Bangalore District Court
State By vs Arun Rabha on 19 April, 2023
KABC010156462021
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.KASHIM CHURIKHAN.
B.A., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 19th day of April 2023.
S.C.No.904/2021
COMPLAINANT : State by
Sheshadripuram Police
Bengaluru.
(By learned Public Prosecutor)
.Vs.
ACCUSED : 1. Arun Rabha,
S/o.Harastar Rabha,
21 years,
R/of.Tongla Village,
Puroni Tongla Post,
Tongla Station,
Guwahati District,
Assam State.
(By Sri.G.S., Advocate)
2. Pankaj Bora,
S/o.Late Tagar Bora,
S.C.No.904/2021
2
21 years,
R/of.Gadhariya Basthi,
(Station & Post)
Missamari Helan Post Office,
Sonithpura District,
Assam State.
(By Sri.N.D.L., Advocate/Standing
Counsel)
JUDGMENT
The Police Inspector of Sheshadripuram Police Station, Bengaluru has laid the charge sheet against the accused for the offence punishable under Section 302 r/w. 34 of IPC.
2. The learned Magistrate after complying with the provisions under Section 207 Cr.P.C., has committed the case under Section 209 of Cr.P.C., to the Court of Prl. City Civil & Sessions Judge, Bangalore as the offence alleged against the accused is exclusively triable by the Court of Sessions. After committal of the case, the case is made over to this court for trial in accordance with law.
3. The brief facts of prosecution case are as under:
One Pobithra Pegu is the resident of State of Assam, was working under C.W.7 at Kudumalakunte Village, Gauribidnur Taluk, Chikkaballapur District, Karnataka State. To get his Aadhar Card from his native, he had booked ticket in train from Bengaluru to Guwahati scheduled on 12.01.2021 at 3-00 a.m. The same fact S.C.No.904/2021 3 was informed to C.Ws.5 to 7. He came to Majestic City Railway Station and intimate the same to his brother C.W.2 through mobile phone. The accused No.1 came to Railway Station, got introduced himself to Pobithra Pegu, the accused No.2 has also joined their company, they went to Bar, purchased alcohol. The accused got confirmed the fact that Pobithra Pegu is addicted to Ganja. They came back near Railway Station, Pobithra Pegu had smoked Ganja, the accused consumed alcohol. During exchange of words, quarrel occurred between them, Pobithra Pegu has stabbed on the thigh of accused No.1 and pushed accused No.2, then the accused No.2 instigated the accused No.1 to kill Pobithra Pegu. The accused assaulted on the head of Pobithra Pegu by stone and snatched the cash and Redmi mobile phone, the accused No.1 again assaulted on the private parts of Pobithra Pegu by stone and cut the ears and caused fatal injuries, therefore it is alleged that the accused knowing that such injuries may likely to cause death of a person and thereby, committed his murder.
4. After committal of the case and on securing the presence of accused, the accused No.1 has represented through his counsel, as there is no representation on behalf of accused No.2, the assistance of Standing Counsel is taken on his behalf.
The charge has been framed against them for the S.C.No.904/2021 4 offence punishable under Section 302 r/w. Section 34 of IPC. The accused have pleaded not guilty and claim to be tried. In order to bring home the guilt of the accused, the prosecution has examined P.Ws.1 to 29 and got marked the documents Exs.P.1 to 76 and M.Os.1 to 32. Thereafter, the statements of accused under Section 313 of Cr.P.C., were recorded. The accused have denied the incriminating evidence stated against them and they have not chosen to adduce defense evidence.
5. Heard the arguments.
6. The points raised for determination are as under :
1. Whether the prosecution proves beyond reasonable doubt against the accused that on 12.01.2021 at 3-00 a.m., at Majestic Railway Station, while Pobithra Pegu came to railway station in order to go to his native place, the accused No.1 came to Railway Station, got introduced himself, the accused No.2 has also joined their company, they went to Bar, purchased alcohol, all of them came back near Railway Station, Pobithra Pegu had smoked Ganja, the accused consumed alcohol and during exchange of words, quarrel occurred between them, Pobithra Pegu stabbed on the thigh of accused No.1 and pushed accused No.2, then the accused No.2 instigated the accused No.1 to kill Pobithra Pegu, for which the accused assaulted on the head of Pobithra Pegu by stone and snatched the cash and S.C.No.904/2021 5 Redmi mobile phone, the accused No.1 again assaulted on the private parts of Pobithra Pegu by stone and cut the ears, causing fatal injuries knowing fully well that such injuries may likely to cause death of a person and thereby, committed an offence punishable under Section 302 of IPC ?
2. What Order ?
7. My findings on the above points are as under :
POINT No.1 - Negative, POINT No.2 - As per final order, for the following :
REASONS
8. POINT No.1 : In order to prove its case, the prosecution has examined the first informant Sri.Mohan as P.W.1. He is an independent witness. He has deposed that his house is near railway track. Daily they used to go near railway track to answer nature call. In the month of January at about 5-30 p.m., he was near railway track adjacent to Krishna Flour Mill to answer nature call, he saw a dead body, he was afraid by seeing the same. There were injuries on the head and cheek of the body, the shirt & jeans pant on the body are partly opened. He thought that somebody had smashed by stone. He had informed the same to Traffic Police and shown the place, in turn the Traffic Police have informed Law & Order Police. The police came to the spot and asked him to file report to the police. The S.C.No.904/2021 6 police took his report Ex.P.1. On the next day, the police called him to the Police Station and obtained his signature on the mahazar, it is marked at Ex.P.2. The police have took mask and two stones.
At this stage, he is treated as hostile witness by the prosecution and cross examined. During the cross examination by the prosecution, he has stated that he informed the police that somebody due to enmity, killed a person by stone. He has stated that on 12.01.2021 between 6-45 p.m., and 9-45 p.m., the police drew spot mahazar. They found injuries on the head, private parts, left side forehead, left side cheek, right side chest, thighs of both the legs and cut two ears. He has stated that the police have seized the blood stained stone, blood stained mud, blood stained another stone, blue mask, jeans pant, ring, open water bottle, blue colour cap/hat, water bottle cap, chain containing Anjaneya pendent, banian, wrist thread, purse, blood stained soil. Except the ring, other articles are marked at M.Os.1 to 14. The photos of the dead body are marked at M.Os.15 to 20.
During the course of cross examination by the learned counsel for accused, he has stated that he does not know reading and writing in Kannada language and he does know Tamil language. He does not know the contents of Exs.P.1 and 2. He has not lodged report to the police as per Ex.P.1.
S.C.No.904/2021 7
9. P.W.2-Sri.Sudamsh Mithra, Inquest Mahazar witness has deposed that he has identified his signatures on Notice, Inquest panchanama and the Receipt for having received the dead body, those are marked at Exs.P.3 to 5. He found injuries over the dead body.
During the cross examination by the learned counsel for accused, he has denied that the Inquest Panchanama is not drawn in his presence. He has denied that he put his signatures in the Police Station.
10. P.W.3-Sri.Dinesh Kumar, the alleged employer of the deceased. He has deposed that in Kudumalakunta Village in Gowribidanur Taluk, he is running Star Steel Industries Factory. C.Ws.5, 6 and deceased were working in his factory. He was paying salary to them. On 11.01.2021, Pobithra Pegu had informed him to go to his native State to get Aadhar Card and on that day, he has paid Rs.7,900/- to him and send C.W.6 with him on scooty to book ticket at Thumakunta Check post and came to know that Pobithra Pegu booked ticket at online. He has further stated that on 15.01.2021, the brother of deceased made mobile call to C.Ws.5 & 6 and informed that his brother had not come. He asked C.W.6 to bring copy of the booked ticket, he brought it and he made enquiry through Helpline No.139 about S.C.No.904/2021 8 ticket, he could not able to get information about it. On 21.01.2021, Sheshadripuram Police called him and C.Ws.5 & 6 to the Police Station and shown the photo of the dead body, they have identified the body of the person, who is Pobithra Pegu. They came to know that someone smashed him by stone. He has produced his factory registration copy, labour registration copy, salary statement copies, those are marked at Exs.P.6 to 8.
During the cross examination by the learned counsel for accused, he has denied that the police have not shown Photo of the dead body. He has denied that the deceased was not working in his factory.
11. P.W.4-Sri.Santhosh & P.W.5-Sri.Manohar are Masons, were doing work in New Don Apartment Company at Hosur, there were 30 sheds to the staff, wherein they used to sleep at night, they do not know the number of the property. The accused were not working in their company. They have deposed that on the night dated: 11.01.2021, the accused came to their shed and slept in one vacant shed. They came to know that the accused were working in Hamalton Apartment. They came to know that on that day at night, the accused gone to their company site at late, the gate was closed and the guard is not permitted them to enter their apartment, so the accused came to their S.C.No.904/2021 9 shed. They have further stated that on 29.01.2021, the police came to their apartment and they came to know that the accused have committed the murder of one person. They do not know who is the person murdered. They came to know that the culprits had snatched the mobile phone and cash from the said person.
During the cross examination by the learned counsel for accused, they have denied that the accused did not come to their apartment and slept in the shed.
12. P.W.6-Sri.Mukesh-Civil Supervisor has deposed that he does not know the accused and C.Ws.14 & 15. On 29.01.2021, he had been to New Don Apartment on civil work, where the police were present and came to know that one person was murdered near railway track, he does not know about the case. He does not know the culprits. He has not given statement.
He is treated as hostile witness by the prosecution and cross examined. During the cross examination by the prosecution, he has admitted that there were 30 sheds for workers in survey No.21 of Chikka Nagamangala, some of them were vacant. On 21.01.2021, the police came to the shed with the accused, he came to know that on 11.01.2021, the accused were slept in their shed. He came to know that the accused smashed the deceased person by stone S.C.No.904/2021 10 and caused his death. He has denied that he has given statement Ex.P.9 to the police.
During the cross examination by the learned counsel for accused, he has denied that on the alleged date, the accused were not come to their apartment and slept.
13. P.W.7-Sri.Srinivas, Painter, working in Bricks and Milestone Company and the company project was going in Gattihalli, there were 30 sheds for labours and in the same sheds, the workers were staying and some sheds were vacant. On 29.01.2021, the police brought the accused to the site, prior to it, he had not seen the accused. He came to know that the accused smashed by stone and killed one person. He came to know that on that day, the accused were slept in the shed.
He is treated as hostile witness by the prosecution and cross examined. During the cross examination by the prosecution, he has denied that C.Ws.14 and 15 had informed him that the accused came and slept in their shed. He has denied that C.Ws.14 and 15 had informed him that the accused were working at Hamolton Project. He has denied that he came to know that the deceased person is Pobithra Pegu. He has denied that he has given statement Ex.P.10 to the police.
S.C.No.904/2021 11
14. P.W.8-Sri.Abdul Khaleel, Site Supervisor has deposed that he does know C.Ws.14, 15 and 17. He is working in Bricks and Milestone Company. In Survey No.21 of Chikka Nagamangala, their company had constructed 30 sheds for workers, some of them were vacant. On 29.01.2021, the police brought the accused to the site, prior to it, he did not see them. He came to know that on 11.01.2021, the accused smashed by stone to one person and killed him. He came to know from C.Ws.14 and 15 that on that day, the accused came to their site and slept.
During the course of cross examination by the learned counsel for accused, he has denied that on the alleged date, the accused did not come to their site and slept.
15. P.W.9-Sri.Sunil has deposed that he is running Tea Stall in the name and style Ayyappa Tea Stall at Central Railway Station, Bengaluru. He does not know the facts of the case. He never gone to the Police Station. The police have not shown the accused to him. The accused had never come to his tea stall. He has not given statement to the police in respect of identification of the accused.
He is treated as hostile witness by the prosecution S.C.No.904/2021 12 and cross examined. During the course of cross examination by the prosecution, he has denied that on 11.01.2021 at about 6-15 p.m., the accused came to his shop and purchased two cigarettes. He has further denied that the accused had purchased 90 Original Choice Brandy from the shop situated by the side of his shop. He has denied that he came to know that the accused assaulted on deceased by stone and caused his death. He has denied that he has given statement Ex.P.11 to the police.
16. P.W.10-Sri.Thigambara-Spot Mahazar witness, has stated that he has identified his signatures on the spot mahazar and notice. These are marked at Exs.P.2 and 12. He has further deposed that on 12.01.2021 between 6-45 p.m., and 8-00 p.m., the police have conducted spot mahazar at the vacant space near Krishna Flour Mill belongs to Railways and there was dead body and there were injuries on the body. The police have seized the stone, clothes, ring, hat/cap, purse and soil. These are already marked at M.Os.1 to
14. The ring is marked at M.O.21. The articles were covered in the cloth and sealed and affixed the slip thereon. He does not know the name of deceased. The photos of the deceased are marked at M.Os.15 to 21.
During the course of cross examination by the learned counsel for accused, he has denied that the police have not drawn spot mahazar Ex.P.2 and seized S.C.No.904/2021 13 M.Os.1 to 14 in his presence.
This witness is recalled by the prosecution and examined him. In his further chief examination, he has stated that on 19.01.2021 in the Police Station, the police drew panchanama of seven articles secured by the FSL officials under mahazar Ex.P.14. The notice to the witness is marked at Ex.P.15. The blood stained mud, sample mud, blood stained small stone, blood stained hairs, sample hairs, blood stained stick and blood stained masks are marked at M.Os.22 to 28.
During the course of cross examination by the learned counsel for accused, he has denied that the police or FSL Officials have not seized M.Os.22 to 28 in his presence.
17. P.W.11-Sri.Yogesh-Cashier in Exports Wine Stores, situated near Bengaluru City Central Railway Station has deposed that the police called him and shown the photo of the dead body. The police shown the accused to him. He has further stated that the accused have not come to his Wine Shop to purchase brandy bottle. He has not given statement to the police. He did not see the accused earlier.
He is treated as hostile witness by the prosecution and cross examined. During the cross examination by the prosecution, he has denied that on 11.01.2021, the accused No.1 came to his Wine shop and had S.C.No.904/2021 14 purchased 90 Original Choice Brandy packet. He has denied that he came to know that the accused smashed by stone to the deceased and killed him. He has denied that he has given statement Ex.P.13 to the police in this regard.
18. P.W.12-Sri.Nagaraju-Seizure Mahazar witness has deposed that on 19.01.2021 between 2-00 p.m., and 3- 00 p.m., the police called him to the Police Station and drew mahazar Ex.P.14 in respect of collection of soil, hairs and blood samples. The notice given to him is marked at Ex.P.15.
He is treated as hostile witness by the prosecution and cross examined. During the course of cross examination by the prosecution, he has admitted that on the alleged date, the said articles M.Os.22 to 28 have shown to him and he came to know that those articles were collected by FSL officials at the spot.
During the course of cross examination by the learned counsel for accused, he has denied that the said articles are not shown to him and drew mahazar Ex.P.14.
19. P.W.13-Sri.Madhu Jiya Pegu, brother of the deceased, has deposed that his brother Pobritha Pegu was working in Steel Factory at Gouribidanur. On S.C.No.904/2021 15 11.01.2021, his brother made phone call to him and informed about his arrival to the home. After 2-3 days, his brother did not come to home. His parents made call to the mobile of his brother, it was switched off. He went in search of his brother and due to non-tracing of his brother, he went to Railway Police Station and shown the photo of his brother and informed about his missing. The railway police shown the photo of the dead body. It belongs to his brother. He came to know that somebody have murdered his brother. He had been to the hospital, where the dead body was stored. He received the body and given receipt Ex.P.5. There were several injuries on the dead body. He does not know the cause of death of his brother. He does not know the culprits. He has stated that he came to know that someone assaulted by stone and murdered his brother.
20. P.W.14-Dr.Shruthi.M.K. has deposed that on 20.01.2021 on the request of Sheshadripuram Police, Bengaluru, she has conducted P.M.Examintion of the deceased. The clothes and articles found on the body. She has further stated that faint postmortem staining present over the back of body. Dried blood stains and mud stains present at places, both ears are missing and postmortem animal bite marks seen around the area. On examination, she found the following injuries S.C.No.904/2021 16 on the body:
1. Multiple chop wounds ranging from 3cmX1cmXbone deep to 5cmX1cmXbone deep present over mid parietal, left front- parietal, left occupital regions.
2. Chop wound of 12cmX5cmXcranial cavity deep and 4cmX2cmXbone deep present over left temporal region, 5 cm away from left ear canal, 2cm apart.
3. Lacerations of 3X1cmXmuscle deep, 6cmX2cmXmuscle deep and 6X4 cmsXmuscle deep present just above left eyebrow, over left eye brow, left cheek respectively.
4. Crush injury of 2X6cmXnasal cavity deep present over nose.
5. Abrasion of 8cmX3cm and 3cmX3cm present over right forehead and right cheek respectively.
6. Multiple cresentric abrasions (nail marks) ranging from 1cm to 1.5 cm length present over left side of jaw, top of left shoulder.
7. Multiple abrasions ranging from 1X1cm to 3X3cm present over top of left shoulder, front of chest and abdomen, back of both elbows and both hands.
S.C.No.904/2021 17
8. Laceration of 5cmX1cmX1cm present over penis.
9. Crush injury of 4cmX2cmX1cm present over left side of scrotum.
10. Multiple contusions ranging from 4X1cm to 6X1cm present over front of both thighs, underlying muscles show blood extravasation.
She opined that the cause of death is due to multiple injuries sustained to head. Accordingly, she has issued P.M.Report Ex.P.16. She has stated that the Investigating Officer has sent two stones with a requisition to verify and give her opinion. The requisition is marked at Ex.P.17. She has examined the blood stained stones marked at M.Os.1 and 3. Thereafter, she has returned these articles to the police. Her opinion is marked at Ex.P.18. The sample seal is marked at Ex.P.19. She has opined that the injuries may be possible if a person assaulted by M.Os.1 and 3.
21. P.W.16-Sri.Santhosh-Spot Mahazar witness has deposed that the notice issued to him, is marked at Ex.P.20 and the mahazar is marked at Ex.P.21. He has deposed that on 28.01.2021, the police called him to conduct mahazar. He accompanied with the police and accused near Gandhi Nagar Railway Bridge, where the accused shown the place, the police conducted S.C.No.904/2021 18 mahazar, no articles were seized on the spot.
During the cross examination by the learned counsel for accused No.1, he has denied that in the Police Station, he put his signature on Exs.P.20 and 21. He has denied that the accused did not led them to the spot.
22. P.W.16-Sri.Pradeep Shetty is mobile seizure pancha. He has deposed that the notice issued to him, is marked at Ex.P.22 and the seizure mahazar is marked at Ex.P.23. He has deposed that on 26.01.2021, he has visited Sheshadripuram Police Station, Bengaluru on his work, C.W.47 shown the accused to him, the accused No.1 has produced his and deceased mobile phones. The police have seized the same under mahazar Ex.P.23. The mobiles are marked at M.Os.29 and 30. He has further stated that the accused No.2 has produced the mobile phones. He has wrongly stated that the accused No.1 has produced the mobile phones.
During the course of cross examination by the learned counsel for accused No.1, has stated that the accused No.1 has not produced the mobile phones.
During the cross examination by the learned counsel for accused No.2, he has stated that in the Police Station, the police have issued notice Ex.P.2. He S.C.No.904/2021 19 has denied that the accused No.2 has not produced M.Os.29 and 30. He has denied that no mahazar was conducted in his presence.
23. P.W.17-Sri.Dinesh, the then Head Constable of High Grounds Police Station, Bengaluru has deposed that on 12.01.2021, he and C.W.24 were on patrolling duty near Krishna Flour Mill junction, at about 5-30 p.m., C.W.1 came and has informed that there is dead body near railway track. They went to the place and saw the dead body and they have brought to the notice of the same to Sheshadripuram Police, Bengaluru.
During the course of cross examination by the learned counsel for accused, he has sated that he has not stated in his statement before the police that he has informed to Sheshadripuram Police about the dead body.
24. P.W.18-Dr.Lingegowda, Asst. Director, F.S.L., Bengaluru has deposed that on 19.01.2021, on the request of Investigating Officer, he visited the place of incident, he has collected blood stained soil, blood stained stones, blood stained hairs, blood stained club, blood stained mask and hairs. He has handed over these articles to the Investigating Officer, who has S.C.No.904/2021 20 seized these articles under mahazar Ex.P.14. The said articles are marked at M.Os.23 to 28. The letter issued by the Investigating Officer is marked at Ex.P.27. His endorsement is marked at Ex.P.28. He has further stated that on 28.01.2021, the Investigating Officer has sent 26 articles with sealed cover for examination. The seal is intact and tallied with the sample seal. He has scientifically examined these articles and found blood stains O+ve belong to human being. He has given report Ex.P.29. The sample seal is marked at Ex.P.30. The Endorsement is marked at Ex.P.31. The letter of Investigating Officer is marked at Ex.P.32, the Memo is marked at Ex.P.33 and the Schedule of Articles is marked at Ex.P.34. He has opined that if persons smashed by stone, the articles may likely be blood stained as stated above.
During the cross examination by the learned counsel for accused, he has denied that he has deposed false evidence that if the persons smashed by stone, the said articles become blood stained. He has denied that if a person met with an accident, the articles stated above may become blood stained. He has denied that the Investigating Officer has not sent any articles for examination or he has examined the same. He has denied that he has not visited the spot and found articles in the place of incident. He has denied that to assist the police, he has given false S.C.No.904/2021 21 evidence.
25. P.W.19-Sri.Prakash Naik-Head Constable and P.W.22-Sri.Keshava Murthy, Police Constable have deposed that on 26.01.2021, they and C.Ws.43, 44 and 46 were deputed by C.W.47 to trace the accused, they met the brother of deceased and collected the mobile number and IMEI Number of the deceased mobile. They have handed over the same to the Investigating Officer. Their departmental technical squad has find out whether the deceased mobile had connection with any other mobile. They found communication with the deceased mobile and the said location was in Tamil Nadu. They came to know that on 13.01.2021 at 3-30 p.m., the location was in Tamil Nadu and on 26.01.2021, the said location was in Bengaluru railway station. Therefore, they rushed to Railway Station, they have seen two suspected persons, they caught hold them, they are accused. They found deceased mobile in the possession of accused No.1. They brought the said persons to the Police Station and produced before the Investigating Officer with the report by P.W.19, it is marked at Ex.P.35. The Investigating Officer has instructed them to get memorandum of accused mobile. The memorandum is marked at Ex.P.36.
During the course of cross examination by the S.C.No.904/2021 22 learned counsel for accused No.1, they have stated that when they were in railway station, the brother of deceased C.W.2 was present there, they got information about the mobile number of the deceased from him at the Police Station. They have denied that C.W.2 has not provided mobile number and IMEI number of the deceased mobile. They have denied that they have not apprehended the accused in the railway station. They have denied that they did not seize the mobile from the possession of accused No.1. They do not know the name of mobile company.
During the course of cross examination by the learned counsel for accused No.2, they have stated that the Investigating Officer has not furnished the physical features of the accused. They have denied that the accused were not in the railway station. They have denied that they have created mobile M.O.29 for the purpose of this case.
26. It is mentioned here that P.W.19 is recalled by the prosecution for further examination and examined. P.W.19 has further stated that the mobile was found in the possession of accused No.2.
During the cross examination by the learned counsel for accused, he has stated that in his previous evidence under confused he has stated that the deceased mobile was in possession of the accused S.C.No.904/2021 23 No.1 and it was recovered from the possession o accused No.1. He has denied that the deceased mobile was not in the possession of accused No.2.
27. P.W.20-Sri.Basavaraju.V. the then Police Constable of Sheshadripuram Police Station, Bengaluru has deposed that he has carried the articles to FSL for examination and received the acknowledgment, it is marked at Ex.P.31. The articles are already marked at M.Os.1 to 14 and 21 to 28. The documents pertaining to them are marked at Exs.P.30, 32 to 34.
During the cross examination by the learned counsel for accused, he has denied that he has not carried any articles to FSL for examination.
28. P.W.21-Sri.Subramanya, Head Constable of Sheshadripuram Police Station, Bengaluru has deposed that the mobile No.6362979613 belongs to the deceased was standing in the name of Daben Biswakarma. Therefore, the Investigating Officer has instructed him to secure Daben Biswakarma. He made efforts to secure him, but he did not trace him. In this regard, he has issued report Ex.P.37. The Memorandum is marked at Ex.P.38.
During the cross examination by the learned counsel for accused, he has denied that the above said mobile number was not in possession of the deceased.
S.C.No.904/2021 24
29. P.W.23-Smt.Srividhya, Assistant Director, Physics Section, F.S.L., Bengaluru has deposed that on 17.08.2021, the Biological Section of the laboratory has sent a request letter in connection of this case along with four sealed articles. The sealed articles were intact and tallied with the sample seal. They break open the seal and found four articles, which are marked at M.Os.13, 14, 21 and 23. After examination, she has issued report, it is marked at Ex.P.39. She has sealed the articles and sent back to the Investigating Officer with sample seal. The sample seal of the laboratory is marked at Ex.P.40.
30. P.W.24-Sri.G.N.Krishnappa, A.S.I., has deposed that on 12.01.2021, he was on duty at Krishna Flour Mill junction, at about 5-00 p.m., one person by name Mohan had informed to him that the dead body is lying at the vacant space near Central Railway Station railway track, he rushed to the spot and seen the dead body. There were injuries on the body. It appears that somebody by using stone caused injuries. The photos of the dead body are marked at M.Os.15 to 20. The stone is marked at M.O.1.
During the cross examination by the learned counsel for accused, he has stated that before C.W.1 S.C.No.904/2021 25 lodged report to the police, he came to know about lying dead body near railway track, he did not lodge report to the police. He had no hindrance to report to the police immediately after coming to knowledge of the dead body. He has denied that he has not visited the place of incident.
31. P.W.25-Sri.Rajashekar.K.P. Police Constable has deposed that on 25.01.2021, the Investigating Officer has instructed him to bring the articles from Bowring and Lady Curzon Hospital, Bengaluru, he went to the hospital and received four articles & produced before the Investigating Officer with report Ex.P.41. The Investigating Officer has seized the said articles under mahazar Ex.P.42. Three clothes and one bottle contain blood are marked at M.Os.29 to 32.
During the course of cross examination by the learned counsel for accused, he has denied that the Investigating Officer has not conducted mahazar Ex.P.42. He has further denied that to assist the Investigating Officer, he has deposed false evidence.
32. P.W.26-Sri.Shivaprakashan, Hotel Businessman in Tamil Nadu has deposed that from 20 years, he is running shop by name Shiva Boilers Hotel, the accused were working under him in his hotel. He has stated S.C.No.904/2021 26 that on 13.01.2021, the accused came to his hotel to work, the accused were delivering chicken to the chicken shops. Ten workers are working in his shop. He has stated that on 23.01.2021, the accused went to home town and after 10-15 days, they returned back. On 29.03.2021, Bengaluru police came to his hotel and enquired about the accused. During that time, the accused were went to deliver the chicken to the shops. He came to know that the accused have committed murder in Bengaluru. He does not know the deceased.
He is treated as hostile witness by the prosecution and cross examined. During the cross examination by the prosecution, he has denied that after 23.01.2021, the accused did not come back to work in the hotel. He has denied that he has not informed to the police that the accused went to deliver the chicken to the shops.
During the cross examination by the learned counsel for accused, he has stated that his friend Jadva Bohara does know the accused and hence, he permitted the accused to work in his hotel. He has stated that on the day the police came to his shop, the accused went out of the shop to deliver chicken. He has stated that the police gone to the place of delivery and caught hold the accused and took them in their custody. He has denied that the accused were not working in his shop and the police did not come to his shop. He has further denied that the police did not apprehend the accused S.C.No.904/2021 27 in his town. He has stated that he has not kept records for paying salary to the workers.
33. P.W.27-Sri.Koushik Murugesh, Alternate Nodal Officer, Reliance Jio, Bengaluru has deposed that from five years, he has been working in the said company. In the month of April 2021, Central DCP sought for CDR and customer application forms and SDR of two mobile numbers and two IMEI. The notice issued by the police is marked at Ex.P.43. The covering letter is marked at Ex.P.44. The customer Daben Biswakarma's application form is marked at Ex.P.45. Another customer Suraj's application form is marked at Ex.P.46. Another one Sri.Pahari Datta's application form is marked at Ex.P.47. He has also furnished copies of Aadhar Cards of the customers and caste certificates. He has stated that he has furnished CDRs of Mobile Nos.6362979613, 9345926425 & 9864291472 and IMEI of these mobile numbers for the period from 10.01.2021 to 31.01.2021. The CDR copy is marked at Ex.P.48. The certificate under Section 65(B)(4) of Indian Evidence Act is marked at Ex.P.49.
On 10.01.2021, the first mobile number location was in Andhra Pradesh and on 11.01.2021, its location from 4-30 p.m., to 8-00 p.m., in Majestic Railway Station, Bengaluru.
S.C.No.904/2021 28 On 10.01.2021, the second mobile number location was in Gattahalli, Bengaluru and from 13.01.2021 to 23.01.2021, the location was at Vellapalli in Tamil Nadu and thereafter the location was at Bengaluru.
The last mobile number location was in Rayasandra and Begur in Bengaluru on the same day i.e., on 10.01.2021.
During the course of cross examination by the learned counsel for accused, he has stated that from mobile No.9345296425 till 31.01.2021, the message was communicated to his company. On 23.01.2021, the call made from this mobile, it was made from Tamil Nadu. Till the same day, the message came to the said mobile number. He has denied that he deposed false evidence before the court.
34. P.W.28-Sri.Afzal Hussain, Online Service Provider, Thumukunte Check Post, Hindupur, Andhra Pradesh, has deposed that on 11.01.2021 at about 11-00 a.m., one Pobithra Pegu booked ticket to go to Guwahati in Train No.02249, SBC NTSK Special Station. On 22.01.2021, the police came to his shop and he came to know about the murder of Pobithra Pegu. The copy of Online Ticket is marked at Ex.P.50.
During the course of cross examination by the learned counsel for accused, he has stated that he and S.C.No.904/2021 29 his friend are running the shop, daily hundreds together were come to their shop, they could not able to say the names of all the customers and not able to identify them. He has stated that they used to take mobile number of the passengers, he could not able to say the mobile number of Pobithra Pegu.
35. P.W.29-Sri.M.L.Krishnamurthy was SHO as well as Investigating Officer in this case. He has deposed that on 12.01.2021 at about 6-15 p.m., he was on SHO duty, C.W.1 came to the Police Station and lodged report to the police. The report is marked at Ex.P.1. He has registered the crime and sent FIR-Ex.P.51 to the court. He secured panchas, visited the spot & drew spot mahazar Ex.P.2 and seized M.Os.1 to 6, 9 to 14 and 21 in the place of incident, covered the articles in cloth, put seal affixed and signed the slip thereon. The photos of the dead body are already marked at M.Os.15 to 20. He has stated that no relatives of the dead body was find out, he caused the dead body to keep in cold storage at Bowring & Lady Curzon Hospital, Bengaluru with a request ExP.52 and furnished P.F.-Ex.P.53 to the court. He has deputed his staff to trace the relatives & accused and caused to print & electronic media, hand bill and police notice to find out the relatives. The hand bill is marked at Ex.P.54. The police notice is marked at Ex.P.55. He has recorded the statements of witnesses.
S.C.No.904/2021 30 He sent a requisition to the FSL officials to visit the spot to find out the evidence. The official Sri.Ningegowda visited the spot and collected M.Os.22 to 28 and furnish with report to him. He seized those articles under mahazar Ex.P.14 and submits the same under P.F.- Ex.P.56 to the court. C.W.2-Brother of the deceased came to the Police Station, when shown the photo of dead body to him, he has identified the person as his brother Pobithra Pegu. He has furnished the attested copies of Ration Card, PAN Card & Domicile Card, those are marked at Exs.P.57 to 59. He has collected the mobile number of the deceased and requested the Service Provider to furnish CDR and SDR of the said mobile number. On 20.01.2021 he has issued Form No.144 to the Inquest panchas and did Inquest Panchanama under Ex.P.4. He has recorded the statements of witnesses. He has issued Form No.146 to the Doctor to conduct P.M.Examination, it is marked at Ex.P.60. He has received Form No.145, it is marked at Ex.P.61. He has handed over the dead body to C.W.2 and received the receipt Ex.P.5. On 21.01.2021 he has received Factory Registration Certificate, Labours list and Salary Receipt from C.W.7. On 22.01.2021 he has visited the shop of P.W.28 and collected the copy of booked ticket. On 25.01.2021 he has received the articles collected by the Doctor while conducting P.M.Examination. These articles were seized under S.C.No.904/2021 31 mahazar Ex.P.42. These articles are already marked at M.Os.29 to 32. He has submitted P.F.-Ex.P.62 to the court. The notice to the panchas is marked at Ex.P.63. He has stated that he came to know that on 25.01.2021 Mobile sim No.9345296425 was in deceased mobile. On 26.01.2021 the said mobile sim location was at City Railway Station, Bengaluru. He sent C.Ws.42 to 46 to the Railway Station with notice Ex.P.36. The said staff apprehended the accused Nos.1 & 2 and produced them before him with report Ex.P.35. He has seized two mobile phones marked at M.Os.29(I) and 30(I) from the accused under mahazar Ex.P.23. He has submitted P.F.-Ex.P.64 to the court.
On 27.01.2021 he produced the accused before the court and took police custody. On 28.01.2021 he has recorded the statements of C.Ws.12 and 13. He has sent the articles to F.S.L., for examination with requisition Ex.P.65. He has recorded the voluntary statement of accused No.2 regarding throwing his clothes worn by him at the time of incident. Accordingly he has seized the clothes under mahazar Ex.P.53. On 26.01.2021 the accused No.2 has produced the mobile of the deceased. He has seized the same under mahazar Ex.P.23. On the very day, the accused led them to the place of incident and shown the place, he has conducted mahazar Ex.P.21 at the place of incident. On 29.01.2021 the accused led them S.C.No.904/2021 32 to Bricks and Milestone Construction place situated in Survey No.21 of Chikkanagamangala, where the accused stayed and he has conducted mahazar Ex.P.67. He has issued notice to the panchas as per Ex.P.66. He has recorded the statements of workers. He sent requisition to PWD Engineer to prepare hand sketch. He sent requisition to the Senior Division Engineer, Railways to furnish document pertaining to property where the alleged incident was occurred. The requisition is marked at Ex.P.68. The document furnished by the Railway Department is marked at Ex.P.69. On 8.02.2021 he has received document with hand sketch of place of incident from PWD. These are marked at Exs.P.25 and 26. He has furnished the information of the deceased person to Railway Department as per Ex.P.70 and the document furnished by the Railway Department is marked at Ex.P.71. On 16.03.2021 he has directed C.W.14 to secure Daben Biswakarma in whose name Sim No.6362979613 is standing. C.W.14 has submitted the report that the said person is not available in the given address. The report of C.W.14 is marked at Ex.P.37.
On 29.03.2021 he has instructed C.Ws.43 and 44 to secure Saroj, in whose name Sim No.9345296425 is standing. The requisition is marked at Ex.P.72. On the next day, his staff has submitted the report that the said person is not staying in the given report. The S.C.No.904/2021 33 report is marked at Ex.P.73. He has stated that they have not arrested the accused at vellapalli as stated by P.W.26-Sri.Shivaprakashan. The letter is issued to the Railway Department to furnish information regarding ticket booked by the deceased. The requisition is marked at Ex.P.74. The report filed by the staff is marked at Ex.P.75. The Railway Department has furnished information in xerox. On 1.04.2021 he has received certificate under Section 65(B)(4) of Indian Evidence Act from C.W.36, ho has taken photos of the dead body, it is marked at Ex.P.76. On 15.04.2021 he has received certificate under Section 65(B)(4) of Indian Evidence Act from the Service Provider in respect of CDR furnished connecting to Sim No. 6362979613 standing in the name of Daben Biswakarma, Sim No.9345216425 standing in the name of Suroj and Sim No.9864291472 standing in the name of Pahari Datta, these are marked at Exs.P.44 to 49. He has received FSL Report-Ex.P.39. After completion of investigation, he has submitted the charge sheet.
During the course of cross examination by the learned counsel for accused, he has stated that the report to the police as per Ex.P.1 is against unknown person. He has admitted that on 29.03.2021 he has instructed C.W.43 and another staff to go to Tamil Nadu to record the statement of the owner of the Chicken Centre Hotel. He has denied that there is no S.C.No.904/2021 34 connection between the accused and incident. He has denied that the persons from Tamil Nadu are having connected to the case and as he could not able to secure those persons, he has filed false charge sheet against these accused persons. He has admitted that the seized mobile phones and sims are not standing in the names of deceased and accused. He has admitted that P.W.26 has not stated that the accused were using mobile Nos.29(I) & 30(I). He has denied that the accused have not given voluntary statements before him. He has stated that he has not received records to show that the accused were staying at Bricks and Milestone Company sheds. He has denied that the witnesses are not given statements before him. He has denied that he has created the material objects in the case for the convenient of this case.
36. The learned Public Prosecutor has argued that Pobithra Pegu was working in the factory of C.W.7, he was from State of Assam. On 10.01.2021 he was expressed his wish to C.W.7 to go to his home town and booked train ticket in the shop of C.W.18. The train was scheduled on 12.01.2021 at 3-00 a.m., and starts journey from SBC. On 11.01.2021 he came to SBC, where he met the accused Nos.1 and 2, they all went to the shops of C.Ws.19 and 20 to purchase cigarettes and brandy bottle, they had consumed alcohol and there was petty quarrel starts between them. He has S.C.No.904/2021 35 further argued that the accused with an intention to commit the murder of Pobithra Pegu, assaulted him with stone and committed his murder. There were no eye witnesses to the alleged incident. He has further submitted that after the murder of Pobithra Pegu, the accused No.2 took the mobile of deceased. The mobile and sim are recovered from the possession of accused No.2. On the next day of incident, C.W.1 while passing through railway track, he saw the dead body, he had informed about it to the police and lodged report to the police as per Ex.P.1. The materials placed before the court on behalf of the prosecution proved that the accused are culprits, have committed the murder of Pobithra Pegu. Prays to convict the accused.
37. The learned counsel for accused Nos.1 and 2have vehemently argued that the prosecution case is based on last seen theory and circumstantial evidence. They have brought to the notice of the court that to prove the last seen theory, the prosecution has examined two witnesses i.e., P.Ws.9 and 11, who are Tea Stall Owner and Cashier of Wine Store, they are turned hostile to the prosecution case. They have denied the fact that they have seen the accused with the company of Pobithra Pegu while they alleged said to have come to their respective shops. Therefore, the learned counsel for accused have submitted that the S.C.No.904/2021 36 prosecution has failed to prove the last scene theory to hold the accused guilty for the alleged offence.
38. They have further argued that to prove the theory of circumstantial evidence, the prosecution has to prove its case without breaking the links of chain. It should connect one end of the link of chain to the another end without break. If the links of chain broken, then the case based on circumstantial evidence would not be believed which creates suspicious about the prosecution case. They have submitted that to prove the circumstantial materials against the accused, the prosecution has examined P.W.19-Sri.Prakash Naik, Head Constable. At the beginning of his evidence P.W.19 has stated that they have found the deceased mobile in the possession of accused No.1, which is against the case of prosecution. The prosecution case is that the deceased mobile was in the possession of accused No.2, who has produced the deceased mobile before Investigating Officer. This witness later has stated that it is not the accused No.1, but the accused No.2 was in possession of deceased mobile. Therefore, there is contradiction in his evidence about the possession of mobile of the deceased.
39. The learned counsel for accused have submitted that another witness P.W.22-Sri.Keshava Murthy, Police S.C.No.904/2021 37 Constable, though he has stated that they found the accused No.2 in possession of deceased mobile, it is denied by the accused side. P.W.16-Sri.Pradeep Shetty, Seizure Mahazar witness in the beginning of his evidence has stated that the accused No.1 has produced his and deceased mobile, later he has stated that the accused No.2 was produced the mobile of the deceased. Further, his evidence does make confuse saying that the accused No.2 told that the mobiles are belong to him and accused No.1. So, all these three material witnesses regarding seizure of alleged deceased mobile in the possession of accused No.2 as per the case of prosecution wobbling, contradicts each other and creates doubt regarding possession of deceased mobile with the accused No.2. They have submitted that the creation of doubt regarding seizure of deceased mobile from the possession of accused No.2 break the links of chain. Therefore, the prosecution utterly fails to prove the seizure of the deceased mobile from the possession of accused No.2. They have submitted that except the official witnesses, all the independent witnesses do not come to support the case of prosecution that the accused are culprits, have committed the murder of deceased. The materials placed on record are not suffice to say that the offence is committed by the accused. So, pray to acquit the accused.
S.C.No.904/2021 38
40. I have carefully gone through the materials placed on record. It is mentioned here that the first informant P.W.1 has seen the dead body and informed to the police. He has stated that the police took his signature on the report. He has not lodged report to the police in respect of the alleged incident. Though he is treated as hostile witness by the prosecution, he has denied that he has lodged report as per Ex.P.1. He has denied that he has informed to the police that somebody with an intention to kill someone smashed a person with stones and murdered. He has stated that there were injuries over the body of the dead person. The police have seized articles M.Os.1 to 14. However, the evidence of this witness does not connect the accused with the case.
41. The evidence of P.W.2-Inquest Mahazar witness is formal in nature regarding drawing Inquest panchanama over the dead body.
42. P.W.3-Factory owner, under whom the deceased alleged said to have working has stated that the deceased was working in his factory and in order to go to his native place, the deceased has booked his train ticket and later he came to know that the deceased was murdered by someone. The documents produced S.C.No.904/2021 39 and marked at Exs.P.6 to 8 are Registration Certificate of his Factory, Labour Registration Certificate and Salary statements of the workers. Those documents disclose that the deceased was working under him. However, his evidence also does not helpful to the prosecution to connect the accused to the case.
43. P.Ws.4, 5 and 8 are workers and Site Supervisor in Bricks and Milestone Company situated at Chikka Nagamangala. They have stated that on 11.01.2021 the accused came to their site to sleep. Later, they came to know from the police that the accused near railway station, have committed the murder of Pobithra Pegu and snatched his mobile and cash. By these witnesses, it could not be said that the prosecution has made connection to the accused with the alleged incident.
The evidence of these witnesses goes against the evidence of P.Ws.6 and 7, who are Civil Supervisor and Painter in the same company. They have stated that they do not know the fact that on the alleged date, the accused came to the company shed to sleep. They have denied that in this regard, they have given statements as per Exs.P.9 and 10 to the police.
44. It is the case of prosecution that Tea Stall Owner S.C.No.904/2021 40 and Cashier of Wine Store, situated nearby railway station were last seen persons the accused with the company of deceased. To prove the said fact, the prosecution has examined these witnesses as P.Ws.9 and 11. It is mentioned here that both these witnesses have stated that the accused have not come to their Tea Stall or Wine Store with the company of deceased to purchase cigarettes and brandy. They have stated that they have not given statements to the police in this regard.
Even in their cross examination by the prosecution after treating them as hostile witnesses, they have denied that on 11.01.2021 both the accused come to the Tea Stall and wine store to purchase cigarettes and brandy bottle. They have stated that they have earlier never seen the accused. They have denied that they have given statements as per Exs.P.11 and 13.
Looking to the evidence of these two material witnesses, the prosecution miserably fails to prove the last seen theory connecting involvement of the accused in the alleged crime. Therefore, there is force in the argument urged by the learned counsel for accused on this point.
46. Coming to the evidence of other witnesses, P.Ws.10 and 15 are spot mahazar witnesses, their S.C.No.904/2021 41 evidence is formal in nature regarding conducting spot mahazar and seizure of articles M.Os.1 to 14 & 21.
47. P.W.12 is seizure mahazar witness, he turns hostile to the prosecution. He has denied that on 19.01.2021 in his presence, in the Police Station the police have seized sample soil, blood stained soil, hair, blood stained hair and blood collected in the bottle by the FSL officials. Therefore, his evidence does not helpful to the prosecution to prove the fact that under Ex.P.14 the police have seized the above said articles.
48. P.W.13-Brother of the deceased. He is an hearsay witness. He has stated that his brother had informed that he is coming to the native place, but did not come, later he came to know that his brother was murdered by someone. The police have shown the photo of the dead body to him and he has identified the photo. He received the dead body. He has nothing stated that who has committed the murder of his brother and what is the reason of his murder. He has stated that he came to know that by smashing with stones, his brother was murdered. The evidence of this witness is not helpful to the prosecution case to prove the fact that the accused are the culprits, have smashed with stones to the deceased and committed his murder.
49. The evidence of FSL Officials P.Ws.14, 18 and 23 S.C.No.904/2021 42 are formal in nature regarding examination of the articles. Without cogent evidence to support their evidence, it could not be helpful to prove the case against the accused.
50. To prove the circumstantial theory, the prosecution has relied on the evidence of P.Ws.16, 19, 22 and 27. The prosecution has alleged that after commission of offence, the accused have grabbed the mobile & cash of the deceased and the police have seized the mobile of the deceased from the possession of accused No.2. In order to prove this fact, P.W.16- Sri.Pradeep Shetty, Seizure mahazar witness has stated that on 26.01.2021 the accused No.1 has produced his and deceased mobile phone. These are marked at Exs.P.29(I) and 30(I)-Redmi and Samsung Mobiles.
This evidence is contrary to the prosecution case.
51. Later, he has improved his version saying that the accused No.1 is not the person produced the mobiles, it is accused No.2. Further, he has stated that he told by accused No.2 that the phones are belong to him and accused No.1. Looking to the wobbling version of this seizure mahazar witness, it can be said that there is no concrete evidence to say that the accused No.2 is the person, who was in possession of deceased S.C.No.904/2021 43 mobile, has produced the same before the police under Ex.P.23.
52. P.W.19-Sri.Prakash Naik, Head Constable has also at the beginning of his evidence stated that while they have apprehended the accused Nos.1 and 2, the accused No.1 was in possession of deceased mobile and produced the same before the Investigating Officer. As it is contrary to the prosecution case that the accused No.2 was in possession of deceased mobile has produced the same before the Investigating Officer, this witness has been re-examined by the prosecution. In his re-examination, he has stated that he was in confuse, so he was earlier stated that the accused No.1 has produced the mobile of deceased. To do correct the same he has stated that the accused No.2 has produced the mobile, it is denied by the prosecution side.
53. Another witness P.W.22-Police Constable has stated that while they have apprehended the accused No.2, he was in possession of deceased mobile bearing No.6362297613, it was in contact with the mobile of the accused bearing No.9345296425. The said facts denied by the accused side. Therefore, to prove the fact that mobile No.6362297613 belongs to the S.C.No.904/2021 44 deceased person and it was in contact with the mobile of accused number 9345296425 and 9864291472. The prosecution has examined the Nodal Officer of Jio Company as P.W.27. He has given evidence before the court and produced the documents pertaining to these three mobiles. The copies of application form to issue sim of those mobiles are marked at Exs.P.45 to 47. On perusal of these documentary evidence, these are disclose that none of the mobile sims stated by P.W.19 or P.W.22 are standing in the name of deceased or accused.
54. Ex.P.45-Application Form for issuance of sim No.6362297613 is standing in the name of one Daben Biswakarma. The prosecution put forth its case that the said mobile sim belongs to the deceased. When it is purchased and standing in the name of Daben Biswakarma then how it came in possession of the deceased is not proved.
55. P.W.21-Sri.Subramanya, Head Constable has stated that the Investigating Officer has deputed him to trace the said applicant Sri.Daben Biswakarma, he tried to secure the said person, but could not be secured. It is the duty of the prosecution to prove the fact that how mobile sim No.6362297613 came in possession of the deceased person, but fails to do so. Further, it is S.C.No.904/2021 45 alleged that other two mobile sim Nos.9345296425 and 9864291472 belong to the accused Nos.1 and 2, which were in contact with the accused mobile.
56. Exs.P.46 and 47 furnished by P.W.27 disclose that these mobile sims are standing in the names of Suraj and Pahari Datta. So, these mobile sims are not belong to the accused Nos.1 and 2. When these mobile sims are not standing in the name of accused, then how they were came in possession of the accused is not explained.
57. P.W.29-Investigating Officer has stated that first mobile sim 6362297613 belongs to the deceased and it was in contact with the mobile of the accused bearing Nos.9345296425 and 9864291472. Exs.P.45 to 47 falsify the version of Investigating Officer in this regard. The Investigating Officer has stated that he tried to secure Daben Biswakarma, but could not secure him. It is the omission committed by the Investigating Officer. To prove the fact that how the deceased or accused came in possession of the above said mobiles, the statements of its holder by name Daben Biswakarma, Suraj and Pahari Datta are necessary and important in the case on hand. By not securing them, the Investigating Officer has committed omission which become fatal to the prosecution case.
S.C.No.904/2021 46
58. The evidence led by the prosecution in respect of mobile sims with allegation that the accused after commission of offence took away the mobile of the deceased and have used the same and seized from the possession of accused creates doubt or suspicion in the mind of the court. The prosecution does not able to remove the clouds of suspicion or doubt. Under the circumstances, I would like to rely upon the decision reported in 2021(1) Karnataka Law Report 183 (SC) (The State of Odisha .Vs. Banabihari Mohapatra and another), wherein the Hon'ble Supreme Court has opined as under :
"The suspicion, however strong, cannot take place of proof. The accused is presumed to be innocent, unless proved guilt beyond reasonable doubt".
Further, the Hon'ble Supreme Court has held as under :
"Circumstantial evidence - Before a case against an accused can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of guilt of the accused - There has to be a chain of evidence so complete, as not to leave any reasonable doubt for any conclusion consistent with the S.C.No.904/2021 47 innocence of the accused and must show that in all human probability, the act must have been done by the accused".
59. In 2021(2) Karnataka Law Report 293 (DB) (Pandu, S/o.Mallappa Kokatnur .Vs. State of Karnataka), the Division Bench of the Hon'ble High Court of Karnataka at Kalaburagi Bench has held as under :
"When the case is based on circumstantial evidence, each circumstance forming chain of circumstances must be conclusively proved by the prosecution".
In the case on hand, though the prosecution case purely based on circumstantial evidence, it fails to connect each circumstance without break of links of chain. The material and important evidence regarding circumstantial evidence by P.Ws.16, 19 and 22 does not support each other and goes contrary each other. It is not supported by the evidence of P.W.27-Nodal Officer. Therefore, the prosecution fails to prove the whole chain of circumstances to prove the guilt of the accused beyond all reasonable doubt.
60. In 2021(2) Karnataka Law Report 184 (SC) (Parubai .Vs. State of Maharashtra), the Hon'ble Supreme Court has opined as under :
S.C.No.904/2021 48 "Mere suspicion would not be sufficient, unless the circumstantial evidence tendered by the prosecution leads to the conclusion that it must be true and not may be true.
The position of law is well settled that the links in the chain of circumstances is necessary to be established for conviction on the basis of circumstantial evidence.
The suspicion, however strong, cannot take place of proof".
The above said decision is squarely applicable to the case on hand. On the suspicion of circumstance, the prosecution has alleged that the accused have murdered the deceased, but fails to establish the links in the chain of circumstances to punish the accused for the alleged offence.
61. The evidence of P.W.26-Shivaprakashan, owner of Chicken Hotel at Vellampalli in Tamil Nadu does also create doubt regarding arrest of the accused on 26.01.2021 at Bengaluru Railway Station as stated by P.Ws.19, 22 and 29-Police Officials. This witness has stated that the accused were working in his shop till 29.01.2021. If his version is believed, then how it is possible to arrest the accused on 26.01.2021 in Railway Station, Bengaluru. The learned Public Prosecutor has submitted that the evidence of P.W.26 is not true, he S.C.No.904/2021 49 lies before the court. However, the materials placed on record by the prosecution are not sufficient to hold the accused guilt beyond all reasonable doubt. The benefit of doubt always goes in favour of the accused. As the prosecution fails to establish the links in the chain of circumstances to punish the accused for the alleged offence, the accused are entitled for acquittal. Hence, I answer the Point No.1 in the Negative.
62. POINT No.2 : In view of my findings on Point Nos.1 as above, I proceed to pass the following :
ORDER Acting under Section 235(1) of Cr.P.C., accused Nos.1 and 2 are acquitted for the offence punishable under Section 302 r/w. Section 34 of IPC.
The accused Nos.1 and 2 are set at liberty forthwith, if they are not required in any other case.
M.Os.1 to 32 being worthless, are ordered to be destroyed, after the appeal period is over. (Dictated to the Judgment-writer, transcript thereof is corrected, signed and then pronounced by me in the open court on this the 19th day of April 2023) (KASHIM CHURIKHAN) LXVII Addl.City Civil & Sessions Judge, BENGALURU.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION :
P.W.1 Mohan
S.C.No.904/2021
50
P.W.2 Sudhams Mithra
P.W.3 Dinesh Kumar
P.W.4 Santhosh
P.W.5 Manohar
P.W.6 Mukesh
P.W.7 Srinivas
P.W.8 Abdul Khaleel
P.W.9 Sunil
P.W.10 Thigambara
P.W.11 Yogesh
P.W.12 Nagaraju
P.W.13 Madhu Jiya Pegu
P.W.14 Dr.Shruthi.M.K.
P.W.15 Santhosh
P.W.16 Pradeep Shetty
P.W.17 Dinesh
P.W.18 Dr.Lingegowda
P.W.19 Prakash Naik
P.W.20 Basavaraju.V.
P.W.21 Subramanya
P.W.22 Keshavamurthy
P.W.23 Srividhya
P.W.24 G.K.Krishnappa
P.W.25 Rajashekar.K.P.
P.W.26 Shivaprakashan
P.W.27 Koushik Murugesh
P.W.28 Afzal Hussain
P.W.29 Krishnamurthy.M.L.
2. LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 Report/Complaint
Ex.P.1(a) Signature of P.W.1
Ex.P.1(b) Signature of P.W.29
Ex.P.2 Spot Mahazar
Ex.P.2(a) Signature of P.W.1
Ex.P.2(b) Signature of P.W.10
Ex.P.2(c) Signature of P.W.29
Ex.P.3 Police Notice
Ex.P.3(a) Signature of P.W.2
Ex.P.3(b) Signature of P.W.29
S.C.No.904/2021
51
Ex.P.4 Inquest Mahazar Report
Ex.P.4(a) Signature of P.W.2
Ex.P.4(b) Signature of P.W.29
Ex.P.5 Acknowledgement for having received
the dead body
Ex.P.5(a) Signature of P.W.2
Ex.P.5(b) Signature of P.W.13
Ex.P.5(c) Signature of P.W.29
Ex.P.6 Copy of G.S.T.Registration Certificate
Ex.P.6(a) Signature of P.W.29
Ex.P.7 Copy of Labour Registration Certificate
Ex.P.7(a) Signature of P.W.29
Ex.P.8 Copy of salary statement of labours.
Ex.P.8(a) Signature of P.W.29
Ex.P.9 Statement of P.W.6
Ex.P.10 Statement of P.W.7
Ex.P.11 Statement of P.W.9
Ex.P.12 Police Notice
Ex.P.12(a) Signature of P.W.10
Ex.P.12(b) Signature of P.W.29
Ex.P.13 Statement of P.W.11
Ex.P.14 Seizure Mahazar
Ex.P.14(a) Signature of P.W.12
Ex.P.14(b) Signature of P.W.10
Ex.P.14(c) Signature of P.W.18
Ex.P.14(d) Signature of P.W.29
Ex.P.15 Police Notice
Ex.P.15(a) Signature of P.W.12
Ex.P.15(b) Signature of P.W.10
Ex.P.15(c) Signature of P.W.29
Ex.P.16 P.M.Report
Ex.P.16(a) Signature of P.W.14
Ex.P.17 Requisition
Ex.P.17(a) Signature of P.W.14
Ex.P.18 Opinion of P.W.14
Ex.P.18(a) Signature of P.W.14
Ex.P.19 Sample Seal
Ex.P.19(a) Signature of P.W.14
Ex.P.20 Police Notice
Ex.P.20(a) Signature of P.W.15
Ex.P.21 Mahazar
S.C.No.904/2021
52
Ex.P.21(a) Signature of P.W.15
Ex.P.21(b) Signature of P.W.29
Ex.P.21(c) Signature of accused No.1 Ex.P.21(d) Signature of accused No.2 Ex.P.21(e) Signature of Staff Ex.P.22 Police Notice Ex.P.22(a) Signature of P.W.16 Ex.P.22(b) Signature of P.W.29 Ex.P.23 Mahazar Ex.P.23(a) Signature of P.W.16 Ex.P.23(b) Signature of accused No.2 Ex.P.23(c) Signature of P.W.29 Ex.P.23(d) Signature of staff Ex.P.24 Requisition to PWD to prepare sketch Ex.P.24(a) Signature of P.W.29 Ex.P.25 P.W.D.Letter Ex.P.25(a) Signature of P.W.29 Ex.P.26 Hand Sketch Ex.P.26(a) Signature of P.W.29 Ex.P.27 Letter of Investigating Officer Ex.P.27(a) Signature of P.W.18 Ex.P.27(b) Signature of P.W.29 Ex.P.28 Endorsement Ex.P.28(a) Signature of P.W.18 Ex.P.28(b) Signature of P.W.29 Ex.P.29 F.S.L.Report Ex.P.29(a) Signature of P.W.18 Ex.P.29(b) Signature of P.W.29 Ex.P.30 Sample Seal Ex.P.30(a) Signature of P.W.18 Ex.P.30(b) Signature of P.W.9 Ex.P.31 Endorsement Ex.P.31(a) Signature of P.W.29 Ex.P.32 Letter of Investigating Officer Ex.P.33 Memorandum Ex.P.34 Schedule of Articles Ex.P.34(a) Signature of P.W.29 Ex.P.35 Report of P.W.19 Ex.P.35(a) Signature of P.W.19 Ex.P.35(b) Signature of P.W.29 Ex.P.36 Memorandum S.C.No.904/2021 53 Ex.P.36(a) Signature of P.W.19 Ex.P.36(b) Signature of P.W.29 Ex.P.37 Report of P.W.21 Ex.P.37(a) Signature of P.W.21 Ex.P.38 Memorandum Ex.P.38(a) Signature of P.W.21 Ex.P.38(b) Signature of P.W.29 Ex.P.39 F.S.L.Report Ex.P.39(a) Signature of P.W.23 Ex.P.39(b) Signature of P.W.29 Ex.P.40 Seal of the laboratory Ex.P.40(a) Signature of P.W.23 Ex.P.41 Report of P.W.25 Ex.P.41(a) Signature of P.W.25 Ex.P.41(b) Signature of P.W.29 Ex.P.42 Mahazar Ex.P.42(a) Signature of P.W.25 Ex.P.42(b) Signature of P.W.29 Ex.P.43 Copy of Notice Ex.P.44 Covering Letter Ex.P.44(a) Signature of P.W.27 Ex.P.44(b) Signature of P.W.29 Ex.P.45 Copy of application form of Daben Biswakarma Ex.P.45(a) Signature of P.W.29 Ex.P.46 Copy of application form of Suraj Ex.P.46(a) Signature of P.W.29 Ex.P.47 Copy of application form of Pahari Datta Ex.P.47(a) Signature of P.W.29 Ex.P.48 Copy of CDR Ex.P.48(a) Signature of P.W.29 Ex.P.49 Certificate Ex.P.49(a) Signature of P.W.29 Ex.P.50 Online Ticket of deceased Pobithra Pegu Ex.P.50(a) Signature of P.W.29 Ex.P.51 F.I.R.
Ex.P.52 Requisition
Ex.P.52(a) Signature of P.W.29
Ex.P.53 Property Form
S.C.No.904/2021
54
Ex.P.53(a) Signature of P.W.29
Ex.P.54 Hand Bill
Ex.P.55 Police Publication
Ex.P.56 Property Form
Ex.P.56(a) Signature of P.W.29
Ex.P.57 Copy of Ration Card of the deceased
family
Ex.P.57(a) Signature of P.W.29
Ex.P.58 Copy of PAN Card of deceased
Ex.P.58(a) Signature of P.W.29
Ex.P.59 Domicile Certificate
Ex.P.59(a) Signature of P.W.29
Ex.P.60 Form No.146
Ex.P.60(a)
Exs.P.60(b) & Signatures of P.W.29
(c)
Ex.P.61 Form No.145
Ex.P.61(a) Signature of P.W.29
Ex.P.62 Property Form
Ex.P.62(a) Signature of P.W.29
Ex.P.63 Notice to panchas
Ex.P.63(a) Signature of P.W.29
Ex.P.64 Property Form
Ex.P.64(a) Signature of P.W.29
Ex.P.65 Requisition
Ex.P.65(a) Signature of P.W.29
Ex.P.66 Notice of panchas
Ex.P.66(a) Signature of P.W.29
Exs.P.66(b) & Signatures of panch witnesses
(c).
Ex.P.67 Spot Mahazar
Ex.P.67(a) Signature of P.W.29
Exs.P.67(b) to Signatures of panch witnesses
(e) Ex.P.67(f) Signature of Staff Ex.P.68 Requisition Ex.P.68(a) Signature of P.W.29 Ex.P.69 Requisition Ex.P.69(a) Signature of P.W.29 Ex.P.70 Letter issued by Railway Department regarding deceased S.C.No.904/2021 55 Ex.P.70(a) Signature of P.W.29 Ex.P.71 Copy of sketch of place of incident Ex.P.71(a) Signature of P.W.29 Ex.P.72 Memorandum Ex.P.72(a) Signature of P.W.29 Ex.P.72(b) Signature of Staff Ex.P.73 Report Ex.P.73(a) Signature of P.W.29 Ex.P.73(b) Signature of Staff Ex.P.74 Letter Ex.P.74(a) Signature of P.W.29 Ex.P.75 Report of Staff Ex.P.75(a) Signature of P.W.29 Ex.P.75(b) Signature of Staff Ex.P.76 Certificate Ex.P.76(a) Signature of P.W.29 Ex.P.76(b) Signature of C.W.37
3. LIST OF MATERIAL OBJECTS PRODUCED AND GOT MARKED FOR PROSECUTION :
M.O.1 Blood stained stone
M.O.2 Blood stained mask
M.O.3 Blood stained stone
M.O.4 Mask
M.O.5 Jeans Pant
M.O.6 Open Water Bottle
M.O.7 Cap/Hat
M.O.8 Water bottle cap
M.O.9 Chain with pendent
M.O.10 Banian
M.O.11 Wrist Threat
M.O.12 Purse
M.O.13 Blood stains
M.O.14 Sample mud
M.Os.1(a) to Signatures of P.W.10 14(a) M.Os.1(b) to Signature of P.W.29 6(b) M.Os.9(b) to Signature of P.W.29 S.C.No.904/2021 56 14(b) M.Os.15 to 20 Photographs of the deceased M.O.21 Ring M.O.21(a) Signature of P.W.10 Ex.P.21(b) Signature of P.W.29 M.O.22 Mud M.O.23 Blood stained mud M.O.24 Blood stained small stones M.O.25 Blood stained hairs M.O.26 Sample Hairs M.O.27 Blood stained club M.O.28 Blood stained mask M.Os.22(a) to Signatures of P.W.12 28(a) M.Os.22(b) to Signatures of P.W.10 28(b) M.Os.22(c) to Signature of P.W.29 28(c) M.O.29 Shirt M.O.29(I) Redmi Mobile M.O.30 Black shirt with waist threat M.O.30(I) Samsung Mobile M.Os.29(a) to Signature of P.W.29 32(a) M.O.31 Underwear M.O.32 Bottle contained blood
4. LIST OF WITNESSES EXAMINED & DOCUMENTS EXHIBITED FOR ACCUSED :
- NIL -
(KASHIM CHURIKHAN) LXVII Addl.City Civil & Sessions Judge, BENGALURU.