Bangalore District Court
State By:Policeinspector vs Kumara on 8 May, 2015
IN THE COURT OF LXV ADDL CITY CIVIL AND
SESSIONS JUDGE; BANGALORE CITY
CCH.NO 66
PRESENT
SRI.N.R.CHENNAKESHAVA B.A.,LL.B.,
LXV ADDL CITY CIVIL & SESSIONS JUDGE,
Bengaluru
DATED THIS THE 8th DAY, MAY, 2015
S C No. 1018/2013
COMPLAINANT: State By:PoliceInspector,Chamarajpet
Police Station, Bengaluru:
(Reptd by Public Prosecutor.)
/ Vs /
ACCUSED:
1. Kumara, S/o. Ramachandrappa,
Aged 27 years, 2nd main, 1st cross,
Bapujinagar, Bangalore.
2. Shivaraj S/o Marappa, Aged 24
years, R/at No.520, 3rd Main, 9th
Cross, Bapuji Nagar, Maruthi Nagar,
Bangalore.
3. Ravi S/o Karigowda, Aged 24
years, R/at Venagra Village,
Halebeedu Post, Pandavapura Taluk,
Mandya District.
4. Lokesh S/o Govinda Shetty, Aged
21 years, R/at No.520, 3rd Main, 9th
Cross, Maruthi Nagar, Bangalore.
2 S.C. 1018/2013
5. Bore Gowda @ Shrikanth @ Pooje
Gowda @ Poje S/o Narasimha
Murthy, Aged 21 years, R/at No.41,
2nd Cross, 1st Main, Sriganda Kaval,
Annapurneshwari Nagar, Bangalore.
(A1 to A4 are in judicial custody)
(A5 is on bail)
(By Sri.C.K.M.Adv for A1)
(By Sri N.N. Adv for A2 and A3)
(By Sri M.T.A. Adv for A4 and A5
Date of Commission 08.04.2013
of offence
Date of report of 08.04.2013
offence
Name of Sri Kumara
complainant
Date of recording of 12.6.2014
evidence
Date of closing of 24.01.2015
evidence
Offence complained U/s. 143, 148, 341, 448 and 302
of r/w 149 of IPC
Opinion of the judge Acquittal
*****
JUDGMENT
Police Inspector, Chamarajpet P.S., Bengaluru, has filed this charge sheet against A1 to A5, of the offences U/s. 143, 148, 341, 448 and 302 r/w 149 of IPC.
2. Brief facts of prosecution case are as follows: 3 S.C. 1018/2013
Deceased Manja @ Yelaniru Manja @ Manjunatha, was carrying on money lending business and he was being assisted by A1. Since A1 misappropriated money belongs to Manja, on 06.04.2013 he abused and assaulted A1 from the hands and hence A1 in order to take revenge, hatched a plan with rest of the accused, to kill Manja and in this regard on 8.4.2013 at about 6.00 p.m. at 9th Cross, 4th Main, in front of D.No.138, within the limits of Chamarajapet P.S., A1 to A5 with their common object to murder Manja, have formed an unlawful assembly, by holding with deadly weapons like long chopper, dagger and pepper spray container and at that juncture deceased Manja approached there in Motor cycle bearing Reg.No.KA-
01-ET-7878 and by that time A1 to A5 rushed there in Auto-Rickshaw bearing reg. No.KA-05-A-4653 and A3 being the driver of said Auto-rickshaw, intentionally dashed against the motor cycle of deceased and as a result, he fell down from the motor cycle and by that time A1 assaulted the deceased, beating by means of long chopper and hence, deceased tried to save his life, ran away towards 9th cross 4 S.C. 1018/2013 and entered into the house of CW2 S.V.Devaprasad and closed the door. However, A5 Boregowda sprinkled the pepper spray on the face of deceased and hence he tried to hide in the room. However A1 to A5 by trespassing into the house, A1 and A2 assaulted the deceased on his head and face, beating by means of long chopper, A3 and A4 stabbed the stomach, face, chest and left shoulder by means dagger and as a result deceased Manja succumbed to injuries and thereby A1 to A5 have committed the alleged offences.
3. After filing charge sheet, committal court took cognizance of the offences U/Sec. 143, 148, 341, 448 and 302 r/w 149 of IPC and then committed the case to Sessions. Committal court, has complied the provisions of Sec.207 and 209 of Cr.P.C. Upon receipt of committal records, case is registered as S.C.No.1018/2013 and then the case has been made over to this court for disposal, in accordance with law. A1 to A4 are in judicial custody. A5 is on bail. After hearing from both sides, this Court has framed charges against A1 to A5, of the offences P/U/Sec. 5 S.C. 1018/2013 143, 148, 341, 448 and 302 r/w 149 of IPC. A1 to A5 pleaded not guilty of the charges leveled against them and they claim to be tried. Hence the case has been posted for trial. Prosecution in all examined 26 witnesses as PW1 to PW26, got exhibited 66 documents at Ex.P.1 to Ex.P.66, got identified M.O.1 to M.O.22.
4. Heard argument from both sides.
5. Now the points that arise for my consideration are:
1. Whether the prosecution beyond all reasonable doubt proves that the death of deceased Manjunatha was homicidal death?
2. Whether the prosecution beyond all reasonable doubt proves that on 6.4.2013 within the limits of Chamarajpet PS, at 9th cross, 4th Main, infront of D.No.138, while deceased Manja approached in motorcycle bearing Reg.No.KA-
01-ET-7878, A1 to A5 holding with deadly weapons like long chopper, daggers and possessed with pepper spray, with common object to kill the deceased, have formed an unlawful assembly and thereby A1 to A5 committed an offence p/u/Sec.143 of IPC.
6 S.C. 1018/2013
3. Whether the prosecution beyond all reasonable doubt proves that on the above said date, time and place A1 to A5 being the members of unlawful assembly, in prosecution of their common object of killing the deceased, have committed rioting, by holding with deadly weapons like long chopper, daggers, pepper spray and thereby A1 to A5 committed an offence p/u/Sec.148 of IPC.
4. Whether the prosecution beyond all reasonable doubt proves that on the above said date, time and place, A1 to A5 being the members of unlawful assembly, holding with deadly weapons like long chopper, daggers and possessed with pepper spray, in prosecution of their common object to kill the deceased and while deceased Manja approached there from the opposite side on his motorcycle bearing Reg.No.KA-01-ET-
7878, A1 to A5 by approaching in Autorickshaw bearing Reg.No.KA-05-A4653
and A3 being its driver dashed the said motorcycle and A1 to A5 voluntarily obstructed the deceased Manjunatha and thereby A1 to A5 committed an offence p/u/Sec.341 r/w 149 of IPC.
7 S.C. 1018/2013
5. Whether the prosecution beyond all reasonable doubt proves that on the above said date, time and place, A1 to A5 being the members of unlawful assembly, in prosecution of their common object, holding with deadly weapons and pepper spray, after voluntarily obstructing the deceased and when he tried to take shelter in the house bearing Reg.No.138 belongs to PW1 S.V.Deviprasad, A5 by spraying pepper spray on the face of deceased, opened the door of the said house and trespassed into the said house and thereby A1 to A5 committed an offence p/u/Sec.448 r/w 149 of IPC.
6. Whether the prosecution beyond all reasonable doubt proves that on the above said date, time and place, A1 to A5 being the members of unlawful assembly, in prosecution of their common object to kill the deceased, while deceased took shelter in the said house, A1 to A5 by trespassing into the said house, A5 sprayed the paper spray on the face of deceased, A1 and A2 assaulted on the head and forearm by means of long chopper, A3 and A4 stabbed on his chest and face by means of daggers, have caused his death and thereby 8 S.C. 1018/2013 A1 to A5 committed an offence p/u/Sec. 302 r/w Sec. 149 of IPC?
7. What Order ?
6. My answer to 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 : In the Negative POINT NO.5 : In the Negative POINT NO.6 : In the Negative POINT NO.7 : As per final order for the Following:
REASONS
7. POINT NOs.1 : It is the specific case of prosecution that deceased Manjunatha's death is a homicidal death, as A1 to A5 murdered him on 8.4.2013 at about 6.00pm in D.No.138, 9th Cross, 4th Main, Chamarajpet, within the limits of Chamarajept PS. To prove that the death of deceased was homicidal, prosecution relied upon Ex.P.5 i.e. Inquest proceedings and P.M.Report at Ex.P.34, evidence of PW4 Suresh and PW9 Naveen Kumar, PW26 Shivamalavaiah PI, the I.O and PW19 9 S.C. 1018/2013 Dr.Indira L Asangi. Inquest Mahazar at Ex.P.5 disclose that PW26 being the I.O. has conducted inquest on the dead body on 9.4.2013 and at column No.7 of Ex.P5, PW26 mentions description of injuries found over the dead body as follows:
1) Chop wound measuring 2 x 5 cm found over the left portion of partial region, wherein presence of brain came out from skull.
2) Chop wound measuring 1 x 7 cm found over the right portion of head.
3) Chop wound measuring 1 x 5 cm found over the right portion of cheek.
4) Chop wound measuring 1 x 3 cm found over the left portion of lip.
5) Incised wound measuring ¼ x 1 ½ cm found over the left portion of chin
6) Incised wound measuring ½ x 3 cm found over the left portion of neck.
7) Stab wound measuring 1 x 3 cm found over the right forearm.
8) Stab wound measuring 1 x 2 cm found over the right forearm.
9) Stab wound measuring 1 x 2 ½ cm found over the right forearm.10 S.C. 1018/2013
10) Two Stab wound found over the right portion of chest.
11) Two Stab wound found over the left portion of chest.
12) Four Stab wound found over the below portion of chest.
13) Stab wound measuring ½ x 1 cm found over the left thigh and below the same ½ x ½ cm injury.
14) Two abrasion injury found over the left knee.
8. PW4 Suresh and PW9 Naveen Kumar; the attestors to Ex.P.5, depose that they do not know the contents of Ex.P.5. PW4 deposes that he do not know that at which place Ex.P.5 has been drawn by the I.O. PW9 deposes that while police were handing over the dead body of deceased, they took his signature at Ex.P.5. Since PW4 and PW5 not supported the prosecution case as far as drawing up of Ex.P.5 in their presence, they are subjected to cross examination by the prosecution, after treating them as hostile witnesses. In spite of it, nothing much contrary elicited from their mouth to hold that in their presence PW26, has conducted inquest mahazar at Ex.P.5. 11 S.C. 1018/2013 PW26 deposes that on 9.4.2013 he conducted inquest mahazar in the mortuary of Victoria Hospital and before that he caused notice at Ex.P.4 to PW4 and PW9. Evidence of PW26 disclose that he has conducted Ex.P.5 on the dead body of deceased, at the mortuary of Victoria Hospital. That apart, in his cross examination, nothing much contrary elicited to disbelieve his evidence. More so, it is not at all suggested to PW26, that he has not conducted Ex.P.5 on the dead body of deceased on the mortuary of Victoria Hospital. In my view, assuming that PW4 and PW9 the attestors to Ex.P.5 have not supported the case of prosecution as far as conducting of inquest by PW26 at mortuary of Victoria Hospital, at the same time very evidence of PW26, clearly establishes that, he conducted Ex.P5 at mortuary of Victoria Hospital. Hence, I hold that prosecution has proved that PW26 has conducted inquest mahazar at Ex.P.5 on the dead body of deceased, at the mortuary of Victoria Hospital.
12 S.C. 1018/2013
9. PW19 Dr.Indira L Asangi, deposes that on 9.4.2013 she conducted P.M. on the dead body of deceased and during the course of P.M. she found following injures on the dead body:
1) Chop wound vertical measuring 9cmx2cmxskull cavity deep present over lateral aspect of right eyebrow extending upto right frontal region. Situated 9cms above right ear, upper end is sharp. lower end merged into injury No.(2) margins are clean cut.
2) Chop wound oblique measuring 7x2cmsxskull cavity deep present over right frontal region up to right parietal region starting from lower end of injury No.(1) situated 9cms above right ear margins are clean cut lower end is sharp.
3) Chop wound vertical measuring 4cmx1cmxskull cavity deep present over right side of forehead, joining injury No.(1) at its middle situated 1cm middle to injury No.1 margins are clear cut upper end is sharp.
4) Chop wound oblique measuring 7x2cmxskull cavity deep, exposing the underlying brain matter, present over left parietal region situated 4cm above left ear margins are clean cut, upper end is blunt and lower end is sharp.
5) Chop wound vertical measuring 12x2cmxskull cavity deep, exposing the underlying brain matter, present over left parietal region, situated 3cms below and lateral 13 S.C. 1018/2013 to the injury No.(4) margins are clean cut, upper end is blunt, lower end is sharp.
6) Chop wound oblique measuring 12x2cmxskull cavity deep exposing underlying brain matter present over left partial region, situated 7cms below and lateral to injury No.(5) and joins injury No.(5) at its middle.
7) Chop wound oblique measuring 7x2cmxbone deep present over left angle of mandible (left side of chin) situated 5cms lateral and below left angle of mouth, upper end is sharp and lower end is blunt. Margins clean cut underlying bone is cut.
8) Chop wound, vertical, measuring 3x0.5cmxbone deep underlying bone cut present over top of head, situated 5cms above the hair line, margins clean cut upper end is blunt and lower end is sharp.
9) Chop wound. transverse, measuring 12cmx2cm x bone deep, present over right cheek extending upto lower third of right ear, cutting the right lobule at its lower third margins clean cut medial end is blunt and lateral end is sharp.
10) Incised wound vertical measuring 3x0.5cmx muscle deep present over right side of chin, situated 3cms below right angle of mouth, upper end sharp and lower end is blunt margins clean cut.
11) Abrasion, measuring 1x0.2cm present over root of nose 14 S.C. 1018/2013
12) Abrasion measuring 1x0.5cms present over right ala of nose.
13) Linear abrasion measuring 5x0.3 cms present over right arm at its upper third over outer aspect.
14) Linear abrasion measuring 6x1cms present over upper third of right arm at its posterior part.
15) Chop wound oblique, measuring 4x3cmx bone deep present over outer aspect of upper third of right forearm situated 6cms anterior to right elbow joint. Margins clean cut upper end is blunt and lower end is sharp.
16) Chop wound oblique, measuring 7cmx4cmx muscle deep, present over front of right fore arm at its upper third, situated 5cms below injury No.(15), Margins clean cut upper end is blunt and lower end sharp.
17) Chop wound oblique, measuring 6x2cmx bone deep present over right elbow joint situated 7cms posterior to injury No.(15) underlying bone cut. Margins are clean cut, upper end sharp and lower end blunt.
18) Incised wound vertical measuring 4x0.5cmx muscle deep present over lower part of left side of neck, situated 8cms medial to left shoulder joint, Margins clean cut, upper end blunt and lower end is sharp.
19) Incised wound vertical measuring 3x0.5cmx muscle deep present over lower part of left side of neck, situated 0.5cms below injury No.(18), Margins clean cut upper end blunt and lower end is sharp.15 S.C. 1018/2013
20) Incised wound linear, measuring 2x0.5cmx subcutaneous deep, present over right side of chest at its upper part, situated 12cms below right, clavicle, Margins clean cut, upper end is blunt and lower end is sharp.
21) Incised wound transverse, measuring 2x0.5cmx subcutaneous deep present over upper part of right side of chest, situated 4cms medial to injury No.(20), medial end is sharp and lateral end is blunt margins regular.
22) Incised wound transverse, measuring 3x1cmx subcutaneous deep present over right side of chest at its front, situated 13cms below injury No.(21), Margins clean cut, inner end is sharp and outer end is blunt.
23) Incised wound vertical measuring 1x0.5cmx subcutaneous deep present over front of middle of chest, situated 4cms medial to injury No.(22), margins clean cut, upper end blunt and lower end is sharp.
24) Incised wound, transverse, measuring 2x0.5cmx subcutaneous deep present over middle of chest, situated 5cms above injury No.(23), margins clean cut outer end is blunt and inner end is sharp.
25) Linear abrasion, measuring 2x0.5 cms present over left side of neck.
26) Abrasions 3 in number measuring 0.5x0.3cm and 1.5cmx0.5cm and 0.7cmx 0.2 cm respectively, situated 1cm apart parallel to each other present over left side of upper part of chest, lateral to injury No.(18).16 S.C. 1018/2013
27) Incised wound, transverse, measuring 1x0.5cmx muscle deep present over left side of abdomen at its front, situated 10cms lateral to umbilicus, margins clean cut, outer end is blunt and inner end is sharp.
28) Incised wound oblique, measuring 2x1cmx subcutaneous deep present over front of middle third of left thigh, situated 15cms above left knee joint, Margins clean cut upper end is sharp and lower end blunt.
29) Abrasion measuring 0.5x0.3cms present over front of upper third of left leg.
30) Abrasion measuring 2x1cms present over front of lower third of left leg.
31) Stab wound, vertical, measuring 0.5x0.3cmsx muscle deep, present over front of upper part of right thigh, situated 10cms medial to right Anterior superior iliac spine, margins clean cut, upper end is blunt and lower end is sharp.
32) Linear abrasion, measuring 1cmx0.5cm present over front of upper part of right thigh.
10. PW19 deposes that on further dissection on injury No.1, 2 and 3 shows, cut fracture of right anterior cranial fossa right tempora-parietal bone for a length of 15 cms. Bone surrounding cut fracture broken into multiple pieces. On further dissection of injury No.4 and 5 shows 17 S.C. 1018/2013 cut fracture of left tempora parital bone for and length of 10cms. Bone surrounding cut fracture broken into multiple pieces. On further dissection of injury No.8 shows cut fracture of frontal bone for a length of 6cms. Fracture ends show extravasations of blood. Membrane Lacerated irregularly. Brain shows diffused sub-dural and sub- arrachnoid Hemorrhaged. All other internal organs are intact and pale. Abrasions are bright red in colour. She deposes that all injuries found on the dead body are fresh and ante mortem in nature. PW19 opines that cause of death is due to shock and hemorrhage as a result of multiple chop injuries sustained and in this regard she issued PM report at Ex.P.34. PW19 also deposes that external injuries No.1 to 9, 15 to 17 like wife internal injuries found over the dead body of deceased could be caused by means of assaulting with M.O.1, M.O.2, M.O.7 and M.O.14. PW19 further opines that injury No.31 and lacerated chop wound No10, 18 to 24, 27 and 28 could be caused by means of chopper and dagger. PW19 further deposes that abrasion injuries like injury Nos.14, 25, 26, 18 S.C. 1018/2013 29, 30 and 32 could be caused assaulting by means of M.O.1, 2, 7 and 14. PW19 in her cross examination admits the suggestion that she has not received any requisition from the I.O. about conducting of P.M. of deceased. She also admits the suggestion that HOD Forensic Medicine has not authorized her in writing to conduct P.M. on the dead body. She also admits the suggestion that during the year 2013, Dr.P.K.Devadas was HOD Forensic Medicine, Victoria Hospital. PW19 in her cross examination deposes that from 2011 - 2013, she served as a tutor at Victoria Hospital and till today she has conducted more than 1000 post mortem examination. She admits the suggestion that injury No.10, 14, 25, 26, 29, 30 and 32 could be caused when a person falls on rough surface. PW19 denies the suggestion that at Ex.P.34 she has not mentioned the shape of injury No.1 to 9, 10, 15 to 17 to 24, 27 and 28. She admits the suggestion that opinion can be given shape of chop wound and lacerated wound. PW19 also admits the suggestion that she had no difficulty to explain the shape of injuries at Ex.P34, however, PW19 voluntarily deposes that since there 19 S.C. 1018/2013 are several injuries found over the dead body, it is not necessary to explain all those injuries caused by which of the weapons. That apart, she also opines at Ex.P.34, that all the injuries were caused by means of M.O.1, M.O.2, M.O.7 and M.O.14. PW19 denies the suggestion that since she is serving as Tutor, she has no experience to conduct P.M. over the dead body.
11. I have carefully gone through Ex.P5, Ex.P34 and also evidence of PW4, PW9, PW19 and PW26, which clearly disclose that the death of deceased Manjunatha is a homicidal death. More so, PW19 clearly opines at Ex.P.34 that the cause of death of deceased was only due to shock and hemorrhage as a result of multiple chop injuries sustained. In my view, very opinion given by PW19 at Ex.P.34, which cannot be discarded at all, since PW19 after conducting P.M., has explained about all the injuries found over the dead body of deceased and more so, PW19 clearly in deposes that those injuries could be caused, assaulting by means of M.O.1, M.O.2, M.O.4 and M.O.14. In my 20 S.C. 1018/2013 considered view, in the light of injuries found over the dead body of deceased, certainly his death does not appears to be natural one. Hence, on the basis of Ex.P5 and Ex.P34, coupled with the evidence of PW19, I hold that, the death of Manjunatha is a homicidal death and not a natural one.
12. Point No.2 to 5: Since these points interconnected with each other, for the sake of convenience, I would like to take down these points together for discussion and answer.
13. Entire case of Prosecution based on direct evidence as well as circumstantial evidence relating to recovery of weapons and Vehicle at the instance of A1 to A5, which they used for commission of the offences alleged.
14. It is the specific case of prosecution that, deceased Manjaunatha was carrying on money lending business and he was being assisted by A1 Kumara. However, A1 had misappropriated the money belongs to deceased and hence on 6.4.2013 deceased assaulted A1 21 S.C. 1018/2013 and hence, he developed enmity with the deceased and hatched a plan with A2 to A5 to murder him and hence, to achieve their evil design, on 8.4.2013 at about 6.00pm, holding with deadly weapons like long chopper, daggers and paper spray container, they formed unlawful assembly in front of D.No.138, at 9th Cross, 4th main within the limits of Chamarajpet PS and at that juncture deceased approached there in his motorcycle bearing Reg.No.KA-01-ET-7878 and by that time A1 to A5 being the members of unlawful assembly, approached there in Auto rickshaw bearing No.KA-05-A-4653 and they intentionally caused the said Auto-rickshaw to dash against said motorcycle and as a result the deceased fell down from the motorcycle and by that time, deceased to save his life, ran inside the house of PW1 S.V.Deviprasad and at that juncture deceased tried to close the door and at that juncture A5 Boregowda sprayed pepper on the face of deceased and hence, he tried to hide out in another room and at that time, A1 to A5 by trespassing the house, A1 and A2 chopped the person deceased by means of M.O.1 and M.O.14. A3 and A4 22 S.C. 1018/2013 stabbed the person of deceased by means of M.O.2, M.O.7 and as result he succumbed to the injuries.
15. It is the case of prosecution that, at first alleged incident took place in front of the house bearing No.138, 4th Cross, 9th Main, Chamarajpet, within the limits of Chamarajpet PS, while deceased was approaching in his motorcycle bearing Reg.No.KA-01-ET-7178 and then the incident shifted inside the said house, since the deceased to save his life, had entered into the said house, to hide in the room. However, A1 to A5 by trespassing the house, have caused grievous injuries on the person of deceased, assaulting him by means of M.O.1, M.O.2, M.O.7 and M.O.14. To prove the scene of offence, prosecution has relied upon Ex.P.6 i.e. spot mahazar and evidence of PW4 Suresh and PW26 who are attestor and I.O respectively. PW4 Suresh deposes that he affixed his signature at Ex.P.6, at Victoria Hospital and he do not know at which place police have drawn Ex.P.6, since he was not present at the time of drawing of Ex.P.6. That apart, PW4 categorically 23 S.C. 1018/2013 deposes that I.O. has not examined the spot and drawn the mahazar and more so, no material objects seized from the alleged spot in his presence. Since PW4 has not whispered anything about drawing up of Ex.P.6 by the I.O. at the scene of offence, prosecution has subjected PW4 into cross examination, after treating him as hostile witness. Inspite of it nothing much contrary elicited from his mouth to hold that he deposes falsely before the court. It is also the case of prosecution that under Ex.P.6, PW26, the I.O has also seized one bed-sheet, towel, collected blood stains sample and motorcycle bearing Reg.No.KA-01-ET-7178. PW26 deposes that he has drawn Ex.P.6 at the scene of offence in the presence of PW4 Suresh and CW13 Keshavamurthy. That apart, PW26 deposes that he also seized M.O.15, M.O.17 and M.O.18 i.e. sample of blood stains at the spot, bloodstained bed sheet and towel respectively. That apart, to evidence the seizure of motorcycle bearing Reg.No.KA-01-ET-7178 under Ex.P.6, PW26 identifies photos at Ex.P.62 and Ex.P.63 pertains to the said motorcycle. It is also pertinent to note that to 24 S.C. 1018/2013 prove the scene of offence, prosecution also relies Ex.P.21 and evidence of PW13 K.B.Jayakumar, Asst. Engineer, who drawn Ex.p.21, showing the location of scene of offence. I have perused the sketch at Ex.P.13. Evidence of PW13 discloses that he has drawn Ex.P.21 at the scene of offence. PW13 deposes that the scene of offence was identified by Siddaraju, PC 9646, Chamarajpet PS. In my view assuming that PW4 has not supported the case of prosecution with regard to drawing up of mahazar at Ex.P.6 at the scene of offence by PW26, at the same time evidence of PW26 disclose that he has drawn Ex.P.6 at the scene of offence. Ex.P.6, Ex.P.21, evidence of PW13 and PW26 disclose that the very incident took place inside the house No.138, of PW1 S.V.Devaprasad. Hence, I have no hesitation to hold that the alleged incident took place at the scene of offence as mentioned at Ex.P.6 and Ex.P.21. Therefore, I hold that prosecution has proved that the alleged incident took place as narrated at Ex.P.6 and Ex.P.21.
25 S.C. 1018/2013
16. It is the specific charges against A1 to A5 that, firstly they being the members of unlawful assembly, have formed unlawful assembly holding with deadly weapons, committed rioting, voluntarily obstructed the deceased, trespassed into the house of PW1 and then committed murdered deceased. Therefore, now the first and foremost point arise before the court is; whether A1 to A5 holding with deadly weapons have formed an unlawful assembly with their common object to murder he deceased Manjunatha. To connect A1 toA5, prosecution mainly relied upon evidence of PW1 to PW3, PW5 and PW6, who are stated to be the direct witnesses. However, PW1, PW2, PW3, PW5 and PW6 being so called eyewitnesses not whispered in their evidence that A1 to A5 holding with M.O.1, M.O.2, M.O.7 and M.O.14 formed unlawful assembly, have committed rioting, obstructed the deceased, trespassed into the house of PW1 and murdered the deceased, assaulting him by means of MO.1, 2, 7 & 14 ie. long chopper and daggers. Since PW1 to PW3, PW5 and PW6 not supported the case of prosecution, they are 26 S.C. 1018/2013 subjected cross examination, after treating them as hostile witnesses. In spite of it, nothing much contrary elicited from their mouth that they depose falsely before court. They also deny their previous statement at Ex.P1, Ex.P2, Ex.P3, Ex.P8 and Ex.P.9, said to have given by them before the I.O. These witnesses not whispered that A1 to A5 by holding with M.O.1, M.O.2, M.O.7 and M.O.14 along with M.O.8, have formed unlawful assembly. That apart, these witnesses not whispered in their evidence that accused holding with deadly weapons have committed rioting, voluntarily obstructed the deceased while he was approaching in his motorcycle bearing Reg.No.KA-01-ET- 7878. More so these prime witnesses not depose before the court that A1 to A5 have trespassed the house of PW1 Devaprasad and then they murdered the deceased, assaulting him by means of MO.1, 2, 7 & 14.
17. It is pertinent to note that though PW7 Padma the mother of deceased, is a circumstantial witness. PW12 Praveen being the circumstantial witness, has turned 27 S.C. 1018/2013 hostile. He also disputes his previous statement at Ex.P19 said to have given by him before I.O. To connect the guilt of A1 to A5, prosecution has relied evidence of PW1 to PW3, PW5 and PW7. However, these witnesses not whispered any iota of evidence to hold that the A1 to A5 holding with M.O.1, M.O.2, M.O.7 and M.O.14 formed unlawful assembly, voluntarily obstructed the deceased, committed rioting, unlawfully trespassed into the house of PW1. Therefore, it cannot be held that A1 to A5 committed the offences p/u/Sec.143, 148, 341 and 448 r/w 149 of IPC.
18. According to prosecution, A1 to A4 assaulted the deceased by means of M.O.1, M.O.2, M.O.7 and M.O.14 and at the material point of time A5 used MO.8, by spraying on the face of deceased and due to the injuries, he succumbed to injuries. It is important to note that PW1 to PW3, PW5 and PW6 being the direct witnesses not whispered any incriminating evidence as against A1 to A5 that they assaulted the deceased by means of M.O.1, M.O.2, M.O.7, M.0.8 and M.O.14 and murdered him. More so, though 28 S.C. 1018/2013 PW7, PW8 and PW12 being the circumstantial witnesses examined on behalf of prosecution, also not supported the case of prosecution. PW8 & PW12 contradict their previous statement at Ex.P.11 and Ex.P.19 respectively.
19. It is the case of prosecution that PW26 being I.O. has recovered M.O.2, M.O.7 and M.O.14 under Ex.P.13 and M.O.1 under Ex.P.23, based on the voluntary statement of A1 to A5. That apart PW26 has seized Honda Activa Scooter bearing Reg.No.KA-01-EL-9995 under Ex.P.12 in the presence of PW10 Sandeep and PW16 Chethan. However, PW10 and PW16 have not supported the case of prosecution as far as alleged recovery of said scooter under Ex.P.12. PW10 and PW16 depose that I.O. has obtained their signature at Ex.P.12 at Chamarajpet Police station and in their presence I.O has not seized any material objects.
20. It is also the case of prosecution that at on the same day at the instance of A1 Kumar and A4 Lokesh, I.O has seized long chopper and dagger at M.O. 2 and M.O.7 in the presence of PW10 and PW16. However PW10 and 29 S.C. 1018/2013 PW16 have not whispered in their evidence that themselves and I.O. were led by A1 and A4 to the alleged place of recovery and A1 and A4 produced long chopper and dagger at M.O.2 and M.O.7 and accordingly, I.O has seized M.O.2 and M.O.7 under Ex.P.13. Suffice it to say, since PW10 and PW16 not supported the case of prosecution, they are subjected to cross examination by the prosecution, after treating them hostile witnesses. In spite of it nothing much contrary elicited from their mouth to hold that they depose falsely. They also deny their previous statement at Ex.P.15 and Ex.P.25 respectively, said to have been given by them before I.O. PW26 the I.O deposes that he recovered M.O.2 and M.O.3 under Ex.P.13 in the presence of PW10 and PW16. I have already discussed about the evidence of PW26, as far as alleged recovery of M.O.2 and M.O.7 is concerned. However very evidence of PW26, is not corroborated by the evidence of PW10 and PW16. Therefore, in my view, it is not at all safe to hold that PW26 alleged to have been seized M.O.2 and M.O.7 under Ex.P.13 in the presence of PW10 and PW16. Added to this, PW10 30 S.C. 1018/2013 and PW16 depose that Ex.P13 drawn by the I.O. at Chamarajpet Police station.
21. Further it is the case of prosecution that M.O.8 and M.O.10 i.e. pepper spray container and dagger were seized by PW26 under Ex.P.16, in the presence of PW11 Raju and CW18 Sandeep. On going through evidence of PW26, it appears that on the basis of so called voluntary statement of A5, he led PW26 and panchas PW11 and CW18 to the alleged place of recovery i.e. near Public Library near by Vijayanagara bus stand and at that juncture, A5 has produced MO.8 and Auto rickshaw bearing Reg.No.KA-05-A-4653, which were alleged to have been used by A1 to A5, in committing the alleged offences. Hence, PW26 has recovered M.O.8 and M.O.14 under Ex.P.16 in the presence of PW11 and CW18. It is important to note that, evidence of PW11 do not disclose that himself, CW18 and I.O were led by A5 to the alleged place of recovery as narrated at Ex.P.16. On the other hand, PW11 deposes that Ex.P.16 has been drawn by PW26 at 31 S.C. 1018/2013 Chamarajpet P.S. and at that juncture he affixed his signature at Ex.P.16. Since PW11 has not supported the case of prosecution, as far as alleged recovery of Auto- rickshaw and M.O.8 and M.O.14, he is subjected to cross examination by the prosecution, after treating him hostile witness. In spite of it nothing much elicited from his mouth hold that PW26 has seized M.O.8 and M.O.14 under Ex.P.16 in their presence, the basis of voluntary statement of A5 at Ex.P.64. It is important to note that very evidence of PW26, that he alleged to have been recovered M.O.8 and M.O.14 as well as Auto-rickshaw bearing Reg.No.KA-05-A-4653 under Ex.P.16, is not corroborated by the evidence of PW11 who is stated to be an attestor to Ex.p.16. Therefore, on the sole testimony of PW26 itself, that too very evidence of PW26 is not corroborated by the evidence of PW11, certainly it is not at all safe to hold that PW26 alleged to have been recovered M.O.8 and M.O.14 along with Auto- rickshaw bearing Reg.No.KA-05-A-4653 under Ex.P.16. Hence, I hold that prosecution has failed to prove the 32 S.C. 1018/2013 alleged recovery of M.O.8 and M.O.14 under Ex.P16 on the basis of so called voluntary statement of A5 at Ex.P.64.
22. According to the prosecution, under Ex.P.23, M.O.1 has been recovered by PW26 in the presence of PW14 Shivakumar and PW15 Manu. However, PW14 and PW15 being the attestors to Ex.P.23, both turned hostile. PW14 and PW15 depose that they affixed their signature at Ex.P.23 at Chamarajpet Police Station. That apart PW14 & PW15 also dispute the presence of A2 Shivaraj with the I.O. at Chamarajpet Police station. PW14 and PW15 depose that they do not know the contents of Ex.P.23 and in their presence M.O.1 has not been seized by PW26. Since PW14 and PW15 not supported the case of prosecution as per as alleged recovery of MO.1 under Ex.P.23, they are subjected to cross examination, after treating them as hostile witnesses. In spite of it nothing much contrary elicited from their mouth hold that they depose falsely before the court. Though it is the case of prosecution that M.O.1 has been seized under Ex.P.23 from the alleged possession of 33 S.C. 1018/2013 A2 Shivaraj, at the same time as far as recovery of M.O.1 from the alleged possession of A2, the very evidence of PW26 is not corroborated by the evidence of PW14 and PW15, hence, under such circumstances, it is not at all safe to hold that PW26 said to have been seized M.o.1 under Ex.P.23. Therefore, I hold that prosecution has failed to prove the alleged recovery of M.O.1 under Ex.P.23 in the presence of PW14 and PW15.
23. According to prosecution, A1 and A4 after committing the alleged offences, have purchased 2 trousers and one T Shirt at M.O.3 and M.O.4 from the shop of PW8 Vijay Palve and the same has been seized by PW 26 under Ex.P.10. However, PW8 Vijay Palve, proprietor of Sri New Fashion, Magadi Road, Bangalore, deposes that for the first time he identifies M.O.3 and M.O.4. PW8 also deposes that earlier he has not seen A1 and A4. Though PW8 admits about the purchase of 2 trousers and T Shirt from his shop on 8.4.2013, at the same time, he deposes that he cannot say MO 3 & MO4 were purchased by A1 and A4. Since PW8 34 S.C. 1018/2013 has not supported the prosecution case, he is subjected to cross examination by the prosecution, after treating him hostile witness. In spite of it, nothing much contrary elicited from his mouth to hold that he deposes falsely before the court. Suffice it to say PW8 also disputes his previous statement at Ex.P.11 said to have been given by him before the I.O.
24. It is the case of prosecution that A1 to A5 murdered deceased Manjunatha, assaulting him by means of M.O.1, M.O.2, M.O.7 and M.O.14 and also by using M.O.8 pepper spray. I have already discussed above that the prosecution has failed to prove the alleged recovery of M.O.1, M.O.2, M.O.7, M.O.8 and M.O.14 at the alleged instance of A1 to A5 respectively. To connect A1 to A5 absolutely prosecution has not placed any direct or circumstantial evidence to hold that they have murdered deceased by means of M.O.1, M.O.2, M.O.7, M.O.8 and M.O.14 35 S.C. 1018/2013
25. In my view, in view of my above discussion, certainly, evidence of PW17 Ramesh and PW18 Muniraghavendra, are not much importance. PW18 deposes that he is the registered owner of Honda Activa bearing Reg. No.KA-01-EL-9995 and PW17 deposes that he has done the brokerage of the said scooter. He also deposes that PW8 Muniraghavendra purchased the said scooter from one Vinod Kumar under Delivery Note at Ex.P.26. However, PW17 deposes that at the material point of time A1 was not present there. PW17 and PW18 depose that they have not given statement before the I.O. Since PW17 and PW18 not supported the case of prosecution, they are subjected to cross examination by the prosecution, after treating them as hostile witnesses. In spite of it nothing much contrary elicited from their mouth to hold that they depose falsely.
26. PW20 S.Nagaraj, then ASI, Chamarajpet P.S., deposes about arrest of A2 and A3 along with long chopper. He deposes that has on the date of alleged incident, he was 36 S.C. 1018/2013 discharging duty in Hoysala-49. He also deposes that on the same day at about 6.00pm, CW28 Manjunatha, P.C.4630 telephoned CW27 Raghu PC8622 and asked him come near Ganesha Temple, 4th Main, Chamarajpet. Hence, himself and CW27 rushed there, wherein they found 2 assailants fleeing away at 4th Main and CW28 chasing them. PW20 further deposes that at the material point of time, he assisted CW27 in nabbing A2 and A3. He further deposes that later himself and CW27 have produced A2 & A3 before I.O at the police station along with long chopper by submitting report at Ex.P.41. PW20 deposes on 12.4.2013 at about 11.00am I.O summoned him and asked him to accompany A3 to Victoria Hospital for medical examination. Accordingly himself, CW27 and other two police personnel accompanied A3 to Victoria Hospital and produced him before medical officer and at that point of time Doctor collected blood samples from the person of A3 in a container and after medical examination, they produced A3 before I.O., along with report at Ex.P.42. 37 S.C. 1018/2013
27. On going through evidence of PW20, it appears that at the alleged place of nabbing of A2 and A3 as well as alleged recovery of long chopper at MO1 from A2 & A3 , no mahazar has been drawn by PW20. Suffice it say, evidence of PW20 discloses that the Doctor who said to have been collected blood sample from the person of A3, has not been cited as a witness. More so evidence of PW20 disclose that he has not obtained any leave from the court to collect blood samples of A3. Hence in my view, in view of evidence of prime witnesses, as I have already discussed above, the very evidence of PW20, is not much importance in connecting the guilt of A1 to A5. Therefore, I need not discuss much about the evidence of PW20.
28. PW21 T.Venkateshappa, PSI, deposes with regard to nabbing of A1, A4 and A5 on 9.4.2013 and 15.4.2013 respectively. In view of evidence of prime witnesses, as I have, already discussed above, whatever the evidence of PW21, is not much importance. Hence, I need not much discuss about the evidence of PW21. 38 S.C. 1018/2013
29. PW22 Shantharaju, PC-11972, deposes with regard to collecting of P.M. report of deceased Manjunatha from PW19. He also deposes with regard to production of seized articles i.e. M.O.1 to M.O.18 before FSL and after examination of those seized articles, he collected the same from FSL and produced before I.O and submitted report. Hence evidence of PW22 is not of much importance .
30. PW23 Vani.N., Scientific officer, FSL, Bengaluru, deposes with regard to giving opinion as to M.O.8, i.e. pepper spray container. PW23 deposes that on 19.4.2013 in connection with this case, she received requisition at Ex.P.49 from I.O along with M.O.8. PW23 also deposes that on 12.2.2014 she examined M.O.8 and issued report at Ex.P.50, wherein she opines about the presence of chilli powder constituents detected in M.O.8. She further opines that chilly powder extract produces burning sensation in contact with tissue. In the cross examination of PW23, nothing much contrary elicited from her mouth to disbelieve her evidence. The opinion given by PW23 at Ex.P.50, 39 S.C. 1018/2013 clearly disclose that in M.O.8 there was presence of brown colour liquid chilli powder extract and it produces burning sensation in contact with tissue. In my view evidence of PW23 which cannot easily discarded, since she is an expert. Hence I safely rely Ex.P.50, to come to the conclusion that M.O.8 contains with chilly powder extract and it produces burning sensation, when in contact with tissue.
31. PW24 Shahanaj Fathima, Scientific officer, FSL, Bengaluru, deposes with regard to examination of M.O.1 to M.O.7, M.O.9 to M.O.22 and issuance of report at Ex.P.52. in that regard. PW24 deposes that on 19.4.2013, she received requisition from I.O. along with item No.1 to 18 and after examination those items, she gave her opinion at Ex.P.52. In the cross examination of PW24, nothing much contrary elicited from her mouth, to disbelieve her evidence. Evidence of PW24 disclose that M.O.1 to M.O.7 and M.O.9 to 22 were scientifically examined by her. More so PW24 is an scientific expert. Hence, very evidence of PW24, cannot be discarded at all.
40 S.C. 1018/2013
32. PW25 Siddalingaiah, HC, deposes with regard to production of M.O.8 before FSL, Bangalore, by submitting requisition to examined the same. PW25 is formal witness. Hence, I need not discuss much about evidence of PW25.
33. PW26 Shivamallaiah, PI attached to Chamarajpet P.S., who is I.O., deposes about registering the case, conducting of investigation, arrest of A1 to A5, recovery of M.O.1 to M.O.22 and after completion of investigation, submission of final report before the court. Though PW26 deposes that after arrest A1 to A5, he interrogated them and then on the basis of their voluntary statement, he recovered M.O.1 to M.O.14., at the same time, this court has disbelieved his evidence that he has recovered M.O.1 to M.O.14, as narrated at respective mahazar. The every evidence of PW26, is not corroborated by the attestors to respective mahazar. In this regard, I have already discussed above. More importantly, PW1 to PW4, PW7, PW8 and PW12, who being prime witnesses, dispute their previous statement at Ex.P.1 to Ex.P3, Ex.P.8, Ex.P.9, Ex.P.11 and Ex.P.19 respectively said to have been given 41 S.C. 1018/2013 by them before PW26. Evidence of PW26 also disclose that he has not traced out that from which shop, A5 purchased M.O.8. Added to this, PW26 also failed to trace out the shop, from which place M.o.1, M.O.2, M.O.7 and M.O.14 were purchased by the accused. A1 to 5 also takes defense that PW26 being the I.O. in this case has planted M.O.1, M.O.2, M.O.7, M.O.8 and M.O.14 for the purpose of this case. As I have already come to the conclusion that, prosecution has failed to prove the alleged recovery of M.O.1, M.O.2, M.O.7, M.O.8 and M.O.14 under respective mahazar in the presence of attestors. Suffice it to say evidence on record clearly disclose that PW26 has not recovered M.O.1, M.O.2, M.O.7, M.O.8 and M.O.14 under respective mahazar on the basis of so called voluntary statement of respective accused. Hence I have no hesitation to hold that prosecution has failed to prove the alleged recovery of those material objects.
34. Evidence of PW26, discloses that as far as collecting of blood samples from the person of A3 Ravi, the doctor, who collected the blood sample from A3, was not at 42 S.C. 1018/2013 all cited as witness for the reasons best known to him. PW26 also admits the suggestion that he has not examined the shop keeper from whom M.O.1, M.O.2, M.O.7, M.O.8 and M.O.14 alleged to have been purchased by these accused.
35. Very case of prosecution is based upon direct evidence as well as circumstantial evidence. It is relevant note that, though prosecution examined eyewitnesses PW1 to PW3, PW6, they have not supported the case of prosecution, since these 4 witnesses have turned hostile. That apart they dispute their previous statement at Ex.P1 to Ex.P3 and Ex.P.9 respectively said to have given by them before I.O. That apart, circumstantial witnesses PW5, PW8 and PW12 have also not supported the case of prosecution. They also dispute their previous statement at Ex.P.8, Ex.P.11 and Ex.P.19 said to have been given by them before I.O. In my view, assuming that prosecution has examined PW7 Padma; mother of deceased, her evidence is not helpful to connect to guilt of A1 to A5, since she has not whispered any circumstances as against A1 to A5. 43 S.C. 1018/2013
36. As I have already come to the conclusion that prosecution has proved the scene of offence, death of deceased was homicidal and unnatural. Though it is the case of prosecution that A1 to A5 committed the murder of deceased Manjunatha, assaulting him by means of M.O.1, M.O.2, M.O.7, M.O.14 and also by using M.O.8, at the same time prosecution has failed to prove the very recovery of those material objects, by placing convincing and cogent evidence. As far as alleged recovery of M.O.1, M.O.2, M.O.7, M.0.8 and M.O.14, is concerned, very evidence of PW26, who being I.O. in this case, is not corroborated by the attestors of respective mahazar. A1 to A5 takes the defence that they have not at all given so called voluntary statement at Ex.P.57 to Ex.P.60 and Ex.P.64 respectively, before PW26. In my view assuming that PW26, deposes that he recovered M.O.1, M.O.2, M.O.7, M.0.8 and M.O.14, under respective seizure mahazar, at the same time, since his evidence is not corroborated by any independent attestor to respective mahazar, certainly, basing on the sole testimony of PW26, it is not at all safe to hold that PW26 44 S.C. 1018/2013 has seized M.O.1, M.O.2, M.O.7, M.0.8 and M.O.14, under respective mahazar. In my view, when the prosecution failed to prove the recovery of M.O.1, M.O.2, M.O.7, M.0.8 and M.O.14, certainly, A1 to A5 cannot be connected to the guilt circumstances that A1 to A5 have murdered the deceased, assaulting him by means of M.O.1, M.O.2, M.O.7and M.O.14 and by using M.0.8. It is settled position of law that when the prosecution case based on circumstantial evidence, then prosecution has to prove every link to the chain of all circumstances, to connect guilt of accused. However, in the present case on hand, as I have already discussed above, circumstantial evidence like, alleged use of M.O.1, M.O.2, M.O.7, M.0.8 and M.O.14, by A1 to A5, are not proved by the prosecution. Though it is the case of prosecution that clothings of A2 & A3 at M.O.19 to M.O.22 were bloodstained and the I.O has recovered M.O.19 to MO.22 under Ex.P23, since it was blood stained, at the same time, prosecution has failed to place circumstantial evidence in this regard. First of all I.O. has not at all examined the person who has brought the 45 S.C. 1018/2013 clothing from the house of A2 and A3 and produced before him. More so, it is the case of prosecution that PW26 collected the blood sample of A3 through doctor attached to Victoria Hospital, Bengaluru. However, in this regard, the Doctor, who collected the blood sample from the person of A3, has not been cited as witness by the I.O., for the reasons best known to I.O. As far as collecting of blood sample from the person of A3, absolutely prosecution has not placed any direct or circumstantial evidence. Hence, under such circumstances, assuming that prosecution has proved that M.O.19 to M.O.22 were found with human blood stains, likewise M.O.1 also found with human blood stains, it cannot be held that same blood group found at M.O.19 to M.O.23 and are matching with blood group of A3. In this regard prosecution failed to placed all the circumstantial evidence. Hence, basing on such unconvincing evidence, connecting A1 to A5 to the guilt circumstances, is not safe at all.
37. During the course of argument, learned PP submits that blood stains found at M.O.1 as well as M.O.19 46 S.C. 1018/2013 to M.O.22 which are sufficient to connect the guilt of A1 to A5, since the blood group of A3 is matching with blood stains found at M.O.1, M.O.19 to M.O.22. Learned PP also argued that accused have not assigned any explanation about blood stains found at M.O.1, M.O.19 to M.O.22 and hence, basing on the very circumstantial evidence, this court can convict A1 to A5. To support the contention, learned PP has drawn the attention of this court by filing the following judgments:
1) 1995 Supreme Court Cases (Cri) 1085, in the case of Ashok Kumar V.s State (Delhi Administration.
B. Criminal Trial- Bloodstains- Discovery of blood of same group on the stone used as weapon of offence and on the clothes of the accused and the deceased indicates that the accused was in close proximity of the deceased when he was fatally wounded.
2) (2011) 3 Supreme Court Cases (Cri) 550 (2010) 14 Supreme Court Cases 129
a) In case of Johan Pandian V/ State, rep by Inspector of Police, Tamil Nadu (Crl.A.No.452/2007) 47 S.C. 1018/2013
b) In case of Abdul Kareem V/ State, rep by Inspector of Police, Tamil Nadu (Crl.A.No.453/2007)
c) In case of Shiva Kumar V/ State, rep by Inspector of Police, Tamil Nadu (Crl.A.No.455/2007)
d) In case of Yusuf V/ State, rep by Inspector of Police, Tamil Nadu (Crl.A.No.2285/2010)
e) In case of Ubaiadulla @ Tamil Selvan V/ State, rep by Inspector of Police, Tamil Nadu (Crl.A.No.503/2007) F. Criminal Trial-Proof-Recovery of bloodstained weapon -No. explanation by accused- held, discovery positively furthered prosecution case. G. Criminal Trial-Proof-Recovery of crime/incriminating material/ other articles- recovery of weapon- discovery in pursuance of confessional statement-witnesses. Held, there is no rule that same set of witnesses have to be used for both purposes, namely, for confessional statement and subsequent discovery in pursuance thereto- evidence Act, 1872,S.27.
38. I have carefully gone through the ratio laid down in the above judgments. In my view certainly basing on the ratio laid down in the said judgments, A1 to A5 cannot 48 S.C. 1018/2013 be connected to the guilt circumstances, since in the case at hand, prosecution has failed to place convincing and cogent evidence to hold that blood stains which are found at M.O.1, M.O.2, M.O.7, M.O.14 and M.O.19 to M.O.22, are similar to the blood group of A1 to A3. More so, admittedly I.O. has not collected blood samples of all the accused in this case. That apart, has I already discussed above that prosecution has failed to prove alleged recovery of M.O.1, M.O.2, M.O.7, M.O.8 and M.O.14 under respective mahazar and therefore, without placing blood group of A1 to A5 and comparing the same with blood stains found over M.O.1, M.O.2, M.O.7, M.O.8 and M.O.14 and M.O.19 to M.O.22, it cannot be held that very circumstances are sufficient to hold that A1 to A5 were in close proximity of deceased while fatally wounded. Hence, in the above circumstances, I am not relying the ratio laid down in the said judgment.
39. In my view the ratio laid down in the second case law, is not applicable to the case at hand, in view of the fact that prosecution has failed to prove recovery of M.O.1, 49 S.C. 1018/2013 M.O.2, M.O.7, M.O.8 and M.O.1. More so, as I have already discussed above that the prosecution has failed to prove that on the basis of so called voluntary statement of A1 to A5, I.O. has seized M.O.1, M.O.2, M.O.7, M.O.8 and M.O.14. Therefore, under such circumstances, certainly, ratio laid down in the above case law is not applicable to the case at hand to connect the guilt of A1 to A5.
40. Learned PP has further drawn the attention of this court by filing the following judgments:
1. (2012) 3 Supreme Court cases (Cri) 271 Neel Kumar @ Anil Kumar V/s State of Haryana.
Head Note:C Criminal Procedure Code, 1973, S.313- Statement of accused under duty of accused while making such statement. Failure to discharge such duty effect of Held, it is duty of accused while making statement under Sec.313, to explain incriminating circumstance proved against him. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain charges against him. Criminal trial-circumstantial evidence. Failure to explain incriminating circumstances. 50 S.C. 1018/2013
41. By relying the ratio laid down in the above judgment, learned PP to submit that in the present case on hand, accused have not offered any explanation to the circumstantial evidence and hence in view of very ratio laid down in the said judgment, accused are liable to be convicted. I have carefully gone through the ratio laid down in the said judgment. It is pertinent to note that in the present case at hand, since prosecution has failed to place convincing and cogent evidence to strengthen any incriminating circumstances as against A1 to A5 and hence by applying the ratio laid down in the above said judgment, A1 to A5 cannot be connected to the guilt circumstances. Hence, I am not relying the ratio laid down in the above judgment.
42. Per contra learned counsel for accused argued that, in this case PW1 to PW18 being prime witnesses have turned hostile and that apart, very evidence of PW1 to PW8 and PW12 disclose with material contradictions and they dispute their previous statement and more so, prosecution 51 S.C. 1018/2013 also failed to place any evidence to connect the guilt of A1 to A5. He further argued that I.O has not at all collected blood samples of all the accused in order to match with blood samples found over M.O.1, M.O.19 to M.O.22. He submits that, prosecution has failed to prove the alleged recovery of material objects under different mahazars. Except the evidence of PW26, the I.O., his evidence is not corroborated with evidence of attestors to the respective mahazars. Therefore, on the basis of sole testimony of PW26, it cannot be held that prosecution has proved all the recovery of material objects under respective mahazars. Learned counsel vehemently argued that prosecution has failed to bring home the guilt of A1 to A5, beyond all reasonable doubt by placing direct or circumstantial evidence and hence, A1 to A5 are entitled to get benefit of doubt and they are entitled for acquittal in this case.
43. Viewed from any angle, I am of the considered view that prosecution has failed to prove the guilt of A1 to A5, beyond all reasonable doubt, by placing convincing and 52 S.C. 1018/2013 cogent evidence. It is important to note that prime witnesses like PW1 to PW18 have turned hostile and more so prosecution also failed to prove the alleged recovery of M.O.1, M.O.2, M.O.7, M.O.8 and M.O.14 under different mahazars. In my view, assuming that prosecution proves the death of deceased Manjunatha was homicidal death, at the same time, prosecution has failed to connect A1 to A5 to hold that A1 to A5 have murdered him by using M.O.1, M.O.2, M.O.7and M.O.14 and also using M.O.8. To strengthen the contention of prosecution, absolutely, there is no evidence on record. None of the direct witnesses have whispered that they witnessed that A1 to A5 committed murder of deceased Manjunatha. Therefore, in the above circumstances, I hold that A1 to A5 are entitled to an acquittal. For the foregoing reasons, I answer the above points in the "Negative".
44. POINT NO.6 : For the above reasons, I proceed to pass the following :
53 S.C. 1018/2013
ORDER Acting under Sec.235(1) of Cr.P.C., A1 to A5 are acquitted of the offences p/u/Sec.143, 148, 341, and 302 r/w Sec. 149 of IPC.
Bail Bond of A5 and his Surety Bond stands cancelled.
A1 to A4 who are in judicial custody, are ordered to be set free forthwith, if they are not required by the Jail Authorities, in connection with any other cases.
M.O.1, M.O.2, M.O.7 and M.O.14 are confiscated to State and M.O.3 to M.O.6, M.O.8 to M.O.13 and M.O.15 to M.O.22, since worthless, are ordered to be destroyed, after Appeal period is over.
(Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 8th day of May, 2015) (N.R.CHENNAKESHAVA ) LXV ADDL CITY CIVIL & SESSIONS JUDGE, BANGALORE *ic 54 S.C. 1018/2013 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW-1 Devi Prasad PW-2 Nagaraj PW-3 Ananda PW-4 Suresh PW-5 Dharanesh PW-6 Shiva Kumar PW-7 Padma PW-8 Vijay Palve PW-9 Naveen Kumar PW-10 Sandeep PW-11 Raju PW-12 Praveen PW-13 Jaya Kumar PW-14 ShivaKumar PW-15 Manu PW-16 Chethan PW-17 Ramesh PW-18 Muniragavendra PW-19 Indira PW-20 Nagaraj PW-21 Venkateshappa PW-22 Shantharaju PW-23 Vani PW-24 Shahanaj Fathima PW-25 Siddagagaia PW-26 Shivamalavaia LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Statement of PW1 Ex.P.2 Statement of PW2 Ex.P.3 Statement of PW3 55 S.C. 1018/2013 Ex.P.4 Notice Ex.P.5 Inquest mahazar Ex.P.6 Spot Mahazer Ex.P.7 Statement Ex.P.8 Statement of PW5 Ex.P.9 Statement of PW6 Ex.P.10 Receipt Ex.P.11 Statement of PW8 Ex.P.12 Mahazar Ex.P.13 Mahazar Ex.P.14 Scooter Photo Ex.P.15 Statement of PW10 Ex.P.16 Mahazar Ex.P.17 & 18 Auto Photos Ex.P.19 Statement of PW12 Ex.P.20 Requisition letter Ex.P.21 sketch Ex.P.22 Letter Ex.P.23 Mahazer Ex.P.24 Chit on M.O.1 Ex.P.25 Statement of PW16 Ex.P.26 Delivery Note Ex.P.27 Statement of PW17 Ex.P.28 Statement of PW18 Ex.P.29 to 33 Chits on M.O.9 to M.O.13 Ex.P.34 PM Report Ex.P.35 Chit on M.O.1 Ex.P.36 Chit on M.O.2 Ex.P.37 Chit on M.O.7 Ex.P.38 Chit on M.O.14 Ex.P.39 Report Ex.P.40 Sample seal Ex.P.41 Report Ex.P.42 Report Ex.P.43 Report Ex.P.44 Report Ex.P.45 Acknowledgement Ex.P.46 report Ex.P.47 report Ex.P.48 Report 56 S.C. 1018/2013 Ex.P.49 Requisition to FSL Ex.P.50 M.C. report Ex.P.51 Sample seal Ex.P.52 M.C.report Ex.P.53 Sample seal Ex.P.54 Report of Siddalingaiah Ex.P.55 Complaint Ex.P.56 FIR Ex.P.57 Statement of A2 Ex.P.58 Statement of A3 Ex.P.59 Statement of A1 Ex.P.60 Statement of A4 Ex.P.61 Requisition Ex.P.62 Motorcycle photo Ex.P.63 Motorcycle photo Ex.P.64 Statement of A5 Ex.P.65 Negative Ex.P.66 Negative LIST OF MATERIAL OBJECTS MARKED MO-1 Long MO-2 Dagger MO-3 T.Shirt MO-4 Pant MO-5 Red colour Shirt MO-6 Jeans Pant MO-7 Dagger MO-8 Pepper container MO-9 Black shirt MO-10 black shit MO-11 Yellow MO-12 shoe MO-13 White jacks MO-14 Long MO-15 Bloodstains MO-16 Sample Blood MO-17 Bed sheet 57 S.C. 1018/2013 MO-18 Towel MO-19 Blue jeans pant MO-20 White & Black shirt MO-21 Gray colour pant MO-22 Shirt.
LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(N.R.CHENNAKESHAVA ) LXV ADDL CITY CIVIL & SESSIONS JUDGE, BANGALORE *ic 58 S.C. 1018/2013 Judgment pronounced in open court, vide separately, ORDER (N.R.CHENNAKESHAVA ) LXV ADDL CITY CIVIL & SESSIONS JUDGE, BANGALORE 59 S.C. 1018/2013