Bangalore District Court
State By; vs Smt.Reshma on 25 November, 2022
KABC010055682015
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 25th day of November 2022
: PRESENT :
Sri.A.V.Patil, B.Com., LL.B.,
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
SESSIONS CASE No.304/2015
COMPLAINANT: State by;
Madivala Police, Bengaluru.
(By Public Prosecutor)
// Vs.//
ACCUSED : 1. Smt.Reshma
W/o Mukthiyar,
Aged about 30 years,
Residing at Abdulla's House,
8th Main Road, 10th Cross,
Beside Bilal Masjid, Madeena
Nagara, Mangammanapalya,
Bengaluru - 68.
2. Mukthiyar Ahmed @ Mukthiyar
S/o Mohammed Fakruddin,
Aged about 45 years,
Residing at Abdulla's House,
8th Main Road, 10th Cross,
2 SC No.304/2015
Beside Bilal Masjid, Madeena
Nagara, Mangammanapalya,
Bengaluru - 68.
(By Sri.M.R.H./G.R.S, Advocate)
1. Date of commission of : 03.10.2014
offence
2. Date of filing of the : 03.10.2014
complaint
3. Name of the first informant : Sri.Venkatesh, HC
4267
4. Offences complained of : Sec.302, 201 r/w 34
of IPC
5. Date of arrest of accused : 07.10.2014
6. Date of release of the A1 : 17.04.2015
7. Date of release of the A2 : Accused No.2 is JC
8. Date of commencement of : 06.02.2016
recording the evidence
9. Date of closing of the : 29.06.2022
evidence
10. Finding of the Court : Accused found not
guilty.
11. Date of pronouncement of : 25.11.2022
Judgment
(A.V.PATIL)
LXIII Addl. City Civil and Sessions
Judge (CCH-64), Bengaluru City.
3 SC No.304/2015
JUDGMENT
Accused No.1 and 2 have been charge-sheeted by the Madivala Police in Cr.No.1765/2014 for the offence punishable u/s 302 and 201 r/w 34 of IPC.
2. The brief facts of the case of prosecution are as under:
CW1/Sri.Venkatesh, Head Constable, Kalasipalya Police Station lodged Ex.P1/complaint on
03.10.2014 at about 10.50 a.m., before CW37/ Sri.Chennagangaiah, ASI, Kalasipalya Police Station against unknown persons alleging that at about 09.20 p.m. when he was on patrolling duty near the R.K.Lodge, situated near the Kalasipalya Bus Stand, at that time the dogs were barking and dragging a blue bag. On suspicion he went near that bag and on opening the said bag found dead body without head, legs and hands. According to him somebody have killed a person by cutting those parts threw the body in that spot. Immediately, he intimated the same to his higher officers and lodged a complaint as per Ex.P1. On the basis of the complaint, the Investigating Officer investigated the matter and 4 SC No.304/2015 found that the accused No.1 and 2 are wife and husband. The deceased Samiulla was the relative of accused No.1 and often he used to visit the house of accused No.1 and had illicit relationship with accused No.1. On 02.10.2014 at about 08.30 p.m., deceased Samiulla came to the house of accused No.1 and the accused No.2 witnessed the illicit relationship of Samiulla with accused No.1, he picked-up quarrel with the deceased Samiulla. Accused No.1 and 2 with common intention to kill said Samiulla, strangulated him with the help of wire and killed him. Thereafter, accused No.1 and 2 requested CW5 to assist to shift the body but CW5 refused to assist them. In order to disappear the evidence of killing the Samiulla, the accused No.1 and 2 taken the body of the deceased to bathroom and cut the neck of the deceased with the help of chopper and separated the head from the body. Thereafter, both the accused also cut the hands and legs with the help of chopper and packed in a cover. The head of the deceased was put in a plastic bag and kept the body in the bathroom and locked it as nobody should go inside the bathroom. Accused No.1 and 2 changed the dress. On 03.10.2014, accused 5 SC No.304/2015 No.1 and 2 in order to disappearance of evidence, taken the hands and head of the deceased and threw in the big drainage, while coming back, they went to the shop of CW19 and purchased a big plastic bag and 3 plastic covers and returned to home. Both the accused put the dead body without head in blue plastic bag and the legs in the blue and black cover bags, the said cover put in a white plastic bag and they came to Kalasipalya Bus Stand and accused No.1 dropped the bag on the bench put in the Kalasipalya Bus Stand at Kanakapura Bus Stop, accused No.2 threw the plastic bag which bears the head of the deceased in the dust bin situated near the Kalasipalya Main Road Bus Stand, further accused No.2 threw the dress worn by the deceased at vacant place situated near Church at Bommanahalli, B.K.Colony, threw the chopper, mobile phone of the deceased and axle blade at the drainage situated at 18th Cross Road, 7th Stage, 9th Main Road, HSR Layout, thereafter returned to the house and cleaned both room by putting soap powder for disappearance of the evidence of committing offence. They also made efforts to destroy the cloth worn by them. On the point of jurisdiction, case file 6 SC No.304/2015 transferred to the Madivala Police Station. Accordingly, FIR is registered in Cr.No.1765/2014. On the collection of evidence, the Investigating Officer found that the accused have committed the offences punishable u/s 302, 201 r/w 34 of IPC. Accordingly, the charge-sheet is filed against the accused for the aforesaid offences.
3. After filing the charge-sheet, the learned III ACMM, Bengaluru has registered the case in CC No.101/2015 against the accused No.1 and 2. The accused No.1 and 2 are in judicial custody. The learned III ACMM, Bengaluru was supplied the copies of the Police papers as required u/s 207 of Cr.P.C.
4. As per Sec.209 of Cr.P.C., the case has been committed to the Court of Sessions, Bengaluru, as alleged offences are exclusively triable by the Court of Sessions on 23.01.2015. Subsequently, this case has been made over to this Court for disposal in accordance with law on 05.03.2015. After appearance of accused No.1 and 2 in this case, accused No.1 was released on bail on 17.04.2015. The JC of accused No.2 is continued.
5. After hearing both sides, my predecessor-in- office has framed the charge on 19.09.2015 against 7 SC No.304/2015 the accused for the offence punishable u/s 302, 201 r/w 34 of IPC and the case posted for trial.
6. The prosecution has examined in all 22 witnesses as PW1 to 22. Prosecution got marked Ex.P1 to 78 and MO1 to 23.
7. PW1 is the complainant, PW2 is the wife of deceased, PW3 is the brother of the deceased, PW4 is the person who seen the deceased on 02.10.2014, PW5 is the mobile seizure witness, PW6 is the friend of deceased, PW7, 8 and 11 are the spot and seizure mahazar witnesses, PW9 is the bag seller, PW10 is the inquest mahazar witness, PW12 is the Madivala Police Station PSI who registered the FIR, PW13 is the FSL Officer who visited the spot and inspected the scene of occurrence, PW14 is the PSI of Kalasipalya Police Station who arrested the accused No.1 and 2, PW15 is the person who gave Aircel Company Sim, PW16 is the witness to whom accused No.1 and 2 asked assistance to shift the dead body, PW17 is the FSL Officer who inspected 17 + 12 articles, PW18 is the witness who saw the bag which kept near the Kalasipalya Bus Stand in a plastic bag, PW19 is the Doctor who conducted the Postmortem, PW20 is the FSL Officer who inspected 4 articles, 8 SC No.304/2015 PW21 and 22 are the Investigating Officers.
8. After closure of prosecution witnesses, the statement of accused has been recorded u/s 313 of Cr.P.C on 28.09.2022. All the incriminating evidence appearing against the accused has been read over and explained but they have denied the same. The accused neither adduced their oral evidence nor got marked any documents in their behalf.
9. The learned Public Prosecutor argued that in this case there are no direct eye witnesses available and the entire case of the prosecution rests on the circumstantial evidence. To prove the guilt of the accused No.1 and 2 prosecution has examined PW1 to 22. The prosecution mainly relied on the evidence of PW1/complainant, PW2/wife of the deceased, PW3/brother of the deceased, PW4/who saw the dead body on 20.10.2014, PW16/who saw the dead body in the house of accused. All the witnesses have given evidence in consonance with the prosecution case. No doubt it is true that the face (runda) of the dead body is not found, the Ex.P33/DNA Report clearly indicates that the dead body is of the husband of PW2. The blood found on the cloth of accused and of the deceased having same blood group. PW16 has 9 SC No.304/2015 also given statement before the Magistrate. The other evidence produced by the prosecution clearly establishes that the accused have committed the murder of the husband of the PW2 and in order to disappear the evidence they have cut the hands, legs and face of the body and throw at different places. The body parts recovered at the instance of the voluntary statement given by the accused Nos.1 and
2. The evidence on record is sufficient to prove the allegations made in the charge sheet. Hence, he prayed to convict the accused.
10. Per contra the learned Counsel for accused argued that accused Nos.1, 2 and deceased are relatives. According to the prosecution the alleged incident took place because of the illicit relation between accused No.1 and deceased but absolutely no evidence placed on record to prove the alleged illicit relation. No motive is proved to commit offence by the accused. There are no eye witnesses and the entire case of the prosecution is on the circumstantial evidence. In case of circumstantial evidence the heavy burden lies on the prosecution to link the chain completely. No complaint is filed by any of the individual person about the falling of the 10 SC No.304/2015 dead body at Kalasipalya. As per the evidence on record the said place is fully crowded place and if really such body was lying in a crowded place, one of the public would have lodged the complaint. PW2 being the wife of the deceased has not spoken anything about the illicit relation relation between deceased and the accused No.1. The deceased left to Bangalore on 2.10.2014 and till 05.10.2014 no action has been taken either by the wife or bother of the deceased missing of deceased. The evidence given by PW2/wife of the deceased is no way helpful to prove the charges alleged against the accused. The Investigation Officer fails to search the head of the dead body and he has clearly stated that in the absence of searching of head of the dead body cannot be said that the body found is of the deceased Salman Khan. According to the prosecution case the telephone conversation took place between accused No.1 and deceased and between accused No.1 and PW16 but failed to prove through which phone numbers the conversation took place. The evidence of PW4 cannot be believed because he has not seen that the deceased went to the house of accused Nos.1 and 2. In this case, the mahazar witnesses have 11 SC No.304/2015 though partly supported the prosecution case, the material elicited in the cross-examination is sufficient to prove that in their presence no mahazars were conducted. Except the voluntary statement alleged to have been given by the accused Nos.1 and 2, absolutely there is no material to prove that the incident occurred as alleged by the prosecution. The FSL reports are not admissible because none of the exports have given the details of conducting the examination date wise. The shop owner whom the accused have purchased the bag turned hostile. PW19/Doctor who conducted the postmortem has not given opinion when the death has occurs. The material elicited in the cross-examination of Investigation Officer clearly discloses that there is no connection to accused Nos.1 and 2 and the alleged incident. First of all the prosecution fails to prove the death of Salman Khan for want of the head portion. Secondly, the prosecution fails to prove the phone numbers of the deceased, accused No.1 and PW16. Thirdly, the Investigation Officer has not collected any material that the phone numbers alleged in the charge-sheet were using by the deceased, accused No.1 and PW16. The tower locations of the said 12 SC No.304/2015 phone numbers have not been ascertained. In the absence of all these particulars the prosecution measurably fails to prove the chain of link. According to him the prosecution fails to prove the accused have committed the offence as alleged in the charge sheet. Hence, prayed to acquit the accused. In support of his arguments has placed reliance on the following citations:-
1. (2019)4 SCC 522 (Digamber Vaishnav and another Vs. State of Chhattisgarh)
2. 2019 0 Supreme (Kar) 1879(Nagappa S/o Manappa Vs. State of Karnataka)
3. (2011)14 S C C 117 (Manthuri Laxmi Narsaiah Vs. State of Andra Pradesh)
4. Crl.Appeal Nos.430-431 of 2015 (Jafarudheen and others Vs. State of Kerala)
5. (2010)6 S C C 525(Niranjan Panja Vs. State of West Bengal)
11. Perused the materials placed on record.
12. Now the following points arise for my consideration are:-
1. Whether the prosecution proved beyond all reasonable doubt that the deceased Samiulla had illicit relationship with accused No.1 and on 02.10.2014 at about 08.30 p.m., when he was in illicit 13 SC No.304/2015 relationship with the accused No.1 in house situated at 8th Main, 10th Cross, Madeena Nagar, Mangammanapalya, Bengaluru, accused No.2 saw the same and picked-up a quarrel with him and both accused No.1 and 2 with common intention strangulated him with the help of black wire and killed him and thereby committed offences punishable u/s 302 r/w 34 of IPC?
2. Whether the prosecution further proved beyond all reasonable doubt that on the above said date, time and place after committing the murder of the deceased Samiulla, in order to destroy and disappear the evidence, cut the body of the deceased in pieces with the help of chopper and axle blade, threw the parts of the body at different places and the weapons used to commit offence threw in the big drainage situated at 2nd Cross, Manjunatha Nagar and cleaned the bathroom by putting soap powder and thereby committed offences punishable u/s 201 r/w 34 of IPC?
3. What order?
13. My findings on the aforesaid points are as follows Point No.1 & 2 : In the negative Point No.3 : As per the final order for the following:
14 SC No.304/2015-: R E A S O N S :-
14. Point No.1 and 2:- As both the points are inter linked with each other, to avoid repetition, both the points taken together for discussion. In order to prove the guilt of the accused, the prosecution has examined in all 22 witnesses as PW1 to 22.
15. PW1/Venkatesh is the complainant. He deposed about lodging of complaint as per Ex.P1 and also stated about conducting of the Spot Panchanama as he pointed out the spot. In the cross-examination, he has stated that the spot is busy with the movement of the public, there is full facility of light.
16. PW2/Taseena is the wife of the deceased deposed that, she does not know what was the relationship between her husband and accused No.1. Her husband was borrowed money from the finance by mortgaging lorry and this fact came to her knowledge when finance people came to her house for recovery. She made quarrel with accused No.1 in connection with money, apart from finance transaction, they have some other relation. On 02.10.2014, accused No.1 called to her husband 28 to 30 times through phone and asked him to come to 15 SC No.304/2015 receive the money. The mother and brother of accused No.1 visited the house of her sister-in-law and informed that, the dead body without head was found belongs to the Muslim community person. Thereafter, along with CW4 she came to Kalasipalya police station, Bengaluru and the police showed the photos of the dead body which does not have the legs, head and hand. Thereafter, in Victoria Hospital saw the legs and she noticed the mark below the knee and on the basis of that, she identified the body of her husband. She has given the statement before the police that, her husband went to the house of accused No.1 to get money. Accused No.1 called her husband saying that, she will pay the money and murdered him. In the cross-examination, deposed that, she does not know when an amount was given to the first accused, she does not have any documents to show that, her husband borrowed the loan and he paid the amount to the accused No.1. When the accused No.1 came to Denkanikote to her parental house, at that time, the galata took place, but she does not know the date. From the date of leaving her husband from the house till the identifying the body of her husband, she has not 16 SC No.304/2015 lodged any missing complaint. Even she did not file any complaint against the accused No.1 on suspicion. She has given documents to show that, the mobile belongs to her husband i.e., phone number. She does not know the phone number of her husband to which the first accused called 20 to 30 times. She admits that, her husband borrowed the loan by mortgaging the lorry and even he borrowed hand loan for lorry.
17. PW3/Sadiq Pasha is the brother of the deceased. Accused No.1 is his relative. Accused No.1 had relation with deceased/Samiulla. Accused No.1 had illicit relation with the deceased/Samiulla. He advised accused No.1 in that connection. CW3 identified the body of her husband on the basis of mark found on the leg. He has stated before the police that, the deceased went to the house of accused No.1 to bring money and he has doubt on accused No.1 and 2. In the cross-examination deposed that, he does not know from whom the deceased was bringing money and what he was doing. The quarrel took place between the deceased and CW3 never went to the police station. He cannot say the name of Kannada newspaper dated 05.10.2014 in which he saw the message. He does 17 SC No.304/2015 not remember how much money paid by the deceased to accused No.1. He has not handed over any documents in connection with the financial transaction alleged to have taken place between deceased and accused No.1.
18. PW4/Slaman Khan is the relative of deceased/Samiulla. He deposed that, on 02.10.2014 at about 8.00 p.m., he had been to the Kirana shop situated near his house at Madina Nagar, at that time, the deceased was there. On enquiry, deceased informed that, he has some work and after completion, he will come to his house. When he was going to his home, he saw that, the deceased was going to the house of accused. After returning to home, he informed this fact to his mother.
19. PW5/Mehaboob Pasha is the Ex.P2/seizure mahazar witness. He deposed that, on 06.10.2014 police called him to Kalasipalya police station, at that time, accused No.1 and 2 were in the police station. Accused No.1 produced MO5/Nokia mobile and MO6/MTS mobile. Accused No.2 produced MO7/Nokia mobile. Police seized those mobiles by conducting Ex.P2/mahazar. In the cross-examination by the accused side, he deposed that, he does not 18 SC No.304/2015 know reading and writing of Kannada and therefore, he does not know what has written in Ex.P2/mahazar. As per the request of the police, he put the signature in the police station. Police Inspector, showed three mobiles. He cannot say from whom those three mobiles are taken.
20. PW6/Shabbeer is the friend of deceased. He does not know the relationship between accused No.1 and deceased/Samiulla and galata alleged to have took place between them. At this stage, the Learned Public Prosecutor treated the witness as hostile and cross-examined. In the cross-examination, she denied almost all the suggestions made to her and denied to have given the statement as per Ex.P3.
21. PW7/Roshan Sameer is Ex.P4/mahazar witness. He deposed that, in the year 2004, one day, Kalasipalya police inspector called him to the house of accused No.1. At that time, accused No.1 was alone in the house. Police informed that, someone found murdered and therefore, they are conducting the mahazar. Accused No.1 has not stated anything to the police in his presence. Police went inside the house, but no property seized from the house. Thereafter, police taken along with accused No.1 to 19 SC No.304/2015 Bommanahalli Main Road. In a open space, a pant and shirt found and accused No.1 shown the said pant and shirt to the police. Accused No.1 has not stated the said pant and shirt belongs to whom. Thereafter, the police have taken them along with the accused No.1 to the place situated at H.S.R.Layout. In that place, a mobile was found. The police have taken the mobile. In that place, accused No.1 has not stated anything to the police with regard to the said mobile. Accused No.1 has not shown any other property to the police and police have not made any writing in the places wherever they visit. After return in the police station, police have taken his signature on 8 to 10 papers. He identified his signature on Ex.P4 and Ex.P11. He does not know what has been written in said documents. At this stage, Learned Public Prosecutor treated the witness as hostile. PW7 admitted suggestions made to him. In the cross- examination made by the accused, he admits that, he put signatures on Ex.P4 and Ex.P11 in police station. Police have written the contents of the said documents in the Police Station.
22. PW8/Sunil Kumar is Ex.P5/mahazar witness. He deposed that, in the year 2014, during Dasara 20 SC No.304/2015 time, at about 10.30 p.m., they were doing the business of selling bags and police asked him as to whether he sold the white color plastic bag. IN response to it he informed that, it is not possible for him to say whether he sold that bag. Thereafter, in the night hours, the police called him to Kalasipalya BMTC Bus stand and found blue color plastic bag, in side bag, the police found the dead body without hands, legs and head. The police have not intimated anything with regard to the said dead body. Police have not seized any of the properties from that place in his presence. Police have not taken him to another place and have not searched the hands, legs and head of the body. At this stage, Learned Public Prosecutor treated the witness as hostile and cross- examined. In the cross-examination, this witness admitted the some suggestions put to him by the Learned Public Prosecutor. In the cross-examination by the accused side, witness deposed that, police have not issued any notice to him and have pasted the white chit with the signature on MO8 and MO9 in the police station.
23. PW9/Fayaz Khan is the bag seller. He deposed that, police have not shown him accused No.1 and 2.
21 SC No.304/2015Police have not recorded his statement. At this stage, witness treated as hostile and cross examined by the PP. In the cross-examination denied all the suggestions made to him and denied to have given the statement as per Ex.P7.
24. PW10/Mohammed Ali is Ex.P8/Inquest mahazar witness. He identified his signature on Ex.P8. He does not know what has been written in it. He cannot say as to why he put the signature on it. He also does not know apart from him who are all signed the said document. At this stage, Learned Public Prosecutor treated the witness as hostile and cross examined. In the cross examination he denied all the suggestions made to him.
25. PW11/Mohammed Aseef is the Ex.P4 and Ex.P11/mahazars witness. He deposed that, 5-6 years back Kalasipalya police called him to the house of accused No.1 and 2 and shown a blade, wire and clothe. In his presence neither accused No.1 nor accused No.2 have stated anything to the police. He does not know what police have done with that blade, wire and clothe. Thereafter, police have taken him and accused near the Church situated about 2 kms. behind the house of accused and at a vacant place 22 SC No.304/2015 near the dustbin, accused No.1 and 2 have shown the blue color jeans pant and white shirt by saying that, they threw the said pant and shirt. The accused did not say anything to whom the said jeans pant and shirt belongs to. Thereafter, police have taken him to the big drainage of H.S.R.Layout. Accused No.1 and 2 have said that, they threw the mobile in the said drainage. Police have searched for mobile, but not found. The police have not made any writing in the place where ever they visited and after returning to the police station, police have taken his signature on a document. After taking signature on Ex.P4, again police called him to the house of accused No.1 and 2 along with doctor. Accused have shown the bathroom to them. Doctor sprinkled the chemical in the bathroom and collected the swabs from the bathroom. At this stage, Learned Public Prosecutor treated the witness as hostile and cross- examined him. In the cross-examination, he admitted the suggestions made to him. In the cross- examination by the accused side, deposed that, police have not given any written notice to act him as pancha. He does not remember, who wrote the mahazar.
23 SC No.304/201526. PW12/Puttalinga Shetty is the P.S.I. of Madiwala Police Station. He deposed that, on 16.12.2014 at about 2.30 p.m., when he was Station House Officer, Kalasipalya police constable produced the file and order of the court. Accordingly, he registered the case and sent F.I.R. to the Court.
27. PW13/B.C.Ravindra is the F.S.L. Officer, who visited the house of the accused and examined the bathroom. On 07.10.2014, accused No.1 and 2 taken him and police officials to bathroom. When he saw the bathroom, he found that, it was cleaned. In the presence of panch witnesses, he sprinkled the chemical in the bathroom. After switching of the lights in the house, he sprinkled luminal chemical and said chemical was shining like star and thereby he get it confirmed that, the blood oozed in the bathroom was cleaned. For chemical examination, he collected swab from the bathroom and through Ex.P6 he sent the said articles to the police. In the cross- examination by the Advocate for accused, deposed that, if blood oozed spot is cleaned in that case, cannot definitely say for how many period the blood oozed spot can be identified.
28. PW14/Mallikarjuna N.C. is the P.S.I. of 24 SC No.304/2015 Kalasipalya Police Station. He deposed that, on 06.10.2014 as per instructions of the Police Inspector, he searched the accused No.1 and 2 in their house and produced before the Police Inspector along with Ex.P27/Report.
29. PW15/Pyare Jan is the sim holder of sim No.9842782644. He deposed that, in the year 2017 he produced a Aircel sim in Dinesh Enterprises of Krishnagiri and given the sim card to deceased Samiulla for use. The said sim was using by deceased/Samiulla. In the cross-examination by the accused side, deposed that, he purchased the said sim for his self-use. He has not taken any document for having given the sim to Samiulla. He is MA., B.Ed., graduate. He has not intimated to Aircel company that said sim was using by the deceased/Samiulla. He has not made any efforts to change the sim in the name of Samiulla.
30. PW16/Rounath Pasha deposed that, he was working as liner in the shop of Zameer Khan situated at 7th Cross, Siddapura. He used to sleep in the shop. By appreciating his work, some customer has given him MTS mobile. The said mobile had two sims. Second sim was given by his friend. About 7-8 25 SC No.304/2015 years back, he was admitted in Jayadeva Hospital, Bengaluru, during that period, accused No.1 used to come to the said hospital. At that time, he came in contact with her. Since then, they used to talk in the phone. On 02.10.2014, between 9.00 - 10.00 p.m., accused No.1 called him 2 - 3 times and when he received the call, she asked him to come to house immediately. Accordingly, he went to the house of accused. He noticed the dead body of male person on the bed, two children were sleeping on the floor. On enquiry, accused No.1 informed that, the dead body is of one Sameer, quarrel took place between herself, accused No.2 and deceased, at that they killed by strangulating him with wire and accused No.1 asked him to shift the dead body from her house. Looking to the dead body, he scared and came away from that house. Due to said incident, he gets fever and next day morning 5.00 to 6.00 a.m., after giving information to his owner went to his native place. Police have not intimated anything to him. One day, he brought to the Court and in the Court, he has stated same thing as per Ex.P30. At this stage, learned Public Prosecutor, treated the witness as hostile and cross-examined. In the cross-
26 SC No.304/2015examination, witness admitted certain suggestions. In the cross-examination by the accused side, he deposed that, he has not given any documents to show that, he was working in the shop. The sim No.8453845056 is not standing in his name. He has not given any document to show that, he was using that sim card and admitted in the hospital as inpatient.
31. PW17/Smt. Shehanaz Fathima is the F.S.L. Officer. She deposed that, as per the requisition of Madiwala police, she received 17 articles for chemical examination. She examined the articles in forensic method and found human blood on articles No.1 to 17, 9 to 17 and not found any blood on remaining articles. She cannot identify the blood group found on articles No.1 to 4, 12, 14 and 15. However, found 'O' group blood. Accordingly, she issued Ex.P31/Report.
32. On 06.11.2014, Kalasipalya police submitted 12 articles for chemical examination along with D.N.A. Center Identification Form and DNA Center Forwarding Note. In 12 articles she received the bloodstained cotton, blood of Shake Peer, meat pieces, liver piece, chest bone piece, blood sample, 27 SC No.304/2015 preservative bottle, right thigh bone piece, thigh meat pieces, left bone piece, meat piece and preservative bottle. She examined all the articles in forensic method and found that, liver piece belongs to one male member. Articles No.1, 3, 5, 6, 8 to 11 does not have sufficient extent DNA profile examination. Item No.2 blood and blood found in the item No.4 are matching each other. The blood of Shake Peer is belongs to his genetic father. In the cross- examination by accused side, she deposed that, there is some procedure to collect the blood of a person and after collecting the same immediately it has to send for examination. She has not mentioned in the report as to the date on which, she opened the articles. On 07.09.2020 she issued DNA certificate.
33. PW18/Venkatesh deposed that, in the month of October 2014 at about 9.00 p.m., near his shop on footpath, people were gathered. On that day, the dead body of a person was fallen which has no head and legs. Police have taken the body.
34. PW19/Dr.S.Venkata Raghava is the medical officer. He deposed that, on 14.10.2014 he received the dead body of Samiulla for post mortem along with requisition. He conducted post mortem and by 28 SC No.304/2015 noting the details, he issued Ex.P37/P.M.Report. In the cross-examination, he admits that, he has not expressed any opinion as to when the death of that person occurred.
35. PW20/Dr.Gundamma Patil is F.S.L.Officer. She deposed that, she received 4 articles for chemical examination. After forensic method, she examined the said articles and issued Ex.P44/Report. In the cross-examination by the accused side, she admitted that, there is no mention in Ex.P44 the date on which said articles are opened.
36. PW21/Anil Kumar G.S. is the Investigating Officer. He deposed about conducting the investigation. Accused No.1 and 2 have given voluntary statements as per Ex.P53 and Ex.P54 respectively. In the cross-examination, deposed that, at about 9.20 p.m., received the phone call and has not intimated immediately to the Control Room or to his higher officials. Even did not given message to police station. He has not collected CC TV footage from the CC TV fixed near Kalasipalya market. There is no evidence to show that, accused have threw the bag near Kalasipalya market. The spot situated near Kalasipalya market is a busy spot and used to 29 SC No.304/2015 appoint TC from the BMTC Department. The TC of BMTC department has not given any information about falling of bag to the police station. He cannot say, who was appointed to the duties at police station on the alleged time. He has not made any enquiry about those officials. The officials appointed at beat No.1 and 2 for duty on the alleged date have not given any information. Even the Hoysala and Cheeta patrolling officials have also not given any information about galata. He has not given documents to show about issuing notice before examination of CC TVs. He has not recorded the statements of children of accused No.1 and 2. Except the statement of accused no other statement recorded in connection with having illicit relationship of deceased with accused No.1. The spot of incident is situated at 2nd floor and to go that spot, one has to pass through ground floor and first floor and said spot is busy spot. In case of cutting the human body, the blood will be oozed. He does not found any signs of oozing of blood. He has not seen the oozing of blood from the house of accused situated at second floor up to road. He has not recorded the statements of neighbors, residents of the house of accused No.1 30 SC No.304/2015 and 2. He has not enquired the said residents with regard to illicit relation of deceased and accused. He has not collected any evidence to show that, deceased went to the house of accused No.1 and 2. He has not taken any assistance from the finger print experts and dog squad. He has not found any of the articles in the house of accused belongs to the deceased. Except to conduct spot mahazar and at the time of visiting F.S.L. officer, he never visited the spot of incident. There is no evidence to show that, the accused shifted the dead body of deceased from their house. After 8 days from the date of incident, he recorded statements of CW5. No evidence available to show that, CW5 visited the house of accused and saw the dead body. CW5 has not given any statement till arrest of accused. He has not made any enquiry with Jayadeva Hospital with regard to taking treatment as inpatient by CW5. No evidence found to show CW5 and accused No.1 was known to each other. The SIM No.8453845056 was used by CW5 stands in the name of one Prasanna Kumar and he has not enquired the said Prasanna Kumar. He did not find any documents to show that said Prasanna Kumar handed-over the above said SIM to CW5. Except the 31 SC No.304/2015 statement of CW5, there is no oral or documentary evidence in that regard. There is no mention that on which date and time CW5 went to the house of accused No.1. As per Ex.P77/CDR, at about 11.45 p.m., CW5 was within the jurisdiction of Madivala. The house of the accused No.1 is situated within the jurisdiction of Bommanahalli. Till 11.45, in which jurisdiction CW5 was available has not been investigated. He has not made enquiry the family members of CW5 as to whether he was scared by seeing the dead body. The SIM alleged to have been used by accused No.1 standing in the name of Thousif Pasha. He has not enquired the said Thousif Pasha and he has not cited as a witness in the charge-sheet. No documents collected to show that Thousif Pasha handed-over the SIM to accused No.1. No documentary evidence to show that the accused No.1 using that SIM. As per Ex.P73/CDR, on 02.10.2014 at about 09.30, 09.31, 09.54, 10.35 and 11.05, CW5 talked with accused No.1. During that time, the SIM alleged to have been used by accused No.1 was within the jurisdiction of HSR Layout and not within the jurisdiction of Madivala. The HSR Layout jurisdiction and Bommanahalli jurisdiction 32 SC No.304/2015 are entirely different. He has not collected the text message and whatsapp message pertains to accused No.1 and CW5. The 161 Cr.P.C., statement of CW5 recorded on 10.10.2014 and the 164 Cr.P.C., statement recorded on 20.10.2014. So far the upper portion of the body i.e., head has not been searched. As the head portion is not secured, it is difficult to say particular person died. During the investigation, it has come to his knowledge that the SIM alleged to have been used by the accused and deceased are showing at a different place. At the time of murder, the different parts of the body thrown on different places, he has not compared the mobile tower location of accused No.1 and 2. No documents found to show that SIM alleged to have been used by accused No.1 and deceased belongs to them and they were using the said SIM Cards. No evidence found to show that the mobiles alleged to have been used by accused No.1, 2, deceased and CW5 were using by them. No missing complaint is filed in respect of the deceased Samiulla. Parts of the body was shifted from one place to another place in Autorickshaw, he has not ascertained Autorickshaw number, name and owner of the said Autorickshaw. He has not made 33 SC No.304/2015 any efforts to collect the CCTV footage fixed nearby the place of incident. No evidence available to show that the articles collected in this case belongs to the deceased.
37. PW22/Raghavendra, Investigating Officer, deposed that after taking the file from CW41, recorded the statement of CW23 and after completion of investigation, filed the charge-sheet. In the cross- examination, he admits that he never visited the spot of incident and spot where the different parts of the body was thrown. He did not make any efforts to interrogate the adjacent residents of the spot even after coming to know that no statement is recorded of adjacent residents.
This is all the oral evidence placed on record by the prosecution to prove the guilt of the accused. Prosecution in support of its case has also got marked Ex.P1 to 78 and MO1 to 23.
I have gone through the judgments relied on by the learned Counsel for accused and kept in mind the view taken in the said judgments while appreciating the evidence on record and coming to the final conclusion. I respectfully agree with the views taken in the said judgments.
34 SC No.304/201538. In this case it is the definite case of the prosecution that the accused No.1 had illicit relationship with the deceased. On 02.10.2014 at about 08.30 p.m., the deceased came to the house of accused and when accused No.2 saw personally the deceased was in illicit relationship with the accused No.1, accused No.2 picked-up quarrel with the deceased and accused No.1 and 2 with common intention in order to kill the deceased, strangulated the neck of the deceased with the help of two pin plug wire and murdered him. CW6 has lastly seen the deceased going to the house of accused. In order to shift the dead body of deceased, accused sought the help of CW5, but with the fear he did not made any help. Thereafter, accused No.1 and 2 in order to disappear the evidence of committing murder, thought to shift the dead body of deceased to some other place and took the dead body to their bathroom, cut the neck with the help of chopper, separated the neck with the help of axle blade, cut the hands and legs of the body, packed the hands in a cover available in the house, put the head in another plastic bag and by keeping the remaining part of the body and legs in the bath room, both the 35 SC No.304/2015 accused changed the dress. On 03.10.2014, to destroy the evidence of committing the murder both the accused took the head and hands of the deceased and threw in the big flowing drainage at 2nd Cross of Manjunatha Nagar. Then accused purchased a big plastic bag and three plastic covers in the shop of CW19 and returned to their home, put the portion of the dead body i.e., without head, hand and legs in the blue plastic bag and put the legs in the blue and black cover bag and in order to cover them, put the pillow and took the said bag and accused No.1 kept a bag at Kanakapura Bus Stop in Kalasipalya Bus Stand. Accused No.2 took the bag which contains the body without head, leg and hands put by the side of dust bin situated near the Kalasipalya Main Road Bus Stand foot path. Then both accused returned to the home, accused No.2 collected the cloth worn by the deceased and threw in an open place dust mass situated by the side of Church situated at BKL Colony, Bommanahalli Thereafter, accused No.2 threw the chopper, axle blade used for commission of offence and mobile of the deceased in drainage situated at 18th Cross, 9th Main, HSR Layout, Bengaluru. After returning to the home, accused 36 SC No.304/2015 cleaned the bath room by putting soap powder and cleaned the blood stains and thereby attempted to destroy the evidence of committing the murder of deceased Samiulla.
39. In this case according to the Advocate for accused the prosecution fails to prove that the parts of the dead seized by conducting the mahazar pertain to Samiulla. In view of the said contention, the entire burden is on the prosecution to prove that the parts of the dead seized by conducting the mahazar pertain to Samiulla. In order to prove the said fact prosecution has placed on the evidence of PW17/FSL Officer, PW19/Medical Officer and PW20/ IO.
40. The DNA evidence is in the nature of opinion evidence as envisaged under Section 45 and like any other opinion evidence, its probative value varies from case to case. In this regard very pertinent observations made by Hon'ble Apex Court in case of Manoj and Ors.Vs. State of Madhya Pradesh deserves to be made. This Court has in detail dealt with the issue of DNA profiling methodology and statistical analysis, as also the collection and preservation of DNA evidence. The relevant paragraphs read as 37 SC No.304/2015 under:-
"138. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata was relied upon. The relevant extracts of the ar- ticle are reproduced below:
"Deoxyribonucleic acid (DNA) is genetic material present in the nuclei of cells of living organisms. An average human body is composed of about 100 trillion of cells. DNA is present in the nucleus of cell as double helix, supercoiled to form chro- mosomes along with Intercalated proteins. Twenty-three pairs of chromosomes present In each nucleated cells and an individual Inherits 23 chromosomes from mother and 23 from father transmitted through the ova and sperm respec- tively. At the time of each cell division, chromo- somes replicate and one set goes to each daugh- ter cell. All Information about Internal organisa- tion, physical characteristics, and physiological functions of the body is encoded in DNA mole- cules in a language (sequence) of alphabets of four nucleotides or bases:
Adenine (A), Guanine (G), Thymine (T) and Cyto- sine (C) along with sugar-phosphate backbone. A human haploid cell contains 3 billion bases ap- prox. All cells of the body have exactly same DNA but it varies from individual to Individual in the sequence of nucleotides. Mitochondrial DNA (mtDNA) found in large number of copies in the mitochondria is circular, double stranded, 16,569 base pair in length and shows maternal inheritance. It is particularly useful in the study of people related through the maternal line.
Also being in large number of copies than nu- clear DNA, it can be used in the analysis of de- graded samples. Similarly, the Y chromosome 38 SC No.304/2015 shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures. Only 0.1 % of DNA (about 3 million bases) differs from one per- son to another. Forensic DNA Scientists analyse only few variable regions to generate a DNA pro- file of an individual to compare with biological clue materials or control samples.
DNA Profiling Methodology DNA profile is generated from the body fluids, stains, and other biological specimen recovered from evidence and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with crime scene can be es- tablished. DNA Profiling Is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed Genetic Markers.
The current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs). Analysis of a set of 15 STRs employing Auto- mated DNA Sequencer gives a DNA Profile unique to an Individual (except monozygotic twin). Similarly, STRs present on Y chromosome (Y-STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sex- ual assaults, Y-STRs are helpful in detection of male profile even in the presence of high level of female portion or in case of azoo11permic or va- sectomized" male. Cases In which DNA had un- dergone environmental stress and biochemical degradation, min lSTRs can be used for over rou- tine STR because of shorter amplicon size. DNA Profiling is a complicated process and each sequential step involved in generating a profile can vary depending on the facilities available In 39 SC No.304/2015 the laboratory. The analysis principles, however, remain similar, which include:
1. isolation, purification & quantitation of DNA
2. amplification of selected genetic markers
3. visualising the fragments and genotyping
4. statistical analysis & interpretation. In mtDNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples: Statisti-
cal Analysis Atypical DNA case involves compar- ison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile compari- son:
1) Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched.
2) Exclusion: If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources.
3) Inconclusive: The data does not support a con-
clusion Of the three possible outcomes, only the "match" between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statis- tics are usually provided as an estimate of the Random Match Probability (RMP) or in other words, the frequency of the particular DNA pro- file in a population.
In case of paternity/maternity testing, exclusion at more than two loci is considered exclusion. An allowance of 1 or 2 loci possible mutations should be taken Into consideration while report-
40 SC No.304/2015ing a match. Paternity of Maternity Indices and Likelihood Ratios are calculated further to sup- port the match.
Collection and Preservation of Evidence If DNA evidence is not properly documented, col- lected, packaged, and preserved, It will not meet the legal and scientific requirements for admissi- bility in. a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is nec- essary while locating, collecting, and preserving DNA evidence can be contaminated when DNA from another source gets mixed with DNA rele- vant to the case.
This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish link among victim(s), sus- pect(s), scene of crime for solving the case should be Identified, preserved, packed and sent for DNA Profiling."
139. In an earlier judgment, R v. Dohoney & Adams the UK Court of Appeal laid down the fol- lowing guidelines concerning the procedure for introducing DNA evidence in trials:
(1) the scientist should adduce the evidence of the DNA comparisons together with his calcula- tions of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the de-
fence details as to how the calculations have been carried out, which are sufficient for the de- fence to scrutinise the basis of the calculations;
41 SC No.304/2015(3) the Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been based.
140. The Law Commission of India in its report, observed as follows:
"DNA evidence involves comparison between ge- netic material thought to come from the person whose identity is in issue and a sample of ge- netic material from a known person. If the sam- ples do not 'match', then this will prove a lack of identity between the known person and the per- son from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA "profile" or "fingerprint" is found. It may be, for example, that the relevant profile is found in 1 person in every 100,000:
This is described as the 'random occurrence ra- tio' (Phipson 1999). Thus, DNA may be more use- ful for purposes of investigation but not for rais- ing any presumption of identity in a court of law."
141. In Dharam Deo Yadav v. State of UP this court discussed the reliability of DNA evidence in a criminal trial, and held as follows:
"The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made-up of a double standard structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. DNA usually can be obtained from any biological 42 SC No.304/2015 material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtu- ally infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the Court often accepts the views of the experts, especially when cases rest on cir- cumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile, however, is consistently held to be valid and reliable, but of course, it de- pends on the quality control and quality assur- ance procedures in the laboratory."
142. The US Supreme Court, in District Attor- ney's Office for the Third Judicial District v. Os- borne, dealt with a postconviction claim to ac- cess evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that "Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid- 1980s, there have been several major advances in DNA technology, culminating in STR technol- ogy. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many crimi- nal trials proceed without any forensic and sci- entific testing at all, there is no technology com- parable to DNA testing for matching tissues when such evidence is at issue. DNA testing has 43 SC No.304/2015 exonerated wrongly convicted people, and has confirmed the convictions of many others."
143. Several decisions of this court - Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh, Santosh Kumar Singh v. State Through CBI, Inspector of Police, Tamil Nadu v. John David, Krishan Kumar Malik v. State of Haryana, Surendra Koli v. State of Uttar Pradesh, and Sandeep v. State of Uttar Pradesh, Rajkumar v. State of Madhya Pradesh and Mukesh v. State for NCT of Delhi have dealt with the increasing importance of DNA evidence. This court has also emphasized the need for assuring quality control, about the samples, as well as the technique for testing-in Anil v. State of Maha- rashtra "7. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, se- men, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory."
41. Keeping in mind the principles laid by Hon'ble Apex Court let me consider the present facts of the case. No doubt it is true that PW17/Shehanaz Fatima, Assistant Director, FSL, Bengaluru had stepped into the witness box and her report regarding 44 SC No.304/2015 DNA profiling was exhibited as Ex.P33. However, mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the relating to the deceased were taken by the PW19/Medical Officer on 14.10.2014 and the samples relating to Shaikh Peer were taken on 18.10.2014; and they were received by FSL for examination on 06.11.2014. During this period, they remained in the Kallyasiplya Police Station.
42. PW20 in the cross examination has clearly admitted that in the absence of head it is difficult to say the dead body is of the particular person. Therefore, the evidence of IO is no way helpful to the prosecution. No doubt PW17 has given opinion that the piece of liver sent in item No.4 was of human origin and of male sex. The DNA profile results of Shaik Peer sample blood sent in item No.2 is matching with the DNA profile results of the individual from who the piece of liver was collected and sent in item No.4. Therefore, Shaik Peer S/o late Dawood Sab sample blood sent in item No.2 is included from being Biological father of the individual from whom the piece of liver was collected and sent in item No.4. But it is settled law that the DNA test 45 SC No.304/2015 report is not conclusive proof in the absence any other admissible evidence. It is also worth to note that Ex.P33 report issued on 07.09.2020 and said report does reflect the particulars of date on which the examination of parts of the body conducted.
43. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. The techniques were not reliably applied by the expert. In absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion. Therefore, in the opinion of this Court as rightly pointed out by the learned Counsel for accused, the evidence placed on record by the prosecution is not sufficient to prove the parts of the dead seized by conducting the mahazars pertain to Samiulla.
44. Even otherwise also taking in to facts and circumstances, this Court is of the considered opinion that when there are no corroboration with any other material, only because DNA test has given a positive result, it is unsafe to convict the accused.
45. The prosecution has cited 42 witness in the 46 SC No.304/2015 charge-sheet and got summoned two more witnesses. Among the said 44 witnesses, 22 witnesses examined as PW1 to 22. In this case, no direct witnesses are available and the entire case of the prosecution is rest on the circumstantial evidence. Among 22 witnesses, PW2 and 3 are wife and brother of the deceased, PW4 saw the deceased on 20.10.2014, PW6 is the friend of deceased, PW7, 8, 10 and 11 are the mahazar witnesses, PW9 is the business man, PW15 given the SIM card to the deceased, PW16 is the witness to whom accused requested to help to shift the dead body, PW18 who saw the dead body and rest of the witnesses i.e., PW1, 12, 13, 14, 17, 19 to 22 are the official witnesses.
46. Among the PW1 to 22, PW6/Friend of deceased, PW7 and 11/spot and seizure mahazar witnesses of Ex.P4/spot & seizure mahazar and Ex.P11/seizure mahazar, PW8/spot and seizure mahazar witnesses of body of victim, PW9/Bag seller and PW10/Inquest mahazar witness have turned hostile and not supported the case of prosecution. Even after treating them hostile, nothing has been elicited their role in the prosecution case. Therefore, the evidence of PW6 to 11 does not survive for consideration.
47 SC No.304/201547. It is the definite case of prosecution that the accused No.1 and accused No.2, CW5/Rounath Pasha and deceased/Samiulla were using mobile phone No.8693996091, 9738802954, 8453845056 and 9842782644 respectively. The said mobile SIM's were standing in the name of Thousif Pasha, accused No.1, Prasanna Kumar and Pyare Jaan respectively. In order to prove that the alleged phones were standing in the names of respective persons and at the alleged point of time the said persons were using the mobile phones, the prosecution has not produced any iota of evidence. PW21/Investigating Officer in his cross examination has clearly admitted that he has not collected any documents to show that the SIM's alleged have been used by accused No.1, accused No.2, CW5 and deceased and said SIM's were with them. He also admits that Thousif Pasha and Prasanna Kumar on whose names the mobile number alleged to have used by accused No.1 and deceased has not been cited as charge-sheet witnesses. He has no difficulty to record the statement of said two persons. Pyare Jaan in whose name the mobile phone No.9842782644 alleged to have been used by the deceased stands. Said Pyare 48 SC No.304/2015 Jaan has been examined as PW6, but he has not supported the case of prosecution and turned hostile. From the evidence placed on record, it is very much clear that prosecution has not produced any acceptable evidence to prove that accused No.1 used 8693996091 stands in the name of Thousif Pasha, accused No.2 used the phone No.9738802954 stands in the name of accused No.1, CW5 used the phone No. 8453845056 stands in the name of one Prasanna Kumar and deceased used the phone No.9842782644 stands in the name of PW6/Pyare Jaan. The manner in which PW21/IO has given evidence, in the opinion of this Court without collecting any supporting documents and acceptable evidence has stated in his examination in chief that accused No.1, accused No.2, CW5 and deceased were using mobile phone No.8693996091, 9738802954, 8453845056 and 9842782644 and said mobile SIM's were standing in the name of Thousif Pasha, accused No.1, Prasanna Kumar and PW6/Pyare Jaan. The material elicited from the mouth of PW21/IO falsify the case of the prosecution with regard to the using of mobile phones by accused No.1, accused No.2, CW5 and deceased as stated by him in his examination in 49 SC No.304/2015 chief. The allegations of prosecution to the effect that at the time of the incident accused No.1, accused No.2, CW5 and deceased were using mobile phone No.8693996091, 9738802954, 8453845056 and 9842782644 respectively remains intact without any proof.
48. In this case according to the prosecution PW21/ Investigating Officer has conducted in all six mahazars. 1st Ex.P8/inquest mahazar was conducted 03.10.2014 between 10.15 to 11.45 p.m. on foot path situated in between KM Road and BMTC, Kalyasipalya Bus Stand. 2nd Ex.P5/mahazar is running mahazar was conducted at two different places, on 03.10.2014 between 11.30 p.m. to 12.50 a.m. on the next day and seized the male dead body without head, hands and legs packed in bag at foot path situated in between KM Road and BMTC, Kalasipalya Bus Stand and Secondly, on 03.10.2014 between 01.30 a.m. to 02.30 a.m. and seized the packed bag kept on the stone bench put at Kanakapura bus stop in KSRTC Bus Stand situated in Kalasipalya 'B' Street consisting of two human being legs. 3rd Ex.P2/seizure mahazar was conducted on 06.01.2014 between 12.10 p.m. to 50 SC No.304/2015 12.45 p.m. in the Kalasipalya Police Station and seized two mobiles from accused No.1 and 2. 4th Ex.P4/spot and seizure mahazar is running mahazar was conducted at three different places as per voluntary statement alleged to have given by accused No.1 and 2, on 07.10.2014 between 03.50 p.m. to 05.00 p.m., in the house No.26/27, 2 nd floor, Yallakunte. Secondly, between 05.30 p.m. to 06.10 p.m., near the Church situated at BKL Colony and thirdly, between 06.20 p.m. to 07.00 p.m., at 7 th Stage, 9th Main, 18th cross turning, HSR lay out. 5th Ex.P56/mahazar is conducted at two different places as per voluntary statement alleged to have given by accused No.1 and 2, on 08.10.2014 between 01.10 p.m. to 03.00 p.m., at the big drainage situated at 2 nd cross, Manjunath Nagar and between 03.15 p.m. to 04.00 p.m., near the Ghali Anjaneya Temple of Byatarayanpura and 6th Ex.P11/mahazar was conducted on 09.10.2014 between 07.10 p.m. to 07.40 p.m. as per voluntary statement alleged to have given by accused No.1 and 2, in respect of bath room situated in the house of accused No.1 and 2.
1st Ex.P8/Inquest Mahazar According to the prosecution Ex.P8/inquest 51 SC No.304/2015 mahazar was conducted on 03.10.2014 between 10.15 p.m. to 11.45 p.m., in presence of CW7 to 9 at the footpath situated in between KM Road and BMTC, Kalasipalya Bus Stand. As per the said mahazar, PW21 has conducted the inquest mahazar of the unknown male dead body which has no head, hands and legs. In order to prove Ex.P8/inquest mahazar, the prosecution has examined CW9 as PW10 but he has not supported the case of prosecution and turned hostile. Even after treating him hostile, nothing has been elicited to prove that in his presence Ex.P8/Inquest Mahazar was conducted. Prosecution has not examined CW8 and 9. The hostility of PW10 and non-examination CW8 and 9 is fatal to the case of prosecution. The evidence placed on record by the prosecution is not sufficient to prove Ex.P8/inquest mahazar beyond all reasonable doubt.
2nd Ex.P5/Spot and seizure mahazar According to the prosecution Ex.P5/spot mahazar is running mahazar was conducted at two different places, on 03.10.2014 between 11.30 p.m. to 12.50 a.m. on the next day and seized the male dead body without head, hands and legs packed in bag at foot path situated in between KM Road and 52 SC No.304/2015 BMTC, Kalasipalya Bus Stand and Secondly, on 03.10.2014 between 01.30 a.m. to 02.30 a.m. and seized the packed bag kept on the stone bench put at Kanakapura bus stop in KSRTC Bus Stand situated in Kalasipalya 'B' Street consisting of two human being legs, in presence of CW10 and 11. In order to prove Ex.P5/mahazar, prosecution has examined CW10 as PW8 but he has completely turned hostile and has not supported the case of prosecution. Even after treating him hostile, nothing has been elicited to prove that in his presence the mahazar was conducted. Prosecution has not examined CW11. The hostility of PW8 and non-examination CW11 is fatal to the case of prosecution. The evidence placed on record by the prosecution is not sufficient to prove Ex.P5/inquest mahazar beyond all reasonable doubt.
3rd Ex.P2/Seizure Mahazar According to the prosecution, Ex.P2/seizure mahazar was conducted on 06.01.2014 between 12.10 p.m. to 12.45 p.m. in the Kalasipalya Police Station and seized one mobile from each from accused No.1 and 2 in presence of CW12 and 13. In order to prove Ex.P2/seizure mahazar, prosecution has examined CW12 as PW5 but he has completely 53 SC No.304/2015 turned hostile and has not supported the case of prosecution. Even after treating him hostile, nothing has been elicited to prove that in his presence the mahazar was conducted and seized one mobile phone from accused No.1 and 2. Prosecution has not examined CW13. The hostility of PW5 and non- examination CW13 is fatal to the case of prosecution. The evidence placed on record by the prosecution is not sufficient to prove Ex.P2/seizure mahazar beyond all reasonable doubt.
4th Ex.P4/Spot and Seizure Mahazar and 5th Ex.P11/Spot Mahazar According to the prosecution, Ex.P4/spot and seizure mahazar is running mahazar was conducted at three different places as per voluntary statement alleged to have given by accused No.1 and 2, on 07.10.2014 between 03.50 p.m. to 05.00 p.m., in the house No.26/27, 2nd floor, Yallakunte. Secondly, between 05.30 p.m. to 06.10 p.m., mahazar as conducted near the Church situated at BKL Colony and thirdly, between 06.20 p.m. to 07.00 p.m. at 7 th Stage, 9th Main, 18th cross turning, HSR lay out in presence of CW14 and 15. According to the prosecution Ex.P11/spot mahazar was conducted on 54 SC No.304/2015 09.10.2014 in the house of accused situated at the second floor between 07.10 p.m. to 07.40 p.m., in respect of examination of bathroom by the FSL Officer.
49. It means PW21/IO has conducted Ex.P4/running spot and seizure running mahazar was conducted at three different places as per voluntary statement alleged to have given by accused No.1 and 2, on 07.10.2014 and Ex.P11/spot mahazar was conducted on 09.10.2014 between 07.10 p.m. to 07.40 p.m., in respect of examination of bathroom by the FSL Officer. In order to prove Ex.P4/spot and seizure mahazar, prosecution has examined CW14 as PW11 and CW15 as PW7.
According to the prosecution, this mahazar has been conducted solely on the voluntary statement alleged to have been given by the accused No.1 and 2. In that regard there is a mention in the spot mahazar. It is material to note that neither PW7 nor PW11 have spoken with regard to the voluntary statement given by the accused No.1 and 2 as mentioned in the spot mahazar. On the contrary, both the witnesses have stated that in their presence accused No.1 and 2 have not at all stated anything. Further both the witnesses 55 SC No.304/2015 have stated that Police have not seized any properties from the house of accused No.1 and 2 as stated by them. However, according to them, Police have taken them to the Bommanahalli Road and thereafter to the HSR Layout.
50. In the cross-examination, PW7 has stated that he has put the signature to Ex.P4 and 11/mahazars in the Police Station and the Police have written the mahazars in the Police Station. The material elicited in the cross-examination of PW7 and 11 and the manner in which they have given the evidence in the examination-in-chief, it is very much clear that the said mahazars have not been conducted as per the voluntary statement alleged to have been given by the accused No.1 and 2 and they have not taken the witnesses to the places mentioned in the Ex.P4 and 11/mahazars. Therefore, in the considered opinion of this Court, the independent evidence of PW4 and 7 is not at all helpful to prove the conduct of Ex.P4 and 11/mahazars beyond all reasonable doubt.
6th Ex.P56/Mahazar According to the prosecution Ex.P56/mahazar running mahazar was conducted on 08.10.2014 at two different places as per voluntary statement 56 SC No.304/2015 alleged to have given by accused No.1 and 2 in presence of CW17 and 18. Firstly, conducted the mahazar between 01.10 p.m. to 03.00 p.m. at big drainage situated at Manjunatha Nagara, 2nd Cross, but not found any parts of the dead body as stated by accused No.1 and 2. Secondly, between 03.15 to 4.00 p.m., Police have searched the parts of the body in the said drainage up to Gaali Anjaneya Temple, Byatarayanapura. In order to prove Ex.P56/mahazar the prosecution has not secured the presence of CW17 and 18. In other words, no independent witnesses have been examined to prove Ex.P56/mahazar. Non-examination of CW17 and 18 is fatal to the case of prosecution. The evidence placed on record by the prosecution is not sufficient to prove Ex.P56/mahazar beyond all reasonable doubt.
51. On appreciation of evidence of mahazar witnesses placed on record by the prosecution, in the opinion of this the Court contradictions and omissions pointed out above does not inspire the confidence of the Court to believe about conducting of six mahazars i.e., Ex.P8, Ex.P5, Ex.P2, Ex.P4, Ex.P56 and Ex.P11/mahazars by placing admissible 57 SC No.304/2015 evidence. Therefore, in the opinion of this Court, prosecution fails to prove any of the mahazars.
52. As there is no direct evidence in this case, the prosecution has placed entire reliance on the circumstantial evidence. In case of a circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
53. As the entire case of the prosecution rests on the circumstantial evidence, the entire burden is on the prosecution to prove each and every circumstance to complete the chain to prove the guilt of accused No.1 and 2. From the case of prosecution, it could be said that the prosecution has to prove following circumstances to prove the guilt of the accused No.1 and 2:-
58 SC No.304/20151. Accused No.1 had illicit relationship with the deceased.
2. On 02.10.2014 at about 08.30 p.m., the deceased came to the house of accused and when accused No.2 saw personally the deceased was in illicit relationship with the accused No.1, accused No.2 picked-up quarrel with the deceased and accused No.1 and 2 with common intention in order to kill the deceased, strangulated the neck of the deceased with the help of two pin plug wire and murdered him.
3. CW6 lastly seen the deceased going to the house of accused.
4. In order to shift the dead body of deceased, accused sought the help of CW5, but with the fear he did not make any help.
5. Thereafter, accused No.1 and 2 in order to disappear the evidence of committing murder, thought to shift the dead body of deceased to some other place and took the dead body to their bathroom, cut the neck with the help of chopper, separated the neck with the help of axle blade, cut the hands and legs of the body, packed the hands in a cover available in the house, put the head in another plastic bag and by keeping the remaining part of the body and legs in the bath room, both 59 SC No.304/2015 the accused changed the dress.
6. On 03.10.2014, to destroy the evidence of committing the murder both the accused took the head and hands of the deceased and threw in the big flowing drainage at 2nd Cross of Manjunatha Nagar. Then accused purchased a big plastic bag and three plastic covers in the shop of CW19.
7. After returning to the home, put the portion of the dead i.e., without head, hand and legs in the blue plastic bag and put the legs in the blue and black cover bag and in order to cover them, put the pillow and took the said bag and accused No.1 kept a bag at Kanakapura Bus Stop in Kalasipalya Bus Stand.
8. Accused No.2 took the bag which contains the body without head, leg and hands put by the side of dust bin situated near the Kalasipalya Main Road Bus Stand foot path.
9. Then both accused returned to the home, accused No.2 collected the cloth worn by the deceased and threw in an open place dust mass situated by the side of Church situated at BKL Colony, Bommanahalli Thereafter, accused No.2 threw the chopper, axle blade used for commission of offence and mobile of the deceased in drainage situated at 18th Cross, 9th Main, HSR Layout, Bengaluru.60 SC No.304/2015
10. After returning to the home, accused cleaned the bath room by putting soap powder and cleaned the blood stains and thereby attempted to destroy the evidence of committing the murder of deceased Samiulla.
54. In order to connect the accused, the entire burden is on the prosecution to prove the above set of circumstances beyond all reasonable doubt. If the prosecution fails to prove and link the chain, the entire benefit goes to the accused persons.
55. Now, the question is whether the prosecution is able to prove the above circumstance beyond reasonable doubt is to be seen.
56. Firstly, the prosecution has to prove that the accused No.1 had illicit relation with the deceased. No doubt, it is true that it is highly impossible to prove the illicit relation between the accused No.1 and the deceased by direct evidence. However, the prosecution has to produce some acceptable other material to prove the alleged illicit relation. In order to prove the said illicit relation, the prosecution has placed reliance on the evidence of PW2/wife and PW3/brother of the deceased. On perusal of the 61 SC No.304/2015 evidence of PW2 and 3, it is noticed that both of them have not stated in clear words with regard to the alleged illicit relation of accused No.1 and the deceased. Both the witnesses have given go-bye to the case of the prosecution and have stated that the deceased went to the house of the accused to bring the money on the phone calls made by accused No.1. In Page No.4 of the evidence of PW2, she has clearly stated that accused No.1 called the deceased to her house that she will pay the money and killed him. In other words, PW2 and PW3/star witnesses have not supported the case of prosecution. It has come in the evidence of PW21/IO that during the course of investigation, in connection with the illicit relation of the accused No.1 and deceased except the friends and the relatives of the deceased has not recorded the statement of any other persons. Admittedly, in this case, the PW6/friend of deceased completely turned hostile. PW2 and 3/wife and brother of deceased have not at all spoken anything with regard to the illicit relationship of the accused No.1 and the deceased. It is very material to note that IO has not recorded the statements of persons who are residing around the house of accused No.1 in connection with 62 SC No.304/2015 the illicit relation of the accused No.1 and the deceased. The persons residing around the house of accused No.1 are the best witness to say about illicit relation of the accused No.1 and the deceased. No explanation is offered by the PW21/IO as to why he has not interrogated the residents of the house situated around the house of accused No.1. Absolutely nothing has been produced by the prosecution to prove the illicit relation of the accused No.1 and the deceased. The evidence placed on record by the prosecution, is not sufficient to prove the first circumstance.
57. Secondly, the prosecution has to prove that on 02.10.2014 at about 08.30 p.m., deceased came to the house of accused and when accused No.2 saw personally the deceased was in illicit relationship with the accused No.1, accused No.2 picked-up quarrel with the deceased and both accused No.1 and 2 with common intention in order to kill the deceased, strangulated the neck of the deceased with the help of two pin plug wire and murdered him. According to the prosecution deceased left the Denkanikote situated at Krishnagiri District, Tamilnadu on 02.10.2014 at about 05.30 p.m., to go 63 SC No.304/2015 to Mangammanapalya, Bengaluru. The police constable filed the complaint on 03.10.2008 at about 10.15 p.m., about lying of the dead body without head, legs and hands. First time, the wife and brother of the deceased i.e., PW2 and 3 approached Kalasipalya Police Station and identified the body of the deceased which has no head 05.10.2014. It has come in the evidence that neither PW2/wife nor the PW3/brother, have lodged complaint before any Police Station about missing of deceased Samiulla from 02.10.2014 to 05.10.2014. If really, PW2 and 3 are aware that the deceased went to the house of accused No.1 on 02.10.2014 and not returned, as prudent approach they would have lodged the complaint accused No.1. Nothing was prevented them to lodge the missing complaint of Samiulla. Absolutely, no explanation is offered by PW2 and 3 as to why they have not filed a complaint in that regard. Non-filing of any complaint by PW2 and 3 in respect of missing of Samiulla creates doubt in the mind of Court about the truthfulness of the evidence given by them.
58. According to the prosecution, deceased entered the house of accused No.1 at 09.45 p.m., on 64 SC No.304/2015 02.10.2014. Before coming he called to the mobile of accused No.1. When deceased entered the house accused smelled about consuming the alcohol, accused No.2 was taking dinner and their two children were sleeping. At that time, the deceased in spite of resistance of accused No.1, deceased removed blue Jeans pant and white shirt forcibly made an attempt to have sex with her, at that time the children were waked and shouted, by hearing the shouting, accused No.2 came and looking the deceased with accused No.1 picked-up quarrel him and by putting a wire around his neck, dragged and killed him. It means at the time of incident except accused No.1, 2 and their children nobody were present. It has come in the evidence of PW21/IO that he has not recorded the statement of children of accused No.1 and 2. Why the statement of the children of accused No.1 and 2 not recorded has not been explained by the Investigating Officer. Non- recording the statement of children of accused No.1 and 2 by the Investigating Officer is fatal to the case of prosecution.
59. The prosecution placed entire reliance on the voluntary statement alleged to have been given by the 65 SC No.304/2015 accused No.1 and 2. As per Sec.25 and 26 of the Indian Evidence Act, the confession made before the Police Officer is inadmissible and confession made by a person while he/she is in custody of the Police Officer is also inadmissible. Therefore, no value could be attached to the voluntary statement alleged to have been given by accused No.1 and 2 before PW21/ IO as it is inadmissible in the eye of law. If the alleged voluntary statement of accused No.1 and 2 is excluded, absolutely there is nothing on record to prove that the accused No.1 and 2 with common intention accused No.1 has strangulated the neck of deceased with wire and killed him. Therefore, the prosecution has also failed to prove the second circumstance.
60. The third circumstance is that CW6 lastly seen the deceased going to the house of accused. CW6 has been examined as PW4 lastly seen the deceased going to the house of accused. According to the prosecution, PW4 last saw the deceased at Mangammanapalya near his house. In his evidence, PW4 has stated that at about 08.30 p.m., on 02.10.2014, he had been to the shop to buy the rice, at that time he met the deceased Samiulla and he is 66 SC No.304/2015 the last person to see the deceased going towards the house of accused. Admittedly the house of the accused is situated in the second floor. When the house is situated in the second floor, it is difficult to say that the deceased went towards the house of accused. PW4 never stated that he witnessed that deceased going to the house of accused No.1. In the absence of any direct evidence the mere statement of PW4 that he saw the deceased was going towards the house of accused No.1 is not sufficient to prove the said allegation. Therefore, it cannot be said the PW4 is last person to see the deceased going towards the house of accused. For the reasons stated above, the prosecution fails to prove the third circumstance.
61. According to the prosecution, the fourth circumstance is that in order to shift the dead body of deceased, accused sought the help of CW5, but due to fear he did not make any help. In order to prove the said circumstance, the prosecution examined CW5 as PW16. In this case, the accused have seriously disputed CW5 known to accused since beginning. In view of the defence taken by the accused, first of all the prosecution has to prove that the accused No.1 and CW5 known to each other.
67 SC No.304/2015According to the prosecution, CW5 came in contact with accused No.1 in the Jayadeva Hospital. In order to prove the said fact except the statement of CW5, IO has not collected any iota of evidence. Further according to the prosecution, accused No.1 called on the mobile of CW5 and asked to come to her house and on the request of accused No.1, CW5 visited her house, at that time he noticed the dead body in the house of accused. If he saw the dead body in the house of accused No.1 as alleged by the prosecution, CW5 was under obligation to intimate the same to the Police Station. In the instant case, CW5 has not intimated the said fact to the Police Station. Non- intimating the said fact to the Police is also an offence. That apart, in the cross-examination, PW16 has stated that he has not intimated anybody about the receipt of a phone call from the accused on 02.10.2014, he cannot say the boundaries of the house of accused No.1. During the course of investigation, PW21/IO has found that CW5 visited the house of accused No.1 on Pulsar motorcycle of his friend one Maqsood. Even after knowing the name of the owner of the said vehicle, Investigating Officer has not made any efforts to interrogate the 68 SC No.304/2015 owner of the said vehicle to ascertain whether CW5 was taken his vehicle on the alleged date of incident. Even he has not ascertained the number of the said vehicle. IO has categorically stated that absolutely no material collected by the to show that on the alleged date and time CW5 went to the house of accused No.1 and CW5 used the Pulsar vehicle to go to the house of accused No.1.
62. At the same time it is necessary to note that Investigating Officer has collected the tower location details of the phone number alleged to have been used by the CW5 as per Ex.P77/CDR and according to it at the relevant point of time the alleged mobile was found within the limits of Madivala. The house of accused No.1 is situated within the limits of Bommanahalli and the SIM alleged to have been used by the CW5 was not used within the limits of the Bommanahalli. That apart, the Investigating Officer has recorded the 161 statement of CW5 on 10.10.2014 but has not ascertained whether the CW5 was present in his native during 02.10.2014 to 10.10.2014. Absolutely, no investigation made in this regard. 164 statement of CW5 was recorded by the learned 5th MMTC, Bengaluru, on 21.10.2015.
69 SC No.304/2015As per the said statement, about 3 months back, accused No.1 called him to her house and when he went inside the house of accused No.1, saw the dead body of a person on the cot and on enquiry accused No.1 and 2 have stated that they have killed that person. Even the said confession statement recorded by the Magistrate is no way helpful to the prosecution because the said statement was recorded on 21.10.2014 and as per the said statement, about 3 months back he visited the house of accused No.1 and saw the dead body. That means, roughly in the month of August, he saw the dead body in the house of accused No.1. The said statement is also not consistent, corroborative with the case of prosecution. Therefore, Ex.P30/statement is also no way helpful to the prosecution to prove that the CW5 saw the dead body in the house of accused No.1 on 02.10.2014.
63. The cumulative effect of the entire evidence of PW16 and PW21, in the considered opinion of this Court, the prosecution miserably fails to prove that on the alleged date and time CW5 visited the house of accused No.1. Since the prosecution fails to prove that on the alleged date and time CW5 visited the 70 SC No.304/2015 house of accused No.1 the question of CW5 saw the dead body in the house of accused No.1 does not arise. For the reasons stated above, the prosecution fails to prove the forth circumstance.
64. The fifth circumstance that in order to disappear the evidence of committing the murder by accused No.1 and 2, the accused persons took the dead body to the bathroom and inside the bathroom cut the head, legs and hands of the deceased by using the chopper and axle blade. In order to prove this circumstance, the prosecution placed entire reliance on the voluntary statement alleged to have been given by the accused No.1 and 2. To prove this circumstance, the prosecution has conducted Ex.P4/ mahazar. To prove the voluntary statement alleged to have been given by the accused No.1 and 2 and conducting Ex.P4/mahazar prosecution examined PW7 and 11. Both PW7 and 11 have not supported the case of prosecution and turned hostile. They have not at all stated the voluntary statement alleged to have been given by the accused and there evidence is also not trust worthy and not sufficient to prove the conducting Ex.P4/mahazar. Therefore, the prosecution has failed to prove voluntary statement 71 SC No.304/2015 alleged have been given by the accused No.1 and 2 and conducting Ex.P4/mahazar. If we exclude the evidence of PW4 and 7 except the inconsistent and unbelievable evidence of PW21/IO absolutely nothing is placed on record by the prosecution.
65. Even otherwise also it is necessary to note that according to the prosecution both the accused took the dead body to the bathroom and cut the head, hands and legs and packed the parts of the body in different bags. The learned Counsel for the accused drew the attention of the Court with regard to the measurements shown in Ex.P4/mahazar. The house of accused is situated in the second floor, the measurement of the entire house is 12 X 10 feet, which consists of hall measuring 8 X 10 feet, kitchen 8 X 4 feet and bathroom 4 X 4 feet, accused took the dead body to the bath room. If the prosecution case is accepted, it is unbelievable that accused No.1 and 2 shifted the dead body to the 4 X 4 feet bathroom and cut the parts of the dead body because it is highly impossible to enter two persons along with a dead body in 4 X 4 feet bath room and by keeping the body on floor cut it with help of chopper or excel blade. In such a measurement bath room with 72 SC No.304/2015 difficulty one person can enter and it is not possible to enter two persons at a time inside the bathroom. It is impossible to enter two persons along with a dead body inside the bath room and to cut the body it has to keep on the floor, if it keeps on the floor the entire body will not go inside the bathroom that when two per inside bathroom at no stretch of imagination it is possible to take the dead body inside the bathroom.
66. That apart it has come in the evidence of PW21/ IO that in a normal course, if the body is being cut, there is a possibility of oozing of blood but he did not find any blood oozing mark at the spot. Even he did not find any blood stains from the house of accused situated at the second floor till the road situated at ground floor. The Investigating Officer has not recorded the statement of residents of the adjacent houses. If really the incident has occurred, definitely the neighboring persons should have heard the sound of cutting the body. Admittedly, as per the evidence of Investigating Officer, the said place is busiest spot and if really body was shifted by the accused, the residents of that locality would have seen it. But in the instant case, no such information 73 SC No.304/2015 is received by the Investigating Officer from the residents of that locality. The IO has not recorded the statement of the children of the accused who were present in the house at that point of time. Absolutely no explanation is offered as why the statement said children not recorded. In the opinion of this Court the evidence placed on record by the prosecution is not sufficient to prove that accused No.1 and 2 in order to disappear the evidence of committing murder, shifted the dead body to bathroom, cut the neck with the help of chopper, separated the neck, hands and legs, packed the said parts in separate bags. The said allegations remain intact without any proof. For the reasons stated above, the prosecution fails to prove the fifth circumstance.
67. Next circumstances that on 03.10.2014, to destroy the evidence of committing the murder both the accused took the head and hands of the deceased and threw in the big flowing drainage at 2 nd Cross of Manjunatha Nagar, packed the portion of the dead i.e., without head, hand and legs in a bag and accused No.2 put the said bag by the side of dust bin situated near the Kalasipalya Main Road Bus Stand 74 SC No.304/2015 foot path, accused No.1 kept a bag packed with two legs at Kanakapura Bus Stop in Kalasipalya Bus Stan. Accused No.2 collected the cloth worn by the deceased and threw in an open place situated by the side of Church situated at BKL Colony, Bommanahalli, threw chopper, axle blade used for commission of offence and mobile of the deceased in drainage situated at 18th Cross, 9th Main, HSR Layout and accused cleaned the bath room by putting soap powder and cleaned the blood stains thereby attempted to destroy the evidence of committing the murder of deceased Salmiulla.
68. In order to prove the above circumstances, none of the independent witnesses have supported the case of prosecution. The prosecution has placed entire reliance on the evidence of PW21/IO. The complainant is the Police Head Constable found the bag consists of male dead body without legs, head and hands found in a very crowded place and none of the individuals have lodged complaint in that regard. IO has verified the CCTV footages and did not found who put the alleged bag at the spot, he did not maintained any documents to show that prior to verification of CCTV. The house of the accused is 75 SC No.304/2015 situated in the second floor and to reach that house, one must pass through ground floor and first floor and that place is also crowded place, IO has not interrogated any of the witnesses of that locality especially the witnesses are residing adjacent to the house of accused, no material collected to prove that the deceased went to the house of accused. So also no material collected to show that the accused shifted the dead body from their house. Further he has not collected any material to show that accused No.1 and CW5 are known to each other. As per Ex.P77/CDR, about 11.45 p.m., the presence of CW5 was shown within the limits of Madivala and the house of accused No.1 is situated within the limits of Bommanahalli. IO has not interrogated any of the relatives of CW5 as to ascertain whether he feared by seeing the dead body. As per Ex.P73/CDR, on 02.10.2014 in the night hours between 09.30 to 11.05, accused No.1 talked to CW5, at that alleged point of time, the SIM alleged to have been used by the accused No.1 within the Madivala limits, not collected any CCTV footage affixed around the place of the house of accused, so far the head of the dead body was not found and in the absence of the head, it 76 SC No.304/2015 is difficult to say the name of the person died. According to IO auto-rickshaw is used to shift the dead body, but he fails to collect particulars of auto number, auto driver and owner. According to IO CW5 went to the house of accused No.1 on Pulsar motorcycle belongs to one Maqsood, IO did not ascertained the number of the said vehicle, not recorded statement of the owner and not collected any materials to show that CW5 went to the house of accused No.1 on a Pulsar motorcycle. Further no CCTV footage collected from the spots, where weapons used for commission of offence thrown in a drainage, not interrogated the residents of that locality to ascertain about the throwing of said weapons in the drainage and has not sent the alleged weapons to the Doctor to ascertain whether it could be possible to cut the human body from the said weapons.
69. As noted supra, the mahazars conducted and seized the properties on the basis of voluntary statement alleged to have been given by accused No.1 and 2 have been not supported by any of the independent witnesses. The evidence of PW21/IO is also not worth to believe contractions and omissions 77 SC No.304/2015 pointed above. If IO collected the CCTV footage from the surrounding places of the spot of incident and the spots where other mahazars conducted, interrogated the witnesses who are the residents of the places where the mahazars are conducted definitely he would have come to know about truth as to who commits murder of Samiulla. IO also not collected any material as to how parts of the body were shifted from one place to another place. If really, the murder committed by accused No.1 and 2, they did not choose to throw the parts of the body in the crowded place and definitely they would have chose such place where the is no movement of public at all. The head of the body was not found so far. As rightly submitted by the learned Counsel for accused, in the opinion of the Investigating Officer without head and the material elicited from the mouth of PW21/IO, it is very difficult to say the parts the dead body belongs to the particular person.
70. As noted supra, in case of a circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused 78 SC No.304/2015 and none else. On close scrutiny of evidence on record, this Court is of the considered view that prosecution has utterly failed to prove any of the chain of events to establish its case against the accused No.1 and 2 with common intention committed the murder of deceased in their house and after committing the murder, in order to destroy and disappear the evidence, cut the body of the deceased in pieces with the help of chopper and axle blade, threw the parts of the body at different places and the weapons used to commit offence threw in the big drainage situated at 2nd Cross, Manjunatha Nagar and cleaned the bathroom by putting soap powder. None of the mahazar proved beyond reasonable doubt.
71. On careful perusal of the evidence placed on record, in view of the discussion in the preceding paragraphs, the omissions and contradictions, I am of the opinion that the prosecution has utterly failed to prove the happenings of the incident alleged in the charge sheet. The case of the prosecution is full of doubts. The evidence of prosecution witnesses is not consistent or corroborative with each other or with the prosecution case and said evidence is too 79 SC No.304/2015 insufficient to prove the guilt of the accused No.1 and
2. In the opinion of this Court prosecution utterly failed to prove the allegations made in the charge sheet against accused No.1 and 2 beyond all reasonable doubt and therefore, accused No.1 and 2 are entitled to get benefit of paucity of evidence. For the reasons discussed above, I answer point No.1 and 2 in the negative.
72. Point No.3:- In view of my above findings on point No.1 and 2, I pass the following:-
ORDER Accused No.1 and 2 are not found guilty for the offences punishable u/s 302 and 201 r/w 34 of IPC.
Acting u/s 235(1) of Cr.P.C. accused No.1 and 2 are acquitted for the offences punishable u/s 302 and 201 r/w 34 of IPC.
The bonds and surety bonds executed by the accused No.1 and 2 and their surety shall be in force for a period of six months as prescribed u/s 437-A of Cr.P.C.
MO3/Samsung Mobile, MO5/Nokia Mobile, MO6/MTB Mobile, MO7/Nokia 80 SC No.304/2015 Mobile and MO18/chopper are ordered to be confiscated to the State. MO No.1, 2, 4, 8 to 17, 19 to 23 being worthless are ordered to be destroyed after the appeal period is over.
Office is directed to intimate the concerned Jail Authorities to release the accused No.2 forthwith if he is not required in any other cases.
(Dictated to Judgment Writer, transcribed by her, taken print out, corrected by me and then pronounced in the open-court on 25th day of November 2022) (A.V.PATIL) LXIII Addl. City Civil and Sessions Judge (CCH-64), Bengaluru City.
-: ANNEXURE :-
Witnesses examined by the prosecution :-
PW1 Venkatesh
PW2 Thaseena
PW3 Sadiq Peer
PW4 Salman Khan
PW5 Mehabood Pasha
PW6 Shabbeer
PW7 Roshan Sameer
PW8 Sunil Kumar
PW9 Fayaz Khan
81 SC No.304/2015
PW10 Mohammed Ali
PW11 Mohammed Asif
PW12 B.V. Puttalingashetty
PW13 B.C. Ravindra
PW14 Mallikarjuna N.C.
PW15 Pyare Jaan
PW16 Rounath Pasha
PW17 Smt.Shahanaz Fathima
PW18 Venkatesh
PW19 Dr. S. Venkataraghava
PW20 Dr. Gundamma Patil
PW21 Anil Kumar G.S.
PW22 Raghavendra S.R.
Documents marked by the prosecution:-
Ex.P1 Complaint Ex.P1(a) Signature of PW1 Ex.P2 Seizure mahazar dated 06.10.2014 Ex.P2(a) Signature of PW5 Ex.P2(b) Signature of PW21 Ex.P3 Part statement of PW6 Ex.P4 Spot mahazar dated 07.10.2014 Ex.P4(a) to Signature of PW7 (c) Ex.P5 Spot mahazar dated 03.10.2014 Ex.P5(a) Signature of PW8 Ex.P6 Statement of PW8 Ex.P7 Statement of PW9 82 SC No.304/2015 Ex.P8 Inquest Report Ex.P8(a) Signature of PW10 Ex.P9 Letter from Kamakshipalya Police Station. Ex.P9(a) Signature of PW12 Ex.P10 FIR Ex.P10(a) Signature of PW12 Ex.P11 Seizure mahazar dated 09.10.2014 Ex.P11(a) Signature of PW7 Exs.P12 to Photos 25 Ex.P26 Letter of PW13 Ex.P27 Report of PW14 Ex.P27(a) Signature of PW14 Ex.P28 Subscription from mobile form Ex.P29 Ration card Ex.P30 Statement u/s 164 of PW16 Ex.P31 FIR Report. Ex.P32 Sample seal Ex.P33 Test Report (DNA Report) Ex.P33(a) Signature of PW17 Ex.P34 Sample seal Ex.P34(a) Signature of PW17 Ex.P35 DNA Report Ex.P35(a) Signature of PW17 Ex.P36 DNA Report Ex.P36(a) Signature of PW17 Ex.P37 Postmortem Report 83 SC No.304/2015 Ex.P37(a) Signature of PW19 Ex.P38 Form 146(i) Ex.P39 Form 146(ii) Ex.P40 Letter dated 18.10.2014 Ex.P40(a) Signature of PW19 Ex.P41 Letter for weapon examination Ex.P42 Weapon examination Report Ex.P42(a) Signature of PW19 Ex.P43 Sample seal Ex.P43(a) Signature of PW19 Ex.P44 FSL Report dated 31.01.2015 by PW20. Ex.P44(a) Signature of PW20 Ex.P45 FIR Ex.P45(a) Signature of PW37 Ex.P46 Letter to Control Room, Bengaluru Ex.P46(a) Signature of PW21 Ex.P47 Letter to Control Room, Bengaluru Ex.P47(a) Signature of PW21 Ex.P48 to 51 Paper publication. Ex.P52 Police publication Ex.P52(a) Signature of PW21 Ex.P53 Partial voluntary statement of accused No.1 Ex.P53(a) Signature of PW21 Ex.P53(b) Signature of accused No.1 Ex.P54 Voluntary statement of accused No.2 Ex.P54(a) Signature of PW21 84 SC No.304/2015 Ex.P54(b) Signature of accused No.2 Ex.P55 Letter to FSL, Madivala dated 07.10.2014 Ex.P56 Mahazar dated 08.10.2014. Ex.P57 to 59 Photos Ex.P60 Letter to PI Kalasipalya P S dated 11.12.2014 Ex.P61 Letter to PI Kengeri P S dated 11.12.2014 Ex.P62 Letter to PI, Kumbalagodu P S dated 11.12.2014 Ex.P63 Letter to Bidadi P S dated 11.12.2014 Ex.P64 Letter to Harohalli P S dated 11.12.2014 Ex.P65 Letter to Talaghattapura P S dated 11.12.2014 Ex.P66 Acknowledgment given to dead body Ex.P66(a) Signature of PW21 Ex.P67 Report of Jnanabharathi PC-12630 Ex.P67(a) Signature of PW21 Ex.P68 Report of Raghavendra, Kalasipalya PC- 9373 Ex.P68(a) Signature of PW21 Ex.P69 DNA Centre Forwarding Note Ex.P69(a) Signature of PW21. Ex.P70 ACP letter dated 03.11.2014 to FSL, Bengaluru. Ex.P71 Acknowledgment to FSL Ex.P71(a) Signature of PW21 Ex.P72 FSL acknowledgment 85 SC No.304/2015 Ex.P72(a) Signature of PW21 Ex.P73 CDR to accused No.1/Reshma Ex.P74 CDR to accused No.1/Reshma Ex.P75 CDR to Accused No.2/Mukthiyar Ex.P76 CDR to deceased Samivulla Ex.P77 CDR to Ronak Pasha Ex.P78 Transfer letter Ex.P78(a) Signature of PW21
Material objects marked by the prosecution:-
MO1 While Shirt
MO2 Jeans Pant
MO3 Samsung Mobile Phone
MO4 Brown colour underwear
MO5 Nokia Mobile Phone
MO6 MTB Mobile Phone
MO7 Nokia Mobile Phone
MO8 Plastic box containing sample blood
MO9 Plastic box
MO10 Wire
MO11 Axle blade
MO12 Jeans Pant
MO13 Shirt
MO14 Iron piece
MO15 Nighty
MO16 Baniyan
MO17 Underwear
MO18 Chopper
86 SC No.304/2015
MO19 Cover containing Sample blood
MO20 Plastic bag
MO21 Two polythene covers
MO22 One polythene cover
MO23 Pillow
Witnesses examined by the accused persons:- ... Nil ...
Documents marked by the accused persons:- ... Nil ...
Material objects marked by the accused:- ... Nil ...
(A.V.PATIL) LXIII Addl. City Civil and Sessions Judge (CCH-64), Bengaluru City.