Bangalore District Court
State By Hulimavu Police Station vs Venkatesh on 19 March, 2016
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH-65), AT BENGALURU.
Dated this the 19th day of March, 2016
-: P R E S E N T :-
Sri. MADHUSUDHAN B.,
B.Com, LL.B (Spl.).,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.1444/2012
COMPLAINANT:- State by Hulimavu Police Station,
Bengaluru.
-Vs-
ACCUSED: Venkatesh,
S/o. Mykannan,
Aged about 23 years,
R/at.No.266,
Simiyam Patti Village,
Vaniyambadi Taluk,
Vellore District,
Tamil Nadu.
1. Date of commission of offence : 1.5.2012
2. Date of report of offence : 5.5.2012
3. Date of arrest of the Accused : 7.5.2012
4. Name of the complainant : Balaramegowda A.R.
5. Date of recording evidence : 9.5.2014
6. Date of closing evidence : 31.7.2015
7. Offences complained of : U/s.302 of I.P.C.
2 S.C.No.1444/2012
8. Opinion of the Judge : Accused is acquitted
U/s. 235(1) of Cr.P.C.
9. State represented by : Public Prosecutor
10. Accused defended by : Sri. C.S.Vinod, Advocate for Accused
(MADHUSUDHAN B.)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
JUDGMENT
Police Inspector of Hulimavu Police Station, Bengaluru filed charge sheet against accused for trial of offence punishable U/s.302 of I.P.C., in Cr.No.209/2012.
2. Brief facts of this case may be stated as under;
One Chowdeshwari W/o. Raju was residing at Ambedkar Nagar, Weaver's Colony, Piliganahalli, Bengaluru city. She was milk vendor. Her husband was suffering from T.B. Therefore, he was admitted to hospital and was taking treatment as indoor patient. On 1.5.2012 during morning hours, Krishna M. S/o. Muniswamappa noticed that, main door of house of Chowdeshwari was not opened and even he noticed that, one cow was tied just in front of her house. Thus, he opened main door of house of 3 S.C.No.1444/2012 Chowdeshwari and noticed that, dead body of Chowdeshwari was found on the bed in the bed room. He also noticed the appearance of ligature strangulation mark on her neck. Therefore, he suspected that, some one has murdered her. On the same day, at about 12.30 noon. Said Krishna M. Muniswamappa lodged a complaint on the basis of which police concerned have registered a case in UDR.No.19/2012, U/s.174 of Cr.P.C. On the same day, police concerned have conducted inquest on the dead body of Chowdeshwari, in the presence of panch witnesses. During further investigation, spot panchanama was also conducted on 1.5.2012. Thereafter, dead body was sent to Victoria Hospital for autopsy. Doctor at Victoria Hospital conducted autopsy on the same day between 4.00 p.m., and 5.00 p.m. On 5.5.2012 Police Inspector of Hulimavu police station, Bengaluru city received P.M. Report. As per the opinion of doctor, who conducted autopsy, cause of death of Chowdeshwari is due to asphyxia, as a result of ligature strangulation. Therefore, on the same day, a case is registered in Cr.No.209/2012 for the offence punishable U/s. 302 of I.P.C., against unknown person. Thereafter, further investigation is conducted during which statements of husband of deceased as well as other neighbourers recorded by Investigating Officer. During investigation, it was revealed that, it is accused, who committed murder of said Chowdeshwari. Therefore, on 7.5.2012 accused was arrested and 4 S.C.No.1444/2012 thereafter he was interrogated by police concerned and recorded his voluntary statement. Accused was produced before Learned Magistrate who remanded him to J.C. Investigating Officer concerned has recorded further statements of witnesses. Three clothes were sent to Forensic Science Laboratory for scientific examination. Investigating Officer conducted seizure mahazar under which one white colour thread, which is said to have been used for commission of murder is recovered. After completion of investigation, charge sheet is laid against accused alleging commission of offence punishable U/s. 302 of I.P.C.
3. Learned Magistrate took cognizance of the offence. Thus registered a criminal case against accused in C.C.No.17156/2012 on the file of V-A.C.M.M., Bengaluru. Accused is in J.C. On 20.10.2012, Learned Magistrate passed orders for committal of case to Sessions Court since offence alleged against accused is triable exclusively by the court of Sessions. Therefore, case against accused is registered as S.C.No.1444/2012. After hearing, on 26.7.2012 charges against accused were framed, which he denied. Hence, claimed to be tried.
4. In order to bring home the guilt of accused, prosecution in all cited as many as 26 witnesses. Among them 19 witnesses are examined as Pw.1 to Pw.19. Prosecution has given up evidence of Cw.11, 13, 17, 5 S.C.No.1444/2012 18, 22, 23 and 24. During course of trial prosecution got exhibited as many as 25 documents at Ex.P.1 to Ex.P.25. During course of trial, prosecution got identified 8 material objects at Mo.1 to Mo.8.
5. On completion of the evidence of the prosecution side, statement of accused as required U/s. 313 of Cr.P.C., is recorded by giving an opportunity to the accused for explaining incriminating circumstances appearing in the evidence of the prosecution. Accused has denied the evidence of prosecution.
6. During course of trial defence got exhibited portion of statement of Pw.6 at Ex.D.1. Defence of accused is one of total denial of prosecution case. However, he did not led his defence evidence.
7. Heard arguments on both side.
8. On the material placed before the court, following are the points for my consideration:
1. Whether prosecution proves beyond all reasonable doubt that death of Chowdeshwari is homicidal?
2. Whether prosecution proves beyond all reasonable doubt that accused committed murder of Chowdeshwari as alleged in the charge, thus, committed offence of murder punishable U/s.302 of I.P.C., as alleged in the charge sheet?
3. What Order ?6 S.C.No.1444/2012
9. My findings on the above points are as under:
Point No.1 : In Affirmative
Point No.2 : In Negative
Point No.3 : As per final order for the following:
REASONS
10. POINTS NO.1 & 2:- I have taken these two points together to avoid repeated discussions.
11. During course of arguments, learned Public Prosecutor vehemently argued contending that, though most of the witnesses examined by prosecution have turned hostile to the story of the prosecution, but in view of the evidence of Pw.4 and Pw.6, story of the prosecution is to be believed. He also argued contending that, Pw.6, who is son of deceased, has clearly stated all material aspect of the case. Therefore, his version is most relevant and if the same is accepted, it must necessarily held that, it is accused, who committed murder of Chowdeshwari. He also argued contending that, entire story of the prosecution is based on circumstantial evidence and in the trial, prosecution has projected the evidence, the cumulative effect of the evidence projected by prosecution would clearly indicates that, prosecution has proved that, all circumstances which leads to the 7 S.C.No.1444/2012 conclusion that, it is accused, who committed murder of Chowdeshwari. He argued contending that, in view of contents of P.M.Report and evidence of Pw.19, it is conclusively proved that, death of Chowdeshwari is homicidal death, due to asphyxia. He also argued contending that, guilt of the accused has been proved by the prosecution by leading circumstantial evidence. Hence, he insisted for recording conviction.
12. Per contra, learned advocate appearing for accused also vehemently argued contending that, entire case of prosecution is based on circumstantial evidence and if evidence projected by prosecution is considered, it is very much clear that, there is no any conclusive proof of chain of circumstance which leads to the guilt of accused. He further argued contending that, evidence led in by prosecution is insufficient to prove the guilt of the accused. He further argued contending that, though child witness is considered to be the competent witness, but in the instant case, no reliance could be placed on the testimony of Pw.1- child, who is son of deceased as well as Pw.4. He also argued contending that, it is borne out from the records that, some other persons, other than accused used to visit the house of Chowdeshwari. Therefore, there is no any conclusive proof that, it is accused, who committed murder of Chowdeshwari. He has relied upon decisions reported in AIR 2004 SC 8 S.C.No.1444/2012 4961 in a case of Orsu Venkat Rao V/s. State of Andhra Pradesh, AIR 2003 SC 1088 in a case of Bhagwan Singh and others V/s. State of M.P. Head Note (B) and (C). Another decision reported in AIR SC 514, in a case of Pratap Singh and another V/s. State of Madhya Pradesh. Head Note (A), in the matter of appreciation of evidence of child witness in criminal trial. Thus, inter-alia it is argued contending that, prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, insisted for acquittal of accused.
13. Keeping these rival contentions as well as principles laid down in the above dictums in my mind, I have gone through the material on record. Among the witnesses examined by prosecution is Pw.1 is the informant, who lodged complaint on 1.5.2012, on the basis of which, police concerned have registered a case U/s. 174 of Cr.P.C., in UDR No.19/2012. As per the story of the prosecution Pw.2, 3, 6, and 7 are the witnesses who have last seen the deceased in the company of accused, during night hours on 30.4.2012. Pw.4 is the husband of deceased while Pw.5 is the mother of deceased- Chowdeshwari. Pw.6 is the child of deceased as well as Pw.4. Pw.8 is another relative of deceased. Pw.9 is panch witness for spot panchamana marked at Ex.P.1. Pw.10 and Pw.11 are panch witnesses for mahazars marked at Ex.P.11 and Ex.P.12, which 9 S.C.No.1444/2012 are seizure mahazars as well as spot mahazar, as shown by accused. Pw.12 is Muniswamy while Pw.13 is wife of Muniswamy. As per the story of the prosecution, on 30.4.2012 child of deceased by name Pw.6-Chethan was sleeping in the house of Pw.12 and Pw.13. Pw.14 is Scientific officer, serving at F.S.L. Benglauru. Pw.15 is Head Constable, who had been to Tamilnadu in search of accused. Pw.16 is A.S.I. who on the basis of report of Pw.1, registered a case U/s.174 of Cr.P.C., in UDR.No.19/2012. Pw.17 is another A.S.I., who took dead body of Chowdeshwari for post mortem. Pw.18 is Police Inspector, who registered a case in Cr.No.209/2012 for the offence punishable U/s. 302 of I.P.C., and investigated the entire case and filed charge sheet. Pw.19 is the doctor who conducted autopsy on the dead body. Thus, prosecution has examined almost all material witnesses.
14. As per the story of the prosecution, husband of deceased was suffering from T.B. Hence, he was taking treatment as indoor patient. This accused had illicit relationship with deceased- Chowdeshwari. It is further case of the prosecution that, accused suspected that, said Chowdeshwari is having illicit relationship with another man. On 30.4.2012 at about 10.00 p.m., when accused had been to the house of deceased, he noticed that, one motor bike was parked in front of house of Chowdeshwari. Thus, 10 S.C.No.1444/2012 accused suspected that, Chowdeshwari is in the company of another person. Therefore, he intended to know the name of person, who is in the company of Chowdeshwari, thus in the said process, accused was watching, by hiding just by the side of house of Chowdeshwari. It was about 11.00 p.m., when a person came out from the house of Chowdeshwari and he went on motor bike, which was parked there. Meanwhile, Chowdeshwari came out from her house, at that time, this accused joined Chowdeshwari and he gained entry in the house of Chowdeshwari and he spent whole night with Chowdeshwari in her house and during morning house of 1.4.2012, he committed murder of Chowdeshwari and came our from her house. On 1.4.2012, Pw.1 gained entry in her house and noticed that, dead body of Chowdeshwari was found on the bed in her bed room. It is further case of the prosecution that, Pw.2, Pw.3, Pw.6 and Pw.7 have seen the deceased- Chowdeshwari, in the company of accused on the night of that day. Thus, prosecution case is based on circumstantial evidence.
15. In the case of trial of offence punishable U/s. 302 of I.P.C., of this nature, the evidence that deceased was last found in the company of accused is an important link in the chain of circumstances pointing to the guilt of the accused. Thus, in order to prove the guilt of the accused, 11 S.C.No.1444/2012 prosecution is expected to prove all circumstances, which leads to the conclusion of guilt of the accused. Therefore, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance be fully established, and all facts so established be consistent only with the hypothesis of the guilt of the accused. In deciding the sufficiency of circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts are taken together is conclusive in establishing guilt of the accused. Therefore, there must be a chain of evidence so complete as not leave any reasonable grounds for the conclusion consistent with the innocence of the accused and must show that, in all human probability act must have been done or murder must have been committed by accused. Keeping these accepted principles in my mind, I have gone through the evidence on record.
16. As already stated prosecution led evidence of Pw.2, Pw.3, Pw.6 and Pw.7, who according to the story of the prosecution are the witnesses who seen deceased in the company of accused on that day. Therefore, evidence of these witnesses is very much relevant in order to prove the circumstance to connect in proof of guilt of the accused. 12 S.C.No.1444/2012
17. Pw.2, Pw.3 and Pw.7 who are neighbors of deceased- Chowdeshwari. But during trial, they have not supported the story of the prosecution. Pw.3 is also brother of deceased. But these three witnesses have turned hostile to the story of the prosecution. They never states that, on 30.4.2012, they have seen deceased along with accused. Therefore, these three witnesses were treated as hostile witnesses and learned Public Prosecutor was permitted to cross-examine them. But even during course of cross-examination all these witnesses/ Pw.2, Pw.3 and Pw.7 have denied almost all suggestions as suggested by learned Public Prosecutor. They have categorically denied the fact of giving their statements before police, during investigation. Therefore, version of Pw.2, Pw.3 and Pw.7 does not connect for implicating this accused for cause of death of deceased- Chowdeshwari.
18. Pw.6 is none else than the child of deceased as well as Pw.4, who is husband of Chowdeshwari. At the time of incident, Pw.6 was child and was aged about 6 years. His evidence is recorded on 11.4.2014, which means his evidence is recorded after laps of more than two years from the date of alleged incident. Ofcourse, child is also competent witness. But while appreciating the evidence of child witness, court must be cautious. I have gone through the principles laid down in the dictums, which are 13 S.C.No.1444/2012 relied upon by defence in the matter of appreciation of evidence of child witness. In this case, as per story of the prosecution, Pw.6-child was sleeping in the house of Pw.12 and Pw.13 whose house is situated very near to the house of Chowdeshwari. It is specific case of the prosecution that, this child went to the house of Chowdeshwari at about 11.00 p.m., and noticed that, his mother was in the company of accused. Therefore, Chowdeshwari asked her child to go back to the house of Manjua and Muniswamy/Pw.12 & Pw.13 and asked him to sleep in their house only. Therefore, prosecution is mainly relying upon the evidence of child witness. I have gone through his version. In his examination-in-chief, he states that, he has seen the accused and he has identified this accused. He has also stated that, daily one person use to visit to the house of his mother- Chowdeshwari. He states that, it is this accused, who was visiting house of his mother - Chowdeshwari. Prosecution projected this witness in order to establish the circumstances that, it is accused and none else, was with his mother on that day. But on going through the cross examination of this witness, it appears to me that, this child tried to improve the case of prosecution and has gone to the extent of saying that, he has seen the accused assaulting his mother. Statement of this child was recorded by Investigating Officer, during investigation. That portion of statement of Pw.6 got marked at Ex.D.1, which reads thus;
14 S.C.No.1444/2012
" £ÀªÀÄä C¥Àà gÁdÄ 1 wAUÀ¼À »AzÉ D¸ÀàvÉæAiÀÄ°è Crämï DVzÀÝgÀÄ. £ÀªÀÄä ªÀÄ£ÉUÉ ªÉAPÀmÉñÀ JA§ÄªÀgÀÄ DUÁUÉÎ §AzÀÄ ºÉÆÃUÀÄwÛzÀÝgÀÄ. ªÉAPÀmÉñÀ §AzÁUÀ £ÀªÀÄä CªÀÄä £À£ÀߣÀÄß ¤Ã£ÀÄ ºÉÆgÀUÀqÉ Dl DrPÉÆ ºÉÆÃUÀÄ JAzÀÄ PÀ¼ÀÄ»¹ ©qÀÄwÛzÀݼÀÄ. MAzÀÄ ªÁgÀzÀ »AzÉ ¸ÀAeÉ ¸ÀĪÀiÁgÀÄ 7.30 UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è AiÀiÁgÉÆà M§â CAPÀ¯ï £ÀªÀÄä ªÀÄ£ÉAiÀÄ ºÀwÛgÀ §AzÀÄ ªÉÆÃmÁgï ¸ÉÊPÀ¯ï ¤°è¹zÀ, £ÀªÀÄä CªÀÄä £À£ÀߣÀÄß ¤Ã£ÀÄ ªÀÄAdļÀ DAn ªÀÄ£ÉUÉ ºÉÆÃV ªÀÄ®VPÉÆà ºÉÆÃUÀÄ JAzÀÄ PÀ¼ÀÄ»¹zÀ¼ÀÄ. £Á£ÀÄ ªÀÄAdļÀ DAn ªÀÄ£ÉAiÀÄ°è ªÀÄ®VPÉÆArzÀÄÝ gÁwæ ¸ÀĪÀiÁgÀÄ 11.00 UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄPÉÌ £Á£ÀÄ ªÀÄvÉÛ £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è ªÀÄ®VPÉƼÀÄîvÉÛãÉAzÀÄ ªÀÄAdļÁ DAnUÉ ºÉý £ÀªÀÄä ªÀÄ£ÉUÉ §AzÁUÀ DUÁUÉÎ £ÀªÀÄä ªÀÄ£ÉUÉ §gÀÄwÛzÀÝ ªÉAPÀmÃÉ ±À JA§ÄªÀªÀgÀÄ £ÀªÀÄä ªÀÄ£ÉAiÀÄ°èzÀÝgÀÄ. CªÀÄä £À£ÀߣÀÄß £ÉÆÃr AiÀiÁPÉÆà §AzÉà ºÉÆÃV ªÀÄAdļÁ DAn ªÀÄ£ÉAiÀÄ°è ªÀÄ®VPÉÆà JAzÀÄ UÀzÀsj¹zÀgÀÄ. £Á£ÀÄ ªÀÄvÉÛ ªÀÄAdļÁ DAn ªÀÄ£ÉAiÀÄ°è ºÉÆÃV ªÀÄ®VPÉÆAqÉ£ÀÄ. ªÀiÁgÀ£Éà ¢£À ¨É½UÉÎ 9.00 UÀAmÉUÉ £ÀªÀÄä ªÀÄ£ÉUÉ ºÉÆÃzÁUÀ £ÀªÀÄä CªÀÄä ªÀÄAZÀzÀ ªÉÄÃ¯É ¸ÀvÀÄÛ ©¢ÝzÀݼÀÄ. £ÀªÀÄä ªÀÄ£ÉUÉ §A¢zÀÝ ªÉAPÀmÉñÀ CAPÀ¯ï £ÀªÀÄä CªÀÄä£À£ÀÄß PÉÆ¯É ªÀiÁrgÀÄvÁÛ£É. ªÉAPÀmÉñÀ££À ÀÄß £ÉÆÃrzÀgÉ UÀÄwð¸ÀÄvÉÛãÉ."
19. But during trial, though he states that, he has given his statement before police as per Ex.D.1, as stated supra. But in his cross 15 S.C.No.1444/2012 examination he states contrary facts, which is not the story of the prosecution. In his cross examination Pw.6 states as under;
" £ÀªÀÄä vÁ¬Ä ¸ÀvÀÛ ¢£À ªÀÄĤ¸Áé«Ä EªÀgÀ ªÀÄ£ÉAiÀÄ°è ªÀÄ®VgÀ°®è. £Á£ÀÄ £ÀªÀÄä vÁ¬Ä ¸ÀvÀÛ ¢£À ªÀÄĤ¸Áé«Ä EªÀgÀ ªÀÄ£ÉAiÀÄ°è ªÀÄ®VPÉÆArzÉÝ£ÀÄ. CªÀgÀ ªÀÄ£É eÉÆÃ¥Àr JAzÀgÉ ¸Àj. £ÀªÀÄä vÁ¬Ä §zÀÄQgÀĪÁUÀ n« EgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ°è. £Á£ÀÄ gÁwæ 8.00 PÉÌ Hl DzÀ £ÀAvÀgÀ ªÀÄ®VPÉÆArzÉÝ£ÀÄ. £ÀªÀÄä vÁ¬Ä ¸ÀvÀÛ ¢£À ªÀiÁªÀÄÆ°£ÀAvÉ ªÀÄĤ¸Áé«ÄAiÀĪÀgÀ ªÀÄ£ÉAiÀÄ°è Hl ªÀiÁr ªÀÄ®VzÉ£ÀÄ. £ÀAvÀgÀ ªÀÄgÀÄ ¢£À CªÀgÀ ªÀģɬÄAzÀ ±Á¯ÉUÉ ºÉÆÃzÉ£ÀÄ. £Á£ÀÄ D ¢£ÀzÀ ¨É½UÉÎ JzÀÝ £ÀAvÀgÀ ªÀÄÄR vÉƼÉzÀÄPÉÆAqÀÄ wAr wAzÀÄ £ÉÃgÀªÁV ±Á¯ÉUÉ ºÉÆÃzÉ£ÀÄ JAzÀgÉ ¸Àj. £À£Àß vÁ¬Ä ¸ÀvÀÛ «µÀAiÀÄ £À£ÀUÉ AiÀiÁgÀÄ ºÉüÀ°®è. £Á£ÀÄ ±Á¯ÉUÉ ºÉÆÃUÀÄwÛgÀĪÁUÀ £À£Àß ¸ÉßûvÀ gÁdÄ EªÀgÀ vÁ¬Ä, £À£Àß vÁ¬Ä ¸ÀvÀÄÛ ºÉÆÃVzÁÝ¼É §AzÀÄ £ÉÆÃqÀÄ JAzÀÄ ºÉýzÀgÀÄ. £Á£ÀÄ ºÉÆÃUÀĪÀµÀÖgÀ°è CPÀÌ¥ÀPÀÌzÀ d£ÀgÀÄ ¸ÉÃjzÀÝgÀÄ."
In his further cross examination, he states as under;
" £ÀªÀÄä vÁ¬ÄAiÀÄ£ÀÄß DgÉÆæ ¸Á¬Ä¹zÀÝ£ÀÄß £Á£ÀÄ PÀuÁÚgÉ £ÉÆÃrzÉÝãÉ. DgÉÆæ gÁwæ 8.30 PÉÌ £ÀªÀÄä vÁ¬ÄAiÀÄ£ÀÄß ¸Á¬Ä¹zÁÝ£É. DgÉÆæ £ÀªÀÄä vÁ¬ÄAiÀÄ£ÀÄß ¸Á¬Ä¹zÁÝ£É J£ÀÄߪÀ «µÀAiÀÄ £Á£ÀÄ AiÀiÁgÀ ªÀÄÄAzÉAiÀÄÆ ¸ÀºÁ ºÉüÀ°®è. gÀ¸ÉÛAiÀÄ°è ºÉÆÃUÀĪÀªÀgÀÄ £À£ÀߣÀÄß ºÉÆqÉAiÀÄÄvÁÛgÉ J£ÀÄߪÀ ¨ÀsAiÀÄ¢AzÀ ¸ÀzÀj «µÀAiÀĪÀ£ÀÄß £Á£ÀÄ AiÀiÁgÀ ªÀÄÄAzÉAiÀÄÆ ºÉý®è. D ¢£À DgÉÆæ £ÀªÀÄä vÁ¬ÄAiÀÄ PÀÄwÛUÉUÉ ºÀUÀÎ ©VzÀÄ ¸Á¬Ä¹zÁÝ£É. CAzÀgÉ ªÉÃ¯ï ºÁQ ¸Á¬Ä¹zÁÝ£É. CzÀÄ ¸ÀĪÀiÁgÀÄ 2-3 EAZÀÄ zÀ¥ÀàªÁVvÀÄÛ £ÀAvÀgÀ 16 S.C.No.1444/2012 £Á£ÀÄ ¨ÁV®£ÀÄß vÉUÉzÀÄ £ÉÆÃrzÉ£ÀÄ. £Á£ÀÄ £ÉÆÃrzÁUÀ £À£Àß vÁ¬Ä ¥sÁå£ïUÉ £ÉÃvÁqÀÄwÛzÀݼÀÄ. C°èAzÀ £Á£ÀÄ ªÀÄĤ¸Áé«Ä EªÀgÀ ªÀÄ£ÉUÉ ºÉÆÃzÉ£ÀÄ. C°è £Á£ÀÄ Hl ªÀiÁr ªÀÄ®VPÉÆAqÉ£ÀÄ. D ¸ÀªÀÄAiÀÄzÀ°è £ÀªÀÄä vÁ¬Ä ¸ÀvÀÛ «µÀAiÀÄ £À£ÀUÉ UÉÆwÛvÀÄÛ ªÀÄvÀÄÛ £ÀªÀÄä vÁ¬Ä §ÄzÀÄPÀĪÀÅ¢®èªÉAzÀÄ £À£ÀUÉ UÉÆwÛvÀÄÛ."
If these portions of evidence of Pw.6 considered, it is very much clear that, this child has gone to the extent of saying that, he has seen the act of accused, causing the death of his mother. As a matter of fact, it is not a story of the prosecution that, Pw.6 has witnessed the incident of causing death of Chowdeshwari. If this portion of evidence is considered with evidence of Investigating Officer, it is very much clear that, these portions of statements as stated by Pw.6 has not been stated by him during investigation before Investigating Officer. Because, Pw.18/Investigating Officer in his cross examination clearly stated that, Cw.1 - child witness has not stated about the witnessing of causing murder of deceased by accused. I feel it necessary to reproduce cross examination of Pw.18, which reads thus;
"C¸À-6 ZÉÃvÀ£À £À£Àß ªÀÄÄAzÉ ºÉÀýzÀ ºÉýPÉAiÀÄ°è vÀ£Àß vÁ¬Ä D ¢£À ¸ÀĪÀiÁgÀÄ 8 jAzÀ 8-30 UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è vÀ£Àß vÁ¬Ä ªÀÄÈvÀ¥ÀnÖzÀݼÀÄ CAvÁ vÀ£Àß ºÉýPÉAiÀÄ°è ºÉýgÀĪÀÅ¢®è, C¸À-6 vÀ¤SÁ PÁ®zÀ°è, vÀ£Àß ºÉýPÉAiÀÄ°è vÀ£Àß vÁ¬Ä £ÉÃtÄ ºÁQPÉÆArzÀÄÝ vÀ£ÀUÉ 17 S.C.No.1444/2012 PÀAqÀħA¢vÀÄÛ J£ÀÄߪÀ «µÀAiÀĪÀ£ÀÄß ºÉýgÀĪÀÅ¢®è, C¸À-6 vÀ£Àß ºÉýPÉAiÀÄ°è DgÉÆæ vÀ£Àß vÁ¬ÄAiÀÄ£ÀÄß ¸Á¬Ä¹zÀÝ£ÀÄß vÁ£ÀÄ PÀuÁÚgÉ £ÉÆÃrzÉÝÃ£É J£ÀÄߪÀ «µÀAiÀĪÀ£ÀÄß vÀ£Àß ºÉýPÉAiÀÄ°è ºÉýgÀ°®è CAvÁ ºÉüÀĪÀÅzÀÄ ¤d«gÀÄvÀÛzÉ. ¥ÀÄ£ÀB C¸À-6 vÀ£Àß vÀ¤SÁ PÁ®zÀ°è £À£Àß ªÀÄÄAzÉ vÀ£Àß ºÉýPÉAiÀÄ°è DgÉÆæ gÁwæ 8-30 PÉÌ vÀ£Àß vÁ¬ÄAiÀÄ£ÀÄß ¸Á¬Ä¹gÀÄvÁÛ£É J£ÀÄߪÀ «µÀAiÀĪÀ£ÀÄß £À£Àß ªÀÄÄAzÉ ºÉýgÀĪÀÅ¢®è CAvÁ ºÉüÀĪÀÅzÀÄ ¤d«gÀÄvÀÛzÉ."
20. Thus, if entire evidence of Pw.6 is read as whole with evidence of Pw.18, it appears to me that, Pw.6 who is son of Chowdeshwari is not consistent about his own statement. Because in his evidence he has stated that, he has given his statement before police as per Ex.D.1. On the other hand, during further cross examination he has also stated that he has seen the accused committing murder of his mother. Even Pw.6 gone to the extent of saying that, accused committed murder of his mother by hanging her neck with a rope, which is not story of the prosecution. Therefore, no reliance could be placed on the testimony of Pw.6. This child witness is not consistent about his own statements.
21. Entire story of the prosecution rest on circumstantial evidence and no any direct evidence to prove the guilt of accused. On the contrary, Pw.6 has stated as if he has seen the accused committing murder of his 18 S.C.No.1444/2012 mother which is highly improbable to accept. Under these circumstances, I have not placed any reliance on the testimony of Pw.6. Therefore, there is no any conclusive proof that, deceased was last seen in the company of accused either on 3.4.2012 or on 1.4.2012. Thus, first link in chain of circumstance pointing to the guilt of accused has not been proved by the prosecution.
22. Another circumstance which prosecution is relying upon is mobile call details between accused and deceased. To prove this aspect, again prosecution is relying on contents of panchanama marked at Ex.P.11 and contents of Ex.P.12 coupled with evidence of Pw.18 and also contents of Ex.P.24, which is call details of mobile No. 9035145438. Though prosecution produced details of call list of mobile No. 9035145438, but there is no any conclusive proof that, sim card bearing No. 9035145438 is registered in the name of accused. Though prosecution has produced two sim cards but Pw.18 in his evidence has clearly stated as under;
"£À£Àß vÀ¤SÁ PÁ®zÀ°è mÁmÁ qÉÆPÉƪÉÆ ¹ªÀiï PÁqÀð £ÀA.9035145438 DgÉÆævÀ£À ºÉ¸Àj£À°è EzÀÝ §UÉÎ £Á£ÀÄ AiÀiÁªÀÅzÉà zÁR¯ÁwUÀ¼À£ÀÄß CAzÀgÉ ¸ÀA§AzÀs¥ÀlÖ ¸À«ð¸À ¥ÁæªÉÊqÀgÀ¤AzÀ ¥ÀqÉzÀÄPÉÆArgÀĪÀÅ¢®è. "19 S.C.No.1444/2012
23. It is clear that, prosecution though produced of two sim cards and particulars of call details, but there is no any conclusive proof that, that sim card was used by accused. Further, there is no any conclusive proof that, said sim card is in the name of accused. More over Pw.9, Pw.10 and Pw.11 who are panch witnesses for mahazars marked at Ex.P.11 and Ex.P.12, have not supported the story of the prosecution. Pw.9, Pw.10 and Pw.11 were declared as hostile witnesses. Even during course of cross-examination, Pw.9, Pw.10 and Pw.11 have categorically denied the suggestions of learned Public Prosecutor. Therefore, recovery of sim cards and one white colour thread at the instance of accused has not been proved through the mouth of panch witnesses.
24. I have also gone through the evidence of Pw.1 on whose complaint police concerned have registered a case U/s.174 of Cr.P.C., in UDR.No.19/2012. Ex.P.16 is report submitted by this complainant on 1.5.2012. Even on going through the contents of Ex.P.16, there is no any indication about the involvement of this accused for cause of death of Chowdeshwari. During trial also Pw.1 clearly stated that, he does not know the reasons for her death. Thus, even evidence of Pw.1 is not helpful for the prosecution to prove at least any one of circumstance leading to the death of deceased- Chowdeshwari.
20 S.C.No.1444/2012
25. Pw.4/Raju is the husband of deceased. I have also gone through his evidence. Though in his evidence recorded on 28.6.2014, he has stated facts about illicit relationship of his wife with accused, but he has denied the suggestion of learned Public Prosecutor for having given his statement before police marked at Ex.P.4. Therefore, evidence of Pw.4 is also not helpful for the prosecution to prove the guilt of the accused.
26. Pw.5/Rukkamma is the mother of deceased. But she has not supported the story of the prosecution. Thus, she was declared as hostile witness and learned Public Prosecutor was permitted to cross-examine her. But even during course of cross examination by learned Public Prosecutor, she has not deposed even a single sentence against accused. Another witness is Pw.8/Manjula, who is another close relative of deceased, but she has also turned hostile to the story of the prosecution. Even during course of cross examination by learned Public Prosecutor, she has denied the fact of giving her statement before police as per Ex.P.8.
27. I have gone through evidence of Pw.12 and Pw.13. As per the story of the prosecution, Pw.6- child use to stay in the house of these two witnesses and on 30.4.2012 child slept in their home. But Pw.12 and Pw.13 have also not supported the story of the prosecution. They have 21 S.C.No.1444/2012 also turned hostile to the story of the prosecution. On close scrutiny of evidence of these two witnesses also I do not find any substance in the contention of prosecution that, it is accused who committed murder of Chowdeshwari.
28. I have also gone through the official witnesses. Ex.P.15 is F.S.L.Report. Opinion of Pw.14 as indicated in Ex.P.15, which is F.S.L.Report reads as under;
"Residues of Volatile poisons, Pesticides,
Barbiturates, Benzodiazepine group of drugs,
Toxic metal ions and anions were not detected in all the above stated articles."
Therefore, even contents of Ex.P.15 does not connect the accused for death of Chowdeshwari.
29. I have gone through the evidence of Pw.15, Pw.16 and Pw.17, who are other police officials. Their evidence assumes not much importance. Pw.15 had been to Tamilnadu in search of accused. Pw.16 has registered case U/s.174 of Cr.P.C., in UDR.No.19/2012. Pw.17 is A.S.I. who was deputed for conducting autopsy on the dead body of Chowdeshwari. Therefore, I have not given much importance to these witnesses.
22 S.C.No.1444/2012
30. Pw.18/Balaramegowda A.R., is Investigating Officer, who suo- motu has registered a case U/s. 302 of I.P.C., on the basis of contents of P.M.Report. I have also gone through his evidence. So called voluntary statement recorded by Investigating Officer is inadmissible in evidence. In this case, recovery of material objects at the instance of accused as indicated in Ex.P.11 and Ex.P.12 have not been proved through the mouth of panch witnesses. Therefore, no reliance could be placed on contents of Ex.P.23, which is so called voluntary statement of accused. When evidence projected by prosecution does not directly discloses the involvement of accused for cause of death of Chowdeshwari. It is unsafe to place reliance only on the testimony of Pw.18, who is Investigating Officer. Thus, no conviction could be recorded in this case, mainly on the basis of testimony of Pw.18.
31. Material document for prosecution is Ex.P.10, which is P.M.Report. I have gone through the evidence of Pw.19 with contents of Ex.P.10. As per the opinion of doctor, death is due to asphyxia as a result of ligature strangulation. Even for moment it is held that, Chowdeshwari died because of asphyxia as a result of ligature strangulation, at the most it can be held that, her death is not because of suicide but death is homicidal. Though accused denied the entire story of the prosecution but 23 S.C.No.1444/2012 not seriously denied the contents of Ex.P.10. Therefore, under these circumstances, the only conclusion that could be arrived is that, death of Chowdeshwari is homicidal. But there is no any conclusive proof of chain of circumstances, which facts leads to the guilt of the accused.
32. As already stated prosecution is mainly relying upon the testimony of Pw.6. But if entire evidence of Pw.6 is read as whole, his version cannot be relied upon, for simple reason that, this child was aged about 6 years, when her mother died. His evidence is recorded almost after expiry of more than 2 years after her death. In addition to this, Pw.6 is not consistent about his version. Principles laid down in the dictums, which are relied upon by the defence are applicable to the case on hand. It appears to me that, evidence of Pw.6 is most unnatural, thereby it is highly improbable to held that, Pw.6 has seen the accused along with his mother on that day, in the house. Therefore, if entire evidence is considered, I am of the opinion that, evidence is insufficient for the purpose of conviction. Thus, totality of the circumstance of the evidence is considered, there is doubt in every step of prosecution case. On the other hand, very story projected by prosecution appears to be highly improbable. Because, if really accused had intention of causing death of Chowdeshwari, he would not have used Mo.1/thread for causing her death 24 S.C.No.1444/2012 by strangulation and even if really accused committed murder of Chowdeshwari with material object like Mo.1/thread, he would not have left said thread in her house itself. Thus, it is highly improbable to believe the story of the prosecution. In that view of the matter, I have not placed any reliance on the testimony of Pw.18.
33. In view of my above discussions and in the result, this court has come to the conclusion that, though death of Chowdeshwari is homicidal but there is no any convulsive proof that, it is accused, who committed murder of Chowdeshwari. Prosecution has failed to prove the ingredients of the offence as alleged by prosecution, beyond reasonable doubt. Accordingly, I answer point No.1 in affirmative and point No.2 in negative.
34. POINT NO.3: In view of my findings on the above points No.1 and 2, accused is entitled for acquittal. Being of that opinion, I proceed to pass the following:
ORDER Accused is acquitted U/s.235(1) of Cr.P.C for the offence punishable U/s.302 of I.P.C.
Accused is in judicial custody.25 S.C.No.1444/2012
Jail Authorities are hereby directed to release the accused, forthwith, if he is not required in any other case and only after execution of personal bail bond for Rs.50,000/- with one surety for the likesum as required U/s.437-A of Cr.P.C., and such bail bond shall be in force for a period of six months from this day.
Mo.1 to 6 being worthless articles, are ordered to be destroyed, after the appeal period is over.
Mo.7 and 8 are photos, which are to be returned to Pw.4 after expiry of appeal period.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this the 19th day of March, 2016.) (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 M Krishna Pw.2 Mallika Pw.3 Raju 26 S.C.No.1444/2012 Pw.4 Raju Pw.5 Rukkamma Pw.6 Chetan Pw.7 Smt.Shaheen Pw.8 Manjula Pw.9 Chandbai Pw.10 Shekar Pw.11 Harish Pw.12 Muniswamy Pw.13 Manjula Pw.14 S. Savitha Pw.15 Ramesh Pw.16 Balappa Pw.17 A.V.Krishnamurthy Pw.18 Balaramegowda A.R. Pw.19 Dr.Venkataraghava II. For Defence:- Nil III. List of exhibits marked on behalf of the Prosecution side:- Ex.P.1 Mahazar Ex.P.1(a) Signature of Pw.1 Ex.P.1(b) Signature of Pw.9 Ex.P.1(c) Signature of Pw.16 Ex.P.2 Statement of Pw.2 Ex.P.3 Statement of Pw.3 Ex.P.4 Statement of Pw.4 Ex.P.5 Statement of Pw.5 Ex.P.6 Statement of Pw.7 Ex.P.7 Statement of Pw.7 Ex.P.8 Statement of Pw.8 Ex.P.9 Copy of Inquest Report marked with consent Ex.P.10 P.M.Report Ex.P.10(a) Signature of Pw.19 Ex.P.11 Mahazar Ex.P.11(a) Signature of Pw.10 Ex.P.11(b) Signature of Pw.11 27 S.C.No.1444/2012 Ex.P.11(c) Signature of Pw.18 Ex.P.12 Mahazar Ex.P.12(a) Signature of Pw.10 Ex.P.12(b) Signature of Pw.11 Ex.P.12(c) Signature of Pw.18 Ex.P.13 Statement of Pw.12 Ex.P.14 Statement of Pw.13 Ex.P.15 F.S.L. Report Ex.P.15(a) Signature of Pw.14 Ex.P.15(b) Signature of Pw.18 Ex.P.16 Complaint Ex.P.16(a) Signature of Pw.16 Ex.P.17 F.I.R. Ex.P.17(a) Signature of Pw.16 Ex.P.18 Original Inquest Mahazar Ex.P.18(a) Signature of Pw.16 Ex.P.19 Report of police Ex.P.19(a) Signature of Pw.17 Ex.P.19(b) Signature of Pw.18 Ex.P.20 Report/letter issued by P.S.I. of Hulimavu Police Station Ex.P.21 F.I.R. Ex.P.21(a) Signature of Pw.18 Ex.P.22 Arrest report Ex.P.22(a) Signature of Pw.18 Ex.P.23 Voluntary statement of Accused Ex.P.24 Call details of Mobile of accused Ex.P.25 Letter issued by Doctor, Victoria Hospital Ex.P.25(a) Signature of Pw.18 Ex.P.25(b) Signature of Pw.19 For Defence side:- Ex.D.1 Statement of Pw.6 IV. List of material objects marked:- Mo.1 White colour thread (§ÄUÀÄj Dr¸ÀĪÀ ZÁnAiÀÄ zÁgÀ) with cap of Limca Bottle Mo.2 White colour cotton Nighty 28 S.C.No.1444/2012 Mo.3 Green colour Petticoat Mo.4 Cream Colour Bra Mo.5 & 6 Two Sim cards Mo.7 & 8 Two photos (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.