Bangalore District Court
State By vs Umesh Gowda @ Umesh on 30 October, 2019
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE; BANGALORE CITY (CCH-66)
PRESENT
SRI.SUBHASH SANKAD,
B.A.,LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 30th day of October, 2019
S.C.No.1371/2012
COMPLAINANT/S:- STATE BY,
Peenya Police station,
Bengaluru.
(By Public Prosecutor)
Vs.
ACCUSED:- 1. UMESH GOWDA @ UMESH
s/o Mahimanna,
Aged about 35 years,
R/at No.151, 6th Cross,
8th Main Road, Nandini Layout,
Bengaluru - 96.
Permanent address:-
Kuntarayanapalya,
Sirivara Post,
Tumkur Tq & District.
2. N. NARASIMHA MURTHY @
MURTHY @ VALE,
s/o Nagesh Gowda,
Aged about 30 years,
R/at No.06, 2nd Main Road,
'C' Cross, Goruguntepalya,
Bengaluru - 22.
2 S.C.No.1371/2012
Permanent address:-
Bellalli Village, (Mavinahalli),
S.S.Pura Post, Gubi Taluk,
Tumkur District.
3. PRASHANTH KUMAR
s/o Ramalingaiah,
Aged about 27 years,
R/at No.157, 5th Main,
9th Cross, 2nd Block,
Nandini Layout,
Bengaluru - 96.
Permanent address:-
Cholenahalli Village,
Devalapura Hobli,
Nagamangala Taluk,
Mandya District.
4. SHIVA @ SHIVA KUMAR,
s/o Ramappa,
Aged about 21 years,
R/at No.340, KSCB Quarters,
Jaibhuvaneshwara Nagara,
Nandini Layout,
Bengaluru - 96.
(By Sri. MPV, Advocate)
Date of Commencement of 30.09.2011
offences
Date of report of offences 17.11.2011
Name of complainant Sri. Mahadevaiah R.M.
Date of recording of 04.07.2014
evidence
3 S.C.No.1371/2012
Date of closing of evidence 06.10.2018
Offence complained of U/s. 120(B), 143, 147, 148, 363,
302, 201 r/w 149 IPC.
Opinion of the judge Acquitted
****
JUDGMENT
This is a charge sheet submitted by the Police Inspector, Peenya police station against the accused persons for the offence punishable under Sections 120(B), 143, 147, 148, 363, 302, 201 r/w Section 149 IPC.
2. The case of the prosecution is that:-
Accused No.1 who is the resident of Kuntarayanapura village near the village of deceased Lingaraju @ Lingegowda had previously quarreled with deceased Lingaraju @ Lingegowda at the time of election. And they had also quarreled few occasions due to some other reasons. Due to this the accused No.1 had developed enmity against deceased Lingaraju @ Lingegowda. Accused No.1 along with accused No.2 to 4 hatched a conspiracy to murder deceased Lingaraju @ Lingegowda. In order to execute this conspiracy accused No.1 insisted accused No.2 to 4 4 S.C.No.1371/2012 to kidnap deceased Lingaraju @ Lingegowda. Pursuance to the conspiracy on 30.09.2011 night at about 10.00 hours accused No.2 secured Lingaraju @ Lingegowda to Renuka Bar near 8th mile stone in the jurisdiction of Peenya police station, thereafter accused No.2 to 4 along with driver Ashok Kumar kidnapped deceased in a Santro car bearing Reg.No.KA-03/AA-1179 and took him to Inchara hotel near Hirehalli Railway station wherein accused No.1 was waiting. Thereafter, all the accused persons took the deceased in a Santro car, went near a railway bridge at N.H.4 road and formed an unlawful assembly, all the accused persons with an intention to murder deceased Lingaraju @ Lingegowda and with knowledge that due to the assault caused by them, deceased Lingaraju @ Lingegowda will die, assaulted deceased Lingaraju @ Lingegowda with the hands and stones, thereby caused death of deceased Lingaraju @ Lingegowda. Thereafter, after causing death of deceased Lingaraju @ Lingegowda in order to destroy the evidences thrown the dead body on the railway track and waited there till the train passes over the dead body and created a scene that deceased had died due to the train accident.5 S.C.No.1371/2012
3. Earlier brother of the deceased Sri. Mahadevaiah lodged a missing complaint before Peenya police station about the missing of his brother after 9 days from the date of missing, after disappearance of his deceased brother Lingaraju @ Lingegowda. Thereafter, Peenya police summoned the brother of deceased and asked to identify the dead body in the photograph. The brother of deceased Sri.Mahadevaiah identified the dead body, thereafter lodge a complaint alleging that earlier accused No.1 had quarreled with his deceased brother, accused No.1 had developed enmity against the deceased due to this previous enimocity they have murdered his brother. Earlier a UDR was registered by the Peenya police, thereafter after lodging the complaint by the brother of deceased, Crime No.603/2011 came to be registered for the offence punishable under Sections 120(B), 143, 147, 148, 363, 302, 201 r/w Section 149 IPC against accused persons. After completion of the investigation, charge sheet came to be submitted before the committal court. The committal court took cognizance of the offences and committed the case. After committal the case has been made over to this court for disposal in accordance with law. The accused persons are on bail. After going through the materials available on record 6 S.C.No.1371/2012 and after hearing the advocate for accused, the charges were framed by my predecessor. The accused persons have denied the charges and claimed to be tried. After securing the case properties, the trial was conducted.
4. In order to prove the guilt of the accused to the charges leveled against them, the prosecution has totally examined 19 witnesses as PW1 to PW19, out of 29 charge sheet witnesses, exhibited documents as Exs.P1 to 56 and M.Os.1 to 11 were marked and closed its side. After completion of the prosecution evidence, the accused persons were examined as required under Section 313 of Cr.P.C. The accused persons denied the incriminating evidence appearing against them and they have not chosen to adduce defense evidence. Thereafter the case was posted for argument.
5. I have heard learned Public Prosecutor and advocate for the accused persons and perused the records.
6. The learned Public Prosecutor argued that the oral evidence coupled with documentary evidence proves the guilt of the accused to the charges leveled against them beyond reasonable doubt and prays to convict the accused persons to 7 S.C.No.1371/2012 the charges levelled against them. Per contra, the leaned defense counsel has argued that the prosecution has failed to prove the guilt of the accused persons to the charges levelled against them. He has submitted that the accused persons have not committed the offences alleged against them the prosecution has failed to establish the guilt of the accused to the charges leveled against them. He has further submitted that none of the witnesses have supported the case of the prosecution, the prosecution has failed to prove the seizure mahazar at Ex.P8 and the expert evidence is not credible, there is no clinching evidence to prove the prosecution case. With these submissions he sought for acquittal of the accused persons.
7. I have heard both the sides.
8. The points that arise for my consideration.
1. Whether the prosecution proves beyond reasonable doubt that the accused persons with a common object conspired to eliminate deceased Lingaraju, and formed an unlawful assembly and kidnapped deceased Lingaraju thereby committed the offence punishable under Sections 120(B), 143, 149, 363 IPC?
2. Whether the prosecution proves beyond reasonable doubt that deceased Lingaraju died a homicidal death and it is the accused persons who have murdered deceased 8 S.C.No.1371/2012 Lingaraju, and in order to screen the offence the accused persons thrown the dead body on the railway track thereby the accused persons have committed the offence punishable under Sections 302, 201 IPC?
3. What Order?
9. My findings on the above said points are as under:-
Point No.1:- In the Negative
Point No.2:- In the Negative
Point No.3:- As per the final order for the following
REASONS
10. Points No.1 & 2:- The case of the prosecution is
that the accused No.1 who is the resident of Kuntarayanapura village, nearby village of the deceased Lingaraju @ Lingegowda had previously quarreled with deceased Lingaraju @ Lingegowda at the time of election. And they had also quarreled on few occasions due to some other reasons. Due to this the accused No.1 had developed enmity against the deceased, in order to murder Lingaraju @ Lingegowda, accused No.1 along with accused No.2 to 4 hatched a conspiracy in the village of deceased. In order to execute this conspiracy accused No.1 insisted accused No.2 to 4 to kidnap deceased Lingaraju @ Lingegowda, accordingly on 30.09.2011 night at about 10.00 hours accused No.2 secured Lingaraju @ Lingegowda to Renuka 9 S.C.No.1371/2012 Bar near 8th mile stone in the jurisdiction of Peenya police station, thereafter accused No.2 to 4 along with driver Ashok Kumar kidnapped deceased in a Santro car bearing Reg.No.KA-03/AA- 1179 and took him to Inchara hotel near Hirehalli Railway station wherein accused No.1 was waiting. Thereafter, all the accused persons took the deceased in a Santro car, went near a railway bridge at N.H.4 road and formed an unlawful assembly, all the accused persons with an intention to murder deceased Lingaraju @ Lingegowda and with a knowledge that due to the assault caused by them, deceased Lingaraju @ Lingegowda will die, assaulted deceased Lingaraju @ Lingegowda with the hands stones, thereby caused death of deceased Lingaraju @ Lingegowda. After causing death of deceased Lingaraju @ Lingegowda in order to destroy the evidences thrown the dead body on the railway track and waited there till the train passes over the dead body in order to created scene that deceased had died due to the train accident.
11. Earlier brother of the deceased Sri. Mahadevaiah lodged a missing complaint before Peenya police station about the missing of his brother after 9 days from the date of missing, after disappearance of his deceased brother Lingaraju @ 10 S.C.No.1371/2012 Lingegowda. Thereafter Peenya police summoned the brother of deceased and asked to identify the dead body in the photograph. The brother of deceased Sri. Mahadevaiah identified the dead body thereafter lodge a complaint alleging that earlier accused No.1 had quarreled with his deceased brother, due to this accused No.1 had developed enmity against the deceased. Due to this previous enimocity they have caused the death of his brother. Earlier a UDR was registered by the Peenya police, thereafter after lodging the complaint by the brother of deceased Crime No.603/2011 came to be registered for the offence punishable under Sections 120(B), 143, 147, 148, 363, 302, 201 r/w Section 149 IPC, against accused persons. After completion of the investigation, charge sheet came to be submitted before the committal court. The committal court took cognizance of the offences and committed the case. After committal the case has been made over to this court for disposal in accordance with law. The accused persons are on bail. After going through the materials available on record and after hearing the advocate for accused, the charges were framed by my predecessor. The accused persons have denied the charges and claimed to be tried. After securing the case properties, the trial was conducted. 11 S.C.No.1371/2012
12. In order to connect the guilt of the accused to the charges leveled against them, the prosecution has totally examined 19 witnesses as PW1 to PW19, out of 29 charge sheet witnesses, exhibited documents as Exs.P1 to 56 and got marked M.Os.1 to 11 and closed its side. After completion of the prosecution evidence, the accused persons have been examined as required under Section 313 of Cr.P.C and they have denied the incriminating evidence appearing against them and they have not chosen to adduce defense evidence and the accused persons have not stated anything about additional evidence of the prosecution witnesses.
13. I will now proceed to discuss as to what the prosecution witnesses have stated before the court.
PW1- Mahadevaiah was examined as PW1. PW1 has stated in his evidence that prior to 3 months of death of his brother he was residing at Bengaluru at his residence at Manjunathnagar, and his deceased brother was residing with him he was having illicit relation with one Mrs. Gangamma. That on 30.09.2011 afternoon at about 12.30 hours his brother went to the house of CW4, on the same day evening at about 6.30 hours he contacted his deceased brother through mobile, his brother 12 S.C.No.1371/2012 replied that he is with his friends Rudresha and Santhosh at Peenya 2nd phase and he had also state that he would come within half an hour. He has further stated that he was under the impression that his brother has gone to his relative's home and he is expecting his arrival, when his brother did not return to home, even in the next morning he searched for his brother nearby places, and also his relative houses and he tried to contact him through mobile and it was switched off. Hence, he has lodged the complaint before Peeya police on 08.10.2011 as per Ex.P1. He has further deposed that after coming to know about the illicit relation of his brother with one Mrs. Gangamma he had cautioned him and also they got him married and he was residing in his village for 5 - 6 years. About 4 years back he had quarreled with accused No.1- Umeshgowda at the time of election due to the reason of putting up a election banner and his deceased brother lodged complaint before Hebbur police station. He has further deposed that before 7 - 8 months of death of his brother again there was quarrel between his brother and accused No.1 at Doddamma-Chikkamma Jathre at Seenappanahalli Village at that time he was there in the place and he had also requested accused No.1 not to continue with this quarrel with his 13 S.C.No.1371/2012 brother. It is his further evidence that his deceased brother told him that accused No.1 had quarreled with him at the time of election of Grama Panchayath President and he had also informed that he has lodged complaint before Tumkur, Commissioner of Police.
14. PW1 has further deposed that after one week of filing of the complaint PW3-Rudresh had met him. PW3 has stated that on 30.09.2011 night at about 11.00 hours himself and deceased Lingaraju were sitting near Renuka Bar at that time Narasimha Murthy, Shiva, Ashok and others came in a Santro Car bearing Reg. No.KA-03/AA-1179 and took deceased Lingaraju in the said car and went towards 8th mile stone hence PW1 stated that it is the accused persons who have caused the death of his brother Lingaraju.
15. After 2 to 3 days of recording his statement as per Ex.P4 police gave him mobile numbers and he dialled those numbers and asked as to where is his brother Lingaraju, the person who was speaking on other side told that they do not know about Lingaraju, since he has stated that he is speaking from the police station those persons disconnected the phone 14 S.C.No.1371/2012 and also switched their phone off. The police enquired him about the identification of the accused persons and he had given details about the identity of the accused persons and he has deposed before the police that the accused persons developed previous enmity with his brother due to putting up of election banner during the period of election and he had also explained about the quarrel between his brother and accused persons.
16. This witness was subjected to cross-examination by the defense counsel. He has admitted in the cross-examination that he has not stated in Ex.P1 that deceased Lingaraju was residing with him at the time of his death and he had explained about the identification about the accused persons at Ex.P1. He has further stated that he has not stated at Ex.P1 that his brother stated before him that he will come within half an hour. He denied the suggestion that he has deposed falsely before the court that his brother had illicit relation with one Mrs. Gangamma and he does not know that his brother Lingaraju had got married to Gangamma about 7 years back before he was missing. He has further admitted that after coming to know about the illicit relation between his brother and Mrs. Gangamma they took him to their village and got married with another lady by name 15 S.C.No.1371/2012 Gangabairamma, deceased is having two children. He has denied the suggestion that his brother had became frustrated since he was unable to live with his two wives and he has committed suicide. He has further stated that since deceased had asked for the partition of their joint family property since they did not affect the partition, being frustrated about the inability to maintain the two families his deceased brother has committed suicide and he had never insisted him to commit suicide. It is his further denial that about three months prior to the date of incident there was a quarrel between brothers regarding property due to that reason deceased had come to Bengaluru and he was residing with his first wife Gangamma, and he had also denied the suggestion that the parents of second wife Gangabairamma had threatened him to live happily with their daughter.
17. This witness has admitted that many criminal cases were registered against his deceased brother at Hebbur police station. However, he has denied the suggestion that he had developed enmity with many other persons in their village and he has stated that he was not happy with his brother since his brother was residing with him and he has not lodged complaint against him. PW1 has further denied the suggestion that 16 S.C.No.1371/2012 deceased Lingaraju had involved in the village politics because of his active involvement in the village politics there had been several enemies to his brother, and he has denied the suggestion that they were not quarrel or any enmity between his brother and the accused persons, his brother had committed suicide because of frustration in the life, he has deposed falsely before the court that it is the accused persons who have caused the death of his deceased brother Lingaraju.
18. CW5- Santhosh Kumar and CW7- Rudresha were examined as PW2 & 3. These witnesses have not supported the case of the prosecution. Hence, these witnesses were treated as hostile witnesses and the learned Public Prosecutor has cross- examined in length with the permission of the court. Though the learned Public Prosecutor has examined these witnesses nothing beneficial to the case of the prosecution could be elicited from the mouth of these witnesses.
19. CW8- Muralidhara was examined as PW4. He has deposed that he came to know about the death of deceased Lingaraju on 18.11.2011. Immediately, he went to Peenya police station and the Police Inspector, Peenya police station told that 17 S.C.No.1371/2012 Lingaraju has been murdered and they have arrested the accused persons, thereafter he was asked to identify the accused persons who were there in the custody of the police, and he has identified the accused persons. He has further deposed that the accused persons led himself, PW1-Mahadevaiah and CW11- Umesh to railway bridge near Hirehalli where the dead body was found, and they went to the said place as per the instructions of the accused persons and CW10-Rajanna was also there in the place and there was blood stains on the Jelly stones. At that time the police seized MOs.4 to 5 Jelly stones under panchanama and the panchanama at Ex.P8 was drawn in his presence, along with him CW10 and CW11 have signed Ex.P8, thereafter the police took themselves and the accused persons to the police station the accused persons handed over mobile phones to the police, the police seized three MTS Cell phones, Nokia Cell phone and one Santro car and the panchanama -Ex.P9 was drawn in his presence and same bears his signature. He has further deposed that after preparing panchanama the accused persons took all of them to Inchara hotel, Bengaluru -Tumkur Road, accused No.1- Umesh Gowda told that he had thrown the mobile set of Lingaraju near Inchara hotel, however the police did not trace any mobile 18 S.C.No.1371/2012 set from the said place and the police drawn panchanama and the panchanama bears his signature. This witness has identified the cell phone and the car and photographs which were shown to him and he has stated that he has given detail statement before the investigating officer. The learned Public Prosecutor has treated this witness as partly hostile and cross-examined with the permission of the court. In his cross-examination conducted by the learned Public Prosecutor, he has admitted that on 18.11.2011 he went to Peenya police station afternoon at about 1.00 p.m., the police had stated that they have arrested the accused persons and at their instance they have to seize some articles and asked him to co-operate as pancha and he has agreed to co-operate as pancha, the police searched the accused persons and seized the MOs.8 to 10 from accused No.1 to 3 and MO.11 was seized from the accused No.4, and he has further admitted that the same were recovered under panchanama at per Ex.P9 in his presence and it is the accused persons who led himself and the police officers to the Inchara hotel near Bengaluru
- Tumkur Road and also at Devarahosahalli railway bridge.
20. This witness was subjected to cross-examination by the defense counsel and he has admitted that the police have not 19 S.C.No.1371/2012 given him any notice on 18.11.2011, he himself came to know about the incident and he himself went to the place, and he has further admitted that there were many other shops and houses near Peenya police station. He has denied the suggestion that Hirehalli railway bridge is a crowdy place. However, he has admitted that one can go to the said place easily, and he has denied the suggestion that he knew that CW10-Rajanna was working as gang men in the said palce and he came to know about Rajanna only after they have gone to the said place, the railway police were not present when they went to the said place, and he has denied the suggestion that the accused have not taken himself and the police officials to Hosahalli railway bridge near Inchara hotel and police have not seized any articles in his presence. This witness has further denied the suggestion that Jelly stones at MOs.4 to 7 do not contain any blood stains and the panchanama was not drawn in his presence and he has not signed Exs.P8 & 9 at Peenya police station, and he has further deposed that he knows the contents of Exs.P8 & 9 and they came to Peenya police station evening at 6.30 hours. He has admitted the suggestion that MOs.8 to 11 were in the custody of Peenya police, and he has denied the suggestion that MOs.8 to 20 S.C.No.1371/2012 11 are not recovered in his presence and no panchanama was drawn in his presence and police have not recovered Stanro car in his presence and he has deposed falsely before the court.
21. CW4- Sunitha was examined as PW5. She has deposed that she knows that the deceased Lingaraju was going to the house of CW3-Gangamma and that on 30.09.2011 she had gone to house of PW1-Mahadevaiah to invite deceased Lingaraju since that day was Mahalaya Amavasa, on that day deceased Lingaraju had come to her home morning at 11.00 hours at that time an auto driver by name Santhosh had called him 4 to 5 times however, deceased Lingaraju had not spoken with Santhosh. The said Santhosh came to her home and took deceased Lingaraju in auto rickshaw to get the driving license thereafter deceased Lingaraju did not come to her home, on the same day her brother called deceased Lingaraju at 9.30 hours to come to home deceased Lingaraju told that he is with Santhosh at Hegganahalli and he had gone to make driving license and he will come late, however he did not come to home and on the next day his mobile phone was switched off and she went to house of CW3-Gangamma, Gangamma told that Lingaraju had not come to her house also, thereafter PW1 lodged complaint. 21 S.C.No.1371/2012
22. This witness was subjected to cross-examination by the defense. In her cross-examination she has denied the suggestion that deceased was not residing with PW1- Mahadevaiah and he was residing with CW3-Gangamma and she has further denied the suggestion that Lingaraju had not come to her home and she had not gone to house of PW1 and she has deposed falsely before the court.
23. CW9-Chandrashekar was examined as PW6. He has deposed that about 3 years back his friend Muralidhar had taken him to police station and at that time the Peenya police seized one Nokia cell phone and one Santro car in his presence, and he has deposed that he had not seen the accused persons at the time of preparing panchanama and he has not given any statement before the police. This witness was treated as hostile and cross-examined by the learned Public Prosecutor with the permission of the court, and he has admitted in his cross- examination that on 18.11.2011 he had gone to Peenya police station at about 1.30 p.m., and he has denied the suggestion that when he had gone to police station the accused persons were there in the police station and he has admitted that Santro car was there in front of police station at the time of drawing 22 S.C.No.1371/2012 panchanama-Ex.P9 accused No.1 to 3 surrendered MOs.8 to 10 - MTS cell phones and accused No.4 surrendered MO.11- Nokian cell phone in his presence, and he has admitted that at the time of preparing panchanama the accused persons have voluntarily stated that they have used MOs.8 to 11 to cause the death of deceased Lingaraju and at that time police have seized MOs.8 to 11 -mobile phones and one Santro car along with him PW4- Muralidhar was present and both of them have signed to Ex.P9.
24. This witness was subjected to cross-examination by the defense. He has stated that about 8 years back himself and PW4-Muralidhar were residing in Manjunath Nagar and he knows about PW4-Muralidhar, since 4 years he was residing in his village Shanthigrama, he went to police station along with PW4- Muralidhar and he does not know who was the station head of the police station on that day, MOs.8 to 11 were on the table on that day and except the police no other persons were there in the police station and the police have not affixed the chit containing the signature on MOs.8 to 11. He has further admitted that on 18.11.2011 Santro car that appears in Ex.P11 was not there in the compound of police station, and he does not know the registration number of that car and he does not know whether 23 S.C.No.1371/2012 accused persons were in the custody of police and he does not know whether the police have seized the Santro car and he does not know the contents of Ex.P9.
25. CW11- V. Umesha was examined as PW7. He has deposed that Ex.P8 was prepared by the police near Devarahosahalli railway bridge and at that time he was present and signed to Ex.P8 and the accused persons told that this is the place they have murdered deceased Lingaraju, at that time PW4- Muralidhar and CW10-Rajanna were there and the police have seized 4 Jelly stones marked at MOs.4 to 7, Ex.P8 was prepared by the police from 4.30 to 5.30 p.m., and it is the accused persons who have shown the place to the police. In his cross- examination he has stated that he knows PW4-Muralidhar since 2 years, PW4 is relative of deceased Lingaraju and he does not know PW1 - Mahadevaiah and he was not given any notice to go to the place where Ex.P2 was drawn and on that day himself and PW4, police and accused No.1 to 4 had gone to Devarahosahalli railway bridge on the departmental vehicle and it was the accused persons who were instructing the driver to go to that place and he does not know as to which among the four accused had shown the root to the driver and it is the accused who took 24 S.C.No.1371/2012 himself and PW4 and police to Devarahosahalli railway bridge. He has denied the suggestion that the accused persons have not taken police, himself to any place and they have not shown any place and police have not recovered any articles in his presence and he does not know the contents of Ex.P10 and he does not know how the police have seized Exs.P4 to 7 Jelly stones.
26. CW15- Moodalagiriyaiah was examined as PW8. He has deposed that deceased Lingaraju is his son, PW1- Mahadevaiah is his 2nd son and CW6- Kempe Gowda is his first son and he was in bank since one month prior to his death and he knows the accused persons and about 3 to 4 years back accused No.1-Umesh Gowda had assaulted his son deceased Lingaraju at the time of Jathra, accused No.1-Umesh Gowda had assaulted his son deceased Lingaraju and he had gone to Peenya police station and Exs.P5 to 7 photographs were shown to him in the Peenya police station and he has given statement before Peenya police station. In his cross-examination he has stated that he does not have a knowledge that his son Lingaraju had married to CW3-Gangamma, at the time of his death he was residing with CW3-Gangamma and he has denied the suggestion that his son Lingaraju had involved in the village politics about 3 25 S.C.No.1371/2012 to 4 years back, accused No.1 had assaulted his son Lingaraju and he has not witnessed the same. He has denied the suggestion that there was no enmity between himself and accused No.1-Umesh Gowda, his son had married to CW3- Gangamma since he was unable to manage two families at one time he himself committed suicide.
27. CW14 - D.L. Muralidhara, Retired Railway Station Master, was examined as PW9. He has deposed that on 01.10.2011 morning at 10.05 hours while he was on duty CW10- Rajanna informed him that dead body of a male aged about 35 years is lying at Railway track near Hirehalli railway station down line K.M. No.56-300-200 and he entered the same in a control order book of Hirehalli railway station and informed the said fact to Tumkur Railway Station through phone. Thereafter, the investigating officer in this case has requested him to furnish the control order book accordingly he has supplied the true copy of the same to the investigating officer as per Ex.P13.
28. This witness was subjected to cross-examination by the defense. He has admitted that he has not lodged any complaint before nearby police station, and he has voluntarily 26 S.C.No.1371/2012 stated that only after obtaining permission from the higher authorities he has to lodged the complaint. He has further admitted that he has not affixed any notice regarding the death of this person.
29. CW13-Phaneendranath, Station Master, Kyathasandra Railway Station was examined as PW10. He has deposed that on 01.10.2011 morning at about 10.00 hours while he was on duty in the railway station he received a phone call from Hirehalli Railway Station Master that the dead body of male, aged about 35 years was lying on the railway track of K.M. No.56- 200-300 and after receiving the said permission he has lodged the written complaint before the railway police.
30. CW19 - Siddaraju was examined as PW11. He has deposed that about 4 years back deceased Lingaraju took him to his native Rayapura on his auto rickshaw bearing Reg.No.KA- 04/B-8913 and they went to shop to bring groceries when they came to Rayapura from Hebbur, some persons who are relatives of Lingaraju picked up quarrel with him, at that time relative of Lingaraju insisted him to withdraw the complaint lodged against them. Thereafter, they went to Rayapura and he stayed in the 27 S.C.No.1371/2012 house of Lingaraju on that night. On the next morning he did not find auto rickshaw, the said auto rickshaw belongs to one Mr. Kumar friend of Lingaraju and he does not know about the incident. He has further deposed that the person who stated to be relative of Lingaraju and he had quarreled with Lingaraju on that day who is present before the court.
31. This witness was subjected to cross-examination by the defense. He has stated that it was deceased Lingaraju who stated him that the person who quarreled with him are his relatives and he has not lodged any complaint against those persons who quarreled with him, and he has denied the suggestion that Lingaraju had stolen the auto rickshaw belonging to some other person and he has admitted that Lingaraju was an alcoholic, and he has further denied that the person to whom he has identified who is accused No.1-Umesh Gowda. However, it was noticed that the person to whom this witness has identified was not accused No.1-Umesh Gowda he is 2nd accused - Narasimha Murthy, and he has denied the suggestion that he has not gone along with Lingaraju and he had deposed falsely before the court.
28 S.C.No.1371/2012
32. CW23 - H.L. Krishna, ASI, Hebbal police station was examined as PW12. He has deposed that on 29.08.2012 investigating officer directed him to give the four articles seized by him to FSL, Madiwala for the examination, on the same day he has given 4 sealed and packed articles to FSL, Madiwala. In the cross-examination he has denied that he has not given any articles to FSL, Madiwala and he has deposed falsely before the court.
33. CW10 - Rajanna was examined as PW13. He has deposed that on 01.10.2011 morning at about 8.00 hours while he was on duty he found male dead body, aged about 35 years at railway track K.M. 56-300-400 the said dead body was separated into pieces, immediately he telephoned the Hirehalli railway station. However, he has stated that he cannot identify the dead body found in the photograph since there was a huge time gap. Further, he has stated that the police came to the spot and photographed the seen. This witness was treated as hostile witness by the learned Public Prosecutor and he was cross- examined with the permission of the court. In his cross- examination he has stated that he has given statement before the police and the railway police came to the place and drawn the 29 S.C.No.1371/2012 spot mahazar from 11.00 to 2.00 hours. Thereafter he went to Kyathasandra. He has further stated that on that day he has worked in the said place as key man from 7.00 a.m., to 5.00 p.m., he has further admitted that the place where he has worked is railway root of K.M.56 to 63. He has further admitted that K.M.56 start from Nandihalli bridge and railway K.M.63 ends near Kyathasandra and the dead body was lying at K.M.56-200-300 and he was there at the time of drawing spot mahazar and after putting his signature he went to his work and in the cross- examination conducted by the defense he has stated that he has only signed the inquest mahazar thereafter he went to his work.
34. CW25 - Gangadharaiah, Retired H.C., railway police was examined as PW14. He has deposed that on 01.10.2011 morning at 8.00 to 9.00 hours while he was in a station, Tumkur Railway Station Master issued him a memo through his staff he has gone through the memo wherein it was mentioned that a dead body of male aged about 35 years was lying on the railway track at K.M.56-200-300, immediately he called his Yeshwanthpura railway station through phone and forwarded the said memo to Yeshwanthpura police station. Accordingly, SHO of railway police station directed him to go to the place and drawn 30 S.C.No.1371/2012 the inquest mahazar and registered UDR No.144/2011 and insisted him to conduct further investigation. Accordingly, himself and Vasanth Kumar, H.C.No.408 went to the place where the dead body was lying and drawn the mahazar and obtained the signature of PW13 and CW18 to the mahazar and he has submitted a report to the higher officer. This witness has identified the photographs of the dead body.
35. CW21 - Srinivasa, H.C. Basavesshwaranagar police station was examined as PW15. He has deposed that on 18.11.2011 the I.O. in this case has deputed himself, CW20 and CW22 to apprehend the accused persons. All of them searched for the accused persons at Laggere however, they did not trace the accused persons and they had informed to the said fact to the informants, the informants called them to Nandini Layout bus stop and the four accused persons were sitting in the Santro car bearing Reg.No.KA-03/AA-1179, immediately all of them surrounded and apprehended the accused persons. When they enquired those persons regarding names and addresses those persons told their respective names, thereafter they took the accused persons along with car before the investigating officer and submitted the report and produced those persons before the 31 S.C.No.1371/2012 investigating officer along with the report and they have also collected the information from these accused persons about the another accused who was is a child in conflict with law. On the same day he apprehended Ashok who child in conflict with law and produced before the investigating officer along with the report.
36. This witness was subjected to cross-examination by the defense. He has admitted that the investigating officer has not issued them a written notice to apprehend the accused persons, and he has denied the suggestion that they have not arrested the accused persons and they secured the accused persons from their home and involved those accused persons in the said crime.
37. CW26 - Dr. Rudra Murthy, Senior Scientific Officer, Forensic Department, District hospital, Tumkur was examined as PW16. It is in his evidence he has stated that on 03.10.2011 evening at about 6.00 hours, Bengaluru Rural Railway police submitted a requisition along with the dead body of a male aged about 35 years and he received the same, on the same day he conducted the post mortem over the dead body from 6.00 p.m., to 32 S.C.No.1371/2012 7.00 p.m., He has further deposed that before conducting the post mortem over the dead body the body was kept in a freezer and the dead body was measuring 158 c.m., moderately built and there was a rigor martis all over the dead body. He has further deposed that post mortem stains were found on the dead body and he found the Greece and oil on the dead body. He has further deposed that after external examination of the dead body, he found the following external injuries.
1) head crushed and lacerated with upper 3/4th missing, exposing crushed and lacerated skull tags, fractured bones, brain totally distended out.
2) multiple contused abrasion present all over chest and abdomen.
3) right upper limb was crushed and partially amputated and muscles were exposing, and bones were fractured
4) left upper limb crushed and partially amputated and muscles were exposing and bones were fractured. Both the lower limbs crushed and bones and muscles were exposed.
38. PW16 has further deposed that on dissection skin, skull, brain layer were not found, swelling on the chest and ribs were fractured, lungs were lacerated at the side of fractured 33 S.C.No.1371/2012 bone, vocal bone was intact, both the lungs were contused and its veins were swollen, stomach, muscles were swollen, 2050 m.l. blood was found in the stomach, stomach was empty, alcoholic smell present, both the male organs were found intact, and all the injuries were ante mortem in nature. He has given opinion as the death of the deceased was due to shock and hemorrhage as a result of multiple injuries sustained, and he has issued report as per Ex.P22. He has further deposed that when the dead body was lying on the railway track there is a possibility of spreading of Greece and oil on the dead body and there is a possibility that if the dead body is thrown on the railway track the injuries found on the dead body can occur and all the injuries can occur when the person has been assaulted.
39. In the cross-examination he has deposed that all the injuries are ante mortem in nature and injury No.2 is also ante mortem in nature and he has admitted that whenever a person met with a train accident injuries No.1, 3, 4 and 5 can occur. He has further stated that there is a possibility that all the injuries can occur when a person met with an train accident.
34 S.C.No.1371/2012
40. CW27- Krishnappa. G, ASI, Peenya police station was examined as PW17. He has deposed that on 30.09.2011 while he was in charge of the station, afternoon at about 12.30 hours PW1-Mahadevaiah came to the police station and lodged a written complaint, he received the same, registered crime No.603/2011 and submitted the same to the court and submitted case file to CW29 for further investigation. It was in the cross- examination he has denied the suggestion that he has not received any written complaint from PW1 and he has not enquired PW1 as to whether PW1 has published about the missing of his brother in the Newspaper an7d PW1 has not mentioned about the tattoo present in the body of his brother Lingaraju, and he has denied the suggestion that though PW1 has not lodged any complaint before him in order to help PW1, he has falsely deposed that he has received complaint from PW1.
41. CW28- Shivaswamy, P.I. was examined as PW18. He has deposed that on 01.10.2011 morning at about 11.00 hours while he was in charge of station, the Station Master Paneendra has forwarded him a written complaint through PW14- Gangadharaiah, he received the same and registered UDR No.144/2011 under Section 174 IPC and he submitted the FIR to 35 S.C.No.1371/2012 Nelamangala Magistrate. He has further deposed that after verifying the complaint at Ex.P15 the dead body was of a male human being aged about 35 years and the same was lying on the railway track between Hirehalli and Nidavanda and he directed PW14 to conduct spot mahazar and inquest mahazar over the place and PW14 after drawing panchanama sent the dead body to the mortuary of Tumkur Government hospital. Thereafter the doctors of Tumkur Government hospital conducted the autopsy over the dead body and submitted the report to him as per Ex.P16, since the dead body was unknown dead body, he circulated information to the Bengaluru Rural and Tumkur District Police Commissioner. Since the relatives of the dead body was not found the same was creminated in the government burial yard on 03.10.2011, and he has further deposed that on 23.11.2011 the Police Inspector, Peenya police submitted him a requisition to produce the documents pertaining to UDR No.144/2011 as per Ex.P26, thereafter he forwarded the entire file of UDR No.144/2011 along with all the documents with permission of the jurisdictional Magistrate and he also forwarded all the properties seized in this case to the Peenya police with permission of the Magistrate. He has deposed in the cross-examination that he 36 S.C.No.1371/2012 had not issued any written notice to PW14 to draw the spot mahazar and conduct the post mortem over the dead body and he has stated that he had directed to PW14 through phone.
42. CW29-B.N. Shammanna, Dy.S.P., Railway sub- division, Bengaluru was examined as PW19. He has deposed that on 18.11.2011 afternoon at about 1.30 hours while he was in station duty PW1-Mahadevaiah came to police station and gave statement against suspected persons namely Umesh Gowda, Narasimha Murthy, Prashanth, Shiva and Ashok, and he recorded the statement of PW1 and registered crime No.603/2011 for the offence punishable under Section 363 r/w Section 34 IPC as per Ex.P4 and in his investigation he enquired PW3-Rudresh and recorded his statement. That on 18.11.2011 he directed his CW22-C.H. Ramaiah, H.C-2156, PW15-Srinivas, P.C-8612, CW20-Kantharaju, P.C-9064 to search and apprehend those suspected persons. On the same day morning at about 11.30 hours his staff produced those persons before him along with the report at Ex.P20 and those persons are the accused persons of this case. Thereafter, he enquired the accused persons and recorded their voluntary statement and all the accused persons stated in their voluntary statement that if they 37 S.C.No.1371/2012 are taken to the place they will show the place of commission of offence and they will also show the Santro car and mobile phones. On the basis of the voluntary statements of the accused persons he submitted requisition to jurisdictional court to insert Sections 120(B), 143, 147, 148, 302, 201 r/w Section 149 IPC. On the same day afternoon at about 2.00 hours another person by name Ashok was produced by PW15-Srinivas, P.C-8612 and CW20-Kantharaju, P.C-9064 along with the report. After enquiry he came to know that the said Ashok is a child in conflict with law for the purpose of further steps he forwarded the accused Ashok to Juvenile Justice Board.
43. He has further deposed that accused No.1 to 4 have produced Santro car bearing Reg. No.KA-03/AA-1179 before him and also seized 3 MTS mobile phones and one Nokia mobile phone and he ascertain that accused have used the mobile phones and Santro car for the purpose of commission of offence. On the same day he seized MOs.8 to 11 in presence of PW4 and PW6 under panchanama at Ex.P9. Since the accused had given statement before him as per Ex.P31 to 34, on the basis of these statements he asked the accused persons to take them to the place, the accused persons led himself and pancha witnesses to 38 S.C.No.1371/2012 the railway bridge near Devarahosahalli railway track and they have shown the place and stated that on 30.09.2011 they have assaulted deceased Lingaraju till he died, and thrown the dead body in the said place and he drawn the panchanama in the said place and seized 4 blood stained Jelly stones and at the time of preparing panchanama at Ex.P8 PW13-Rajanna was also there and he has obtained his signature. Thereafter, the accused No.1 to 4 led himself and pancha witnesses to Inchara hotel near N.H- 4 highway and they have shown the place where they had thrown the cell phone of deceased Lingaraju, however they have not get the mobile phone and SIM car, thereafter he returned to police station and subjected to MOs.4 to 7 to the station P.F. and thereafter he recorded the statement of PW4-Mahadevaiah. This witness has deposed that since PW4 has stated in his statement on 30.09.2011 that his brother had illicit relation with one Mrs. Gangamma, on 18.11.2011 he recorded the statement of Smt. Gangamma and also PW15-Srinivas, CW20-Kantharaju. That, on 19.11.2011 since the accused persons were not required to the police custody he produced them before the Magistrate with remand application with a prayer to remand the accused to judicial custody. That on 20.11.2011 he recorded the statement 39 S.C.No.1371/2012 of PW14-Gangadharaiah, CW24-Vasanthkumar, CW12- Mehaboob, PW10-Paneendranath, PW9-Muralidhar, PW8- Moodalagiriaiah, CW16-Venkatappa and CW17-Ramesh and he has also requested the station in charge of Yeshwanthpura Railway police station to produce the document pertaining to UDR No.144/2011 as per Ex.P26. That on 12.12.2011 PW18 forwarded file pertaining to UDR No.144/2011 and he received the same.
44. This witness has further deposed that PW1 has stated in his statement at Ex.P4 that deceased Lingaraju has lodged complaint against the accused No.1-Umesh Gowda before Tumkur District Police Commissioner. In this regard he sent requisition to Tumkur District Police Commissioner to furnish details regarding complaint lodged by deceased Lingaraju before him against the accused No.1-Umesh Gowda. Tumkur Police Commissioner has forwarded the covering letter along with the certified copy of the document regarding filing of the complaint and that on 29.08.2011 petition No.363/2011 is registered on the basis of those documents. Thereafter the car bearing Reg. No.KA-03/AA-1179 was released in favour of his original owner as per the order of the court. He has further deposed that it had 40 S.C.No.1371/2012 found during investigation that deceased Lingaraju has lodged complaint against the accused No.1 to ascertain this he sent requisition to Hebbur police station to furnish the documents in that regard. In response to this letter, Hebbur police forwarded the documents pertaining to the crime No.27/2007, crime No.153/2007, crime No.156/2007 and crime No.5/2009 along with the covering letter. That on 26.08.2012 he sent requisition to Station Master, Hirehalli police station to sent a control room order book, thereafter he sent all seized articles to FSL lab through PW12. Again he has also sent requisition to Nodal officers to sent CDRs pertaining to AIRTEL and IDEA companies. That on 26.08.2012 he sent requisition to Hirehalli railway station master to furnish the details regarding the incident as per Ex.P13. On the same day he sent email to the Police Inspector, RMC Yard police station forwarding the CDRs pertaining to 7 mobile phones. That on 27.08.2012 he sent MOs.1 to 4 i.e., 4 Jelly stones, T-Shirt, pant and underwear to FSL. On 28.08.2012 he received CDRs from the RMC Yard police with mobile No.9731867674 belonging to deceased Lingaraju, No.9845697674 belonging to accused No.1, No. 9620171088 belong to accused No.2, No. 9740161999 belonging to accused 41 S.C.No.1371/2012 No.3, No. 9743921579 belonging to CW5 and No. 9743212907 belonging to CW7 those CDRs at Ex.P51 to 56. After completion of the investigation he submitted the charge sheet before the committal court.
45. During the cross-examination he has admitted that it is mentioned in Ex.P4 that deceased Lingaraju was residing at the house of CW3-Gangamma since three months and he has recorded the statement of CW3-Gangamma and Gangamma has stated that deceased Lingaraju was staying in her home. He has further admitted that height of the missing person is mentioned as 5.3 feet in Ex.P1 and there is no mention about the presence of the mole on the body of the missing person. It is submitted that on 01.10.2011 UDR No.144/2011 was registered and the dead body was cremated since no relatives of the body was found and details about identification of the dead body was published in the Newspaper and the same was circulated to nearby police station. He has further admitted that the length of the dead body is mentioned as 4.3 feet at Ex.P24. He has further admitted that it is mentioned at Ex.P26 inquest mahazar the deceased has committed suicide because of the dipression, and it is further admitted that at Column No.5 of Ex.P16 it is mentioned as Pavitra 42 S.C.No.1371/2012 on the right hand of the dead body, and he has further admitted that the details about the missing person mentioned at Ex.P15 and particulars of the dead body mentioned at Ex.P16 are not matching the deceased was married to one Mrs. Gangabairamma and he had two children, and during the course of investigation he came to know that deceased Lingaraju had relation with Gangamma, thereafter his parents took him to his village and got him married to another lady by name Gangabairamma, and he has denied the suggestion that they have arrested the accused No.1 to 4 on 17.11.2011 and they kept them in police custody till 5.00 a.m. in the morning. He has denied that there was no enmity between deceased Lingaraju and accused No.1. He has denied the further suggestion that he has not recorded the statement of any witnesses and all the panchanama were prepared in the police station, and he has further denied the suggestion that he has not recovered 3 MTS mobile phones, Nokia mobile phone and Santro car from the accused persons. It is further admitted that there was no mention about the working condition of the mobile phones in Ex.P9-panchanama. He has denied the suggestion that accused No.1 to 4 have not taken them to any place and they have not recovered any material 43 S.C.No.1371/2012 objects at the instance of the accused persons and he has not received any CDR from any of the officers and he has created all the documents in order to strengthen the case against the accused person.
46. This is the oral evidence adduced by the prosecution in order to connect the guilt of the accused to the charges levelled against them. Apart from this oral evidence, the prosecution has exhibited documents as Exs.P1 to 56 and identified M.Os.1 to 11. After completion of the prosecution evidence, the accused were examined as required under Section 313 Cr.P.C. Accused have answered all the incriminating circumstances appearing against them. However, they have not chosen to adduce defense evidence.
47. I have heard the argument of learned Public Prosecutor and the defense. The learned Public Prosecutor has argued that the oral evidence coupled with the documentary evidence proves the quilt of the accused hence he prayed to convict the accused persons.
48. I have carefully gone through the oral evidence of the prosecution, so also the contents of documents produced by it. 44 S.C.No.1371/2012 From the careful analyses of the oral and the documentary evidence brought by the prosecution it is clear that the case of the prosecution rests on the circumstantial evidence.
The following are the circumstances on which the prosecution case rests.
1. Previous enmity
2. Last seen theory
3. Recovery of incriminating articles
4. Medical and forensic evidences.
49. Let me now discuss as to whether the prosecution has established the previous enmocity of the accused persons with the deceased. That the motive according to the prosecution is that the previous enmocity. It is the case of the prosecution that the accused No.1 had quarreled with deceased on several occasion, and the accused No.1 had warned the deceased to withdraw the complaint lodged against him. Due to this previous enmocity the accused No.1 colluding with accused No.2 to 4 has murdered deceased Lingaraju.
50. It is the testimony of PW1, PW8 and PW11 and the Ex.P1 and Ex.P4 which are relevant in this connection. PW1 has 45 S.C.No.1371/2012 stated that during election with regard to putting up of banner, the accused No.1 had quarreled with deceased Lingaraju, and accused No.1 had assaulted deceased Lingaraju in another occasion i.e., at the time of Doddamma-Chikkamma Jatra. This version of PW1 is supported by PW8. Both PW1 and PW8 have stated that deceased Lingaraju had lodged complaint against accused No.1. During the course of cross-examination of PW8, he has admitted that he has not seen accused No.1 assaulting deceased Lingaraju. PW1 and PW8 have further stated that deceased Lingaraju had lodged complaint against accused No.1. The prosecution has exhibited documents as Exs.P37, 38 and 39 in this regard. Ex.P37 is the report submitted by the Police Commissioner, Tumkur District. It is mentioned in Ex.P37 that the deceased had lodged complaint against the accused No.1 and in an occasion, accused No.1 had warned the deceased to withdraw the complaint. On the basis of this complaint lodged by the deceased the accused No.1 was secured and he was warned by the police officer not to repeat this with the deceased Lingaraju. As regards this circumstance the prosecution has also relied upon other documents at Exs.P38 and 39 which are the complaint lodged by the deceased Lingaraju against accused 46 S.C.No.1371/2012 No.1. It is relevant to mention here that the police had submitted 'B' report for the complaint lodged by deceased Lingaraju against accused No.1. Further in order to ascertain as to whether are there any other criminal cases against accused No.1 the investigating officer requested Hebbur police station to provide information regarding registration of criminal cases against the accused No.1 and the report submitted by Hebbur police to the investigating officer at Ex.P44 wherein it is mentioned that no cases were registered against deceased, and one more document has been marked by the prosecution i.e., Ex.P46 which is the complaint lodged by one Mrs. Shakunthala against deceased and Ex.P47 another complaint lodged against the deceased and FIR registered against the deceased. Exs.P46 and 47 show that the deceased was also of the criminal antecedent. Further more, as it is observed herein the police had submitted 'B' report to the complaint lodged by the deceased Lingaraju against accused No.1. The testimony of PW1, PW8 and PW11 are not supported by the police records and these witnesses are interested witnesses. This itself is not sufficient to hold that the accused No.1 had developed enmity against the deceased Lingaraju which persuaded him to murder deceased 47 S.C.No.1371/2012 Lingaraju. More so, the careful analyses of testimony of PW1, PW8 and PW11 they do not show the magnitude of the enmity of the accused No.1 against deceased Lingaraju. Therefore, I hold that the previous conduct of the accused No.1 which according to the prosecution is the motive behind the commission of crime is not sufficient to hold that in furtherance of his previous enmocity the accused No.1 and other accused have committed the crime. The prosecution has failed to establish the magnitude of the previous enmocity.
51. The next circumstance is that the last seen theory. The prosecution relies on the testimony of PW2 and PW3. PW2 and PW3 are the material witnesses in order to prove the last seen theory. It is very much relevant to mention here that PW2 and PW3 who are the star witnesses to the case of the prosecution have turned hostile. Though the learned Public Prosecutor has cross-examined these two witnesses in length with the permission of the court the prosecution failed to establish anything beneficial to its case from the mouth of these two witnesses. Again this circumstance could not come to the aid of the prosecution case.
48 S.C.No.1371/2012
52. The prosecution has placed reliance on the recovery of incriminating materials at the instance of the accused persons. The first incriminating materials which according to the prosecution are recovered at the instance of the accused persons are blood stains Jelly stones marked as MOs.4 to 7. According to the prosecution these recovery is a discovery as the same are recovered at the instance of the accused persons. Before discussing as to whether the seizure of the incriminating material marked at MOs.4 to 7 I would like to refer Section 27 of the Indian Evidence Act.
27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
Under Section 27 the prosecution is entitle to prove the fact which leads to discovery and the discovery must be within exclusive knowledge of the accused persons. In order to ascertain as to whether the recovery of these incriminating 49 S.C.No.1371/2012 materials amounts to discovery, I would like to mention some of the relevant dates and Ex.P8. That incident occurred on 30.09.2011 and Ex.P8 under which MOs.4 to 7 were recovered was drawn on 18.11.2011 i.e., after lapse of 48 days. In the mean time a dead body was seen by PW13-Rajanna, Keyman. Immediately, he sent information to Hirehalli police station and thereafter the police came there and drawn panchanama thereafter dead body was sent to hospital for post mortem. Thereafter, UDR No.144/2011 was registered under Section 174 IPC. Though the dead body was kept in the mortuary for identification, and the details about the dead body was published in the News paper since no relatives of the dead body came forward to claim dead body, the dead body was creminated. Exs.P24 and 25 -gazette copy and request letter needs to be recovered in this matter. What I would like to emphasis that the place where alleged recovery was made is a public place, public can have easy access over that place and the prosecution cannot claim that it is a discovery. First reason that the place at which the incriminating materials are recovered is a open place and public can have easy access over that place and there is a huge gap nearly about 48 days. Further the prosecution has shown 50 S.C.No.1371/2012 that it is a joint recovery and the joint recovery cannot be held to be substantive peace of evidence, and in the absence of any connecting link between the crime and the material object recovered the recovery on the behest of accused persons will not have any material bearing on the prosecution case. Therefore, for the foregoing reasons I hold that it is not safe to hold that the recovery of incriminating materials is a recovery under Section 27 of the Indian Evidence Act.
53. Further, the recovery of MO.8 to 11 were in possession of the accused persons and accused persons have produced the same in presence of PW4 and PW6. To substantiate this seizure the prosecution has examined PW4 and PW6. PW4 has fully supported the case of the prosecution. However, in the cross-examination he has stated that he was not given any notice by the police and he has admitted that when he went to Peenya police station MO.8 to 11 i.e., mobile phones were already in the custody of the police. However, he has denied the suggestion that the same were not recovered in his presence. PW6 who is another pancha witness to Ex.P9-seizure mahazar has stated that he has signed Ex.P9 when he had gone to Peenya police station along with PW4, Peenya police seized 3 51 S.C.No.1371/2012 MTS mobile phones, one Nokia phone and one Santro car under panchanama at Ex.P9. He has deposed that he has not seen the accused persons at the time of preparing Ex.P9, and during the cross-examination he has stated that the accused persons produced MO.8 to 11 before the police, and in the cross- examination conducted by the defense counsel he has deposed that when he went to Peenya police station, MOs.8 to11 -mobile phones were already there on the table, and except the police no other persons were there in the police station and the police have not affixed any chit on those cover containing MOs.8 to 11. Again he has admitted that on 18.11.2011 the Santro car was not there in the premises of Peenya police station and he has admitted that he has not seen the accused persons in the Peenya police station and he has stated that he does not know the contents of Ex.P9.
54. The careful perusal of Ex.P8 under which MOs.4 to 7 are recovered, Ex.P9 under which MO.8 to 11 are seized and analyses of the evidence of PW4 and PW6. PW6 is not supported the case of the prosecution. More so, he has stated that he has not seen the accused persons in the police station again it is contrary to the case of the prosecution that in presence of PW4 and PW6 only the accused persons produced MOs.8 to 52 S.C.No.1371/2012 11 and they have seized as per Ex.P9. Since there is no corroboration in the testimony of PW4 and PW6 I cannot hold that the prosecution has proves the recovery of MO.8 to 11. Further, the investigating officer was examined as PW19. He has stated that he has not ascertain as to whether whose name the SIM cards numbers were registered, and at what time phones were used by the accused persons in the commission of the crime. Under such circumstances, I am of the opinion that the recovery of MOs.4 to 7 under Ex.P8 and seizure of MOs.8 to 11 under Ex.P9 cannot be of much significance to the case of the prosecution.
55. Another circumstance on which the case of the prosecution rest is medical and forensic evidences. In this regard, the evidence of PW16 and Ex.P22 are relevant. PW16 has given opinion at Ex.P22 that the death is due to shock and hemorrhage as a result of multiple injuries sustained. PW16 has mentioned about the external injuries appeared on the dead body of the deceased which are discussed herein above.
56. Let me now discuss as to whether the testimony of PW16 will support the case of the prosecution that the death of 53 S.C.No.1371/2012 deceased is homicidal death. The doctor has deposed that the injury No.2 which is mentioned herein above can occur when a person has been assaulted and the same cannot occur when the moving train passes on the body of the person. During the cross-examination he has stated that all the injuries were ante mortem in nature, and he has admitted that the injuries mentioned at Sl.No.1, 3, 4 and 5 at Ex.P16 can occur when the moving train passes on the body of the person, and he has stated that there is a possibility of occurrence all the injuries found on the dead body of deceased when the moving train passes on the body of the person.
57. The careful analyses of the testimony of PW16 it is clear that the injuries found on the dead body can also occur when the moving train passes on the body of the person. Further it is relevant to mention here that it is mentioned at Ex.P22 that stomach was also containing alcohol and PW16 has stated that deceased was an alcoholic. Though PW16 has issued Ex.P20 that the death is due to shock and hemorrhage as a result of multiple injuries sustained, and he has deposed that all the injuries were ante mortem in nature. This evidence of PW16 goes against the case of the prosecution. It is the case of the 54 S.C.No.1371/2012 prosecution that limbs of the deceased were separated due to passing of train on the dead body. If this being the case PW16 should have told that such injuries are ante mortem in nature. PW16 has also stated that the injuries found on the dead body would be caused due to the passing of the train on the person. Hence, I am of the opinion that there arises a doubt in the case of the prosecution that the deceased Lingaraju died a homicidal death. It is mentioned in Ex.P22 that upper limbs and lower limbs were separated such injuries can occur when moving train passes on the body of the person and there is a possibility that the deceased might have also died an accidental death. It is further case of the prosecution that the accused persons conspired to eliminate the deceased. However absolutely there is no evidence to show that the accused persons have conspired to eliminate deceased Lingaraju. All though MOs.8 to 11 would come near to the case of the prosecution that these weapons have been used to commit the offence of conspiracy. No documents such as call details or document on the respective mobile companies to show that whose name the mobile numbers were registered are not produced by the prosecution. The material witnesses have turned hostile to the case of the 55 S.C.No.1371/2012 prosecution. It is further case of the prosecution that the accused persons kidnapped deceased Lingaraju on the car bearing No.KA-03/AA-1179 which was seized under Ex.P11 used for kidnapping deceased Lingaraju and there is no iota evidence to substantiate this case of the prosecution. As regards the assault by the accused person on the deceased Lingaraju as it is mentioned above there are no direct evidences. It is further relevant to mention here that the defense successfully established that the deceased Lingaraju was residing in Bengaluru since three months prior to his death. Though, the prosecution could establish that there was quarrel between accused No.1 and deceased Lingaraju on many occasions which was taken to the police station, due to this accused No.1 had developed enmity against deceased Lingaraju, however this itself is not sufficient to connect the guilt of the accused persons to the charges leveled against them. The magnitude of the previous enmocity shown by the prosecution is not of much intense to murder deceased Lingaraju.
58. The cardinal principles of law is that if the case of the prosecution rests on the circumstantial evidence, the circumstances has to be proved independently, there should not 56 S.C.No.1371/2012 be any room to disbelieve the version of the prosecution that each incident has been formed a change of circumstances, and this chain to show that it is the accused and accused only who has caused the death of deceased. However, in the case in hand as I have observed herein above there is a doubt arises in the case of the prosecution that deceased Lingaraju died a homicidal death. Further, the oral and documentary evidence adduced by the prosecution will not prove the circumstances on which the case of the prosecution has rested. With these observations I hold that the prosecution has failed to bring home to the guilt of the accused to the charges leveled against them. Accordingly, I answer points No.1 & 2 in the 'Negative'.
59. Point No.3:- For the above reasons, I proceed to pass the following:-
ORDER Accused No.1 to 4 found not guilty for the offence punishable under Sections 120(B), 143, 147, 148, 363, 302, 201 r/w 149 IPC.
Acting under Section 235(1) of Cr.P.C., accused No.1 to 4 are acquitted for the offences punishable under Sections 120(B), 143, 147, 148, 363, 302, 201 r/w 149 IPC.57 S.C.No.1371/2012
The bail bonds and surety bonds of accused shall stand cancelled.
Note:- Office is hereby directed to destroy the MOs.1 to 7 after the statutory period provided for appeal is over and MOs.8 to 11 are ordered to be forfeited.
(Dictated to the stenographer, transcribed by her, corrected and singed then pronounced by me in the Open Court on this 30th day of October, 2019) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:-
PW1 : Mahadevaiah PW2 : Santhosh Kumar PW3 : Rudresha. Y PW4 : Muralidhara PW5 : Sunitha PW6 : Chandrashekar PW7 : Umesha. V PW8 : Moodalagiriyaiah PW9 : D.L. Muralidhara PW10 : Phaneendranath 58 S.C.No.1371/2012 PW11 : Siddaraju PW12 : H.L. Krishna PW13 : Rajanna PW14 : Gangadharaiah PW15 : Srinivasa PW16 : Dr. Rudra Murthy PW17 : Krishnappa G PW18 : Shivaswamy LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION:- Ex.P1 : Complaint Ex.P1(a) : Signature of PW1 Ex.P2 : Statement of PW2 Ex.P3 : Statement of PW3 Ex.P4 : Statement of PW1 Exs.P5 to 7 : Photos of deceased Ex.P8 : Spot mahazar Ex.P9 : Panchanama Ex.P10 : Panchanama Ex.P11 : Photo of vehicle Ex.P12 : Report of citing dead body Ex.P13 : Requisition for documents Ex.P14 : Reply to Ex.P13 Ex.P15 : True copy of message recorded Ex.P16 : True copy of report from Bengaluru Rural Railway Police 59 S.C.No.1371/2012 Ex.P17 : Requisition from Railway police outpost to BRPS Ex.P18 : Message from ASI, Railway police out post to wireless Ex.P19 : Report of PW15 Ex.P20 : Report of H.C-2156 Ramaiah Ex.P21 : Requisition for post mortem Ex.P22 : Post mortem Ex.P23 : FIR No.606 registered by Peenya police Ex.P24 : Karnataka Gazettee Ex.P25 : Submission Ex.P26 : Letter Ex.P27 : Letter Ex.P28 : Letter of permission to handover from Bengaluru Rural to Peenya police station Ex.P29 : Letter of handover of case from Bengaluru Rural to Peenya Ex.P30 : FIR
Exs.P31 to 34 : Voluntary statement of accused No.1 to 4 Ex.P35 : Remand application dated 18.11.2011 Ex.P36 : Letter to Dy. S.P, Tumkur Ex.P37 : Acknowledgment of complaint Ex.P38 : Report of enquiry Exs.P39 to 41 : Statement of accused No.1 given at the time of enquiry 60 S.C.No.1371/2012 Ex.P42 : Acknowledgment of enquiry conducted Ex.P43 : Requisition for information of cases between accused and deceased Ex.P44 : Certified copy in response to Ex.P43 Ex.P45 : Complaint in Crime No.27/07 Ex.P46 : FIR in Crime No.27/2007 Ex.P47 : Complaint in Crime No.156/2007 Ex.P48 : FIR in Crime No.156/2007 Ex.P49 : Complaint in Crime No.153/2007 Ex.P50 : FIR in Crime No.153/2007 Ex.P51 : CDR of deceased Ex.P52 : CDR of accused No.1 Ex.P53 : CDR of accused No.2 Ex.P54 : CDR of accused No.3 Ex.P55 : CDR of accused No.5 Ex.P56 : CDR of CW7- Rudresh.
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE:-
- Nil -
LIST OF MATERIAL OBJECTS MARKED:-
MO.1 : T-Shirt
MO.2 : Pant
61 S.C.No.1371/2012
MO.3 : Nikkar (half pant)
MOs.4 to 7 : Blood stanined boulder stones
MOs.8 to 10 : MTS cell phones
MO.11 : Nokia cell phone
(SUBHASH SANKAD)
LXV Addl. City Civil & Sessions Judge,
Bengaluru.