Bangalore District Court
The State Of Karnataka vs Chetankumar.R S/O. Ramesh on 15 February, 2020
1
S.C.No.1030/2012
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE (CCH-56)
: Present :
Sri K. Narayana Prasad, B.Sc., LL.M.,
LV Addl. City Civil & Sessions Judge,
Bangalore
: S.C.No.1030/2012 :
DATED: THIS THE 15th DAY OF FEBRUARY 2020
COMPLAINANT : The State of Karnataka,Through
Inspector of Police, Srirampura
Police Station, Bangalore.
(Rep. by: The Public
Prosecutor)
- V/s -
ACCUSED : 1. Chetankumar.R S/o. Ramesh,
19 years, Residing at No.111,
15th Cross, Cholurupalya,
Bengaluru City.
2. Praveen Kumar.V
S/o. Venkatesh, 19 years,
th
Residing at No.7/1, 14 Cross,
Ganesha Temple Road,
Cholurupalya, Bengaluru-23.
3. Girish Kumar B.S.
S/o. Shivakumar, 19 years,
Residing at No.20, 11th Cross,
Manjunatha Nagara, Behind
Prasanna Theatre, Magadi Road,
Benglauru. (Abated)
2
S.C.No.1030/2012
4. Ravikiran.C
S/o. Chandrashekar, 19 years,
residing at Ullala Satellite Town,
Vishveshwaraiah Layout,
Bengaluru.
5. Akhilesh M.C.
S/o. Chandrashekar, 19 years,
residing at No.7/2, 15th Cross,
Ganesha Temple Road,
Cholurupalya, Bengaluru-23
6. Naveen S/o. Kumara, 19 years,
residing at No.169, 4th Main
Road, 4th Cross, Dasappa
Building, Ramachandrapura,
Sriramapura, Bengaluru City.
7. Muneer S/o. Basheer, 19
years, residing at No.30, 1st Main
Road, Ramachandrapura,
Srirampura, Benglauru City.
8. Babu S/o. Umeshbabu.R
S/o. Ramesh, 21 years, residing
at Andhrahalli, Magadi Road,
Bengaluru City.
9. Pratap.M.C. S/o. Ramesh, 21
years, residing at Krishnamurthy
Building, 1st Cross, Near Eshwar
Temple, Andhrahalli, Magadi
Road, Bengaluru.
(By Sri CP/NRN/JH/MTH/CKN, Advocates)
JUDGMENT
1. Date of commission of 09-02-2012 Offence 3 S.C.No.1030/2012
2. Date of report of 10-02-2012(1.05 a.m.) Occurrence
3. Date of commencement 03-02-2015 of evidence
4. Date of closing of 18-11-2019 Evidence
5. Name of the Smt. Sarojamma complainant
6. Offence complained of u/secs. 143, 147, 148, 302 R/w. Sec.149 of IPC
7. Date of arrest 16-02-2012 -
8. Date of release 04-09-2012 & 22-09-2012
9. Opinion of the Judge Offence is not proved
10. Duration: (from date of 05 years and 05 months 29 commission of offence) days
11. Order of sentence Accused Nos.1, 2, 4 to 9 are acquitted.
Case against accused No.3 is abated.
The accused are charge sheeted for the offence punishable u/Ss. 143, 147, 148, 302 R/w. Sec. 149 of IPC.
2. The Police Inspector, Srirampura Police 4 S.C.No.1030/2012 station, Bangalore, has laid charge sheet against accused Nos. 1 to 9 stating that, one Naveen Kumar @ Kinto Naveen was demanding money from accused Nos.1 to 5 and he was a rowdy sheeter. On 03-02-2012 he took accused No.1 to play ground situated at Rama Mandir and again on 09-02-2012 he assaulted accused No.1 for not giving money. Carrying such enmity, all the accused conspired together to eliminate Naveen Kumar and on 09-02-2012 at about 7-45 p.m., when the said Naveen Kumar was present near Main Road Junction situated at 4th Main, 3rd Cross, Ramachandrapura, with common object of committing offence the accused have assaulted Naveenkumar with chopper and knife and assaulted Naveenkumar over his head, shoulder, back, waist, chest, fingers, right hand and other portions of the body and caused grievous injuries. The said injured was taken to K.C.General Hospital for treatment and later to Nimhans Hospital and in the said hospital the injured succumbed to the injuries.
5
S.C.No.1030/2012
3. The presence of accused is secured before the Court and they are presently released on bail. Accused No.6 is in judicial custody in some other case and he was secured by issuing body warrant.
4. The Magistrate, before whom the charge sheet is presented has taken cognizance and committed this case u/sec. 209 of Cr.P.C. to this court for trial.
5. This being the Sessions trial case, both the parties are heard u/sec. 227 of Cr.P.C before framing the charge. It was found that there are sufficient grounds for presuming that the accused Nos.1, 2, 4 to 9, have committed the alleged offence. The accused no.3 is dead and case against him is abated. Therefore, as per sec. 228 of Cr.P.C, the charge is framed for the offence punishable U/s. 143, 147, 148, 302 R/w. Sec. 149 of IPC against accused Nos. 1, 2, 4 to 9. The charge was read over and explained to them 6 S.C.No.1030/2012 in the language known to them. They pleaded not guilty and claimed trial.
6. The prosecution, in order to prove its case, has adduced the oral evidence of eyewitnesses, mahazar witnesses, complainant, investigating officials as PWs.1 to 11, the documentary evidence such as statements of witnesses, complaint, spot mahazar, seizure mahazar etc., and got marked as Exs.P.1 to P.48 and material objects at MO-1 to MO-33 are exhibited before the court.
7. After completion of prosecution evidence it was noticed that there are incriminating evidence against accused (i.e., the case is not a fit case to exercise the power of acquittal u/sec. 232 of Cr.P.C). Therefore, the case was posted for recording the statement of accused. The statements of accused Nos. 1, 2, 4 to 9 u/sec. 313 of Cr.P.C are recorded. They have denied complicity in the matter and they 7 S.C.No.1030/2012 have not chosen to lead any evidence.
8. Heard the arguments of both side.
9. Now the points that arise for consideration are;
1. Whether the prosecution proves beyond all reasonable doubts that on 09-02-2012 at about 7-45 p.m., on the public road, at the 4th Main Road Junction, 3rd Cross, Ramachandrapura, Bengaluru, accused Nos.1, 2, 4 to 9 along with deceased accused No.3 were members of an unlawful assembly, which was to assault the deceased Naveenkumar @ Kintonaeena and thereby committed an offence punishable u/S. 143 R/w. 149 of IPC ?
2. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place the accused Nos.1, 2, 4 to 9 along with deceased accused No.3 with common object formed unlawful assembly and thereby committed an offence punishable 8 S.C.No.1030/2012 u/s. 147 R/w. Sec. 149 of IPC ?
3. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place the accused Nos.1, 2, 4 to 9 along with deceased accused No.3 with common object formed unlawful assembly holding deadly weapons like long, chopper and knife and thereby committed an offence punishable u/s. 148 R/w. Sec. 149 of IPC ?
4. Whether the prosecution proves beyond all reasonable doubt that, on the above said date, time and place the accused Nos.1, 2, 4 to 9 along with deceased accused No.3 with common object formed unlawful assembly by holding deadly weapons and committed murder intentionally causing death of Naveen Kumar @ Kintonaveen and thereby committed an offence punishable u/s. 302 R/w. Sec. 149 of IPC ?
5. What order?
10. My answers to the above points are as 9 S.C.No.1030/2012 under:
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 :: As per final order for the following....
REASONS
11. POINTS No-1 to 3 :: I am considering all these points together as they are interlinked each other and this is also done with a view to avoid repetition of facts.
The jurisdictional police have registered first information as per Ex.P-1. The said information was given by Step-mother of deceased by name Smt. Saroja. According to her information, the deceased Naveenkumar is the son of his husband through first wife and after the death of first wife, the father of deceased married Smt. Sarojamma. The deceased Naveenkumar was residing with his grand mother and 10 S.C.No.1030/2012 he developed contact with some anti-social elements and number of cases are registered against him and he was sent to jail in some cases. After release of the said person from the jail, he visited Smt. Sarojamma and assured her that he will not go anywhere and he will reside with her. On 09-02-2012 at about 7-45 p.m., some boys came to her house and informed that, Naveenkumar was assaulted by some miscreants and he has suffered grievous injuries and admitted to hospital. Accordingly, she has informed the police about the information. Based on this first information the police have taken up investigation.
12. The first information was given on 09-02-2012 at about 11-30 p.m., to 2-15 a.m., The said information is recorded by the police near Mortuary. The investigating officer has taken up investigation and conducted spot mahazar and after arrest of accused, seized the weapons used for the commission of offence. The accused are identified by 11 S.C.No.1030/2012 the persons, who have witnessed the incident and later charge sheet is filed.
13. The prosecution has cited 52 witnesses before the court. Out of which only 11 witnesses are examined before the court. CW-2 is reported dead. CW-3, 4, 6, 7, 13, 25, 28 are dropped by the then Presiding Officer, as their presence is not secured even after coercive steps. The prosecution has given up the evidence of CW-14 to 20, 34 to 48, 51 & 52.
14. The prosecution has examined 11 witnesses as stated above. PW-1 is the first informant, PW-2 & 3 are eyewitnesses, PW-4 & 9 are the witnesses, who have allegedly identified the accused before the police and they are also eyewitnesses. PW-5 & 6 are medical witnesses. PW-7 & 8 are seizure mahazar witnesses and PW-10 & 11 are investigating witnesses.
15. The prosecution has marked 48 documents 12 S.C.No.1030/2012 before the court, of which Ex.P-48 is marked with consent, which is First Information Report. Ex.P-1 is first information, Ex.P-2 is spot mahazar, Ex.P-3 to P-9 are statements of witnesses, Ex.P-10 to P-14 are extracts of MLC register, Ex.P-15 is police intimation, Ex.P-16 is seizure mahazar, Ex.P-17 is inquest mahazar, Ex.P-18 is spot sketch, Ex.P-19 is Postmortem Report, Ex.P-20 opinion of Doctor on weapons, Ex.P-21 is report of FSL, Ex.P-22 to 24 are statements of witnesses, Ex.P-25 is the request letter, Ex.P-26 is accident case register extract, Ex.P- 27 is the letter issued to the engineer for preparation of sketch, Ex.P-28 is report of PW-7, Ex.P-29 to P-36 are photographs of dead body, Ex.P-37 to P-39 are statements of witnesses, Ex.P-40 is seizure mahazar, Ex.P-41 to P-44 are portion of confession statements of accused and Ex.P-47 is seizure mahazar.
16. Nearly 33 material objects are displayed before the court. MO-1 is blood mixed tar, MO-2 is sample tar, MO-3 is broken teeth, MOs-4 to 8 are 13 S.C.No.1030/2012 blood stained clothes, MO-9 is chopper, MOs-10 to 15 are blood stained clothes, MO-16 is a knife with wooden hand, MO-17 & 18 are blood stained clothes, MO-19 is another knife with wooden hand, MO-20 to 24 are clothes, MO-25 is iron hand long chopper, MO-26 & 27 are clothes, MO-28 is chopper with iron hand, MO-29 & 30 are two jeans pants, MO-31 is a long chopper, MO-32 & 33 are clothes.
17. Before adverting the case on merits, it is just and necessary to know the facts of this case. It is the case of the prosecution that, the deceased Naveen Kumar was demanding money from accused No.1 and he has also assaulted accused Nos.1 to 5 many times. The accused having such vengeance and enmity, have conspired together with common object and intention of committing offence and they have assembled together and hatched up a plan and on 09-02-2012 assaulted the deceased in a Junction situated at Ramachandrapura using lethal weapons 14 S.C.No.1030/2012 such as, knife, long, chopper and caused severe and grievous cut injuries on vital parts of the body of Naveenkumar. As a result of such injuries, Mr. Naveenkumar succumbed to the same. The doctors have opined that, the death is due to severe injuries caused on the vital parts of the body. The postmortem report produced before the court discloses that, the death is due to severe head injury.
18. The prosecution in order to prove the case against the accused has to place the following ingredients in respect of the offence alleged against accused.
Ingredients of Section 143 IPC ::
"(i) that the assembly in question consisted of five or more persons.
(ii) That the object of the persons so assembled (either at the time kit became an assembly, or during the time that it continued to be assembled) was any of the five objects mentioned in Section 141.15
S.C.No.1030/2012
(iii) That such object was common to the persons assembled.
Section 147 IPC
(i) that five or more persons were assembled;
(ii) That such assembly was unlawful when it was convened or subsequently became unlawful, having any one of the five objects specified in Section 141
(iii) That such object was the common object of those composing such assembly.
(iv) That the accused, or any member of such unlawful assembly, used force or violence.
(v) That such force or violence was used in the prosecution of such common object.
Section 148 IPC
(i) that five or more persons were assembled;
(ii) That such assembly was unlawful when it was convened or subsequently 16 S.C.No.1030/2012 became unlawful, having any one of the five objects specified in Section 141
(iii) That such object was the common object of those composing such assembly.
(iv) That the accused, or any member of such unlawful assembly, used force or violence.
(v) That such force or violence was used in the prosecution of such common object.
(vi) That the accused was armed with a deadly weapon, or with something which was likely to cause death, when used as a weapon of offence.
Section 302 IPC.
(i) the death of a human being has actually taken place;
(ii) such death has been caused by, or in consequence of, the act of the accused.
(iii) such act was done with the intention of causing death; or it was done with the intention of causing such bodily injury as (a) the accused knew 17 S.C.No.1030/2012 to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or the accused caused death by doing an act known to him to be so imminently dangerous that it must in all probability cause(a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury."
19. This is a case, wherein the prosecution relies on direct evidence of witnessing the incident. On going through the charge sheet, CW-2 to 5 are shown as eyewitnesses to the incident. CW-6 to 13 are shown as the persons who have identified the accused and allegedly gave statement against them. Hence, the prosecution relies on direct evidence of witnesses in order to prove the case against accused persons.
20. There is no dispute in this case that, death is due to homicidal and not suicidal. On going 18 S.C.No.1030/2012 through postmortem report and photographs produced before the court it is the murder and the deceased person succumbed to severe injuries inflicted on his body, more particularly the vital portions of his body. Hence, there is no confusion or doubt about the nature of death. This court has come to the conclusion that, it is a homicidal death.
21. After holding that it is a homicidal death, the next question that arises for consideration is about implication of accused and their role in the crime.
22. According to the prosecution papers, the investigating officer has received first information and took up investigation on 09-02-2012 and in the presence of complainant he allegedly conducted spot mahazar as per Ex.P-2 and he has collected sample of tar from the spot where the alleged incident took place. He has also collected blood stained tar and sample tar for investigation. Later the Investigation 19 S.C.No.1030/2012 Officer visited the mortuary and conducted inquest mahazar as per Ex.P-17 and recorded the statements of some witnesses. The clothes, which are worn by the deceased was collected under mahazar Ex.P-28 and the details of the properties seized under the said mahazar was recorded under PF No.13/2012. After postmortem, photographs of the body was taken as per Ex.P-29 to 36. The investigating officer has also seized the blood stained clothes from one Ashok, who has shifted the injured to the hospital and during that time, he was contacted with blood on to his shirt and accordingly the blood stained clothes are also seized. On 16-02-2012 the accused are arrested and they allegedly gave confession statement before the IO. They have also disclosed that, they would produce the weapons used for the crime if they are taken to the place, where such weapons are hidden under the bush etc.,. The accused Chetankumar, Naveen, Muneer took the investigating officer near the compound of Sujatha Theatre and they have produced 20 S.C.No.1030/2012 a chopper, blood stained clothes. On the same day, the investigating officer went to the shop of one Abdul Gafar, from where the accused has purchased the chopper and knife. The accused Praveenkumar, Girishkumar, Ravikiran and Akhilesh have also disclosed that, they would show the weapons used for commission of crime and other blood stained clothes if they are taken to that place. Accordingly, the investigating officer took the said accused and seized chopper, knives and blood stained clothes as per Ex.P- 16 in the presence of panchas. Later accused Babu and Pratap have also shown the long, chopper and blood stained clothes near Sujatha Theater, which was hidden in a bush near said theater. After completion of investigation, the investigating officer had come to the conclusion that it is the handy work of all the accused and accordingly charge sheet was laid before the court.
23. After knowing about the line of investigation, 21 S.C.No.1030/2012 the next important point is whether the prosecution has proved the case with cogent and convincing evidence or not to be seen.
24. According to the prosecution papers, the incident took place near the Junction situated at 4 th Main, 3rd Cross of Ramachandrapura on main road. The alleged incident took place on a main road, that too in a junction at about 7-45 p.m., On going through Ex.P-2, the police have drawn mahazar and recovered a broken teeth from the spot in the presence of panchas. In order to prove this document, the prosecution relies on evidence of PW-1 and 11. PW1 has not supported the case and denies that she has shown the spot or present in the spot. The evidence of PW 11 would be dealt at later point of this order.
25. Admittedly, the prosecution relies on the evidence of CW-2 to 5 in order to prove the guilt of the accused. Out of four eyewitnesses cited in this 22 S.C.No.1030/2012 case, CW-2 is reported dead. CW-3 & 4 are not secured before the court even after sufficient time and hence, the then Presiding Officer has dropped the said witnesses. The prosecution or IO have not tried to place their evidence even after such order. PW-2 is an eyewitness. According to prosecution papers PW-3, 4, & 9 are also examined to show that, they have witnessed the incident. But these witnesses have not supported the case of prosecution in any manner. In the present case, none of the eye witnesses have supported the prosecution case in any manner.
26. PW-1 in her evidence has stated that, as per the request of the police she has affixed her signature on Ex.P-1 first information and she does not know as to who has committed the offence. She also denied that, spot mahazar was drawn in her presence. She has only stated that, she is the step-mother of deceased and the deceased was living with her at the time when the incident took place. She came to know 23 S.C.No.1030/2012 about the incident through some boys and immediately she went to Annamalai Nursing Home and after seeing Naveenkumar, she fainted and later Naveenkumar passed away. This witness is examined in order to prove first information and spot mahazar. PW-1 has stated that, she does not know the contents of Ex.P-1 & P-2 in any manner. She has stated that, as per the request of police she has affixed her signature. She was treated as hostile witness and during her cross-examination she categorically stated that, she never seen the accused and she does not know who has killed her son. She goes to the extent of stating that, nothing was seized in her presence, much less a broken teeth. She has denied that, she has affixed her signature on Ex.P-2 mahazar at the spot.
27. PW-2, 3 & PW-9 are eyewitnesses to the incident. PW-2 in his evidence states that, deceased Naveenkumar was his friend and he came to know 24 S.C.No.1030/2012 that some miscreants have killed him and he has not witnessed the incident in any manner. It is the case of the prosecution that, this witness was standing near the spot and all the miscreants i.e., accused came there and assaulted Naveenkumar in his presence. PW-2 denied any such statement of witnessing the incident. He denies Ex.P-3 statement allegedly given before the police.
28. PW-3 is another eyewitness. According to him, the incident took place near their factory, but he does not know as to who is responsible for the incident and who is the dead person and who have killed Naveenkumar etc.,. According to the prosecution papers this witness was standing in front of his factory and witnessed the incident. He categorically denies that, he was present when the incident took place and witnessed the incident. It is further case of prosecution that, PW-3 has identified the culprits when the culprits were shown to this 25 S.C.No.1030/2012 witness in the police station. PW-3 denies that, he has witnessed the incident and he also denied the identification of accused in the police station. Accordingly, his statement is marked as Ex.P-6. Ex.P-4 is the statement, wherein he has allegedly given statement before the police after witnessing the incident. Ex.P-6 is given after identification of accused.
29. PW-9 is another eyewitness. He has stated in his examination-in-chief that, he has not at all seen the accused and he does not know as to where the incident took place and he has not witnessed the murder in any manner. According to the prosecution this witness has witnessed the incident and given further statement before the police identifying the accused persons. When he was cross-examined, he has categorically stated that, he never witnessed the incident. He has denied statement as per Ex.P-22. He further denies the statement Ex.P-23 and 24 allegedly 26 S.C.No.1030/2012 given before police for identifying the accused persons.
30. PW-5 and PW-6 are Medical Officers. On going through the evidence of PW-5, PW-5 in her evidence has stated that, the accused are brought before her and they also suffered injuries. She has produced MLC register extract Ex.P-14. Dr. Pramila PW-6 has stated that, when she was working in K.C.General Hospital, the injured Naveen was brought to the hospital for treatment and he was unconscious and his situation was very critical. The patient was referred to Victoria Hospital for treatment.
31. PW-7 8 are the witnesses to Ex.P-16. Under Ex.P-16 the investigation officer has allegedly recovered the weapons from the accused at their instance. These two witnesses have turned hostile and not supported the case of prosecution. PW-7 states in his evidence that, he went to police station in the matter of death of his friend and police have 27 S.C.No.1030/2012 requested him to affix his signature stating that, they want to close the file. Hence, he has affixed his signature to Ex.P-16. PW-8 states that, he has affixed is signature in the police station and nothing was seized in his presence. He specifically denied that, weapons are seized in his presence at the instance of accused.
32. Now coming to the Investigation witnesses, PW-10 has stated that, he has recorded the statement of witnesses. He collected the accident case register extract of accused. He also spoke about collecting of spot sketch. The investigating officer also states that he has obtained opinion from the doctor for usage of weapons for inflicting injuries. The main investigating officer is PW-11. He has stated about drawing of mahazar, recording of confession statement, seizure of weapons at the instance of accused and also about recording of statement of witnesses.
33. This case is based on the direct evidence of 28 S.C.No.1030/2012 witnessing the incident. It is a cold blooded murder that took place in a main road junction of Ramachandrapura. The incident took place at 7-45 p.m., and it took place in the presence of many eyewitnesses. The investigating officer has cited many eyewitnesses who have allegedly witnessed the incident. When direct evidence is available before the court, it is a solid proof to come to a just conclusion. In case of circumstantial evidence, the prosecution is under the obligation of proving the circumstances and to prove the linking chain of circumstances. The prosecution has to prove following facts before this court.
(i) The eyewitnesses have witnessed the incident .
(ii) The accused are identified by the eyewitnesses.
(iii) The accused have voluntarily confessed before the IO and their statement leads to descovery of weapons used for commission of offence and the weapons are seized at their instance. 29
S.C.No.1030/2012
34. The learned PP in his argument has submitted that, even though the eyewitnesses have not supported the case of prosecution, the court can consider other aspects in the matter such as, seizure of weapons and consider the evidence of investigation officer and prays for conviction of the accused.
35. On the other hand, learned counsel for the accused vehemently submitted that, none of the witnesses have supported the case of prosecution and prosecution has failed to show that, eyewitnesses have witnessed the incident and weapons are seized at the instance of accused. Ultimately, the guilt of the accused is not proved. Hence, prays for acquittal of accused.
36. Now the first point that has to be verified by the court is the important version of eyewitnesses. The prosecution has specifically cited that, there is direct evidence of the eyewitnesses witnessing the incident. The prosecution papers reveal that, CW-2 to 30 S.C.No.1030/2012 5 have witnessed the incident. Unfortunately, CW-2 is dead. The presence of CW-3 & 4 are not secured by the concerned agency, even after coercive steps. The eyewitnesses PW-2 has specifically denied that, he has witnessed the incident in any manner. This witness has clearly stated before the court that, he is witnessing the accused for the first time before the court and he has not seen them before. PW-2 states that, he is known to deceased Naveenkumar and he is also aware that, Naveenkumar is murdered. This witness states that, he came to know about the death of Naveenkumar through some other persons and he never know the reason for the death or witnessed the murder. This witness was treated as hostile witnesses and even after his cross-examination, nothing is elicited from him so as to disbelieve his version. During the course of his cross-examination he specifically denied that, he has witnessed the incident and the accused have murdered Naveenkumar on the material date, time and place.
31
S.C.No.1030/2012
37. CW-10 to 13 are cited as the witnesses, who have identified the accused. These witnesses are also eyewitnesses for all practical purposes and the investigating agency allegedly got identification of accused through these witnesses. CW-6 & 7 are not secured by the concerned agency even after granting sufficient time and the then Presiding Officer of this court has dropped these witnesses, since they are not secured.
38. PW-3, 4 & 9 have clearly deposed before the court that, they have not witnessed the incident at all. PW-3 Satish has stated in his evidence that, he was standing near his factory and he does not know the details of murder and he never witnessed the same. In the statement Ex.P-4 the investigating officer has recorded that, this person has witnessed the incident of murder. On going through statement Ex.P-4 it is recorded by the investigating officer that, PW-3 has stated before him that, accused have 32 S.C.No.1030/2012 assaulted the deceased by using lethal weapons caused grievous injuries and committed murder etc., When this witness was examined before the court, he clearly denied Ex.P-4. He also denied that, he has identified the accused in the police station.
39. Similar evidence is given by PW-4 Somashekar. In his evidence also he states that, he has not witnessed the incident, wherein the accused using long, chopper and knife have assaulted Naveenkumar, which resulted in murder of Naveen. This witness denies that, he has identified the accused before the police. The investigating officer has recorded Ex.P-7 & 8 statements, wherein this witness has allegedly stated that, he has witnessed the killing of Naveen by the accused persons using lethal weapons. He also denied his statement in Ex.P-8 that, he has identified accused in the police station. The police have also recorded further statement on 18-02-2012 as per Ex.P-9. The same is 33 S.C.No.1030/2012 also denied by PW-4.
40. PW-4 clearly deposed before the court that, he has not witnessed the incident and identified the accused in any manner. Now coming to the other witness PW-9, he also stated that, he does not know anything about the case and he has not witnessed the incident. He denied Ex.P-22 to 24 before the court. This witness has allegedly stated before the police that, he has witnessed the incident, wherein the accused using lethal weapons assaulted deceased Naveen Kumar and he has also spoken about the details of incident under Ex.P-23 to P-24. He allegedly identified the accused persons in the police station. When this witness was cross-examined, he categorically denies Ex.P-22 to 24 and states that, he never witnessed the incident or identified the accused in any manner.
41. The prosecution has cross-examined PW-2, 4 & 9 to a great length, but nothing is elicited from 34 S.C.No.1030/2012 them to believe that, they have witnessed the incident. Hence, the version of eyewitnesses are totally against the prosecution case. None of the eyewitnesses have stated anything about the role of the accused or about the usage of weapons and participation of accused in any manner. Under these circumstances, the direct evidence as cited in the charge sheet and the statement of witnesses are not proved before the court.
42. Next aspect is about the seizure of weapons at the instance of accused. PW-11 in his evidence states that, he has recorded statement of accused as per Ex.P-37 to P-44, wherein the accused have stated that, they would show the place where the weapons used for committing the crime are hidden etc., According to this witness accused Chetankumar has given statement as per Ex.P-37, accused Naveen as per Ex.P-38, accused Muneer as per Ex.P-39. These statements are portion of statement of the 35 S.C.No.1030/2012 confession, which allegedly leads to discovery of weapons. The investigating officer states that, as per Ex.P-37 to 39 the investigating officer took the accused to Sujatha Theatre compound and all the accused aforesaid have produced the chopper, blood stained clothes etc., These properties are seized in the presence of witnesses. The witness of the said mahazar CW-27 is not examined by the prosecution and CW-28 is not secured by the prosecution.
43. It is the further case of prosecution that, accused Praveenkumar, Girishkumar, Ravikiran, Akhilesh have confessed before the investigating officer as per Ex.P-41 to P-44 that they have hidden the weapons used for committing crime and in the event of taking them to that place, they would produce the same etc., The investigating officer states that, under Ex.P-16 he has seized the weapons such as, chopper, knife and blood stained clothes in the presence of panchas. PW-7 & 8 are panchas to 36 S.C.No.1030/2012 the said Ex.P-16. PW-7 & 8 have turned hostile and stated that, nothing was seized in their presence. PW- 7 Sudhakar states that, police took his signature stating that, they want to close the file. PW-8 Sharath Kumar states that, nothing was seized in his presence.
44. The investigating officer further states that, accused Babu and Pratap have stated in the confession as per Ex.P-45 & 46 about the discovery of weapons and they have stated about the hiding weapons and blood stained clothes etc., In order to prove this fact the prosecution has cited R.Rajesh and Selvakumar as witnesses. These witnesses are also not examined .
45. In view of the above circumstances it is unsafe to rely on the evidence of investigating officer alone in order to come to a just conclusion. There is no doubt that, the investigation officer and his report and drawing of mahazar cannot be brushed aside just because he is a police officer and police witness. But 37 S.C.No.1030/2012 here is a case, wherein the investigating officer has specifically stated that, the weapons are seized in the presence of independent panchas. However, some of the panchas examined before the court have not supported the case and some witnesses are not at all examined. Hence, one thing is very clear that prosecution has not placed substantial material to prove that the weapons are seized at the instance of accused.
46. Now coming to the other aspects of investigation, the spot mahazar was not drawn as per Ex.P-2 and investigating officer clearly admits in cross-examination that, the spot was not secured by placing barricades etc., The alleged incident was took place on 09-02-2012 and spot mahazar was drawn on the next day. By the time being the mahazar was drawn evidentiary value that was available in the place would have been vanished. Even the mahazar is also not proved before the court. The only spot 38 S.C.No.1030/2012 mahazar witness examined before the court PW1 has not supported the case of prosecution.
47. The Doctor who has examined the accused, PW-5 has stated about the injuries suffered by the accused. Ex.P-10 to P-14 are placed before the court to show that, accused are examined by this doctor. On going through the same, the accused are allegedly examined on 17-02-2012 after lapse of nearly 8 days after the incident. The prosecution has also not stated as to why the accused are subjected for medical examination. Whether it is for showing the accused have also sustained injuries in the incident and to connect them to the crime or for providing medical assistance before sending them to judicial custody etc., PW-5 when cross-examined, clearly states that, she has not mentioned the age of injury in the said document. Even though the accused have said to have suffered certain injuries and pain, in the absence of specific evidence about the relevance of 39 S.C.No.1030/2012 Ex.P-10 to P-14, it is not proper to consider these documents as an evidence against the accused. If the prosecution is so particular about these documents, it should have placed positive evidence of the concerned to show as to what is the importance of Ex.P-10 to P-14 in the crime. The investigating officer has just stated that, he has subjected the accused for medical examination and collected documents and produced the same. Except such evidence nothing is available to connect the accused to the crime based on the injuries. There is no evidence either by Investigating witnesses or any other witnesses that, accused suffered injuries while assaulting the deceased etc., Ex.P-10 to P-14 are bald and vague documents and the relevance of the documents are not at all stated. PW-5 has not even stated as to whether the accused have stated anything about the reason for such injuries or not. In addition to this, MLC and the Ex.P-10 to P-14 are collected when accused were in police custody.
40
S.C.No.1030/2012
48. Now coming to the investigating part, the weapons are allegedly recovered on 17-02-2012, but sent to Forensic Science Laboratory on 05-03-2012 and reached Forensic Science Laboratory on 13-03-2012. This shows the way in which the investigation is carried out in this case. Hence, the report of FSL about the blood found on shirts samples contains human blood is of no use.
49. The Hon'ble High Court of Karnataka in a recent decision reported in 2019(1) Kar.L.J. 421
-Nabeel and another Vs. State by- D.J.Halli Police Station has held that, FSL report showing that clothes of the deceased recovered at the instance of the accused, are containing the stains of human blood and pertaining to 'A' group. Only on the basis of said report and serology report, it cannot be inferred that the accused persons have committed the alleged crime.
50. Unfortunately, the witnesses cited as 41 S.C.No.1030/2012 eyewitnesses to the incident, who are examined before the court have not supported the case of prosecution. If the case of prosecution is entirely based on circumstantial evidence,then importance could have been attached to the seizure of weapons and other aspects. When the case of prosecution is based on direct witnessing of the incident, then much importance is to be given to the evidence of eyewitnesses to the incident. None of the witnesses examined have stated anything about the role of accused persons. Even the IO PW-10 has stated nothing about the relevance or importance of injuries suffered by accused persons so as to connect them to the alleged crime.
51. Unfortunately a valuable life is lost in the incident. It is not in dispute that deceased Naveenkumar died in a murder that took place due human intervention with usage of lethal weapons. There is no doubt in the mind of court that the 42 S.C.No.1030/2012 Naveenkumar is murdered by some miscreants. Unfortunately, the concerned investigating agency, who have cited some witnesses as eyewitness have said totally against the case of prosecution and some seizure mahazar witnesses are not secured and examined by the concerned. Under these circumstances, the benefit of doubt should go to in favour of accused. Hence, the prosecution case is not free from reasonable doubts. The prosecution is expected to prove the case by placing convincing and cogent evidence. When the investigating officer has cited certain witnesses as eyewitnesses, the case has to be proved with support of their evidence.
52. Unfortunately, none of the eyewitnesses and none of the independent witnesses have supported the case of prosecution in any manner. Except medical and investigating evidence, there is nothing available in this case. Even the first informant's evidence is also not helpful to the case of prosecution 43 S.C.No.1030/2012 in any manner. The investigating officer and his version cannot be a sole basis for convicting the accused,more particularly, when he has cited some important witnesses as eyewitnesses. Admittedly, the IO is not an eyewitness to the incident. When the IO specifically cited eyewitnesses to the incident, the case has to be proved with their help and with their version. Under these circumstances, this court has left with no other alternative but to give benefit of doubt to the accused persons.
53. The concerned investigating agency has failed to conduct investigation properly and failed to cite proper eyewitnesses, who have witnessed the incident. This court can very well notice that, when the incident took place at 7.45 p.m., there will be eyewitnesses, who have really witnessed the incident. The prosecution has examined the witnesses before this court, who have categorically stated that, they never witnessed the incident in any manner. Even the 44 S.C.No.1030/2012 mother of deceased has also not supported the case of prosecution.
54. Having regard to these facts, it is not proper to move against the accused persons for the alleged offence. The offence alleged against the accused is very serious offence, wherein a valuable life of a person is lost. It does not necessarily mean that, the court has to convict the accused in the absence of satisfactory proof. On going through the evidence and documents placed before this court, no sufficient materials are placed to move against accused for the alleged offence. Considering the over all effect of evidence and documents placed before this court, this court is of the considered view that, the prosecution has failed to prove the case against accused beyond all reasonable doubts. Hence, the important aspect of accused having common object and intention of committing offence and later assaulting the deceased Naveenkumar using lethal weapons etc., remained as 45 S.C.No.1030/2012 allegation and not proved before the court in any manner.
55. In view of the above discussions, the case of the prosecution remained not proved in any manner. Hence, the points No.1 to 4 are answered in negative and proceed to pass the following...
ORDER Acting under section 235(1) of Cr.P.C, the accused Nos.1, 2, 4 to 9 are acquitted of the offence punishable under sections 143, 147, 148, 302 R/w. Sec. 149 of IPC and they are set at liberty forthwith.
Their bail bonds stand cancelled after the appeal period.
Accused No.3 is dead. Hence, case against accused No.3 is already abated.
Mos-9, 16, 19, 22, 25, 28 & 31 shall ordered to be confiscated to the State and remaining MOs-1 to 8, 10 to 15, 17, 18, 20, 21, 23, 24, 26, 27, 29 & 30, 32 & 33 are 46 S.C.No.1030/2012 worthless hence, ordered to be destroyed after the appeal period.
The office is directed to place this file before the concerned Legal Services Authority for considering the compensation payable to PW-1 as provided u/sec. 357(A) of Cr.P.C.
[Dictated to the Stenographer, corrected and then pronounced by me in open court, dated this the 15 th day of February, 2020.] (K. Narayana Prasad), LV Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:
PW-1 Smt. Sarojamma
PW-2 Srinivasa
PW-3 G.Satish Kumar
PW-4 Somashekar
PW-5 Dr. N.Gayathri Bai
PW-6 Dr. Pramila
PW-7 Sudhakar
PW-8 Sharath Kumar
PW-9 Parmod Kamath
PW-10 B.L.Venugopala
PW-11 B.P.Prasad
47
S.C.No.1030/2012
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P-1 Complaint
P-1(a) Signature of PW-1
Ex.P-2 Spot mahazar
P-2(a)(b) Signatures of PW-1
Ex.P-3 Statement of PW-2
Ex.P-4 Statement of PW-3
Ex.P-5 Statement of PW-3
Ex.P-6 Statement of PW-3
Ex.P-7 Statement of PW-4
Ex.P-8 Statement of PW-4
Ex.P-9 Statement of PW-4
Ex.P-10 Extract of MNC Register
(Chetankumar treatment.)
Ex.P-11 Extract of MNC Register
(Praveen)
Ex.P-12 Extract of MNC Register (Girish)
Ex.P-13 Extract of MNC Register
Ex.P-14 Extract of MNC Register
Ex.P-15 Police Intimation Slip
P-15(a) Signature of PW-6(CW-21)
Ex.P-16 Seizure mahazar
P-16(a) Signature of PW-7(CW-30)
P-16(b) Signature of PW-8(CW-29)
P-16(c) Singgature of PW-11
Ex.P-17 Inquest
P-7(a) Signature of PW-11
Ex.P-18 Spot sketch
48
S.C.No.1030/2012
Ex.P-19 Postmortem Report
Ex.P-20 Opinion about weapons
Ex.P-21 FSL Report
Ex.P-22 to Statement of PW-9
P-24
Ex.P-25 Requisition to FSL
P-25(a) Signature of PW-10
Ex.P-26 Accident Case Register extract
P-26(a) Signature of PW-10
Ex.P-27 Requisition to PWD Engineer
P-27(a) Signature of PW-10
Ex.P-28 Report of PW-11
P-28(a) Signature of PW-11
Ex.P-29 to Photographs of dead body (PW-
Ex.P-36 11)
Ex.P-37 Statement portion of
Chetankumar
Ex.P-38 Statement portion of Naveen
Ex.P-39 Statement portion of Muneer
Ex.P-40 Seizure mahazar
P-40(a) Signature of PW-11
Ex.P-41 Statement portion of Praveen
Kumar
Ex.P-42 Statement portion of Girish
Kumar
Ex.P-43 Statement portion of Ravikiran
Ex.P-44 Statement portion of Akhilesh
Ex.P-45 Statement portion of Babu
Ex.P-46 Statement portion of Pratap
Ex.P-47 Seizure mahazar
P-47(a) Signature of PW-11
49
S.C.No.1030/2012
Ex.P-48 First Information Report (Marked
with consent)
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION:
MO-1 Blood stained tar
MO-2 Tar
MO-3 Broken teeth of human
MO-4 One blue colour jeans pant
MO-5 Blood stained red colour banian
MO-6 Blood stained green colour brief
MO-7 Blood stained green colour jeans
pant
MO-8 Blood stained white checks full
sleeves shirt
MO-9 One iron chopper
MO-10 One dark green colour T-Shirt
MO-11 One blood stained jeans pant
MO-12 One light brown colour full
sleeves shirt
MO-13 One blood stained black colour
jeans pant
MO-14 Blood stained black colour T-shirt
MO-15 One dark blue colour jeans pant
MO-16 One knife with wooden hand
MO-17 One violet colour shirt
MO-18 One Jeans pant
MO-19 Another knife with wooden hand
MO-20 One red colour full sleeves shirt
50
S.C.No.1030/2012
MO-21 One black colour jeans pant MO-22 One long MO-23 One black & white colour shirt MO-24 One jeans pant MO-25 One long with iron hand MO-26 One red colour T-shirt MO-27 One black colour jeans pant MO-28 One chopper with iron hand MO-29 One red colour half sleeves shirt MO-30 One black colour jeans pant MO-31 One long MO-32 One red and white colour shirt MO-33 One blue colour jeans pant LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED ON BEHALF OF THE DEFENCE:
NIL (K. Narayana Prasad), LV Addl. City Civil & Sessions Judge, Bangalore.