Bangalore District Court
State By The Police Inspector vs Nos. 3. V.Dileep on 6 July, 2021
IN THE COURT OF LVII ADDL.CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU
(CCH58)
Present: Smt. K.G.Shanthi, B.Com, LL.M.,
LVII Addl.City Civil & Sessions Judge
Mayo Hall Unit, Bengaluru.
: S.C.No.427/2019 :
Dated this the 6th day of July, 2021
Complainant: State by the Police Inspector,
Hennur Police Station,
Bangalore.
(State by Public Prosecutor)
V/s.
Accused Nos. 3. V.Dileep,
S/o.Venkatesh,
Aged about 19 years,
R/at.No.23, near Bus stop,
Vaddarapalya, Main Road,
Kalyannagar Post,
Bengaluru City84.
4. Arjun
S/o.Kannan,
Aged about 19 years,
R/at No.16, 3rd Cross,
New Bagaluru Layout,
near Ramabail College,
St.Thomas Town Post,
Bengaluru84.
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Accused Nos.3 and 4 are in J.C.
( A3 and A4 represented by Sri
Rakesh Raj, Advocate)
*********
JUDGMENT
The Hennur Police filed the charge sheet against the accused for the offence punishable u/S.302 r/w.34 of IPC.
2. The brief facts of the case are that, on 30.11.2018 at about 9.00 p.m. these accused along with other, copersons who conflicted with laws, with previous enmity picked up quarrel with Keshava and with common intention they picked up quarrel with Keshava and attacked on Keshava with knife and thereby murdered Keshava. In this regard, sister of the deceased Keshava lodged complaint to the police on the same day i.e., 30.11.2018 at 10.45 p.m. Accordingly, police have registered FIR in Crime No.380/2018 conducted investigation and have sent body for 3 S.C. No.427/2019 Postmortem. Then police have drawn the spot panchanama, seized material objects arrested the accused, recorded the confession statement. Then on the basis of statement have drawn the seizure mahazar. Further recorded the statements of witnesses, collected postmortem report and other documents and then filed charge sheet against 5 persons. Among them A1 Avinash @ Jo @ Jou, A2 Abhishek and A5 Guru Brahma @ Vijaykuar @ Bandli are the juveniles, as mentioned in the charge sheet.
3. The learned Magistrate served the copy of charge sheet and committed the case to the Prl.City Civil and Sessions Judge, Bengaluru and in turn the Prl.City Civil and Sessions Judge made over case to this Court for trial. The accused Nos.3 and 4 were in J.C. and accused Nos.1, 2 and 5 are the juvenile offenders.
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4. The accused have engaged the service of Sri Rakesh Raj, Advocate to defend them. Heard before charge. Since there are prima facie material to frame charge against accused, charge for the offence punishable u/S.302 r/w.34 IPC are framed read over and explained to the accused. Accused pleaded not guilty and claims to be tried. Hence, case is fixed for trial. In order to establish the case of the prosecution, the prosecution examined witnesses as Pws.1 to 22 and got marked Exs.P1 to 79 documents. Since, there are incriminating evidence available against the accused, statement of the accused u/S.313 Cr.P.C. recorded. The accused persons denied all the incriminating evidence available against them and submit that there is no defence evidence.
5. Heard arguments of public prosecutor and the Advocate for accused through VC.
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6. The points arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that on 30.11.2018 at about 9.00 p.m. on the Hennur Bagaluru main road, 3rd Cross, Chikkagolappa extension, within the jurisdiction of Hennur Police Station, the accused Nos.3 and 4 along with other juveniles with common intention had attacked with knife on all over body of Keshava, by which Keshava suffered bleeding injury and succumbed to the injury and thereby committed an offence punishable u/S.302 r/w.34 of IPC?
2. What order?
7. My findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : As per the final order for the following:6
S.C. No.427/2019 REASONS Point No.1 :
8. It is definite case of the prosecution that these accused persons are having previous enmity with Keshava regarding dance in a procession. On this background, accused persons formed an unlawful assembly, holding deadly weapons on 30.11.2018 at about 9.00 p.m. at 29th cross, near house No.50, old Bagaluru layout committed murder of Keshava. In order to prove the charge leveled against accused, prosecution examined the witness PW1, who is complainant and the sister of deceased in this case. She has deposed that Keshava married one Nazma and he was residing along with his family at Kalkere and out of their wedlock Kehsava got 2 children. She also deposed that on 30.11.2018, at about 9.15 p.m, when she was in her residence, one Govindaraju visited her house and told that somebody committed 7 S.C. No.427/2019 murder of Keshava. Hence, she rushed to the Henur Bande and saw the dead body of Keshava which was lying dead in the pool of blood. So, she went to Hennur Police Station and gave oral statement. Police have recorded her statement as per Ex.P1 and the signature of the witness marked as Ex.P1(a).
9. PW1 also deposed that on enquiry she came across that on the same year in Ganesha festival at Vaddarapalya, one Avinash, Dileep, Joe and other friends were heavily drunken and they were dancing in the procession. At that time, Keshava advised those persons to behave properly. Hence, they got annoyed and kept an eye on Keshava and followed him wherever he went. She also deposed that she come to know about this fact through Keshava's friends. She also deposed that she lodged complaint based on the information given by friends of Keshava. 8
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10. PWs.2 and 3 are mahazar witnesses have deposed that on 1.12.2018 police have called Pws.2 and 3 and Govindaraju to conduct the mahazar. Accordingly, they conducted mahazar on the spot of murder and seized bloodstained soil and normal soil from the spot and packed and sealed the same. The mahazar is marked as Ex.P3, signature of the whitenesses marked as Exs.P3(a) and (b) respectively. They also deposed that mahazar was drawn in between 9.30 a.m. to 10.30 a.m. The sealed packets opened before the Court and sample soil collected by the police marked as M.O.1 and signature of the witness on the seal marked as M.O.1(a). The bloodstained soil marked as M.O.2 and signature of the witnesses on the seal marked as M.O.2(a) and (b). Police have taken photographs of the spot which marked as Exs.P4 and P5. The sample seal marked as Ex.P6.
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11. PWs.4 and 5, in their evidence deposed that on 4th December 2018, Hennur Police called him over to the police station and police have seized clothes from Arjun. They also deposed that police have issued notice to them as per Ex.P7. They deposed that police have seized clothes from Arjun as per Ex.P8 and they attested signatures on the mahazar as per Exs.P8(a) and 8(b). They identified the clothes which marked as M.Os.3 and 4. Signature of the witnesses on the chit marked as M.O.3(a) and (b) and M.O.4(a) and (b). They also deposed that one Avinash was in the police station and he had taken them to his house along with police situated at old Bagaluru layout, took them to the terrace of his house and produced one long from the poultry box and handed over to the police. They further deposed that police have taken photographs. They also have deposed that accused had taken them to neighboring building which was under construction 10 S.C. No.427/2019 and shown the spot to the police where he burnt the clothes. Police have drawn mahazar as per Ex.P9 and obtained signature of the witness. The signature of the witnesses marked as Exs.P9(a) and (b).
12. These witnesses identified long which marked as M.O.5. Photographs taken at the time of seizure got maked as Exs.P11 to P13. They also deposed that on the same day police have seized motorcycle from the shop shown by juvenile Avinash and photographs are marked as Exs.P17 to 19. Both Pws.4 and 5 have identified accused No.4 Arjun through V.C.
13. Pws.6 and 7 in their evidence deposed that on 5.12.2018, when they were at lorry stand, police have called them to the police station. Accused Dilip was present in the custody. They further deposed that police have seized blue jeans pant and brown colour shirt from Dilip and drawn mahazar in between 3.30 p.m. and 4.30 p.m. and obtained their signatures. 11
S.C. No.427/2019 They identified the material objects seized by the police which marked as Exs.P6 and 7. The mahazar is marked as Ex.P21, signature of the witnesses marked as Exs.P21(a) and (b). They also deposed that police have taken photographs as per Exs.P27 to 29.
14. They deposed that Dilip had taken them and police to Hennur main road, Geddahalli Raja Kaluve and produced knife which is in length of 89 inch. They identified knife/Machu as Ex.P8. They also deposed that police have drawn mahazar in between 3.00 p.m. to 3.30 p.m. and they have obtained their signature. Signature of the witnesses marked as Exs.P25(a) and (b). They have also deposed that police have taken sample seal and obtained signature. Signature of the witnesses marked as Exs.P26(a) and
(b). They have further deposed that police have taken photographs at the time of seizure which marked as Exs.P27 to 29.
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15. Pws.8 and 9 in their evidence deposed that, on 6.12.2018 when they were at lorry stand, police have called them to the police station and in police station Abhishek was present in custody. Said Abhishek taken them to Kacharakanahalli pool and produced one long and knife to the police, police have seized the same and packed it and drawn mahazar in between 3.30 p.m. and 4.30 p.m. as per Ex.P31 and obtained their signatures. The signature of the witnesses marked as Exs.P31(a) and (b). These witnesses identified long which marked as M.O.9. They have also deposed that police have obtained long and knife which marked as M.Os.9 and 10. They have also deposed that police have obtained their signatures on the chit marked as M.O.9(a) & (b) and M.O.10(a) &
(b). They also deposed that police have taken photographs which marked as Exs.P32 to 34. 13
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16. According to the prosecution, Pws.10 and 11 were the eyewitnesses to the incident. Pws.10 and 11 in their evidence deposed that they knew deceased Keshava who was working as a lorry driver. They further deposed that in the year 2018, in the Ganesha festival there was quarrel between Arjun, Abhishek, Dilip and Avinash, at that time, Keshava advised them to behave properly. So, these persons got annoyed against Keshava. They further deposed that Keshava informed them that Arjun, Abhishek, Dilip and Avinash were chasing him. They further deposed that on 30.11.2018 at about 9.30 p.m., they received a phone call that Keshava was murdered at Hennur Palya. They further deposed that they have not witnessed the murder and have given statement before the police.
17. PW12 in his evidence deposed that he knew deceased Keshava and he was working as a lorry 14 S.C. No.427/2019 driver. He further deposed that Keshava has no bad antecedents and whenever there was quarrel between Arjun, Abhishek, Dilip and Avinash, Keshava had advised them. So these persons got annoyed with Keshava and they were following Keshava wherever he went.
18. PW13 is a police constable deposed that on 1.12.2018, he himself and Cws.29 and 35 deputed to trace out the accused persons in Crime No.380/2018. Accordingly, on 3.12.2018 at 3.45 p.m. he traced out the accused Gurubrahma and produced him before CPI and CW29 submitted report. Further he deposed that on 5.12.2018, they found the accused Dilip at East Railway Station and produced him before the CPI along with report. This witness identified the accused Dilip through V.C.
19. PW14 is the Head Constable, in his evidence deposed that on 1.12.2018, he himself and Cws.32 and 15 S.C. No.427/2019 34 deputed to trace out the accused in Crime No.380/2018. That on 4.12.2018 at 10 a.m., based on the credible information accused Arjun and Avinash were traced and they arrested the accused Arjun and Avinash at New Bagalur layout and produced before P.I. at 10.40 a.m. He also deposed that they have submitted report to the P.I. as per Ex.P40 and this witness identified the accused Arjun through V.C.
20. PW15 in his evidence deposed that 3.12.2018 police have called him and one Narasimha to the police station to seize the material objects through boy by name Brahma. Police notice issued to them is marked as Ex.P42. He also deposed that the said Gurubrahma taken them and police to Hennur Bande near Church and picked one knife which kept in a gutter situated near the compound of the church. He further deposed that Gurubrahma told that by using dagger they committed the murder. The police have seized the said 16 S.C. No.427/2019 dagger and drawn mahazar as per Ex.P43. He further deposed that he affixed his signature on the mahazar Ex.P43 as per Ex.P43(a), then they returned to the police station.
21. Then again said Gurubrahma on the same day taken them to one house at Ramaswamy Palya and produced one blue colour jeans pant and shirt. He also deposed that police have seized the same under mahazar in between 4.30 p.m. and 5.30 p.m. He further deposed that he put his signature on the mahazar. The said mahazar is marked as Ex.P44 and signature of the witness marked as Ex.P44(a) and the material objects marked as M.Os.12 and 13. He also deposed that police have obtained his signature on the chit at the time of seizure of M.Os.12 and 13 and pasted on the back. He also deposed that police have seized the sample seal and obtained his signature. Further Police have taken photographs at the time of 17 S.C. No.427/2019 mahazar. The photographs are marked as Exs.P46 to
48. He also deposed that at the time of seizure of clothes the police have taken photographs which are marked as Exs.P49 to 51.
22. PW16 in his evidence deposed that on 1.12.2018 he saw dead body of deceased Keshava and police have drawn inquest mahazar as per Ex.P52 and he affixed signature to the mahazar as per Ex.P52(a).
23. PW17 in his evidence deposed that on 30.11.2018 at about 6.30 p.m. he went to Rajeshwari bar situated at Hennur Bande to consume alcohol. He further deposed that at 8 p.m. Keshava also visited to the said bar and consumed alcohol. Later both of them came out from the bar at 9 p.m. Keshava had parked his two wheeler at road side. Hence, he went there to take vehicle, when he went about 15 feet further, about 34 persons appeared suddenly and assaulted on Keshava with Machu. He also deposed 18 S.C. No.427/2019 that on the same day he went to hospital and saw dead body of Keshava.
24. PW18, Police constable, deposed that on 1.12.2018, he submitted FIR to the jurisdictional Magistrate with respect to the Crime No.380/2018.
25. PW20 is the Doctor who conducted postmortem of deceased Keshava. In his evidence he deposed that on 1.12.2018 at the request of PI of Hennur Police, he conducted postmortem of Keshava, aged 30 years, in between 12.30 p.m. and 1.30 p.m. Postmortem report is marked as Ex.P78. The signature of the witness is marked as Ex.P78(a). He further deposed that in the Postmortem report he has noticed 13 cut injuries and 5 stab injuries. He also deposed before the Court that injuries mentioned in Postmortem report can be caused with M.Os.5, 8 to 11. he also deposed that all the injuries found on the dead body were taken place prior to the death and the 19 S.C. No.427/2019 injuries are antemortem, fresh and homicidal in nature. He further deposed that those injuries are caused by light and fairly heavy cutting weapons. The margins of chop wounds are contused and incised wounds are clean cut. He also deposed that death was due to shock and hemorrhage as a result of multiple homicidal injuries sustained. He further deposed that he collected the blood of the deceased and packed the same and handed over to the I.O. Further he deposed that, he packed materials of the deceased Keshava and handed over to the I.O. Six packs are marked as M.Os.14 to 19 and signature of the witness is marked as Exs.P14(a) to 19(a).
26. PW21 in his evidence deposed that on 3.12.2018 he was deputed to trace out the accused. Accordingly, he himself, based on the information, Cws.30 and 35 went near Rajakaluve at Horamavu and arrested Gurubrahma and produced him before CPI. 20
S.C. No.427/2019 Further, on 5.12.2018 on receipt of credible information they arrested Dilip and produced him before PI and submitted report. The report is marked as Ex.P63 and the signature of the witness marked as Ex.63(b).
27. PW22 is the police constable deposed that, on 8.1.2019 as per the order of PI he had produced 19 objects before F.S.L. and obtained acknowledgment.
28. PW19 is the Police Inspector, who conducted investigation of this case and filed charge sheet against the accused. In his evidence he has deposed that on 30.11.2018 at 9 p.m. he received phone call that there was a murder at HennurBagalur main road, Hennur bande. Accordingly, with staff he rushed to the spot and found that one person was died with bleeding injury. He enquired with the localites and came to know that name of death person is Keshava resident of Vaddara Palya. He further deposed that since incident 21 S.C. No.427/2019 was happened in public road, in order to maintain law and order he had taken photographs of the dead body and shifted the dead body to Dr.Ambedkar Medical College and deputed staff in the spot. He further deposed that at about 10 p.m. sister of deceased by name Netravathi appeared before him and lodged written complaint. He received the same, registered a case under Crime No.380/2018. The complaint is marked as Ex.P9, signature of the witness is marked as Ex.P9(b). FIR is marked as Ex.P54 and signature of witness is marked as Ex.P54(a). He further deposed that on 1.12.2018, he visited the spot and drawn mahazar in between 8 a.m. and 9 a.m. as per Ex.P3. He further deposed that eyewitness Dinakar shown the spot. At the time of mahazar seized bloodstained soil and normal soil and sealed in a pack, prepared rough sketch of spot and taken photographs as per Exs.P4 and 5. Further he seized sample seal as per Ex.P6 and 22 S.C. No.427/2019 obtained signature of the witness. The rough sketch is marked as Ex.P55, signature of the witness is marked as Ex.P55(a).
29. Further PW19 deposed that then he went to Dr.Ambedkar Medical College and issued notice to Nagaraj, Kumaresh and Ravi and in their presence drawn inquest mahazar as per Ex.P52 and the photographs taken as per Ex.P56, then requested Doctor to conduct postmortem on the dead body. On the same day recorded statements of Venkatesh, Murali, Arun, Kiran, Sharath, Dinakar and Sarojamma and further statement of complainant. He deposed that Pws.10 and 11 had given statement before him as per Exs.P36 and 37.
30. PW19 further deposed that he deputed constables Firoz Khan, Raja Sab, Gouse Pak, Lakshman and Umesh to trace out the accused. On 3.12.2018 at 12.00 noon they have produced juvenile 23 S.C. No.427/2019 Gurubrahma alongwith report and on enquiry Gurubrahma admitted that he participated for the commission of crime. Hence, he arrested him. The report submitted by police constable Fairoz khan marked as Ex.P57. He also deposed that he recorded statement of juvenile Gurubrahma and he stated that he will show the knife which used for commission of offence. The relevant portion of voluntary statement of Gurubrahma is marked as Ex.P58(a). He further deposed that he called Nutan and Narasimha to assist as panchas. Accordingly, Gurubrahma taken panchas, police to Bagalur main road, Chikkagolappa extension, 3rd cross near the compound of Sadupadesha church and picked one knife from the bush. He further deposed that they have seized knife under mahazar Ex.P43 conducted in between 2.45 p.m. to 3.45 p.m. and taken photographs. Then said Gurubrahma taken them to his uncle's house situated at Janakirama 24 S.C. No.427/2019 layout and produced one jeans pant and T shirt. They seized the same under mahazar Ex.P44 conducted in between 4.20 p.m. to 5.30 p.m. and obtained signatures of panchas. The photographs taken at the time of seizure of clothes and knife which are marked as Exs.P46 to 51. The seized knife (dagger) marked as M.O.11. He also deposed that after seizure of weapon and clothes juvenile Gurubrahma was remanded to remand home.
31. The I.O. further deposed that on 4.12.2018 at about 1.30 night hours he received credible information that persons who committed crime were near Hennur Bande, he himself along with staff went there and tried to apprehend the said person, by that time, the said person assaulted the police constable Santhosh with knife. Further he deposed that at that time he shot on the leg of said person in selfdefence. Then injured was shifted to Bowring hospital and on 25 S.C. No.427/2019 enquiry came to know that name of the said person was Abhishek. On the same day at about 11 a.m. police constable Lakshman and Umesh Naik produced the accused Arjun and Avinash along with report Ex.P40. On enquiry they disclosed that they had involved in the commission of crime. Hence, recorded voluntary statement of Arjuan and Avinash. In the voluntary statement given by Arjun disclosed that, he would show the weapon used for commission of crime and also place where he burnt clothes, also motorcycle which was used to escape from the place of occurrence. The relevant portion of voluntary statement of Arjun marked as Ex.P60. He also deposed that he called the persons by name Karthik and Amarnath seeking their assistance. He further deposed that Arjun produced his clothes which was worn by him at the time of commission of offence and drawn mahazar. He also deposed that based on the statement of Avinash, he 26 S.C. No.427/2019 along with panchas and accused went to Sagayapura main road, 29th Cross and accused taken them to terrace and produced one long measuring 22.5' in length and 1.5' in width having wooden handle from the poultry box. The said long also seized. Then he also shown place where he burnt clothes. He also deposed that Apache motorcycle No.KA 53 EA 4604 was seized from the shop and drawn mahazar in between 3 p.m. and 4.30 p.m. and the photographs taken at the time of seizure of articles which marked as Exs.P11 to 19 and 61 & 62. This witness further deposed that on medical examination accused produced before the Court. He deposed that he recorded statement of Lakshman Rathod and Santhosh Lamani. That on 5.12.2018 at 12.00 noon police constables Fairoz Khan, Rajasab and Gouse Pak produced accused Dilip along with report Ex.P63. On enquiry with the accused he come across that he participated for the commission 27 S.C. No.427/2019 of crime. Accordingly, his voluntary statement was recorded. The accused disclosed that he will produce knife and clothes. The relevant portion of the voluntary statement which marked as Ex.P64(a). He further deposed that he called panchas by name Mohankumar and Ashok kumar and made arrangement to the accused to change his clothes. Then seized clothes of the accused and drawn mahazar in between 2 p.m. and 2.45 p.m. Then accused taken police and panchas to Geddaala halli Raja kaluve and produced the knife, which has been seized under mahazar. He further deposed that photographs were taken at the time of seizure of knife and clothes. Knife is marked as M.O.8. He also deposed that after seizure they returned to the police station and produced accused before the court.
32. PW19 further deposed that juvenile Abhishek was discharged from the hospital. Hence, he recorded 28 S.C. No.427/2019 his voluntary statement. At the time of statement he disclosed that he would show the place where he kept the weapon which used for commission of crime and also clothes which he worn at the time of commission of crime. Portion of voluntary statement marked as Ex.P66(a). So, IO given notice to the witnesses by name Srinivas and Subramani seeking their assistance for investigation. The juvenile Abhishek lead them to Ramadeva Garden near Sunday Bazar, Kacha road, then he went near bush and produced the knife and long. He further deposed that those weapons were seized under mahazar as per Ex.P31. The photographs were taken at the time of mahazar which marked as Exs.P32 to 34, Long marked as M.O.9 and Knife is marked as M.O.10. He also deposed that on medical examination juvenile produced before the Court. Then to ascertain the age of the boy Abhishek he has requested the head master of Saraswathi Vidyalaya to 29 S.C. No.427/2019 furnish documents. Further he also requested head master of Jyothi School, Bengaluru to furnished the document to ascertain the age of Gurubrahma and received endorsement from the school. He also deposed that he received T.C. from Saraswathi Vidyalaya as per Ex.P70. Further he received TC of Gurubrahma from the school, which marked as Ex.P72. He also deposed that looking into T.C. he come across that Abhishek and Gurubrahma were minors, so he submitted report to the Court.
33. This witness further deposed that he written a letter to PWD authority to prepare sketch of the spot and also requested to BESCOM authority to ascertain and submit report that whether there was electricity at the time of incident. He further deposed that he collected 'B' extract with relating to motorcycle No.KA 53 EA 4604 which used at the time of offence. The said 'B' extract is marked as Ex.P73. This witness 30 S.C. No.427/2019 further deposed that on 2.1.2019 he received clothes and other materials from Dr.Ambedkar Medical College and he also received Postmortem report as per Ex.P74. He further deposed that on 8.1.2019, he sent all the seized articles to the FSL for scientific examination. He completed investigation and came to know that these accused persons along with juveniles committed the offence. Hence, he filed charge sheet against them. Further he deposed that on receipt of FSL report subsequently submitted before the Court. Then I.O. identified accused Dilip and Arjun through V.C.
34. The learned Public Prosecutor vehemently argued that the offence occurred on 30.11.2018 at 9.00 p.m. and sister of the deceased lodged complaint immediately at 10.45 pm as per Ex.P1. The jurisdictional police received information about the incident. So, I.O. immediately rushed to the spot and since the offence taken place on the public road, in the 31 S.C. No.427/2019 interest of the public, dead body was shifted to the hospital. Then on 1.12.2018 spot mahazar was drawn by the Investigating officer in the presence of panchas. The inquest mahazar also drawn in the presence of panchas. Further statement of the complainant as well as statement of the eyewitnesses PWs.10 and 11 recorded by the I.O. and he deputed the staff to trace out the accused during the course of investigation. Apart from accused Nos.3 and 4, accused Nos.1, 2 and 5 also arrested and there was a seizure of material objects in the presence of panchas at the instance of accused persons. The learned public prosecutor vehemently argued that on behalf of the prosecution PWs.1 to 22 witnesses examined and Exs.P1 to P79 documents got marked. Apart from that material objects M.Os.1 to 19 also seized at the time of mahazar and got marked. It is argued that PWs.1, 10 and 11 are the eyewitnesses to the incident. They had given 32 S.C. No.427/2019 statement before police, but during the course of evidence they turned hostile, but they deposed regarding animosity of the accused with the deceased. It is argued by PP that though Pws.10 and 11 turned hostile, their evidence to be looked into as the prosecution case is based on the circumstantial evidence available before the Court to prove the guilt of the accused. The prosecutor raised four circumstances
i) animosity between the parties. It is argued that the evidence of PWs.1, 10 and 11 reflects that accused persons having animosity against the deceased, for the reason that during the Ganesha festival deceased advised accused persons not to make galata. So, they were following deceased wherever he goes. This fact has been explained by deceased himself to PWs.10 and
11. Further, it is argued that the main circumstances is animosity between accused and deceased. 33
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35. The second circumstances taken by the prosecution that on 30.11.2018 Keshava murdered by deadly weapon and it is argued that PW17 was present with the deceased just before the incident. He deposed that some unknown persons assaulted on the Keshava. Further PW20, Doctor, who conducted postmortem deposed what are all the injuries found on the dead body. Doctor in his evidence deposed that there are 18 injuries on the dead body of Keshava; it is cut and stab injury and these injuries can be caused if any one assaulted with MOs.5, 8 to 11. It is argued that in the evidence Doctor has opined that death of Keshava was homicidal. There is 3rd circumstances with regard to seizure mahazar. It is argued that during the course of investigation the I.O. seized the weapons which used for commission of offence. Those weapons were seized through juvenile. After arrest, voluntary statement of 34 S.C. No.427/2019 the accused person were recorded and based on the voluntary statement recovery was made by the IO.
36. It is argued that in the evidence of PW19 (IO), in para 11, he has deposed that on 4.12.2018 at 1.30 am they arrested Abhishek and he made attack on the police constable Santosh, so as selfdefence the I.O. shot on the leg of Abhishek. Since he sustained injury on leg, he was shifted to Bowring hospital for treatment. It is argued that I.O. recorded the voluntary statement of Juvenile Arjun and Avinash and based on the voluntary statement the clothes of Arjun and weapons used for commission of crime are seized. It is argued that PWs.4 and 5 seizure mahazar witness of clothes of Arjun were deposed in consonance with the mahazar. Further it is argued that evidence of PWs.4 and 5 corroborates with the evidence of PW19. Further, argued that PWs.6 and 7 deposed regarding seizure of 35 S.C. No.427/2019 clothes of accused No.3 Dileep, through accused No.3 knife was seized under mahazar. It also argued that recovery of clothes and weapons at the instance of accused persons were proved by the prosecution. Juvenile Abhishek arrested; he also given voluntary statement and in his voluntary statement he has stated about commission of offence along with accused No.4 Abhishek and the weapon used by Arjun was given to Avinash and in turn Avinash given that weapon to the J2 Abhishek. The voluntary statement of J2 coupled with Ex.P66 reflects that from the accused No.4 weapon and clothes were seized. The weapon used for the commission of crime is recovered through Abhishek.
37. The learned Prosecutor argued that 4 th circumstances is bloodstained clothes and knife. Further, Mos.1 and 2 and soils seized from the spot 36 S.C. No.427/2019 under Mahazar and M.Os.3 to 13, which are weapons and clothes seized from the possession of the accused persons. MOs.14 to 18 are the clothes of deceased and M.O.19 which is the blood sample of the deceased. It is argued that as per Ex.P18 bloodstains were detected from the material objects M.Os.2 and 5 and it is blood 'O' group. It is argued that M.Os.12 and 13 are recovered at the instance of J2 Abhishek which is used by accused No.4 Arjun for the commission of offence. It is argued that though PW19 not determined the blood and other material objects stained with blood of 'O' group, the clothes seized from the possession of the accused are clothes of deceased and weapons were stained with blood of 'O' group. Further it is argued that these bloodstains found on the weapons and clothes of the deceased are the blood of the deceased Keshava. It is argued that accused persons have taken defence that they have not committed murder, on the 37 S.C. No.427/2019 other hand somebody had murdered Keshava. But said suggestion is not put to the I.O. during the cross examination. Further it is argued no evidence by defence to make believe that they are falsely implicated in this case. It is argued that failure of serologist to found the origin of blood is not fatal to the case of the prosecution. It is argued whatever omission and contradiction found in the evidence of witnesses will not go to the root of the prosecution. It is argued that the evidence of seizure mahazar witnesses, the complainant, eyewitnesses, the evidence of Doctor coupled with the evidence of I.O. prosecution proved four circumstances i.e. i) animosity between the accused and the deceased. Further seizure of material objects under seizure mahazar is proved by examining the witnesses. The witnesses very clearly deposed that at the instance of accused persons the material objects have been seized by the I.O. Further, the bloodstains 38 S.C. No.427/2019 found in the clothes of the accused, and weapon which are human blood which connected the circumstances to prove that these accused persons along with juveniles with common intention with previous animosity committed the murder of Keshava and thereby prosecution has proved beyond all reasonable doubt that these accused Nos. 3 and 5 along with juvenile committed murder of Keshava and thereby committed the offence punishable u/S.302 of IPC. Accordingly, learned Public Prosecutor prays for conviction of the accused.
38. The learned Public Prosecutor relied on the following Hon'ble Supreme Court citations in support of his arguments.
1) Rameshbai Mohanbhai Koli & Ors. Vs. State of Gujarat on 20 October, 2010,
2) State of Rajasthan Vs. Teja Ram and others on 1 February, 2000,
3) Radha Mohan Singh @ Lal Saheb And.... Vs. State of U.P. on 20 January, 2006 and 39 S.C. No.427/2019
4) Prithu @ Priti Chand & Anr. Vs. Stae of H.P. on 18 February, 2009.
39. The learned Advocate for accused vehemently argued that the seizure of weapons is not proved by the prosecution as the recovery is not made through the accused No.4 Arjun and there is no evidence regarding the use of knife by accused No.4. Further it is argued that the witnesses deposed that at the time of seizure of clothes it was on the table. It is argued that the mahazar witnesses do not know the name of the accused and why they have arrested. So, there is no disclosure statement. It is argued that though the witnesses deposed regarding seizure of mahazar, nowhere they have stated material objects were of bloodstained. So, it is very difficult to believe that how the bloodstains come on the material objects i.e. clothes and knife. It is further argued that, all the witnesses are friends of deceased and they have not 40 S.C. No.427/2019 stated these accused lead the police for recovery. Hence, it cannot be looked into. Further it is argued that according to the police, eyewitnesses given statement before the police at the time of inquest and their evidence recorded subsequently. Further it is argued that there were exchange of words prior to the incident but there is no material to show that there was galata in Ganesha festival. Further, prosecution has not established that there is a motive behind commission of crime. It is argued that according to prosecution, the incident taken place when the deceased went out from the bar. According to the prosecution, on that day Keshava also had consumed alcohol. So, the owner of the bar who was present at that time was material witness to say that Keshava consumed Alcohol and soon after he left from the bar he was attacked by the culprits.
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40. It is argued that though the material objects were recovered through the accused persons and photographs taken at the time of seizure mahazar, the I.O. not placed the material object i.e. deadly weapons before the Doctor to seek opinion that whether injury found on the dead body of the deceased can be caused with the material object. The Doctor speaks only about the stab injury. There is no opinion of the Doctor.
41. It is further argued that the material objects sent to the FSL for scientific examination and Sl.No.6 reflects that blood sample was disintegrated. It is argued that no bloodstains on the material objects, but it is manipulated by the I.O. Further it is argued that none of the witnesses speaks about incident and regarding seizure is concerned, there is contradiction in the statement. According to prosecution, the entire seizure is made based on the voluntary statement of the accused persons and whatever statement given by 42 S.C. No.427/2019 the accused before the I.O. cannot be looked into unless it is proved. Since none of the witnesses speak about bloodstains on the objects, then stains found on the material objects as described in F.S.L. cannot be believed. Further, it is argued that either F.S.L. report or P.M. report does not reflect the group of the blood of the deceased. Further it is argued that since the group of the blood is not proved, it cannot be connected to the crime. Investigating agency manipulated themselves and created the stains on the material objects and the said benefit goes to the accused. Further it is argued that, though PW10 and PW11 are the eyewitnesses, they turned hostile and cross examined by the prosecution. These persons available at the time of inquest mahazar. They have not given any statement against the accused. It is argued that according to prosecution, there was quarrel between accused, so Keshava advised. Therefore, it cannot be 43 S.C. No.427/2019 believed that there is enmity between accused and Keshava. It is argued that complainant and the deceased were not residing together, on the other hand deceased residing along with his wife in Kalkere village. So, she is material witness. The Advocate for the accused argued that if the accused persons are following Keshava prior to the incident, i.e. before alleged Ganesha festival and this incident, definitely he would have informed the same to the police or he could have disclosed this fact to his wife. It is also argued that in further statement of the complainant, she has not informed that who disclosed the names of the assailants. It is argued that prosecution failed to prove the motive and there is no material to show that there is preparation by the accused for the commission of the crime. It is further argued that since the prosecution failed to prove the motive, recovery and failed to connect the material object to this crime, there 44 S.C. No.427/2019 is no disclosure statement and there is no bloodstains on the material objects, when eyewitnesses turned hostile, all these aspects create doubt about the investigation and involvement of these accused persons. So, it is argued that benefit of the doubt be extended to the accused. Further it is argued that the entire chain of circumstances not proved by the prosecution. Hence, prays for acquittal of the accused.
42. In support of his argument, the learned Advocate for the accused cited following Hon'ble Supreme Court Citations:
1) Verghese Vs. State of Kerala on 3 March, 1998.
2) 2004(1) Crimes 224 (SC) Bacchu Narian Singh Vs. Naresh Yadav & others.
43. With the above arguments, it is now for the Court to see whether prosecution proved beyond all reasonable doubt that the accused Nos.3 and 4 along 45 S.C. No.427/2019 wtih juveniles committed the murder of deceased Keshava. The entire case of the prosecution is depends on the evidence of eyewitnesses. But during the course of trial, the eyewitnesses Pws.10 and 11 turned hostile to the case of the prosecution and they have deposed that they have not seen the murder. Then prosecution made attempt to prove the case based on the circumstantial evidence.
44. The Hon'ble Apex Court in a case Sharad Birdhi Chand Sarda Vs. State of Maharastra (DD 17.7.1984) reported in AIR 1984 SC 1622 the following five golden principles, constitute the panchasheel of the proof, in a case of circumstantial evidence.
i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. 46
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ii) the fact so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty.
iii) the circumstances should be of a conclusive nature and tendency,
iv) they should exclude every possible hypothesis except one to be proved and
v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
45. One of the circumstances relied on by the prosecution that there is animosity between the accused persons with Keshava. According to prosecution on the Ganesha festival there was a galata 47 S.C. No.427/2019 between parties, so the accused were following the deceased wherever he goes. PW1 in her evidence deposed that she came to know about the murder through one Govindaraju, when she was in her residence. She came across that somebody committed the murder of Keshava, then she went to see the dead body of the Keshava. The dead body was lying in the pool of blood. Then she went to the police station and lodged complaint to the police as per Ex.P1. On perusal of Ex.P1 it reflects that she has stated in the complaint that some unknown 3-4 persons assaulted on her brother with deadly weapon and committed the murder. She also stated in the complaint that those persons committed murder for some unknown reason. This complaint is lodged by the complainant on 30.11.2018 at 9.15 p.m. In her crossexamination she admitted that she rushed to the spot within 10 minutes and when she reached spot, at that time 56 48 S.C. No.427/2019 police personnel were already present in the spot and public also present. The police shifted the dead body to the hospital. She has stated that she has not followed them to the hospital, but on the next day she went to the hospital at 10 a.m. It is pertinent to note that in the crossexamination she admitted that soon after seeing the dead body of her deceased brother Keshava in the spot, she returned to the house and then she went to the police station. But contrary to this she deposed that she made enquiry with the friends of his brother and came to know that in the same year on the Ganesha Festival day at Vaddarapalya, Avinash, Dilip, Joe and other friends were heavily drunken were dancing in the procession. By that time his brother advised those persons to behave properly. In this regard they got annoyed against her brother and this fact was came to her knowledge through the friends of Keshava. So, she 49 S.C. No.427/2019 had given further statement before the police. Further, Pws.10 and 11 deposed that in the year 2018, in the Ganesha festival there was a quarrel between Arjun, Abhishek, Avinash and Dileep, by that time, Keshava advised to them. So, these persons got annoyed against Keshava and they were following Keshava. According to them, this fact came to their knowledge through Keshava.
46. According to prosecution, Pws.10 and 11 witnessed the murder in street light. But these witnesses deposed that they have not witnessed the murder of Kehsava and not given statement before the police as per Exs.P35 and 36. These two witnesses were treated as hostile by the prosecution and cross examined by the prosecutor. P.P. suggested that they have witnessed the incident with the help of street light and accordingly they have given statement before the police. But witnesses have denied that suggestion. 50
S.C. No.427/2019 Nothing incriminating material evidence elicited by the prosecution from the mouth of Pws.10 and 11. Further, PW12 in his evidence deposed that Keshava advised to Arjun, Abhishek, Dilip and Avinash whenever they were quarreling themselves. So, they got annoyed. He deposed that Keshava told to him that these people are following him. He clearly deposed that he came to know that on 30.11.2018 at 9 p.m. Keshava was murdered. In the crossexamination he deposed that he received phone call that somebody had murdered Keshava at Hennur Bande. He also deposed that, he has not questioned Keshava why those persons are following him. In his crossexamination he deposed that he has no impediment to question accused persons why they were following Keshava. He deposed that since he do not know anything he has not questioned the accused. The evidence of PW12 is no way helpful to the prosecution. Further, though Pws. 51
S.C. No.427/2019 11 and 12 crossexamined by Public Prosecutor, nothing material elicited from the mouth of the witnesses to prove that these witnesses witnessed the murder. Further, according to complainant, she came to know through friends of Keshava that these accused persons committed the murder. But she has not disclosed the names of persons who informed that there was galata in the Ganesha festival.
47. Apart from that, according to prosecution the accused persons themselves quarreled on the Ganesha festival day. so Keshava advised them. It is not the case of the prosecution that there was galata between accused person and Keshava. But according to prosecution, the accused persons when themselves making galata, Keshava advised them not to make galata. If it is so, why the accused persons got annoyed with Keshava is not explained. Because Keshava not played any role and he has no animosity 52 S.C. No.427/2019 towards the accused and accordingly accused persons also not having any animosity on Keshava.
48. According to prosecution, after Ganesha festival, these accused persons were following Keshava wherever he goes. If really, these accused persons were following Keshava with an intention to commit any crime, definitely, this fact would have been informed to the police. Further, according to Pws.10 and 11, Keshava told that these accused persons were following him. But any of them not made any effort either to question the accused persons or to lodge complaint against those accused persons. There is no material evidence to substantiate the contention that these accused persons followed Kehava after Ganesha festival. The evidence of the complainant also not helpful to the case. She has not come to know these facts through Keshava, on the other hand, some of the friends of Keshava informed. Since prosecution had 53 S.C. No.427/2019 relied on the evidence of eyewitnesses, but when eyewitnesses turned hostile, P.P. try to establish case on circumstantial evidence, in that case, it is upto prosecution to establish the motive, then connect the accused to the alleged incident. But in this case, the evidence of Pws.1, 10 and 11 is not sufficient to establish the motive of the accused.
49. Another circumstance taken by the prosecution is that on 30.11.2018, accused persons committed murder of Keshava with deadly weapons. In this case, police have seized the weapons at the instance of the accused based on the voluntary statement given by them.
50. The prosecution tried to establish the case against accused and relied on the seizure mahazar drawn by the police during the course of investigation. Ex.P8 is the seizure mahazar drawn by the police. According to prosecution, the police have seized the 54 S.C. No.427/2019 clothes of accused No.4 Arjun and drawn mahazar as per Ex.P8 in the presence of panchas by name Pws.4 and 5. Pws.4 and 5 deposed that police have issued notice to them. Accordingly, they have assisted the police and police have seized clothes from Arjun. Those clothes marked as M.Os.3 and 4. They also deposed that one Avinash was in the police station and he had taken them to his house along with police, the said house situated at old Bagaluru road and he had taken them to terrace of house and produced the long which kept in poultry box. Police have drawn mahazar as per Ex.P9. They deposed regarding seizure of long through juvenile Avinash. During the cross examination PW4 deposed that Arjun (Accused No.4) removed his clothes and given to the police. During the crossexamination he deposed that those clothes were on the table. This witness not deposed that weapons was in Cell. This witness not deposed that 55 S.C. No.427/2019 either Arjun or Avinash disclosed any facts before him. Further he deposed that he do not know the contents of the mahazar.
51. PW5 also deposed about seizure and identified material object - long marked as M.O.5. Both Pws.4 and 5 also deposed regarding seizure of motorcycle which parked near the house of Avinash. PW5 deposed that he do not know the contents of Ex.P8 Mahazar. He also deposed that at the time of seizure of clothes from Arjun, Arjun was in the Cell, the clothes were on the table. There is no material to show Arjun disclosed any fact before the witness.
52. Ex.P9 is relating to seizure of long, motorcycle and place where the clothes burnt. According to prosecution Ex.P9 drawn at the instance of Avinash and Avinash is juvenile. He has not faced trial in this case.
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53. According to prosecution, the police have seized the clothes of accused No.3 Dileep and drawn mahazar as per Ex.P21. According to prosecution, Ex.P21 mahazar drawn by the police in the presence of Pws.6 and 7 and police have seized clothes of accused No.3 Dileep. Pws.6 and 7 deposed regarding seizure of clothes and they have also deposed that police have taken photographs of spot etc. Further according to prosecution, accused Dilip taken witnesses and police to Geddalahalli, Rajakaluve and produced knife which marked as M.O.8. The said mahazar drawn at the time of seizure which is marked as Ex.P25 in this case. On perusal of Ex.P25 it reflects that ಇನನನನಪನಕಕರರ ರವರರ ಆರನರರಪಯನರನ ಪಲರಸರ ಬನಬಗಗವಲನಲಲ ಸರಕಗರ ಜರಪರ ನಬ. ಕನಎ 02 ಜ 1976 ರಲಲ ನಮಮಗಳ ಸಮಕಕಮ ಕರನದರಕನರಬಡರ ಮಧಗಧಹನ 3 00 ಗಬಟನಗನ ಠಗಣನಯನರನ ಬಟನಕವವಆರನರರಪ ಜರಪನರನ ನಲಲಸರವಬತನ ಆರನರರಪ ಜರಪನಬದ ಚಗಕರವನರನ ಬಸಗಕರರವ ಸಸಳವನರನ ತನರರರಸರರತಗತನನ .
-ಆರನರರಪ ತಗನರ ಮರಬದನ ಹನರರಗ ತಗನರ ಕಕತಧಕನಕ ಬಳಸರರವ 57 S.C. No.427/2019 ಚಗಕರವನರನ ಬಸಗಕರರವ ಸಸಳವನರನ ತನರರರಸ ಅಲಲಯರ ಬದದದದ ಒಬದರ ಚಗಕರವನರನ ತನಗನದರ ಹಗಜರರಪಡಸದನರ. During the crossexamination PW6 deposed that police taken them near Rajakaluve in a jeep, by that time, accused Dilip was present. He further deposed that he has not spoken with Dilip and he has not questioned Dilip also. Further he deposed that near Rajakaluve there is BBMP office and then plain road i.e. by the side of main road.
54. Further, PW7 also deposed regarding seizure of knife through Dilip. He also deposed that police have called for mahazar and they have seized knife at Rajakaluve. The evidence also reflects that police have taken photographs at the time of mahazar. Ex.P31 is also seizure mahazar drawn in the presence of Pws.9 and 10. According to prosecution, long and knife seized through juvenile Abhisehk. Pws.9 and 10 deposed regarding seizure of long and knife at the instance of Abhishek at Kacharakanahally pool. Much 58 S.C. No.427/2019 crossexamination has been done by the Advocate for accused and tried to discard the mahazar, but witness stood well and deposed that police have seized long and knife at the instance of Abhishek. But he admitted Keshava was his friend and he know family members of the Keshava. Ex.P43 is mahazar drawn by the police. At the time of seizure of knife this seizure mahazar was drawn by the police at the instance of juvenile Gurubrahma and Ex.P44 is the seizure of clothes of Gurubrahma.
55. According to prosecution, the seizure mahazar of material object was drawn and this material object seized at the instance of accused based on their voluntary statement. The voluntary statement of the accused person and juvenile are marked as Exs.P58, 59, 60, 64 and 66 and the relevant portion is marked as 58(a), 59(a), 60(a), 64(a) and 66(a). Any extra judicial confession given by the accused before 59 S.C. No.427/2019 the police cannot be believed unless and until it is supported with other material evidence. In this case, police have seized material objects based on the voluntary statement given by the accused persons. But all the seizure mahazar witnesses deposed that the accused persons disclosed in the statement before them that they have kept the deadly weapons which used for commission of crime in some place and they will show it. The mahazar witnesses assisted the I.O. for seizure of mahazar. The seizure of material objects is not seriously disputed by the accused, but it is upto prosecution to establish that those material objects are deadly weapons used by the accused for commission of crime. Police have recovered the material objects through juvenile and prosecution tried to connect those seizure mahazars against this accused Nos.3 and
4. The voluntary statement given by the coaccused 60 S.C. No.427/2019 cannot be made use of to prove the case against other accused to prove the guilt.
56. It is also burden on the prosecution to connect those materials which seized by the police in connection with the crime. According to prosecution, the material objects sent to the FSL for Scientific examination. Ex.P75 is the report submitted by the police constable who handed over the material objects for Scientific investigation. This document is marked through I.O. It reflects that the IO collected the clothes and other articles of the deceased and also material objects from the accused, sealed the same and handed over to the I.O. and in turn submitted the same to FSL. Ex.P76 it reflects that material objects M.Os.1 to 19 sent to FSL for Scientific investigation. Ex.P80 is the FSL report, which is marked by the consent. On perusal of the said report it reflects that Scientific expert subjected material objects for examination. The 61 S.C. No.427/2019 report reflects that the duration of examination is from 3.9.2019 to 25.9.2019. The I.O. sent entire material object seized at the instance of accused persons and also at the time of spot mahazar also sent for examination. The evidence of I.O. reflects he also sent the blood samples of the deceased i.e. item Nos.1 to 19. Ex.P80 is the report sent for examination. The report it reflects that the expert conducted test of blood by using presumptive tests namely, Benzidine test and the presence of bloodstains was further confirmed by conducting Takayama test and the extent of stains, their size and location were also noted. According to mahazar, item No.1 is bloodstained soil and item No.2 is sample soil. Item No.3 is knife. The report reflects that the presence of bloodstains were detected in item Nos.14 to 18. Further bloodstains were detected from item Nos.1, 3, 4, 6, 7, 8, 9, 10, 11, 12, and 13. Among that item Nos.3, 8, 11, 12 and 13 are the weapons, 62 S.C. No.427/2019 remaining items are clothes of the accused persons. But none of the witnesses deposed that material objects seized from the accused were bloodstained. Even if this fact is ignored and considered it is trivial, it is upto prosecution to establish that bloodstains found on the material objects M.Os.1 to 3 and bloodstains in the item Nos.14 to 18 are of the same group and it is of the same person. It is upto prosecution to establish that blood sample collected from the body of the deceased is of the same which is detected in item Nos.1 to 13 as described in the FSL report. On perusal of the FSL report it reflects that the report was given saying bloodstains detected in item Nos.8, 12, 13, 14, 15A, 15B, 16 and 18 are belongs to "O" blood group. And bloodstains detected in item Nos.1, 3, 4, 6, 7, 9, 10 and 11 were insufficient for serological analysis. Further it also stated that blood sample sent in item No.19 (blood of the deceased) could 63 S.C. No.427/2019 not be determined as the blood sample was disintegrated. Nowhere in the report it is stated that the bloodstains found in material objects of the deceased are same with the material objects i.e. clothes found in the deadly weapons.
57. According to prosecution, these accused persons along with juvenile armed with deadly weapons assaulted on Keshava and the prosecution based its case on the voluntary statement given by them and the material objects seized. On perusal of the voluntary statements it reflects that on the alleged date of incident all the accused persons were waiting for arrival of Keshava and they are armed with deadly weapons, at that time at 9 p.m. Keshava came and he was seated on his Dio motorcycle. At that time, the juvenile Abhishek attacked from behind and assaulted with knife on the head of Keshava. Juvenile Avinash assaulted with long on the neck and accused Dilip 64 S.C. No.427/2019 attacked on the face of Keshava, accused Arjun assaulted on the hand and juvenile Gurubrahma assaulted on the chest of Keshava with knife. Then they escaped from the spot. According to the prosecution,eyewitnesses given a statement before the police as per Ex.P36 and 37, but it does not reflects who assaulted whom and who armed with which weapon. The police have not seized the said motorcycle of Keshava.
58. Further as per the voluntary statement of the accused on the Ganesha festival procession they are all dancing, by that time deceased Keshava and his group of boys were also dancing, at that time hand of Abhishek touched to the boy of Keshava's group, so there was galata. By that time Keshava, group of boys belongs to Keshava assaulted on juvenile Abhishek. Later Keshava also picked up quarrel and assaulted on the juvenile Abhishek, Avinash and accused Dilip, 65 S.C. No.427/2019 Arjun and juvenile Gurubrahma. After one month of this incident, again deceased Keshava given threat before father of Abhishek by name Ram saying that the behaviour of Abhishek was too much, I will cut him and also given threat with dire consequences. If these facts which reflects in the voluntary statement of the accused is believed, then facts narrated by prosecution in this case is totally different. Prosecution story altogether reflects there was quarrel between accused persons and Keshava advised to these accused persons. So, the entire case of the prosecution standing on the footing of different story.
59. The learned prosecutor in support of the contention, drawn attention of the Court to the case of Rameshbhai Mohanbhai Koli & Ors. Vs. State of Gujarat in Criminal Appeal No.1166/2008. In the said case, during the course of investigation the accused persons given a separate disclosure statement 66 S.C. No.427/2019 showing their willingness to disclose respective places where they have hidden the weapon used for the commission of crime. Further, FSL Journal report opined bloodstains on the articles were group "O", blood group of the deceased also belongs to group "O". But in the present case in hand, though the panch witnesses deposed regarding seizure of material objects in the presence of accused, the FSL report does not reflects that said "O" blood group is the blood group of the deceased and blood group found on the material objects are same blood group. Further in the above citation the presence of the accused persons at the time of incident is proved. But in the present case in hand, none of the witnesses spoken about the presence of the accused persons in the spot and no evidence produced by the prosecution to show that these accused persons assaulted the deceased Keshava. So, 67 S.C. No.427/2019 the principle laid down in the above case is not applicable.
60. Another decision relied by the prosecution is State of Rajasthan Vs. Teja Ram and others, on 1 February, 2000 of Hon'ble Supreme Court. In this case, the accused persons are assaulted with deadly weapons. They travelled in a tractor and then they walked on foot and reached the house of deceased by midnight. There are dying declaration. Further, in the said case there was animosity between the accused persons with the victim and there was proceedings against them under Section 107 of the Code of Criminal Procedure between them. The inmates of the house woke up by hearing the hue and cry and saw the accused persons who were holding deadly weapons and run away from the spot. Further, the weapons, cloth with blood subjected for Scientific investigation. But case in hand the witnesses not deposed anything 68 S.C. No.427/2019 against the accused though they are friends of deceased, they have stated that they heard about murder of deceased Keshava. There is no material evidence placed by the prosecution to show that these eyewitnesses have witnessed committing murder. One of the eyewitnesses deposed that, he himself and Keshava consumed Alcohol in bar, then both of them left from the bar, Keshava went near his motorcycle, by that time some four unknown persons made attack on him. But he has not deposed anything against accused that these accused along with others attacked on Keshava. So the above citation cannot be applied to the facts of this case.
61. Further relied on the decision i.e. Radha Mohan Singh @ Lal Saheb And.....Vs. Stae of U.P., on 20 January, 2006. In the said case, there are eyewitnesses to the incident. They deposed that they have seen the incident. But in the case in hand , 69 S.C. No.427/2019 eyewitnesses turned hostile and nothing material evidence elicited from the mouth of the witnesses during the crossexamination by the learned Prosecutor. No doubt, the evidence of hostile witnesses cannot be discarded in toto. The prosecution failed to establish the involvement of this accused for the crime.
62. Further relied on the case of Prithu @ Priti Chand & Anr Vs. State of Himachalpadesh, in Criminal Appeal No.330/2009. In this case nothing material produced by the prosecution to show that these accused persons assaulted on the deceased Keshava. Further the prosecution fails to establish that there is animosity between deceased Keshava with other accused persons.
63. Further relied on the case of Mohd. Aslam Vs. State of Maharashtra, on 27 April, 2000. In the said case there is dying declaration from the deceased. 70
S.C. No.427/2019 So, the above citations would not be helpful to the prosecution.
64. With the above discussion this Court is of the opinion that animosity between accused persons with deceased is not established by the prosecution. So, one of the circumstances raised by the prosecution fails. Further prosecution fails to establish that accused persons followed every now and then deceased Keshava. Prosecution further failed to establish that material objects i.e. deadly weapons seized at the instance of the accused and juveniles are used by these accused persons for the commission of the crime. Further prosecution failed to establish the bloodstains found in the material objects is a blood of deceased Keshava. Further failed to establish that 'O' positive blood group is that of deceased Keshava. It is pertinent to note that though prosecution much relied on the direct evidence in the initial stage, subsequently 71 S.C. No.427/2019 they have taken stand to prove the case based on the circumstantial evidence. But prosecution failed to link the chain of circumstances. Though prosecution produced evidence regarding seizure of material objects it failed to connect those material objects to this crime. The disclosure statement also not proved by the prosecution. The recovery made through the accused is not sufficient to connect to the crime. So, I am of the opinion that, only based on the seizure mahazar drawn at the instance of accused and the witnesses deposed regarding seizure of material objects, is not sufficient to hold that these accused persons armed with deadly weapons have assaulted on Keshava and committed the murder.
65. There is no material evidence placed by the prosecution to show that these accused persons made preparation on the alleged date and time they went near the bar and were searching for Keshava and soon 72 S.C. No.427/2019 after seeing Keshava they attacked and committed the murder. The presence of the accused at the place of incident also not proved by the prosecution. Though PW17 (CW24) deposed that on that day he along with Keshava consumed the alcohol and Keshava left the bar and proceeded about 15 feet distance from this PW17 witness, 34 persons suddenly attacked with 'machu' on Keshava, but test of identification parade not conducted by the IO.
66. The Court cannot draw the presumption in a murder case, where the only evidence consist of recovery, on the disclosure statement of accused given to police. In this case, there is no consistency in evidence, in the disclosure statement and recovery. Further, the prosecution failed to bring the exact information spoken by the accused and none of the witnesses deposed about the disclosure statement before recovery. The seizure mahazar witnesses do not 73 S.C. No.427/2019 know what accused disclosed before the police. Further, there is no sufficient material evidence to show that only these weapons seized are used by the accused persons for the commission of murder. It has already discussed about that the bloodstain found in the weapons are not the bloodstain of the deceased. Apart from that, on seizure of weapons IO has not sent the weapon to the Doctor to collect the opinion whether these weapons can cause injury which found on the dead body of Keshava. Further recovery of material objects based on the voluntary statement of the accused not sufficient unless it is connected to the crime and the evidence of panchas is not a conclusive to prove the guilt of accused. In this case, the prosecution failed to prove beyond all reasonable doubt that the circumstances to connect the object with crime.
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67. The various chain of circumstances taken by the prosecution not satisfactorily proved to point out, the guilt of the accused with reasonable definiteness.
68. With the above discussions, I am of the opinion that prosecution failed to prove beyond all reasonable doubt that these accused along with juveniles committed the murder of Keshava and thereby commuted an offence punishable u/S,302 r/w.34 of IPC. Accordingly, Point No.1 is answered in in negative.
69. Point No.(2): In view of the above findings, I proceed to pass the following: ORDER Acting u/S.235(1) Cr.P.C. Accused No.3 V.Dileep and Accused No.4 -
Arjun are acquitted for the offence punishable u/S.302 r/w.34 IPC.
75
S.C. No.427/2019 The accused are set at liberty, and Jail authority is hereby directed to release accused Nos.3 and 4, if they are not required in any other case.
(Dictated to the Judgmentwriter, transcribed and computerized by him and after carrying out corrections by me, print out taken by him and then pronounced by me in open Court on this the 6th day of July, 2021) (Smt.K.G. Shanthi) LVII Addl.City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru.
ANNEXURE List of witnesses examined for the Prosecution: PW.1 : Nethravathy PW.2 : Sampangi PW.3 : Dinakar PW.4 : C. Karthik PW.5 : Amarnath PW.6 : Mohan Kumar PW.7 : Ashok Kumar PW.8 : Srinivas PW.9 : Subramani 76 S.C. No.427/2019 PW.10 : Kiran PW.11 : Sharath PW.12 : Arun PW.13 : Raja Sab PW.14 : Umesh Naik PW.15 : Noothan PW.16 : Nagaraj PW.17 : Mahesh PW.18 : Charanraj PW.19 : H.D. Kulkarni PW.20 : Dr. B. M. Nagaraj PW.21 : Fairozkhan PW.22 : Khasim Sab List of documents marked for the Prosecution:
Ex.P1 : Complaint Ex.P1(a) : Signature of PW.1 Ex.P1(b) : Signature of PW.19 Ex.P2 : Police Notice Ex.P2(a) : Signature of PW.2 Ex.P2(b) : Signature of PW.19 Ex.P3 : Spot Mahazar Ex.P3(a): Signature of PW.2 Ex.P3(b): Signature of PW.3 Ex.P3(c) : Signature of PW.19 Ex.P4 & 5 : Photographs 77 S.C. No.427/2019 Ex.P6 : Sample Seal Ex.P6(a) : Signature Ex.P6(b) : Signature of PW.19 Ex.P7 : Police Notice Ex.P7(a) : Signature of PW.4 Ex.P7(b) : Signature of PW.5 Ex.P7(c) : Signature of PW.19 Ex.P8 : Seizure mahazar Ex.P8(a): Signature of PW.4 Ex.P8(b): Signature of PW.5 Ex.P8(c) : Signature of PW.19 Ex.P9 : Seizure mahazar Ex.P9(a): Signature of PW.4 Ex.P9(b): Signature of PW.5 Ex.P9(c) : Signature of PW.19 Ex.P10 : Sampel Seal Ex.P10(a): Signature of PW.4 Ex.P10(b): Signature of PW.5 Ex.P10(c): Signature of PW.19 Ex.P11 to 13 : Photos Ex.P14 to 16 : Photos Ex.P17 to 19 : Photos Ex.P20 : Police Notice Ex.P20(a): Signature of PW.6 Ex.P20(b): Signature of PW.7 Ex.P20(c): Signature of PW.19 Ex.P21 : Seizure mahazar Ex.P21(a) : Signature of PW.6 Ex.P21(b) : Signature of PW.7 Ex.P21(c) : Signature of PW.19 78 S.C. No.427/2019 Ex.P22 to 24 : Photos Ex.P25 : Seizure mahazar Ex.P25(a) : Signature of PW.6 Ex.P25(b) : Signature of PW.7 Ex.P25(c) : Signature of PW.19 Ex.P26 : Sample Seal Ex.P26(a) : Signature of PW.6 Ex.P26(b) : Signature of PW.19 Ex.P27 to 29 : Photos Ex.P30 : Police Notice Ex.P30(a) : Signature of PW.8 Ex.P30(b) : Signature of PW.9 Ex.P30(c) : Signature of PW.19 Ex.P31 : Seizure mahazar Ex.P31(a) : Signature of PW.8 Ex.P31(b) : Signature of PW.9 Ex.P31(c) : Signature of PW.19 Ex.P32 to 34 : Photos Ex.P35 : Sample Seal Ex.P35(a) : Signature of PW.8 Ex.P35(b) : Signature of PW.9 Ex.P35(c) : Signature of PW.19 Ex.P36 : Statement Ex.P37 : Statement Ex.P38 : Memo Ex.P38(a) : Signature of PW.13 Ex.P38(b) : Signature of PW.19 79 S.C. No.427/2019 Ex.P39 : Memo Ex.P39(a) : Signature of PW.14 Ex.P39(b) : Signature of PW.19 Ex.P40 : Report Ex.P40(a) : Signature of PW.14 Ex.P40(b) : Signature of PW.19 Ex.P41 : Report by consent Ex.P41(a) : Signature of PW.19 Ex.P42 : Notice to Panch Witnesses Ex.P42(a) : Signature of PW.15 Ex.P43 : Seizure mahazar Ex.P43(a) : Signature of PW.15 Ex.P44 : Seizure mahazar Ex.P44(a) : Signature of PW.15 Ex.P45 : Sample seal Ex.P45(a) : Signature of PW.15 Ex.P46 to 48 : Photos Ex.P49 to 51 : Photos Ex.P52 : Mahazar Ex.P53 : Notice Ex.P53(a) : Signature of PW.16 Ex.P53(b) : Signature of PW.19 Ex.P54 : FIR Ex.P54(a):Signature of PW.19 80 S.C. No.427/2019 Ex.P55 : Sketch Ex.P55(a) : Signature of PW.19 Ex.P56 : 6 Photos Ex.P57 : Report by Fairozkhan Ex.P57(a) : Signature of PW.19 Ex.P58 : Statement of Accused No.5 Ex.P58(a) : Signature of PW.19 Ex.P59 : Statement of Accused No.4 Ex.P59(a) : Signature of PW.19 Ex.P60 : Statement of Accused No.1 Ex.P60(a) : Signature of PW.19 Ex.P61 & 62: Photos Ex.P63 : Statement of Fairozkhan Ex.P63(a) : Signature of PW.19 Ex.P64 : Statement of Accused No.3 Ex.P64(a) : Signature of PW.19 Ex.P65 : Statement of PC Shivakumar Ex.P65(a) : Signature of PW.19 Ex.P66 : Statement of Accused No.2 Ex.P66(a) : Signature of PW.19 Ex.P67 : Letter issued by Sri Sarswathi Vidyalaya Ex.P67(a) : Signature of PW.19 Ex.P68 : Letter issued by Jyothi School Ex.P68(a) : Signature of PW.19 81 S.C. No.427/2019 Ex.P69 : Letter issued by Sri Sarswathi Vidyalaya Ex.P69(a) : Signature of PW.19 Ex.P70 : Transfer Cerficate Ex.P70(a) : Signature of PW.19 Ex.P71 : Letter Ex.P71(a) : Signature of PW.19 Ex.P72 : Transfer Cerficate Ex.P72(a) : Signature of PW.19 Ex.P73 : 'B' extract is issued to as per the request of Hennur Police Ex.P73(a) : Signature of PW.19 Ex.P74 : Report by Abhijith PC Ex.P74(a) : Signature of PW.19 Ex.P75 : Letter Ex.P75(a) : Signature of PW.19 Ex.P76 : Acknowledgement Ex.P77 : Passport Ex.P77(a) : Signature of PW.19 Ex.P78 : Postmartem Report Ex.P78(a) : Signature of PW.19 Ex.P79 : Letter Ex.P79(a) : Signature of PW.19 82 S.C. No.427/2019 Ex.P80 : FSL Report List of Mos.marked for prosecution : MO1 Sample Mud MO1 (a) Signature MO1 (b) Signature of PW.19 MO2 Blood stained mud MO2 (a) Signature MO2 (b) Signature of PW.19 MO3 Jeans pant blue MO3 (a) Signature MO3 (b) Signature of PW.5 MO4 Brown colour shirt MO4 (a) Signature of PW.4 MO4 (b) Signature of PW.5 MO5 Long MO5 (a) Signature of PW.4 MO5 (b) Signature of PW.5 MO6 Pant MO6 (a) Signature of PW.6 MO6 (b) Signature of PW.7 MO6 (c) Signature of PW.19 MO7 Shirt MO7 (a) Signature of PW.6 MO7 (b) Signature of PW.7 MO7 (c) Signature of PW.19 MO8 Knife MO8 (a) Signature of PW.6 83 S.C. No.427/2019 MO8 (b) Signature of PW.7 MO8 (c) Signature of PW.19 MO9 Long (Knife) MO9 (a) Signature of PW.8 MO9 (b) Signature of PW.9 MO9 (c) Signature of PW.19 MO10 Knife MO10(a) Signature of PW.8 MO10 (b) Signature of PW.9 MO10 (c) Signature of PW.19 MO11 Drager MO11 (a) Signature of PW.19 MO12 Jeans Pant MO12 (a) Signature of PW.15 MO12 (b) Signature of PW.19 MO13 TShirt MO13 (a) Signature of PW.15 MO13 (b) Signature of PW.19 MO14 to 19 Items belongs to deceased MO14(a) to 19(a) Signature of PW.20 List of document marked on behalf of defence: Ex.D1: Relevant portion of statement of PW.12 LVII Addl.City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru.
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A3 and A4 produced from
JC through VC. Public
prosecutor appeared through
VC. Link sent to the advocate
for accused. But, not
appeared.
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Judgment pronounced through
V.C. (vide separate order).
ORDER
Acting u/S.235(1) Cr.P.C.
Accused No.3 V.Dileep and
Accused No.4 - Arjun are
acquitted for the offence
punishable u/S.302 r/w.34 IPC.
The accused are set at
liberty, and Jail authority is
hereby directed to release accused Nos.3 and 4, if they are not required in any other case.
LVII Addl.CC & Sessions Judge, Mayo Hall Unit, Bengaluru.
Acting u/S.437A Cr.P.C., accused Nos.3 and 4 are hereby directed to execute personal bond for Rs.50,000/ each with one surety for the likesum 86 S.C. No.427/2019 undertaking that they shall appear before the higher Court, as and when such Court issues notice in respect of any appeal or petition filed against the judgment of this Court. LVII Addl.CC & Sessions Judge, Mayo Hall Unit, Bengaluru. 87 S.C. No.427/2019