Karnataka High Court
Venkatesha @ Anta vs State Of Karnataka on 13 June, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13th DAY OF JUNE, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.357/2013
BETWEEN:
1. Venkatesha @ Anta
S/o R. Chandrappa
Aged about 32 years
R/at No.24, 3rd Cross
Railway Parallel Road
Yeshwanthpura
Bangalore-560 022.
2. Venugopal @ Venu @ Kuruda
S/o Anantha Krishniah
Aged about 26 years
R/at No.105, 10th Cross
Ganesha Block, Nandini Layout
Bangalore-560 022.
... Appellants
(By Sri C.H.Hanumantharaya, Advocate)
AND:
State of Karnataka
by Yeshwanthapura Police
Bangalore.
Represented by State Public Prosecutor
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High Court of Karnataka
Bangalore-560 022.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section
374(2) of the Cr.P.C praying to set aside the
judgment and order of conviction and sentence
dated 06.03.2013 passed by the Presiding Officer,
Fast Track Court-IX Bangalore in SC No.1499/2011
convicting the appellants/accused for the offence
punishable under Section 302 r/w 34 of India Penal
Code.
This Criminal Appeal coming on for hearing
this day, BUDIHAL R.B., J. delivered the following:-
JUDGMENT
This appeal is preferred by accused Nos.1 and 2, being aggrieved by the judgment and order of conviction and sentence dated 6.3.2013 passed by the learned Presiding Officer of Fast Track Court- IX, Bangalore City in SC.No.1499/2011, by which accused Nos.1 and 2-appellants herein were convicted for the offence punishable under Section 302 r/w. Section 34 of IPC and they were sentenced to undergo imprisonment for life and to pay a fine -3- of Rs.5,000/- each, in default, to undergo further imprisonment for a period of six months each.
2. Brief facts of the prosecution case as per the averments made in the complaint lodged by one K.M.Govindharaju are that on 31.5.2011 during night hours, when he was on duty, the SHO of the Police Station instructed him to go in Hoysala-20 vehicle along with DPC1563 and PC5940 to do night beat. Accordingly, when they were on beat duty, on 1.6.2011 at about 4.45 a.m., Mohan Kumar came from City to Bajar Street via Yashwanthpur Railway Station, near Sulabh Shouchalaya on the left side nearby an electric pole, they saw one person lying with blood injuries. The complainant stopped the vehicle and went to the place and found the said person lying, who was aged about 25 to 30 years. The said person was wearing white colour T-shirt and cement colour pant. On the forehead at two places, at the neck portion and on -4- the left shoulder portion, he sustained injuries because of assault by macchu and he died at the spot itself. When he enquired about the said person, he did not get any clue. Some unknown persons committed the murder of the deceased by assaulting him with macchu. Therefore, the complainant requested the police to trace out the culprits and to take appropriate action against them.
3. On the basis of the said complaint, a case came to be registered in Crime No.172/2011 by Yeshwanthapura Police for the offence punishable under Section 302 of IPC. After completion of investigation, the Investigating Officer filed the charge sheet against both the accused persons for the offence punishable under Section 302 r/w. Section 34 of IPC.
4. The learned Fast Track Court Judge after hearing both the sides, prepared the charge and -5- when the charge was read over and explained to both the accused persons, they denied the charge and claimed to be tried. Their plea was also recorded and the matter was set down for trial.
5. In order to prove its case, the prosecution in all has examined 24 witnesses and got marked 30 Exhibits with sub-markings and 14 Material Objects. Thereafter, accused were examined under Section 313 of Cr.P.C. and their statements came to be recorded. On the side of the defence, no witness was examined, but Exs.D1 to D3 were got marked during the course of cross-examination of the prosecution witnesses. After hearing the arguments on both sides and after considering the material on record both oral and documentary, the trial Court held that the prosecution has proved its case against both the accused beyond all reasonable doubt and convicted both the accused for the offence punishable under Section 302 r/w. -6- Section 34 of IPC. Being aggrieved by the said judgment and order of conviction and sentence and also challenging the legality and correctness of the same on the grounds as mentioned in the appeal memo, accused Nos.1 and 2 are before this Court.
6. We heard the learned counsel appearing on behalf of the appellants-accused and the learned Additional SPP for the respondent-State.
7. Learned counsel for the appellants-accused by drawing our attention to the depositions of the witnesses through paper book and original records of the case made the submission that as per the prosecution case there is a last seen theory that PWs.4 and 5 are the persons who have last seen the deceased in the company of the accused persons. Learned counsel also made the submission that even PW.17, cousin of the deceased who is said to be the witness, has last seen the deceased along with the accused persons. -7- But referring to the oral evidence of PW.17, learned counsel made the submission that PW.17 has not supported the case of the prosecution and turned hostile. It is also his contention that PW.17 has only stated that himself, PWs.4 and 5 and the deceased were seen together to support the theory of the prosecution regarding the last seen of the deceased in the company of PWs.4, 5 and 17. Even referring to the oral evidence of PWs.4 and 5, learned counsel made the submission that even their oral evidence does not support the case of the prosecution that the accused persons took the deceased in the early morning at 3.30 from his house. Hence he submitted that considering the oral evidence of PWs.4 and 5, no reliance can be made to their evidence which is totally inconsistent and is not worth believable. Learned counsel further made the submission that looking to their evidence, it goes to show that on 2.6.2011 itself, they went to the hospital and inquest mahazar -8- proceedings were conducted. In spite of that, in their evidence they clearly admitted that they have not informed that they have seen the deceased in the company of accused Nos.1 and 2 on the previous night. Learned counsel submitted that this was also not brought to the notice of the parents of the deceased and even they have not immediately given their statements before the police and there is a delay in recording the statements. Therefore, the learned counsel made the submission that conduct of these two witnesses is most material in appreciating the case of the prosecution. He submitted that if really they have seen the deceased in the company of the accused persons on the previous night, then their normal conduct would have been that when they were in the hospital at the time of inquest mahazar proceedings they would have explained or informed the police or at least to the parents of the deceased about they seeing the deceased in the company of the accused. -9- When they have not specifically stated about these things, their conduct itself clearly goes to show that they have not seen the deceased in the company of the accused persons.
8. So far as the prosecution case that PWs.2 and 3 are the eye witnesses to the incident is concerned, learned counsel by drawing our attention to the evidence of these two witnesses, made the submission that in their cross- examination, they have admitted that they were coming on the road during early morning at 4.45 and they gone to the place where the incident is said to have taken place. They admitted in their cross-examination that the place of incident was not visible from the place where they were proceeding. Hence, he submitted that this is one of the important material piece of evidence on the side of the defence that these witnesses were not able to see the place of incident from the place where
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they were proceeding. Apart from that, learned counsel made the submission that their statements came to be recorded only on 29.6.2011, i.e., after lapse of one month of the incident in question. Learned counsel submitted that though it is the case of the prosecution that even earlier to that also their statements also came to be recorded, but looking to the material on record, it clearly goes to show that their statements were not recorded as claimed by the prosecution and it has only come on record that the eye witnesses gave their statements only after lapse of about 25 to 30 days. Learned counsel submitted that out of two eye witnesses, PW.5 is the own brother of the deceased and PW.4 is the friend of the deceased. Learned counsel also made the submission that if really they are eye witnesses to the incident in question, their normal conduct would have been that immediately they could have approached the police informing about the incident that they have witnessed the incident
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personally so also they could have also informed the family members of the deceased which they have not done in this case. Hence, the learned counsel submitted that even looking to the evidence placed on record and the delay in recording the statements, it raises a reasonable doubt in the mind of the Court whether they are said to be eye witnesses to the incident.
9. In so far as recovery aspect is concerned, learned counsel made the submission that the Investigating Officer himself has admitted that when he made for search and when the accused told before him that they have thrown blood stained clothes at some place and he went along with them and at that place he did not get any such clothes. Therefore, he came back to the Police Station. Therefore, the learned counsel submitted that the evidence of the Investigating Officer goes to show that no clothes said to have been worn by the
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accused persons at the time of incident were seized during the course of investigation. So far as the seizure of two choppers (macchu) is concerned, the learned counsel made the submission that recovery of the said choppers is also not established with the cogent and worth believable material. In this connection, learned counsel by drawing our attention to the evidence of the Investigating Officer-PW.24 made the submission that the recovery has not been properly established and apart from that he submitted as to whether the evidence of eye witnesses PWs.2 and 3 is not acceptable in this case as it is a case based on the circumstantial evidence. Therefore, he made the submission that even though it is the case of the prosecution that two choppers said to have been held by the accused persons were sent to FSL for examination, though it is the finding of the FSL that the said choppers were having blood stains, which is of human blood and grouping of the blood is not
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ascertained even according to the admitted case of the prosecution. Hence, he submitted that looking to these aspects, merely two choppers have been seized at the instance of the accused persons, it would not establish the charges levelled against them with acceptable material. Hence, the learned counsel submitted that last seen theory is not established. Looking to the conduct of PWs.4 and 5 in that regard is also doubtful and the version of the eye witnesses PWs.2 and 3 is also not worth believable. In spite of these things, the learned trial Judge ignoring all these material aspects in appreciating the case, has wrongly read the entire evidence and wrongly came to the conclusion holding that the prosecution has established its case beyond all reasonable doubt and has wrongly convicted the accused.
10. In so far as motive aspect is concerned, as per the prosecution it is their case that about one
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year back at the time of engagement of Sagai Mary-PW.13 with the deceased there was a quarrel between the deceased and accused No.1 and accused No.1 wanted to avoid the marriage of Sagai Mary with the deceased. In this connection, learned counsel made the submission that PW.13, the wife of the deceased reiterated the case of the prosecution. But looking to her cross-examination, she given go-bye to the case of the prosecution and deposed that no such difference was there between her husband and accused No.1. Learned counsel also made the submission that this motive aspect is also not supported by the other witnesses with acceptable material and apart from that learned counsel made the submission that if the date of incident is taken into consideration, it was prior to one year there was a quarrel between the deceased and accused No.1 and hence on the date of incident, there was no animosity between them. He also submitted that material on record goes to show
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that even accused No.1 as well as the deceased had forgotten all those things as on the date of the alleged incident. Therefore, only on the basis of remote quarrel or the motive, it cannot be concluded that the prosecution has established its case to implicate accused Nos.1 and 2.
11. Regarding the delay in recording the statements of PWs.4 and 5 who are said to be the eye witnesses to the last seen theory so also recording the statements of PWs.2 and 3 who are said to be the eye witnesses, the learned counsel relied upon a decision of the Hon'ble Apex Court in the case of Harbeer Singh Vs. Sheeshpal & others, reported in (2016)16 SCC 418, wherein at paragraphs 16 and 17 it has been observed as under:-
"16. As regards the incident of murder of the deceased, the prosecution has produced six eye witnesses to the same. The argument
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raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 Cr.P.C. In the present case, the date of occurrence was 21.12.1993 but the statements of PW1 and PW5 were recorded after two days of incident i.e. on 23.12.1993. The evidence of PW6 was recorded on 26.12.1993 while the evidence of PW11 was recorded after 10 days of incident i.e. on 31.12.1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the court. [See Ganeshlal v. State of Maharashtra; Mohd. Khalid v. State of W.B.; Prithvi v. Mam Raj and Manu Sharma v. State (NCT of Delhi)].
17.However, Ganesh Bhavan Patel v. State of Maharashtra, is an authority for the proposition that delay in
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recording of statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. (See also Balakrushna Swain v. State of Orissa;
Maruti Rama Naik v. State of Maharashtra and Jagjit Singh v. State of Punjab). Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case."
12. Learned counsel made the submission that in the aforesaid decision there was a delay of only two days in recording the statements of PWs.1 and 5 and the same was disbelieved by the Hon'ble Apex Court observing that it raises doubt in the mind of the Court. Hence, the learned counsel submitted that in the present case, delay in
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recording the statements of the witnesses was not properly explained by the prosecution and hence it raises doubt in the mind of the Court whether they are real witnesses to the incident in question as well as last seen theory as claimed by the prosecution. On these grounds, learned counsel prays to allow the appeal and to set side the judgment and order passed by the trial Court.
13. Per contra, learned Additional SPP made the submission that so far as motive aspect is concerned by drawing our attention to the evidence of PW.6-Manjunath who has deposed in his examination-in-chief about the animosity between accused No.1 and deceased with regard to marriage of the deceased with PW.13 and the evidence of PW.22, the father of the deceased, PW.7-Kumar, PW.5-Radhakrishna, learned Additional SPP made the submission that they clearly deposed that there was animosity between the deceased and accused
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No.1. Hence, he submitted that motive has been established by the prosecution with the help of the evidence of these witnesses.
14. Regarding the last seen theory, learned Additional SPP made the submission that the evidence of PWs.4 and 5 is most material. He refers to the oral evidence of PWs.4 and 5 and made the submission that they have consistently deposed that on the night of 31.5.2011 these two witnesses came to the house of the deceased wherein they had party which was arranged by the deceased himself and they slept. At about 3.30 a.m., deceased went along with the accused persons. Hence, he made the submission that in their evidence also they consistently deposed about these aspects and even during the course of cross- examination, nothing has been elicited from their mouths to disbelieve their version. He made further submission that looking to the evidence of
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PW.24, who has clearly stated that on the date of conducting inquest mahazar, i.e., on 2.6.2011, he has recorded the statements of PWs.4 and 5. Therefore, he submitted that there is no delay in recording their statements so far as last seen theory and they have already given the statements before the Investigating Officer in this regard. Hence, it is his contention that there is no delay as contended by the other side in recording their statements.
15. Learned Additional SPP made the submission that PWs.2 and 3 are the eye witnesses to the incident and they have clearly stated that they have personally witnessed the incident when they were proceeding on the two wheeler and when they stopped the vehicle at a particular place in order to have Tea, their version cannot be disbelieved in view of the clear evidence spoken by these witnesses about they personally witnessed
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the incident. Hence, he submitted that the trial Court rightly relied upon the evidence of these witnesses and accepted them as eye witnesses to the incident in question.
16. Learned Additional SPP further made the submission that so far as the recovery aspect is concerned, at the instance of accused persons two choppers (macchu) were recovered in the presence of panch witnesses under the mahazar and the Investigating Officer has spoken about the said aspect. The said weapons were also sent to FSL and FSL report shows positive result to the effect that they were having stains of blood which is of human blood. He submitted that when there are eye witnesses to the incident in question and even if blood group is not ascertained, the same would not come in the way of the prosecution case. The trial Court by taking into consideration this aspect, has rightly appreciated and has come to the
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conclusion that the prosecution has proved its case beyond all reasonable doubt. Hence, the judgment and order of conviction passed by the trial Court is in accordance with the material placed on record and no illegality has been committed by the trial Court and there is no perverse and capricious view taken by the trial Court in this regard. Hence, he submitted that there are no good grounds to interfere with the judgment and order passed by the trial Court and prayed to dismiss the appeal.
17. We have perused the grounds in the appeal memo, judgment and order passed by the trial Court and the oral evidence of the prosecution witnesses, so also the documents produced in the case. We have also perused the documents on the side of defence at Exs.D1 to D3 and considered the points urged by the learned counsel on both sides at the Bar.
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18. The prosecution case is that there was a motive for the accused persons to eliminate the deceased Rajendra and in that regard we perused the oral evidence of the witnesses regarding motive aspect is concerned. PW.6-Manjunath has deposed in his examination-in-chief that the deceased Rajendra was his friend; he knows the accused persons; Rajendra was in love with Sagai Mary; deceased went to the house of parents of Sagai Mary one year prior to his marriage and expressed his willingness to marry their daughter Sagai Mary and at that time there was a quarrel between accused No.1 and the deceased. PW.6 went to pacify the quarrel. The parents of Sagai Mary agreed for the said marriage and marriage was performed. Looking to the evidence of PW.6, he has spoken that one year prior to the incident in question, there was a quarrel between accused No.1 and the deceased Rajendra. As submitted by
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the learned Additional SPP, PW.6 was not at all cross-examined by the defence.
19. Coming to the evidence of PW.7-Kumar who has deposed in his examination-in-chief that earlier to marriage of the deceased with Sagai Mary, there was a quarrel between accused No.1 and the deceased in connection with their marriage. Accused No.1 told the parents as to why they are agreeing for the said marriage as the deceased is not going to attend any work. These things were told by the deceased Rajendra to him. Therefore, looking to the evidence of this witness that Rajendra told about these things which goes to show that he was not personally present at that time and it was informed by the deceased Rajendra. In the cross-examination of PW.7, he has deposed that he has not attended engagement talks. He does not know who went in connection with engagement talks. He also deposed that accused
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told the parents not to give Sagai Mary to the deceased as he was in the habit of consuming alcohol. Looking to this answer given in the cross- examination of PW.7, he is not consistent. In the examination-in-chief he has deposed that as the deceased was not going to attend any work and for that reason he requested the parents of Sagai Mary not to give her in marriage with the deceased, whereas in the cross-examination, he has deposed that as the deceased was in the habit of consuming alcohol, they should not agree for the said marriage. Apart from that, his cross-examination discloses that he himself has not attended engagement talks and he has no personal knowledge about these aspects.
20. PW.5 one Radhakrishna deposed that deceased is his younger brother and one year prior to the incident in question when deceased went to request the parents of Sagai Mary to give her
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daughter in marriage with him, there was a quarrel between accused No.1 and the deceased. Accused persons told that they can forget previous animosity and saying so took the deceased at about 3.30 a.m. and they were inviting the deceased for some party and accordingly, they took the deceased Rajendra along with them. In cross-examination, this witness has deposed that they are five children to their parents and he is the eldest one and he has been involved in many criminal cases and went to jail and there is one more case as against him which is of assault case and he was released on bail. He also deposed that police have not at all recorded his statement and he has not given any statement before the police to the effect that Rajendra is his friend which is marked as Ex.D2.
21. Now coming to the evidence of PW.22, the father of the deceased, who has deposed in his examination-in-chief that they went to the house of
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Manjamma which is nearby the Keshava Talkies at Yeshwanthapura in order to see Sagai Mary to have alliance with his son Rajendra. Second time when they went, there was a quarrel took place between accused persons and his son. The accused persons told not to give Sagai Mary to the deceased. He is having suspicion as against the accused person in connection with the murder of his son. Even looking to the examination-in-chief of this witness, it is again contrary what the other witnesses have stated. The only allegation is that accused went to the place of parents of Sagai Mary requesting for his marriage with Sagai Mary and at that time there was a galata between accused No.1 and the deceased. But the evidence of PW.22 gives impression that they both went there and quarrel took place in that connection. Therefore, the evidence of PW.22 in so far as motive aspect is concerned, it is totally contrary to the evidence of other witnesses. Therefore, there is no consistency
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in so far as motive is concerned. Apart from that, learned counsel for the appellants has submitted that if really the accused persons were having said motive to eliminate the deceased, they could not have waited for a long one year. There was an ample opportunity of one year for the accused persons to eliminate the deceased. Therefore, learned counsel for the appellants is justified in making the submission that motive attributed is very remote and it does not come to the aid of the prosecution. Therefore, there is no proximity of the time so far as the motive aspect is concerned. Hence, the case of the prosecution regarding the motive aspect cannot be believed at all as there is no worth believable material and there is no consistency in the evidence of the prosecution.
22. Coming to the last seen theory relied upon by the prosecution, the prosecution has relied upon the evidence of three witnesses, namely PWs.4, 5
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and 17. PW.17 who is cousin of the deceased has deposed in his examination-in-chief that deceased Rajendra is the son of his senior aunt. He does not know the accused persons. Marriage of the deceased Rajendra with Sagai Mary was performed and he does not know about the incident. He has not given any statement even after identifying the accused persons. Hence, at the instance of the Public Prosecutor this witness was treated as hostile and when he was cross-examined by the Public Prosecutor, nothing was elicited from the mouth of this witness so as believe the prosecution case regarding the last seen theory that the deceased was in the company of accused persons. Looking to his cross-examination he has deposed that himself and deceased were residing in the same house. He admitted that deceased is the son of his senior aunt. He also admitted that parents' house of Sagai Mary is at the distance of 15 to 20 feet. Himself and the deceased only slept on the previous
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night of the incident. PW.5-Radhakrishna, PW.4- Vijayakumar were not at all with them. He does not know at what time the deceased woke up and went. He came to know about the death of the deceased at the noon time. Hence, the evidence of PW.17 goes to show that in the house, himself and the deceased slept and no other person was present in the house. The argument of the learned Additional SPP that PWs.4 and 5 deposed that they have seen the accused persons coming to the house at about 3.30 a.m. on 1.6.2011 and they taking the deceased along with them. But the evidence of PW.17, the cousin of the deceased who supposed to know about the deceased more than any other persons, goes contradictory to other material against the evidence of PWs.4 and 5. Evidence of PW.17 also rules out the possibility of the deceased going along with accused Nos.1 and 2 as deposed by PWs.4 and 5.
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23. Now coming to the evidence of PWs.4 and 5 to support the contention that they have seen the deceased along with the accused persons. We also perused the contents of the inquest mahazar proceedings as our attention was drawn by the learned counsel for the appellants wherein at paragraph-4 to the point who are the persons who last seen the deceased, where and at what time and with whom, the answer to this point is that on 31.5.2011 at about 11.00 p.m., Seena-PW.17 is the person who has last seen the deceased. Therefore, this also rules out the possibility of PWs.4 and 5 said to have last seen the deceased in the company of the accused persons.
24. In so far as evidence of PWs.4 and 5 is concerned, PW.4 has deposed that he has seen the accused persons in the house of Rajendra and he knows Rajendra since from childhood. About one year back, deceased Rajendra had come to the
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currency shop situated near his house, at 9.30 p.m. Radhakrishna is the elder brother of the deceased. Nearby the said shop, Kumar, Manja, deceased Rajendra took PW.4 and Radhakrishna to his house. He called them stating that his wife had been to her parents' place for delivery of child and hence, they could make party. When they consumed alcohol and slept, it was 12.00 midnight. At 3.30 a.m., when he heard the sound of somebody tapping the door, Rajendra went and opened the door. Two accused persons were present. Deceased was talking with them. They told that they should forget the old animosity and they could go out. It was about the incident of two years' back and it was the love affair of the deceased with Sagai Mary. Rajendra went along with the accused persons by pushing the door. As there was bed light, accused persons were visible to him. In the morning when he woke up and telephoned to Rajendra, it was switched off. On 28th, police asked them to come to
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the Police Station. When he went there he saw the accused persons and they are the same persons who came to the house of deceased Rajendra during night. In the cross-examination, this witness has deposed that when they came to the house, they have brought food and liquor along with them. They came to the house of the deceased between 10.30 p.m. and 11.00 p.m. All of them had food together at 12.00 mid night and they were sitting in another room. Deceased slept along with them. At 3.30 a.m. when they woke up they saw the deceased talking with the accused persons. PW.4 further deposed that he has seen the accused persons for the first time before the Court. Police have recorded his statement for four times and on the date of inquest mahazar proceedings also again his statement was recorded. He does not remember the dates on which his two other statements came to be recorded. One month after the death of the deceased, he has given the
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statement before the police. The evidence of PW.4 goes to show that he has seen the deceased going along with the accused persons at 3.30 a.m. on 1.6.2011 itself and on this aspect when he was cross-examined by the defence about the conduct of this witness, he clearly admitted that even after coming to know the death of the deceased Rajendra, when they went to Ramaiah Hospital, he has not informed anybody about he seeing the deceased in the company of the accused persons. When they are very much present in the hospital and the family members were very much present there, he ought to have informed the family members as well as the police about himself along with PW.5 seeing the deceased in the company of the accused persons during the night of 1.6.2011. Hence, the conduct of this witness is most material. Apart from that, at two places he has deposed that one month after the incident he has given his statement. The statement of this witness assumes
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importance to verify with the Investigating Officer when he said to have recorded his statement.
25. Coming to the deposition of PW.5- Radhakrishna, brother of the deceased, who deposed that he knows the accused persons. On one day, deceased came to his house and asked to come to his house in order to go to attend the work. When he went, he saw the deceased in the mobile shop. In the said shop, his brother, Vijayakumar and others were present. Thereafter they had meals. At 11.30 p.m., deceased was talking with his wife over phone. Thereafter they slept. At that time, Rajendra also came in to their room and closed the door. At 3.30 a.m. somebody came and tapped the door and deceased Rajendra opened the door. At that time, accused No.1 was in front and another person was also with him. He will identify the said person also. He knew accused No.1 from the date of the marriage of the deceased
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Rajendra. In the cross-examination, this witness deposed at paragraph-5 that on that day, he woke up at 5.45 a.m. and when he came out, his brother was not there and when he telephoned to him, his mobile was switched off. He went to attend the work and Vijayakumar accompanied him. They have not enquired with the neighbours and even they have not gone to the parents' house to enquire. The house of the parents of the deceased was just ½ km. from the said place. They have also not informed about this fact to his parents over phone. He handed over the key to the woman who is a neighbourer, but he has no acquaintance with the said woman. At 12.30 p.m. his father informed about the incident over phone. Then, straight away he went to the hospital, police came there, he did not enquire with his father, police were talking and at that time also he did not go to the Police Station to enquire about these things. Therefore, the conduct of this witness is also material. Even after
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coming to know that the deceased said to have gone along with the accused persons and coming to know about the death of the deceased and he was very much present in the hospital, he has not enquired with anybody, but on the contrary it is his evidence that at 12.30 p.m., his father informed him about the incident over phone. Hence, it cannot be said that the conduct of this witness is of a reasonable man, but it appears to be his abnormal conduct in keeping mum in spite of these things happened in front of his eyes. Considering this aspect of the matter, the evidence of PW.24 in this regard is relevant to refer at this stage. He has admitted the suggestion that PWs.4 and 5 in their statements have not at all stated that PW.17-Seena was with them. If this aspect is also taken into consideration, again there is inconsistency in the case of the prosecution. He further deposed that the aforesaid witnesses have not at all stated that Vijaykumar and Radhakrishna were with the
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deceased. The said suggestion has been accepted as true by PW.24, which also goes to support the defence of the accused that PWs.4 and 5 are not at all the witnesses who have last seen the deceased Rajendra in the company of accused persons. Considering these materials placed on record during the course of trial, we are of the opinion that the prosecution has utterly failed to prove this fact. Looking to the material, it cannot be said that the deceased was seen in the company of the accused persons. Therefore, in this regard, the evidence of the prosecution witnesses, more particularly evidence of PWs.4 and 5 is not worth believable.
26. Coming to the case of the prosecution regarding contention that there are eye witnesses to the incident who have personally witnessed the incident. Let us examine the evidence of PWs.2 and 3 whether it is credit worthy or not. PW.2- Vijayakumar deposed that he know the accused
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persons. Police have enquired with him. About one year back at 3.30 to 4.00 a.m. after attending his work he was proceeding on the motor cycle along with Madhu-PW.3. Madhu told that they can have tea and when they were proceeding to have tea at Bajaj Street, they have seen two persons assaulting one person. They have not asked as to why they were assaulting him and they did not come to know whom they were assaulting. Because of the fear, they left the said place. After 2 to 3 days, they came to know that the person who was being assaulted, has expired. He further deposed that they came to know that his friend Rajendra expired in Bajaj Street. Later, they came to know that he was murdered and they came to know that the person who was being assaulted was Rajendra. In the said incident, the accused who were present before the Court were the persons and he will identify the material objects held by the said accused persons. He has seen two choppers MOs.4
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and 5. One month after the incident, police called him to the Police Station and showed accused persons and he was having the memory of earlier seeing the accused persons. At that time, himself and Madhu were present in the Police Station and he gave the statement identifying the accused persons. In the cross-examination, PW.2 admitted that only once police called him to the Police Station. He cannot say the day and date. He further deposed that he was again called to the Police Station after 15 days of the death of the deceased. During first 15 days, police have not at all questioned him. He did not go to the Police Station voluntarily. Police enquired him only once in the Police Station. At that time, no other persons were present along him. Accused were not present in the Police Station. He further deposed that they were proceeding to RT Nagar from western side and they were proceeding in front of the Police Station. The persons standing in front of Shouchalaya were
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not visible to them. Their vehicle was at speed of 30 km. per hour. Two persons were standing at the distance of 10 to 12 feet from him. Another person was standing by the side of these two persons. He was knowing the facial features of his friend properly. But he cannot say which type of clothes were worn by his friend on the date of incident, so also what type of clothes worn by the accused persons. But they were having machhu in their hands. When he was passing in front of the Police Station, he never informed the police in respect of the incident in question. Even Madhu has not made any attempt to inform the police. On that day, they were not having the mobile phones. This evidence is contrary to the evidence of PW.3-Madhukumar, who has deposed that both they were having mobiles. At 4.00 a.m., they reached their home. PW.2 further deposed that he did not inform the family members about these things. Even he did not inform his friends. Thereafter he went to
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Dharmasthala in Indica Car. Even after coming back from Dharmasthala on 3.6.2011 he did not go to the Police Station and inform about the incident. When he came on 3rd he came to know about the death of the deceased through his friends. 15 days thereafter he went to the Police Station. Till date, police did not enquire with him. He further deposed that there were no obstacles for him to go to the Police Station. He has admitted in his cross- examination that while coming from the railway station the persons who were standing in front of Shouchalaya were not visible. He further admitted that he has not stated if the choppers were shown to him, he could identify them. Looking to the evidence of PW.2, it is clear that admittedly the incident has taken place in early morning at 4.45. Perusing the entire cross-examination and the answer given by this witness, we are of the clear opinion that the place on which the incident has taken place was not visible from the place where
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they were proceeding. Apart from that, looking to the materials on record, we are of the opinion that TI parade to establish the identify of the accused persons in this case was not held by the Investigating Officer. Only witnesses were called to the Police Station after 15 to 20 days of the incident. Identification of the accused persons by the witnesses in the Police Station is not at all an identification. He has admitted that he has given statement for one time that too after 15 days. Therefore, first contention of the prosecution regarding the delay in recording the statement of this witness and about conduct as to why he kept mum as the deceased was his friend. His minimum conduct could have been that he should go to the Police Station or to relatives to inform about the incident which is said to have been witnessed by him.
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27. The other eye witness PW.3-Madhukumar deposed that he knows both the accused persons. Police enquired with him last year in connection with the incident. Last year in the month of May, when himself and Vijaykumar were transporting the goods at RMC Yard at about 3.30 a.m. he told that they could have Tea by stopping the vehicle and when they came near Sulabh Shouchalaya (toilets), one person was lying on the ground and two persons were stabbing him holding choppers in their hands and they were blood stained. They came back from the said place as they were frightened. They did not stop at the said place. After the lapse of 25 days, they went to the Police Station. At that time, they came to know that the accused persons committed the murder of Rajendra. He further deposed that during the night, they came to know about death of Rajendra. Thereafter they have not seen the accused persons. On the date of the incident, as there was street
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light and due to light of motorcycle, they saw the accused persons. He can identify the macchu which was held by the accused. They were shown to him and they are MOs.4 and 5. In the cross- examination, he deposed that CWs.10 to 20 are all of same area. He does not know the deceased, but he was knowing the facial features of the deceased. He does not know who was the person lying there and what type of clothes he worn. They never informed the police that they saw the person lying while they passing in front of RT Nagar Police Station. They directly gone to their houses. On the next day, PW.3 went out of station and came back after 20 days. He has not informed about the person who was lying there, to his family members. After he came back he did not go to the Police Station. Himself and Vijayakumar together went to the Police Station at night and he gave statement before the police. He cannot say the date and time. He did not give any statement prior or after the
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said statement before the police. He denied the suggestion that while coming from the railway station, the person who stood in front of Shouchalaya was not visible to them. He deposed that they were having the mobiles phones. This evidence is against the evidence of PW.2 that at that time they were not having mobiles. The evidence of this witness also goes to show that they have alleged to have seen the incident. They did not go to the Police Station and on the contrary they left the place and came back after 20 days. Even PW.3 did not go to the Police Station voluntarily and police only asked him to come to the Police Station where the police have recorded his statement. Thereafter he did not go the Police Station. Hence, this witness is false witness set up by the prosecution.
28. PW.2 deposed that they have seen two persons assaulting one person who was lying on the
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ground, whereas PW.3 deposed that nearby Shouchalay, one person was lying and two persons were holding machhu. Therefore, there is no consistency in between the evidence of PWs.2 and 3. Apart from that, when the conduct of these witnesses is abnormal it cannot be accepted. In spite of they being the eye witnesses to the incident, they have not informed the police or the relatives of the deceased. In this connection, we also referred to the decision relied upon by the learned counsel appearing for the appellants in Harbeer Singh Vs. Sheeshpal & others (cited supra), more particularly, paragraphs-16 and 17. In the said decision also, the delay of two days in recording the statement was viewed seriously by the Hon'ble Apex Court and it is observed by Their Lordships "In the present case, the date of occurrence was 21.12.1993 but the statements of PW.1 and PW.5 were recorded after two days of incident, i.e., on 23.12.1993.The evidence of PW.6
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was recorded on 26.12.1993 while the evidence of PW.11 was recorded after 10 days of incident, i.e., on 31.12.1993. Further, it is well settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the court.
29. Therefore, looking to the principle enunciated in the decision and there was no explanation offered by the prosecution regarding the delay in recording the statement of these witnesses, it cannot be said that they are really the eye witnesses to the incident in question. Apart from PWs.2 and 3, the prosecution also claims that PW.15 is another eye witness. On perusal of the evidence of PW.15, he turned hostile and has not supported the case of the prosecution and during the course of his cross-examination, nothing has
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been elicited from his mouth so as to believe his version. So far as the statements of PWs.2 and 3 are concerned as we already observed that there was a delay which was unexplained and their evidence on other ground on merits, does not inspire confidence of this Court that they are the real eye witnesses to the incident, no reliance can be placed to the evidence of such witness.
30. The other materials produced in the case would disclose that when the accused were apprehended on 29.6.2011, they given their voluntary statement and at their instance MOs.4 and 5 said to have been recovered in the presence of panch witness. We have examined the material and the evidence of PWs.14 and PW.24. PW.14 who is one of the panch witnesses to the panchanama at Ex.P14, has deposed that he has seen the accused persons and he has seen the recovery in respect of MO.Nos.4 and 5 and he has
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identified his signature at Ex.14(a). About one year back when he was attending to coolie work, police brought the accused persons and at that time, police told him that the accused persons committed the murder of the deceased. Accused persons led himself and the police to the second floor of Murugaraj Oil Industries. They showed two choppers which were rusted and one gunny bag. He identified the gunny bag as MO.No.14 and he also identified the choppers as MO.Nos.4 and 5. In the cross-examination, he has deposed that the first floor was locked. If the lock of the first floor is opened then only they can go to the second floor. He does not know the name of the police nor he has narrated the contents of the panchanama. Police have not issued any notice to him. They came at 5.00 p.m. However, he denied the suggestion that neighbours were not present there. He does not know the name of the deceased and he also does not know who committed the murder. However, he
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denied the suggestion that his signature was obtained in the Police Station and he admitted the suggestion that in the scrap shop choppers are available.
31. The Investigating Officer-PW.24 himself has stated that accused persons thrown the blood stained clothes at some place and they have led the panch witness and the police to the said place wherein they did not find any such clothes. Therefore, they came back to the Police Station. In so far as recovery of machhu is concerned, it is no doubt true that the Investigating Officer deposed that he has seized MOs.4 and 5, but he has not stated at which place exactly the said MOs.4 and 5 were seized, which is most material for appreciation of the evidence and in this connection evidence of PW.24 is to be considered.
32. PW.24 is the Investigating Officer who has deposed in the examination-in-chief that his staff
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apprehended the accused persons near the railway track at Raghavendra Colony and they brought them before him. He recorded their voluntary statements as per Exs.P27 and P28 and as per their statements and as shown by the accused persons, on the second floor of Murugaraj Oil Industries at the terrace he has seized two choppers (macchu)kept in a gunny bag. They are MOs.4, 5 and 14. He has recorded the statements of panch witnesses. Accused persons told that they thrown their clothes at Chikkalalbag Park and when they went there the clothes were not traced. At the said place he conducted one mahazar at Ex.P30 and identified his signature at Ex.P30(a). He admitted in his cross-examination that he referred the place as second floor of Muragaraj Oil Industries Complex. But he further deposed that accused in their voluntary statements have not at all stated about the place of Muragaraj Oil Industries Complex. He admitted that in the mahazar there is
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no mention about APMC Yard. He also admitted that there is no mention of seizure of any of the articles from the second floor. He also admitted the suggestion that he has not mentioned about identification of the chappals and clothes of the deceased while he recording the statements of the relatives of the deceased. He admitted that during his investigation, he has not made any sort of efforts to ascertain blood group of the deceased. He admitted that he has not examined the business people and workers at Bajar Street, where the incident took place, as witnesses. He admitted in paragraph-16 that PW.4 and 5, namely, Vijaykumar and Radhakrishna have never stated in their statements that they were along with the deceased and the accused persons came during the night and took the deceased. At the time of inquest mahazar proceedings, they were knowing the names of the relative of the deceased and some miscreants committed the murder of the deceased. PW.24 has
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further deposed that he is in Yeshwanthpur Police Station from 2009 to 2011 and because of his self protection, he has done one encounter against one Pacchi @ Prashanth. He admitted that no murder case was registered in his Police Station as against Pacchi @ Prashanth. He admitted the suggestion that a case of attempting to murder was registered as against Pacchi @ Prashanth. He denied the suggestion that only one case was registered against the said Pacchi @ Prashanth and because of political pressure, he made encounter of Pacchi @ Prashanth. But he deposed that there were 8 to 9 cases were registered against Pacchi @ Prashanth. He also admitted that the brother of Pacchi @ Prashanth gave complaint against him, before Lokayuktha and Human Rights Commission. Therefore, looking to the evidence of PW.24 also, his evidence cannot be believed and it also cannot be said that he has conducted the investigation in a fair manner. Therefore, no reliance can be placed
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on the evidence of PW.24, the Investigating Officer. It is admitted in the evidence of PW.24 that PW.23 Smt.Malathi, the Scientific Officer of FSL was not able to identify the blood group of the deceased. In the absence of these things and as the witnesses examined by the prosecution are not worth believable and they are not consistent with each other, learned trial Judge after ignoring all the material aspects as submitted by the learned counsel for the accused, has misread the evidence and proceeded wrongly to hold that the accused persons are the guilty of the alleged offences. The judgment and order passed by the trial Court is not in accordance with the material placed on record. There is illegality committed by the learned Fast Track Judge in coming to such conclusion. The appellants herein have made out good grounds to interfere with the impugned judgment and order. Hence, we are of the considered opinion that the
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appeal is liable to be allowed by setting aside the impugned judgment and order.
Accordingly, appeal is allowed. The impugned judgment and order dated 6.3.2013 passed by the Presiding Officer, Fast Track Court - IX, Bangalore City, in SC.No.1499/2011, is set aside. Accused Nos.1 and 2-appellants herein are acquitted of the offence punishable under Section 302 r/w. Section 34 of IPC. They are ordered to be released if they are in custody and if they are not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE *ck/-