Bangalore District Court
Byappanahalli P.S vs A1 V. Vishnudevan @ Vishu @ Pochi on 16 September, 2025
1 SC No. 445/2022
KABC0A0012372022
TITLE SHEET FOR JUDGMENTS
IN THE COURT OF XXVI ADDL.CITY CIVIL COURT
AT BENGALURU
IN THE COURT OF THE XXVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL UNIT
BENGALURU CITY [CCH.20]
Dated: This the 16th day of September, 2025
: Present :
Sri ONKARAPPA R, B.Sc., L.L.B.,
C/c XXVI Additional City Civil & Sessions Judge,
Bengaluru City.
SESSIONS CASE NO. 445/2022
Complainant : State of Karnataka,
By Byappanahalli Police Station,
Bengaluru.
[By : Public Prosecutor]
Vs.
Accused No.1 & 2 : 1. Vishnudevan @ Vishnu @
Pochi
S/o C.K. Vasudevan
Aged about 24 years
C/o Krishnamurthy,
No.53, Krishnamurthy Colony,
New Byappanahalli,
Bengaluru
2 SC No. 445/2022
2. Vivian Richard @ Viviyan
S/o G.Thomas,
Aged about 24 years,
No.13/1, BMK Colony,
New Byappanahalli,
Bengaluru
[A1 -by Sri. M.H., advocate
A2 by Sri. ATG advocate]
Date of commission of 14.11.2021
offence
Date of report of 14.11.2021
offence
Date of arrest of the Accused Nos.1 and 2 arrested on
Accused 19.11.2021
Date of release of the Accused Nos.1 in Judicial
Accused on bail Custody
Accused No.2 released on
10.03.2022
Name of the Sri. Kaushal Prasad Panika
complainant
Date of commencement 29.11.2022
of trial
Date of closing of 25.06.2025
prosecution evidence
Date of Judgment 16.09.2025
Offences complained of U/s 341, 323, 302 r/w 34 of
I.P.C.
Opinion of the Judge Accused Nos.1 and 2 are
convicted
3 SC No. 445/2022
J U D G M E N T
Byappanahalli Police have charge sheeted Accused Nos.1 and 2 for the offences punishable U/s 341, 323, 302 r/w 34 of I.P.C.
2. The case of the prosecution is, on 14.11.2021 night at 9.30pm CW1 and his friend Boopat Singh Gond have with intention to drink the sprite and both of them were in proceeding to Byapanahalli, at 7th Cross New Byapanahalli, accused Nos.1 and 2 have make threat the CW1 and deceased Boopat Singh Gond by saying 'idar se bhag re'. When further proceeded by CW1 and his friend Boopat Singh Gond on the same road and they were returning at infront of Vigneshwar store, without any reason accused Nos.1 and 2 have the common intention they wrongfully restrained the CW1 and his friend Boopat Singh Gond and accused No.2 assault on Boopat Singh Gond on his face. When CW1 and Boopat Singh Gond resisted the act of accused, 4 SC No. 445/2022 accused No.1 held shirt collar of Boopat Singh Gond and assaulted left eyebrow, left elbow, left thorax, right side of the chest and right abdomen and it thereby accused Nos.1 and 2 caused death of deceased Boopat Singh Gond. Hence the complaint.
3. Based on the complaint of complainant, Byappanahalli police have registered FIR against Accused Nos.1 and 2 for the offences punishable under sections 341, 323, 302 r/w 149 of I.P.C. After completed the investigation, the respondent police have submitted the charge sheet in against accused Nos.1 and 2 for the offences punishable under sections 341, 323, 302 r/w 34 of I.P.C.
4. Committal court committed the case along with Accused Nos.1 and 2 to this court for the trial. Accused Nos.1 and 2 have been secured at before this court upon the process. If it questioned accused Nos.1 and 2 with respect to compliance of section 209 and 227 of Cr.P.C., 5 SC No. 445/2022 accused Nos.1 and 2 have submitted charge may be framed and no argument before the charge. With that being charge have been formed. The same charge have been read over and explained to accused Nos.1 and 2 in the language known to them. After hear the charge accused Nos.1 and 2 denied the same and they have pleaded not guilty of the offence. Accused Nos.1 to 2 further submitted that they claimed to be tried the charge.
5. In support of the prosecution case, the prosecution has examined total number of 9 witness as PW.1 to PW.9, out of total number of 29 charge sheet cited witnesses. Further the prosecution have also marked as many as 24 documents at Ex.P.1 to Ex.P24 and material objects at M.O.1 to M.O.9 on their behalf. Prosecution closed their side evidence. Learned public prosecutor has given up the evidence of CW5 and CW6 as per order sheet dated 05.12.2024. Sketch issued by CW16 and CW17 6 SC No. 445/2022 have been marked with the consent of accused counsel as per Ex.P4. Hence, evidence of CW16 and CW17 and CW12 to CW15 have been given up by the prosecution as per order sheet dated 23.03.2025. Further, learned Public Prosecutor have also given up the evidence of CW7, CW18, CW20, CW24 to CW26 as per order sheet dated 27.03.2025. In view of the marking of Post mortem report with the consent of accused counsel as per Ex.P19, the prosecution given up the evidence of CW19 as per order sheet dated 04.04.2025. On 04.04.2025 the evidence of CW8, CW22 and CW23 and on 16.04.2025 the evidence of CW10 given up by the prosecution. Accused Nos.1 and 2 have been examined U/s 313 of Cr.P.C. The incriminating evidence have appeared in against accused Nos.1 and 2 if posed on them, accused Nos.1 and 2 denied the same such of the incriminating evidence as false. Accused Nos.1 and 2 have not chosen to examined any of the witness on their behalf.
7 SC No. 445/2022Hence the defence evidence have been taken as nil.
6. Heard the argument on both the sides. Perused the records.
7. The points for my consideration are;
1. Does the prosecution have proved its case by beyond reasonable doubt, in execution of their common intention, accused Nos.1 and 2 wrongfully restrained the CW1 and his friend Bhoopat Singh Gond and thereby Accused Nos.1 and 2 committed offence punishable under section 341 r/w 34 of I.P.C. ?
2. Does the prosecution have proved its case by beyond reasonable doubt, in execution of their common intention to murder and by that act intention to cause death of deceased Bhoopat Singh Gond, accused No 2 have voluntarily causing hurt by means of hands, thereby accused No2 committed the offence punishable U/s 323 R/w 34 of IPC?
3. Does the prosecution have proved its case by beyond reasonable doubt, in execution of their common intention to murder CW1 and his friend Bhoopat Singh Gond, accused No.1 have assaulted on Bhoopat Singh Gond on his left eyebrow, left elbow, left abdomen, right chest and right abdomen, due to which he 8 SC No. 445/2022 died and thereby Accused Nos.1 and 2 committed offence punishable under section 302 r/w 34 of I.P.C. ?
4. What Order?
8. My findings on the above points are as under:
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 : In the Affirmative
Point No.4 : As per final order,
for the following:
R E A S O N S
9. Points No. 1 to 3:- Since these points are interconnected to each other, they are taken together for common discussion to avoid repetition of facts and evidence.
10. Learned Public Prosecutor argued, the prosecution produced the evidence of PW1 to PW9 and marked Ex.P1 to Ex.P24 on their behalf. According to the prosecution the material particulars available in all witnesses as well as at 9 SC No. 445/2022 Ex.P1 to Ex.P24 documents, it more enough to convicted accused Nos.1 and 2 for the alleged offence. Therefore the prosecution pray for convicted accused Nos.1 and 2 for the alleged offence.
11. Counsel for the accused argued, accused Nos.1 and 2 have not committed any offence as alleged. As per the accused counsel basically the case has been registered in against the unknown persons for the offence punishable under section 341, 323, 302 r/w 149 of IPC. Despite the case registered in against unknown person, the police have submitted the charge against accused Nos.1 and 2 for the offence punishable U/s 341, 323, 302 r/w 34 of IPC. As the case basically registered in against the unknown person and accused Nos.1 and 2 were not known by PW1 and PW2 in prior to the date of incident, it highly impossible to identified the accused and to make a charge sheet in against particular accused Nos.1 and 2 without conduct 10 SC No. 445/2022 test identification parade. Further, though evidence of eye witnesses, injured, complainant, mahazar witnesses have cited in the charge sheet, but the same testimony of all category of the witness will not inspire any of the confidence to believe the case of prosecution. It also case of defence counsel, the alleged incident happened at in the time of evening that too at the dark place, as such the same case of the prosecution created a cloud on its face. Hence, according to accused counsel, the accused Nos.1 and 2 are be the innocent of the alleged crime and in view of that both of the accused are entitled for acquittal from the charge made in against them.
12. The prosecution net case is, the accused Nos.1 and 2 are being the common intention to murder the deceased Boopat Singh Gond, accused Nos.1 and 2 wrongfully restrained CW1 and deceased Bhoopat Singh Gond and on account of resisted the same, accused No.1 held shirt collar of Boopat Singh Gond and assaulted 11 SC No. 445/2022 left eyebrow, left elbow, left thorax, right side of the chest and right abdomen and it thereby accused Nos.1 and 2 caused death of deceased Boopat Singh Gond. With this background of charge the deposition of witness who are examined at before the court have take the own meaning to determine the charge. Hence that I take the depositions of all witnesses for my discussion.
13. CW2 Prashanth examined as PW1.
According to the prosecution PW1 is the eye witnesses to the incident. PW1 deposed he know CW3. In the year 2021, PW1 was working as CCTV surveillance in Pai Company. PW1 identified accused Nos.1 and 2. On 13.11.2021 PW1 and his office colleague had gone to Kalahasti. On the next date i.e., on 14.11.2021 they returned by and reached the K.R.Puram Railway Station. PW1 parked his April scooter in front of the house of his team leader Rajesh. After taking his vehicle from the house of Rajesh 12 SC No. 445/2022 and PW1 was traveling, his friend Abhishek called him over phone and asked to give his vehicle to him as he wanted go to Indiranagar. PW1 handed over his vehicle to Abhishek near Poscos school situated at NGEF. PW1 called his friend CW3 to take him to his house. When PW1 himself and CW3 were traveling in the Yamaha vehicle belonging to CW3, accused No.1 and 2 stopped their vehicle at near 7th Cross junction and asked them to get down from vehicle. Accused No.1 slapped on PW1 cheek and snatched his mobile phone and threatened him by showing a knife, as PW1 was frightened, PW1 stood on the side, at that time two other person speaking Hindi language came to the spot near Vigneshwara stores and both the accused uttered them "idar se baag". When those two persons enquired as to what happened, both the accused persons assaulted them with their hands. Accused No.1 assaulted one of those persons with a knife on his left eyebrow, on his shoulder and stabbed 13 SC No. 445/2022 him on his stomach. Accused No.2 also assaulted the said person with his hands. The said injured person fell down and sustained bleeding injuries. The other person who was speaking in Hindi along with the injured ran away from the spot. When himself and CW3 tried to run away from the spot and when CW3 started his motor cycle both the accused persons threatened CW3 and told him to drop them near to Metro Bar. CW3 dropped both of them near to Metro Bar. PW1 told CW3 and asked the both accused persons to hand over his mobile phone which was snatched by the accused persons. CW3 took his mobile phone and handed over to PW1. PW1 went to his house from the spot. On the next day PW1 came to know that the injured had succumbed to his injuries. The police have enquired him about this incident and have recorded his statement. PW1 have given his statement at before the Magistrate and the said statement is marked at Ex.P1 and his signature at Ex.P1(a). PW1 14 SC No. 445/2022 identified the knife marked, the same knife marked at M.O.1. Even the lengthy cross examination, no probable defence of the accused have elicited at through the mouth of PW1. Further, even in the lengthy cross examination of PW1 nothing of the material that the accused have elicited at through the mouth of PW1, to evidence accused Nos.1 and 2 were not present and available at in the particular place, date and time of the incident. With that being the evidence of PW1 rest in the record as unshaken.
14. CW3 Mohith examined as PW2.
According to the prosecution PW2 also eye witness to the incident. PW2 deposed in the year 2020-21 he was working at Pai International Showroom situated at Koramangala. PW2 know Accused Nos.1 and 2. PW2 deposed he used to meet accused Nos.1 and 2 at Ayyappa temple. PW2 deposed he know CW2. PW2 deposed on 14.11.2021 at about 8.45pm CW2 called PW2 over phone and told him that he has returned 15 SC No. 445/2022 back from Kalahasti and asked PW2 to pick him up. Also informed PW2 that his vehicle was taken by his friend Abhishek and so he asked him to pick him up. CW2 also informed PW2 that he was coming from K.R.Puram towards Viscose School. So PW2 went in his Yamaha motor cycle through Byappanahalli entrance road to pick up CW2. After picking up CW2 when PW2 were traveling and if reached near 2 nd Cross New Byappanahalli area they saw accused No.1 and 2 in between the 2nd cross and 7th cross. Both the accused stopped their vehicle and snatched the phone of CW2 and accused No.1 slapped CW2 on his cheek. Accused No.1 also attempt to stabbed on CW2. At that time on seeing to Hindi speaking people walking along the road accused No.2 called them and told them to run away from the spot. Accused No.1 caught hold of the collar of Hindi language speaking person and stabbed him with a knife on his stomach and near the eye. Accused No.2 also 16 SC No. 445/2022 assaulted the said person with his hand. Due to the assault the said person sustained bleeding injuries and fell to the ground. The other person accompanying him ran away from the spot. On seeing this PW2 started his vehicle and told CW2 to sit on the vehicle. On seeing the same both accused persons came near to vehicle of PW2 and sat on his vehicle and by showing the knife to him they told him to drop them near Metro bar and restaurant, So PW2 dropped them near the said place. The Cw2 also came following us and told PW2 to take back his mobile phone which was in the possession of the accused persons, so PW2 asked the accused persons to hand over the mobile phone and PW2 gave the said mobile phone to CW2. Later himself and CW2 went to their respective houses. On and the next day PW2 came to know that the injured person had used succumbed to the injuries sustained to him due to the assault by they the accused persons. The police have enquired PW2 17 SC No. 445/2022 and recorded and his statement. PW2 identified accused Nos.1 and 2 and also identified M.O.1 knife. PW2 further deposed on 03.12.2014 PW1 had given his statement before the Magistrate. PW2 identified his statement at Ex.P2 and his signature at E.xP2(a). Even the lengthy cross examination, no probable defence of the accused have elicited at through the mouth of PW2. Further, even in the lengthy cross examination of PW2 nothing of the material that the accused have elicited at through the mouth of PW2, to evidence accused Nos.1 and 2 were not present and available at in the particular place, date and time of the incident. With this being the evidence of PW2 rest in the record as unshaken.
15. CW4 Stalin examined as PW3.
According to the prosecution PW3 dropped accused No.1 and 2 at near to the Jayadeva quarters. Further he went and saw the situation with respect to on result of the injury inflicted by accused No.1 to one Hindi language speaking 18 SC No. 445/2022 boy, the same was informed the situation to accused. But, PW3 turned hostile. In despite of the cross examination of the PW3, nothing of the prosecution case elicited at through the mouth of PW3.
16. CW1 Kushal Prasad Panik examined as PW4. As per the deposition of PW4, PW4 knew Boopat Singh Gond, PW4, deceased Boopat Singh Gond and their friends CW13 and CW15 were doing drilling operator work in one company at Byapanahalli. At behind the Godrej company in one room PW4, deceased and CW13 and CW15 were residing jointly. On 14.11.2021 at night 9.00 pm., PW4 and deceased went outside from the room to consume the sprite. That a road very congest and having curves. Wherein that road no shop available to them. When PW4 and deceased were proceeding at in 7th Cross road four number persons group objected PW4 and deceased by asking where you are going? Among them one person of the said group force on PW4 19 SC No. 445/2022 and deceased to leave from that place. Hence PW4 and deceased further proceeded in the same road to hunting of the shop. After 5-10 minutest PW4 and deceased were came back in the same road, when they proceed at before Vigneshwara store, wherein two persons were standing. Out of said two persons one of the person slapped on the cheek of deceased. When questioned the same to said person by deceased and PW4, another one person come and held the shirt collar of deceased in one hand and in another one hand stabbed on chest and abdomen of the deceased Boopat Singh. PW4 became afraid and he ran away from the spot to brought the other his roommates to the place of incident. Out of the two persons, one person was talking in Kannada language. Person who slapped on cheek of the deceased asked to another one person who assaulted on the deceased by means of knife in the word "ಏ ವಿಷ್ಣು ಏನು ಮಾಡುತ್ತಿದ್ದೀಯ". After twenty minutes of the incident PW4 returned to 20 SC No. 445/2022 place of incident along with CW13 and CW15, wherein he finds deceased Boopat Singh fell on the pool of blood. When that time deceased was unconscious and fell on the surface by topsy - turn/facing downward. Thereafter PW4 and his friends called the ambulance and took the deceased Boopat Singh to the Bowring hospital at night 10.30pm. But, the medical officer declared, Boopat Singh was already succumbed with death on the way. Person who assaulted the deceased Boopat Singh by means of hands and iron knife were be the age of 20-30 years. Person who assaulted the deceased with knife, call in his name Vishnu. Thereafter PW4 known it the name of such person as Vishnu. The person who assaulted the deceased on his cheek with the hand called the name of another one person as Vishnu, due for that PW4 knew the name of such person, as Vishnu. Into this respect PW4 lodged the complaint. He identified the same complaint and his signature. The complaint 21 SC No. 445/2022 marked at Ex.P5 and signature of the witness marked at Ex.P5(a). On 15.11.2021 police were rushed to the place of incident, wherein the place of incident the police have drawn the mahazar. PW4 identified the said mahazar and his signature, the same mahazar marked at Ex.P6 and his signature marked at Ex.P6(a). PW4 identified two photographs in pertains to place of incident, the same photographs marked at Ex.P7 and Ex.P8. At before the PW4 police have collected the blood fell in the place of incident with the help of cotton. PW4 identified the same blood soaked cotton and the same marked at M.O.2. On 18.11.2021 the police again called the PW4 to the police station. At in the police station, PW4 identified the two persons. The same two persons identified by PW4 as assailant of the deceased. PW4 identified the same two persons at before police. Police have said the name of accused No.2 to PW4 as Viviyan Richard. PW4 identified accused No.1 at before 22 SC No. 445/2022 the court, who produced at through the Video conference. PW4 identified accused No.2 who is at before the court. With the light facilities, PW4 have identified accused Nos.1 and 2 with accurately in despite the time of the incident was night. PW4 identified the iron knife said to be used for stab on the deceased. The same iron knife already marked at M.O.1. Even the lengthy cross examination, no probable defence of the accused have elicited at through the mouth of PW4. Further, even in the lengthy cross examination of PW4 nothing of the material that the accused have elicited at through the mouth of PW4, to evidence accused Nos.1 and 2 were not present and available at in the particular place, date and time of the incident. With that being the evidence of PW4 rest in the record as unshaken.
17. CW9 Ramesh D examined as PW5.
According to the prosecution PW5 is one of the spot mahazar witness. PW5 deposed on 23 SC No. 445/2022 15.11.2021, Byapanahalli police have rushed to 7th cross, at near to Vigneshwar store, Byapanahalli, wherein that place the police have drawn one spot mahazat in presence of PW5 in relating to one of the murder occurred in prior to that date. PW5 identified said spot mahazar. The same spot mahazar already marked at Ex.P6 and the signature of PW5 marked at Ex.P6(b). Along with PW5, CW8 Ramesh Babu also put his signature to the Ex.P6 mahazar. At the time of drawing of the Ex.P6 mahazar one of the person having Hindi language gave the information to the police. Ex.P6 mahazar have drawn by the police on that day at 10.30 to 11.30am. At before PW5, police have also collected the blood with the help of cotton and it also took the photographs of the place of incident. PW5 identified the two photographs it already marked at Ex.P7 and Ex.P8, as he can be seen at in the said photographs. PW5 identified the said M.O.2 blood collected cotton piece. Even despite 24 SC No. 445/2022 lengthy cross examination, nothing of the material evidence which supported the defence have not been elicited at through the mouth of PW5. With that being the evidence of PW5 rest in the record as unshaken.
18. CW21 examined as PW6. According to the prosecution PW6 who being a police constable he deputed by the investigating officer to patrol the accused. PW6 deposed on 18.11.2021, CW28 deputed CW22, CW23 and PW6 to traced and patrol the accused of the crime No.206/2021 by name Vishnu and VVN Richard. On such deputation PW6 went on to trace the accused. At the time of 5.00pm PW6 and his colleague received the information from the informant, accused were present at near the Jayadeva quarters. Upon such information PW6 and his colleague went to that place. Wherein, informant shown the accused. Hence, PW6 and CW22 and CW23 surrounded the accused and caught hold them. After enquired on them one of 25 SC No. 445/2022 the person said his name as Vishnudevan @ Vishnu S/o Vasudeva, 24 years, Krishnamurthy colony, New Byapanahalli. Another one person said that his name as Viviyan Richard @ Viviyan S/o Thomas, 24 years, B.M.K. colony, New Byapanahalli. Thereafter PW6 and CW22 and CW23 took the same accused persons to the police station and produced at before CW28 on that day 5.30pm along with one report. PW6 identified the said report. Report marked at Ex.P11 and signature of the witness marked at Ex.P11(a). PW6 identified the accused Nos.1 and 2 who present at before the court. Even despite lengthy cross examination, nothing of the material evidence which supported the defence have not been elicited at through the mouth of PW6. Further even in the lengthy cross examination to PW6 no material elicited by the accused with the mouth of PW6, to evidence accused Nos.1 and 2 were not been present at the relevant place and time, in which they have 26 SC No. 445/2022 caught hold by the police. With that being the evidence of PW6 rest in the record as unshaken.
19. CW28 Rajashekar B. Saganur examined as PW7. According to the prosecution PW7 who being the SHO of the police station, he received the complaint and registered the case. PW7 deposed on 14.11.2021 when he was being the SHO of police station at 11.45pm., CW1 appeared at before him and he orally deposed the complaint. The same complaint have been reduced by him into writing by means of the computer. Based on the said complaint PW7 registered the case under crime No.206/2021 and he sent FIR to the court. PW7 identified the said complaint. Said complaint have already marked at Ex.P5. Signature of the PW7 marked at Ex.P5(b). PW7 identified the FIR. The same FIR marked at Ex.P12 and his signature at Ex.P12(a). Because of the reason the offence is one of the heinous in nature PW7 forwarded the case record to CW29 for further investigation. Even despite 27 SC No. 445/2022 lengthy cross examination, nothing of the material evidence which supported the defence have not been elicited at through the mouth of PW7.
20. CW11 Manjunath examined as PW8. According to the prosecution PW8 is the seizer mahazar witness. PW8 identified his signature available at in the seizer mahazar dated 19.11.2021. The same seizer mahazar marked at Ex.P14 and signature of the witness marked at Ex.P14(a). PW8 deposed about three to three and half years back Byapanahalli police have took his signature at in the place, beside the metro pillar, near to sand stand, Byapanahalli. PW8 also deposed on that day at 11.00-11.30am, accused by name Vishnu brought the Byapanahalli police to that place by undertaking to produce one iron knife said to be used for stabbed the deceased. At that place said Vishnu shown iron knife to the police. Iron knife can identified by the PW8. The same iron knife now it already marked at 28 SC No. 445/2022 M.O.1. PW8 have also deposed where at the same time the police have taken the photographs, the same photographs he can identify. Said photographs now marked at Ex.P15 and Ex.P16. PW8 also deposed when he put his signature to Ex.P14 document as a witness another one witness by name Kiran also put the signature. PW8 have been identified the accused No.1, produced at through the Video conference. Even despite lengthy cross examination, nothing of the material evidence which supported the defence have not been elicited at through the mouth of PW8. Even in the lengthy cross examination of PW8 nothing of the material that the accused have elicited at through the mouth of PW8. Further to evidence accused No.1 have not been brought the police and he not produced M.O.1 iron knife at the relevant place and time, no material elicited from the mouth of PW8. With that being the evidence of PW8 rest in the record as unshaken.
29 SC No. 445/202221. CW29 G.N. Venkatachalapati examined as PW9. According to the prosecution PW9 who being a police inspector, he investigated the case and he submitted the charge sheet. On 15.11.2021, PW9 received the case record from CW27 and he perused the case record also he continued the investigation. PW9 rushed to place of incident along with CW1 complainant, CW8 and CW9 and he drawn the spot mahazar from morning to 10.30 to 11.30am, collected the blood fell on the surface with the help of cotton. The same blood soaked cotton that he kept in one plastic box, the same box has sealed with a seal of BPS. Blood soaked cotton subjected into the PF No.97/2021 with intent to sent the same to FSL. PW9 identified the spot mahazar, the same spot mahazar already marked at Ex.P6 and signature of the witness marked at Ex.P6(c). He also identified blood soaked cotton, the same already marked at M.O.2. PW8 identified two photographs which are already marked at Ex.P7 30 SC No. 445/2022 and Ex.P8. Thereafter PW9 deputed the CW21 to CW23 to patrol the accused. For the reason, the relatives of deceased come from out of station and with intention to postpone the inquest for a day, PW9 decided to put the dead body into Curzon and Bowring hospital cold storage, in thereof he deputed his staff for the security. On 16.11.2021, PW9 visited to Lady Curzon and Bowring hospital and at before CW12 to CW14, he drawn an inquest mahazar over the dead body from morning 10.30 to 12.30. At the same time he recorded the statement of CW15. In relating to the inquest mahazar, PW9 have took the photographs, the same photographs he identified and it now marked at Ex.P17 to Ex.P22. Thereafter PW9 sent the dead body to medical officer with the requisition for conducting the post mortem report on it. Thereafter on the same day PW9 recorded the statement of eye witness CW2 and CW3 and also CW7. On 18.11.2021 at 5.30pm, CW21 to CW23 31 SC No. 445/2022 produced the accused Nos.1 and 2 at before him along with one report. The same report identified by PW9, the said report now it already marked at Ex.P11 and signature of the witness now marked at Ex.P11(b). Upon receipt of the accused, PW9 enquired the accused after arrested them as per the law. PW9 recorded the voluntary statement of the accused. On the same day PW9 recorded the further statement of complainant and statement of CW22 and CW23. Accused No.1 voluntarily deposed his statement, he left one iron knife at the mud bund, beside the railway track, New Byapanahalli Lorry stand, the same he will produce once if took him to that place. The same voluntary statement of accused No.1 marked at Ex.P23. Signature of the witness marked at Ex.P23(a). On virtue of Ex.P23 voluntary statement, on 19.11.2021 accused No.1 took PW9 to that particular place where he kept the said iron knife. Into that particular place, PW9 secured the CW10 and CW11 panchas to 32 SC No. 445/2022 that place and wherein that place accused No.1 produced one iron knife from one mud bund near to railway track, beside the lorry stand, new Byapanahalli. The same iron knife seized by PW9 at before the panchas by drawn an seizer mahazar. PW9 identified the said seizer mahazar, said seizer mahazar now it already marked at Ex.P14 and signature of the witness marked at Ex.P14(b). The seized iron knife covered in one white colour cloth and sealed with the seal of BPS. At the time of drawing of Ex.P14 seizer mahazar, PW9 took the photographs in that behalf and he identified the same. The said photographs already marked at Ex.P15 and Ex.P16. PW9 identified the M.O.1 iron knife. After return to the police station the seized iron knife subjected into his police station PF No. 100/2021 and he sent PF to the court. Thereafter PW9 produced the accused at before the court along with remand application. On 21.11.2021 recorded the statement of witness CW21. On 33 SC No. 445/2022 22.11.2021 recorded the statement of witness CW4 to CW6. On 23.11.2021 PW9 took CW2 and CW3 at before learned 10th ACMM, Bengaluru and requested the learned Judge to record the statement of witness CW2 and CW3 U/s 164 of Cr.P.C. In that behalf learned judge recorded the statement of CW2 and CW3 on 03.12.2021. On 23.11.2021 received the post mortem report. At the time of receipt of the PM report, PW9 have also received blood sample of the deceased, Nevy Blue colour jacket, grey colour Baniyan, Grey colour pant, Brown colour belt with Silver colour buckle, brown colour underwear, orange colour tread tied to the hands of deceased from the medical officer. The same are all subjected by PW9 into his station PF No.102/2021. He identified the PM report as it already marked at Ex.P10 and now the signature marked at Ex.P10(a). He identified M.O.3 blood sample of the deceased, M.O.4 Navy Blue colour jacket, M.O.5 grey colour Baniyan, M.O.6 Grey colour 34 SC No. 445/2022 pant, M.O.7 Brown colour belt with Silver colour buckle, M.O.8 brown colour underwear, M.O.9 orange colour tread and same are marked at M.O.3 to M.O.9. On 30.11.2021 PW9 sent all the seized material objects to FSL through CW24. On 01.12.2021 sent requisition to draw sketch of the place of the incident. PW9 identified the said requisition, now it marked at Ex.P24 and signature of the witness marked at Ex.P24(a). On 9.12.2021 received the statement of CW2 and CW3 recorded under section 164 of Cr.P.C. On 22.01.2022 received the rough sketch of the place of incident at through the CW17 and it annexed to the case record. PW9 identified the rough sketch, the same already marked at Ex.P4. Since of the investigation concluded, he submitted the charge sheet to court by reserving his right to filed the FSL report. PW9 identified the accused Nos.1 and 2. Despite of the lengthy cross examination, no such of the single material evidence in support and probablize the defence 35 SC No. 445/2022 of accused have been elicited at through the mouth of PW9. Hence evidence of PW9 rest in the records as unshaken.
22. From the above all deposition of the witness as well as from all the exhibits, the fact whether death of Boopat Singh Gond is be the homicidal, such of the homicidal death does it amount to a murder and that such of the murder caused by accused Nos.1 and 2 with their common intention to committed the murder, have kept open for the discussion. According to the prosecution the cause death of deceased Boopat Singh Gond is an unnatural. In support of the same at in the case record prosecution have placed Ex.P9 inquest mahazar, Ex.P10 PM report along with Ex.P17 to Ex.P22 photographs in pertains to dead body of deceased. On perusal of case record, Ex.P9 inquest mahazar, Ex.P10 post mortem report marked in the case record with the consent of accused counsel. If go through Ex.P9 inquest mahazar and Ex.P10 PM report 36 SC No. 445/2022 one prudent man could say the death of deceased Boopat Singh Gond, is a homicidal death. Further, if go through Ex.P9 inquest mahazar along with Ex.P17 to Ex.P22 photographs one could adjudged the cause death of the deceased is for the reason of anti-partem injuries. In support the cause death of deceased was for the reason of anti-partem injuries, where at Ex.P10 PM report, the medical officer have specifically reasoned the cause for death of deceased. If once go through the Ex.P10 PM report, wherein the Ex.P10 PM report the medical officer specifically opined the cause death of the deceased is due to " Shock and Hemorrhage as a result of multiple injuries sustained". Important to note the death of deceased and cause death of the deceased have not disputed by the accused. With this being of observation that I am of the view the prosecution have successfully proved the cause 37 SC No. 445/2022 death of deceased Boopat Singh Gond was an unnatural and a homicidal.
23. Another limb of the prosecution case is, the homicidal death does it amount to a murder and that such of the murder whether caused by accused Nos.1 and 2 with their common intention to committed the murder. Case of the prosecution is, without of any reason, accused Nos.1 and 2 have committed the murder of deceased Boopat Singh Gond with their common intention to committed the offence. Further case of the prosecution is, on a such a particular day, time and place, CW1 and deceased when they were returning to their room, accused Nos.1 and 2 have wrongfully restrained the CW1 and deceased and to furthrence of their common intention, accused No.2 slapped on the cheek of deceased, when questioned the same by CW1 and deceased, suddenly accused No.1 held the collar of the deceased and stabbed the deceased with M.O.1 38 SC No. 445/2022 iron knife. With that being CW1 lodged Ex.P5 complaint at before PW7 Rajshekar B Saganur. On virtue of Ex.P5 complaint PW7 registered the case under a crime No.206/2021 for the offence punishable U/s 341, 302, 323 r/w 149 IPC and PW7 sent Ex.P12 FIR to the jurisdictional Magistrate. The signature of PW7 available at in Ex.P5 marked at Ex.P5(b) and signature at Ex.P12 marked at Ex.P12(a). No doubt the defence have take their own defence in disputing the theory of prosecution case with respect to launching of the case and in corporation of the various sections of the offence in the FIR, along with language of CW1. According to the defence CW1 is a man who do not know the Kannada language and it accordingly it would not possible to filed Ex.P5 complaint at in the Kannada language. Further, according to defence the police have registered a case in against to the unknown persons and submitted the Ex.P12 FIR to the jurisdictional Magistrate U/s 341, 302, 323 39 SC No. 445/2022 r/w 149 of IPC. Despite the investigating officer filed the charge sheet in against accused Nos.1 and 2 only for the offence punishable U/s 323, 302, 341 r/w 34 of I.P.C. Hence according to the defence there is a lack in part of the prosecution, the same such of the lack in the prosecution ought to be extend to the innocent accused. But, if it go through the deposition of PW7 along with PW4 complainant, though with respect to the fact of language PW4 admitted in his cross examination that he do not know read and write Kannada language, where as in the cross examination itself, PW7 voluntarily stated that he know the language of Hindi and he translated the averments of complaint from Hindi language to Kannada language, to PW4 complainant. The same also could be seen from the bottom of Ex.P5 complaint. Where at the bottom of the Ex.P5 complaint, that it could be seen PW7 make a shara with respect transalation of the language from Hindi to Kannada. To deny 40 SC No. 445/2022 such of the shara admittedly no cross examination done by the accused. further in to that respect even no single suggestion made by the accused to PW7. With that being one prudent man could say the contention of the accused with respect to non-knowing of language to PW4 complainant not holds any of the water. With this being of observation one prudent man could say, PW4 complainant who being known and perused crime at first instance that he filed the Ex.P5 complaint.
24. Based on register of the Ex.P12 FIR, PW9 investigating officer drawn the spot mahazar at the place of incident. According the prosecution at near to Vigneshwar store, New Byapanahalli as PW4 complainant point out the place of incident, PW9 drawn Ex.P9 spot mahazar at before PW5 Ramesh and CW8 Ramesh Babu, panchas. Further, into that behalf PW9 took photographs in that respect at Ex.P7 and Ex.P8 photographs. According to the 41 SC No. 445/2022 prosecution at before PW5 and CW8, PW9 investigating officer drawn the Ex.P6 spot mahazar and also collected the blood fell on the surface by means of cotton. The defence even have the lengthy cross examination to PW5 as well as PW9 into respect of Ex.P6 spot mahazar and Ex.P7 and Ex.P8 photographs as well as M.O.2 blood soaked cotton, no material evidence it elicited to deny drawn of Ex.P6 spot mahazar, Ex.P7 and Ex.P8 photographs as well as M.O.2 blood soaked cotton, collected by the PW9 investigating officer. Inspite of report at Ex.P13 FSL report "blood sample sent in item No.3 was disintegrated hence origin and group could not be determined", the prosecution have also successfully proved the contents of Ex.P6 spot mahazar, existence and genuinity of Ex.P7 and Ex.P8 photographs as well as M.O.2 blood soaked cotton.
25. Case of the prosecution is, on the particular day, time and at place accused Nos.1 42 SC No. 445/2022 and 2 have the intention committed the crime and for their furtherance of common intention, accused Nos.1 and 2 have committed the murder of deceased Boopat Singh Gond. To substantiated the same theory of the prosecution, the prosecution examined PW1 and PW2 are the eye witnesses to the incident and PW4 be the complainant of the complaint. According to the deposition of PW1 and PW2, on such particular day, time and at the place and at before PW1 and PW2, accused Nos.1 and 2 in furtherance of their common intention to killed the deceased, accused Nos.1 and 2 wrongfully restrained PW4 complainant and deceased. Further, accused No.2 slapped on the cheek of deceased and accused No.1 stabbed the deceased by means of M.O.1 knife. As such according to the prosecution the deposition of PW1 and PW2 eye witness and PW4 complainant, its more enough to convicted the accused. In its contrary it is of the defence, basically the case was registered to the unknown 43 SC No. 445/2022 persons for the offence of common object and not to for the offence of common intention. As the alleged offence taken place at in the night time and for the reason no proper investigation taken by the investigating officer to find out the real culprit, the accused are entitled for benefit of doubt. Further, it also case of defence, since the case basically registered in against unknown person as to find out real culprit of the crime, it ought to need for conducting the test identification parade. In support of the same learned counsel for accused relied on judgment reported in;
1. Tukesh Singh and Others Versus - State of Chattisgarh -2025 SCC OnLine SC 1110
21. In a case where there are eyewitnesses, one situation can be that the eyewitness knew the accused before the incident. The eyewitnesses must identify the accused sitting in the dock as the same accused whom they had seen committing the crime. Another situation can be that the eyewitness did not know the accused before the incident. In the normal course, in case of the second situation, it is necessary to hold a Test Identification Parade. If it is not held and if the evidence of the eyewitness is recorded after a few years, the identification of such an accused by the eyewitness in the Court becomes vulnerable. Identification of the accused 44 SC No. 445/2022 sitting in the Court by the eyewitness is of utmost importance. For example, if an eyewitness states in his deposition that "he had seen A, B and C killing X and he knew A, B and C". Such a statement in the examination- in-chief is not sufficient to link the same to the accused. The eyewitness must identify the accused A, B and C in the Court. Unless this is done, the prosecution cannot establish that the accused are the same persons who are named by the eyewitness in his deposition. If an eyewitness states that "he had seen one accused assaulting the deceased with a sword, another accused assaulting the deceased with a stick and another accused holding the deceased to enable other accused to assault the deceased." In such a case, the eyewitness must identify the accused in the open Court who, according to him, had assaulted the accused with a stick, who had assaulted the deceased with a sword and who was holding the deceased. Unless the eyewitnesses identify the accused present in the Court, it cannot be said that, based on the testimony of the eyewitnesses, the guilt of the accused has been proved. (Para 21)
2. P. Sasikumar Verses State (2024) 8 SCC 600
21. It is well settled that TIP is only a part of police investigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evidence, or what can be called evidence is only dock identification that is identification made by witness in court during trial. This identification has been made in court by PW 1 and PW 5. The High Court rightly dismisses the identification made by PW 1 for the reason that the appellant i.e. Accused 2 was a stranger to PW 1 and PW 1 had seen the appellant for the first time when he was wearing a monkey cap, and in the absence of TIP to admit the identification by PW 1 made for the first time in the court was not proper. (Para.21) 45 SC No. 445/2022
3. Jadunath Singh and Another Versus The State of U.P 1970 (3) SCC 518
15. It seems to us that it has been clearly laid down by this Court, in Parkash Chand Sogani v. State of Rajasthan, that the absence of test identification in all cases is not fatal and if the accused person is well-known by sight it would be waste of time to put him up for identification. Of course if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter the prosecution should hold an identification parade specially if an accused says that the alleged eyewitnesses did not know him previously. It may be that there is no express provision in the Code of Criminal Procedure enabling an accused to insist on identification parade but if the accused does make an application and that application is turned down and it transpires during the course of the trial that the witnesses did not know the accused previously, as pointed out above the prosecution will, unless there is some other evidence, run the risk of losing the case on this point. (Para.15)
4. Mohd. Abdul Hafeez Versus State of Andra Pradesh (1983) 1 SCC 143
4. Turning to the first piece of evidence against the present appellant that he was identified by victim PW 1 S. Satyanarayana as the person who was sitting in the auto rickshaw driven by Accused 4 when the auto rickshaw pulled near the spot where Accused 2 and 3 had held Satyanarayana, it must be stated that this identification is innocuous and does not furnish any evidence against the present appellant. In Ex P-1 the first information report, informant Satyanarayana did not give the name of the present appellant and for that matter of none of the accused. We would not have attached much 46 SC No. 445/2022 importance to the omission of non-mentioning the names of the accused in the FIR Ex. P-1 because it is distinctly possible that the victim S. Satyanarayana was caught unawares and may not be knowing the accused prior to the date of the incident and, therefore, may not be able to give their names but he could have at least given some description of the persons who robbed him. At any rate, he could have given some description of the present appellant who was supposed to be sitting next to him and who thrust his hand in his pocket and removed Rs
100. The total absence of any such description which would have provided a yardstick to evaluate the identification of the present appellant at a later date by victim Satyanarayana would render his later identification weak but that is not the only error. Ex. P-1 clearly shows that the victim Satyanarayana did not know the names of the persons who robbed him. In such a situation ordinarily after the accused were arrested the test identification parade should have been held. It is admitted that no such identification parade was held. It is only when the victim Satyanarayana came to give evidence in the Court and the four accused were sitting in the Court that he identified them as the miscreants. Incident occurred on December 9, 1978. Evidence of Satyanarayana was recorded in the Court on April 21, 1979. There was thus a lapse of more than four months during which period it is not possible to believe that victim Satyanarayana had no occasion to see the accused. Such identification in the circumstances of the case would hardly furnish any evidence against the present appellant. (Para.4)
5. Criminal Trail Guidelines Regarding Inadequacies and Deficiencies Versus State of Andhra Pradesh and Others (2021) 10 SCC 598 47 SC No. 445/2022
(v) Omnibus marking of the entire statement under section 161 and 164 CrPC shall not be done.
6. M. Abbas Versus State of Kerala (2001) 10 SCC 103 Where an accused sets up a defence or offers an explanation, it is well settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities. On the prosecution's own showing, in this case, that onus can be said to have been duly discharged by the appellant, more particularly, when the prosecution did not lead any evidence to show as to who made the payment to Kamalasanan who had removed the bump from the road, which bump was otherwise required to be removed by PW 2 for getting refund of his earnest money and security. Maybe, the allegation that the appellant accepted the amount as bribe to process his refund application is true but the court cannot convict an accused only on such probability or suspicion, howsoever strong it may be. "Between may be true and must be true, there is a long distance to travel" and in this case the prosecution has failed to travel that distance through any unimpeachable evidence. The case of the prosecution has not been established beyond a reasonable doubt. (Para.10)
7. Kali Ram Versus State of Himachal Pradesh (1973) 2 SCC 808
23. Observations in a recent decision of this of Court, Shivaji Sahabrao Bobade v. State Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033] to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the 48 SC No. 445/2022 cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal. (Para.23)
8. State of U.P. Versus Krishna Gopal and Another (1988) 4 SCC 302 Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair 49 SC No. 445/2022 doubt based upon reason and common sense. It must grow out of the evidence in the case. (Para.25) Hence according to the defence the lapses in the investigation, the same lapses in the prosecution case extended to the accused.
26. In its contrary the judgment of the Hon'ble Supreme Court reported in various of the judgments, in parallel to the case on hand that I referred for my convenience;
1. 2025 AIR SC 599) - in between Baban Shankar Daphal And Others Vs - The State Of Maharashtra A. Evidence Act, 1872 -Appreciation of evidence-The benefit of the doubt -The benefit of the doubt must be based on rational and cogent grounds. Mere conjectures or hypothetical inconsistencies cannot form the basis for acquittal when the evidence, viewed as a whole, points to the guilt of the accused.
B. Evidence Act, 1872 -Appreciation of evidence -Eyewitness testimony- Discrepancies/ Inconsistencies - Effect of minor inconsistencies Role of court Credibility Ocular evidence is generally considered best unless there are reasons to doubt it Minor contradictions or inconsistencies do not necessarily render testimony unreliable as long as core facts remain intact Court's role is to discern truth by considering evidence in totality, not isolating. inconsistencies to discredit entire narrative Minor discrepancies 50 SC No. 445/2022 in eyewitness accounts (e.g., variations in sequence of events, number of blows, or failing to mention injury to self while trying to protect victim) not deemed material enough to render testimony unreliable or unbelievable when core facts consistent and corroborated Overemphasizing trivial inconsistencies is an error.
2. In another one judgment (2009) CriLJ 3727: in between - KIRENDER SARKAR AND OTHERS - Appellant Vs. STATE OF ASSAM Respondent - Criminal Appeal No. 845 of 2009 (Arising out of SLIP (Criminal) 4145 of 2007) Penal Code, 1860 (IPC) Sections 147, 440, 323 and 302 Murder, rioting. house trespass and hurt Appeals dismissed by High Court Accused persons committed criminal trespass into school and tried to give lesson in classes and some outsider accused persons being armed with iron-rod, spear, lathi and fire-arm gheraoed school and when accused teachers entered into school, outsider anti-social elements committed criminal trespass into school and started assaulting clerk Clerk was taken away after assaulting him and he was kept confined - Non-naming of one of few of accused persons in FIR is no reason to disbelieve testimony of crucial witnesses - Evidence of P.W. 1 clear and cogent Appeal dismissed.
Criminal Procedure Code, 1973 (CrPC) Section 154 FIR FIR is not supposed to be an encyclopedia of entire events and cannot contain minutest details of events When essential material facts are disclosed in FIR that is sufficient FIR is not substantive evidence and cannot be used for contradicting testimony of eye-witnesses except that may be used for purpose of contradicting maker of report Non-naming of one or few of accused 51 SC No. 445/2022 persons in FIR is no reason to disbelieve testimony of crucial witnesses.
3. (2018) 10 SCJ 342 -in between -RAJU MANJHI - Appellant -Vs. STATE OF BIHAR Respondent - Criminal Appeal No. 1333 of 2009 Criminal Procedure Code, 1973-Section 162- Test Identification Parade-Evidentiary value- Identification parade belongs to stage of investigation-Purpose of identification test is only to help investigating agency as to whether investigation into offence is proceeding in a right direction or not-There is no provision in the Code which obliges investigating agency to hold or confers right upon accused to claim test identification parade They do not constitute substantive evidence-Failure to hold test identification parade would not make inadmissible evidence of identification in Court-Weight to be attached to such identification should be a matter for Courts of fact-In appropriate cases it may accept evidence of identification even without insisting on corroboration.
Penal Code, 1860-Section 396-Evidence Act, 1872-Section 27-Dacoity with murder-Life sentence-Confessional statement of appellant stands and satisfies test of Section 27 of Evidence Act-Fact that no prosecution witness has identified accused-appellant does not mean that prosecution case against accused is on false footing-Identification tests do not constitute substantive evidence-Non- identification of appellant by any prosecution witness would not vitiate prosecution case- Proving motive is not an important factor when abundant direct evidence is available on record-Appeal dismissed.
52 SC No. 445/20224. (2021) 3 Crimes 254: -in between LALA ANURAG PRAKASH AASRE - Appellant Vs. THE STATE OF MAHARASHTRA - Respondent Penal Code, 1860 (IPC) - Sections 302, 120B, 147, 148 and 324- Murder Unlawful assembly Common Object Assault with sharp and dangerous weapons Counsel for appellant argue that prosecution had not arranged for a Test Identification Parade (TIP)-Test Identification Parade (TIP) was unnecessary in the present case as the identity of the appellant was known to the witnesses and he was specifically identified by PW1, and PW2 as the person who wielded the sword and inflicted the injuries in the face of appellant's such identification by name in the testimony of eye witnesses, it can be safely concluded that the failure to conduct the TIP for the appellant will not vitiate his conviction Conviction of the appellant u/S 302, 1208,
147. 148 and Section 324 of the Indian Penal Code was upheld Appeal dismissed.
5. (2006) CriLJ 4033 (2006) -in between S.SUDERSHAN REDDY AND OTHERS - Vs. STATE OF ANDHRA PRADESH -
Evidence Act, 1872-Section 3 - Relationship Cannot be a factor to affect credibility of witness Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
Penal Code, 1860 (IPC) - Section 300 Interested witness Relationship Cannot be a factor to affect credibility of witness 53 SC No. 445/2022 Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
Penal Code, 1860 (IPC) Section 302 Murder Death by hacking and stabbing deceased with sickles and knives Doctor who conducted post- mortem examination observed that there were number of cut and stab injuries on the body of deceased Plea that occurrence could not be witnessed in dim light when incident took place at 7.00 p.m. Evidence of eye-witness is categorical that he saw the attack in the light of scooter head light Non-mention of source of light in FIR is inconsequential High Court concurred with the findings of trial Court and upheld conviction and sentence of life imprisonment - Appeal dismissed.
Evidence Act, 1872 - Section 9 Identification of accused Non-mention of source of light in FIR inconsequential Evidence of eye-witness is categorical that he saw the attack in the light of scooter head light.
Criminal Procedure Code, 1973 (CrPC) - Section 154 FIR FIR is not an encyclopaedia of facts concerning the crime Non-mention of minute details of occurrence does not make prosecution case doubtful - Stress must be laid on prompt lodging of FIR.
6. (2021) 12 SCALE 339 -in between -GOUTAM JOARDAR - Appellant - Vs. STATE OF WEST BENGAL Respondent 54 SC No. 445/2022 Criminal Procedure Code, 1973 (CrPC) Sections 161 and 164 Delay in recording statements of eye witnesses It is true that there was some delay in recording the statements of the concerned eye-witnesses but mere factum of delay by itself cannot result in rejection of their testimonies If the witnesses felt terrorised and frightened and did not come forward for some time, the delay in recording their statements stood adequately explained. Nothing has been brought on record to suggest that during the interregnum, the witnesses were carrying on their ordinary pursuits.
7. SUPREME COURT OF INDIA - MOTIRAM GAMAN PAWAR - Appellant Vs. STATE OF MAHARASHTRA Respondent Decided on: 07-02-2002 "the bloodstained clothes of the appellant and the knife recovered at his instance has not been proved to be having the bloodstains of group 'B' the blood group of the deceased. The report of the forensic science laboratory indicated that the clothes of the appellant and the knife recovered at his instance were having human blood, the group of which could not be ascertained on account of disintegration of the blood spots. Merely because the blood group on the clothes and the blood on the knife was not ascertained, could not be a reason to hold that any chain of the circumstance was missing, as argued. Only because the blood group could not be ascertained, the recovery made at the instance of the accused, cannot be discarded as held by this Court in State of Rajasthan Vs. Teja Ram and Others, and State through Superintendent of Police, CBI/SIT Vs. Nalini and Others"
55 SC No. 445/20228. (2004) 2 Crimes 2: - -in between DHANAJ SINGH @ SHERA AND OTHERS Vs. STATE OF PUNJAB Defective Criminal Procedure Code, 1973 (CrPC) Section 156 investigation Effect and duty of Court In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. If the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the Courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
9. (2011) 2 HimLR 662 -in between SUNIL KUMAR @MONU - Vs. STATE OF H.P. -
10. STATE OF U.P. - Appellant Vs. SMT. NOORIE ALIAS NOOR JAHAN AND OTHERS - Respondent Criminal Appeal No. 183 of 1986.
Evidence Act, 1872 Section 3 - Credibility of witnesses Has to be tested by referring to evidence of witness and assessing as to how he has fared in examination and what impression his testimony make in the context of the case at hand. Entering into realm of conjecture and speculation not to be resorted to. Cross eve Evidence Act, 1872 Section 3 Appreciation of evidence - Testimony of witnesses Court 56 SC No. 445/2022 to adhere to two principles, (1) whether it was possible for witnesses to be present, and (2) whether there is anything inherently improbable or unreliable.
11. KALABHAI HAMIRBHAI KACHHOT - Vs. STATE OF GUJARAT- in Criminal Appeal No.216 of 2015 - the Hon'ble Supreme Court has held.
A. Penal Code, 1860 (IPC) Section 302 read with 34 Murder Common intention - Evidence - Omissions like not seizing the motorcycle and also not seizing the gold chain of one of the victims, by itself, is no ground to discredit the testimony of key witnesses who were examined on behalf of the prosecution, whose say is consistent, natural and trustworthy There was a quarrel between the deceased about six months earlier to the incident and one accused regarding payment of rent of tractor - There was animosity between them which is the motive for the crime Prosecution has established, beyond reasonable doubt, that all the accused have committed the offence with a common intention and participated in committing the crime Trial court as well as the High Court has not committed any error in law or on facts, as such, the same are required to be upheld by this Court Appeal dismissed.
B. Penal Code, 1860 (IPC) Section 302 read with 34 Murder Common intention Testimony of witness Only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the 57 SC No. 445/2022 witness Omission in the police statement by itself would not necessarily render the testimony of witness unreliable When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution hecomes doubtful and not otherwise Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person.
C. Penal Code, 1860 (IPC) Section 302 read with 34 Murder Common intention Testimony of witness - If there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness.
27. Important to note under criminal law jurisprudence the FIR is neither substantive piece of evidence nor encyclopedia. Further, it also important to note test identification parade too not be a substantive piece of evidence. Based on the same settle principles of law, the present controversy taken into my consideration. If it assimilated the controversy in the light of all judgments herein above quoted, the deposition of PW1 and PW2 and PW4 have taken for my 58 SC No. 445/2022 consideration. Admittedly the case registered in against accused based on the direct evidence. The prosecution examined the PW1 and PW2 as eye witness to the incident. The deposition of PW1 and PW2 have consistently evidence availability of accused Nos.1 and 2, PW1 and PW2 as well as PW4 complainant and deceased at in the particular place, date and time. Further deposition of PW1 and PW2 have categorically available in against to accused Nos.1 and 2 with respect to wrongful restrainment of PW4, deceased Boopat Singh Gond as well as PW1 and PW2. Further from the deposition of PW1 and PW2 it could also evidence accused No.2 slapped on the cheek of deceased and accused No.1 stabbed the deceased with M.O.1 iron knife. Also if once go through the deposition of PW1 and PW2, wherein the deposition of PW1 and PW2, PW1 and PW2 consistently deposed the existence, availability of both accused and PW4 complainant and deceased at in the particular 59 SC No. 445/2022 place, date and time. As such the core substance of the prosecution case, accused Nos.1 and 2 wrongfully restrained PW4 complainant and deceased, to furtherance of their common intention to committed the murder of deceased, accused No.2 slapped on the cheek of deceased and accused No.1 stabbed the deceased with intention of causing death of the human being. The same such of case theory of the prosecution have also could be seen from the deposition of PW4 complainant. From such of the corroborated testimony of eye witnesses PW1 and PW2 and PW4 one could adjudged the accused have committed the present offence to their furtherance of the common intention. To deny such of the case of prosecution, accused Nos.1 and 2 have no such of the intention to killed deceased, no probable defence of the accused elicited either at through the mouth of PW1 and PW2 or at through the mouth of PW4. In its contrary, if it go through the cross examination 60 SC No. 445/2022 portion of PW1, in the cross examination of PW1 the accused himself elicited at through the mouth of PW1 and PW2 as to how know about accused No.1 prior to the date of incident. Further, even if it go through the same cross examination portion of PW1 and PW2, the accused counsel he also go one extent to suggest the suggestion to PW1, as PW1 known accused No.1 and on the reason of enmity in between accused No.1 and PW1, PW1 deposed false evidence in against the accused No.1. But, for what reason enmity has been grown up in between PW1 and accused No.1, have not been demonstrated by the defence. With that being the defence of the accused rest in the case record as self surviving. On the other hand at in the defence itself that it can saw the answer to the question put by the defence, with respect to well knowness of the accused to PW1 and PW2 and in respect to the fact PW1 and PW2 have directly saw the act of accused with the 61 SC No. 445/2022 help of street light as per Ex.P4(a). Further the same are all the kind of defence of the accused have make it to decline to holds the water on defence, in the light of judgment relied by the prosecution. Hence, the above all the argument of accused not holds any of the water. Further, the judgment relied by the accused have it make it differentiated with the facts and circumstance of the present case, the same are all the judgments have also not come to aid of the defence. Therefore with due respect upon the same judgments, ratio of the same judgments are not applied to the case on hand. On the other hand, from the deposition of PW1, PW2 and PW4 have it to be seen the case of prosecution and same such of the prosecution case have been inspired the confidence from the deposition of PW1, PW2 and PW4. As the testimony of PW1 and PW2 eye witnesses to the incident have corroborated the testimony of PW4 complainant the same corroborated testimony un-hearingly 62 SC No. 445/2022 point out the commission of the offence by accused Nos.1 and 2. The same such of the corroborated testimony available in the case record as unshaken, make it to believe the case of prosecution by holding the prosecution have proved its case beyond all reasonable doubt.
28. Further, from the deposition of PW9 it could be seen, PW9 being the investigating officer he deputed PW6, CW-22 and CW23 to patrol the accused of this crime. On such of deputation of PW6, CW22 and CW23, PW6, CW22 and CW23 have produced the accused No.1 and 2 along with Ex.P11 report. The signature of PW6 marked at Ex.P11(a). On receipt of Accused No.1 and 2 by PW9, PW9 arrested the accused and he recorded the voluntary statement of accused No.1 at Ex.P23. Signature of PW9 marked at Ex.P23(a). On virtue of Ex.P23 voluntary statement, accused No.1 took PW9 to the place that he left MO-1 Iron knife.
63 SC No. 445/2022Where in that a particular place accused No.1 produced MO-1 iron knife said to be used for commission of the offence. On virtue of discovery of MO-1 iron knife, PW9 seized the same by drawn an Ex.P6 seizure mahazar at before PW5 Ramesh.D and CW-8 Ramesh Babu. Signature of PW-6 have marked at Ex.P6(b) and signature of PW9 have marked at Ex.P6(c). With respect to seizure of MO-1 iron knife, PW9 also took the photographs in that behalf. The same photographs have also marked at Ex.P7 and Ex.P8. Even if it go through the cross examination portion of PW6 and PW9, no such of the material elicited to shaken the factum seizure of MO-1 iron knife upon the discovery statement of accused No.1 at Ex.P23 from the particular place of seizure of MO-1 iron knife, drawing up of Ex.P6 seizure mahazar. No doubt defence counsel have disputed the process and procedure with respect to seizure of MO-1 iron knife and drawing up of Ex.P6 seizure mahazar 64 SC No. 445/2022 at during his argument. To substantiated the same line of the argument of the defence counsel have not been supported by any of the probable material defence as he argued at during the course of cross examination of the PW6 or at through the mouth of PW9. Further, mere on the reason for defective investigation one should not to be spare from the legal punishment. The same above all of my reason do supported by the law of Hon'ble Supreme court, reported in 2004 Crl.LJ decided in between Dhanraj Singh @ Sheera and other V/s State of Punjab. With this being of observation that I am of the view the prosecution has successfully proved the factum deposed to discovered the information received from the accused, beyond all reasonable doubt.
29. As to know the fact whether the accused No.1 and 2 have the common intention in furtherance to commit the murder of deceased, again the deposition of eye witness and complainant have take its own meaning.
65 SC No. 445/2022According to the prosecution case, accused No.1 and 2 in furtherance of their common intention, accused No.2 slapped on the cheek of the deceased and on resist the same by deceased and CW-4 complainant, accused No.1 stabbed the deceased by means of MO-1. The same set of theory of the prosecution could also be seen from the deposition of eye witness PW1 and PW2 and from the deposition of complainant PW4. The same testimony of eye witness of the incident viz., PW1 and PW2 and the testimony of CW4 complainant rest in the case record as unshaken in despite of the lengthy cross examination by the accused. Further, even it gone through the cross examination portion of eye witness viz., PW1 and PW2 and testimony of PW4 complainant, no probable defence of the accused elicited, i.e., no accused have not been available at in the place of incident at on the particular date and time and accused have not committed any of the offence as alleged. This 66 SC No. 445/2022 being of availability of the material evidence on record, one prudent man could say the prosecution have proved their case beyond all reasonable doubt. Further, as to make testified whether in between the accused Nos.1 and 2 have the common intention to committed the crime, again the deposition eye witness viz., PW1 and PW2 and complainant PW4 have take its own meaning. From the deposition of eye witness PW1 and PW2 and the deposition of complainant PW4 as it could be consistently seen both accused No.1 and 2 wrongfully restrained deceased and PW4 complainant as well as PW1 and PW2 in that particular place, time and date. Further, from the deposition of eye witness PW1 and PW2 and complainant PW4 it could also be consistently seen, accused No.2 slapped on the cheek of deceased Boopat Singh Gond. The same such of consistent evidence placed by the prosecution at through eye witness PW1 and PW2 and complainant PW4 67 SC No. 445/2022 have make it inspire the confidence over the case of prosecution without of any single doubt. Further, if suppose no such of the prior meeting in between accused Nos.1 and 2 to committed an offence, then how accused No.2 slapped the deceased and he called to his co-accused as "ಏ ವಿಷ್ಣು ಏನು ಮಾಡುತ್ತಿದ್ದೀಯ" and wrongfully restrained the deceased. The same such of the conjointness act of the accused No.2 have not been segregated from the charge made in against accused No.1, by eliciting any of the material evidence at through the any of prosecution witness. With this being of observation, that I am of the view in between accused No.1 and 2 common intention have been shared among themselves for the purpose to committed the criminal act. With this being of reason the prosecution have successfully proved its case beyond all reasonable doubt accused Nos.1 and 2 have the common intention to commit the crime and with such of the common intention accused 68 SC No. 445/2022 Nos.1 and 2 have conjointly committed the murder of deceased Boopat Singh Gond. From the above all observation that I am of the view the prosecution prove its case beyond all reasonable doubt, the death of deceased Boopat Singh Gond is homicidal and such of the homicidal death tant amount to an murder and such of the murder inflicted by accused Nos.1 and 2 by sharing their common intention among themselves. Accordingly, I answered Points No.1 to 3 in the Affirmative.
30. Point No.4:- In view of the reasons discussed in Point Nos.1 to 3, I proceed to pass the following:
O R D E R Acting under Section 235 (2) of Cr.P.C., the accused Nos. 1 and 2 are hereby convicted in respect of the offences punishable under Sections 341, 323, 302 r/w 34 of IPC.69 SC No. 445/2022
Respondent Byapanahalli police are directed to take accused No.2 Vivian Richard @ Vivian, S/o G.Thomas, into Custody.
(Dictated to the Stenographer, typed by her directly on computer, printout taken thereof is corrected, signed and then pronounced by me in Open Court on this the 16th day of September, 2025).
sd/-
(ONKARAPPA R) C/c XXVI Addl. City Civil & Sessions Judge, Bengaluru City.
ORDER ON SENTENCE
31. Heard arguments of learned Public Prosecutor and counsel for the accused Nos. 1 and 2 on quantum of sentence to be imposed on the convicted accused Nos. 1 and 2.
32. The learned counsel for the accused Nos. 1 Sri. N.M, and 2 Smt. SBK advocate have argued that the accused Nos.1 and 2 have no criminal antecedents and they were not previously convicted. Accused Nos. 1 and 2 are be the poor, accused Nos.1 and 2 are only the bread earner 70 SC No. 445/2022 of their family being sole sons to their parents. Inter alia, on these grounds, the learned counsel for accused Nos.1 and 2 prays for taking lenient view in imposing sentence.
33. Whereas, the learned Public Prosecutor has argued, since the guilt against accused Nos.1 and 2 have unequivocally established, accused Nos.1 and 2 not entitled for any of leniency as argued by the defence counsels. Accused Nos.1 and 2 are being not to law abiding citizen they were committed the heinous offence at in the public with intent to make apprehension at in the mind of public. As accused Nos.1 and 2 fearlessly committed heinous offence at in the public, accused Nos.1 and 2 are not entitled any sort of leniency under the law. In view of that he prays for, accused Nos.1 and 2 should be punished with maximum punishment provided under Sections 341, 323, 302 r/w 34 of IPC.
34. It considered the submission of the learned Public Prosecutor and the learned counsel for accused Nos.1 and 2 in the light of penology of law.
35. Important to note, case on hand is not a rarest of the rare case. Accordingly, in my considered view, these 71 SC No. 445/2022 sentences will maintain the equilibrium between offences committed and sentences to be imposed. Hence, I proceed to pass the following: -
ORDER ON SENTENCE Accused No.1 Vishnudevan @ Vishnu @ Pochi and accused No.2 Vivian Richard @ Viviyan are hereby sentenced to undergo imprisonment for life which shall mean imprisonment for reminder of accused Nos.1 and 2 their natural life and imposed fine of Rs.33,500/- each for an offence punishable under section 302 r/w 34 of IPC; in default of payment of fine, the accused Nos. 1 and 2 shall further undergo Simple imprisonment for six months.
Accused No.1 Vishnudevan @ Vishnu @ Pochi and accused No.2 Vivian Richard @ Viviyan are hereby sentenced to undergo simple imprisonment for one month and to pay fine of Rs.500/- each for an offence punishable under section 341 r/w 34 of IPC; in default of payment of fine, the accused 72 SC No. 445/2022 Nos. 1 and 2 shall further undergo simple imprisonment, for seven days.
Accused No.1 Vishnudevan @ Vishnu @ Pochi and accused No.2 Vivian Richard @ Viviyan are hereby sentenced to undergo simple imprisonment for one year and to pay fine of Rs.1,000/- each for an offence punishable under section 323 r/w 34 of IPC; in default of payment of fine, the accused Nos. 1 and 2 shall further undergo Simple imprisonment for two months.
Acting under section 31 of CrPC, the all substantive sentence of imprisonment shall run concurrently.
Acting under section 357(1) of CrPC, hereby ordered, out of the total fine amount of Rs.70,000/-, a sum of Rs.60,000/- shall be paid to dependent of the deceased by way of compensation and remaining fine amount of Rs. 10,000/- shall be paid to Exchequer of the State.
It is hereby made clear that even if the accused undergoes the default sentence, the 73 SC No. 445/2022 accused will not be absolved of their liability to pay fine amount in view of the provisos to Sub- Section (1) of Sec.421 of Cr.P.C. The substantive sentences of imprisonment shall run concurrently. M.Os.1 to 9 being worthless, are ordered to be destroyed on completion of the appeal period and in the event of preferring the appeal the same shall be destroyed only on the disposal of the appeal.
Acting under section 363(1) CrPC, office is hereby directed to furnish copy of this judgment to the convicted accused Nos.1 and 2, at free of cost. However, compensation awarded to the family of the deceased is too meager and inadequate. Hence by Acting Under Section 357A of Cr.P.C. hereby directed the District Legal Service authorities for determination of the adequate compensation to the deceased family for their dependent rehabilitation. District Legal Service Authority should decide the quantum of 74 SC No. 445/2022 compensation and award the same to rehabilitation of the dependent of the deceased.
In view of conviction of the accused No.2, his bail bonds stands canceled.
Hereby directed the office to send copy of judgment along with all documents of the case record at before the DLSA as to determine compensation.
Send the copy of this Judgment and sentence to the District Magistrate concerned as per Section 365 of Cr.P.C.
(Dictated to the Stenographer, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in the open Court this the 16th day of September, 2025) sd/-
(ONKARAPPA R), C/c XXVI Addl. City Civil & Sessions Judge, Bengaluru City.
75 SC No. 445/2022ANNEXURE List of witnesses examined on behalf of prosecution:-
P.W.1 Prashanth P.W.2 Mohoth P.W.3 Stalin P.W.4 Kushal Prasad P P.W.5 Ramesh D P.W.6 G.Tippeswamy P.W.7 Rajashekhar P.W.8 Manjunath P.W.9 G.,N. Venkatchalapati
List of exhibits marked on behalf of prosecution :-
Ex.P1 Statement of PW1
Ex.P1(a) Signature of PW1
Ex.P2 Statement of PW2
Ex.P2(a) Signature of PW2
Ex.P3 Statement of PW3
Ex.P3(a) Signature of PW3
Ex.P4 Sketch
Ex.P4(a) Signature of PW1
Ex.P5 Complaint
Ex.P5(a) Signature of PW4
Ex.P5(b) Signature of PW7
Ex.P6 Spot mahazar
Ex.P6(a) Signature of PW4
Ex.P6(b) Signature of PW5
76 SC No. 445/2022
Ex.P6(c) Signature of PW8
Ex.P7 and 8 Photos
Ex.P9 Inquest report
Ex.P10 Post mortem report
Ex.P11 Report of PW6
Ex.P11(a) Signature of PW6
Ex.P11(b) Signature of PW9
Ex.P12 FIR
Ex.P12(a) Signature of PW7
Ex.P13 FSL Report
Ex.P14 Seizer mahazar
Ex.P14(a) Signature of PW8
Ex.P14(a) Signature of PW9
Ex.P15-16 Photos
Ex.P17-22 Photos
Ex.P23 Accused No.1 statement
Ex.P23(a) Signature of PW9
Ex.P24 Requisition to FSL
Ex.P24(a) Signature of PW9
List of material objects marked on behalf of prosecution:-
M.O.1 - Knife
M.O.2 - Blood stained cotton
M.O.3 - Blood sample
M.O.4 - Blue colour jacket
M.O.5 - Grey colour Baniyan
M.O.6 - Grey colour Pant
M.O.7 - Brown colour belt
77 SC No. 445/2022
M.O.8 - Maroon colour underwear
M.O.9 - Hand Tag.
List of witnesses examined on behalf of defence :- NIL List of exhibits marked on behalf of defence :- NIL List of material objects marked on behalf of defence :- NIL sd/-
(ONKARAPPA R), C/c XXVI Addl. City Civil & Sessions Judge, Bengaluru City.