Bangalore District Court
The State Of Karnataka By vs Syed Nadeem @ Chuvi on 5 May, 2021
IN THE COURT OF THE LVIII ADDL.CITY CIVIL AND
SESSIONS JUDGE (CCH-59), BENGALURU CITY.
Dated this the 5th day of May, 2021
PRESENT:
Sri.G.L.Lakshminarayana, B.Com. LL.B,
LVIII Addl. City Civil & Sessions Judge (CCH-59),
Bengaluru City.
SESSIONS CASE NO.1402/2017
COMPLAINANT: The State of Karnataka by:
Adugodi Police Station,
Bangalore.
(By learned Public Prosecutor)-
-V/S-
ACCUSED : Syed Nadeem @ Chuvi,
S/o Syed Ameer,
Aged about 25 years,
Residing at No.10,
2nd Cross,
Umar Faroq Masjid Lane,
Munigowda Garden,
Neelasandra,
Bengaluru - 560 047.
(By Sri.R.R.K., Advocate)
2 S.C.No.1402/2017
1. Date of commission of offence 16.06.2017
2. Date of report of occurrence 16.06.2017
3. Date of commencement of 20.11.2020
Evidence
4. Date of closing of evidence 02.03.2021
5. Name of the Complainant Smt.Kala
6. Offences complained of U/Sec.396, 302 IPC
7. Opinion of the Judge Offences not proved
8. Order of sentence As per final order
JUDGMENT
The Police Inspector of Adugodi police station has filed the charge sheet against the accused for the offences punishable under sections 396 and 302 of IPC.
2. The case of prosecution is as follows:
The deceased Gajalakshmi, aged about 65 years was running a scrap shop at Samathanagar, Marenahalli, 4th Cross, in front of Sunrise School at Bangalore. The complainant being the daughter-in-law 3 S.C.No.1402/2017 also working along with the deceased. On 15.06.2017 at about 8-00 p.m., the deceased Gajalakshmi left her house and came to the scrap shop and slept there in the shop. On 16.06.2017 at about 3-30 p.m., with an intention to grab the money from the deceased, the accused came in the shed and assaulted the deceased with two wheeler iron bore and put the cement stone on her head and committed murder of the deceased and took the money. After completion of the investigation, the Investigating officer has filed the charge sheet against the accused for the offences punishable under sections 396 and 302 of IPC before the VI Additional Chief Metropolitan Magistrate, Bengaluru.
3 The learned VI Additional Chief Metropolitan Magistrate, Bangalore City, on receipt of the final report from the police, took cognizance of the aforesaid offences against the accused and registered a case in C.C.No.22965/2017, complied with the requirements 4 S.C.No.1402/2017 under section 207 of Cr.P.C. and thereafter by an order dated 13.11.2017, committed the case to the Principal City Civil and Sessions Judge Court, Bangalore, under section 209 of Cr.P.C.
4. The Principal City Civil and Sessions Judge, Bangalore, on receipt of the records from the learned VI Additional Chief Metropolitan Magistrate, Bangalore City, registered the case in S.C.No.1402/2017, made over the same to this Court for disposal as per law.
5. After committal of the case to this court, in response to court summons accused appeared before the court through his counsel and he was in judicial custody.
6. After hearing both the side, my learned predecessor in office has framed the charge against the accused for the offences punishable under section 396 and 302 of IPC, read over and explained the accused in 5 S.C.No.1402/2017 the language known to him and he pleaded not guilty and claims to be tried.
7. In order to prove the case, the prosecution has got examined twenty-four witnesses as PW-1 to P.W.24 and got marked Ex.P.1 to Ex.P.27 documents and also got marked M.O.1 toM.O.16.
8. After closure of the prosecution evidence, the statement of the accused has been recorded under section 313 of Cr.P.C. The accused has taken a plea of total denial and has not led any defence evidence.
9. Heard the arguments from the learned Public Prosecutor and learned counsel appearing for the accused. Perused the materials placed on record.
10. The following points that arise for my consideration:-
1. Whether the prosecution proves that the death of the deceased Gajalakshmi is homicidal? 6 S.C.No.1402/2017
2. Whether the prosecution proves beyond all reasonable doubt that on 16.06.2017 at 3am Marenahalli of Samathanagar, 4th cross Sun Shine Primary school the accused in order to commit dacoity came in the shed of deceased Gajalakshmi and after committing the murder of the deceased Gajalakshmi, took the money from the accused and thereby the accused has committed an offence punishable under section 396 of I.P.C. ?
3. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place the accused in order grab the money from deceased Gajalakshmi,the accused came in the shed and assaulted the deceased with two wheeler iron bore and put the Haloblock brick on her head and committed murder of the deceased and caused her death and thereby the accused has committed an offence punishable under section 302 of I.P.C.?
4. What order?
11. My findings on the above points are:-
POINT NO.1 - In the Affirmative.
POINT NO.2 - In the Negative.
POINT NO.3 - In the Negative POINT NO.4 - As per final order, for the following:-7 S.C.No.1402/2017
: REASONS :
12. POINT NO.1: The prosecution in order to constitute the offence punishable under section 302 of IPC against the accused must establish that :-
(i) The death of human being has
actually taken place.
(ii) Such death has been caused by or in
consequence of the act of the
deceased.
(iii) Such act was done with the intention
of causing death, or it was done with
the intention of causing such bodily
injury as:
(a) The accused knew to be
likely to cause death or
(b) Was sufficient in the
ordinary course of nature to
cause death,
(c) Accused caused death by
doing an act knowing to
them to be so eminently
dangerous that it must in all
probability cause death or
such bodily injury as is
likely to cause death, the
accused having no excuse
for incurring the risk of
causing such death or injury.
8 S.C.No.1402/2017
As the case involves the offence punishable under section 302 of IPC regarding the death of deceased Gajalakshmi, it is incumbent upon the prosecution to prove that, the death of deceased was a homicidal and not a natural one.
13. The prosecution in order to prove that the death was a homicidal and not natural one, examined the doctor as PW-22. The Doctor who conducted post mortem on the dead body of the deceased Gajalakshmi has spoken to the contents of Ex.P.23 i.e.post mortem report. Further the doctor has opined that death was due to shock and hemorrhage as a result of head injury sustained of the deceased. Though the doctor was cross examined by the defence counsel, the evidence of the doctor with regard to death of deceased was due to the injuries sustained on her not been shaken. Thereby it discloses that the death of the deceased was not a natural death and it was a homicidal death. This fact was 9 S.C.No.1402/2017 disputed by the counsel for defence. PW1 being the daughter in law of deceased Gajalakshmi has lodged the complaint that some unknown persons have committed the murder of her mother in law by putting up halo block brick on her head. Ex.P1 complaint, Ex.P.2 Mahazar, Ex.P.5 inquest Mahazar, Ex.P.23 PM Report, Ex.P.17 FIR and Ex.P.14 to 16 Photos it shows that deceased was died due to injuries caused by putting up halo block brick. Thereby the prosecution has proved the death of deceased Gajalakshmi is not a natural death and it was homicidal death. Hence, I answer point No.1 in the "Affirmative".
14. POINT NOS. 2 & 3: Since these points are inter connected to each other hence to avoid repetition of facts and evidence, these points are taken up together for common discussion.
15. As the prosecution has proved that the death was homicidal one and not natural one, now it has to be 10 S.C.No.1402/2017 seen whether the accused has caused the death of deceased and whether he has an intention to kill the deceased and motive to kill the deceased, whether the accused has made any preparation to commit murder of the deceased.
16. To prove the aforesaid case, the prosecution though has cited 38 witnesses in the charge sheet as C.W.1 to C.W.38, however, during the trial, it could examine 24 witnesses as P.W.1 to P.W.24 and got marked Ex.P.1 to 27 and also got marked MO.1 to 16.
17. P.W.1-Kala has deposed in her evidence that deceased Gajalakshmi is her mother-in-law. Her husband is the only son of deceased Gajalakshmi. Deceased Gajalakshmi was running scrap shop in Samatha Nagar. In between 7-00 and 7.30 am Madhu called up her and informed that somebody has beaten her mother-in-law and it caused bleeding and asked her to come. She went 11 S.C.No.1402/2017 her family members to the shop. Vijay and Vinay informed her that Gajalakshmi is dead. when she went and saw her mother in law, found that a stone was on her mother-in-law face and was killed by assaulting with the stone. Later she went to Police Station and lodged the complaint as per Ex.P.1 and her signature is marked at Ex.P.1(a).
18. P.W.1 further deposed that on the same day the police have visited the spot and drawn mahazar as per Ex.P.2 and her signature is marked at Ex.P.2(a), seized hallow block brick, slipper and blood stained clothes. She identified the seized articles. Hallow block brick is marked at M.O.1, slipper is marked at M.O.2 and blood stained clothes is marked at M.O.3. On 15.06.2017 at night her mother-in-law came to shop from home and her mother-in-law had dinner and slept in the shop. Later she went to the home. At morning at about 7.30 a.m herself and her relatives went to the shop and 12 S.C.No.1402/2017 found that some criminals have murdered her mother-in- law by putting stone on her head.
19. P.W.1 further deposed that police have visited the spot and drawn mahazar from 8.15 to 9.45 a.m. and collected the sample blood. Blood sample cotton is marked at M.O.4. Palaniswamy and Jameer have signed the mahazar. After drawing the mahazar dead body was sent to hospital. In her cross-examination deposed that at the time of death her mother-in-law was aged about 60 years and she was taking BP and Sugar tablets and residing in the same house. She has received the information with regard to death of her mother-in-law at about 7-30 am. But police have not taken her mobile. She cannot read and write Kannada language. She did not know what contents are written in Ex.P.1 and Ex.P.2. She put the signature on Ex.P.1 and Ex.P.2 in the police station. She did not know who committed murder of her mother-in-law. Further she did not know the name of 13 S.C.No.1402/2017 accused person. Police have not taken the signature on M.o.1. She did not know who are signed Ex.P.2 along with her. PW1 is not a eye witness, she has received the information of murder of her mother in law through phone by PW7.
20. P.W.2-Munna deposed in his evidence that he know deceased and accused. Accused is his friend. About 2 years back accused has called him to assault the deceased. Accused had borrowed Rs.20/- from him. At about 6.00 am, accused and himself had gone to Market, after drunk they came back. He has given statement before Magistrate stating that accused had killed deceased by assaulting with hallow block brick. He identified the hallow block brick.
21. P.W.2 further deposed that accused who killed deceased is now in Judicial custody. Deceased was running scrap shop in Samathanagar. Deceased was 14 S.C.No.1402/2017 giving Rs.2/- or Rs.3/- to them while going to school. He has given statement before the Magistrate and it is marked as Ex.P.3. In his cross-examination deposed that Santhosh informed to him that the accused has committed the murder. On the day of incident, the police have visited to the spot. After 2-3 months of this incident he has given 164 Cr.P.C statement before the Magistrate and there are two cases are pending against him before CMM Court. The learned counsel for the accused confronted the statement recorded U/Section.164 Cr.PC and portion of 164 statement is marked as Ex.D.1. There was two kms distance from his house to the house of the accused. He does not know the family members of grand mother ie. Gajalakshmi. He cannot remember that on what date the accused told to him that there was money in the custody of grand mother ie. Gajalakshmi. Further he cannot say that on what date the accused was taken Rs.20/- from him. Police 15 S.C.No.1402/2017 have not recorded his statement. He knows the murder of Gajalakshmi committed by the accused after told by him. He has not seen the murder.
22. P.W.3-Amjad Khan deposed in his evidence that he has seen deceased Gajalakshmi. He knows accused before he was staying in LR Nagar. Accused was working with him as welder. He was paying daily wage to accused. During Ramzon period the accused asked him for advance amount, but he did not give, so the accused left the job. Accused was wearing black color slipper while he was coming to job. Generally while doing welding work holes were there on the slippers. On 20.06.2017 Adugodi Police called him to the Police Station. He informed police that accused was working with him. On that day accused was in the Police Station and he had identified him. Police shown him the photo of accused slipper and informed that they were in the spot and he had identified the slipper.
16 S.C.No.1402/2017
23. P.W.3 further deposed that he has given statement before the police. He identified the photo of slipper and it is marked as Ex.P.4. He identified the slipper and same is already marked as M.O. 2. Accused is now in judicial custody. In his cross-examination he deposed that before 5-6 months of the incident the accused has left the job from his shop and he cannot say that his workers who are with his shop on which colour slippers were used by them. He does not know on what reasons Gajalakshmi was dead. Further P.W.3 in his cross-examination deposed that police told to him that the accused was working in his shop, for that reasons he has given statement before the police. He does not know what statement has given before the police. Police told to him that the slipper was secured, except that matter she does not know who are using M.O.2 slipper.
24. P.W.4-Chinnaswamy deposed in his evidence that deceased Gajalakshmi is his sister. Deceased is the 17 S.C.No.1402/2017 6th daughter for his parents. Deceased was married to a person of Tamilnadu. He came to know about the death of Gajalakshmi by her daughter-in-law. He came to know that Gajalakshmi died due to assault by stone by somebody. Later he went to the St. Johns Hospital and saw the dead body and found that there was a injuries on the forehead. Before murder of deceased, she was staying in Neelasanda and she was running scrap shop. In his cross-examination stated that he has not measured the wound found on the head of his sister.
25. P.W.5-Shwetha deposed in her evidence that deceased Gajalakshmi was her grandmother. Her mother has informed through phone to her that deceased was killed by putting hallow block on her head. On 16.06.2017 at about 8.00 am she was informed about the incident. When they went to St. Johns Hospital and saw that blood was found all over the head. Near Samatha Nagar Church her grandmother was running scrap shop. 18 S.C.No.1402/2017 About 2-3 weeks back before the incident she had seen her grandmother in the shop. She came to know that when her grandmother was in the shop somebody had beaten her. She had given statement before the police and she identified the dead body of her grandmother. In her cross-examination stated that when she visited to hospital the dead body was in the Corpse box. She does not know what contents are written in her statement.
26. P.W.6-Vijay deposed in his evidence that deceased Gajalakshmi was his grandmother. Deceased Gajalakshmi was running scrap shop and grazing goats. His grandmother was staying in the shop. His mother used take food from their house and was giving to his grandmother. Before the death of his grandmother Rs.20,000/- was robbed from the shop. His grandmother refused to give complaint to that regard. His grandmother used to keep the amount earned by selling goats in a small bag. PW6 further deposed in his evidence that on 19 S.C.No.1402/2017 16.06.2017 some body had telephonically informed that some thing has happened to his grandmother and to come and see. When he went and saw, he found that his grandmother was murdered by putting hallow block on her head. He has given statement before the police. In his cross-examination deposed that his house is situated at Neelasandra and there was distance of 200 meters away from his house to deceased shop. He do not know reading and writing in Kannada language. Deepak informed to him that somebody murdered the deceased Gajalakshmi. He does not know who are committed murder of deceased Gajalakshmi.
27. P.W.7-Madamma deposed in her evidence that she knew deceased Gajalaksmi and her children. Deceased was in the scrap shop and she was not doing any other work. On 16.06.2017 at about 7.30 am when she was sweeping on the road, she did not find the grandmother, so when she went inside to see she found 20 S.C.No.1402/2017 that hallow block was on the head of grandmother. She came out and screamed, at that time public came. She informed to C.W.1 over the phone that something has happened to the grandmother. Immediately C.W.1 came and somebody had murdered grandmother by putting hallow block on her head. Grandmother grazing goats. In her cross-examination deposed that she does not know who are assaulted the deceased Gajalakshmi and she saw the dead body. Except that she does not know where injuries are found on the deceased Gajalakshmi and she do not know reading and writing in Kannada language. She do not know what contents are written in her statement.
28. P.W.8-Jameel deposed in his evidence that on 16.06.2017 police had called him to a scrap shop located at Samathanagar. Grandmother was killed by putting stone. Police secured the blood in cotton. Police have drawn mahazar on the spot shown by the daughter-in- 21 S.C.No.1402/2017 law of deceased. Black colour slipper and hallow block was seized by the police. Police have taken his signature on mahazar. His signature on mahazar is marked at Ex.P.2(b). He identified the seized articles which are already marked as M.O. 1 to 4. In his cross-examination deposed that police have taken his signature near the shop of Palaniswamy. There was some distance from the shop of Palaniswamy and shop of deceased Gajalakshmi. He does not know reading and writing in Kannada language. He does not know what contents are written in Ex.P.2. He has not measured Hallow block brick. he cannot say the boundaries of the mahazar.
29. P.W.9-R. Tamilselvam deposed in his evidence that about 3 years back police had called him to the Police Station and there they took articles from the pocket of accused, were put into the cover and sealed the same. Police drawn the seizer mahazar and it is marked as Ex.P.6 and his signature on the mahazar is marked as 22 S.C.No.1402/2017 Ex.P.6(a). He identified the seized articles. Cash bills is marked as Ex.P.8 and 9. He identified the seized cash of Rs.500/- denominations of 2 notes together marked at M.O.10 and Rs.100/- denomination of one note is marked at M.O.11. Accused is in judicial custody. In his cross-examination deposed that he do not know reading and writing in Kannada language. He does not know what contents are written in Ex.P.6. He put his signature in the police station and he do not know the denomination of the notes seized by the police. He has not identified the notes seized by the police at the time of drawing the mahazar. Further admitted that M.O.10 and M.O.11 are available in all the persons. He does not know the matter except he put the signature on mahazar.
30. P.W.10-Shafi deposed in his evidence that on 20.07.2017 police took accused to the spot and white shirt was seized. About 4.45 pm to 7.00 p.m. police drawn mahazar. Circle Inspector called him to the Police 23 S.C.No.1402/2017 Station and shown the accused. Accused shown the bore behind the toilet. Shirt, Baniyan, Pant were seized under mahazar. Said seizer mahazar is marked as Ex.P.7 and his signature is marked as Ex.P.7(a).
31. P.W.10 further deposed in his evidence that he has given statement before the police. He identifies the seized articles. Bore is marked as M.O.5, Pant is marked as M.O.6, shirt is marked as M.O.7. On 20.06.2017 in view of murder of Gajalakshmi near Sulabha Toilet, police seized shirt, cloth bag, bore, pant and baniyan. Cloth bag is marked as M.O.8 and baniyan is marked at M.O.9. In his cross-examination deposed that she was residing at Adugodi and there was 2 kms distance from the spot to his house. The police have called him at 4-30 pm and police have not issued notice to draw the mahazar. He cannot say the boundaries of the mahazar. He does not know where M.O.5 to M.O.9 are brought. Further he does not know reading and writing in 24 S.C.No.1402/2017 Kannada language. He does not know what contents are written in Ex.P.7. At the time of seizure mahazar he was standing about 2 kms away from the drainage.
32. P.W.11-Avinash deposed in his evidence that in the year 2017 police called him to the Police Station and shown him the accused. Police took him to the scrap shop in the jeep and from there accused took them to the public toilet. Accused shown them bag and bore. Later accused went near the drainage and produced clothes, shirt, baniyan which are already marked at M.O.5 to 9 and they were seized under mahazar. Mahazar is already marked as Ex.P.7 and his signature is marked as Ex.P.7(b). In his cross-examination deposed that his house is situated nearby police station. Police Inspector called him at 4-00 pm and the police have not issued notice to him. He does not know on that day what colour shirt is worn by the accused. He cannot say the boundaries of the mahazar. Further he does not know 25 S.C.No.1402/2017 reading and writing in Kannada language. He does not know what contents are written in Ex.P.7 and signature is not appearing on M.O.5 to M.O.9. Further admitted that M.O.5 to M.O.9 are available in some other place.
33. P.W.12-Kiran deposed in his evidence that when he was waiting for his friend near Neelasandra Church, police came near him and asked him to act as panchas to the mahazar. Accused took himself and police to Metro Fashions and there by seeing the bill they told that accused had purchased T-Shirt and pant from their shop. Police took the counter bill from the shop. He identified the bill and it is marked as Ex.P.10.
34. P.W.12 further deposed in his evidence that they took him to the shop where accused had taken the shoes. Police enquired about the bill for having purchased the shoes by accused. Police seized the bill from the shop. He identifies the bill and it is marked as 26 S.C.No.1402/2017 Ex.P.11. Police have drawn seizer mahazar and it is marked as Ex.P.12 and his signature is marked as Ex.P.12(a). He has given statement before the police. In his cross-examination deposed that he cannot say the boundaries of the shop and he has not seen the book number and bill number i.e. Ex.P.10 and Ex.P.11. He does not know what contents are written in Ex.P.12. Police told him to put his signature on Ex.P.12 . Therefore, he put the signature on Ex.P.12.
35. P.W.13- Toushik deposed in his evidence that he had a shoe shop with name and style as Smart shop at Neelasandra. On 16.06.2017 one person by name Nadeem came to his shop and purchased a shoe. On 22.06.2017 police came to his shop along with accused and asked him whether he had seen that person, to that he replied he has seen him. He verified the counter bill with the shop bill. Police took the counter bill. He 27 S.C.No.1402/2017 identified the bills and they are already marked as Ex.P.8 & 11.
36. P.W.13 further deposed in his evidence that Police have conducted the mahazar i.e Ex.P.12 and his signature on mahazar is marked as Ex.P.12(b). He has given statement before the police. He has identified the accused, now he is in judicial custody. In his cross- examination admitted that there was a discrepancies of his signature as shown in Ex.P.8, Ex,P.11 and Ex.P.12. Further stated that generally he has not given bill for purchasing of the customers and he admitted that the shop is having GST. Therefore, he has given computer bill to the customers and he had no hardship to produce the bill book. He has no information that who are coming to his shop and what materials have been purchased by the customers and he has not signed to every bill which was given to the customers. He does not know on what company shoes was purchased by the accused. Further 28 S.C.No.1402/2017 admitted that in the counter bill customers name has been entered.
37. P.W.14-Shivakumar deposed in his evidence that on 20.06.2017 himself and CW25 were deputed to secure the accused. Accordingly they collecting the information near the jurisdiction of their Police Station informants informed to them that accused was near Neelsandra and took them to the spot. They found that accused was sitting on the bench. When they went to apprehend him and he tried to escape from them. Somanna and Ashok Rathode surrounded and caught hold of accused.
38. P.W.14 further deposed in his evidence that when they enquired about the address and name of the accused, accused replied that his name was Syed Nadeem @ Chuvvi. Accused was arrested and produced before the PI with a report. Report is marked as Ex.P.13 29 S.C.No.1402/2017 and his signature is marked as Ex.P.13(a). He identified accused and now he is in judicial custody. In his cross- examination deposed that police Inspector has not issued any letter in writing to secure the accused and also photo to identify the accused. He personally searched the accused but no materials available in the possession of the accused at the time of arrest.
39. P.W.15-Sahil deposed in his evidence that he was working at Neelasandra Metro Fashions shop. On 16.06.2017 accused has purchased pant and T-shirt from their shop. On 22.06.2017 police had came along with accused and other four persons to their shop. Police enquired whether accused had purchased clothes in their shop, he replied saying accused had purchased the clothes.
40. P.W.15 further deposed in his evidence that he had produced the bill to police for having purchase of 30 S.C.No.1402/2017 clothes by accused. The bills are marked at Ex.P.9 and P10. Later police took him to the Smart Shopping shop. Accused had purchased shoe in that shop. Police received bills in the shop in his presence. The accused had purchased worth Rs.1500/- in their shop. Police drawn mahazar as per Ex.P.12 and his signature on mahazar is marked as Ex.P.12(c). Ex.P.12 mahazar was drawn from 11.00 am to 1.00 pm. He identified the accused and now the accused is in judicial custody. In his cross- examination deposed that he does not know reading and writing in Kannada language. He does not know what contents are written in Ex.P.12. The accused has purchased the shoe of Rs.450/- from his shop and there is no document to show that he was working in Smart Shop. In that shop there was a CCTv and the owner of the shop was also present and the said shop transactions comes in the GST and he has no hardship to produce the GST bills. Further in his cross-examination stated that 31 S.C.No.1402/2017 T-Shirt and Pant is not belongs to the branded company. In Ex.P.9 signature appearing by issuing the bill. Ex.P.12
(a) is belongs to him and signature appearing on Ex.P.9 is not belongs to him. Bill amount paid by some one person and bill received from the shop is some other person.
41. P.W.16-Somanna deposed in his evidence that on 16.06.2017 Inspector informed him to come to the spot and he was asked him to take the photos of the dead body of Gajalakshmi on the spot. On 24.06.2017 C.W.24 to C.W.28, C.W.29 and himself were deputed to secure the accused. That on the information received by the informant that accused was in Neelsandra Park, they went to the spot and accused tried to escape from their by seeing them. Himself and CW28 caught hold the accused and came to know that his name was Nadeem @ Chuvvi.
42. P.W.16 further deposed in his evidence that when they caught hold accused, he was wearing blue 32 S.C.No.1402/2017 colour jeans pant and cream colour full sleeve shirt. Accused was produced before C.W.38. He identified accused now he accused is in judicial custody. He has given statement. He identified the photos which are marked as Ex.P.14 to 16. He identified Ex.P.4. In his cross-examination deposed that on 24.06.2017 his higher officer has not issued any order in writing to trace the accused and photo is not given to him for identifying the accused. Further admitted that at the time of caught hold the accused, he was not drawn the mahazar.
43. P.W.17-Keshava Murthy deposed in his evidence that on 16.06.2017 CW38 had deputed him to submit the FIR to the court and as per the directions he had submitted the FIR to VI ACMM court. In this regard he has given statement. FIR is marked as Ex.P.17. In his cross-examination he deposed that the court was situated 6 kms distance from the police station and it takes half an hour time to reach the court.
33 S.C.No.1402/2017
44. P.W.18-Beerappa deposed in his evidence that on 29.06.2017 CW38 had deputed him to collect the five articles and PM report and submit before him. On the same day he went to the FSL and received five articles and PM report and produced before CW38. He has given report. Report is marked as Ex.P.18 and his signature is marked as Ex.P.18(a). He identified the five articles. This witness is unchallenged by the defence.
45. P.W.19-Mahadev Naik deposed in his evidence that on 07.08.2017 he had given article No.1 to 14 to the FSL, Mysore and had received the acknowledgment and same has been produced before the IO. He has given statement. Acknowledgment is marked as Ex.P.19. In his cross-examination deposed that he cannot say who was issued the acknowledgement.
46. P.W.20-Sharanappa Onagere deposed in his evidence that 29.08.2017 IO had deputed him to consult 34 S.C.No.1402/2017 the Engineer and to get the spot sketch. As per the instructions he had taken Engineer to the spot. CW36 prepared sketch and given to him and same he has produced before the IO. In his cross-examination the Investigating officer has shown to him the place of occurrence and in this regard not issued any letter to him.
47. P.W.21-Puttaswamy deposed in his evidence that on 20.06.2017 he had received a request from Adugodi Police Station to prepare the sketch on the place of occurance. He visited the spot along with CW34 and prepared the sketch on the spot. Sketch is marked as PW20 and his signature is marked as Ex.P. 20(a). The letter given to PI is marked as Ex.P.21. Request letter is marked as Ex.P.22. In his cross-examination deposed that on the instructions of police he has prepared sketch. Ex.P.20 was prepared in the office. In the sketch he has shown as bulb but it is not bulb i.e. wire. 35 S.C.No.1402/2017
48. P.W.22-Dr.G.Baburao deposed in his evidence that on 16.06.2017 at the request of Audugodi police he conducted the PM of Gajalakshmi, 65 years old from 3:35 to 4: 35pm. he has found the following clothes and articles on the dead body. Brown colored full sleeve sweater with blood stained all over. Red grey and pink colored saree with green floral designs all over it covered with blood stains at its upper part. Grey colored petticoat, Blue colored blouse with green color border and Blue colored rosary with white cross. All the above articles are handed over to the concerned police in a sealed manner.
49. P.W.22 further deposed that he identified the articles. Brown colored full sleeve sweater is marked as M.O. 12, Red grey and pink colored saree is marked as M.O. 13, Grey colored petticoat is marked as M.O. 14, Blue colored blouse is marked as M.O. 15 and blue colored rosary with white cross is marked as M.O. 16. 36 S.C.No.1402/2017
50. P.W.22 further deposed that he had found the following External Injuries: Laceration 5 x 2 cm x cavity deep, present over the inner end of the left eyebrow with underlying bones fractured into multiple pieces. Laceration 4x1cmxbone deep, present over outer aspect of left eyebrow. Laceration, 2x1cmxbone deep present over right side of face, obliquely placed, 1inch infront of tragus of left ear. laceration 7x2.5cmxbone deep, seen 3cm above the pinna of the left ear, extending into left temporal bone.
51. P.W.22 further deposed that 2 inches above, below the above injury (injury No.4), an obliquely placed laceration is present measuring 4x0.5cm x bone deep. A laceration 5x0.5cm x bone deep is seen vertically placed from the medial end of injury No.5. A laceration, 3x0.5cm x bone deep is present over the right occipital region. Deglining injury track over the back of right hand measuring 8.5x5cm, running across the metacorp 37 S.C.No.1402/2017 phalangeal joint to progimal interphalangeal joint from the milddle finger to little finger.
52. P.W.22 further deposed that he found the following Internal injuries: Scalp: On reflection shown extravasation of blood all over biladeral frontal, left temporo-parietal and bilateral occipital region. Skull: A linear fracture seen in the left temporal bone extending into the Anterior Cranial fossa upto base of sphenoid bone, 12cm in length. Another linear fracture seen extending from the middle cranial fossa into the foramen magnum measuring 4.5cm in length. Membranes:
Ruptured at fracture sides.
53. P.W.22 further deposed that Brain: Subdural and subarachaoid haemmorahage seen all over the brain. Thorax: Intact Abdomen: Walls, Peritoneal cavity & Mouth pharynx oesophagus intact. Somach and its contents contains 300ml of greenish semidigested food 38 S.C.No.1402/2017 material. Mucosa are normal no unusual smell. Small & large intestines contains gas and its contents. Liver & spleen are intact. Kidneys intact, Bladder intact. Reproductive organs External genitalia intact. Uterus on C/s shows an endometrial mass.
54. P.W.22 further deposed that Injuries were Ante mortem in nature, Fresh in nature, Viscera Sent for FSL and Organs send for HPE were Nil. Time Since Death:
Dead body kept in the cold storage. He was of the opinion that death was due to shock and hemorrhage as a result of head injury sustained. In this regard he had given PM report and it is marked as Ex.P.23 and his signature is marked as Ex.P.23(a). In his cross-examination stated that he cannot say the time of death prior to the post mortem report. He cannot say the date when he forwarded the post mortem report to the Investigating officer. Further admitted that the lacerated wounds can 39 S.C.No.1402/2017 be caused with any kind of blunt object or even violent falls on hard surface like stones. Further admitted that any weapon used for commission of offence blood stains will be present on that weapon.
55. P.W.23-T.Cheluvegowda deposed in his evidence that on 16.06.2017 at abut 8.00 am he received the complaint from the complainant, registered the case for the offences punishable under section 302 of IPC and submitted the FIR to the court. The signature on the complaint is marked as Ex.P.1(b). He visited the spot along with panchas and conducted mahazar as per Ex.P.2. His signature is marked as Ex.P.2(c).
56. P.W.23 further deposed that he has obtained the blood stains on the spot in cotton. He had seized the cotton, hallow block and slipper and subjected to PF and submitted to the Court. On the same day he has recorded 40 S.C.No.1402/2017 the statements of CW3, 7 and 8. Dead body was sent to St. Johns Hospital through the escort of CW34.
57. P.W.23 further deposed that inquest has been conducted at St. Johns Hospital in the presence of panchas. At the time of inquest he has recorded the statement of Vinod and Vijay. He recorded the statement of eye witness CW3. After conducting the PM, he handed over the dead body to CW1. He had deputed CW24 to 29 to secure the accused persons.
58. P.W.23 further deposed that on 20.06.2017 he had given request letter to PWD Engineer to prepare the spot sketch. Request is already marked as Ex.P.22. On 20.06.2017 accused was produced before him. By following the arrest formalities and recording the Voluntary Statement, on 21.06.2017 accused was produced before the court. He came to know that 41 S.C.No.1402/2017 accused in his Voluntary Statement admitted the murder and robbed money.
59. P.W.23 further deposed that Voluntary Statement of accused is marked as Ex.P.26 and his signature is marked as Ex.P.26(b). Portion of Voluntary Statement is marked as Ex.P.26(a). On 20.06.20217 he seized Rs.600/- pant, shirt, shoe receipt by accused by drawing mahazar. Mahazar is already marked as Ex.P.6 and his signature is marked as Ex.P.6(b).
60. P.W.23 further deposed that on 20.06.2017 he took the accused to the Sulabha Toilet and he seized the clothes of deceased which were thrown by accused under mahazar. Mahazar is already marked as Ex.P.7 and his signature is marked at Ex.P.7(c).
61. P.W.23 further deposed that on 22.06.2017 he has seized purchase bills and counter bills as per Ex.P.12. His signature on Ex.P.12 is marked as 42 S.C.No.1402/2017 Ex.P.12(d). Seized articles were subjected to PF and they are already marked at M.O. 1 to 16. He had recorded the statement of CW3. Statement is marked as Ex.P. 27.
62. P.W.23 further deposed that later he has recorded the statement of CW27 to 29 and also recorded the statements of CW21 to 23. On 21.06.2017 he has taken accused to the police custody. He took accused to the shop and drawn mahazar. On 29.06.2017 CW32 had produced PM report before him. PM report is already marked as Ex.P.23. Seized articles are sent to FSL through CW33 and recorded the statement of CW33.
63. P.W.23 further deposed that he had submitted FIR through CW31 to the court. On 12.08.2017 recorded the statement of CW2 before the Magistrate. Statement is already marked as Ex.P.3. On 01.09.2017 he deputed CW34 to show the spot to prepare the sketch. On the same day he recorded the statement of CW34. 43 S.C.No.1402/2017
64. P.W.23 further deposed that he obtained the sketch from the Engineer. Sketch is already marked as Ex.P.20 and his signature is marked as Ex.P.20(b). On 11.09.2017 after completion of the investigation he has submitted the charge sheet against the accused before the court. On 29.06.2018 he obtained the FSL report and submitted to the court. FSL report is already marked as Ex.P.24 and his signature is marked as Ex.P.24(b). In his cross-examination deposed that Ex.P.1 is not own hand writing of C.W.1. He did not know who written in the Ex.P.1. He has not collected the phone details and not recorded the statement of Maadu as mentioned in the complaint. C.W.14 and C.W.15 were called by his staff and he has not issued notice to them at the time of drawing Ex.P.2. Injuries caused due to assault in the hallow block and he has no hardship to draw the inquest mahazar at the spot.
44 S.C.No.1402/2017
65. Further PW23 in his cross examination at the time of drawing Ex.P.5 inquest mahazar, there is no suspect that who committed the murder. Further P.W.23 stated that up to 16.06.2017 there is no suspect that who are committed murder. After two months of the said incident recorded the statement of P.W.2 as per Ex.P.3. Prior to that he has not recorded 161 statement of P.W.2. Up to 12.08.2017 P.W.2 has not given the statement against the accused. Nobody suspect on the accused to commit murder of deceased Gajalakshmi up to arrest. In this regard C.W.3 has stated against the accused. Immediately he has not recorded the statement of C.W.3. Further stated that CW3 has not stated anything against the accused. He has not called P.W.8 to P.W.11 by issuing notice. His staff members called P.W.8 to P.W.11 at the spot and he has not taken information from the BESCOM that on the date of the incident there was power connection or not. He has enquired about the 45 S.C.No.1402/2017 signature appearing on Ex.P.12 belongs to whom. Further he has not taken the shop bill book at the time of drawing Ex.P.6 and Ex.P.12. Further he has not seized the counter bill of Ex.P.8 to Ex.P.11. further denied the suggestions that false charge sheet has been filed against the accused.
66. P.W.24-Dr.Chandrashekar deposed in his evidence that on 07.08.2017 C.W.33 has produced 14 sealed articles for examination. He opened the sealed articles, examined and found Blood stained cotton, sample cotton, Cement brick, one pair rubber slippers, hand bag, Iron bore, jeans pant, one shirt, baniyan, sweater, saree, petticoat, blouse and rosary with cross.
67. P.W.24- further deposed in his evidence that when he produced articles for chemical examination he found that item No.1, 3 to 14 blood stains were found, item No.2 blood stains were not found. He produced item 46 S.C.No.1402/2017 No.1, 3 to 14 articles for examination and found that the blood stains found on the articles belong to human blood of 'O' group. He had sent the report by taking signature of the Dy. Director to the police. Report is marked at Ex.P.24. His signature is marked at Ex.P.24(a).
68. P.W.24- further deposed in his evidence that he has sent the sample seal to the Police Station. Sample seal is marked as Ex.P.25. He identified the examined articles which are already marked as M.O.1 to 9 and 12 to 16. In his cross-examination stated that he does not know the date of incident and seizure of the articles. Further admitted that he has not received the blood from any person separately. Further admitted that the blood sample is not sent him.
Analysis and evaluation of Evidence.
69. P.W.1 in her complaint specifically stated that some unknown persons committed the murder of 47 S.C.No.1402/2017 deceased Gajalakshmi for some unknown reasons. Even in the FIR also it is clearly mentioned that unknown persons have committed the murder of deceased Gajalakshmi for some unknown reasons. In the spot mahazar and in the inquest mahazar also specifically stated that some reasons the deceased Gajalakshmi murdered. Though the police have recorded the statement of the family members of deceased Gajalakshmi. At the time of inquest they also stated that the deceased was murdered for some unknown persons. While filing the charge sheet police have mentioned the offence against the accused that the accused has committed murder in order to commit dacoity or stolen the amount which was with the deceased Gajalakshmi. Accordingly, police have added the offence under section 396 of IPC. Hence, the case of the prosecution is that the accused committed the murder of deceased Gajalakshmi with a motive of illegal gain. To prove the said motive, the 48 S.C.No.1402/2017 prosecution miserably failed in its attempt for the reason that none of the witness examined before the court have stated about the motive for the alleged crime. P.W.1, P.W.4 to P.W.6 are absolutely did not stated in their evidence that the accused committed the murder for illegal gain. Though P.W.6 stated in his evidence that prior to the death of his grand mother Gajalakshmi, a sum of Rs.20,000/- was stolen and she used to keep the amount in a small bag. But the P.W.6 never stated that his grand mother Gajalakshmi was murdered for stolen of the amount. Further PW6 in his cross-examination stated that he did not know the colour of the bag which she used to keep the amount and he did not know personally anything about the murder of his grand mother and even he did not know where she used to keep the amount etc. Perusal of the evidence of P.W.1, P.W.4, P.W.5 and P.W.6 none of these witnesses stated about the motive or commission of the crime. Under section 49 S.C.No.1402/2017 396 reads " If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, everyone of those persons shall be punished with death or imprisonment for life or rigorous imprisonment for a term which may extend to 10 years and shall also liable to fine". Hence, it is clear that to charge under section 396 of IPC is not applicable to the accused. In this case only one accused committed murder of deceased Gajalakshmi as per the police records. In this case there is no conjoint act of five or more persons. Hence, the offence under section 396 of IPC is not attract to the accused. Therefore, the prosecution has failed to prove the motive and intension against the accused.
70. The deceased Gajalakshmi was running scrap shop in Samathanagara and some unknown persons committed murder of deceased Gajalakshmi on 16.06.2017 at 3-30 am. P.W.7 came to the scrap shop 50 S.C.No.1402/2017 on 16.06.2017 at about 7-30 am she came to know that some unknown persons committed murder of deceased Gajalakshmi by putting hallow block bricks on her head. The said fact was informed to P.W.1 through phone. P.W.1 came to the spot and saw that some unknown persons committed the murder of her mother-in-law and she lodged the complaint to the police. The police have visited the spot and seized hallow block stone, slipper, bloodstained cloth under Ex.P.2 mahazar. P.W.7 in her cross-examination stated that she did not know who are committed murder of deceased Gajalakshmi and she do not know reading and writing of Kannada language and further she does not know the contents written in her statement. P.W.1 who is the complainant and mahazar witness. In her cross-examination deposed that her mother-in-law aged about 60 years and she was suffering from blood pressure and sugar. Before the incident she has provided food to her mother-in-law. On the next day 51 S.C.No.1402/2017 at about 7-30 am she received the phone call from PW7 with regard to murder of her mother-in-law. But police have not seized her mobile phone. She does not know the contents written in Ex.P.1 complaint and Ex.P.2 mahazar. Further stated that the police have taken her signature at police station. She did not know who has committed murder of her mother-in-law. Two persons putting signature on Ex.P.2 mahazar but she does not know their names. P.W.1 and P.W.7 are not eyewitnesses and in their cross-examination they clearly admitted that they do not know who are committed murder of Gajalakshmi. Therefore, the evidence of P.W.1 and P.W.7 is no way helpful to the case of the prosecution.
71. P.W.2 in his evidence stated that he know the accused and deceased Gajalakshmi. The accused is his friend. About two years back and the accused has called him to assault the deceased Gajalakshmi. Thereafter, 52 S.C.No.1402/2017 the accused had borrowed Rs.20/- from him. At about 6-00 am the accused and himself had gone to market and after drunk they came back. He has given the statement before the Magistrate stating that the accused had murdered the deceased Gajalakshmi by putting hallow block stone in her head. In his cross-examination stated that Santhosh informed to him that the accused has committed murder of Gajalakshmi. This portion of the cross examination it shows that he is a hearsay witness and he has not seen the incident. Further in his cross-examination stated that on the day of the incident he came to police station and the same was informed to the police. After 2-3 months of the incident, the police have produced him before the Magistrate and he has given statement before the Magistrate as per Ex.P.3. The portion of Ex.P.3 is marked as Ex.D.1. The portion of Ex.D.1 it reveals that the P.W.2 came to know that Syed Nadeem had murdered the deceased by throwing hallow 53 S.C.No.1402/2017 block stone on her head. The evidence of P.W.2 and Ex.D.1 shows that he is not an eyewitness. Further P.W.2 in his cross-examination stated that he has not directly seen that the accused has committed murder of deceased Gajalakshmi. P.W.2 is not an eyewitness and he has given 164 Cr.P.C statement before the Magistrate but Ex.D.1 it shows that he came to know that the accused had committed murder of deceased Gajalakshmi by throwing hallow block stone on her head. The evidence of P.W.2 and Ex.D.1 it shows that the P.W.2 is only the hearsay witness. Therefore, his evidence is no way helpful to the case of prosecution.
72. P.W.3 has stated that he know the accused and he saw the deceased Gajalakshmi. The accused was working with him as welder and he was paying daily wage to the accused. During Ramzan period the accused asked him for advance amount but he did not give the amount. So the accused left the job. The accused was 54 S.C.No.1402/2017 wearing black colour slipper while he was coming to work. Generally while doing welding work, holes were there on the slipper. On 20.06.2017 Adugodi police called him to police station and he informed to police that the accused was working with him and the police shown him the photo of the slipper of the accused and he identified the slipper which is marked as Ex.P.4.
73. P.W.3 in his cross-examination stated that the accused left the job from his shop about 5-6 months back before this incident and he does not know who are wearing which colour slipper coming to his shop for doing the work. In M.O.2 there is no holes on the slipper. P.W.3 in his cross-examination stated that he did not know what statement has given before the police. The police informed to him that the slipper was available and except that he does not know other matter. Further P.W.3 in his cross-examination stated that he did not know who are using the M.O.2 slipper. The police shown 55 S.C.No.1402/2017 the photo of the slipper and he does not know on what way deceased Gajalakshmi was dead. Therefore, the evidence of this witness is no way helpful to the case of the prosecution.
74. P.W.4 who is brother of deceased Gajalakshmi. He deposed in his evidence that the sister-in-law of Gajalakshmi informed to him that some one have murdered Gajalakshmi. He came to St.John hospital and he has given statement before the police. In his cross- examination stated that he has not measured the injuries of his sister.
75. P.W.5 is grand daughter of deceased Gajalakshmi. In her evidence deposed that on 16.06.2017 at about 8am, her mother Kala informed her about the death of Gajalakshmi through telephone. She came to St.John hospital and saw the dead body of deceased Gajalakshmi. In her cross-examination stated 56 S.C.No.1402/2017 that when she came to St.John hospital the dead body was in the Corpse box. She did not know what contents are written in her statement.
76. P.W.6, who is grand son of deceased Gajalakshmi, in his evidence deposed that his grand mother was running scrap shop and also grazing the goats. Before murder of her grand mother there was stolen of Rs.20,000/- from the shop. Some one has committed murder of his grand mother by putting hallow black brick on her head. In his cross-examination stated that Deepak informed to him that some one murdered his grand mother. He did not know personally that who are committed the murder of his grand mother.
77. P.W.4, P.W.5 and P.W.6 are not eyewitnesses and they are inquest mahazar witnesses and they are the relatives of the deceased Gajalakshmi and their 57 S.C.No.1402/2017 evidence is also no way helpful to the case of the prosecution.
78. P.W.8 in his evidence deposed that the police had called him to scrap shop situated at Shanthinagar. Deceased Gajalakshmi was murdered by some unknown person. He did not know reading and writing the Kannada language and he did not know what contents are written in his statement. He never put any signature. Police have seized black colour slipper and hallow block stone under Ex.P.2. In his cross-examination stated that he did not know what contents written in Ex.P.2 mahazar. Before drawing the mahazar police have not issued notice to him and he put the signature to mahazar in the house of Palaniswamy. He cannot say what contents written in the mahazar.
79. P.W.1 and P.W.8 are witnesses to Ex.P.2 mahazar which drawn in the alleged spot of the incident 58 S.C.No.1402/2017 i.e. in the scrap shop at Samathanagara. P.W.1 in her cross-examination admitted that she do not know the contents of Ex.P.2 mahazar. Even she do not know reading and writing of Kannada language. Police have took her signature in the police station. Even she admitted that she do not know the other two persons who affixed the signature on Ex.P.2. She do not know the measurement of hallow block brick. Hence, it is clear that P.W.2 affixed her signature in the police station to Ex.P.2 mahazar. P.W.8 in his cross-examination admitted that he do not know the contents of Ex.P.2 mahazar and he affixed the signature on Ex.P.2 in the house of one Palaniswamy. Even P.W.8 failed to state about the hallow block brick or the description of the scrap shed. P.W.8 clearly admitted that he was near the shop of Palaniswamy and the police took his signature there. As such, it is clear that at the time of drawing the mahazar Ex.P.2 and seizure of M.O.1 to M.O.4 not proved 59 S.C.No.1402/2017 by the prosecution. Since the attesting witness of Ex.P.2 clearly stated that they do not know the contents of Ex.P.2 and they did not sign the same in the alleged spot.
80. Seizure of M.O.1 to M.O.4 under Ex.P.2 is concerned, the accused cannot be connected for the reasons that at the time of drawing Ex.P.2 mahazar. The police in Ex.P.2 mentioned that some unknown persons committed the murder and in Ex.P.2 it is clearly stated that unknown persons have committed the murder of deceased Gajalakshmi. Therefore the evidence of PW1 and 8 is no way helpful to the case of the prosecution and their evidence is not believable.
81. P.W.9 deposed in his evidence that about three years back police called him at police station and seized the articles from the accused and drawn the mahazar at Ex.P.6. In his cross-examination stated that he did now know reading and writing of Kannada 60 S.C.No.1402/2017 language and he did not know the contents of Ex.P.6. He affixed his signature on mahazar at police station. Further he did not know the denomination of the currency notes. M.O.10 and M.O.11 are available in any one. Therefore, the evidence of P.W.9 is no way helpful to the case of the prosecution. The prosecution fails to prove the recovery of the Ex.P.8 and 9.
82. Police have seized the MO.5 to 9 under Ex.P.7 seizure Mahazar. P.W.10 and P.W.11 who are the attesting witness of Ex.P.7 mahazar. As far as P.W.10 is concerned though he stated in the chief examination about drawing of Ex.P.7 mahazar. After he turned hostile. Further stated that M.O.8 and M.O.9 are seized by the police on 20.06.2017 with regard to murder of Gajalakshmi at Public Toilet. P.W.10 in his cross- examination stated that before drawing Ex.P.7 mahazar, police have not issued the notice. He affixed the signature on Ex.P.7 at police station. He does not know 61 S.C.No.1402/2017 the police have brought M.O.5 to M.O.9 from where. He does not know the contents written in Ex.P.7.
83. P.W.11 in his chief examination stated that he affixed the signature at Ex.P.7 and police have seized M.O.5 to M.O.9. In his cross-examination he stated that his house is situated by the side of the police station. Before drawing Ex.P.7 mahazar police have not issued notice to him. He cannot say the boundaries mentioned in the mahazar and he does not know what contents are written in Ex.P.7 mahazar, Further admitted that M.O.5 and M.O.9 are available in some other place.
84. P.W.10 and P.W.11 are the seizure mahazar witnesses and recovery of M.O.5 to M.O.9. But their evidence is no way helpful to the case of the prosecution. P.W.10 and P.W.11 are the witnesses to the Ex.P.7 mahazar. The said mahazar drawn at open public place. As such the recovery of M.O.5 to M.O.9 open public place 62 S.C.No.1402/2017 cannot be considered against the accused. P.W.10 and P.W.11 are not supported the case of the prosecution. Hence, the prosecution utterly failed to prove the above circumstance i.e. recovery of M.O.5 to M.O.9 under Ex.P.7 mahazar. As far as M.O.5 iron bore is concerned the same has been produced before the court at the time of filing the charge sheet. But there is no recitals either in the complaint, spot mahazar or at the time of inquest mahazar. Absolutely there is no whisper against M.O.5 at the time of drawing spot mahazar, inquest mahazar and the complaint. Even P.W.22 did not gave any opinion in respect of M.O.5. Hence, the recovery of M.O.5 from the open space does not connect the accused in the alleged incident.
85. M.O.8 cloth bag is concerned though P.W.6 stated in his chief examination that his grand mother deceased Gajalakshmi used to keep some amount in a cloth bag. But P.W.6 did not identify the said bag. 63 S.C.No.1402/2017 Moreover in his cross-examination P.W.6 stated that he do not know anything about the bag which was alleged possessed by his grand mother. P.W.1, P.W.4 and P.W.5 have not stated anything about M.O.8 nor they identified the said bag. In such circumstances the recovery of M.O.8 once again from the open public place that too the witness for the said mahazar were not supported fully. No evidentiary value can be attached for the said recovery of M.O.8. Hence, mere recovery of M.O.8 which is not extremely in the knowledge of the accused. Hence, the prosecution has failed to prove the circumstance of recovery of M.O.5 to M.O.9.
86. P.W.12 deposed in his chief examination that police never called him and not drawn any mahazar before him. Further stated that the police have told him to co-operate to draw the mahazar. Police have brought the accused and himself to Metro Fashion Shop and police have taken the bill from the shop. The said bill 64 S.C.No.1402/2017 was marked as Ex.P.10 and Ex.P.11 i.e. carbon copy of the bills. Seizure mahazar is marked as Ex.P.12. P.W.12 in his cross-examination stated that he cannot say the boundaries of the mahazar and he has not seen the bill number and book number Ex.P.10 and Ex.P.11. He did not know what contents written in Ex.P.12. On the instruction of police, he affixed his signature on Ex.p.12.
87. P.W.13 in his evidence deposed that he owned slipper shop in the name and style as smart shop. That on 16.06.2017 one person by name Nadeem came to his shop to purchase the shoe. That on 22.06.2017 the police came to his shop along with the accused and asked him whether he has seen that person. To that effect he replied that he has seen the accused. He verified counter bill with the shop bill and the police have took the counter bill. In his cross-examination deposed that the signature appearing in the Ex.P.12 is entirely different from the signatures appearing on Ex.P.8 65 S.C.No.1402/2017 and Ex.P.11 and the said bill does not stand in his shop's name and he has not issued any bill to the customers and even if the bill issued to the customer the same will not be signed by them. He did not know the accused purchased shoe belongs to which company. Further admitted that in the counter bill customer name has been entered but P.W.12 has not produced the counter bill.
88. P.W.15 in his evidence deposed that he was working in the Metro Fashion cloths. On 16.06.2017 the accused has purchased pant and T-shirt from his shop. On 22.06.2017 police had came to his shop along with accused and other four persons .Police enquired him whether the accused had purchased the cloths in the shop. He replied by saying that the accused has purchased the cloths from his shop and he produced Ex.p.9 and Ex.P.10 bills to the police for having purchased the cloths by the accused. The accused had 66 S.C.No.1402/2017 purchased shoe in that shop and received the bill in the shop in his presence and police have drawn Ex.P.12 mahazar. In his cross-examination deposed that he did not know reading and writing of Kannada language. He does not know what contents are written in Ex.P.12. He cannot say the book number and bill number. The accused purchased the cloths from his shop. The said transaction comes within the GST. He has no hardship to produce the GST book. In Ex.P.9 there is no signature. Cross-examination of P.W.12, P.W.13 and P.W.15 it shows that their evidence is no way helpful to the case of the prosecution. Prosecution fails prove the recovery of Ex.P.8 to 11.
89. P.W.14 and P.W.16 were deputed to secure the accused. They received the credible information from the informants and they were arrested the accused and produced before the Investigating officer. P.W.14 in his cross-examination deposed that at the time of arrest 67 S.C.No.1402/2017 he personally searched the accused and at that time no materials are available from his possession. The cross- examination of P.W.23 it shows that normally when ever the arrest the accused, searches the accused person. The cross-examination of P.W.16 it shows that at the time of arrest of the accused he never drawn the mahazar and the Investigating officer has not issued the photo for identity of accused.
90. P.W.17 in his evidence deposed that on 16.06.2017 he has received FIR from the police station and submitted to VI Additional Chief Metropolitan Magistrate, Bengaluru City. In his cross-examination deposed that the court is situated about 6 kms away from the police station and it taken time to reach the court is half an hour. Ex.P.17 it shows that the P.W.17 submitted the FIR to the Court on 16.06.2017 at about 11-00 am. The delay of FIR submitted before the court is not properly explained by the prosecution. 68 S.C.No.1402/2017
91. P.W.18 in his evidence deposed that on 20.06.2017 he collected five articles from FSL and also he has given report to the Investigating officer.
92. P.W.19 in his evidence deposed that he had given articles M.O.1 to M.O.14 to the FSL.
93. P.W.20 in his evidence deposed that he consult the Engineer and to get the spot sketch. As per the instruction of Investigating officer he took the Engineer to the spot and prepared sketch and given to him and same has been produced before the Investigating officer. In his cross-examination deposed that the place of occurrence was shown by IO to him. In this regard there is no writing order.
94. P.W.21 he prepared sketch on the place of occurrence and he has issued Ex.P.20. In his cross- examination deposed that on the instruction of the police he has prepared Ex.P.20 sketch in his office. Cross- 69 S.C.No.1402/2017 examination of P.W.21 it shows that he has not prepared the sketch at the spot and he has prepared the sketch in his office. Therefore, the evidence of P.W.21 is not believable one.
95. P.W. 22 who has conducted post mortem report of deceased Gajalakshmi and he has issued Ex.P.23 post mortem report. In his cross-examination stated that he cannot say the time of death prior to the post mortem report and admitted that lacerated wounds can be caused with any kind of blunt object or even violent falls on hard surface like stones.
96. P.W.23 Investigating officer he has conducted investigation and visited the spot and drawn the mahazar and sized the articles and after completion of the investigation submitted the charge sheet before the Court. In his cross-examination stated on 21.06.2017 he recorded the voluntary statement of the accused and 70 S.C.No.1402/2017 accused has given statement as per Ex.P.26 and some portion of his statement is marked as Ex.P.26(a) and Ex.P.26(b). In this regard there is no corroborative evidence of other witnesses. In his cross-examination deposed that Ex.P.1 was not in own handwriting of C.W.1. He did not know who wrote Ex.P.1 complaint. In the complaint mentioned that Maadu informed the death of Gajalakshmi, but he has not collected the phone details. Further he has not suspecting that who are committed the murder of deceased Gajalakshmi at the time of drawing inquest mahazar or in the spot mahazar. Further stated that he has not recorded the statement under section 161 of Cr.P.C. of P.W.2. Till arrest of the accused nobody suspect on the accused and he has not called P.W.10 and P.W.11 by issuing notice to draw the mahazar. Further in his cross-examination stated that he has not collect the documents to show that on the day of the incident, whether power is there or not. At the 71 S.C.No.1402/2017 time of drawing Ex.P.6 and Ex.P.12 he has not collected the bill book from the shop owner. Further he has not collected the counter bills of Ex.P.8 to Ex.P.11. P.W.24 conducted chemical examination of 14 articles, which were given by the Adugodi police and found the bloodstains on the article Nos.1, 3 and 4 belongs to the human blood of "O" group. In his cross-examination stated that the police have not sent the blood sample to him for chemical examination. Ex.P.6 drawn in the police station on 20.06.2017 after arrest of the accused. According to Ex.P.8, Ex.P.9, M.O.10 and M.O.11 are recovered from the pant packet of the accused.
97. The alleged incident came to know that P.W.1 on 16.06.2017 the accused arrested after 4 days i.e. on 20.06.2017 and it cannot be believed at any stretch of imagination that the accused was kept the original bill pertaining to purchase of dress and shoe for a period of 4 days in his packet. P.W.14 arrested the accused and 72 S.C.No.1402/2017 clearly stated in his cross-examination that after apprehended the accused he searched the accused and he did not found anything. P.W.16 stated that similar way that he searched the accused. P.W.23 also stated that immediately after arrest of the accused he used to search the accused and in this case also the P.W.14 searched the accused. But he did not found anything in the accused. But surprisingly contrary to the version of P.W.14, P.W.16 and P.W.23 it is stated that after arrest of the accused in the police station they have seized Ex.P.8, Ex.P.9, M.O.10 and M.O.11.
98. P.W.9 witness for Ex.P.6 admitted in his cross- examination that he did not know the contents of Ex.P.6 and just signed the same in the police station. He did not know anything apart from signing Ex.P.6. He was not confirmed that the same notes were seized on that day. On request of the police he put the signature to Ex.P.6. As such it is clear that Ex.P.6 had not drawn in the 73 S.C.No.1402/2017 presence of P.W.9. Therefore, the prosecution fails to prove Ex.P.6. Police tried to connect the accused to the incident by creating Ex.P.8, Ex.P.9, M.O.10 and M.O.11. By alleging that the accused by committing the murder of deceased Gajalakshmi, stolen some amount from the deceased and out of the said amount he purchased some cloths and shoes as per Ex.P.8, Ex.P.9, M.O.10 and M.O.11. In this regard the prosecution has examined P.W.2 and P.W.2 did not depose the evidence to that effect. P.W.2 stated that one Santhosh informed to him that the accused committed murder of deceased Gajalakshmi. Further he did not stated anything about purchase of shoes, pant and shirt by the accused. P.W.12, P.W.13 and P.W.15 are not clearly stated about the purchase of dress and shoes from their respective shops.
99. FSL report issued by P.W.24 as per Ex.P.24. Ex.P.24 FSL report speaks that there are 14 sealed 74 S.C.No.1402/2017 articles sent to FSL by the police for examination and after examination of those articles, it is found that 13 articles are bloodstained with human blood and also with "O" group blood. The police have not sent the articles in a separate blood sample of the deceased or accused. P.W.23 stated that he was not collected any blood sample of deceased or accused. That being the case it cannot come to the conclusion that the blood group found in the article Nos.1 to 14 belongs to either deceased or to the accused. Mere human blood belongs to "O" group found in the material objects connect to the accused in the crime in any manner. As such, FSL report and evidence of P.W.24 is no evidentiary value attached on the same.
100. The police recorded the statement of P.W.2 before the Magistrate under section 164 of Cr.P.C. According to the statement of P.W.2, he came to know that the accused had murdered the deceased by throwing hallow block brick on her head. The said fact came to his 75 S.C.No.1402/2017 knowledge since the accused met him on the next date of the incident. P.W.2 in his cross-examination admitted that one Santhosh informed to him that the accused had committed the murder of deceased Gajalakshmi. The statement under section 164 of Cr.P.C is marked as Ex.P.3, in that some portion is marked for the defence counsel as Ex.D.1. As per Ex.D.1, evidence of P.W.2 came to know that Syed Nadeem had murdered Gajalakshmi by throwing hallow block on her head. It shows that the evidence of P.W.2 is not an eyewitness and he is only hearsay witness and he stated that Santhosh informed him that the accused had committed murder of Gajalakshmi. But police have not cited as witness of Santhosh in the charge sheet. Apart from that P.W.2 admitted that he do not know the date when the accused asked to him Rs.20/-. Further stated that he was present at the time of the incident. He informed about the murder before the police Inspector on the same 76 S.C.No.1402/2017 day. P.W.23 clearly stated in the cross-examination that till 22.08.2017 i.e. till recording of his statement under section 164 of Cr.P.C., P.W.2 did not gave any statement before him. This version of P.W.2 and P.W.23 it clearly creates doubt about the statement of P.W.2 under section 164 of Cr.P.C. P.W.2 has given extra judicial confession statement before the Magistrate after 2-3 months of the incident. The delay of 2-3 months for recording statement under section 164 of Cr.P.C. is not properly explained by the prosecution.
101. The recovery of Ex.P.8 to Ex.P.11 cannot be considered and no evidentiary value can be attached the same. For the reasons police failed to produce the counter bill book and at least the head of the bill which remains in the bill book. Without producing the same only bills cannot be believable for the reasons that the manual bills and carbon copy of the bills can be created by any person in any time. Moreover P.W.13 issued 77 S.C.No.1402/2017 Ex.P.8 and Ex.P.11 and clearly admitted that there is a difference between the sign in Ex.P.8 and Ex.P.11 and other bills does not stands in the shop name and he is also clearly stated that usually he does not give the bill to the customers and even if the bills issued to the customers, the same will not be signed by them. As such, it is clear that Ex.P.8 and Ex.P.11 are not trustworthy. P.W.15 who issued Ex.P.9 and Ex.P.10, he has stated that in his cross-examination he do not know the contents of Ex.P.12 and he do not know the bill number and book number and he has clearly stated that the signature found on Ex.P.9 is not affixed by him. P.W.12 is the witness to the Ex.P.12. In his chief examination he clearly stated that police did not called him in any where and they had not done anything in his presence. However, later he identified Ex.P.10 bill which was produced by Metro Fashion shop. He also identified Ex.P.11 which was given by shoe shop. But in his cross- 78 S.C.No.1402/2017 examination stated that he do not know the book number and bill number of Ex.P.10 and Ex.P.11. Further admitted that he do not know the contents of Ex.P.12. As per the say of police he put the signature to Ex.P.12.
102. C.W.3 who is star witness in the charge sheet. According to the prosecution C.W.3 who saw the accused immediately after the incident. But the police have not secure C.W.3 and failed to examine C.W.3 before the court. As such non examination of the material witness is fatal to the case of the prosecution. By perusal of the evidence of P.W.11, P.W.12 and P.W.15 CCTV footages available in their shops and also CCTV footages near the Sulab Public Toilets but the Investigating officer failed to seize the CCTV footages. Hence, the non seizure of CCTV footage itself shows that the prosecution has failed to establish his case.Ex.P.8 to Ex.P.11 is also admitted by the Investigating officer and failed to recover the bill book of Ex.P.8 to Ex.P.11. Without bill book or counter bill it 79 S.C.No.1402/2017 cannot be said that those bills are seized on the date mentioned in Ex.P.8 to Ex.P.11. P.W.11, P.W.12 and P.W.15 are not the persons issued the bills and moreover the computer bill and GST bills available in the shop. Further the owners of those shops are not cited as witness to the charge sheet neither examined before the court. Hence, Ex.P.8 to Ex.P.11 are not genuine documents without producing the bill book and GST bill. P.W.23 has further stated that still arrest of the accused nobody expressed any doubt or suspicious against the accused including the family members of the deceased Gajalakshmi.
103. On perusal of the entire charge sheet and also the evidence of all the witnesses, it does not forth coming how the police apprehend the accused. Section 41(b) of Cr.P.C. clearly reads that "When police may arrest without warrant Section 41(b) against whom a reasonable complaint has been made or credible 80 S.C.No.1402/2017 information has been received or a reasonable suspicion exist that he has committed a cognizable offence. Hence, it is clear that in order to arrest any person in a cognizable offence police officer has to comply section 41(b) of Cr.P.C. In this case P.W.23 deposed that nobody expressed any kind of doubt against the accused till his arrest. It is apparently clear that the arrest of the accused is without any base and against the provision of section 41(b) of Cr.P.C.The entire case is depends on the circumstantial evidence. But there is no chain link from the evidence of one witness to other witness. In this case there is no eyewitness. Nobody seen the murder of deceased Gajalakshmi and there is a gap of chain link from one witness to other witness. Therefore, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
104. Recovery of mahazar witnesses not supported the prosecution and there is no chain link to prove the 81 S.C.No.1402/2017 circumstantial evidence. PW2 has given the statement U.sec.164 Cr.P.C. before the Magistrate after laps of 2-3 months of this incident. Police have not recorded his statement U.sec.161 Cr.P.C. Therefore, it shows that it creates some doubts. PW2 has stated that Santhosh informed to him that accused committed the murder of Gajalakshmi but Santhosh name has not cited as a witness in the charge sheet. PW6 is grand son of Gajalakshmi in his cross examination stated that Deepak informed to him that somebody committed the murder of Gajalakshmi. Police have cited the name of Deepak in the charge sheet. But police have not secured the Deepak to give evidence before the court. Except official witness, remaining witness are not the eye witness and in their cross examination given the vague answers. Therefore, evidence of PW1 to 13 and PW15 is not believable and not trust worthy. Any how it is the duty of the prosecution to bring home the guilt of the accused 82 S.C.No.1402/2017 beyond reasonable doubt by placing cogent, convincing and sufficient material on record to connect the accused. But in this case there is no sufficient materials are available to connect the accused. By perusing the evidence placed on record and over all assessment of the same, I hold that the prosecution has failed to prove the charges leveled against the accused beyond reasonable doubt. Hence, I answer point Nos.2 and 3 in the Negative.
105. POINT NO.4:- In view of my findings on the above point No.1 to 3, I proceed to pass the following:-
ORDER Acting under section 235(1) of Cr.P.C, accused is hereby acquitted for the offences punishable under sections 396 and 302 of Indian Penal Code.83 S.C.No.1402/2017
The accused, who is in judicial custody is ordered to be set at liberty forthwith if he is not required in any other case. Intimate the jail authorities accordingly.
M.O.5, M.O.10 and M.O.11 are
confiscated to the state and M.O.1 to 4
and M.O.6 to M.O.9 and M.O.12 to
M.O.16 being worthless are ordered to be destroyed after the appeal period is over. (Dictated to the Judgment Writer, transcribed by her and then corrected, signed and pronounced by me in the open court on this the 5th day of May 2021) (G.L.Lakshminarayana) LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION: 84 S.C.No.1402/2017
P.W.1 Kala
P.W.2 Munna
P.W.3 Amzad Khan
P.W.4 Chinnaswamy
P.W.5 Shwetha
P.W.6 Vijay
P.W.7 Madamma
P.W.8 Jameel
P.W.9 R.Tamil Selvam
P.W.10 Shafi
P.W.11 Avinash
P.W.12 Kiran
P.W.13 Thowshik
P.W.14 Shivakumar
P.W.15 Saheel
P.W.16 Somanna
P.W.17 Keshavamurthy Naik
P.W.18 Beerappa
P.W.19 Mahadeva Nayak
P.W.20 Sharanappa Onageri
P.W.21 Puttaswamy
P.W.22 Dr.G.Babu Rao
P.W.23 T.Chaluve Gowda
P.W.24 Dr.Chandrashekar
85 S.C.No.1402/2017
2. LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 Complaint
Ex.P.1(a & b) Signatures
Ex.P.2 Mahazar
Ex.P.3 Statement
Ex.P.3(a) Signature
Ex.P.4 Photo
Ex.P.5 Inquest report
Ex.P.6 Seizure mahazar
Ex.P.6(a) Signature
Ex.P.7 Seizure mahazr
Ex.P.7(a) Signatures
Ex.P.8 to11 Cash bills
Ex.P.12 Mahazar
Ex.P.12(a to c) Signatures
Ex.P.13 Report of P.W.12
Ex.P.13(a) Signature
Ex.P.14 to 16 Photographs
Ex.P.17 F.I.R
Ex.P.18 Police report
Ex.P.18(a) Signature
Ex.P.19 FSL acknowledgement
Ex.P.20 Sketch
86 S.C.No.1402/2017
Ex.P.20(a) Signature
Ex.P.21 Letter
Ex.P.22 Request letter
Ex.P.23 P.M.Report
Ex.P.23(a) Signature
Ex.P.24 FSL report
Ex.P.24(a) Signature
Ex,P.25 Sample seal
Ex.P.26 Statement of accused
Ex.P.27 Statement of Deepak
Ex.P.27(a) Signature
3. LIST OF WITNESSES EXAMINED & DOCUMENTS EXHIBITED FOR ACCUSED:
- NIL -
4. LIST OF MATERIAL OBJECTS PRODUCED AND GOT MARKED FOR PROSECUTION:
M.O.1 Hallow block brick M.O.2 Slipper M.O.3 Cotton M.O.4 Cotton with blood M.O.5 Bore M.O.6 Jeans pant 87 S.C.No.1402/2017 M.O.7 Shirt M.O.8 Cloth bag M.O.9 Banian M.O.10 Rs.500/- 2 currency notes M.O.11 Rs.100/- 1 currency note M.O.12 Brown colour sweater M.O.13 Red grey pink colour saree M.O.14 Peticot M.O.15 Blue colour blouse M.O.16 rosary with blouse blouse (G.L.Lakshminarayana) LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY. 88 S.C.No.1402/2017 Judgment pronounced in the Open Court (vide separately) ORDER Acting under section 235(1) of
Cr.P.C, accused is hereby acquitted for the offences punishable under sections 396 and 302 of Indian Penal Code.
The accused, who is in judicial custody is ordered to be set at liberty forthwith if he is not required in any other case. Intimate the jail authorities accordingly.
M.O.5, M.O.10 and M.O.11 are confiscated to the state and M.O.1 to 4 and M.O.6 to M.O.9 and M.O.12 to
M.O.16 being worthless are ordered to be destroyed after the appeal period is over.
(G.L.Lakshminarayana) LVIII ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH-59) BENGALURU CITY.
89 S.C.No.1402/2017