Bangalore District Court
Mahalakshmi Layout P.S vs A5 Gowtham Alias Tattoo on 6 January, 2025
KABC010162212023
IN THE COURT OF THE LXX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE, AT
BENGALURU (CCH. No.71)
Dated this the 6th day of January, 2025.
Present;
Sri. Rajesh Karnam.K, B.Sc., LL.B., LL.M.,
LXIX Addl. City Civil and Sessions Judge and
Special Judge, Bengaluru.
S.C.No.552/2018 & S.C.974/2023
COMPLAINANT: The State
Represented by
Mahalakshmi Layout Police Station,
Bengaluru.
(By Special Public Prosecutor).
-V/s-
ACCUSED IN A1. Rakesh Alias Rocky,
S.C.552/2018: S/o.Sathish,
Aged about 22 Years
R/at.No.16, 4th Cross,
Sandeep Bar Road,
Jai Maruthi Nagar,
Nandini Layout,
Bengaluru.
A2. Mani,
S/o.Sathish,
Aged about 25 Years
R/at.No.29, 4th cross
Sandeep bar road,
Jai maruthi nagar,
Nandini layout,
2 S.C.No.552/2018 & 974/2023
Bengaluru.
A3. Shivakumar @ Rajini kumar
@ kumar,
S/o.Armugam,
Aged about 29 years,
R/at.No.820/A, 31st cross,
Jai Maruthinagar,
Nandini layout,
Benglauru.
A4 Rajashekar Alias Shekar,
S/o.Umesh,
Aged About 23 Years,
R/at.No.29, Raghavendra Layout,
Shettihalli Ward,
Kammagondanahalli,
Bengaluru.
(Rep.By Sri.MP Advocate for A1,2, 4)
(Rep.By Sri.MP., Advocate for A3)
ACCUSED IN A5 Goutham @ Tatoo,
S.C.974/2023 S/o.Gurumurthy,
Aged about 28 years,
R/at.No.22, 2nd Cross, Behind Hallbek
Harischandra Ghat, Nagappa Block,
Srirampura,
Bangalore.
A6 Chandan @ Chandu,
S/o.Rajashekhar,
Aged about 31 Years,
R/at. No.4, 2nd Cross, 3rd Main,
Maranna Layout, Tippena Halli Main,
Dodda Bidarekallu,
Bangalore.
(Rep.By Sri.YMR., Advocate for A5, 6)
1. Date of commission of : 14-11-2017
offence
3 S.C.No.552/2018 & 974/2023
2. Date of report of Offence : 14-11-2017
3. Name of the Complainant : David @ Shekhar
4. Date of commencement : 23.08.2019
of recording of evidence
5. Date of closing of : 09.08.2024
evidence
6. Offences Complained : Under
are Sections.143,144,147,148,302
r/w.149 of IPC and Section
3(2)(v) of SC/ST(POA) Act.
7. Opinion of the Judge : Accused persons not found
guilty
COMMON JUDGMENT
The case registered as per the charge sheet
submitted by ACP, Malleshwaram Sub Division,
Bengaluru against the accused persons for the offences
punishable under Section U/s.143,144,147,148,302
r/w.149 of IPC and Section 3(2)(v) of SC/ST(POA) Act.
2. The case of the prosecution case is that on 13.11.2017/
14.11.2017 at about 2.30 a.m in Mahalakshmi Layout,
the complainant had gone to the house which was
under construction where Shankar step father of the
complainant was doing bar bending work, for inspection
and while returning in Mahalakshmi Layout entrance
4 S.C.No.552/2018 & 974/2023
near Metro Station at about 3.30 a.m the brother of the
victim Andrew's, Mani, Vinay,Rocky, and 3 to 4 persons
were present and they were assaulting with machu,
long, it was mentioned "ಆಟೋ ಸ್ಟಾಂಡ್ನಲ್ಲಿ ನಿನ್ನ ಹಾವಳಿ
ಜಾಸ್ತಿಯಾಗಿದೆ. ಈ ದಿನ ಒಬ್ಬ ನೇ ಸಿಕ್ಕಿ ದಿಯಾ ನಿನ್ನ ಕತೆ ಮುಗಿಸುತ್ತೇನೆ." The L
& T Personnel were working in the Metro construction,
the accused chased the victim where the metro
workers were working and when victim stopped two
persons among accused, caught hold of the victim then
Mani and Rocky took machu and assaulted on the head,
face, Vinay stabbed with the dagger on the right chest
of the victim, as the victim fell down a size stone by the
side of the place of work lifted and thrown on the head
of the victim twice, the L & T people who were working
there have been given threat not to come near, after
that accused persons ran away, immediately
complainant went to police station and lodged
complaint.
3. On the basis of these information, the Investigation
Officer took up investigation, on conclusion has filed
charge sheet against the accused persons.
5 S.C.No.552/2018 & 974/2023
4. After filing of charge sheet this Court took cognizance
of the alleged offences and charge sheet copies were
furnished to the accused as contemplated under
Section 207 of Cr.P.C. Heard before the charge. As
there was sufficient materials available, charge was
framed for the afore said offences, read over and
explained to the accused persons in vernacular
language and they pleaded not guilty and claim to be
tried.
5. At trial, the prosecution got examined PW-1 to 25 and
got exhibited Ex.P.1 to 43 and got identified MOs.1 to
25. The statement of the accused persons u/sec 313 of
Cr.P.C recorded, read over and explained to the
accused persons in vernacular language and the
accused persons, denied all the incriminating evidence
and they did not choose to lead defence evidence.
6. Heard the arguments of learned Special Public
Prosecutor and counsel for the accused and matter is
reserved for judgment.
7. The points for consideration are as follows;
6 S.C.No.552/2018 & 974/2023
POINTS
1) Whether the prosecution proves beyond all
reasonable doubt that on 13/14.11.2017 at
10.30 p.m near Orion Mall Andrus shown
C.W.23 to accused No.4 and abused later
accused No.2 assaulted from the hands of
Andrus, at that time galata started between
accused No.2 and Andrus, on the same day in
the night in Chandrashekar Bar accused Nos.3,
5 and Andrus made galata, later on the same
day in the night at 1.00 a.m there was again
galata between Andrus and accused No.2, the
accused persons have made unlawful
assembly to riot and thereby have committed
offence punishable u/s 143 R/w 149 of IPC?
2) Whether the prosecution proves beyond all
reasonable doubt that on aforesaid date, time
and place, in furtherance of their common
object the accused persons have made
unlawful assembly by holding deadly weapons
in their hands in furtherance of their common
object of committing offence and thereby
committed the offence punishable U/s 144 r/w
149 of IPC?
3) Whether the prosecution proves beyond all
reasonable doubt that on aforesaid date, time
and place, in furtherance of their common
object the accused persons have made
unlawful assembly with an intention to commit
offence and rioted thereby have committed
offence punishable u/s 147 R/w 149 of IPC?
4) Whether the prosecution proves beyond all
reasonable doubt that on aforesaid date, time
and place, in furtherance of their common
7 S.C.No.552/2018 & 974/2023
object the accused persons have assembled
being members of unlawful assembly, armed
with deadly weapons and rioted thereby have
committed offence punishable u/s 148 R/w
149 of IPC?
5) Whether the prosecution proves beyond all
reasonable doubt that on 13-14/11/2017 at
about 3.30 pm accused No.5 took Andrus from
next road of Kamalamma pit and brought him
to next road of Ananda Bar at that time
accused No.1 told that assaulted his brother
and assaulted Andrus with hands, accused
No.2 assaulted Andrus with machu on his had,
when Andrus ran on West of Chord road,
accused Nos.6 and 7 with machu, and other
accused persons chased Andrus, J1 dashed the
Andrus with auto, accused No.1 assaulted
Andrus with machu and cut the right hand
finger and also to left hand, when Andrus was
running, when he went next to JCB work at
Mahalakshmi Layout Entrance Metro Station,
accused Nos.3 and 5 caught hold the
deceased, accused No.4 stabbed the deceased
with dagger on his shoulder and upper part of
the chest, accused No.1 assaulted on his face
and head with long, J1 assaulted with chalake
on his head, when deceased fell down,
accused No.1 thrown stone on his head for 2
times and committed murder and thereby
have committed offence punishable u/s 302
R/w 149 of IPC ?
6) Whether the prosecution proves beyond all
reasonable doubt that on aforesaid date, time
and place, in furtherance of their common
object, the accused persons not being the
8 S.C.No.552/2018 & 974/2023
members of SC/ST have committed murder of
the deceased victim, who belongs to
scheduled caste and thereby they committed
offence which is punishable with 10 years or
imprisonment for life and thereby committed
offences punishable under section 3(2)(v) of
the SC and ST(Prevention of Atrocities) Act,?
7) What order?
8. My findings to the above points are as follows;
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : In the Negative
Point No.4 : In the Negative
Point No.5 : In the Negative
Point No.6 : In the Negative
Point No.7 : As per final order
for the following;
REASONS
9. The prosecution in proof of the alleged offence, in
persuance of allegations made in the charge sheet,
facts noted above the evidence lead by examining 25
witnesses, the learned SPP argues as follows:
In the case on hand, P.W.1 brother of the victim is an
eye witness to the incident who has supported the
prosecution case though other witnesses the PWs.2, 3,
9 S.C.No.552/2018 & 974/2023
5, 6, 8, 9, 21 have turned hostile the other witnesses
have deposed about seizure of the articles, namely by
the P.W.4 Diwakar , the PWs.10 and 11 are hearsay
witnesses, mother and brother of the victim who have
not been treated as hostile, PW.12 is the Medical
Officer who conducted Post Mortem and separated the
material objects 15 to 18 and handed over duly
Investigating Officer which has been handed over to
forensic lab and opinion has been obtained, the other
witnesses have deposed namely official witnesses the
PWs.18, 19, 20, 23, 24 have deposed about the part of
the official work done by them. In the case on hand, as
deposed by PW.23 Dr.Radha.S the FSL Officer on
receipt of articles M.Os.19 to 25 blood stain has been
observed, which co-related with the blood stain on the
cloth of the victim and accused. This witness has
specifically deposed human blood has been found on
the MOs., as such the prosecution has placed
substantial materials to prove the incident.
10. In the case on hand, the CCTV footages, photos
placed by the prosecution specifically proves the guilt
10 S.C.No.552/2018 & 974/2023
of the accused, on the basis of these same materials,
Investigating Officer has apprehended the accused
persons from different places and material objects have
been seized on disclosure made by the accused only as
such even the P.W.1 has identified the accused persons
being persons who assaulted his brother. In the case on
hand, the P.W.24 is the Police Inspector of Traffic police
station who had handed over the CCTV footage
extracted from the DVR of the Traffic police station
which has installed on behalf of the Government to
monitor the traffic in which the entire incident has been
captured and recorded. Even though there is no Sec.65
B certificate being enclosed by PW..24, the source of
the recording is a secured one and of a public domain,
as such, it draws presumption with regard to the
seizure of the CCTV footage to pen drive. The PW.25
the Investigating Officer who conducted the
investigation has specifically deposed about all the
tenets of the prosecution how it has been proceeded. In
fact, the voluntary disclosures made by the accused
persons has led to the recovery of the M.Os. namely
11 S.C.No.552/2018 & 974/2023
the weapon of offences. In the case on hand, though
there is no any test identification parade conducted, it
is in the favour of the prosecution case, the CCTV
footage and timings visible in the CCTV footage
actually supports the prosecution case. The P.W.4 the
panch witness who supports the prosecution case with
regard to the seizure of the articles definitely goes
against the accused persons, in this regard the SPP has
brought to the court notice citations namely:
1.Crl.A.Nos. 1109-1110 of 2010 in case of
RAVASAHEB @ RAVASAHEBGOUDA ETC. VERUS
STATE OF KARNATAKA of Hon'ble Supreme Court
of India wherein it is held that:
"In view of the aforesaid
background, submissions
advanced, law appreciated and
analysed we find the present
appeals to be lacking in merit and
therefore, the same is dismissed.
Accused if on bail, are directed to
immediately surrender before the
Court concerned".
2. (2020) 2 Supreme Court Cases (Crl) 200 (2019) 15
Supreme Court Cases 808 in case of SURENDRA SINGH
AND ANOTHER VERSUS STATE OF UTTARKHAND in
Criminal Appeal No. 1768 of 2010, decided on
December 4, 2018 wherein it is held that:
12 S.C.No.552/2018 & 974/2023
"Penal Code 1860 - Ss.302/34, 357
and 380 - Murder - Circumstantial
evidence - Last seen evidence,
established - Recovery of stolen
articles - Recovery of bloodstained
clothes and murder weapon - Motive
to murder present - All the
established circumstances, held, point
the finger of guilt towards appellants
and their complicity in commission of
crime - No perversity or arbitrariness
or illegality in reasoning and
conclusion arrived at a by courts
below - Conviction confirmed".
3. (2004) AIR (SCW) 1609: (2004) SUPREME COURT OF
INDIA in case of DHANAJ SINGH @ SHERA AND OTHERS
Vs. STATE OF PUNJAB in Criminal Appeal No. 941 of
2003 Decided on : 10-03-2004 wherein it is held that:
"Criminal Procedure Code, 1973
(CrPC) - Section 156 - Defective
investigation - Effect and duty of
Court - In the case of a defective
investigation the Court has to be
circumspect in evaluating the
evidence. But it would not be right in
acquitting an accused person solely
on account of the defect; to do so
would tantamount to playing into the
hands of the Investigating Officer if
the investigation is designedly
defective. If the lapse or omission is
committed by the investigating
agency or because of negligence the
prosecution evidence is required to
be examined de hors such omissions
to find out whether the said evidence
is reliable or not. The contaminated
conduct of officials should not stand
on the way of evaluating the
13 S.C.No.552/2018 & 974/2023
evidence by the Courts; otherwise
the designed mischief would be
perpetuated and justice would be
denied to the complainant party".
In the case of a defective
investigation the Court has to be
circumspect in evaluating the
evidence. But it would not be right in
acquitting an accused person solely
on account of the defect; to do so
would tantamount to playing into the
hands of the Investigating Officer if
the investigation is designedly
defective. If the lapse or omission is
committed by the investigating
agency or because of negligence the
prosecution evidence is required to
be examined dehors such omissions
to find out whether the said evidence
is reliable or not. The contaminated
conduct of officials should not stand
on the way of evaluating the
evidence by the Courts; otherwise
the designed mischief would be
perpetuated and justice would be
denied to the complainant party.
Criminal Procedure Code, 1973
(CrPC) - Section 156 - Investigation -
Defective investigation - Case of
murder - Complainants treated as
accused by Investigating Officer and
made to suffer trial - However,
ultimately they were acquitted -
Materials on record showing
involvement of accused - Fact that
police had given clear chit to accused
- Not material - Conviction, cannot
be challenged on account of
defective investigation.
14 S.C.No.552/2018 & 974/2023
Evidence Act, 1872- Section 3 -
Appreciation of evidence - Case of
murder - Deceased and complainant
having criminal track records - This
fact cannot by itself be a ground to
reject testimony of complainant if it
is otherwise appearing to be reliable.
In the case of a defective
investigation the Court has to be
circumspect in evaluating the
evidence. But it would not be right in
acquitting an accused person solely
on account of the defect; to do so
would tantamount to playing into the
hands of the investigating officer if
the investigation is designedly
defective. (See Karnel Singh vs State
of M.P. :
1995CriLJ4173 ).
6. In Paras Yadav and Others. v. State
of Bihar: it was held that if the lapse or
omission is committed by the
investigating agency or because of
negligence the prosecution evidence is
required to be examined dehors such
omissions to find out whether the said
evidence is reliable or not. The
contaminated conduct of officials should
not stand on the way of evaluating the
evidence by the courts; otherwise the
designed mischief would be
perpetuated and justice would be
denied to the complainant party.
7. As was observed in Ram Bihari Yadav
v. State of Bihar and Others : if primacy
is given to such designed or negligent
investigation, to the omission or lapses
by perfunctory investigation or
omissions, the faith and confidence of
the people would be shaken not only in
15 S.C.No.552/2018 & 974/2023
the Law enforcing agency but also in
the administration of justice. The view
as again re-iterated in Amar Singh v.
Balwinder Singh and Others., As noted
in Amar Singh's case (supra) it would
have been certainly better if the fire
arms were sent to the forensic test
laboratory for comparison. But the
report of the ballistic expert would be in
the nature of an expert opinion without
any conclusiveness attached to it. When
the direct testimony of the eye-
witnesses corroborated by the medical
evidence fully establishes the
prosecution version failure or omission
of negligence on part of the IO cannot
affect credibility of the prosecution
version.
8. The stand of the appellants relate
essentially to acceptability of evidence.
Even if the investigation is defective, in
view of the legal principles set out
above, that pales into insignificance
when ocular testimony is found credible
and cogent. Further effect of non-
examination of weapons of assault or
the pellets etc. in the background of
defective investigation have been
considered in Amar Singh's case
(supra). In the case at hand, no crack in
the evidence of the vital witnesses can
be noticed.
9. Both the trial Court and the High
Court have analysed the evidence of
PWs 2 and 3 with due care and caution
keeping in view the correct legal
principles and have found accused
persons guilty. We find no scope for
interference with the conclusions so
arrived in an appeal under Article 136
16 S.C.No.552/2018 & 974/2023
of the Constitution of India. The appeal
is dismissed.
4. (2012) 5 Supreme Court Cases 777 in case of
RAMESH HARIJAN Versus STATE OF UTTAR PRADESH in
Criminal Appeal No. 1340 of 2007, decided on May 21,
2012.
"Penal Code, 1860 - Ss. 302 and 376(2)(f)
- Paedophilia - Rape and murder of minor
girl of 5-6 yrs- Reversal of acquittal by
High Court, confirmed - Acquittal by trial
curt based on undue importance given by
trial court to insignificant inconsistencies,
held, had resulted in miscarriage of justice
- Evidence Act, 1872, S.114 III.(g) and S.
106."
11. The citations are very specific with regard to single
eye witness when support the prosecution case as per
Crl.A.Nos. 1109-1110 of 2010 in case of RAVASAHEB @
RAVASAHEBGOUDA ETC. VERUS STATE OF KARNATAKA
of Hon'ble Supreme Court of India, consider the
circumstances even though there is single eye witness
evidence available on record, based on the same
conviction have been made by the trial court and even
the Hon'ble court which has been upheld by the
Hon'ble Apex Court in judgment dated:16.3.2023. In
similar circumstances (2020) 2 Supreme Court Cases
(Crl) 200 (2019) 15 Supreme Court Cases 808 in case of
17 S.C.No.552/2018 & 974/2023
SURENDRA SINGH AND ANOTHER VERSUS STATE OF
UTTARKHAND in Criminal Appeal No. 1768 of 2010, the
observations made in para-25, 24, comes to the aid of
the present circumstances of the case, similarly the
decision of Hon'ble Supreme Court of India in (2004)
AIR (SCW) 1609: with regard to the disclosure made in
the complaint and the discussion and reliance placed
by Hon'ble Supreme Court of India of decisions in para-
5 to 9 has relevance in the present circumstances of
the case. Similarly the circumstantial evidence
available in the present case (2012) 5 Supreme Court
Cases 777 in case of RAMESH HARIJAN Versus STATE
OF UTTAR PRADESH, the observations made by the
Hon'ble Supreme Court of India though acquittal has
been passed by the other courts, Hon'ble Apex Court
has convicted on circumstantial evidence available
which leads to the presumption that none other than
the accused had committed the offence. The hostile
witness evidence clearly points to the circumstances
and one of the witnesses have pointed towards the
accused the corroboration is sufficient to convict the
18 S.C.No.552/2018 & 974/2023
accused is the observation. The minor discrepancies,
the improper investigation should not be considered as
a material one, as such to prevent the miscarriage of
justice, the evidence of the eye witnesses is to be
considered and accordingly accused is to be convicted
is the prayer.
12. The learned counsel for the accused submits
though the charges have been framed with regard to
the offence punishable u/s.143, 144, 147, 148, 302
r/w.149 of IPC and sec.3(2)(v) of SC/ST (POA) Act 1989
the accused Nos.1, 2 to 6 are in judicial custody, since
then accused No.3 alone has got bail. The allegation is
complainant is the brother of the deceased, accused
and victim are auto drivers, it is alleged on 14.11.2017
in Metro Station of Mahalakshmi Layout signal David
was an eye witness and PSI examined witnesses, the
inquest Mahazar, Post Mortem report and entire
investigation has been conducted by the PSI, the CCTV
Footage has not been collected as per the procedure
though the P.W.24 had handed over the same there is
specific discrepancies in the seizure Mahazar drawn
19 S.C.No.552/2018 & 974/2023
with regard to the pen drive which has been sent to the
Investigating Officer from P.W.24 the Police Inspector of
the Traffic police station. In fact the Ex.P.4 panchanama
discloses pendrive has handed over by the staff of the
Investigating Officer the P.W.25 has seized after being
downloaded from the DVR of the Government CCTV
namely Traffic police station from 10.00 a.m to 11.00
a.m the Mahazar has been drawn. This material fact of
drawing Mahazar itself contradicts that the handing
over the pendrive by the Investigating Officer who has
been examined as P.W.24. In the evidence of P.W.24
who has specifically deposed that in cross examination
at page-2 dated:9.7.2024, it has been mentioned at
about 11.00 a.m the Prathap Rathod Police Personnel
came to the police station and handed over the request
then she summoned two persons and down loaded the
same of the two independent witnesses who is
technical expert and handed over the pendrive to the
police personnel sent by the Mahalakshmi Layout police
station and this witness has deposed about handing
over the same on 14.11.2017. The Ex.P.4 discloses the
20 S.C.No.552/2018 & 974/2023
Mahazar has been drawn from 10.00 a.m to 11.00 a.m
however the P.W.24 has specifically deposed only after
11.00 a.m she had request from the Mahalakshmi
Layout police station, then she summoned technical
person and downloaded the same in to the pendrive
and handed over to Investigating Officer, there the
Mahazar has been drawn even prepared to hand over
the pendrive which has been supported by P.W.4 who is
sole panch witness who supports the prosecution is
evident cannot be considered as he is not a trust
worthy witness. Therefore the material placed by the
prosecution itself is concocted, there is no any
investigation done as per the procedure laid down to
that effect.
13. The learned counsel for the accused submits as
on 14.11.2017 in the Metro Station of Mahalakshmi
Layout Signal the brother of the victim David is an eye
witness. In fact PSI himself has conducted the inquest
Mahazar, post mortem, all the other Mahazar and
almost entire investigation. As per the inquest Mahazar
placed on record, which is got exhibited as Ex.P.11
21 S.C.No.552/2018 & 974/2023
which discloses the victim is belonging to 'Christian
community'. However after this before conclusion of
investigation, they have mentioned that victim belongs
to Adi Dravida as per the statement of the father of the
victim, mother of the victim Selvi had given statement,
as such charge sheet is filed as per SC/ST (POA) Act
1989, sec.3(2)(v) before filing the charge sheet. In fact
the factum that accused were not at all aware of the
fact that victim belongs to Adi Dravida or SC/ST. It is
very clear that when accused persons were knowing
that victim belongs to schedule caste, then the
provisions of sec.3(2)(v) of SC/ST (POA) Act 1989
applicability against the accused persons will arise. In
fact the prosecution itself is not clear and the
Investigating Officer who conducted the investigation
till filing of the charge sheet is the Police Sub Inspector
even as per the provisions of SC/ST (POA) Act 1989, he
had no authority to proceed with the investigation. As
such the investigation itself is vitiated as the
Investigating Officer took up further investigation from
the PSI has not at all conducted any investigation
22 S.C.No.552/2018 & 974/2023
properly as per the provisions of SC/ST (POA) Act 1989
nor concluded the investigation as per the procedure.
Therefore the charge sheet filed by the P.W.23
Investigating Officer itself is not proper. He had not
taken care to start the investigation as per law, again
but he concluded by filing the charge sheet which is not
proper. Even on this count the prosecution case fails is
the arguments advanced.
14. The learned counsel for the accused persons
submits in the case on hand, sole evidence of
complainant, C.W.1 is the eye witness, however in
page-2 of the Ex.P.1 complaint, he has mentioned at
about 2.30 a.m he was returning from the building
where his father was doing bar bending work, after
inspection when he was near the Mahalakshmi
Entrance Metro Station at about 3.30 a.m he saw his
brother Andrew, Mani, Vinay, Rocky and other 3 to 4
persons who took long, machu and abused as "ಆಟೋ
ಸ್ಟಾಂಡ್ನಲ್ಲಿ ನಿನ್ನ ಹಾವಳಿ ಜಾಸ್ತಿಯಾಗಿದೆ. ಈ ದಿನ ಒಬ್ಬ ನೇ ಸಿಕ್ಕಿ ದಿಯಾ ನಿನ್ನ ಕತೆ
ಮುಗಿಸುತ್ತೇನೆ." and they assaulted. The Personnel of L & T
were present in the spot who have been threatened by
23 S.C.No.552/2018 & 974/2023
accused persons is the answer. In fact the prosecution
has not at all made any effort who are the L & T
Personnel on duty in the spot, even though they were
present as per the prosecution case in the spot
Investigating Officer has not at all made any effort from
the L & T Company from the Metro Construction
Company by collecting the materials who are on duty in
the spot. This lack of investigation and missing the eye
witness being not track down by the prosecution
definitely goes against the case of prosecution. In fact
the contents of Ex.P.1 actually contradicts the Mahazar
drawn Ex.P.5, the contents and even the contents of
Ex.P.31 Mahazar drawn by the Investigating Officer,
which was even prior to the seizure of the articles. The
accused persons as per the report were arrested only
on 19.11.2017 alongwith auto KA-05-AA-7048. However
that vehicle has not been made available before the
court in the entire prosecution case. The auto has not
at all being seized as per Ex.P.5. The auto in which
accused were allegedly travelling is mentioned as KA-
05-AA-7048, however as per Ex.P.7 the auto seized is
24 S.C.No.552/2018 & 974/2023
shown as under P.F.108/2017 has not been deposited
in the court or made report to that effect. Therefore the
factum contradicts with regard to the seizure being
done by the Investigating Officer. In fact as per Ex.P.4
the pendrive being seized as per report Ex.P.13
contradicts as argued. The evidence of P.W.24 and
Ex.P.4 actually contradicts with regard to the context of
time at which it has been seized. In fact there are 3
autorickshaws being seized by the Investigating Officer
but he has shown only one auto being produced before
the court. The autorickshaw of the victim has not been
seized. The contents of Ex.P.33 to 36 contradicts. The
accused voluntary statement discloses the accused
were moving in auto bearing No.KA-03-D-3814 near
Mahalakshmi Layout entries. Further the auto has not
at all being seized by the Investigating Officer. In fact
the material objects long and cloth worn by the
accused near Narasandra temple bushes. As per the
Mahazar drawn the auto bearing No.KA-03-3143 has
been seized which discloses in Ex.P.39 the same auto
has not been deposited before the court. Even the
25 S.C.No.552/2018 & 974/2023
same has been released to whom, has not been
disclosed by the Investigating Officer which facts
contradicts with the materials placed on record. The
learned counsel for the accused submits Ex.P.8 seizure
Mahazar has been drawn in the spot wherein auto
bearing No.KA-01-AB-5491 was present in the spot,
however the same auto has not at all being deposited
before the court. The Mahazar has been drawn from
10.00 a.m to 11.00 a.m at Bengaluru. On 22.11.2017 in
the National Highway near the H.P.Petrol Bunk of
Kunigal-Tumkur road, panchanama has been drawn at
about 11.30 to 12.00 p.m by seizing autorickshaw
bearing No.KA-03-D-3814, from there further
Investigating Officer has proceeded with the same
panchas to Mysuru, Yeshwanthnagar near Bamboo
bazaar Highway Circle House No.44 and conducted
Mahazar from 4.30 p.m to 5.30 p.m as per Ex.P.10 and
did seized the dresses worn by the accused persons
under P.F.No.40. Further on the same day on
22.11.2017 Investigating Officer had drawn Mahazar in
Kaduru police station limits on the same National
26 S.C.No.552/2018 & 974/2023
Highway near Narasandra Karadi Huchamma temple at
about 11.00 a.m to 12.00 p.m and seized the weapon
of offence. However it has not been deposited before
the court and the distance between Kuduru and
H.P.Petrol Bunk of Kunigal police station limits is at a
distance of not less than 40 Kms but Investigating
Officer was able to draw within a period of half an hour
from Kuduru to Kunigal and within the time of drawing
Ex.P.9 Investigating Officer had shown, he has drawn
Mahazar at Kuduru from 11.00 a.m to 12.00 p.m which
is an impossible task since Investigating Officer cannot
be at two places within the same time framed.
Therefore the documents itself are concocted however
it is pertinent to note that it is not a running Mahazar
from first place to reach Mysuru on the same day.
Therefore the investigation itself is vitiated and no
proper investigation has been done, however
documents have been prepared in the police station
itself finds support from the evidence of P.W.25
Investigating Officer himself who is having no any
answers to the specific questions. It is pertinent to note
27 S.C.No.552/2018 & 974/2023
that there is no test identification parade submitted by
the Investigating Officer. In fact the victim either
succumbed to the injuries in the spot and is an accused
in 18 heinous offence cases. Therefore who actually
killed the victim has not been substantially proved by
the investigation. The delay in investigation itself is
fatal to the prosecution. The citation relied by the
prosecution to cover up the same lacuna in the
investigation which are bound by the statutory
provisions of SC/ST (POA) Act 1989 and the
Investigating Officer who filed charge sheet has been
examined as P.W.22 has deposed he has not done any
investigation but collected caste report and filed charge
sheet definitely goes against the prosecution case. The
death of the victim is not disputed, however who are all
responsible for the incident has not been properly
brought on record by the prosecution. The learned
counsel for the accused submits as per the exhibits
marked before this court namely PWs.26, 27, 28 the
photographs taken from CCTV footage there has been
mark made and even the name of the accused
28 S.C.No.552/2018 & 974/2023
mentioned therein however who had actually identified
the accused persons while taking out the photographs
and intimating the same in the CCTV footage is not
coming forth seems reasonable. The learned counsel
for the accused persons brings to the court notice Ex.P.
26 wherein 4 persons are running after the incident is
mentioned. However as from the CCTV footage itself
the Ex.P.27 some 3 or 4 persons are standing in the left
side of the place of incident and there are metro
personnels who are doing their duty which is also
visible in the middle portion and in the extreme right,
some person assaulting on another person is also
visible. Therefore with regard to Ex.P.26 to 28 who are
the persons who were identified, who encircle and
mentioned the name Mani, Shekar, Rajashekar has not
been explained by the prosecution since the
Investigating Officer namely P.W.24 has not at all given
explanation with regard to the persons who were seen
in the CCTV Footage and naming of those persons
whether it has been mentioned by the P.W.24 only and
handed over to the Investigating Officer or else
29 S.C.No.552/2018 & 974/2023
Investigating Officer himself has marked the same has
not been explained in Ex.P.26 to 28. In fact the Ex.P.26
to 28 are being got able to mark only through P.W.25
who should have given explanation to that effect while
marking Ex.P.26 to 28 who actually identified the
accused persons. In fact in presence of CWs.4 and 5
the pendrive has been seized. The C.W.5 though
deposed about the pendrive but she is not a witness to
support the prosecution version by explaining who
actually identified the accused persons in whose
presence. Even the inquest witness P.W.8 has also
turned hostile. The P.W.4 has deposed as per Ex.P.4
and 5 he has signed the documents in police station
itself. This witness has deposed further as per the
pendrive and pen drive contents were seized in his
presence by the Investigating Officer and one cheleke
and auto are being seized from the spot which is
identified as M.O.14. In fact in his cross examination he
has treated he does not know the contents of the same
but police directed him to sign as such he has signed.
The another witness person for Ex.P.4 and 5 being
30 S.C.No.552/2018 & 974/2023
seized in their presence namely Shashikala has not
been secured so as to give proper explanation with
regard to seizure of the same. Since as per Ex.P.4 the
seizure of the pendrive has been made at about 10.00
a.m to 11.00 a.m. Under Ex.P.5, 4 items have been
seized alongwith mobile phones of the accused
persons. However no any call details have been
collected from the mobile phones, therefore connecting
the accused to the alleged offence the victim piece of
evidence is the pen drive i.e so called CCTV footage.
However the CCTV Footage not duly placed on record.
At the first instance who actually got marked the
accused persons in Ex.P.26 to 28 has not been
specified and who actually identified the accused
persons there is no TIP being conducted. The
identification of the accused based on the pen drive
cannot be considered. Accordingly submits accused
persons being in judicial custody since the date of
arrest till date other than accused No.3, the accused
are entitled for acquittal.
31 S.C.No.552/2018 & 974/2023
15. In the case on hand, in proof of the offence
punishable u/s.143, 144, 147, 148 r/w.149 of IPC
admittedly, Investigating Officer has placed Ex.P.32,
33, 34, 35, 36 which are the voluntary statements of
the accused persons and as on 22.11.2017
Investigating Officer was able to seize the long, machu,
the weapon of offence under Ex.P.37 near Narasandra
village, Karadi Huchamma temple on N.H.54. The
panch witnesses who accompanied the Investigating
Officer namely Basavaraj and Chetan who are unable
to secure before the court to further the prosecution
case that in presence of these panch witnesses.
Therefore seizure of the articles at the instance of
accused No.1 by the Investigating Officer on
22.11.2017 from Narasandra village does not finds
corroboration that the voluntary statement of accused
No.1 recorded as per Ex.P.33. Therefore the material
placed by the prosecution, the seizure of the articles as
per sec.27 of Evidence Act on the disclosure made by
the accused persons the articles being seized has not
been established. In the case on hand, the Mahazar
32 S.C.No.552/2018 & 974/2023
Ex.P.9, 10 being drawn by the Investigating Officer as
per the procedure has not been substantially
established since the discrepancies as argued by the
learned counsel that within the Mahazar another
Mahazar came to be in existence that while Ex.P.9 was
yet to be concluded within that time the Investigating
Officer has drawn Ex.P.37 actually contradicts seems
reasonable. This court has specifically considered the
rule of law with regard to proper investigation as
envisaged in Police manual which is as follows
16. In fact as per the police manual:
Commentary on Karnataka Police Manual
Volume- II
1285: (7). When a discovery is made as
the result of the statement of the accused
a separate panchanama should be drawn
up for the discovery as giving information
and recovery that follows it are two
different transactions. The information
given by an accused person should not be
mixed up in the panchanama drawn up
for the recovery made in consequence of
such information. It is the information
given by an accused person that
determines his mens-rea and that has a
direct bearing on his guilt.
(8).When one of several accused persons
who have taken part in an act, for
example, the burial of the property at
certain place, offers to point out the place
and the property is found in consequence,
33 S.C.No.552/2018 & 974/2023
his confessional statement is relevant
against him u/s 27 of Indian Evidence Act,
But if other accused persons suspected to
have taken part in burying the property at
the place subsequently point out the
same place separately and in the absence
of one another these confessional
statements cannot be said to have led to
the discovery of the property which has
already been discovered and are not,
therefore, relevant under the section.
There is, however, nothing objectionable
in the investigating officer trying to see
for his moral satisfaction whether such
persons point out the same place as the
one previously shown by one of them.
Panchanama for recovery of stolen
property otherwise than on house search-
record or material facts.
1286.(1). When property is recovered by
a Police Officer other than on a formal
search a contemporaneous record of the
facts relating to such recovery may be
prepared in duplicate by him in form
No.131 and may be attested by witnesses
present at the time of such recovery. The
record so made is admissible in evidence
to corroborate the testimony of the Police
Officer who prepared it or may be used to
refresh his memory. The signatures of the
attesting witnesses may be used in
evidence only to corroborate the
statement of the Police Officer that they
were present at the time of the recovery
and attested the record prepared by him.
Statements which read as statements of
persons other than the Police Officer who
prepares the record and the accused
should not be entered therein. The record
should reach the Magistrate with the least
possible delay.
34 S.C.No.552/2018 & 974/2023
2)Persons, who attested panchanama
prepared for such recoveries, should
invariably be examined as witnesses in
Court.
Panchanama
1287.(1) The only occasions on which a
document which is popularly styled as a
panchanama is required by law to be
drawn up are when i) some articles are
seized in the course of a search of a place
u/s.100(5) Cr.P.C or ii) an investigation
into the cause of death is made u/s.174 of
Cr.P.C. The holding of panchanamas on
other occasions is not a duty imposed
upon a Police Officer by law, though, In
practice a Police Officer resorts to it as a
mode of procuring independent evidence
to corroborate the results of his own
inquiry and observation. In such cases a
panchanama by itself has no evidentiary
value. It is merely a memorandum of
what has been observed by the witnesses
and the Investigating officer, who are not
forget many o the details observed by
them, in the interval between the events
themselves and the day on which they
are called on to testify to them in Court.
Hence, a panchanama is useful only as a
piece of corroboration of the oral
evidence of the
witnesses(Panchayatdars), the
investigating officer(Section 157 of
Evidence Act) or as a memorandum of
facts observed by them, which they may
use to refresh their memory while giving
evidence of those facts(Section 159,
Evidence Act). For the latter purpose, it is
essetial that the person using the
panchanama must either have written it
himself immediately after having
observed certain facts or must have
35 S.C.No.552/2018 & 974/2023
personally read it soon after it was written
up by someone else, and found it to be
correct.
(2) In view of the above legal position of
panchanama the witnesses to be
selected, should be respectable and
disinterested.
(3) The witnesses should be present from
the beginning to the end of the
transaction.
(4) the panchanama should begin with a
mention of the full names, age,
occupation and address of the
panchayathadars followed by a preamble
explaining the purpose, for with the
panchanama is being held. It should
contain full and accurate statements of
the articles or other relevant
circumstances found and the exact spots
at which they were found. It should state
clearly what articles, if any, were seized
and from where they were seized. After it
has been written up, it should be read
over by or to the panchayatadars and
they should be a true account of what
they observed. The name of the writer
should be mentioned and his signature
taken. The time wen it was commenced
and completed, the date and the place
should be mentioned in it.
1302. Under Section 165(2) of the Code
of Criminal Procedure, the Station House
Officer or Investigating, Officer must, if
practicable, perform the actual Searching,
in person. 11 incapacitated from so doing.
he must comply with Sub-section
(3) of that section and deliver to his
subordinate the prescribed order in
writing. A verbal order given on the spot
will not fulfill the requirements of the
section. The Investigating Officer should
36 S.C.No.552/2018 & 974/2023
use Form No. 290 when conducting a
search.
PROCEDURE FOR SEARCH
1303. (1) At least two respectable
witnesses of the locality shall be asked to
be present at a search.
(2) The search shall be conducted in their
presence and the list of things seized
should be signed by the witnesses.
(3) The occupant of the place or his
representative shall be allowed to be
present during the search and a list
signed by the witnesses shall be given to
them.
(4) When any person is searched under
sub-section (3) of Section 100 of the Code
of Criminal Procedure, a copy of the listof
things taken possession of shall be given
to him.
(5) Before the commencement of the
search, the person of the Police Officer
and the witnesses should be searched, so
thatt here may not be suspicion of
something extraneous being planted in
the house or the place to be searched.
(6) The law does not require a search
under the Code of Criminal Procedure to
be made only by daylight, but, normally,
daylight should be awaited. If information
is received after dusk necessitating the
immediate search of a house and if it is
apprehended that delay till daybreak
might result in evidence being concealed
or destroyed, the house should be sealed
and guarded and if that is not possible,
search should be conducted during the
night itself.
(7) Before entering the premises to be
searched, the exterior of the place shall
be inspected to see whether facilities
exist for
37 S.C.No.552/2018 & 974/2023
introducing property from outside,
(8) Search must be systematic and
thorough.
(9) Women should be allowed to
withdraw.
(10) Indiscriminate search and damage to
property should be avoided.
(11) A search list in Form No. 291 shall be
prepared on the completion of the search
in quadruplicate, all the copies being
signed by the Police Officer making the
search and the witnesses to the search.
One copy will be handed over to the
owner or occupant of the house, the
second copy should be sent to the
Magistrate and the third copy should be
sent with the case diary to the superior
officer to whom case diaries are sent. The
fourth copy will form the station record. If
blank paper has
unavoidably to be used, four copies of the
list should be made and dealt with as
above affixing the fourth copy to search
list book, on return to the station.
SALIENT POINTS TO BE REMEMBERED
WHILE CONDUCTING SEARCHES
1304. The following are the salient points
which should be
borne in mind by officers while
conducting searches;
(1) Conduct searches, as far as possible
during daytime,
except when circumstances otherwise
warrant.
(2) Before proceeding to conduct a
search, prepare a record in Form No. 290
(triplicate) indicating-
(a) reasonable grounds for making the
search;
(b) the place to be searched;
38 S.C.No.552/2018 & 974/2023
(c) the thing or things for which search is
to be made, and
(d) why such thing or things cannot
otherwise be obtained without undue
delay.
(3) Send.-
(a) one copy of the record so prepared
without delay to the jurisdictional
Magistrate.
(b) attach the duplicate to the case diary
to be submitted to your officer; and
(c) file the triplicate in your case diary
file.
(4) Before selecting Panchas, ensure that
they are,-
(a) respectable and
(b) inhabitants of the locality
(5) As far as practicable, select Panchas
from the neighbourhood of the place to
be searched.
(6) When it is not practicable to do so and
Panchas have to be selected from any
other place, make a record of the reasons
in your case diary and search list.
(7) Avoid calling the same Panchas to
witness several searches.
(8) If, for any reasons, the same Panchas
have witnessed more than one search,
make a record of those reasons in your
case diary.
(9) When the Panchas are selected, serve
an order on each of them requesting
them to attend and witness the search.
(10) Commence the search only after
securing the presence of witnesses and
explaining to them the object of the
search and the articles for which it is
made.
(11) Before commencing the search, call
out the inmates and have their bodies
searched observing due formalities.
39 S.C.No.552/2018 & 974/2023
(12) Before commencing the search,
request the occupants of the place to be
searched to be present and to attend the
search.
(13) When the occupant deputes another
person on his behalf, allow the deputee to
be present and to attend the search.
(14) If the occupant is not willing or fails
to be present to attend the search, make
a record of it in the search list and the
case diary.
(15) If you reasonably apprehend that the
delay caused in securing the attendance
of the occupant frustrates the very object
of search, proceed with the search in the
presence of whosoever is present on his
behalf and record the reasons for so
proceeding, in your case diary and search
list.
(16) Get yourself and the witnesses
searched in the of the owner or occupier
or any other adult male member of the
house, if available, before the
commencement of the search.
(17) When once the search is started, do
not allow persons inside the house to go
Out or those outside to come in
(18) Conduct the search in each room in
the actual presence of the witnesses.
(19) After the search is completed and
the which the search was conducted and
any other
incriminating articles are found or
brought out, get yourself and the
witnesses again searched and make a
record of it in the search list.
(20) Mention clearly in the search list
every item of property seized, the exact
place where it was found and how and by
whát means it was taken out from that
place.
40 S.C.No.552/2018 & 974/2023
(21) Note in the search list the descriptive
particulars and identification marks of the
incriminating articles recovered.
(22) Make out the search list on the spot
even if no articles are seized.
(23) Record the number of the house and
other particulars including the occupant's
name, parentage and occupation.
(24) Recover documents, if any, to prove
the ownership or occupancy of the person
from the place where incriminating
articles are recovered and record such
recovery in the search list.
(25) Sign with date on all pages of all
copies of the search list and obtain the
signatures of the witnesses on all pages
of all the copies.
(26) Give under acknowledgment a copy
of the search list immediately to the
occupant of the house searched.
On completion of the proceedings-
(a) send without
delay one copy of the search
list to the
jurisdictional Magistrate;
(b) attach another copy to the case diary
of the relevant date to be sent to your
officer;
(c) file the third copy in your case diary
file; and
(d) attach the fourth copy to the final
report to be sent to the Court.
1307: According to section 451 of the
Code of Criminal Procedure, when any
property regarding which any offence
appears to have been committed or
which appears to have been used for the
commission of any offence is produced
before any criminal court during any
inquiry or trial, the court may make such
order as it thinks fit for the proper
custody of such property pending the
41 S.C.No.552/2018 & 974/2023
conclusion of the inquiry or trial. If the
property is subject to speedy or natural
decay or if it is otherwise expedient so to
do, the court may, after recording such
evidence as it thinks necessary, order it
to be sold or otherwise disposed of. Thus
this section provides for the interim
custody of property."
1578: In the case of judgments in which
there are strictures, the following
action should be taken-
(1). As soon as a judgment in a
criminal case filed by the police is
concluded in the court, the concerned
Prosecutor and the Investigating
Officer will examine the judgment for
any strictures or other remarks, either
generally on the investigation or
prosecution of the case of specially
against any Police Officer or other
Government servant.
(2). When there are strictures or other
remarks, the Prosecutor will at once
obtain a copy of the judgment and
send it with his remarks to the Deputy
Director of Prosecutions who will then
examine the judgment and forward it
to the concerned Range Inspector
General of Police/Deputy Inspector
General of Police and Commissioner of
Police with his report and arrange to
take appropriate action against the
concerned Police Officer for the judicial
strictures passed against them. He will
then submit the records to the Director
General along with his report indicating
the nature of action taken in the
matter.
(3). In the case of strictures or other
remarks in judgments pronounced by
the High Court, the Advocate General
42 S.C.No.552/2018 & 974/2023
will send with his comments, a copy of
the judgments to the Director of
Prosecutions who will transmit them to
the Director General along with his
remarks for appropriate action.
(4). The Superintendent while
furnishing his remarks required under
Sub-Order (2) will specifically mention
whether or not the strictures or
remarks are justified; and if unjustified,
what action he has taken for their
expunction. The IGP/Deputy Inspector
General will also furnish his specific
opinion that behalf.
(5). If any strictures or other animad
versions, either against a Police Officer
generally on the investigation or
prosecution of the case, are wholly
unjustified or excessive and deserve
expunction, the Superintendent will
take prompt action to obtain the
opinion of the Advocate-General and
for addressing the Government for
sanction to move the High Court for
expunction.
(6). If the advocate general makes a
recommendation and the Government
sanction the filing of a revision for the
expunction of the strictures or other
remarks, the Superintendent should
promptly send to the Director General
a copy of the Government order and
make available to the Advocate
General all relevant records he may
require in that behalf for filing the
revision.
(7). If the Advocate General does not
make a recommendation and the
Government consider that no action is
called for, the opinion of the Advocate
General and the orders of the
Government will indicate to what
43 S.C.No.552/2018 & 974/2023
extent the strictures or other remarks
are justified. The Superintendent will
then take appropriate action against
the defaulting Police Officers.
(8). In either of the cases mentioned in
Sub-Orders (7) & (8) the
Superintendent will send a copy of the
order of the Government to the
Director General.
(9).When a revision is filed in the High
Court for the expunction of the
strictures or other adverse remarks,
the Superintendent will obtain from the
Advocate General, a copy of the
judgment and send it to the Director
General.
(10).If the High Court dismisses the
revision petition refusing to expunge
the strictures or other remarks, and
observes that they are justified, the
Superintendent will take appropriate
action for their avoidance in the
subsequent cases and also institute
departmental proceedings against the
defaulting Police Officers. He will send
a report of action taken to the Director
General.
(11).Every Commissioner/Range
Inspector General and Superintendent
of Police will maintain a register of
judicial strictures and commendations
in form No.161. The registers are
useful for the officers to have an
overall impression of the judicial
appreciation of the standards of
investigation and prosecution in a
district;
(12).the Inspecting Officers at the time
of their inspections will ensure that the
registers have been properly
maintained by the
Commissioner/Inspector General/
44 S.C.No.552/2018 & 974/2023
Deputy Inspector
General/Superintendent and that he
has issued appropriate instructions for
improving the investigation and
prosecution his district/range. The
Inspecting Officers will make a specific
mention about their having checked
the register in their inspector notes.
(13)Every judgment sent under this
order should reach the Director
General within one month from the
date of its pronouncement.
(14).As soon as a copy of the judgment
with the remarks of the officers as
indicated in sub-Orders(2), (3) and (4)
is received in Chief Office, the crime
branch will examine it with reference
to the relevant heinous crime file, if it
is a judgment in a heinous crime and
send the file to the law section
obtaining the orders of the concerned
Deputy Inspector General in the Chief
Office.
(15). The law section will examine the
judgment and the remarks furnished
by the various officers and take action
for the issue of appropriate instructions
by law circulars and law bulletins, for
the rectification of the defects and
lapses pointed out in the judgment.
(16).When a copy of the judgment is
received in other sections of the chief
Office and it contains strictures or
remarks against any Police Officer or
on the investigation or prosecution of a
case, the concerned Section
Superintendents will obtain the orders
of the concerned Assistant Inspector
General/Deputy Inspector General, PRS
and send the judgment to the law
section. The law section will take
action as indicated in Sub-Order(15).
45 S.C.No.552/2018 & 974/2023
(17). When a copy of the judgment
referred to in sub-Order (9) is received
in the chief Office, the crime section
will endorse it to the law section and
the law section will examine the
judgment and take appropriate action.
(18).On receipt of a copy of the order
referred to in Sub-Order (8) the crime
section will immediately endorse a
copy to the law section and the law
section will examine the order and
take action to issue suitable
instructions.
(19).All departmental action arising out
of judicial strictures in the judgment of
courts will be pursued by the crime
section of the Chief Office till final
disposal.
(20).the law section in Chief Office will
maintain registers of judicial strictures
and judicial commendations in form
No.161.
REVIEW OF JUDICIAL STRICTURES AND
COMMENDATIONS:
1579. (1) A quarterly statement of
judicial strictures and judicial
commendations in form No.161
for quarter ending with 31st March,
30 June, 30 September and 31st
th th
December should be sent to chief
Office on or before 10th of the
succeeding month of the quarter.
(2).The law section in chief Office will
compile and review the strictures. The
review will be sent to the
Commissioner, Inspector
General/Deputy Inspector General and
Superintendents.
46 S.C.No.552/2018 & 974/2023
CASE DIARIES-ENGLISH TRANSLATION TO BE SENT
TO GOVERNMENT AS SOON AS A SENTENCE OF
DEATH IS PASSED OR CONFIRMED BY THE HIGH
COURT
1580. (1). When a petition of mercy
from a convict under sentence of death
is to be forwarded to the Government
of India, Ministry of Home Affairs, by
the State Government, it should
invariably be accompanied by an
English translation of the police diary
along with the other records of the
case.
(2). Superintendents shall, therefore,
send direct to the Government in the
Home Department two certified copies
of the English translation of the police
diary in all cases in which the accused
are sentenced to death. The records
should be sent to Government with the
least possible delay as soon as the
sentence of death is confirmed by the
High Court or is inflicted by that court
in enhancement of the sentence
passed by the Sessions Court.
17. In the case on hand, investigation done has not
been done as per the procedure, the citation relied by
the Special PP cannot be applied in the case on hand.
This court on going through the evidence of P.W.1, the
P.W.1 has specifically deposed that victim was an auto
driver and accused persons are also were working as
auto drivers. This witness deposes his father was
47 S.C.No.552/2018 & 974/2023
working as a bar bending worker in Mahalakshmi
Layout in the year 2017 during the night hours to
prevent the stealing of the iron rods, the complainant
and victim were used to go there and verified the same
and returned. This witness has deposed on 14.11.2017
at about 3.30 a.m this witness alongwith his brother
had visited the building and were returning. They
reached near the Metro Station in their auto at that
time 7 accused persons came near the Metro Station
and they stopped the autorickshaw near the Metro
Station, they abused the victim and even threatened
him of dire consequence as he alone was secured by
them.
18. In the case on hand, to consider the complainant
being eye witness to the incident in their complaint,
complainant has mentioned, specifically in page-1
"ಅದರಂತೆ ನಾನು ದಿಃ 14.11.2017 ರಂದು ಬೆಳಗಿನ ಜಾವ 2.30
ಗಂಟೆಯಲ್ಲಿ ಮಹಾಲಕ್ಷ್ಮಿ ಲೇಔಟ್ ನಲ್ಲಿರುವ ಬಿಲ್ಡಿಂಗ್ ಬಳಿ ಹೋಗಿ ಪರಿಶೀಲನೆ
ಮಾಡಿ ವಾಪಸ್ಮನೆಗೆ ಬರುತ್ತಿರುವಾಗ ಮಹಾಲಕ್ಷಿ ಲೇಔಟ್ ಎಂಟ್ರೆನ್ಸ್ ಮೆಟ್ರೋ
ಸ್ಟೇಷನ್ ಬಳಿ ಸುಮಾರು 3.30 ಗಂಟೆಯಲ್ಲಿ ನನ್ನ ತಮ್ಮ ಅಂಡ್ರೋಸ್ ನನ್ನು
ಮಣಿ, ವಿನಯ್ ಇತರರು." The complainant does not specify
48 S.C.No.552/2018 & 974/2023
he was also travelling in the autorickshaw at that
juncture. The learned counsel for the accused brings to
the court notice if at all the complainant being eye
witness was coming in the same direction alongwith
Andrus, then question of accused persons mentioned:
"ಈಗ ಸಾಕ್ಷ್ಯದಲ್ಲಿ ನುಡಿದಿರುವಂತೆ ದಿಃ14.11.2017 ರಂದು
ನಾನು ನನ್ನ ತಮ್ಮ ನ ಜೊತೆಗೆ ಬೆಳಗಿನ ಜಾವ 3.30 ಗಂಟೆಗೆ
ಮಹಾಲಕ್ಷ್ಮಿ ಎಂಟ್ರೆಂನ್ಸ ಮೆಟ್ರೋ ಬಳಿ ಆಟೋದಲ್ಲಿ ಬರುತ್ತಿರಲ್ಲಿ
ಎಂದು ಸೂಚಿಸಿದರೆ ಸರಿಯಲ್ಲ ."
does not arise and this fact written in the complaint
contradicts. As per the seizure Mahazar Ex.P.5, this
court on going through the materials on record, the
Investigating Officer has mentioned seizure of the auto
bearing No.KA-05-AA-7048 alongwith 3 weapon of
offence, however in page-3 of the Ex.P.5 one screw
driver appearing as a dagger is mentioned which is
deposited as M.O.9. This article being seized in
presence of court and from the possession of whom is
not mentioned herein as per Ex.P.33. The autorickshaw,
clothes, long, machu will be shown as mentioned by the
accused No.1, 2, 4, 5 and 6, however with regard to the
49 S.C.No.552/2018 & 974/2023
dagger like screw driver there is no mention herein. On
going through the post mortem report Ex.P.14 there
are punctured wounds on the victim especially injury-
11 and injury-12 and as per the FSL who had received
the articles for examination article-17 is mentioned as
one iron hoes and it has not been mentioned as screw
driver. Therefore the description made by the
Investigating Officer in Ex.P.5 is whether it is a dagger
or a screw driver or an iron hoes as specified by the W
Director of FSL is not specific. Therefore to co-relate the
injury to the victim suffered if as per the statement of
the accused persons recorded by the Investigating
Officer when it is a dagger, even as mentioned in the
complaint that Vinay had stabbed with a dagger on the
right side of the chest is mentioned, however in the
P.M.Report the injury-11 has been caused to the neck
and injury-12 has been caused on the middle of the
abdomen, as such the injury mentioned in the
complaint does not co-relate with the injury observed in
the P.M.Report. Therefore the complainant being eye
witness as projected by the prosecution in its case
50 S.C.No.552/2018 & 974/2023
actually contradicts from the material placed on record.
In the evidence of P.W.1, he simply narrates the
incident that on 14.11.2017 at about 3.30 a.m he
alongwith victim had gone to the place of work of their
father while returning accused have came there near
the Mahalakshmi Layout Metro Station, they stopped
their autorickshaw is the mention made by this witness,
however in the CCTV Footage which has been made
available as seized by the Investigating Officer under
Ex.P.4 what is the duration from which point of time to
which point of time the CD has been downloaded and
recorded is not specified in Ex.P.4. Moreover, even after
showing the same to the material witnesses by the
Investigating Officer the complainant further statement
he has not mentioned the time during which time to
which time the CD has been played and recorded to
him. Therefore the complainant being an eye witness to
the incident itself becomes doubtful from the material
placed by the prosecution. Even in the cross
examination of P.W.1 it has been got elicited in the
cross of P.W.1 dated:18.7.2024 first para last 2 lines
51 S.C.No.552/2018 & 974/2023
that the complainant was residing separately from that
of his father and the victim Andrew which is at a
distance of about half a kilometer. This witness has
deposed he cannot recollect the cross and main where
his father was working at that time. The PW.1 has
explained from whether he took his brother to the work
place of his father he has specified in page-8 that he
went to his father's house and took him to the place for
inspection. This witness has deposed that they have
left their house at about 3.00 a.m. This witness
specifically deposed that he was accompanying his
brother at about 3.30 a.m is not specified in the
complaint, he deposed it may have been mentioned.
This witness denies that accused persons have not
come in 2 autos near the metro station. This witness
deposes about the presence of accused persons in the
auto in page-10 of his evidence. This witness
specifically deposed he has given statement on the
next day in the police station after the incident. In this
regard, if we go through the complaint, the
complainant had specifically mentioned as he has gone
52 S.C.No.552/2018 & 974/2023
at about 4.25 a.m on the date of incident itself and
Investigating Officer had recorded the statement of so
called Karthik @ Yelka, C.W.27 statement has been
recorded. On 15.11.2017 who has specifically
mentioned in his statement he had met victim at about
1.00 a.m on 14.11.2017 near Savitha Talkies and it has
been mentioned victim Andrew was riding his auto near
Orion Mall, he was found along with Mani, Shekar,
Goutham, Chandan and this witness has specified in his
statement there is continuous altercation between Mani
and victim Andrew victim was assaulting the Mani. This
accused has deposed he has pacified the dispute and it
has been specified Andrew once again called accused
No.3 and 5 and all of them went near the Orion Mall
again from there they have went to Mahalakshmi
Layout Metro Station and this witness have specified
near the Ananda Bar Road there was dispute going on
between the victim, accused No.1 and this witness has
specified in his statement which is marked as Ex.P.3 in
one auto, all the accused persons namely Mani, Raki,
Goutham, Vinay, Shekar and Thammanna Gowda along
53 S.C.No.552/2018 & 974/2023
with Chandu they have went away. However in the
evidence of P.W.1 as brought by the court by P.W.1
accused persons came there in two authorickishaw's
and deposed in para-9 and 10 of his evidence which
contradicts the facts placed on record. The complainant
with regard to identification of the accused persons has
specifically deposed in page-2 of examination in chief
dated:23.8.2019 accused Vinay, Mani, Rocky have
assaulted the brother with a rod, he identifies the
person having red T-Shirt is Vinay and when the person
seen with red T-Shirt is questioned by the court he
mentioned his name is Rakesh. This witness has
deposed in page-2 as follows:
"ಆರೋಪಿತರಾದ ವಿನಯ್, ಮಣಿ ಮತ್ತು ರಾಕಿ ಇವರು
ನನ್ನ ತಮ್ಮ ಅಂಡ್ರ್ಯೂಸ್ ಗೆ ರಾಡ್ನಿಂದ ಹೊಡೆದಾಗ ನನ್ನ
ತಮ್ಮ ಕೆಳಗೆ ಬಿದ್ದ ನು. ನನ್ನ ತಮ್ಮ ಅಂಡ್ರ್ಯೂಸ್ ಕೆಳಗೆ
ಬಸಿದ್ದಾಗ ಆರೋಪಿ ರಾಕೇಶ್ ಡ್ರ್ಯಾಗರಿನಿಂದ ನನ್ನ
ತಮ್ಮ ನಿಗೆ ಚುಚ್ಚಿದ್ದ ರು. ಆರೋಪಿತರು ನನ್ನ ತಮ್ಮ ನಿಗೆ
ಹೊಡೆಯುತಿತದ್ದಾಗ ಹೆದರಿ ನಾನು ಅಲ್ಲಿಂದ ಸ್ವ ಲ್ಪ ದೂರ
ಓಡಿ ಹೋದೆನು".
54 S.C.No.552/2018 & 974/2023
19. In the P.M.Report Ex.P.14 there is incised wound
on the victim as per injury Nos.11 and 12, all other
injuries are chopped one. In the entire injuries
sustained by the victim, there is no any injury caused
with iron rod i.e any contusion or hemorrhage being not
observed by the Medical Officer who has been
examined before this court. Therefore the evidence of
the P.W.1 that his brother has been assaulted with iron
rod and no such material object being seized by the
Investigating Officer, there is no co-relation with the
evidence of this P.W.1 with that of the complaint or the
P.M.Report where the victim had suffered injuries. In
fact P.W.1 has deposed about stab injury by a dagger
to the victim by Rakesh is caused. However to which
portion of the body the stab has been made even as
mentioned in Ex.P.1 complaint has not been specifically
mentioned by this witness. In fact the Investigating
Officer has arrested the accused persons namely
accused No.4 Rajashekar as on 19.11.2017. As per the
voluntary statement of the Rajashekar Ex.P.35 the
seizure Mahazar placed by the Investigating Officer
55 S.C.No.552/2018 & 974/2023
namely Ex.P.5 when the Investigating Officer arrested
the accused persons he had seized the articles wherein
the mobile phone of the victim Andrew has been seized
from the possession of the accused Rajashekar. The
material object M.O.9 has specified by the Investigating
Officer is neither screw driver nor dagger but it is only a
dagger. Therefore the description made by the
Investigating Officer in the Ex.P.5 with regard to the
material objects actually differ's from the material
objects deposited in court as brought to the notice of
court by the learned counsel for the accused. In fact
the P.W.4 is the seizure Mahazar witness who has
specifically deposed about the seizure of the articles in
his presence by the Investigating Officer and he
identifies M.Os.6 to 13 being seized in his presence and
also one auto being seized in his presence. As per
Ex.P.5 the auto mentioned therein No. KA-05-AA-7048
has not at all deposed before the court nor the same as
mentioned in P.F. being brought to the notice of the
court whether it has been released by the Investigating
Officer as per the order of this court or no any mention
56 S.C.No.552/2018 & 974/2023
is made even though Investigating Officer has entered
the witness box he is silent about the same. Further the
P.W.4 does not specify which was the autorickshaw and
he does not makes an attempt to identify the auto. The
auto identified by the P.W.4 before the court as shown
in the photographs Ex.P.6 and 7 is KA-01-AB-5491,
however as per the seizure Mahazar the auto number is
KA-05-AA-7048. In fact the Investigating Officer has
not at all collected the vehicle register number,
B.Extract of the vehicles, which were mentioned in the
entire case and whom those autorickshaw's are
belonging. In fact in the cross examination of P.W.4 he
has specifically deposed he has signed the documents
below in Metro station and she deposed in the spot
police have seized chelake and auto, the chelake has
been identified as M.O.14 herein. On giving opportunity
for further evidence, this witness further evidence has
not been made, however further cross examined
witness deposes the M.Os.6 to 13 are not seen by him
and he has not witnessed the contents of pen drive is
his evidence. In the case on hand, by considering the
57 S.C.No.552/2018 & 974/2023
entire materials with regard to the complainant being
an eye witness to the incident as argued by the learned
SPP by placing reliance on Crl.A.1109-1110 of 2010
dated:16.3.2023 the circumstances in the present case
does not points that the complainant can be considered
safely as a sole by witness to the incident.
20. In the case on hand, there are about 7 hostile
witnesses who does not support the prosecution case.
Even after cross examining these witnesses does not
depose about the investigation conducted and they are
being part of prosecution. In fact even the inquest
Mahazar P.Ws.8 and 9 have turned hostile. However
the learned counsel for the accused submits the death
of the victim is not disputed by the defence as they
have questioned the PW.12 wherein the witness has
specifically admitted M.O.6 and 7 have not been made
available for this witness to consider in co-relation with
the injuries suffered by the victim even after the Post
Mortem is conducted. The witness has specifically
admitted the injury No.12 cannot be caused by the
above M.O.6 and 7, witness has admitted.
58 S.C.No.552/2018 & 974/2023
21. The P.W.13 is the Executive Engineer of PWD who
has deposed about conducting spot sketch. This
witness in cross examination deposes she prepared
only rough sketch in the spot and made a fair sketch in
office. This witness admits the spot is very busy one
having vehicle and public at all times.
22. The P.W.14 is the Head Constable who had assisted
the Investigating Officer in collecting the material
objects 15 to 18 and handing over the same to
Investigating Officer. This witness in cross examination
at page-2 specifically admits what is M.Os.15 to 18
sealed, he deposed he has not seen as it was sealed.
23. The P.W.15 is ASI who deposed about handing over
the M.Os.1 to 21 to FSL, P.W.16 is another Head
Constable who assisted the Investigating Officer who
had handed over the FIR to the jurisdictional
Magistrate. This witness in his cross examination
admits he had handed over FIR at about 7.00 a.m to
the Home Office of the jurisdictional Magistrate.
24. The P.W.17 Basavaraj.R is another Head Constable
herein who had taken down the narration of the
59 S.C.No.552/2018 & 974/2023
complaint and handed over the same to the
Investigating Officer before registering the crime. This
witness deposes at about 4.00 a.m complainant visited
the police station and lodged the complaint. The crime
has been registered at about 4.25 a.m which co-relates
with the evidence of this witness.
25. The P.W.18 is Police Constable who had assisted
the Investigating Officer by making the report of
arresting the Goutham accused No.5.
26. The P.W.19 is another Head Constable who has
deposed that he also participated in the raid and
caught hold of the accused persons Rakesh, Mani,
Vinay Kumar, Rajashekar and Chandan. After getting
specific information he also arrested further accused
No.3 on 22.11.2017. This witness has denied the
suggestion made by the learned counsel for the
defence.
27. The P.W.20 H.Narasimhaiah another ASI has
deposed at about 3.30 a.m David came who had
reported about murder of his brother and he registered
FIR as per Ex.P.19.
60 S.C.No.552/2018 & 974/2023
28. The learned counsel for the accused argues the
evidence of P.W.20 and 17 actually contradicts since as
deposed by PW.17 victim came to the police station at
about 4.0 a.m, however P.W.20 has deposed victim has
come at about 3.30 a.m. P.W.21 is an independent
witness who is a Mahazar witness who has turned
hostile. P.W.22 is the Investigating Officer who is the
ACP who took up further investigation only on
27.1.2018, who on collecting the documents Ex.P.23,
22, he has filed charge sheet. This witness in his cross
examination has deposed as per Ex.P.11 the caste of
the victim is mentioned as Christian, however on
recording statements of brothers, sister he came to
know victim is belonging to Adi Dravida. This witness
specifically admits David complainant has not specified
he belongs to Adi Dravida in his statements. This
witness deposes further he has not at all collected
caste report of all the accused persons. He deposes he
made request but they have not got the same.
61 S.C.No.552/2018 & 974/2023
29. The P.W.23 is the FSL.Personnel who examined the
same and opined there is human blood on the material
objects as mentioned in Ex.P.25.
30. The P.W.24 Is the Police Officer who handed over
pen drive to the police Personnel who in turn placed in
the same in hands of P.W.25 the Investigating Officer
who concluded the majority of the investigation.
31. The learned SPP has placed reliance on the citation
that there is though lacuna being appeared in the
investigation, the same should not be given weightage
the offence is to be given weightage, accordingly based
on (2004) AIR (SCW) 1609 and (2012) 5 Supreme Court
Cases 777, the material placed on record alongwith
circumstantial evidence is to be considered and
accused are to be convicted is the prayer. However in
the case on hand, as discussed supra the documents
placed by the Investigating Officer the P.W.25 itself
contradicts with another documents namely the
documents especially the Ex.P.9 and 10 and 37
contradicts with the facts which has been recorded by
the Investigating Officer in those documents.
62 S.C.No.552/2018 & 974/2023
32. The learned counsel for the accused has raised
technical defect with regard to either provisions of
SC/ST (POA) Act 1989. However this court on going
through the Notification of Home Department
No.HD64POP94, Bengaluru dated:28.6.1995 the
Government of Karnataka has made a Notification to
the Home Department and Transport Department that
as power has been conferred u/s.9(1) of the SC/ST
(POA) Act 1989 and Part-B the Government of
Karnataka has empowered the police officers namely
all the rank of Sub Inspector of Police working in DCRE
and exercise the powers under this SC/ST (POA) Act
1989 as for the power of arrest investigation and
prosecution of persons before Special Court. Further
this court on examining the decision of Hon'ble Apex
Court, Civil Appeal No.4397/4400 of 2017 State of Bihar
V/s. Anil Kumar and others dated:23.3.2017 the Hon'ble
Supreme Court of India by considering the numerous
decisions has observed in para-23 and 24 as follows:
"23. Having given a thoughtful consideration,
to the contention advanced on behalf of the
appellant - State of Bihar, we are of the view,
that the legal position as has been declared
63 S.C.No.552/2018 & 974/2023
by this Court, is in complete consonance and
conformity with the postulation contained in
Section 465 of the Code of Criminal
Procedure. This being the position, we have
no hesitation in holding, that the second
determination rendered by the High Court, to
the extent that the investigation carried out
by a police officer below the rank of a Deputy
Superintendent of Police, after 31.03.1995
and prior to the issuance of the notification
dated 03.06.2002 (on 09.08.2008), would
stand vitiated, has necessarily to be set
aside.
In our view, the above finding could have
been returned only if, the concerned Court
expressed its satisfaction, that the
investigation carried out, by a subordinate
police officer/official, who had no authority to
investigate the matter, had caused prejudice
to the accused, leading to miscarriage of
justice. Since no such finding has been
recorded, and since it has also not been
established before this Court, that the
accused had suffered such prejudice, it is not
possible for us, to sustain the above
conclusion, of the High Court. The same is
accordingly hereby set aside.
24. Having recorded our conclusions with
reference to the second proposition,
recorded in the preceding paragraph, it is
necessary for us to take the issue canvassed
on behalf of the State Government. In that,
insofar as the facts and circumstances of the
present cases are concerned, such a
demonstration at the hands of the accused,
will be inconsequential, inasmuch as, our
having upheld the notification issued by the
State Government, under Section 9 of the
'SCST Act', a valid and legitimate
investigation can "now" be carried out, even
64 S.C.No.552/2018 & 974/2023
by a police officer below the rank of a Deputy
Superintendent of Police.
And as such, even in cases where a fresh
investigation is ordered, at the present
juncture, the officer/official (Inspector, Sub-
Inspector, Assistant Sub-Inspector of Police)
who had carried out the original
investigation, would have to be considered to
be possessed of the investigative authority.
As now, the investigating authorities,
authorized under the 'SCST Act', would
include those as have been notified by the
State Government in exercise of the power
vested in it under Section 9 of the 'SCST Act'.
As such, no purpose would be served for any
party to agitate the instant issue, seeking re-
investigation, in the facts and circumstances
of the matters in hand."
33. Though the Hon'ble Apex Court has approved that
any subordinate police officer of the rank of Dy.SP
takes any investigation, it is to be monitored by the
Investigating Officer who concludes the investigation.
In the case on hand, the entire investigation is
conducted by the PSI who is not of the rank of the
Dy.SP. However when the Investigating Officer as per
the order of the Dy.SP namely P.W.22 took over the
investigation, he has not at all verified the entire
investigation conducted by the PSI. In fact the specific
discrepancies brought to the notice of the court namely
65 S.C.No.552/2018 & 974/2023
in the Ex. P.9, 10 and 37 that the Mahazar has been
drawn during the period of drawing another Mahazar by
the same Investigating Officer at different places
actually contradicts. However the Investigating Officer
who took up further investigation has specifically failed
to specify even the Circular of the Government of
Karnataka nor the citation of the Hon'ble Apex court
wherein the responsibility on the Investigating Officer
namely the Dy. SP has not been taken away and he is
responsible for the same. Under these circumstances,
this court finds the investigation itself is not in
accordance with law.
34. In the case on hand, to consider the ingredients of
offence punishable u/s.143,144,147,148 r/w.149 of IPC,
to co-relate the accused persons to the alleged
incident, though Investigating Officer has placed
certain material objects to consider the ingredients of
offence punishable u/s.148 r/w.149 of IPC and there are
more than 6 persons assembled to assault the victim
which can be observed from the CCTV Footage of the
Mahalakshmi layout Traffic police station installed in
66 S.C.No.552/2018 & 974/2023
the spot, the evidence collected by the Investigating
Officer is not supported either by the 65B certificate of
Indian Evidence Act so as to consider the CCTV Footage
is obtained as per the provisions of law. Further more in
the case on hand, to link the accused to the alleged
offence, as per Ex.P.26, 27, 28 name of the accused
have been mentioned in the photographs which
observed by the Investigating Officer from the CCTV
Footage downloaded and handed over to him, however
who made the mark and who identified the accused
persons or the name mentioned therein in Ex.P.26, 27,
28 is not forthcoming. There is no any statement either
of the complainant or any of the witnesses to whom
these photographs being shown is not forthcoming
from the entire materials on record. It is an admitted
fact as argued by the learned SPP also that there is no
any test identification parade conducted by the
Investigating Officer. It is pertinent to note that the
Investigating Officer has lost the seriousness of the
investigation conducted in an offence punishable
u/s.302 of IPC. Moreover the materials collected by the
67 S.C.No.552/2018 & 974/2023
Investigating Officer in the course of the investigation
are distracted and not towards the point of bringing
home, the guilt of the accused but in otherwise it is
divulged from the facts which are to be collected by the
Investigating Officer or were also not collected is
evident from the record. Under such circumstances the
evidence of other material witnesses though not
specified herein, the hostile witnesses and other
witnesses, the family members of the victim though
deposed about coming to know that the victim has
been hacked to death, but they are unable to either
identify them nor they are able to mention the names
of the persons who were actually involved in the
alleged offence. Therefore the link between the
identification of the accused being not made properly
by any of the material witnesses including the
complainant as even his identification before the court
on seeing the accused persons through VC he was
unable to identify them is evident. Under these
circumstances to prove the ingredients of offence
punishable u/s.143, 144, 147, 148 r/w.149 of IPC, the
68 S.C.No.552/2018 & 974/2023
prosecution is unable to place substantial material.
Accordingly, this court is satisfied to answer these Point
Nos.1 to 4 in the Negative.
35. POINT NO.5: The prosecution to prove the
ingredients of offence punishable u/s.302 r/w.149 of
IPC, has brought to the court notice basically the
complaint wherein the brother of the victim has made
complaint the so called eye witness to the incident as
per the charge sheet, the personnel working in the spot
of L & T Company with regard to construction of the
Metro are not available before the court. In the case on
hand, the so called other eye witnesses as per the
charge sheet CWs.19 to 25 are not available before this
court. My Predecessor in office did issued summons,
warrant, proclamation against these witnesses are
unable to be secured as after their work they are all
gone to the different places of their work or otherwise.
The witnesses examined before the court other than
the complainant shown as eye witnesses, prosecution
is able to secure the panch witnesses, the medical
officer, the PWD Engineer who conducted spot sketch
69 S.C.No.552/2018 & 974/2023
preparation and the police personnel who assisted the
Investigating Officer from the CWs.33 to 46 are
subjected for evidencing before the court among them
CW.43 is reported dead and the C.W. 45 is given up. In
the case on hand, the material witnesses namely the
C.Ws. 26 and 27 have turned hostile, similarly the
C.Ws.3,5,8,9,10,12,13 have turned hostile. In the case
on hand, the prosecution to prove the death of the
victim has got examined brother of the victim the P.W.1
David who has specifically deposed in his examination
in chief in page-3 among the 8 persons his brother has
been stabbed and one person has smashed the head
of the victim with the stone and his brother had
suffered bleeding injuries. The ambulance has been
brought to the spot and he went along with the victim
and police were also in the spot before as informed by
some other person. The victim was shifted to
M.S.Ramaiah hospital, however the victim had
succumbed in the mid way. The victim went to the
Mahalakshmi Layout police station and gave complaint
to that effect. In his cross examination the P.W.1 at
70 S.C.No.552/2018 & 974/2023
page-10 has answered to the specific question that
Rakesh had stabbed his brother with a dagger by
denying the suggestion made by learned counsel for
the accused. This witness denies the suggestion that
accused had also shown the weapon of offence to
personnel of L & T who were working in the spot. The
witness deposes police themselves have called the
ambulance to the spot. This witness deposes that his
brother was shifted from the spot in an ambulance and
they reached at about 45 minutes from the spot to the
hospital. This witness deposes in page-11 of his cross
examination the Medical Officer did not examined his
brother in his presence, however in presence of police
only they examined. This witness deposes after he
went to hospital till the body was handed over to them
he was in the hospital only. This witness deposes his
father, mother and other relatives came to the hospital
there only when the body was handed over and the
suggestions made to that effect is admitted. This fact
clearly discloses that the death of the victim is
undisputed. Further prosecution has got examined the
71 S.C.No.552/2018 & 974/2023
inquest Mahazar witness which is marked as Ex.P.11
wherein statement of Sagai Raj brother of the victim
the P.W.11 and the P.W.10 Selvi mother of the victim
are being recorded wherein they have specifically
stated in column-11 the victim Andrew had difference
with other auto drivers who were used to use the auto
stand at Dr.Rajkumar road namely Mani, Vinay, Rocky
had dispute with the deceased and in the same column
it has been noted on 13/14.11.2017 at about 3.30 a.m
the victim was assaulted by accused persons by
chasing him and victim came near the place where L &
T company and BWSSB Personnel were working and he
came there and stood there, then 2 persons caught
hold of the victim and the accused Mani and Raki with
an intention to kill had assaulted on the victim, face,
head, forehead with Machu and Vinay had stabbed with
dagger to the shoulder and chest, victim fell down
therein, then another accused had assaulted with a
stone which was near the spot on the head is the
information received by these persons.
72 S.C.No.552/2018 & 974/2023
36. The learned counsel for the accused brings to the
court notice herein that the inquest Mahazar Ex.P.11
actually contradicts, the complaint given by
complainant since as per the complaint, the
complainant is an eye witness to the spot as he was
moving along with the victim in the autorickshaw of the
victim. However column-11 specifically indicates that
the victim was chased by these accused persons from
the auto stand of Mahalakshmi Layout entrance to the
spot by the accused persons. Therefore the facts
narrated in the complaint actually contradicts with the
inquest Mahazar which has been drawn by the
Investigating Officer the C.W.47/P.W.25. In fact the
statement of the P.Ws.10 and 11 is recorded in the spot
which is similar to the same, however these two
witnesses have not stated in their statements before
the Investigating Officer that the brother David was
also present along with victim in the spot. The learned
counsel for the accused brings to the court notice that
as mentioned in the complaint and even in the
evidence of PW.1, the accused persons mentioned to
73 S.C.No.552/2018 & 974/2023
the victim that 'today you have alone is available'. This
fact contradicts that complainant being an eye witness
to the spot seems a reasonable one. In the case on
hand, other than the complainant, the other material
witnesses examined, many of them have turned hostile
namely the P.Ws.2 to 9 other than the Pws. 4 and 7. In
the evidence of the P.W.4, this witness has deposed
about seizure of the articles the M.Os.6 to 13 from the
possession of the accused persons and he identifies his
signature on the M.Os. chits affixed therein. However
this witness in cross examination has specifically
admitted he never saw M.Os.6 to 13 in police station
nor the contents of the pen drive to which he is a
witness. This witness admitted as directed by the
police, he had signed all the papers. Similarly P.W.7 has
deposed about seizure of the M.Os.1 to 5 in his
presence in the spot to which in his cross examination
he has stood test of cross examination however he has
deposed to be had gathered in the spot and he has not
been issued any notice by the police and he has
74 S.C.No.552/2018 & 974/2023
specifically denied the M.Os contents in the police
station only.
37. In the case on hand, though the prosecution is able
to prove the spot Mahazar by examining P.W.7 the
other Medical Officer the P.W.12 has deposed about the
death of the victim is due to injury suffered. In the
cross examination of the Medical Officer P.W.12 the
specific suggestion have been made that none of the
M.Os.6 to 7 are being shown to the Medical Officer after
he conducted Post Mortem and no any opinion has
been obtained by the Investigating Officer to that
effect. In the case on hand, the Investigating Officer
who conducted the investigation is the P.W.25 who
though deposed in his examination in chief about
following of the due procedures. In fact with regard to
identifying the pen drive in which the police personnel
have installed CCTV Footage by the Mahalakshmi
Layout Traffic police station which is placed on record
as per Ex.P.25, the P.W.24 has been examined who has
specifically deposed about seizure of the pen drive
after downloading the same from the CCTV Footage in
75 S.C.No.552/2018 & 974/2023
presence of one technician and panch witness. This
witness has specifically given the time. She has done
the work of downloading the same from the CCTV
Footage is at about 11.00 a.m on 14.11.2017. The
same question has been put to the P.W.25 in his cross
examination. This witness has no any answer that he
did not collected any 65B of Evidence Act certificate
with regard to the pen drive being handed over to him
from the P.W.24 to Police Inspector of Traffic police
station of Mahalakshmi Layout. The P.W.25 in his cross
examination at page-14 to the specific question with
regard to downloading of the CCTV Footage he has
deposed that he had conducted Mahazar by seizing the
pen drive at 10 to 11.00 a.m, however the witness has
specifically mentioned as identified by the complainant
he had marked in Ex.P.26 to 28 with regard to the
accused persons. The learned counsel for the accused
specifically argues before the court by bringing to the
court notice that P.W.1 In his examination in chief at
page-2 that he identified on seeing the CCTV Footage
through pen drive and mention the person with red T-
76 S.C.No.552/2018 & 974/2023
Shirt is Vinay but actually that person is Rakesh. The
learned SPP argues that the P.W.1 has identified after a
period of more than 2 years before the court, with
regard to identification of accused through VC.
Therefore the discrepancy may be ignored and in that
regard brought to the court notice suggestion which are
relied by the prosecution. However this court
considering the answers given by the P.W.1 in his cross
examination he has specifically deviated from the
examination in chief and further from the cross
examination itself it is clear that the P.W.1 is not an eye
witness to the incident as per his explanations offered
which contradicts with the Ex.P.11 inquest Mahazar the
statements of his brother Sagai Raj P.W.11 and even
his mother the P.W.10. In fact in the evidence of
PWs.10 and 11, they both have not deposed with
regard to the incident but they have deposed about the
death of son of the the P.W.10 and brother of the
P.W.11, other than that who are the persons
responsible for the incident they have not at all given
any evidence before this court.
77 S.C.No.552/2018 & 974/2023
38. In the case on hand, on considering the entire
evidence on record, even the evidence of other
witnesses does not points to the fact that the accused
are connected to the alleged crime in any way.
Therefore there are lot of missing links even in
conducting the investigation by the Investigating
Officer. In the case on hand, the P.W.25 has failed to
give proper explanation to the improper conducting of
the investigation while specific suggestions have been
made to the Ex.P.8, 9, 10 and 11 and 37. In the case on
hand, the PW.23 Radha is a Forensic Personnel who has
received the articles from the Investigating Officer on
examination has given opinion with regard to blood
stain being of human blood as per Ex.P.24. However
the evidence of P.W.5 does not come to the aid of the
prosecution so as to link the accused to the alleged
offence.
39. In the case on hand, the learned SPP has brought to
the notice of court with regard to suggestion as
discussed supra, however none of the suggestion will
come to the aid of the prosecution, so as to
78 S.C.No.552/2018 & 974/2023
compensate the lacuna in conducting proper
investigation as observed by this court while discussing
points for consideration above, the prosecution being
unable to place substantial material to link the accused
to the alleged offence in the case on hand though
prosecution is able to show death of the victim is
accused alone are responsible to the alleged offence
the materials collected by the Investigating Officer are
falling short with regard to the panchanamas drawn by
the Investigating Officer namely on 19.11.2017 as per
Ex.P.5 the autorickshaw KA-05-AA-7048 has not been
deposited or no any photograph of the same being
made available before this court though court has
passed specific direction being issued to the
Investigating Officer to that effect. With regard to
drawing of Mahazar on 20.11.2017 at the instance of
accused persons the Investigating Officer has
conducted Mahazar with regard to the seizure of the
autorickshaw bearing No. KA-01-AB-5491 Exs.P.6 and 7
have been placed. Though P.W.4 deposed about
signing Ex.P.8 but this witness has not specified in his
79 S.C.No.552/2018 & 974/2023
presence autorickshaw has been seized even in the
examination in chief itself. Under such circumstances
the drawing of the Mahazar's by the P.W.25 on
22.11.2017 namely Ex.P.9, 10 and 37 are contradictory
to each other since the time gap from travelling to one
place to another place even to Mysore and conducting
the spot Mahazar the description made in the Mahazar
itself contradicts with the facts as per the prosecution
case itself. Under these circumstances there is missing
links to link the accused to the alleged offence are
available on record. However prosecution is unable to
place cogent, corroborative material evidence so as to
link the accused to the alleged offence punishable
u/s.302 r/w.149 of IPC is my firm view. Accordingly, this
court is satisfied to answer Point No.5 in the Negative.
40. POINT NO.6: In the case on hand, with regard to
the alleged offence punishable u/s.3(2)(v) of SC/ST
(POA) Act 1989, the accused were knowing about the
victim being belonging to Adi Dravida, no any material
has been placed by the prosecution even in the
evidence of P.W.1, PW.10 and 11 the family members
80 S.C.No.552/2018 & 974/2023
of the victim none have deposed about the accused
were knowing that victim is belonging to Adi Dravida.
Even as per the inquest Mahazar Ex.P.11 has brought
to the notice of court by counsel for accused, the victim
is belonging to Christian community is mentioned
therein. Under these circumstances, at the first
instance as per the decision of Hon'ble Apex Court
Hitesh Verma v/s. State of Uttarkhand, the prosecution
is unable to show that accused persons were knowing
that victim is belonging to schedule caste or schedule
tribe and only that with an intention they have
committed the offence, there is no any evidence either
collected by the prosecution nor placed on record. In
the case on hand, in the evidence of P.W.22 the
Investigating Officer who took up investigation has not
specified that he came to know that accused on
knowing that victim is belonging to schedule caste or
schedule tribe only they have committed the offence.
There is no any investigation conducted by this witness
other than collecting the caste report of some of the
accused and the victim and he has just completed the
81 S.C.No.552/2018 & 974/2023
formality of filing charge sheet. Even in his cross
examination he has no answers to the specific
questions of defence but he has replied that he did not
received any report to that effect with regard to the
caste of other accused persons. Under these
circumstances in the absence of proof with regard to
the offence punishable for more than 10 years accused
being responsible as per the provisions of Indian Penal
Code then only the provisions of sec.3(2)(v) of SC/ST
(POA) Act 1989 could be aligned and accused may be
tried and convicted being responsible for the same. In
the case on hand, the offence punishable u/sec.302 of
IPC being not established. The charge u/sec.3(2)(v) of
SC/ST Act, 1989 does not survive to be independently
to be proved. Accordingly, point No.6 is answered in
the Negative.
41. Point No.7: In view of my foregoing reasons, I
proceed the pass the following;
82 S.C.No.552/2018 & 974/2023
ORDER
Acting under Section 235(1) of Cr.P.C, the accused No.1 to 4 in S.C.552/2018 are hereby acquitted for the offences punishable under Sections 143,144,147,148,302 r/w.149 of IPC and Section 3(2)(v) of SC/ST(POA) Act. Acting under Section 235(1) of Cr.P.C, the accused No.5 and 6 in S.C.974/2023 are hereby acquitted for the offences punishable under Sections 143,144,147,148,302 r/w.149 of IPC and Section 3(2)(v) of SC/ST(POA) Act. The bail bond and surety bond furnished by the accused No.3 during course of trial stands cancelled. The accused No.3 has executed by furnishing bond as per sec.437A of Cr.P.C which shall be effective till appeal period is over.
The MOs.1 to 20 being worthless are ordered to be destroyed after appeal period is over.
The accused No.1 to 4 in SC.552/2018 and accused Nos.5 and 6 in S.C.974/2023 are to be released if not required in any other case.
83 S.C.No.552/2018 & 974/2023Keep the original judgment in S.C.552/2018 and copy in S.C.974/2023.
(Dictated to the Stenographer Grade-I in the open court, transcript thereof is corrected, signed and then pronounced in open court on this the 6th day of January , 2025).
(Rajesh Karnam.K) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 David
P.W.2 Karthik @ Elka
P.W.3 Manjunatha
P.W.4 M Divakar
P.W.5 Purushothama
P.W.6 Hemanth Kumar S
P.W.7 Shankar
P.W.8 Raghu P
P.W.9 Surendra
P.W.10 Selvi
P.W.11 Sagay Raj
P.W.12 Dr.praveen
P.W.13 Nalinakshi
84 S.C.No.552/2018 & 974/2023
P.W.14 H.N.Govindaraju
P.W.15 Suresh
P.W.16 Krishnamurthy A.H.
P.W.17 Basavaraj R.
P.W.18 Yusuf Diggewadi
P.W.19 C.M.Umesh
P.W.20 H.Narasimhaiah
P.W.21 Kumari
P.W.22 A.R.Badiger
P.W.23 Dr.Radha
P.W.24 Anjumala T Nayak
P.W.25 Lohith B.N.
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 Complaint Ex.P.1(a) Signature of PW.1 Ex.P.2 Mahazar Ex.P.2(a) Signature of PW.1 Ex.P.3 Signature of PW.2 Ex.P.4 Panchanama Ex.P.4(a) Signature of PW.4 Ex.P.5 Panchanama 85 S.C.No.552/2018 & 974/2023 Ex.P.5(a) Signature of PW.4 & PW.10 Ex.P.6 Photo Ex.P.7 Photo Ex.P.8 Seizure mahazar Ex.P.8(a) Signature of PW.4 Ex.P.9 Seizure mahazar Ex.P.9(a) Signature of PW.5 Ex.P.10 Seizure mahazar Ex.P.10(a) Signature of PW.5 Ex.P.11 Inquest Ex.P.11(a) Signature of PW.8 & 9 Ex.P.12 Statement of PW.8 Ex.P.13 Statement of PW.9 Ex.P.14 Post mortem report Ex.P.14(a) Signature of PW.12 Ex.P.15 Rough sketch Ex.P.15(a) Signature of PW.13 Ex.P.16 Report Ex.P.16(a) Signature of PW.14 Ex.P.17 Acknowledgement Ex.P.18 Report Ex.P.18(a) Signature of PW.17 Ex.P.19 FIR 86 S.C.No.552/2018 & 974/2023 Ex.P.19(a) Signature of PW.20 Ex.P.20 Seizure mahazar Ex.P.20(a) Signature of PW.21 Ex.P.21 Order of DCP Ex.P.21(a) Signature of PW.22 Ex.P.22 Letter of caste report Ex.P.22(a) Signature of PW.22 Ex.P.23 Letter of Caste report of A1 &A2 Ex.P.23(a) Signature of PW.22 Ex.P.24 FSL Report Ex.P.24(a) Signature of PW.23 Ex.P.25 Pendrive Ex.P.26 to 29 Photos Ex.P.30 Report of PC Ex.P30(a) Signature of PW.25 Ex.P.31 Report Ex.P.31(a) Signature of PW.25 Ex.P.32 PF 106/2017 Ex.P.32(a) Signature of PW.25 Ex.P.33 Statement of A-1 Ex.P.33(a),(b) Signature of PW.25 & A-1 Ex.P.34 Statement of A-3 Ex.P.34(a)(b) Signature of PW.25 & A-3 87 S.C.No.552/2018 & 974/2023 Ex.P.35 Statement of A-4 Ex.P.35(a) (b) Signature of PW.25 & A-4 Ex.P.36 Statement of A-6 Ex.P.36(a) Signature of PW.25 & A-6 Ex.P.37 Seizure Mahazar Ex.P.37(a) Signature of PW.25 Ex.P.38 PF 109/17 Ex.P.38(a) Signature of PW.25 Ex.P.39 PF 110/17 Ex.P39(a) Signature of PW.25 Ex.P. 40 PF 111/17 Ex.P.40(a) Signature of PW.25 Ex.P. 41 Report of HC Ex.P41(a) Signature of PW.25 Ex.P.42 PF 111/17 Ex.P.42(a) Signature of PW.25 Ex.P.43 Requisition Ex.P.43(a) Signature of PW.25
3. WITNESSES EXAMINED FOR THE DEFENCE:
Nil
4. DOCUMENTS MARKED FOR THE DEFENCE:
Nil 88 S.C.No.552/2018 & 974/2023
5. LIST OF MATERIAL OBJECTS:
M.O.1 : Cotton with Blood mark M.O.2 : Sample cotton M.O.3 : Blood marked stone M.O.4 : 2 chapple M.O.5 : Blue colour cap M.O.6 : Iron long M.O.7 : Iron long M.O.8 : Iron long M.O.9 : Screw Driver M.O.10 : MI company mobile M.O.11 : Carbon mobile phone M.O.12 : MI company mobile M.O.13 : Samsung company mobile M.O.14 : Iron grape hoe (shanike) M.O.15 : Blue colour Jerkin M.O.16 : Black colour track pant M.O.17 : Brown colour underwear M.O.18 : Black colour beaded chain M.O.19 : One long M.O.20 : Red coloured jerkin M.O.21 : Khakhi colour shirt 89 S.C.No.552/2018 & 974/2023 M.O.22 : Jeans pant M.O.23 : Khakhi colour jerkin M.O.24 : Jeans pant M.O.25 : Jeans pant (Rajesh Karnam.K) LXX Addl. City Civil and Sessions Judge and Special Judge, Bengaluru.