Bangalore District Court
State By Marathahalli Police vs Gopala Chathri on 18 November, 2022
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S.C.No.1531/2017
KABC010304902017
Presented on : 12-12-2017
Registered on : 12-12-2017
Decided on : 18-11-2022
Duration : 4 years, 11 months,
6 days
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this 18 th day of November 2022
-: P R E S E N T :-
Smt. Kalpana M.S.,
B.Sc., LL.M.,PGD-CLCF.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
SESSIONS CASE No.1531/2017
COMPLAINANT:- State by Marathahalli Police
Station, Bengaluru.
-Vs-
ACCUSED : Gopala Chathri,
S/o. Dil Bahaddhur Chathri,
Aged 30 years,
R/at. Labour Shed No.04,
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S.C.No.1531/2017
Sy.No.91/2, Behind Croma
Show Room, Panatthuru,
Bengaluru City.Native Address:
Pada village, Tana Nagaraghatta,
Jalpaiguri District,
West Bengal State.
TABULATION OF EVENTS
1. Occurrence of the offence & time: 24.07.2017, 5.30 a.m.
2. Report of the offence & time : 24.07.2017 , 6.30 a.m.
3. Date of arrest of the Accused : 24.07.2017
4. Date of release of accused : Accused in J.C.
5. Name of the complainant : Srinivas
6. Date of commencement of trial : 07.02.2019
7. Date of closure of trial : 10.11.2021
8. Offences complained of : Sec.302 of Indian
Penal Code
9. Opinion of the Judge : Accused not
found guilty
10. State represented by : Learned Public
Prosecutor
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11. Accused defended by : Sri.Sudheendra
Prasad, Advocate.
JUDGMENT
Police Inspector of Marathahalli police station, Bengaluru have filed charge sheet against accused for offence punishable U/s.302 of Indian Penal Code, in Cr.No.311/2017.
2. The case of the prosecution in brief, is as under;
That deceased- Dil Bahaddur Lavathi, accused- Gopala Chathri and Cw.9- Shree Leela Bahaddur were staying in the labour shed No.4 constructed in the site belongs to Cw.1-Srinivas. There was frequent fights between the accused and the deceased in respect of the household chores and keeping shed key. In pursuance of the same, on 20.07.2017 during evening hours, deceased 4 S.C.No.1531/2017
- Dil Bahaddur Lavathi, Cw.9-Shree Leela Bahaddur and Cw.10/ Sri Milan Bakam Bahaddur at labour shed No.4 situated at land belongs to the Cw.1-Srinivas, Panatthur village, were taking food along with liquor. At that time, deceased/Dil Bahaddhur Lavathi abused the accused by threatening that, he will not leave him to go back with life to West Bengal. Cw.9 and Cw.10 tried to pacify the quarrel by advising the deceased. Accused left the room silently without making any galata or fight with deceased person. At night about 8.30 p.m., the accused watched Cw.9 and Cw.10 returned to their shed and entered the shed No.4 and saw the accused person sleeping alone in the shed and thinking that to save his life, it is better to take away the life of the accused, he waited till the neighbouring shed occupants go to sleep and at early morning hours about 1.00 a.m., he picked up cement 5 S.C.No.1531/2017 stone lying out side the shed and assaulted on the head of the deceased and killed him thereby committed the offence punishable U/s.302 of Indian Penal Code.
3. On the basis of complaint lodged by Cw.1, Investigating Officer registered F.I.R., proceeded to the spot, conducted spot panchanama, seized materials found on the spot. Accused person was arrested and remanded to judicial custody. During course of interrogation, recorded his voluntary statement and statements of witnesses. After conclusion of investigation, being of the opinion that, there are sufficient materials against accused person. Investigating Officer filed charge sheet for offence punishable U/s.302 of Indian Penal Code.
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4. Cognizance for the offence shown in the charge sheet was taken against the accused person by the Learned Magistrate. Thereafter, criminal case against accused person was registered in C.C.No.59020/2017 on the file of XLIII-Addl.Metropolitan Magistrate, Bengaluru. Since offence alleged against accused person is triable exclusively by the court of Sessions, this case is committed to the court of sessions.
5. After committal, the case is re-registered as S.C.No.1531/2017 and made over to this court. Accused was in judicial custody. Prosecution opened the case as required U/s.226 of Cr.P.C. Heard learned counsel for the accused. No grounds made out to discharge the accused. Hence, charge against accused was framed, read over and explained. He denied charges and claims trial. 7
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6. To prove the ingredients of the offence leveled against the accused, prosecution examined 19 witnesses as Pw.1 to Pw.19 out of 28 witnesses cited in the charge sheet and got marked 23 documents at Ex.P.1 to Ex.P.23 and got identified 13 material objects at Mo.1 to Mo.13. Despite sufficient opportunities, prosecution failed to secure the presence of Cw. 6, 9 to 15. Hence, Cw. 6, 9 to 15 are dropped.
7. After conclusion of prosecution evidence, statements of accused U/s.313 of Cr.P.C. was recorded. Accused has denied all the incriminating material evidence appearing against him, but did not choose to lead defence evidence.
8. Heard arguments on both sides and perused the materials on record.
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9. The points that arise for my determination are:
1. Whether the death of Dil Bahaddhur Lavathi is homicidal death?
2. Whether prosecution proves beyond reasonable doubt that, on 24.7.2017 at about 1.00 a.m., at labour shed No.4, Behind Croma Show Room, Panatthuru village, within the jurisdiction of Marathahalli police station, Bengaluru, accused/Gopala Chathri assaulted on the head of the deceased -Dil Bahaddhur Lavathi with cement stone and killed him thereby committed offence of murder punishable U/s.302 of I.P.C.?
3. What Order ?
10. It is answered for the aforesaid points are as under:-
Point No.1 : In the Affirmative.
Point No.2 : In the Negative
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Point No.3 : As per final order
for the following:
REASONS
11. POINT NO.1:- The prosecution alleges that,
on 24.7.2017 at about 1.00 a.m., at labour shed No.4, Behind Croma Show Room, Panatthuru village, within the jurisdiction of Marathahalli police station, Bengaluru, accused/Gopala Chathri assaulted on the head of the deceased-Dil Bahaddhur Lavathi with an intention to cause such bodily injury as is likely to cause his death and commits the offence of culpable homicide. The averments of the complaint also reads that, on the given date, the deceased was found dead due to assault with Mo.1-cement stone on the head causing bleeding injuries. Medical evidence shows that, death is due to shock and hemorrhage occurred by the greivious injury present on the head of the dead body and those wounds 10 S.C.No.1531/2017 sustained before the death of the person. Evidence adduced by Pw.5-Dr.Suresh is corroborative with the evidence adduced by Pw.1/Srinivas and Pw.12-Nagaraju, Investigating Officer and contents of Ex.P.6-inquest panchanama, Ex.P7-P.M.Report and Ex.P.22-F.S.L. Report. Evidence adduced by the Investigation Officer is also corroborative with the evidence of Pw.5. Hence, there is no iota of doubt to hold that, death of Dil Bahaddhur Lavathi is a homicidal death. Hence, point No.1 under consideration is answered in the Affirmative.
12. POINT NO.2:- It is the case of the prosecution that, accused- Gopala Chathri, deceased- Dil Bahaddhur Lavathi were staying in the same shed and frequently had fights in respect of the house work and keeping key of the shed. In continuation of this dispute, on 23.07.2017 at about 1.00 a.m., during night hours, 11 S.C.No.1531/2017 accused person dropped cement stone on the head of the deceased and committed murder.
13. In order to bring home the guilt of the accused person, prosecution examined 19 witnesses as Pw.1 to Pw.19 and got marked 23 documents at Ex.P.1 to Ex.P.23 and got identified 13 material objects at Mo.1 to Mo.13.
14. Cw.1-Srinivas was examined as Pw.1. He is the complainant. As per his evidence, he received the information of murder of the deceased from Nagaraj, who have introduced the accused for the purpose of renting the said shed No.4. Immediately, he visited the spot and witnessed dead body of a male person with bleeding head injury. In shed No.4, accused/Gopala Chathri and deceased/Dil Bahaddur Lavathi were staying on rent. He lodged the complaint as per Ex.P.1 to the Marathahalli 12 S.C.No.1531/2017 police. In pursuance of the complaint, police have visited the spot and conducted the spot panchanama as per Ex.P.2 and he signed the panchanama as per Ex.P.2(a). When he enquired the neighbouring shed occupants, they said that, during night hours, accused under the influence of alcohal picked up quarrel with the deceased in connection with shed key. This witness has given the same information to the police in his further statement. Further, Pw.1 has identified the photographs at Ex.P.3 to Ex.P.5 depicting the dead body of Dil Bahaddhur Lavathi. He also identified the accused person produced through Video Conference and material objects Mo.1/Cement stone, bloodstained plastic mats at Mo.2 and Mo.3, blood sample, bloodstained blanket at Mo.4 and Mo.5 and two bloodstained swab at Mo.6.
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15. In the course of cross-examination, this witness admitted that, he has not obtained rent agreement in connection with the rent of sheds to the labourers from out of State. He has not got any document to show that, he has rented out the sheds. So also he has not got document to show that particular person is occupying particular shed and when they vacated the shed. Further, this witness has admitted that he has not got documents to show that, in shed No.4, three persons were staying as stated in his complaint at Ex.P.1. He has not personally witnessed the occupants of shed No.4 immediately before the incident in question. Ex.P.1/complaint was reduced to writing in the police station, but not to his dictation. He cannot read and write Kannada language. He has not given any statement to the police after lodging complaint at Ex.P.1. 14
S.C.No.1531/2017 So also, it is clear admission of the complainant that, on the date of complaint, at about 7.00 p.m., police have visited the spot. He was standing out side the shed and shown the place of incident. He has not witnessed the things present in the shed and also not shown them to the police. Marathahalli police themselves have verified the spot. He is not aware of the things taken by the police from the spot of the incident. He has not seen articles at Mo.1 to 7 in the spot of incident and saw those articles in the police station. At time of signing Ex.P.2- panchanama in the police station, he is not aware of the contents of Ex.P.2- panchanama.
16. Cw.2-Nagaraja, who has given information about the death of the deceased-Dil Bahaddhur Lavathi to the complainant was examined as Pw.2. In his examination-in-chief, this witness expressed ignorance 15 S.C.No.1531/2017 about acquaintance with the Cw.13/Thenasu Marak. He states that, on 24.07.2017 about 5.00 a.m. some of the labourers residing at the sheds telephoned him and informed about the committal of murder of Dil Bahaddhur Lavathi by the accused /-Gopala Chathri. He informed the same to the complainant and also to the police over the phone. Thereafter, he visited the spot along with complainant and Cw.2/Rajendra and found dead body of the Dil Bahaddhur Lavathi at labour shed No.4 situated in the land of the complainant. A bloodstained cement rock was lying near the dead body. The police have seized Mo.1- cement bloodstained stone and bloodstained mats at Mo.2 and 3 and obtained his signature. On enquiry the workers staying at labour shed informed about frequent fights between the deceased and the accused in connection with keeping 16 S.C.No.1531/2017 shed key and other trivial issues. On the night of incident both were fighting while having dinner. Deceased-Dil Bahaddhur Lavathi assaulted Gopala Chathri. Being enraged with the same, Gopala Chathri has dropped cement stone on the head of the sleeping deceased person. He has identified photographs of the deceased- Dil Bahaddhur Lavathi and the accused produced before the court through Video conference and stated having given statement to the police.
17. In the cross-examination of this witness, it has been elicited that, the labourers working under his supervision are staying in the 50 to 60 sheds situated at the place of incident. He is not having personal knowledge of occupancy of particular shed by specific labour. He came to know about the fights between the labourers through some workers, but so far has not 17 S.C.No.1531/2017 received any written complaint. None of the worker have fought before him. He has not produced any documents to show that, deceased/Dil Bahaddhur Lavathi, accused/Gopala Chathri, and Leela Bahaddhur were worked in the company on the preceding day of the incident, he has also not produced any documents before the Investigating Officer to show that, accused was working under him. He admits that, no persons have witnessed the incident of murder as it was taken place during night hours. It was suggested to him that, he is deposing falsehood to save Leela Bahaddhur.
18. Cw.3-Rajendra examined as Pw.3. He is one of the panch witness to the Ex.P.2 spot panchanama . He deposed that, about 2 years back Marathahalli police have conducted spot panchanama as per Ex.P.2 in connection with murder of Dil Bahaddhur Lavathi. 18
S.C.No.1531/2017 Police have seized blood stained cement stone, mats and shifted the dead body to the hospital. This witness identified the materials objects and also identified the accused persons. In the cross-examination, this witness reasserts conducting of panchanama as per Ex.P.2 by the police at place of incident.
19. Cw.7/ Sayinathan examined as Pw.4. He is witness to the Ex.P.6- Inquest panchanama. He deposed that, murder of Dil Bahaddhur Lavathi taken place in labour shed No.4 which was committed by accused
-Gopala Chathri. Both were workers in his company and they were quarreling each other. He got information about the incident through one of his supervisors over the phone. Cw.13- Tenasu Marak informed him about the incident and he has given statement to the police. 19
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20. In the course of cross-examination, this witness has clearly stated that, he do not know to read, write and talk Kannada language. He cannot understand Kannada. He do not know what is written at Ex.P.6. He had not given any statement to any body. He has not seen the commission of the offence. He cannot say, who has committed the murder. He admitted the suggestion that, informer has not stated, who has committed the murder. He has also admitted the suggestion that, photographs of the place of incident the dead body were not taken in his presence.
21. Cw.16-Dr.Suresh V. examined as Pw.5, this witness deposed about conducting of the post mortem of the dead body of Dil Bahaddhur Lavathi in the cold storage of mortuary and found various wounds on the face and abrasion on left shoulder. All those wounds are 20 S.C.No.1531/2017 inflicted before death and opined that, death taken place due to shock and hemorrhage. This witness has issued Ex.P.7-Post Mortem Report.
22. In the course of cross-examination, it has been elicited that, the dead body was in the cold storage for three days and hence, not possible to mention the period of death. The injuries present on the dead body may be inflicted in the accident when tire run over on the face and there is also chances of getting injuries due to fall. Investigating Officer has not sent any weapon or articles to get opinion about causing injuries on the dead body with that article. He has not collected body fluids for examination.
23. Cw.17-Venkatesh Assistant Engineer, BBMP., examined as Pw.6. He deposed that, on the requisition of 21 S.C.No.1531/2017 the Investigating Officer, he has visited the place of incident and prepared the sketch as per Ex.P.8. In the cross-examination, he denied suggestions, but admitted that, he has not mentioned the measurement of the labour shed and he has not mentioned the directions of the window and door of the shed from the spot of incident and also not mentioned the exact place of the shed where dead body was found. It was suggested that, Ex.P.9-sketch was prepared in the police station at the instance of the Investigating Officer.
24. Cw.21-Jayaramaiah A.S.I. Marathahalli police station and Cw.23- Guruprasad, P.S.I. Marathahalli police station, Bengaluru and Cw.20- Manjunath K., HC., are examined as Pw.7, Pw.9 and Pw.20 respectively. These police officials have stated that, on 24.7.2017 the P.S.I., have directed them to search and apprehend the 22 S.C.No.1531/2017 accused of this case. On the information received from the informants, they have apprehended accused /Gopala Chathri near Railway Station. They found wound scars on his body. They produced him before the Station House Officer and submitted report and also identified the accused produced before the court and in the cross- examination, it was suggested denying the apprehension of the accused by these police officials.
25. Cw.18- Muniraju HC Marathahalli police station has been examined as Pw.8. He deposed that, on 10.10.2017 he visited Lady Curzon Hospital and obtained articles from Mo.8 to MO.10 and Ex.P.7-Post Mortem Report and submitted to the Investigating officer along with report as per Ex.P.10. This witness denied the suggestion that, the articles at Mo.8 to Mo.10 were not 23 S.C.No.1531/2017 under seal at the time of receiving them from the hospital.
26. Cw.24- Nagaraju P.S.I. Marathahallli police station, the Investigating Officer is examined as Pw.12. He stated about receiving complaint from Cw.1/Srinivas on 24.7.2017 in the morning and registering of Cr.No.311/2017 U/s.302 R/w.Sec.34 of Indian Penal Code and lodging of F.I.R. as per Ex.P.2. This witness and Cw.22/B.M.Krishnamurthy, A.S.I. who examined as Pw.10 have deposed about conducting Ex.P.2/spot panchanama and seizure of 7 articles from Mo.1 to Mo.7 from the spot of incident and identified photographs of the dead body at Ex.P.3 to Ex.P.5. In the cross- examination, Pw.12 has admitted that, he has not mentioned in the Ex.P.2/spot Panchama about presence of two police personnel at the time of his visit to the 24 S.C.No.1531/2017 place of incident. He has not compared the bloodstained foot prints with foot prints of suspected persons or deceased and denied suggestions of non-seizure of the material objects from the spot.
27. Pw.12 further deposed regarding recording of statement of witnesses Nagaraj and adopted the material objects in the P.F.Memo and reported to the court as per P.F.No.51/2017 and 79/2017, on 28.10.2020 received Ex.P.7/Post Mortem Report along with the police personnel report and placed on record. It is denied that, he has not sent the material objects mentioned in PF.No.51/2017, 52/2017 and 79/2017 totally 13 materials objects to RFSL, Mysore.
28. In the cross-examination, Pw.12 has admitted that, Ex.P.1/complaint is not in the handwriting of 25 S.C.No.1531/2017 Cw.1/Srinivas. He has not collected the documents to show that, Cw.1-Srinivas is owner of the place of incident and documents to show deceased-Dil Bahaddhur Lavathi, Leela Bahaddhur and accused-Gopala Chathri were tenants in shed No.4 belongs to the Srinivas. This witness has also admitted that, Ex.P.2-spot panchanama does not reflects finger prints taken by the experts from the spot. This witness has also admitted that, Ex.P.2- spot panchanama does not reflects the materials present in the shed apart from the seized objects. It also does not contain description about the locking facility to the shed both from the out side and inside. This witness expressed ignorance to the suggestions that, since there were two mats in the shed, there were two persons sleeping on the date of incident. So also the spot panchanama does not reflects any information regarding the person, who 26 S.C.No.1531/2017 opened shed door for the first time after the occurrence of crime. The spot panchanama does not states about the actual distance of the bloodshedded foot prints from the dead body, the actual location and measurement of the foot prints. The, Investigating Officer does not submitted the photos of the shed, hand prints and foot prints of the deceased along with charge sheet. This witness admits that, Mo.1/Cement block does not bear the bloodstains. Ex.P.2-spot panchanama does not reflects about the mat on which the dead body was found. This witness also admitted that, the blood flown from the dead body was flown on the Mo.2 and Mo.3-mats, but the mat lying next to the dead body does not contain the bloodstained foot prints. So also it was not returned in the Ex.P.2- spot panchanama regarding the location of bloodstains on the Mo.2 and Mo.3-mats. It is further admissions of the 27 S.C.No.1531/2017 Investigating Officer that, inside shed No.4, the bloodshedded foot prints were not present. He has not enquired about the foot prints belongs to which person.
29. Cw.4-Anand is examined as Pw.13 and Cw.5- Anil is examined as Pw.14. These witnesses are panch witnesses of Ex.P.15-seizure panchanama. They expressed ignorance about the contents of the Ex.P.15 and deposed that, some year ago, they signed the seizure panchanama at the police station, when they visited therein to lodge the complaint. Police have not conducted any panchanama before them. They have not given any statement to the police. These witnesses failed to identify the accused.
30. In the cross-examination by the prosecution by treating these witnesses as hostile, they denied the 28 S.C.No.1531/2017 positive suggestions posed by the prosecution and reasserts their ignorance about conducting of panchanama in their presence and seizure of mobile, havayi slippers and blood swabs recovered from the foot of accused. These witnesses denied having given statement to the police as per Ex.P.16.
31. Cw.8-Paneendra, witness to the Ex.P.6-Inquest panchanama has been examined as Pw.15. This witness states that, on 29.9.2017 he put signature to the Ex.P.6- Inquest panchanama at Bowring Hospital during conducting of Inquest panchanama of deceased Dil Bahaddhur Lavathi. He has seen the dead body of Dil Bahaddhur Lavathi, who was murdered by dropping stone on his head. He came to know that, accused- Gopala Chathri has killed Dil Bahaddhur Lavathi and identified the accused person. He states that, deceased 29 S.C.No.1531/2017 and accused were doing house keeping work and were staying in the same room. He came to know that, under the influence of alcohol, both were used to fight. This witness identified the Mo.1/Cement stone.
32. In the course of cross-examination by the prosecution, this witness denied the suggestion that, he came to know about the dispute and quarrel between the accused and deceased about two months back to the date of incident. He and Sainath have advised them to abstain from fighting. In spite of advice and directions, both were fighting. This witnesses further denied the suggestion that, on 24.07.2017 morning Thejus has telephoned and informed about the murder of Dil Bahaddhur Lavathi and admitted that, neighbouring residents have informed him about murder of Dil 30 S.C.No.1531/2017 Bahaddhur Lavathi by dropping stone on his head by the accused-Gopala Chathri.
33. In the cross-examination on behalf of the accused, he admitted that, he does not know Kannada. Police have not issued written notice for conducting inquest panchanama. He is not aware of place of residence of accused and deceased before the incident in question. He is not aware of the real facts of the incident. He is not aware of the joint residence of accused and deceased before the alleged incident. Mo.1/white colour stone does not contain the bloodstains. He expressed ignorance about the suggestion that, Mo.1/stone was not lying beside the dead body.
34. Cw.25-Prashanth Babu the second investigating officer is examined as Pw.16. He deposed 31 S.C.No.1531/2017 that, on 24.07.2017, he has taken charge of this case from P.S.I. Nagaraj and proceeded with the investigation. He has conducted the arrest procedure of the accused person produced before him by the P.S.I. Guruprasad and the police personnels along with Ex.P.11/report, recorded voluntary statements of the accused, seized bloodstained Vivo mobile phone belongs to the deceased and bloodstained one pair Havayi slippers and bloodstains present on his right leg and adopted in Ex.P.17/ PF memo. This witness identified the mobile, Havayi slippers and blood swab as per Mo.11 to Mo.13 and photographs at Ex.P.18 and Ex.P.19. He has recorded the further statement of complainant-Srinivas, statements of Leela Bahaddhur Lavathi, Milan Bakam Bahaddhur and on 25.07.2017 statements of witnesses Tenasu Marak, Keshava Katthi, Shanu Chathri and 32 S.C.No.1531/2017 statement of Kaji Chathri was recorded on 26.07.2017. On 29.07.2017 conducted Inquest panchanama from 2.30 to 4.30 p.m. as per Ex.P.6 and recorded statements of witnesses Sainatha, Dil Kumar, Paneendra, Raja Bahaddhur and resent the case file for further investigation to P.S.I.Nagaraja and received P.M.Report as per Ex.P.7 on 29.07.2017. After completion of investigation and being of the opinion that, there are prima facie materials to show that, there was enimity between Dil Bahaddhur Lavathi and Gopala Chathri since few days and therefore, accused under the influence of the alcohol, during night hours assaulted on the head of deceased three times with Mo.1-cement stone and committed murder and accordingly filed charge sheet.
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35. In the cross-examination, this witness asserts that, he has verified the investigation conducted by the previous investigating Officer and visited the spot of incident. He has not collected the report of the finger print experts. This witness admitted that, on the date and time of incident, in shed No.4, along with deceased
-Dil Bahaddhur Lavathi, his friend Leela Bahaddhur and his brother Milan were there and having alcohol and non-vegetarian food. At that time, accused-Gopala Chathri was not present. There were no records to show that, to what time those three persons were present in the shed and at what time two of them were left the shed. P.M.Report does not reflects the exact time of death of deceased. It is also admitted that, the two persons present with the deceased before the incident became the suspected persons. He has not taken the finger prints of 34 S.C.No.1531/2017 the accused person, Leela Bahaddhur and Milan Bakam Bahaddhur. So also, foot prints of all the three persons were not taken. He has not compared the foot prints of the accused person with bloodshedded foot prints availabel at the place of incident. It is also admitted that, there were no bloodstain on the hands of the accused. It is further admission of this witness that, they have not enquired about sim card and ownership of Mo.11-mobile phone. It was suggested that, he has not properly conducted the investigation and prepared the statements to save Leela Bahaddhur and Milan and also got prepared Post Mortem Report to suit this case.
36. It is further admission of the Pw.16 that, he has not issued written notice to the panch witnesses. It was suggested that, the complainant has not given further statements before the Investigating Officer and 35 S.C.No.1531/2017 also none of the witnesses have given statement before this witness on 25.07.2017, 26.07.2017 and 24.10.2017.
37. Cw.27-Mahadeva Jadhav HC, Marathahalli police station and Cw.28-Chandresh PC are examined as Pw.17 and Pw.18 respectively. These witnesses deposed that, they were assigned duty to carry 13 material objects to the Regional Forensic Science Laboratory, Mysore. Accordingly, they produced the material objects before the Laboratory and obtained acknowledgement as per Ex.P.20. The cross-examination is denial of their part of work.
38. Cw.26-Radha, Assistant Director, RFSL., Mysore examined as Pw.19. This witness speaks about receipt of 13 sealed articles from Marthahalli police station sent through HC-5736 and examined those 36 S.C.No.1531/2017 articles and found bloodstains on all these 13 articles wherein articles No.1 to 9 and 11 to 13 contains human bloodstain of 'O' +ve group. Since bloodstains present on article No.10/swab was destroyed, it was not possible to give opinion about that article. So also, it was not possible to identify the blood group of stains present on the article No.9- one pairs of slippers. After examination, this witness has given report as per Ex.P.22 and identified the material objects identified as Mo.1 to Mo.13 before the court.
39. In the course of cross-examination, this witness has admitted that, there was 8 months delay in examination and submission of the Ex.P.22-report and the said report does not contains the reasons for the delay. It was suggested that, she has given report at the 37 S.C.No.1531/2017 instance of the police without examination of the material objects.
40. From over all consideration of the prosecution, it is clear that, they have examined Pw.1 to Pw.4, Pw.5, Pw.13 to Pw.15, the independent witnesses, Pw.7 to Pw.12, Pw.16 to Pw.18, the official witnesses and placed Pw.5-doctor evidence as well as evidence of F.S.L. Director-Pw.19. Out of 8 independent witnesses, Pw.1- complainant is hearsay witness and obtained information of murder from known person Pw.2- Nagaraja. Whereas, said Nagaraj, the Labour Supervisor obtained information from labourer, but name of labourer is not disclosed. Another witness Pw.4-Sainathan, the Manager of the company, wherein the deceased and accused were working as housekeepers deposed that, he obtained information from Cw.13. Therefore, it can be safely 38 S.C.No.1531/2017 taken that, according to the prosecution case Cw.13- Thenasu Marak S/o.Nonde Marak was the first person to see the dead body. Cw.13-Thenasu Marak is not secured before the court. Thus, the testimony of witness, who allegedly the first person to witness the dead body, is not available before court. Evidence of Pw.1, 2 and 4, is not sufficient to believe that, accused was occupant of the shed No.4 along with deceased. Thus, the testimony of hearsay witness such as, Pw.1-Srinivasa, Pw.2-Nagaraj and Pw.4- Sayinatha, who have not got personal information about the occupants of the shed No.4 and the persons who were with the deceased soon before the incident and alleged fights and enimity between deceased and accused, does not inspire the confidence of this court.
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41. The evidence of Pw.3-Rajendra, spot panchanama witness is formal in nature. He came to know about the murder by accused from other persons. So also, the testimony of Pw.15-Paneendra, who happens to be the hearsay witness is not acceptable. The testimony of these hearsay witnesses is not helpful to the case of prosecution.
42. It is further case of the prosecution that, in labour shed No.4 along with deceased person, accused- Gopala Chathri and another labour by name Cw.9-Leela Bahaddhur was residing. Therefore, said Leela Bahaddhur is a material witnesses and competent to say about the things conspired between the accused and the deceased on that unfortunate day of incident. So also, it is further case of the prosecution that, soon before the incident, deceased-Dil Bahaddhur Lavathi and Cw.10- 40 S.C.No.1531/2017 Milan Bakam Bahaddhur, accused-Gopala Chathri were together taking alcohol and food. At that time, deceased abused accused with filthy language and also threatened with dire consequences. Such being the case, Cw.10- Milam Bakam Bahaddhur is another material witness, who can say about the alleged fight and enimity between the accused and the deceased, which is the motive to the alleged crime of murder. But for the reasons best known to prosecution, both Cw.9 and Cw.10 are not secured before the court in spite of sufficient opportunities and issuance of proclamation. This aspect is fatal to the case of the prosecution.
43. Nevertheless, it goes without say that, First Information Report is the best piece of evidence, which states about the actual things happened before and after the incident in question without any lacing or 41 S.C.No.1531/2017 exaggeration. Ex.P.1-complaint reads that, deceased, accused and Leela Bahaddhur were the occupants of the labour shed No.4. It is also stated in the complaint that, there is suspicion against Leela Bahaddhur and accused- Gopala Chathri and requested to take suitable legal action. But surprisingly, the charge sheet and allied prosecution papers or the evidence of the Investigating Officer is silent about the reasons to drop the name of Leela Bahaddhur in the charge sheet. No doubt, the gist of the charge sheet shows that, after the alleged fight between the deceased and the accused, Leela Bahaddhur and Milan Bakam have left the spot to sleep in the shed occupied by the Milan Bakam. But except the statement of Leela Bahaddhur and Milan Bakam Bahaddhur, there is absolutely nothing independent materials or the testimony of the occupants of the neighbouring sheds to 42 S.C.No.1531/2017 show that, Leela Bahaddhur and Milan Bakam were not present or sleeping with deceased person at the time of committal of the alleged offence. Two bloodstained Mo.2 and 3 mats were seized from the spot. It appears that, some other person was sleeping with deceased. As per the statements of Cw.9 and 10, immediately after fight, the accused left the spot. Such being the case, it could be infer that, either the Leela Bahaddhur, the regular occupant of the shed or his brother was sleeping there. There are no eyewitnesses to believe that, soon before the incident, accused was sleeping with deceased. As per the statement of Leela Bahaddhur and Milan Bakam Bahaddhur, they were the last seen persons with the company of deceased. It is worthy to note that, specific positive suggestions was put to the Investigating Officer that, a false charge sheet is filed against the accused to 43 S.C.No.1531/2017 save the Leela Bahaddhur and Milan Bakam, no suitable explanation is forthcoming from the Investigating Officer to drop the name of Leela Bahaddhur from the charge sheet. Above all, the evidence of Cw.9 and Cw.10 are not available before this court. This is one another aspect goes against the prosecution case.
44. Spot mahazar, seizure mahazar read that, there was bloodshedded foot prints present in the labour shed No.4 where the dead body was found. But Investigating Officer has not taken pains to compare the foot prints available at the spot of incident with the foot prints of accused person or with the foot prints of the Leela Bahaddhur or Milan Makam Bahaddhur, who were allegedly with the company of the deceased person immediately before the incident. No reasons are forthcoming from the prosecution for not conducting 44 S.C.No.1531/2017 comparison procedure. Further, the Investigating Officer, who conducted the spot panchanama deposed that, at the time of panchanama finger prints experts were present and lifted the finger prints available at the spot. But neither the Investigating officer nor second Investigating Officer has collected the report of the finger print experts. For the reasons best known to them, the report of the finger prints experts is not placed before the court.
45. Further, it is the case of the prosecution that, the weapon of offence is Mo.1-cement block stone. The accused used that cement block to assault thrice on the head of the sleeping Dil Bahaddhur Lavathi and killed him at the spot. Investigating Officer and witnesses have stated that, it is white colour stone and does not contain bloodstains. If at all, the prosecution case is accepted to 45 S.C.No.1531/2017 the effect that, accused has used Mo.1/stone to kill the deceased person, certainly bloodstains will be prominently present on the said stone, because photographs of the dead body shows that, the entire face of the deceased is covered with blood and his blood was flown on the mats at Mo.2 and Mo.3. There were blooshedded foot prints. In case of such gravity of offence and blood pooled out from the dead body, why it was not present on the weapon of offence, has not satisfactorily explained by the prosecution. It creates genuine doubt in the mind of the court regarding the case of the prosecution that, the accused is used Mo.1/Cement stone to kill the deceased person. No doubt, Ex.P.20-F.S.L.Report and evidence of the expert state that Mo.1-Stone contains stains of human blood with 'O'+ group. But there is nothing on record to believe 46 S.C.No.1531/2017 that, the bloodstains present on Mo.1-stone is of the deceased. No documents including Post Mortem Report reflects blood group of deceased. Above all, it is difficult to believe that, bloodstains that were present at the time of Forensic Science Laboratory examination disappeared at later stage.
46. From the over all consideration of the prosecution evidence and the materials on record, it is forthcoming that, this case is entirely based on the circumstantial evidence and there are no eyewitnesses to the incident in question. The persons, who were last seen with the company of the deceased namely Cw.9/Leela Bahaddhur and Cw.10/Milan Bakam Bahaddhur are neither examined before court nor treated as suspected persons. Admittedly, there are 50 to 60 labour sheds in existence at the place of incident. Those labour sheds are 47 S.C.No.1531/2017 situated side by side. Thus, there is every possibility that, neighbouring shed occupants heard noises and scream of the deceased person. But no such neighbour shed occupants are examined before the court. It is the case of the prosecution that, Cw.13/Thenasu Marak was the first person to see the dead body. But the evidence of said witness is not available before the court. Though bloodsheded foot prints are available at the place of incident, there is no material placed by the prosecution to link the said foot prints with the foot prints of the accused person. More surprisingly, the Forensic Science Laboratory Expert has identified the presence of the human blood on the articles. The stains allegedly present on the slippers of the deceased as well as bloodswabs collected from the feet or leg of the accused person are not identified as human blood with group. Ex.P.15 48 S.C.No.1531/2017 seizure panchanama conducted to collect blood from foot/leg and slippers of accused, is not proved through supportive evidence of panch witnesses Pw.13 and Pw.14. At the same time, prosecution has not placed any material to link the group of the blood present on the Mo.1-Cement stone, the weapon of offence tallies with the blood group of the deceased.
47. Above all, neither complainant nor Pw.2/Nagaraj the labour Supervision in Wells Fargo company and manager of the said company-Pw.4 are not able to state about the joint occupation of the shed No.4 by accused, deceased and Leela Bahaddhur. No doubt, investigating officer Pw.16 assert that, complainant has given further statement about these aspects. But, the testimony of the Pw.1-Srinivas reads that, he has not given any such statement to the police. 49
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48. Further, Pw.2 and Pw.4 have not got any document to show that, on the date of incident, accused was very much present in the shed No.4 and there was alleged fight taken place between them in presence of Cw.9-Leela Bahaddhur and Cw.10-Milan Bakam Bahaddhur as per prosecution case, time of death is around 1.00 a.m. But the Post Moretem report does not corroborates it, because of delay in conducting Post Mortem. There is an admission to that effect by Pw.5-Dr. Suresh that, the dead body was kept in the cold storage for a period of three days. Therefore, the actual period of death cannot be identified. Further, it is forthcoming from the medical evidence that, the weapon of offence was not sent to the examination of the doctor to confirm that, the injuries present on the dead body was inflicted with the weapon of offence. Viewing from any angle, the 50 S.C.No.1531/2017 evidence on record do not point out the guilt of the accused person beyond all reasonable doubt. The benefit of doubt due to the lacunas discussed supra could be extended in favour of the accused.
49. From the discussions and the reasons stated above, this court is of the opinion that, prosecution has not succeeded to prove beyond all reasonable doubt that, deceased- Dil Bahaddur Lavathi, accused- Gopala Chathri and Cw.9- Shree Leela Bahaddur were staying in the labour shed No.4 constructed in the site belongs to Cw.1-Srinivas. There was frequent fights between the accused and the deceased in respect of the household chores and keeping shed key. In pursuance of the same, on 20.07.2017 during evening hours, deceased - Dil Bahaddur Lavathi, Cw.9-Shree Leela Bahaddur and Cw.10/ Sri Milan Bakam Bahaddur at labour shed No.4 51 S.C.No.1531/2017 situated at land belongs to the Cw.1-Srinivas, Panatthur village, were taking food along with liquor. At that time, deceased/Dil Bahaddhur Lavathi abused the accused by threatening that, he will not leave him to go back with life to West Bengal. Cw.9 and Cw.10 tried to pacify the quarrel by advising the deceased. Accused left the room silently without making any galata or fight with deceased person. At night about 8.30 p.m., the accused watched Cw.9 and Cw.10 returned to their shed and entered the shed No.4 and saw the accused person sleeping alone in the shed and waited till the neighbouring shed occupants go to sleep and at early morning hours about 1.00 a.m., he picked up cement stone lying out side the shed and assaulted on the head of the deceased and killed him thereby committed the offence punishable U/s.302 of 52 S.C.No.1531/2017 Indian Penal Code. Hence, point No.2 under consideration is answered in the Negative.
50. POINT NO.3: In view of the above findings on points No.1 and 2, accused is entitled for acquittal. Hence, this court proceed to pass the following;
ORDER Accused is hereby acquitted U/s.235(1) of Cr.P.C., for the offence punishable U/s.302 of Indian Penal Code.
Bail bonds and surety bonds of the accused stand cancelled.
Accused is directed to execute fresh bail bond and surety bonds U/s.437-A of Code of Criminal Procedure and same shall be in force for a period of six months from this day. 53
S.C.No.1531/2017 Issue intimation to the Jail Authorities to release the accused, if not required in any other case.
Mo.11/Mobile Phone is confiscated to the State, after expiry of appeal period.
Mo.1 to 10 and Mo.12 and Mo.13 being worthless articles, are ordered to be destroyed, after expiry of appeal period.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 18th day of November 2022.) (KALPANA M.S.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,(CCH-65), BENGALURU CITY.
54
S.C.No.1531/2017 A N N EXU RE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 Srinivasa
Pw.2 Nagaraja
Pw.3 Rajendra
Pw.4 Sayinathan
Pw.5 Dr.Suresh
Pw.6 Venkatesh
Pw.7 Jayaramaiah
Pw.8 Muniraju
Pw.9 Guruprasad
Pw.10 B.M.Krishnamurthy
Pw.11 Manjunatha
Pw.12 Nagaraju M.
Pw.13 Anand
Pw.14 Anil
Pw.15 Paneendra
Pw.16 Prashanth Babu
Pw.17 Mahadeva Jadhav
Pw.18 Chandresh
Pw.19 Radha
II. For Defence:-
- Nil-
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III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Complaint
Ex.P.1(a) Signature of Pw.1
Ex.P.1(b) Signature of Pw.12
Ex.P.2 Spot mahazar
Ex.P.2(a) Signature of Pw.1
Ex.P2(c) Signature of Pw.3
Ex.P.2(d) Signature of Pw.10
Ex.P.2(e) Signature of Pw.12
Ex.P.3 to Ex.P.5 3 Photographs
Ex.P.6 Inquest panchanama
Ex.P.6(a) &(b) Signatures of Pw.4 and Pw.15
Ex.P.7 Post Mortem Report
Ex.P.7(a) Signature of Pw.5
Ex.P.7(a) Signature of Pw.12(double
marked)
Ex.P.8 Requisition
Ex.P.8(a) Signature of Pw.6
Ex.P.9 Sketch
Ex.P.9(a) Signature of Pw.6
Ex.P.10 Report
Ex.P.10(a) Signature of Pw.8
Ex.P.11 Report
Ex.P.11(a) Signature of Pw.9
Ex.P.12 F.I.R.
Ex.P.12(a) Signature of Pw.12
Ex.P.13 Property Form No.51/2017
Ex.P.13(a) Signature of Pw.12
Ex.P.14 Property Form No.79/2017
Ex.P.14(a) Signature
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Ex.P.15 Seizure mahazar
Ex.P.15(a) Signature of Pw.13
Ex.P.15(b) Signature of Pw.14
Ex.P.15(c) Signature of Pw.16
Ex.P.16 Statement of Pw.14
Ex.P.16(a) Signature of Pw.14
Ex.P.17 Property Form No.52/2017
Ex.P.17(a) Signature of Pw.16
Ex.P.18 & Ex.P.19 Photographs
Ex.P.18(a) & Ex.P.19(a) Signatures of Pw.16 Ex.P.20 Endorsement Ex.P.21 Rahadari Pathra( ರಹದದರ ಪತತ) Ex.P.22 Report Ex.P.22(a) Signature of Pw.19 Ex.P.23 F.S.L. Seal Ex.P.23(a) Signature of Pw.19 IV. For Defence side:-
-Nil-
V. List of material objects marked:-
Mo.1 Cement Block Stone Mo.1(a) & (b) Signatures Mo.2 & Mo.3 2 Mats Mo.2(a) and 3(a) Signatures Mo.2(b) & 3(b) Signatures Mo.4 Blood sample. Mo.4(a) Signature Mo.5 Bloodstained blanket Mo.5(a) Signature 57 S.C.No.1531/2017 Mo.6 & Mo.7 Bloodstained swabs Mo.6(a) & 7(a) Signatures Mo.6(c) Signature Mo.8 Blue colour shirt Mo.8(a) Signature Mo.9 White colour barmooda Mo.9(a) Signature Mo.10 Black colour underwear Mo.10(a) Signature Mo.11 Vivo Company Mobile phone Mo.12 Blue colour Chappals Mo.13 Bloodstained swab Mo.11(a) to Mo.13(a) Signatures. (KALPANA M.S.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY 58 S.C.No.1531/2017 18.11.2022
Accused produced from J.C. through V.C. Judgment pronounced in the open Court (Vide separate judgment) OR DER Accused is hereby acquitted U/s.235(1) of Cr.P.C., for the offence punishable U/s.302 of Indian Penal Code.
Bail bonds and surety bonds of the accused stand cancelled.
Accused is directed to execute fresh bail bond and surety bonds U/s.437-A of Code of Criminal Procedure and same shall be in force for a period of six months from this day.
Issue intimation to the Jail Authorities to release the accused, if not required in any other case.59
S.C.No.1531/2017 Mo.11/Mobile Phone is confiscated to the State, after expiry of appeal period.
Mo.1 to 10 and Mo.12 and Mo.13 being worthless articles, are ordered to be destroyed, after expiry of appeal period.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-65, BENGALURU CITY.