Bangalore District Court
The State By vs J.Srinivas on 7 August, 2021
SC 593/2017
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU.
(CCH-20)
Present:
Sri.D.S.Vijaya Kumar, B.Sc, LL.B.,
XXVI Addl.City Civil & Sessions Judge, Bengaluru.
Dated this the 23rd Day of July 2021
S.C. No.593/2017
Complainant: The State by
Ramamurthy Nagar Police Station,
Bengaluru.
[By Public Prosecutor]
Vs.
Accused:- 1. J.Srinivas,
S/o Jayaramappa, 40 years
R/a. 179, Ganesha Temple
Road, Old Byappanahalli
Near Government School,
Maruthi seva Nagar Post,
Bengaluru-33
2. Govindachari,
S/o Srinivasachar,
46 years, R/a. Kodi Kannur
Village, Arahalli Post,
Kolar Taluk & District.
[By Sri. M. Srinivasa Gowda]
SC 593/2017
J U D G M E N T
Police inspector of Ramamurthy Nagar police station, has filed charge sheet in this case in C.C.No.51874/2017 (Cr.No.657/2016) for the offences punishable under sections-302, 397 read with sec.34 of the Indian Penal Code against accused Nos.1 and 2.
2. Brief facts of the prosecution case are as under:-
That, on 04.11.2016 in the evening at about 4.30 PM, Accused Nos.1 & 2 had been to Booze Bar, Indiranagar, Bengaluru, to consume alcohol and while they were consuming alcohol, one Yelumalai S/o Raju, too came out of the said Bar after consuming alcohol and was trying to start his Excel two wheeler and fell down. Then, accused nos.1 and 2 who came SC 593/2017 out from the said Bar lifted him up and made him to stand. On the instruction of Accused No.1, Accused No.2 brought his Auto rickshaw and both the Accused Nos. 1 and 2 with the assistance of CW.10 made the said Yelumalai to sit in the Auto rickshaw and by 5.45 PM Accused Nos.1 and 2 took the said Yelumalai from the Bar to an isolated place on 3rd F Cross Road, 5th Main, East of NGEF Layout, in the jurisdiction of Ramamurthy Nagar Police Station and having common intention of committing robbery, to take away his money and motorcycle, both Accused Nos.1 and 2 checked his pocket and found money. Accused No.2 gave a knife which had been kept in the Auto to the Accused No.1 and with a common intention while committing robbery, thinking that, if the said Yelumalai came to consciousness, he would recognize them, the Accused Nos.1 and 2 made him to lie down SC 593/2017 in the drainage while he was still unconscious and with the knife given by Accused No.2, which is a dangerous weapon, Accused No.1 cut the throat of the said Yelumalai and committed his murder and fled away with his mobile phone, cash and key of the two wheeler and then took away the said two-
wheeler and thereby both the Accused Nos.1 and 2 have committed the offences punishable under sections 397 and 302 read with sec. 34 of the Indian Penal Code.
3. Thereafter, among 34 witnesses cited in the charge sheet, prosecution has examined PW.1 to 12 and got marked Ex.P. 1 to 38 and M.Os. 1 to 10. The Accused have been examined under section 313 of Cr.P.C. and the Accused have not lead defence evidence.
SC 593/2017
4. Heard arguments and perused the records.
5. The points that arise for my consideration are as under:-
1)Whether the prosecution proves
beyond reasonable doubt that
Accused Nos.1 and 2 were in
furtherance of common intention by using deadly weapon robbed mobile phone, cash and the two wheeler of Yelumalai and thereby committed the offence punishable under section-397 read with sec. 34 of the Indian Penal Code ?
2) Whether the prosecution proves beyond reasonable doubt that Accused No.1 with the knife given by Accused No.2 which is a deadly weapon in furtherance of common intention, cut the throat of the said Yelumalai and killed him and thereby committed the offence punishable SC 593/2017 under section 302 read with sec. 34 of the Indian Penal Code ?
3) What order?
6. My answer to the above points are as under:-
Point No.1: In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order for the following:
REASONS
7. Point Nos.1 and 2:- As per charges against accused No.1 and 2, with common intention they have committed robbery of Mobile phone, cash and two-wheeler Bike belonging to the deceased Yelumalai and in relation to the same have caused homicidal death of deceased. Ex.P18 is the Post- mortem report dated: 9.11.2016. In the post- mortem, the cause of death is mentioned as below:-
SC 593/2017 "Death was due to shock and hemorrhage as a result of cut throat injury sustained".
External injuries found on the corps of the deceased is mentioned in the PM report as follows:-
"Cut-throat injury present over the front of middle third of neck measuring 9cm X1cmX trachea deep, extending from right side of neck, situated 14 cm below right mastoid process to left side of neck, situated 13cm below the left mastoid process. Center of the would is situated 8 cm below the symphysis menti. Margins of the wound are clear cut"
8. In Ex.P18 the the internal side of the above said injury details is mentioned as below:-
"On further dissection of injury No.1, it is observed that the weapon has cut the underlying skin, ribbon muscles of the neck, blood vessels and nerves of both SC 593/2017 sides, thyroid gland, thyroid cartilage and trachea. Blood extravasated all around the injury side"
9. PW.1 Dr. B.M. Nagaraj who has conducted post-mortem has been examined to prove Ex.P18 post-mortem.
10. The crime has come to light, according to prosecution version, when PW.1 Sri. Sm. Jayashankar, Head Constable of the complainant-Police Station, who was on patrolling duty noticed a gathering of crowd near 3rd cross, 5th main, NGEF , Ramamurthynagar. PW.1 in his evidence states that on 5.11.2016 he along with CW.3 and 4 had been deputed for day duty in Hoysala No.59 vehicle. They started patrolling from Ramamurthynagar Main Road, at 10.30am, reached NGEF 5th main road and there near 3rd cross a crowd had gathered. Upon SC 593/2017 going there , they found a corpse of male body aged approximately 35 to 40 years in a drainage. A grey colour shirt and black pan, white banian were worn by the dead, near his color of his shirt, cloth had become blood stained. On verification, prima facie it was found that someone had caused death of a person by injuring on his neck. The crowd at the spot did not know anything about the identity of the deceased or about crime. Then he returned to the police station and submitted a written report to the SHO as per Ex.P1. After he submitted the report, the Police Inspector and the ACP and their staff arrived at the place where the corpse was found. The I.O. conducted a spot mahazar at the scene of occurrence and seized spot stained leaves in a bottle and also seized some sample leaves which were not blood stained in another bottle and drew mahazar as per SC 593/2017 Ex.P2 and he signed the same as per Ex.P2(a). He further states that Ex.P3 and 4 are the photographs of the corpse and he identifies the corpse from the said photo. He states that afterwards, the corpse sent to the hospital. He has identified the blood stained leaves seized under the mahazar as M.O.1 and unstained leaves as M.O.2.
11. Thus, PW.1 has deposed as to how the crime was noticed and thereafter, at scene of occurrence, mahazar was drawn as per Ex.P2 and blood stained leaves at the spot along with sample leaves were seized and further identified the said corpse from the photos marked at Ex.P3 and 4.
12. PW.6 Subbaiah has been examined as panch witness to the scene of occurrence mahazar marked SC 593/2017 at Ex.P2. Though he admitted his signature as per Ex.P2(b) in the mahazar as well as signature in Ex.P13 notice issued. He denied the contents of said mahazar and the notice issued to him. He has stated that after one week of the deceased's missing, when he was taken to the complainant/police station, his signatures were obtained. He has denied the police effecting seizure of any article in his presence. He has been treated as hostile. But, in the cross- examination by the prosecution as well, he has denied that he was summoned at the NGEF Police station to the place of occurrence and scene of occurrence mahazar was drawn in his presence and seizure was effected at the spot. Thus, during examination in chief as well as cross-examination by the prosecution, PW.6 except admitting his signatures in the scene of occurrence mahazar SC 593/2017 marked at Ex.P2 and Notice issued to him as per Ex.P13 has turned hostile to the prosecution case and denied mahazar drawn at the spot.
13. CW.6 is cited as another witness to the scene of occurrence mahazar marked at Ex.P2. However, the prosecution has not examined CW.6.
14. PW.12 Chandradhara S.R. is the Police Inspector who has taken up investigation of the case after receiving report as Ex.P1 and done entire investigation and filed the charge sheet in the case. PW.12 states that he is the Police Inspector at Anti- Terrorist Cell, Bengaluru City and he was working as Police Inspector from 01.2016 to 27.09.201. On 5.11.2016 at 11.30am, on receipt of report as Ex.P1 from PW.1, he registered the FIR in Cr.No.657/2016 for the offence under section 302 of IPC. Ex.P19 is SC 593/2017 the FIR registered by him and on the same day, he visited the spot, where the corpse of unknown person was lying and summoned PW.6/CW.5 and CW.6 as panch witnesses and in their presence, drew scene of occurrence mahazar as per Ex.P2. He states that he seized blood stained leaves at the spot and also for sample some plain leaves and also blood stained soil and plain soil from the spot of scene of occurrence. He submitted the seized articles in P.F.No.160/2016 and he has issued notice to panch witnesses as per Ex.P13. He states that M.O.1 and 2 are the blood stained and unstained leaves seized at the spot, Ex.P20 is the rough sketch prepared at the spot and Ex.P20(a) is his signature. He further stated that he collected finger prints of corpse of deceased and submitted the same to the ACP, finger print bureau, Bengaluru and sent the corpse to Dr. SC 593/2017 B.R.Ambedkar Medical College for storage through HC 4612 and caused a circular as per Ex.P21 containing photo and description of deceased person to all the police stations in the city and also sent said information to all the police station in the state and Missing Bureau through E-Mail. He states that he recorded statements of PC 12585, P.C.13089 and PC 12810 on the same day and also recorded statements of panch witnesses to the spot mahazar.
15. PW.12 further stated that on 6.11.2016 he continued further investigation and deputed CW.25 to 28 the Police staff to trace the identity of the deceased and his legal heirs. That on 8.11.2016 he submitted letters to the Newspapers and Telephone Exchange and DD9 to publish about the deceased. That on 9.11.2016 he conducted inquest mahazar on SC 593/2017 the body of the deceased at B.R. Ambedkar Medical College between 12.30 and 14 hours and Ex.P22 is the inquest mahazar in which he affixed his signature as per Ex.P22(a). He further states that he sent the corpse for postmortem with requisition to the doctor and Ex.P23 is the requisition and Ex.P23(a) is his signature. PW.12 the Police Inspector has not stated the date on which he sent the corpse of the deceased for postmortem. But, Ex.P23 discloses that the corpse and the requisition was received by the Prl. Head of Department of Dr. B.R.Ambedkar Medical College on 9/11/2016 at 2.15pm. PW.12 the Police Inspector further stated that on the same day, ie., recorded the statements of CW.11 to 13 and further statement of CW.14 and since the corpse of unknown person, the body was buried at Kalpalli burial ground by obtaining receipt and funeral SC 593/2017 mahazar as per Ex.P25 was drawn on 9.11.2016 . He states that Ex.P24 is the BBMP report and also recorded statement of CW.32 on the same day. That on 12.11.2016 he continued further investigation and recorded statements of PW.3, PW.7 and CW.8. On 15.11.2016 he recorded the statements of CW.9 and CW.10.
16. PW.12 states that on 20.11.2016 a CD disk was produced by CW.10. He seized the C.D.Disk and subjected the same to PF No.167(a) of 2016. He watched the content of the CD which is marked as MO 6 and in that he saw 3 persons out side the Boose Bar at Indiranagara and among them two were Accused Nos.1 and 2 and the other was the deceased. Again he recorded the statement of CW10. On 5.12.2016 CW.25 to 28 produced Accused Nos.1 and 2 before him and he interrogated Accused Nos.1 and 2 SC 593/2017 and arrested them by following due procedure. On the same day, he recorded the Voluntary statements of Accused Nos.1 and 2 in which, they stated that they were everyday going to the said bar for consuming alcohol and on the day of incident the deceased had come to the bar and consumed alcohol heavily and passed off at Boose bar, Indiranagara. So, they took the deceased with the help of CW10 in an auto rickshaw of the accused No.2 and on seeing money in the pocket of the deceased Yelumalai, to rob the said money they went in Auto rickshaw through NGEF junction to Ramamurthy Nagar, which is the place of occurrence and on ensuring that there was no one else present, on the apprehension that if the deceased comes around he will identify them, Accused No.2 took out a knife which he had kept in the dash board of his auto rickshaw and handed over SC 593/2017 same to Accused No.1. Thereupon, accused No.1 stabbed the deceased on his neck and since the deceased was already unconscious due to heavy drinking he did not make any noise. After that. Accused No.1 took the cash from the pocket of the deceased and also key of the deceased's two wheeler vehicle. In their further voluntary statement they have stated that after committing murder of the deceased and robbing the money they returned back to the same bar and on the way they threw the mobile phone of the deceased to a drainage. They further stated that they would show the knife used for stabbing the deceased and the auto rickshaw used for the offence and Two wheeler of the deceased. Relevant part of the voluntary statement of Accused No.1 was stated by PW.12 which is marked as Ex.P..26(a) is as below:-
SC 593/2017 ''ನನನನನನ ಕರರದನಕರಕಕಡನ ಹರಕಹದರರ ನನವವ ಚನಕನ ತವದನ ಕರಕಲರ ಮನಡದ ಸಸಳ ಮತನತ ಕರಕಲರ ಮನಡ ತರಗರದನಕರಕಕಡ ಹಣದಲಲ ಖರನರ ಮನಡ ಉಳದ ಹಣ ಮತನತ ಕರಕಲರ ಮನಡಲನ ಬಳಸದ ಚನಕನವನನನ ಮನರಯನಲಲಟಟದನದ ನನನನನನ ಕರರದನಕರಕಕಡನ ಹರಕಹದರರ ತರಕಹರಸನತರತಹನರ". Relevant part of Voluntary statement of Accused No.2 stated by PW.12 which is marked as Ex.P.27(a) is as below:-
"ಆಗ ನಮಗರ ಕರಕಲರ ಮನಡರನವ ವವಕತಯ ಹರಸರನ ಶಶಹ ಏಳನಮಲರಲ ಎಕದನ ತಳಯತನತ. ನನನನನನ ಕರರದನಕರಕಕಡನ ಹರಕಹದರರ ಚನಕನ ತವದನ ಕರಕಲರ ಮನಡದ ಸಸಳ ಮತನತ ಆ ವವಕತಯ ದದರಕಶ ವನಹನ ಮತನತ ಕಕತವಕರಕ ಬಳಸದ ನನನ ಆಟರಕಹವನನನ ತರಕಹರಸನತರತಹನರ".
17. According to the voluntary statement of Ex.P.26(a) Accused No.1 has stated that if he is accompanied he would show the place where they committed murder and also show the unspent money robbed from the deceased and knife which was used by him for committing murder of the deceased which he has kept at his home. According to the relevant SC 593/2017 part of the voluntary statement given by Accused No.2 which is marked at Ex.P.27(a) he has stated that he would show the place of occurrence where they committed murder and also two wheeler vehicle of the deceased and auto used by them for committing murder.
18. P.W.12 Police Inspector further states that on 06.12.2016 Accused were produced before the court and taken to police custody. And on 07.12.2016 Accused No.2 told that he would take Police to the place where he has parked TVS XL motorcycle of the deceased and accordingly, he took the I.O/PW.12 and panch witnesses-CW15 and 16 and his staff to the land bearing Sy. No.181 at Sugaturu village in Kolar district and showed the said two wheeler vehicle bearing No.KA07 Q 7636. It was found that the SC 593/2017 original number of the vehicle had been changed. On verification of the Engine number and Chassis number, same was seized in the presence of panch witnesses. Mahazar was drawn regarding the said seizure as per Ex.P.10. He has issued notice to CW.15 and 16 to assist as panchas. He subjected the seized vehicle to PF No.172/2016. He has identified Ex.P8 and 9 as the photos of the seized vehicle.
19. PW.12 further states that on the same day, Accused No.2 told that he would show his Auto rickshaw used for the crime and took the Panchas and himself and staff near KVD Plaza Complex, Old Madras Road where Auto has been parked and the same was seized under Ex.P.4-Mahazar and PF No.173/2016. He states that Ex.P29 and P.30 are the Photographs of the said Auto and Ex.P15 is the SC 593/2017 notice which had been given to PWs7 and 9 for assisting as panchas.
20. PW.12 further states that on the same day Accused No.1 told that he would show the place where he threw the Mobile phone of the deceased after committing the crime and took Panchas /PW10 and CW.11 and himself and his staff behind Basket Ball Club at BBMP Ground 9th cross, II Main, Indiranagar, II Stage and showed the place. But, the mobile phone could not be traced in the drainage due to lapse of time. Mahazar was drawn as per Ex.P.16 in the presence of panch witnesses and Ex.P. 17 is the notice which had been issued to PW.10 and CW.11 to assist as panchas. He states that he recorded further statement of CW.10 and 11 and PW.3 and also panch witnesses.
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21. PW.12 Police Inspector further states that on 08.12.2016 Accused No.1 told that he has kept the knife used for the offence and also robbed money of Rs.16,000/- under the bed of his cot at his home and took the Panch witnesses-CW21 and 22 and himself and his staff to his house. In the presence of the Panch witnesses, Accused No.1 produced a knife and the unspent cash which had been robbed from the deceased and same was seized at the instance of Accused No.1 under Ex.P.31. He states that Ex.P32 was the notice which had been issued to the panchas to assist them. He has identified the said knife as MO.7. He states that the seized amount was remitted to CRCD Account of the Court. He states that he subjected the seized knife to PF No.174/2016 SC 593/2017 and recorded the statements of Panchas to the above Mahazar.
22. PW.12 Police Inspector states that on the same day he submitted a Report to the learned 10th ACMM to incorporate section 397 and 34 of IPC and produced Accused Nos.1 and 2 before the court and they were remanded to Judicial custody. He further states that on 27.01.2017 Police constable bearing Badge 4597 produced Viscera of the deceased from the hospital which he subjected to PF No.9/17 and the police constable also submitted a Report as per Ex.P.33. PW.12 sent a requisition as per Ex.P.34 to Indiranagar Police station on 28.1.2017 to submit records pertaining to the case registered in respect of missing complaint of the deceased in Crime No.387/2016. On 10.02.2017 he received Certified SC 593/2017 Copies of the said records. He states that Ex.P35 is the Certified Copy of FIR and its enclosures in Crime No. 387/2016 which had been registered regarding missing complaint lodged in respect of the deceased. He further states that on 13.02.2017 he sent the seized blood stained leaves, plain leaves, blood stained soil sample and plain soil sample and blood stained green colour shirt and gray colour pant and brown colour under wear of the deceased to the FSL through CW30 and Ex.P36 is the acknowledgment produced by CW.30 for submitting the said articles to the FSL. He further states that he submitted a requisition to the RTO of Indiranagara and Rajajinagara to submit "B" Extracts of the seized auto rickshaw and TVS XL two wheeler. He tried to trace the owners of the said vehicles as per B extract but they could not be found. Ex.P37 is the 'B' Extracts SC 593/2017 which he obtained in respect of the Auto of Accused No.2.
23. P.W.12 further states that he completed the investigation and filed charge sheet against Accused Nos.1 and 2 on 08.03.2017 for the offence punishable under sections 302, 397 read with sec. 34 of Indian Penal Code. He has identified viscera and slippers of the deceased, clothes of the deceased as per Mos. 3 to 5 and 8 and 9.
24. PW.12 Police Inspector further states that wife of the deceased who is PW.3 has identified the deceased from the photographs which had been taken at the time of inquest as per Ex.P. 3 and 4. She has also produced family Photo of the deceased as per Ex.P.6. He further states that the wife of the SC 593/2017 deceased / PW.3 identified the seized TVS XL two wheeler as her husband's vehicle and gave further statement before him in that regard. He has further deposed that the witnesses Pws. 2, 5, 10 and 9 have given statements before him as per Ex.P5, P12, Ex.P16, and Ex.P14 respectively. Apart from the same, PW.12 Police inspector had identified Accused Nos.1 and 2 before the court as Accused of the case.
25. P.W.12 states that he received PM Report as per Ex.P18 and MO.6 - C.D was given by the cashier of the Boose Bar, Indiranagar, which contains CC Tv footage from the CC Tv camera which had been installed by the said Bar owner in front of the said Bar. Said CC Tv footage relates to 04.11.2016.
26. Thus from the examination in chief evidence of PW.1 it is seen after he took over the investigation after the F.I.R. was registered he has SC 593/2017 visited the scene of occurrence on 5.11.2016 and conducted spot mahazar as per Ex.P2 between 12.00PM and 1-30PM. PW.12 has deputed the Staff to trace the relatives of the deceased and sent the corpse of the deceased to the cold storage of Dr. Ambedkar Medical College and Hospital. He has not chosen to conduct inquest immediately. He has waited till 9.11.2016 and on the said date ie., on 9.11.2016 he has conducted inquest and has also submitted a requisition for conducting postmortem and on the same day, postmortem has been conducted. Ex.P22 is inquest report conducted on 9.11.2016 when still the deceased had not been identified. In the inquest report the description of the deceased is noted as aged between 35 and 50 years who was 5.4 feet tall and of dark complexion and robust built with black hair on the head and old SC 593/2017 injury mark on the eye-brow. Ex.P18 being the PM report, same also describes the age of the deceased as between 35 and 40 years. Ex.P3 and 4 are photos of the corpse of the deceased taken on 5.11.2016 at the time of drawing scene of occurrence mahazar. The postmortem report has not been got done till 9.11.2016. On 9.11.2016 after Postmortem was done, the corpse has been buried under funeral mahazar drawn as per Ex.P25. In the meanwhile, PW.3 being wife of deceased had submitted missing complaint about the deceased and PW.12 the Police Inspector states that PW.3 identified the deceased on seeing the photos marked at Ex.P3 and 4 which had been taken at the time of spot mahazar on 5.11.2016 and also by identifying the clothes of deceased. She has also produced the family photo of herself, her children with the deceased as per Ex.P6.
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27. In the cross-examination of PW.12, the Police Inspector Chandradhara S.R., he has been questioned as to why inquest was not conducted till 9.11.2016, for which he has stated that since the relatives of the deceased had not been ascertained, the inquest was not done immediately. According to the prosecution version, accused No.1 and 2 and the deceased had gone to the Booze Bar at Indranagar and the deceased consumed alchohol heavily and when he tried to return, he could not handle his TVS XL Two-Wheeler and passed off in front of the Bar. Noticing the same, accused No.1 and 2 took the deceased in the second accused's Auto-rikshaw. PW.12 has stated that the CD was collected from CW.10, the Cashier of Booze Bar showed the accused No.1 and 2 and the deceased in front of the Bar. In the cross-examination, it is elicited that PW.2 Police SC 593/2017 Inspector has not drawn any mahazar while effecting seizure of the CD that was produced by CW.10. PW.12 states that he seized the same under PF, but, did not draw any mahazar. Similarly it is the prosecution version that after committing murder, the key of the Two-Wheeler of the deceased was taken by accused persons from his pocket and they returned to the Bar. The 2nd accused took away the TVS XL Two-wheeler of the deceased which had been parked in front of the bar. And PW.12 during investigation, on the voluntary statement of accused No.2 and on his disclosure seized the said two- wheeler under the mahazar. In the cross- examination of PW.12 it has been elicited that B extract of the TVS XL vehicle has not been produced by him. But, he has stated that he has produced registration certificate of the said TVS XL vehicle. In SC 593/2017 fact, a colour zerox copy of Registration certificate attested by the Police Inspector is available in the records which shows that the TVS XL vehicle is in the name of the deceased Yelumalai. It has the details of Chasis number and Engine number besides the registration number. However, the prosecution has not got the same marked in evidence. So the said attested copy of the registration certificate will have to be excluded from consideration. It is also elicited that 'B' extract of Auto-rikshaw seized in this case is actually in the name of some other person and not 2nd accused. It is elicited that the Investigation Officer has not identified the person who is shown as the owner of the Auto-rikshaw. The I.O. PW.12 has stated that the tregistration certificate had not been got transferred from the previous owner and the previous owner could not be traced. However, he has SC 593/2017 stated that the CD produced as per M.O.6 shows that the accused was in possession of the Auto-rikshaw. It is the prosecution version that the accused persons took the deceased who passed off in front of the Bar from there in the auto-rikshaw of the second accused to the place of occurrence and committed the murder. So, according to PW.12, statement, in the cross-examination at page No.16, para-2 the CD produced as above shows that the accused were in possession of the Auto-rikshaw which has been seized in this case. It is further elicited in the cross- examination of PW.12 that M.O.7 knife seized from accused has no blood stains.
28. It has been vehemently argued on behalf of the accused that the CD produced as per M.O.6 which has been marked subject to objection cannot be taken into consideration in view of non-production of SC 593/2017 certificate under section 65(b)(4) of the Indian Evidence Act. In support of the said contention, Learned Counsel for the accused has placed reliance on the decision of the Apex Court in the case of Arjun Panditrao Khotkar V Kailash Kushanrao Gorantyal reported in AIR 2021 SC(Criminal) 259, wherein it is held that production of certificate as envisaged under section 65(b) of Indian Evidence Act is necessary.
29. In this case, the prosecution has not produced the certificate as such. It is further argued that there is delay of 5 days in conducting inquest mahazar and submitting the corpse for postmortem and as per prosecution version, the deceased was heavily drunk, but, the evidence of PW.11 Doctor who conducted postmortem shows that the deceased had not consumed alcohol.
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30. In fact, PW.11 Doctor while deposing in cross-examination states that the deceased had not consumed alcohol. PW.11 the Doctor has denied the suggestion that the injury on the neck of the deceased could not have been sustained upon falling on glass piece. He has deposed that it is an insized injury. In the PM report, in column No.4-findings of examination of the abdomen of the deceased's corpse has been mentioned. There it is mentioned that the stomach contained 120ml of brown colour liquid and its odour was NAD. It is to be noted that the dead body was found on 5.11.2016. According to the prosecution version, the murder of the deceased occurred on 4.11.2016. The postmortem has been conducted 5 days after the death of the deceased. In the postmortem report marked at Ex.P18, it is mentioned that the time since the death could not SC 593/2017 be ascertained precisely as body had been preserved in the cold storage.
31. Referring to the said fact mentioned in the Postmortem report, it is argued on behalf of the accused that delay by the Investigating Officer in subjecting the dead body to postmortem is fatal and prosecution version that death has taken place on 4.11.2016 is not established. On the said grounds by pointing out to the defects in the investigation and non-production of certificate under section 65(b) of the Indian Evidence Act in respect of CD marked at M.O.6, it has been argued that the prosecution has failed to prove the charges against the accused persons.
32. I have watched the CD marked at M.O.6. The contents of the CD is very clear. There is no distortion, discontinuity or interruption whatsoever.
SC 593/2017 There is absolute clarity in the contents of CD which shows that accused No.1 and 2 were consuming alcohol at Booze Bar and the deceased had also been there who was heavily drunken. The CD shows the hawkish and prowling of the accused persons in the bar for a prey. PW.12's evidence is clear that the deceased along with accused No.1 and 2 were in front of the Booze Bar as per CD. That, of-course very clearly establishes that accused No.1 and 2 were last seen together with the deceased and the deceased was taken by the accused persons on the said night from the Booze Bar. However, in view of the non-production of certificate u/s.65(b) of Evidence Act, the CD is not admissible as contended by the Ld. Counsel for accused persons. Further CW.10 cashier who produced the CD has not been examined inspite of issuing non-bailable warrants.
SC 593/2017 The I.O. has not bothered to conduct any mahazar while seizing the said CD. Also the I.O. has not bothered to subject the corpse of the deceased to postmortem without delay. He has not secured B extract of the TVS XL Two-Wheeler that belonged to the deceased and the prosecution has not bothered to get the attested copy of registration certificate of the said TVS vehicle, which is available in the records marked which shows that the same stood in the ownership of the deceased. So, there are deficiencies in the investigation. The deceased belonged to the Minority community which is not mentioned by the prosecution, but, can be gathered from the records. How the investigation has been done in the case is the highlight of the matter. The investigation of course shows that the I.O. was rather lackadaisical which shows he was perhaps biased SC 593/2017 against the victim. Not getting the postmortem done without delay is akin to, but, not less than committing the offence u/s.201 of IPC for causing destruction of evidence.
33. In fact PW.12 the investigating officer could have started his efforts to identify the corpse of the deceased right from the time the scene of occurrence mahazar was drawn as per Ex.P2 at the place where the dead body of the deceased was found lying by using the good old technique of verifying the tailors address that can be found normally on the clothes of the dead body. It is not the case of the investigation that the clothes which were found on the dead body of the deceased were ready-made clothes or T-shirts. From the photos of the dead body of the deceased produced as per SC 593/2017 Ex.P3 and 4 we can see that the deceased was wearing normal clothes. More importantly the evidence of the wife of the deceased, who is PW.3, shows that the deceased was actually working under a tailor and was earning Rs.3000/- per week. So the deceased was employed in a tailor shop itself. It is most likely the deceased was wearing clothes stitched in a tailor shop which could even be the tailor shop in which he was working. The investigating officer has not tried to follow this clue at all in the investigation. In the inquest or the spot Mahazar nothing is mentioned that the clothes found on the dead of the deceased did not bear the tailor's stickers. PW.12 merely states that he deputed staff to trace the relatives of the deceased.
33. PW.2 is a material witness in the case. He was working at Booze Bar Restaurant at Indiranagar SC 593/2017 where as per the prosecution case, the accused No.1 and 2 and the deceased had consumed alcohol on the date of the incident. According to the prosecution version, PW.2 while working in the bar had seen the accused No.1 and 2 having drinks and also the deceased consuming drinks. It is the prosecution version that PW.2 had served 3 quarter of liquor to the deceased and the latter had consumed same. He is a witness to the deceased going out from the bar and trying to start his two wheeler but being unable to do, falling down thereat. He is also a witness to the fact that the accused No.1 and 2 had in the meantime walked out of the bar after having drinks and on the deceased falling down took him in their Auto-rickshaw. So PW.2's statement according to the prosecution version would clearly shows that the accused No.1 and 2 were last seen together with the SC 593/2017 deceased and also the accused took the deceased in their Auto-rickshaw. However, PW.2 has turned hostile to the prosecution case. He has not identifies the deceased from the photos marked at Ex.P3 and 4 and he has deposed that he had not seen the said person in the photo previously and he has also denied seeing the accused No.1 and 2 by stating that they had not come to the bar. In view of PW.2 turning completely hostile the prosecution has subjected him to cross-examination with leave of the court. In the cross-examination as well, PW.2 has denied the entire prosecution version. There upon the prosecution has contradicted PW.2 by confronting the statement purportedly given by him to the investigation officer U/s 161 of the Cr.P.C. PW.2 has denied the said statement as well which is SC 593/2017 attributed to him and the same has been marked as Ex.P5. Ex.P5 the statement of PW.2 reads as below:
ರನಮಮಕತರ ನಗರ ಪಹಲಸಸ ಠನಣರ ಮ.ಸಕ.657/61 ಕಲಕ 302 ಐಪಸ ಸನಕಕದನರರ ಹರಹಳಕರಕ-
ಶಶಹ ರಘನನಕದನಸ ಬನಸ ಕರಯಪಪ, 26 ವರರ, ವನಸಕ ಕರಹರನಫಸ ಭಕಜಸ ಬನವರಲಸ ಬನರಸ, 9 ನರಹ ಕನಶಸಸ, ಇಕದರನನಗರ 1 ನರಹ ಹಕತ, ಬರಕಗಳಕರನ, ಫಹನಸ ನಕ.9591602934-, ವಕತತ
- ಬನರಸ ಕನವಷಯರಸ ದನನಕಕಕ07-12-2016.
''ನನನನ ಮಹಲಕಕಡ ಬನನರಲಲ ಸನಮನರನ ವರರಗಳಕದ ಬನನರಲಲ ಕನವಷಯನರಸ ಆಗ ಕರಲಸ ಮನಡಕರಕಕಡರನತರತಹನರ. ಈ ದನ ರನಮಮಕತರ ನಗರ ಪಹಲಸರನ ನನನನನನ ಪಹಲಹಸಸ ಠನಣರಗರ ಕರರಯಸ ಅವರ ಠನಣನ ಪಶಕರಣದಲಲ ಕರಕಲರಯನದ ವವಕತಯ ಮಕತ ದರಹಹದ ಪಹಟರಕಹವನನನ ತರಕಹರಸ ಈತನನ ರನಮಮಕತರ ನಗರ ಪಹಲಹಸಸಠನಣರಯ ಈಸಸಟ ಆಪಸ ಎನಸ.ಜ.ಇ.ಎಫಸ. ಲರಹಔಟನ 5 ನರಹ ಮಲನಸ, 3 ನರಹ ಎಫಸಕನಶಸಸರಸರತ, ರರಕಡಯಲಲ ಯನರರಕಹ ದನರಕರರಗಳನ ಕನತತಗರಗರ ತವದನ ಕರಕಲರ ಮನಡ ಹರಕಹಗರನತನತರರಕದನ ದನನಕಕ 05-11- 2016 ರಕದನ ಬರಳಗರಗ ನಮಗರ ಮನಹತ ತಳದದನದಗ ಪಲಹಸರನ ತಳಸ ಸದರ ವವಕತಯನನನ ಗನರನತಸಲನ ತಳಸದನದ, ಆತನನನನ ಗನರನತಸದನದ ಆತ ಇಕದರನನಗರದ ಕದರಯವನ ಪನಳವದ ವನಸಯನದ ಏಳನಮಲರಲ ಎಕದನ ಸದರ ವವಕತ ಹನಲನ ವನವಪನರ ಮನಡನತತದನದಗ ತಳದನ ಆತನನ ನಮಮ ಬನಗರರ ಆತನ ದದರಕಶ ವನಹನ ಟ.ವ.ಎಸಸ. ಎಕಸಕ ಎಲಸ ವನಹನದಲಲ ಬರನತತದದರನ.
SC 593/2017 ದನನಕಕ 04-11-2016 ರಕದನ ಮದನವಹನ 03-00 ಗಕಟರಯ ಸನಮನರಗರ ಸದರ ಶಶಹ ಏಳನಮಲರಲ ರವರನ ನಮಮ ಬನಗರರ ಬಕದನ ಮದವಪನನ ಮನಡನತತದನದ ಸನಮನರನ 3 ಕನದಟರಸ ಮದವವನನನ ಸರಹವನರ ಮನಡದದರನ. ನಕತರ ಸಕಜರ ಸನಮನರನ 05-30 ಗಕಟರಯಲಲ ಶಶಹ ಏಳನಮಲರಲ ರವರನ ಬನರರಕದ ಆಚರ ಹರಕಹಗ ಅವರ ದದರಕಶ ವನಹನವನನನ ಹತತಕರಕಳಳಲನ ಹರಕಹಗ ಕರಳಗರ ಬದದರನ. ಆಗ ನಮಮ ಬನನರಲಲಯಹ ಮದವಪನನ ಮನಡನತತದದ ಇಬಬರನ ಆಟರಕಹ ಡರಶಲವರಸಗಳನ ಕನಡದನ ಬನರರಕದ ಆಚರ ಬಕದನ ಕರಳಗರ ಬದದ ಏಳನಮಲರಲಯನನನ ಮಹಲರತತ ಕಕರಸದರನ ಏಳನಮಲರಲ ಮನತನನಡನವ ಸಸತಯಲಲರಲಲಲ. ಆಗ ಆತನನನನ ನಮಮ ಬನಗರರ ಮದವಪನನ ಮನಡಲನ ಬಕದದದ ಆಟರಕಹ ಡರಶಲವರಸ ಗಳನದ ಶಶಹರವನಸಸ ಮತನತ ಗರಕಹವಕದನಚನರ ರವರನ ಆಟರಕಹದಲಲ ಕರರದನಕರಕಕಡನ ಹರಕಹಗದದರನ ಎಕದನ ತಳಸದರದನನ.
ಈ ದನ ರನಮಮಕತರ ನಗರ ಪಲಹಸರನ ನಮಮನನನ ಕರರಯಸ ಅವರ ವಶದಲಲದದ ಇಬಬರನ ಆಸನರಗಳನನನ ತರಕಹರಸ ಗನರನತಸಲನ ತಳಸದರನ. ಸದರ ಇಬಬರನ ದನನಕಕ 04- 11-2016 ರಕದನ ಸಕಜರ ನಮಮ ಬನರಸ ಹತತರದಕದ ಏಳನಮಲರಲಯನನನ ಕರರದನಕರಕಕಡನ ಹರರಕಹಗದದ ಆಟರಕಹ ಡರಶಲವರಸ ಗಳನದ ಶಶಹವನಸಸ ಮತನತ ಗರಕಹವಕದನಚನರ ಆಗರನತನತರರ. ಇವರನಗಳರ ಏಳನಮಲರಲಯನನನ ಆತನ ವಶದದಲಲದದ ಹಣ ಗನಡಯನನನ ಪಡರಯಲನ ಕರಕಲರ ಮನಡರನವ ವಚನರ ತಳದನ ಬಕದರನತತದರ.
ದನನಕಕ 04-11-2016 ರಕದನ ಸಕಜರ ನಮಮ ಬನರರಕದ ಏಳನಮಲರಲಯನನನ ಕರರದನಕರಕಕಡನ ಹರಕಹದ ಆಟರಕಹ ಡರಶಲವರಸ ಗಳನದ ಶಶಹವನಸಸಮತನತ ಗರಕಹವಕದನಚನರಯನನನ ನನನನ ನರಕಹಡದನದ, ಮತರತ ನರಕಹಡದರರ ಗನರನತಸನತರತಹನರ''. ನನನ ಸಮಕಕಮ ಓದಸ ಕರಹಳದರ ಸರಯದರ (ರಕದಶಧರಸ ಎಸಸ.ಆರಸ) ಪಹಲಸಸಇನರಕನಕಟರಸ SC 593/2017
34. After PW.2 disowned the statement attributed to him as per Ex.P5, when PW.12 the Police Inspector was examined, the said statement has been confronted to him. PW.12, at para 12 of his examination in chief, upon pointing out Ex.P5 to him has deposed that PW.2 has given statement as per Ex.P5 before him. So the contradiction which was confronted to PW.2 as per Ex.P5 has been put to the Investigation Officer and the Investigation Officer has reiterated that PW.2 has given statement before him as recorded under Ex.P5. Thereby Ex.P5 the statement given u/s 161 of the Cr.P.C. has been proved u/s 162 of the Cr.P.C. Of course as per sec.162 of the Cr.P.C. the statement recorded u/s 161 of the Cr.P.C. can only be used for contradicting the maker of he statement and not for any other purpose. Now SC 593/2017 PW.2 having been contradicted through Ex.P5, the same has been proved by confronting it to the IO.
35. Ex.P5 gives the detailed account of what actually happened on 04-11-2016. As per Ex.P5, the PW.2 was actually working as a cashier at the above said Booze Bar. On 07-12-2016 the statement has been recorded. By that time the deceased's wife PW.3 had lodged the missing complaint as per Ex.P7 on 10-11-2016 and also she had been examined by the IO of this case. As per Ex.P5 upon the PW.12 Police Inspector making interrogation, PW.2 has stated before him that the deceased had come to the bar on 04-11-2016 at 3-00pm and he had consumed 3 quarter of liquor At 5-30 pm the deceased Elumalai went out of the bar and tried to start his two wheeler, but fell down and in the meanwhile the accused No.1 and 2 who were Auto drivers, had also SC 593/2017 consumed liquor in the bar, came out and lifted the deceased who had fallen down and made him to sit, but the deceased was not in a state of speaking and then the accused No.1 and 2 who had come to bar for drinking, took the deceased in their Auto- rickshaw. It is also recorded in the statement that PW.2 stated before the IO that on 07-12-2016, the police/IO summoned him to the Police Station and showed the accused No.1 and 2 and he identified the Auto drivers who are the accused of this case by name Srinivas and Govind Achari who had taken the deceased Elumalai in their Auto-rickshaw on 04-11- 2016. The statement as per Ex.P5 shows that the statement has been recorded on 17-12-2016 when the accused No.1 and 2 were got identified in the Police Station through PW.2, but much earlier to that itself the IO had interrogated PW.2.
SC 593/2017
37. Now coming to the witnesses examined in respect of the mahazars conducted in the case, PW.6 has been examined in respect of Ex.P2 scene of occurrence mahazar. But he has turned hostile. Another witness CW.6 has not been examined. In respect of Ex.P10, seizure mahazar dated: 7.12.2016 drawn in connection with seizure of TVS XL Bike which belonged to the deceased at the instance of accused No.2, the prosecution has examined PW.4 and 5 as panchas of the said mahazar. But, they too have turned hostile. They have admitted their signatures in the mahazar but, have denied the mahazar proceedings. They have also denied giving statements to the Investigating Officer as per Ex.P11 and 12. PW.6 has denied giving statement as per Ex.P13 to the Investigating Officer . In respect of Ex.P14, seizure mahazar conducted in regard to SC 593/2017 seizure of Auto-rikshaw of accused No.2 which was used for the offence, the prosecution has examined PW.8 and 9 as panchas. They too have admitted their signatures in the said mahazar, but, have denied the proceedings of the mahazar. They are signatories to Ex.P14 and 15. Ex.p15 is the notice issued to them to appear as panchas and Ex.P14 is the mahazar. But, they have not supported the mahazar proceedings thereunder. Ex.P16 is the mahazar drawn at Drainage near BBMP Basket-Ball Club where allegedly accused No.1 had thrown the knife used for causing murder after committing the crime. According to Ex.P16, accused No.1 took the police and panchas to the said place stating that he had thrown the mobile phone of the deceased in the drainage after committing the crime. PW.10 has been examined as pancha to the said mahazar. But, SC 593/2017 he too has turned hostile. He has admitted his signature in Ex.P16 mahazar and also notice issued to him as per Ex.P17, but, has not supported the mahazar proceedings conducted thereunder. Ex.P31 is the seizure mahazar dated: 8.12.2016 whereunder at the instance of accused No.1, the unspent money which had been robbed from the deceased in Rs.16,000/- and the knife used by the accused No.1 to commit murder have been seized from the 1 st accused's house. CW.21 and 22 have been cited as panchas to the said mahazar marked at Ex.P31. However, in spite of issuing summons through ACP and DCP and again non-bailable warrant through the jurisdictional DCP, they have not been examined in the case.
38. As such with respect to aforesaid mahazars, we have only the evidence of Investigating Officer , SC 593/2017 who is PW.12, the Police Inspector Chandradhara S.R. Learned counsel for the accused have contended that PW.1 the Head-Constable who first saw the dead body while he was on patrolling duty has admitted in his cross-examination that he had touched the dead body before the Investigating Officer arrived at the scene of occurrence and therefore it shows that he has meddled with dead body of the deceased before arrival of Investigating Officer and the same is serious lapse in the case. In the cross-examination, PW.1 H.C has stated that he did not touch the shirt color and neck of the deceased but, he checked the pockets so as to find out if any document regarding the identity of the deceased could be found. Now the case against the accused persons is not based on any finger prints collected from the clothes or the dead body of the deceased. The case is not at all SC 593/2017 based on finger prints of the accused persons at the scene of occurrence. Therefore, merely because of PW.1 the H.C. admits that when he first saw the dead body, he checked the pockets of the clothes on the dead body to find out any documents relating to the identity of the deceased would be found cannot be considered as serious lacuna. The said act of PW.1 has not caused prejudice to the defence of the accused persons. Therefore, the arguments on the said ground in my opinion requires to be discarded.
39. The next serious contention on behalf of the accused is the Investigating Officer has not produced the certificate under section 65(b) of Evidence Act in respect of CD and has not drawn any mahazar while seizing the CD from the cashier of Booze Bar and not produced the 'B' extract pertaining to the deceased's TVS XL Bike and has not SC 593/2017 subjected the corpse of the deceased to postmortem immediately and not drawn inquest mahazar on the corpse immediately and not traced the owner in whose name the seized auto is registered as per 'B' extract and the said lapse is serious and fatal to the prosecution case.
40. In fact, there are lapses in conducting investigation by the Investigating Officer PW.12 Police Inspector. In this connection, the law relating to appreciation of the case involving deffective investigation requires to be dealt-with. The Apex Court while dealing with the aspect of considering the defective investigation, in the case of Dhanaj Singh V State of Punjab reported in [(2004) 3 SCC 654 at para-5 to 7 has held as below:
5. In the case of a defective investigation the Court has to be circumspect in evaluating the SC 593/2017 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. (See Karnel Singh vs State of M.P. : 1995CriLJ4173 ).
6. In Paras Yadav and Ors. v. State of Bihar:
1999CriLJ1122 it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors 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 SC 593/2017 justice would be denied to the complainant party.
7. As was observed in Ram Bihari Yadav v.
State of Bihar and Ors. : 1998CriLJ2515 if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view as again re-iterated in Amar Singh v. Balwinder Singh and Ors.,[(2003) 2 SCC 518: 2003 SCC(Cri) 641]"
41. Therefore, as observed and held by the Apex Court in the above said case, if the investigation is defective, the court has to be cautious in evaluating the evidence. But, the accused cannot be acquitted solely on account of defect in the investigation and if the same is SC 593/2017 done, it would tantamount to playing into the hands of Investigating Officer if the investigation is designedly defective. In the case on hand, I am of the opinion that the investigation is designedly and calculatedly defective. Therefore, merely because there are some defects in the investigation, and as can be seen though the Investigating Officer has successfully cracked the crime, has tried to withhold the best evidence from being considered on technical grounds, I am of the opinion that the prosecution case cannot be thrown out merely on the ground that the investigation is defective.
42. The law is well settled that the court should not take upon the role of counting the defects in the investigation but, it should consider the rest of the evidence to find out if the charges are established. Also the deficiencies apart, the evidence of Investigating Officer which otherwise establishes the case cannot be repudiated. If the rest of the evidence of Investigating SC 593/2017 Officer is reliable, cogent and acceptable, same will have to be accepted.
43. Now in this case, there is evidence of PW.1 which shows that on the next day of the crime when he saw the dead body of the deceased he noticed a cut-throat injury on the neck of the deceased and there was bleeding. Although, the Postmortem has been done belatedly, the dead body has been preserved in the cold storage and the evidence of PW.11 Doctor and the postmortem report shows that there was a cut throat injury on the neck of deceased. In the cross-examination of the Doctor, the aforesaid injury has not been disputed. Instead it has been suggested that if a person falls on glass piece, there would be such injury which has been denied by the Doctor. Therefore, from the evidence of PW.1 HC and PW.11 Doctor and the postmortem report issued by him, it is clearly established that there was a cut throat injury caused on the neck of the deceased and SC 593/2017 the death was due to the said injury and hence, it was a homicidal death . But, of-course, if there was timely postmortem, it would have helped in determining the time of death which has been contested.
44. PW.11 Doctor's evidence during cross-examination that the deceased had not consumed alcohol in my opinion need not be attached much weight. In the postmortem report, it is mentioned that there was 125 ML of brown liquid in the stomach of the corpse. Although it is noted that the odour was NAD, the postmortem has been done after about 4-5 days and there is no chemical report pertaining to the said liquid content of the stomach. Hence, that part of the evidence of PW.11 Doctor in my opinion needs to be ignored.
45. As far as the contention regarding absence of specific time of death of the deceased in the medical evidence is concerned, PW.3's evidence shows that on 4.11.2016 her deceased husband Yelumalai left home at 8.30am and he had dropped her on his TVS XL Two-
SC 593/2017 Wheeler while going from home but he had not gone to work on that day. She states that at 1-00pm, on the same day, he had again met her at her office. She further states that at 3-00pm on the said day when she had gone to purchse milk, she had again seen her deceased husband on the way at 6th main road, Apparpalya and he had met her there and that was the last time, she saw the deceased alive and again he did not return home on the night. In the cross-examination, her aforesaid evidence in the chief-examination that her husband had left home at 8-30am and dropped her at her office and again had met her at 1-00pm and again at 3-00pm and it was the last time that she had met him, has not actually been denied. A suggestion has been made that she has deposed false evidence before the Court. But, for the said suggestion, no specific cross-examination has been preferred on the aforesaid aspect and no specific denial of the aforesaid statement has been made. Therefore, PW.3's evidence that the deceased was last seen by her SC 593/2017 at 3-00pm on 4.11.2016 in my opinion has no reason to be disbelieved. When so, the evidence of PW.1 Head Constable shoes that on 5.11.2016 when he was on patrolling duty, he saw a crowd at 5th main road, NGEF at 10-30am and there he saw the dead body of the deceased. So PW.1 Head Constable's evidence shows that the dead body was noticed by him on 5.11.2016 at 10-30am. Hence, from the aforesaid cogent evidence, it is established that the death of the deceased has been caused between 3-00pm on 4.11.2016 and 10-30am on 5.11.2016. This gives a loose or an approximate period between which the incident has taken place. Now this can be further considered along with the evidence of PW.12 the Police Inspector who has conducted entire investigation till filing of the chargesheet. The evidence of PW.12 Police Inspector clearly shows that from his investigation, it was found that the accused persons and the deceased had gone to Booze Bar, Indira Nagar separately and there the deceased had consumed SC 593/2017 alcohol heavily and from there the accused persons had taken the deceased in their auto-rikshaw and committed murder. The said facts found from the investigation regarding which statements of witnesses have been recorded particularly that of the worker CW.10 and cashier PW.2; and the statement of PW.2 as per Ex.P5 having been proved which shows that after the deceased was taken in auto-rikshaw at around 5.30pm by the accused persons, they have committed the crime. Therefore, from the overall evidence on record, it can be gathered that on the night of 4.11.2016 the death has been caused in the case. The photos at Ex.P3 and 4 taken during the scene of occurrence mahazar shows at that time, there was no decomposition of the body. Hence, merely because, in the postmortem the exact time of death has not been recorded, the benefit of the same cannot be enlarged to the accused persons.
45. The fact that there is delay in conducting the inquest is though a lapse on the part of the SC 593/2017 Investigating Officer, in the present case, the same has not resulted in any prejudice to the defence. The dead body has been identified by wife of deceased who is P.W.3 and also relative of the deceased who is PW.7. They have seen the photos which had been taken of the dead body of the deceased at the time of scene of occurrence and identified the dead body as that of deceased Yelumalai. In fact, the accused have not preferred cross-examination of PW.7, the relative of deceased, who has given evidence about identifying the deceased by seeing the photo of dead body. Hence, the identification of the dead body is duly established from the evidence of P.W.3 and P.W.7. Also PW.3 has identified the clothes which had been seized from the dead body of the deceased Yelumalai. Hence, the identity of the deceased having been established, the said delay in conducting the inquest mahazar cannot be said to have caused any prejudice to the defence in the case.
SC 593/2017
46. As far as 'B' extract of the TVS XL vehicle of the deceased is concerned, PW.12 the Police Inspector states in the cross-examination that he requisitioned 'B' extract of both the vehicles ie., Auto-rikshaw of the accused and the TVS Xl Two-Wheeler of the deceased. But, he has produced the 'B' extract of auto-rikshaw and with-held the 'B' extract of TVS XL Two-wheeler of deceased. At page 11 of the examination in chief, the Investigating Officer states that he submitted the requisition for issuing 'B' extract of both the vehicles. In the cross-examination at page 15 in para-2 he states that he has not produced 'B' extract to show that TVS XL vehicle belonged to the deceased, but, he has produced registration certificate. He states that engine number and chasis number of TVS XL vehicle were tallying with the number in the registration certificate though the accused had changed the registration number of the said SC 593/2017 vehicle in the number plate. The relevant evidence in the cross-examination at page 15 para-2 is as below:
" But, at the time of seizure, the vehicle was bearing some other number but, the engine number and chasis number of the said vehicle tallied with the number in the registration certificate".
47. As already mentioned earlier in fact an attested copy of registration certificate of TVS XL two-wheeler in the name of the deceased, wherein registration number, engine number and chasis number is available, is in the records but, same has not been marked. Hence, the said aspect has to be considered on the basis of oral testimony of PW.12, the Police Inspector and also the evidence of PW.3 wife of deceased. P.W.3 in her evidence has identified TVS XL two-wheeler bike of her husband from Ex.P8 and 9 photographs as the vehicle which belonged to him. In the cross-examination of SC 593/2017 PW.3, it has been suggested that the said vehicle did not belong to deceased. However, PW.3 has reiterated that same belonged to her husband. There is no reason for not believing the evidence of PW.3 in regard to identification of TVS XL two-wheeler bike which has been seized at the instance of 2nd accused. More importantly, the evidence of PW.12 Police Inspector in that respect in my opinion is cogent, trust-worthy and believable. It must be noted that the investigation does not disclose any prejudice on the part of the I.O. against the accused persons. There is no reason for the I.O. to depose false evidence against accused. When so, the I.O. has consistently deposed that the said TVS XL two- wheeler was bearing engine number and chasis number which tallied with the engine number and chassis number in the registration certificate which was in the name of deceased, I am of the opinion that there is no SC 593/2017 reason to disbelieve the said evidence of P.W.12 Investigating Officer in that respect.
48. The next contention is regarding Investigating Officer not tracing the previous owner of the Auto- rikshaw which belonged to the 2nd accused. According to the prosecution version, though the 2nd accused had purchased the auto-rikshaw, he had not got the ownership transferred in his name. In my opinion not tracing the previous owner of the auto-rikshaw is not of much consequence in the case. It is seen from the investigation done that deceased was taken in auto- rikshaw by the accused persons. The same is proved in the case and not tracing the previous owner of the auto- rikshaw and not examining him has not resulted in any prejudice to the accused persons. It is not a material circumstance in the case. The fact that the deceased was taken in auto-rikshaw is material. Of-course if the previous ownership had also been established, it would SC 593/2017 have fortified the prosecution case. However, the absence of the same is not of much consequence. The evidence shows that the deceased was taken in auto- rikshaw by the accused persons and the same is sufficient.
49. Next contention is that the knife seized in the case had no blood stains as admitted by the Investigating Officer . But, the fact is that murder has taken place on 4.11.2016 and the accused have been arrested on 5.12.2016 ie., one month after the crime and the knife has been seized under Ex.P31 on 8.12.2016. And during the intervening period of more than one month, no prudent person can be expected to keep the knife after committing gruesome murder without cleaning the blood stains. Therefore, the contention that absence of blood stains on the knife shows innocence of accused No.1 cannot be accepted.
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50. In this case the statements of PW.2, PW.5,PW.9 and PW.10 marked as Ex.P5,12,14 and 16 have been duly proved by putting the same to PW.12 Police Inspector.
51. This case is based on circumstantial evidence and it is settled law that all the material circumstances which form the chain that establishes the crime should be established in the case. As regards acting on the sole testimony of the Investigating Officer without corroboration, in the case of Girija Prasad Vs State of Madhya Pradesh reported in (2007) 7 SCC 625 at para-25 the Apex court has held as below:
"In our judgment, the above proposition does not lay down correct law on the point. It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as SC 593/2017 much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence".
Similarly, in the case of Pattu Lal Vs State of Punjab reported in (1996) 8 SCC 228, in a murder case the conviction was based on the sole testimony of the Investigating Officer without corroboration and the Law decided by the Apex Court is reflected in the Head Note B of the decision as below:-
"B. Criminal Trial-- Corroboration--A deposition for its quality may be accepted to be correct without corroboration-- corroboration is a rule of prudence-
Murder of wife by the husband-
Eyewitness being son of the deceased SC 593/2017 turning hostile-Deposition of the IO that the son of the accused handed over his father along with bloodstained clothes and the weapon- No suggestion to the IO that he had any reason to depose falsely against the accused-Held, in the circumstances, evidence of the IO can be accepted to be true without any corroboration- Witness- Police witness."
52. In the aforesaid case, father had committed murder of the mother and the son was the sole eye- witness to the incident. But, he had turned hostile at the trial and in that situation by placing reliance on the sole testimony of Investigating Officer without any corroboration accused was convicted on the basis of the statement that the son had made appear before the I.O., the Investigating Officer's evidence was accepted and the conviction was upheld by dismissing the appeal. It was not an extra-judicial confession conviction on the part of the accused, but, it was SC 593/2017 statement of the son as an eye witness to the Investigating Officer and he had turned hostile and in that situation, solely on the uncorroborated testimony of the Investigating Officer , conviction was recorded for the offence of murder and the appeal was dismissed. Therefore, the law is well settled that if the evidence of the Investigating Officer is found reliable, on the basis of the same, conviction can be recorded even if the same is not corroborated. In this case, the Investigating Officer has recorded the statements which clearly establish all the material circumstances which point to the guilt of the accused No.1 and 2 regarding commission of robbery and murder.
53. The evidence of PW.3 has clearly proved that her deceased husband was last seen by her at 3- 00pm on 4.11.2016. Her evidence and PW.7, the SC 593/2017 relative of deceased's evidence clearly establishes the identity of the dead body as that of PW.3's deceased husband Yelumalai. PW.12 the Investigating Officer's evidence based on the investigation and the statements recorded by him clearly establishes that the deceased was last seen with accused No.1 and 2 at the Booze Bar , Indira Nagar and also accused took the deceased in the auto-rikshaw as deceased was heavily drunk and had fallen down in front of the Bar while trying to start his TVS XL Two-Wheeler. The TVS XL vehicle which belonged to the deceased has been recovered from the accused No.2 which he had taken to his native village and left in a neighbouring village land. It has been seized at the instance and on the disclosure of 2nd accused after he was arrested on 5.12.2016. Further out of the money robbed from the deceased, SC 593/2017 the unspent money of Rs.16,000/- has been recovered from accused No.1 and also the knife used for the commission of offence has been seized at his instance from his house. This has to be considered in the light of the fact that accused No.1 and 2 were last seen together with the deceased and they took the deceased in their auto-rikshaw and on the next day morning, the dead body of deceased Yelumalai was found lying in the drainage with cut-throat injury. The accused have not offered any explanation regarding they being last seen together with the deceased and they taking deceased in the auto- rikshaw, but for denying the entire prosecution case. In these circumstances, I am of the opinion that the offence u/s.397 and 302 of IPC have been duly proved against accused No.1 and 2 beyond reasonable doubts. Common intention of the SC 593/2017 accused No.1 and 2 to commit robbery using deadly weapon and murder is duly established.
54. Before parting, I am of the opinion that this case deserves making recommendation to the District Legal Services Authority for awarding suitable compensation to the dependents of the victim. P.W.3 is the wife of deceased and in her evidence, she has deposed that she has 4 children. In fact, family photo of the deceased with his wife and children has been produced as per Ex.P6. The same is not in dispute. Hence, it is seen that the deceased had wife-PW.3 and four children. In the cross- examination of PW.3, a suggestion has been specifically made on behalf of the accused that the deceased was working in a tailoring shop and was earning a sum of Rs.3,000/- per week. So the evidence of PW.3 shows that the deceased was SC 593/2017 earning a sum of Rs.12,000/- per month. As a result of homicidal death caused in this case, the children have lost support from the father. In Karnataka Victim Compensation Scheme-2011, provision has been made for payment of compensation. As per the postmortem report and the inquest, the deceased was aged 35-40 years at the time of his death due to the crime. In the case of Suresh and another Vs State of Haryana reported in (2015) 2 SCC 227, the Apex court has observed that the schedule as appended to the Kerala Victim Compensation Scheme by Keral Government is on the higher side and therefore, other states should also follow the schedule appended to Kerala Victim Compensation Scheme. In Karnataka Victim Compensation Scheme 2011 uner section 7(1) there is a provision for making SC 593/2017 recommendation for awarding of compensation which in my opinion deserves to be made in this case.
55. That aside, I am of the opinion that the prosecution has proved the offence under section 397 and 302 r/w. Sec. 34 of IPC against accused No.1 and 2 beyond reasonable doubts. It is very clear that accused No.1 and 2 had common intention in committing the aforesaid offence. Consequently, Points No.1 and 2 are answered in Affirmative.
13. Point No.2:- For the above reasons, I proceed to pass the following :
ORDER Acting u/s 235(2) of the Cr.P.C. the accused No.1 and 2 are hereby convicted of the offences punishable SC 593/2017 under sections 397 and 302 r/w. 34 of the Indian Penal Code.
Their Bail bonds and Surety bonds are hereby cancelled.
The case properties M.O.1 and 2 containers having blood stained and sample leaves, M.O.3 slippers, M.O.4 shirt, M.O.5 Trouser, M.O.8 muscle tissue, M.O.9 blood samples and M.O.10 bones are being worthless are hereby ordered to be destroyed in accordance with rules after appeal period is over.
M.O. 6 C.D. is ordered to be retained in the records.
M.O.7 knife is confiscated to State which should be disposed off in SC 593/2017 accordance with rules after appeal period.
Further acting under section 7(1) of Karnataka Victim Compensation Scheme-2011, the Chairman, District Legal Services Authority, Bengaluru Urban is hereby recommended to award compensation to the deceased's wife PW.3 Smt. Divya Mary and her four children as per scale of the schedule(if it is on higher side) appended to the Kerala Victim Compensation Scheme as held by the Apex Court in the case of Suresh and Another Vs State of Haryana reported in (2015) 2 SCC 227.
Send a certified copy of this judgment and order of sentence to the SC 593/2017 Chairman, District Legal Services Authority, Urban within 7 days from the date of sentence without any delay.
Furnish the copies of the judgment to the accused No.1 and 2 free of cost.
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(Dictated by the Stenographer, transcribed and typed by him and after corrections, pronounced by me on this 23rd day of July 2021)
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(D.S.VIJAYA KUMAR) XXVI Addl.City Civil & Sessions Judge, Mayo hall, Bengaluru.
ANNEXURE
1. List of witnesses examined for complainant:
P.W.1 Sri.S.M.Jayashankar
P.W.2 Sri.Raghunandan
P.W.3 Smt.Divya Mary
SC 593/2017
P.W.4 Sri.Venkatappa
P.W.5 Sri.Sridhar
P.W.6 Sri.Subbaiah
P.W.7 Sri.Jayasheelan
P.W.8 Sri.Arun
P.W.9 Sri.Vijay Kumar. S
P.W.10 Sri.Shantharam
P.W.11 Dr.B.M.Nagaraj
P.W.12 Sri.Chandrashekar
2. List of witnesses examined for Accused:-
NIL
3. List of documents exhibited for Complainant:-
Ex.P.1 Report of PW.1
Ex.P.1(a) Signature of PW.1
Ex.P.1(b) Signature of P.W.12
Ex.P.2 Spot Mahazar
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Ex.P.2(a) Signature of PW.1
Ex.P.2(b) Signature of PW.6
Ex.P.2(c) Signature of PW.12
Ex.P.3-4 Photographs
Ex.P.5 Statement of PW.1
Ex.P.6 Photograph
Ex.P.6(a) Photograph of the deceased
Ex.P.7 Complaint
Ex.P.8 & 9 Photographs of TVS Motorcycle Ex.P. 10 Seizure Mahazar Ex.P.10(a) Signature of PW.4 Ex.P.10(b) Signature of P.W.5 Ex.P.10(c) Signature of PW.12 Ex.P.11 Statement of PW.4 Ex.P.12 Statment of PW.5 Ex.P.13 Notice SC 593/2017 Ex.P.13(a) Signature of P.W.6 Ex.P.13(b) Signature of PW.12 Ex.P.14 Seizure Mahazar Ex.P.14(a) Signature of PW.8 Ex.P.14(b) Signature of PW.9 Ex.P.14(c) Signature of PW.12 Ex.P.15 Notice Ex.P.15(a) Signature of PW.8 Ex.P.15(b) Signature of PW.9 Ex.P.15(c) Signature of PW.12 Ex.P.16 Spot Mahazar Ex.P.16(a) Signature of PW.10 Ex.P.16(b) Signature of PW.12 Ex.P.17 Notice Ex.P.17(a) Signature of PW.10 Ex.P.17(b) Signature of PW.12 Ex.P. 18 Post Mortem Report Ex.P.18(a) Signature of PW.11 SC 593/2017 Ex.P.19 FIR Ex.P.19(a) Signature of PW.12 Ex.P.20 Rough Sketch Ex.P.21 Circular Ex.P.21(a) Signature of PW.12 Ex.P.22 Inquest Mahazar Ex.P.22(a) Signature of PW.12 Ex.P.23 Requisition of PW.12 Ex.P.23(a) Signature of PW.12 Ex.P.24 BBMP Report Ex.P.25 Funeral Mahazar Ex.P.25(a) Signatrue of PW.12 Ex.P.26 Voluntary Statement of Accused No.1 Ex.P.26(a) Part of Statement Ex.P.27 Voluntary Statement of Accused No.2 Ex.P.27(a) Part of Statement Ex.P. 28 Notice SC 593/2017 Ex.P. 28(a) Signature of PW.12 Ex.P.29-30 Photographs of Autorickshaw Ex.P. 31 Mahazar Ex.P.31(a) Signature of PW.12 Ex.P.32 Notice Ex.P.32(a) Signature of PW.12 Ex.P.33 Report submitted by CW.29 Ex.P.33(a) Signature of PW.12 Ex.P.33(b) Signature of CW.29 Ex.P.34 Requisition given by PW.12 Ex.P.34(a) Signature of PW.12 Ex.P.35 Certified copy of the FIR and its enclosures Ex.P.36 Acknowledgement Ex.P.37 'B' Report Ex.P.37(a) Signature of PW.12 Ex.P.38 FSL Report
4. List of documents exhibited for Accused:-
SC 593/2017 Nil
5. List of Material objects exhibited:-
MO.1 & 2 Blood stained leaves
MO.3 Slippers
MO.4 Shirt
M.O.5 Trouser of the deceased
M.O.6 C.D
M.O.7 Knife
M.O.(a) Signaute of PW.12
M.O.8 Thigh muscle
M.O.9 Blood sample of the deceased
M.O.10 Right Femur of the decessed.
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
Mayo Hall, Bengaluru.
76 SC 593/2017
ORDERS ON SENTENCE
Accused Nos.1 and 2/Offenders have been convicted for the offences punishable under sections 397 and 302 read with sec. 34 of the Indian Penal Code.
2. Section-302 of the Indian Penal Code provides for punishment for murder, which reads as under:-
"302. Punishment for murder.--Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine".
3. Section-397 of the Indian Penal Code provides for punishment for using deadly weapon in 77 SC 593/2017 causing death or grievous injury for committing robbery or dacoity, which reads as under:-
"397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years".
4. Accused Nos.1 and 2 and their counsel have been heard on the sentence. Accused Nos.1 and 2 have not made any submission by stating that they do not have anything to say. Their counsel have submitted that Accused Nos.1 and 2/Offenders do not have any evidence on the sentencing.
5. Learned counsel for Accused No.1 argues that Accused No.1 has got wife and children and the 78 SC 593/2017 minimum sentence provided for the offences may be awarded.
6. On the other hand, Learned counsel for Accused No.2 argues that the overtact in the case is against Accused No.1 and Accused No.1 has cut the throat of the deceased with a knife and there is no overtact against Accused No.2 and he has health issues and even his wife has health problem. His financial position is bad and there is no one to maintain his family. He and his wife have blood pressure and diabetics, etc.. Witnesses to the recovery mahazar have not supported the prosecution case. Weapons and money have been recovered from Accused No.1 and not from Accused No.2. Hence, minimum sentence may be imposed on the Accused No.2.
79 SC 593/2017
7. I have considered the submissions made by the counsel for Accused Nos.1 and 2.
8. So far as Accused No.2 is concerned though the overtact of cutting the throat with a knife is against Accused No.1, Accused No.2 is actually not a silent spectator in the case. Materials show that he has actively participated in the crime. The C.D. produced in the case, in fact, shows that Accused No.2 was more aggressive and possibly mastermind behind the crime. However, Certificate as required under section 65(B) of the Indian Evidence Act, 1872 has not been produced in respect of the C.D. Irrespective of and excluding the C.D., materials on record show that Accused No.2 was not a passive spectator of the crime but he has actively participated in the crime.
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9. As regards the submission that the Accused Nos.1 and 2 have wife and children, it is to be noted that the victim is survived by wife and four children.
10. Offence under section 302 of Indian Penal Code provides punishment of death penalty or life imprisonment and fine. It is in the said order the punishment is mentioned in the provision. Therefore, the facts and position of law will have to be considered to decide appropriate sentence.
11. In the case of Alister Anthoy Pereira Vs. Statr of Maharashtra, reported in (2012) 2 SCC 648, it is held, sentencing is an important task in the matters of crime and among the prime objectives of the criminal law is imposition of appropriate, adequate and just and proportionate sentence that commensurate with the nature and gravity of the 81 SC 593/2017 crime and the manner in which the crime is done and there is no straight jacket formula for sentencing an accused on proof of crime and the twin objective of the sentencing policy is deterrence and correction. In the case of Dhananjoy Chattergey Vs. State of West Bengal, reported in (1994) 2 SCC 220, Apex court has observed that while imposing sentence, the Courts must not only keep in view the rights of the criminal, but also the rights of the victim and the Society at large and the punishment which will be awarded must not be irrelevant, but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to society's cry for justice against the criminal. Further, so far as imposing the punishment of death penalty, though no straight jacket formula is 82 SC 593/2017 evolved, it is consistently being observed by the Apex Court in the 'rarest of the rare cases' death penalty should be imposed.
12. In the case of Haresh Mohandas Rajputh Vs. State of Maharashtra, reported in (2011) 12 SCC 56, Apex court has observed at para-20 as follows:-
"Rarest of the rare case" comes when a convict would be a menace and threat to the harmonious and peaceful co-existence of the society. The crime may be heinous or brutal but may not be in the category of "rarest of the rare case". There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious co-existence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur-of-the- 83 SC 593/2017 moment provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fiber of the society, e.g. crime committed for power or political ambition or indulge in organized criminal activities, death sentence should be awarded"
13. So, while considering whether the case is fit for treating same as rarest of the rare cases for imposing death penalty, it has to be borne in mind that there must be no reason to believe that the Accused cannot be reformed or rehabilitated and they are likely to continue the criminal acts as would constitute continuing threat to the Society. 84 SC 593/2017
14. In the present case, Accused persons have committed murder of the deceased without there being any provocation by the victim. Murder has been committed for gain and due to contempt towards the fellow beings. They have found the deceased to be an easy target having no defence as he was fully drunk and was in unconscious or semi conscious state of mind. As such, it is a cold blooded murder without any provocation whatsoever from the victim. So far as the manner of committing the murder is concerned, the throat has been cut using a knife. Hence, the cold blooded murder caused by cutting the throat is in fact brutal and inhuman and it shocks conscious of the Society. But, as observed in Haresh Mohandas Rajput case supra crime may be heinous or brutal, but may not still be in the category of rarest of the rare case. In this case, the manner in 85 SC 593/2017 which the crime has been committed is indeed brutal and inhuman. But, even then, I am of opinion that same is not of diabolical nature, which would fall in the category of 'rarest of the rare cases'. Therefore, I am of opinion that the case is not appropriate for imposing sentence of death penalty.
15. Having concluded that the facts and circumstances do not warrant awarding punishment of death penalty for the offence under section 302 of Indian Penal Code, next course available is that as per the said provision minimum punishment prescribed is imprisonment for life and also fine. Similarly, for the offence under section 397 of Indian Penal Code, minimum sentence prescribed is 7 years of Rigorous imprisonment and fine.
86 SC 593/2017
16. With respect to fine amount, there is no maximum amount of fine prescribed under sections 302 and 397 of Indian Penal Code. However, section 63 of the Indian Penal Code states that when the maximum amount of fine which can be imposed is not mentioned in a provision, then same is unlimited; but, however, it should not be excessive. As per the P.M.Report and Inquest, the victim was aged 35-40 years at the time of the crime. Even if the Accused had caused death of the victim by negligence in a motor accident, Legal heirs of the deceased would have been entitled to compensation of Rs.20,00,000/-. Keeping this in view, I am of opinion that imposition of fine amount may be considered.
17. Keeping in view of the above said facts and circumstances and position of law, I proceed to pass the following:-
87 SC 593/2017
ORDER Accused Nos.1 and 2 are sentenced to imprisonment for life and fine of Rs.2,50,000/- each for the offence punishable under section-302 of Indian Penal Code. In default to pay the fine amount, the Accused Nos.1 and 2 are ordered to undergo rigorous imprisonment for a period of two (2) years each.
Accused Nos.1 and 2 are sentenced to rigorous imprisonment for a period of Seven (7) years each and fine of Rs.1,00,000/- each for the offence punishable under section-397 of Indian 88 SC 593/2017 Penal Code. In default to pay the fine amount, the Accused Nos.1 and 2 are ordered to undergo rigorous imprisonment for a period of one (1) year each.
Substantive sentence for the offence under section 397 of Indian Penal Code shall run concurrently.
Issue Prison commitment Warrant against Accused Nos.1 and 2 for serving the sentence and commit them to prison.
(D.S.Vijaya Kumar) XXVI Addl.City Civil & Sessions Judge, Bengaluru.89 SC 593/2017
Furnish certified copy of the judgment and order to PW.3 who is the wife of deceased, since recommendation has been made for awarding compensation under the Karnataka Victim Compensation Scheme, 2011, through the Complainant Police, under due Acknowledgement to be returned.
(D.S.Vijaya Kumar) XXVI Addl.City Civil & Sessions Judge, Bengaluru.90 SC 593/2017
ORDER Accused Nos.1 and 2 are sentenced to imprisonment for life and fine of Rs.2,50,000/- each for the offence punishable under section-302 of Indian Penal Code. In default to pay the fine amount, the Accused Nos.1 and 2 are ordered to undergo rigorous imprisonment for a period of two (2) years each.
Accused Nos.1 and 2 are sentenced to rigorous imprisonment for a period of Seven (7) years each and fine of Rs.1,00,000/- each for the offence punishable under section-397 of Indian Penal Code. In default to pay the fine amount, the Accused Nos.1 and 2 are ordered to undergo rigorous imprisonment for a period of one (1) year each.
Substantive sentence for the offence under section 397 of Indian Penal Code shall run concurrently.
Issue Prison commitment Warrant against Accused Nos.1 and 2 for serving the sentence and commit them to prison.
(D.S.Vijaya Kumar) XXVI Addl.City Civil & Sessions Judge, Bengaluru.91 SC 593/2017
Furnish certified copy of the judgment and order to PW.3 who is the wife of deceased, since recommendation has been made for awarding compensation under the Karnataka Victim Compensation Scheme, 2011, through the Complainant Police, under due Acknowledgement to be returned.
(D.S.Vijaya Kumar) XXVI Addl.City Civil & Sessions Judge, Bengaluru.