUÀgÀ f¯Éè ¸ÀĪÀiÁgÀÄ 50 Q.«ÄÃ. CAvÀgÀzÀ°ègÀÄvÀÛzÉ. ¤.¦.-4 UÀÄ£Áß ¸ÀܼÀzÀ ¥ÀAZÀ£ÁªÉÄAiÀÄ£ÀÄß N¢zÀgÉ D 52 S.C.No.761/2014 E§âgÀÆ ¥ÀAZÀgÀÄ UËgÀªÁ¤évÀgÃÉ JA§ÄzÀ£ÀÄß PÀÄjvÀÄ «ZÁgÀ ªÀiÁrzÀ §UÉÎ ¤.¦.-4 gÀ°è «ªÀj¹gÀĪÀÅ¢®è. ¤.¦.-4 gÀ ¥ÀAZÀgÀ «¼Á¸ÀUÀ¼£À ÀÄß UÀªÀĤ¹zÁÝUÉÎ, ¸ÀzÀjAiÀĪÀgÀÄ ¸ÀܽÃPÀgÀÄ CAvÁ PÀAqÀħgÀĪÀÅ¢®è. ¸ÁQë ªÀÄÄAzÀĪÀgÉzÀÄ ºÉüÀĪÀÅzÉãÀAzÀg,É C¸Á-7-¸ÀvÀå¥Àæ¸ÁzÀ ¨ÉAUÀ¼ÀÆgÀÄ l¥Àsð PÀè¨ï£À°è D¥ÀgÉÃlgï DV PÉ®¸À ªÀiÁqÀÄwÛzÀÝ CAvÁ w½¹gÀÄvÁÛgÉ. ¥ÀAZÀ£ÁªÉÄ K¥Àðr¸ÀĪÀ PÁ®zÀ°è ¥ÉÇðøïgÁUÀ° CxÀªÁ ªÀÄvÀÄÛ AiÀiÁgÉà EzÀÝgÀÄÁ ªÀÄvÀÄÛ CªÀgÀÄUÀ¼ÀÄ vÀ¤SÁ¢üPÁjUÀ½UÉ vÀ¤SÉUÉ ¸ÀºÁAiÀÄ ªÀiÁrzÀgÉ D ªÀåQÛAiÀÄ gÀÄdĪÀ£ÀÄß ¥ÀAZÀ£ÁªÉÄUÉ ¥ÀqÉzÀÄPÉƼÀî¨ÉÃPÁUÀÄvÀÛzÉ." Therefore, if evidence of Pw.5, Pw.7, Pw.11 and Pw.31 is considered with contents Ex.P.4 and Ex.P.5, I do not find any substance in the contention of prosecution that spot mahazar and seizure mahazar are free from suspicion.
39. Further, it is pertinent to note that, Pw.31 in his examination-in-chief stated that he was deputed one police 53 S.C.No.761/2014 constable bearing No.4132 to the spot of incident. In cross- examination Pw.31 stated as under;
"WÀl£É «ZÁgÀ £À£ÀUÉ w½zÀ PÀÆqÀ¯Éà £ÀªÀÄä oÁuÁ ªÀÄÄRå¥ÉÃzÉ £ÀA-4132 £ÉÃzÀݪÀgÀ£ÀÄß £ÉêÀÄPÀ ªÀiÁr PÀÈvÀå £ÀqÉzÀ ¸ÀܼÀzÀ ¹ÜwUÀwUÀ¼£À ÀÄß PÁAiÀÄÄÝPÉƼÀÄîªÀ ¸ÀA§AzÀs ªÀÄÄRå¥ÉÃzÉ £ÀA-4132 £ÉÃzÀݪÀg£À ÀÄß ¸ÀzÀj ¸ÀܼÀPÉÌ PÀ¼ÀÄ»¹PÉÆmÉÖ. ¸ÀzjÀ ªÀÄÄRå¥ÉÃzÉ £ÀA-4132 £ÉÃzÀݪgÀ À ºÉýPÉAiÀÄ£ÀÄß £À£Àß vÀ¤SÁPÁ®zÀ°è ¥Àqz É ÀÄ PÉÆArgÀĪÀÅ¢®è ªÀÄvÀÄÛ ¸ÀzÀj ªÀÄÄRå¥ÉÃzÉ C°è PÀvÀðªÀå ¤ªÀð»¹zÀ §UÉÎ £À£ÀUÉ ªÀg¢ À ¸À°è¹gÀ°®è. ªÀÄÄRå¥ÉÃzÉ-4132 £ÉÃzÀª Ý Àg À Ä C°è PÀvÀðªÀå ¤ªÀð»¹zÀ PÁ®zÀ°è, ¸ÀzÀjAiÀĪÀgÀÄ C°è MAzÀÄ ZÁPÀÄ EzÀÝzÀ£Ý ÀÄß PÀÄjvÀÄ £ÉÆÃrzÀÝgÀ §UÉÎ F ¥ÀæPÀgt À zÀ ¢£ÀZÀjAiÀįÁèUÀ° ªÀÄvÀÄÛ zÉÆõÁgÉÆÃ¥ÀuÉ ¥ÀnÖAiÀįÁèUÀ° PÀAqÀħgÀÄwÛ®è."
On going through the above evidence of Pw.31, it is clear that, he never deputed police constable to the spot of incident to keep and watch the spot of incident and to maintain spot of incident without any disturbance.
54 S.C.No.761/2014
40. Even on scrutinizing the evidence of prosecution, on the aspect of Ex.P.5 and Ex.P.4, a serious doubt has arisen in mind about conducting spot and seizure mahazars as contained in Ex.P.5 and Ex.P.4. Pw.31 has not at all followed the procedure in the matter of seizure of properties from the possession of accused, as Pw.31 never mentioned the properties seized from the possession of accused in Prisoners Search Register maintained in the police station. Even Pw.31 in his cross- examination has clearly admitted that, he has not prepared any search list, which is mandate in proof of seizure of property from the possession of accused.
41. Even, I have gone through the evidence on record with regard to the production of accused before Learned Magistrate. As per case of prosecution accused was arrested on the day of incident itself. On the same day, Investigating Officer has seized weapon alleged to have been used for commission of offence i.e., Mo.5/Knife. Such being the case, there was nothing to be recovered from the possession of accused, but even then accused was not produced before Learned Magistrate on the 55 S.C.No.761/2014 same day of his arrest, on the other hand, accused was produced before Magistrate on 21.3.2014 at about 4.45 p.m., which again creates more suspicion about arrest and detention of accused on 20.3.2014, soon after registration of F.I.R. Though Investigating Officer took accused in police custody, as per order passed by Learned Magistrate, but nothing incriminating articles were seized, at the instance of accused, while he was in police custody. If this circumstance is considered, a serious doubt has arisen about truthfulness of case as projected by prosecution, so for as arrest and recovery of material objects.
42. Yet another circumstance, which again falsifies the contention of prosecution about seizure of clothes worn by deceased on that day is that, after conducting autopsy, clothes worn by deceased were handed over to police, who in turn produced them before Investigating Officer. But Investigating Officer neither recorded statements of police officials nor said police officials filed report to this effect. Under these circumstances, it is unsafe to believe that, Mo.6 to Mo.8 were the clothes worn by deceased-Sunitha, when alleged incident occurred.
56 S.C.No.761/2014
43. In view of my above discussion, it is clear that, Investigating Officer neither produced copy of Role Call Register maintained by High Ground Traffic Police Station nor obtained certificate from Pw.29, certifying that, on 20.3.2014 Pw.1 performed his duties as traffic control duty in between 7.00 a.m., and 1.30 p.m. at Trilight Junction. Even there is no conclusive proof that, Ex.P.1/Report is submitted by Pw.1 and he is author of it. There is inordinate delay in sending F.I.R., to the Learned Magistrate. Such inordinate delay neither explained by the Pw.1 nor prosecution examined police official, who delivered Ex.P.22 to Learned Magistrate. Even on the aspect of arrest of accused, there is complete suspicion. Though evidence of Pw.31 discloses accused was arrested on the day of incident, but he was not produced before Learned Magistrate on the same day. On the other hand, on next day, at 4.45 p.m., accused produced before Learned Magistrate. Virtually, no material objects were seized at the instance of accused, when he was committed to police custody. Even there is suspicion about seizure of property at Mo.1 to Mo.10.
57 S.C.No.761/2014
44. I have gone through the evidence on record with regard to identity of assailant and alleged victim. Prior to date of registration of F.I.R., this accused is stranger to Pw.1. Even deceased is also stranger to Pw.1. Motive for commission of murder is also not stated by Pw.1 in Ex.P.1. Even after registration of case, it is very much clear that, Pw.31 has not recorded further statement of Pw.1. On going through the evidence of Pw.6 also, it is clear that, she has also not disclosed the motive. But on going through the contents of remand application, motive for commission of offence is that, accused had intimacy with deceased, thus accused and deceased use to meet frequently. But a month prior to the incident, deceased had changed her attitude towards accused and because of that only, accused got angry on her and in the process, he with an intention to cause her death, attacked her with knife, which has resulted in her death. Ofcourse, in proof of commission of offence, motive will play very little importance. No much reliance could be placed on motive for commission of offence, but even then also a little evidence on the aspect of notice is required to be proved by prosecution. But no evidence on the aspect of 58 S.C.No.761/2014 motive for commission of offence is led in by prosecution. Even Investigating Officer/Pw.31 never states the motive for commission of offence. With these infirmities, I have gone through the evidence of Pw.1. On going through the cross- examination of Pw.1, it is abundant clear that, Pw.1 has not furnished his personal dairy, though he states that, he had mentioned the fact of incident, which occurred on that day at about 1.30 p.m., in his personal dairy maintained by him. But he has not produced it before this court for its inspection. Non- production of personal dairy of Pw.1 in fatal to the case of prosecution. No reasons are assigned as to why such dairy has been withheld. Though, High Ground Traffic police station is located at a distance of about 300 to 400 meters from Bengaluru Turf Club, Race Course premises, but it is highly improbable to hold that, Pw.1 was present at Trilight circle on that day in the absence of documentary evidence. No proper explanation is rendered by prosecution for not producing either original or authenticated copy of Roll Call Register maintained by High Ground Traffic police station, when it is specific defence of accused that, on that day, Pw.1 has not performed his duty at 59 S.C.No.761/2014 Trilight circle, Bengaluru. Such being the case, there is no any special reason for presence of Pw.1 at Trilight Circle, or near Bengaluru Turf Club, Race Course Gates No.3 and 4. Even if it is held that, Pw.1 performed his duty at Trilight Circle, but if the distance between Trilight Circle and spot of incident is considered, Trilight circle is not just abutting to the road, which proceeds from Basaveshwara Circle to Shivanand Cirlce and Anand Rao Circle. Trilight Junction is for away from the gates No.3 and 4 of Bengaluru Turf Club. It is borne out from the records that, on that day, one race was to commence at noon. It is also borne out from the records that, many vehicles were passing through both roads, which are one-way roads. Contents of Ex.P.1 are very much silent about detail description about the identity of the assailant, as well as deceased. Though it is on the record that, assailant was caught hold and brought before Pw.29, with the assistance of public, but neither Pw.29 nor Pw.1 stated the names of persons, who brought assailant to the police station. No efforts were made out by Investigating Officer to record statements of persons, who are not officials of Bengaluru Turf Club. Though Pw.1 in his evidence states that, he has 60 S.C.No.761/2014 recorded incident in his private dairy, but he also not produced his personal dairy, during course of trial. These circumstances create entire doubt in my mind about say of Pw.1 that, it is accused, who is real assailant. All other witnesses, who are projected as eye witnesses, have not supported the case of prosecution. Admittedly, Pw.1 is the Head Constable, thus, he is police official. Testimony of Pw.1 has not been corroborated with other independent and dis-interested witnesses. Further, his testimony is suffers from serious infirmities. If really, Pw.1 is author of Ex.P.1, then he would have subscribed his signature on Ex.P.22 for having received copy of F.I.R. If really Pw.1 has seen the incident, then Pw.31 in normal circumstance would have recorded his further statement, which has not been done. No reasons are assigned by Pw.31 as to why he has not prepared Arrest Memo. No reasons are assigned by prosecution why Prisoners Arrest Register has not been produced before the court. It is highly improbable to believe that, Pw.1 was present near the gates No.3 and 4 of Bengaluru Turf Club, when alleged incident took place. Testimony of Pw.1 suffers from inherent infirmity. If entire evidence on record is scrutinized, I have to 61 S.C.No.761/2014 entertain a serious doubt as to whether Pw.1 is really an eyewitness. Hence, it is unsafe to believe the evidence of Pw.1 that, he saw accused, who was stabbing with knife on the chest of deceased. Under these circumstances, I have not placed any reliance on the testimony of Pw.1. As already observed, entire investigation is tainted. When version of Pw.1 has not been supported by other eyewitnesses, who are projected by prosecution, and when it is found that, there are infirmities in the statement of Pw.1, it is highly improbable to hold that, accused is real assailant. With this evidence on record, I have gone through the principles laid down in the following decisions which are relied upon by defence;
1. 2012) 4 Supreme Court Cases 722 in case of Govindaraju Alias Govinda V/s.
State by Srirampuram police station and another.
2. (2006) 11 Supreme Court Cases 323 in case of Bhimapa Chandappa Hosamani and others V/s. State of Karnataka.
3. 2004 Crl. L.J. page 22, Supreme Court in a case of Badam Singh V/s. State of M.P. 62 S.C.No.761/2014 In this case also, version of Pw.1 has not been corroborated by other witnesses, who have been projected as eyewitnesses. Further, presence of Pw.1 at the spot of alleged incident is also doubtful in view of non-production of documents with regard to performance of his duty on that day. Therefore, I have not placed any reliance on the version of Pw.1.
45. Even a step ahead, if it is held that, material collected by prosecution raises a strong suspicion against accused, then mere suspicion cannot take place of proof. In this regard, defence relied upon the principle laid down in a decision reported in AIR 2013 Supreme Court page 3150 in case of Raj Kumar Singh @ Raju Batya V/s. State of Rajasthan.
46. If the principles laid down in the above dictums are applied to the case on hand, there is no conclusive proof that it is accused, who is a real assailant. Thus, benefit of doubt has to be extended to the accused.
47. In view of my above discussion and in the result, I have come to the conclusion that, prosecution failed to prove the 63 S.C.No.761/2014 charge leveled against accused, beyond reasonable doubt. Accordingly, I answer point No.2 in negative.
48. POINT NO.3: In view of my findings on the above points No.1 and 2, accused is entitled for acquittal. Being of that opinion, I proceed to pass the following:
ORDER Accused is acquitted U/s. 235(1) of Cr.P.C of the offence punishable U/s.302 of I.P.C.
Accused is set at liberty.
However, accused is directed to execute personal bond of Rs.50,000/- with one surety for the like sum, as required U/s.437-A of Cr.P.C., and same shall be in force for a period of six months from this day.
Mo.2 to 4 are ordered to be returned to accused, after expiry of appeal period.
Mo.1 and 5 to 10 are worthless articles, therefore, same are ordered to be destroyed, after expiry of appeal period.64 S.C.No.761/2014
Further, Jail Authorities are hereby directed to release accused/Dhanraj, forthwith, if he is not required in any other case.
Office to issue Release Intimation to jail authorities to release accused/Dhanraj.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 23rd day of April, 2018.) (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 Subramani
Pw.2 Manjula
Pw.3 Kappanaiah
Pw.4 Deepa
Pw.5 Shankara
Pw.6 Muktha
65 S.C.No.761/2014
Pw.7 Sathyaprasad
Pw.8 Kumar
Pw.9 Gangamma
Pw.10 Sannegowda
Pw.11 Someshekhara
Pw.12 Rajendra
Pw.13 Nagendra
Pw.14 Jayaram
Pw.15 Pandaribai
Pw.16 Nirmala
Pw.17 Hemavathi
Pw.18 Sumithra
Pw.19 Mohammed Irfansheit
Pw.20 Thulasi
Pw.21 Dhanalakshmi
Pw.22 Saraswathi
Pw.23 Rathnamma
Pw.24 Basavaraj
Pw.25 Rathnamma
Pw.26 Rekha
Pw.27 Girija
Pw.28 Sridevi
Pw.29 N.Naveen Kumar
Pw.30 Dr. Shanthakumar
Pw.31 P.B.Sridhar
Pw.32 K.N.Rajesha
Pw.33 Dr. Sathish K.V.
II. For Defence:-
- Nil-
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Complaint
Ex.P.1(a) Signature of Pw.1
Ex.P.2 Inquest Report
Ex.P.2(a) Signature of Pw.3
66 S.C.No.761/2014
Ex.P.3 Statement of Pw.4
Ex.P.4 Mahazar
Ex.P.4 (a) Signature of Pw.5
Ex.P.4(b) Signature of Pw.7
Ex.P.5 Seizure mahazar
Ex.P.5(a) Signature of Pw.1
Ex.P.6 Statement of Pw.12
Ex.P.7 Statement of Pw.13
Ex.P.8 Statement of Pw.15
Ex.P.9 Statement of Pw.16
Ex.P.10 Statement of Pw.17
Ex.P.11 Statement of Pw.18
Ex.P.12 Statement of Pw.19
Ex.P.13 Statement of Pw.20
Ex.P.14 Statement of Pw.21
Ex.P.15 Statement of Pw.22
Ex.P.16 Statement of Pw.23
Ex.P.17 Statement of Pw.24
Ex.P.18 Statement of Pw.25
Ex.P.19 Statement of Pw.26
Ex.P.20 Statement of Pw.27
Ex.P.21 Statement of Pw.28
Ex.P.22 F.I.R.,
Ex.P.23 Death Memo
Ex.P.23(a) Signature of Pw.23
Ex.P.24 Statement of accused
Ex.P.25 F.S.L.Report
Ex.P.26 Sketch
Ex.P.27 F.S.L.Report
Ex.P.28 Covering Letter dated 9.5.2014
Ex.P.29 P.M.Report
Ex.P.29(a) Signature of Pw.33
For Defence side:-
Ex.D.1 Rough Sketch Map
IV. List of material objects marked:-67 S.C.No.761/2014
Mo.1 Shirt
Mo.2 Driving Licence
Mo.3 S.B.M.A.T.M.Card
Mo.4 I.D.Card
Mo.5 One Knife
Mo.6 White colour chudidar
Mo.7 White colour vale
Mo.8 Chididhar pizama (bottom)
Mo.9 Sample soil/mud
Mo.10 Bloodstained soil/mud.
(MADHUSUDHAN B.)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY