Bangalore District Court
The State Of Karnataka vs No.3 : Kumara on 1 October, 2016
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 1st day of October 2016
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
S.C.No. 705/2014
Complainant : The State of Karnataka,
Represented by it's
The Police Inspector,
Kengeri Police Station,
Bengaluru - 560 060.
(By Public Prosecutor)
Vs.
Accused No.3 : Kumara,
S/o. Varadharaj,
Aged 20 years,
R/a. No.106/M, 7th Main Road,
Behind Government School,
Kengeri Upanagara,
Bengaluru - 560 060.
(By Sri B.N.Shivakumara,
Advocate, for A.3)
1 Date of commission of offence 12.09.2003 to
13.09.2003
2 Date of report of offence 15.05.2004
3 Date of arrest of the accused 18.02.2014
4 Date of release of accused on bail 09.06.2014
5 Date of commencement of 13.04.2015
evidence
6 Date of closing of evidence 23.07.2016
7 Name of the complainant C.Gopal, Police Inspector
8 Offences complained of Sections 302 & 201 r/w
Section 34 of IPC.
2 SC No.705/2014
9 Date of pronouncement of 01.10.2016
judgment
10 Opinion of the Judge Guilt of the accused
No.3 not proved
11 Order of Sentence As per final-order
JUDGMENT
This is a split-up charge-sheet filed by the Police Inspector of Kengeri Police Station, Bengaluru City, leveling the charges against the above said accused-persons for the commission of the offences punishable U/Secs.302 & 201 r/w Section 34 of I.P.C. in the committal III ACMM Court, Bengaluru City, in it's CC No.19668/2004 in connection with the Kengeri P.S. Cr.No.129/2004.
2. The epitomized facts of the allegations that are leveled against the above said accused-persons in the charge-sheet run thus:
The accused No.1/Sampath having suspected his wife having illicit-relationship with the deceased Manimutthu and the CW.4/Sathishkumar, questioned his wife for which she left the accused No.1 and his children, wherefore, the accused No.1/Sampath having animosity against Manimutthu and the CW.4 under the impression that they are the main-root-cause persons having spoiled his entire life, had an intention to kill/murder the said Manimutthu and CW.4/Sathishkumar and on 12.09.2003 phoned Manimutthu and called him stating that he would arrange for providing the carpentry-contract and thereby 3 SC No.705/2014 made him to consume alcohol and assaulted with a chopper on his neck at no-man's area situated near small-tank on the Western Kodi of Gandhi Nagar tank within the limits of Kengeri and also killed/murdered him with his leg by pressing on his neck and thereafter with the aid of the accused No's.2 & 4 packed the said dead-body of the deceased Manimutthu in a gunny-bag and covered a fishing-net by keeping big size-stones therein to see that the said dead-body should drown but should not come-up and thereby threw the same in the Northern-portion of the said tank and thereby, the accused-persons committed the offences punishable U/Secs.302 & 201 r/w Section 34 of I.P.C.
3. After filing the charge-sheet, cognizance of the offences punishable U/Secs.302 & 201 r/w Section of I.P.C. was taken by III ACMM Court, Bengaluru City.
In response to the process issued against the accused No.3, he has put-in his appearance before the committal court, through his learned counsel.
On moving for bail, the accused No.3 has been released on bail, as per the order dated 26.04.2014 in Crl.Misc.Petition No.1078/2014 of the Hon'ble Prl. City Civil & Sessions Judge, Bengaluru City.
Copies of the charge-sheet and other documents referred to U/Sec.173 of Cr.P.C. were supplied to the accused-person by the III ACMM Court, Bengaluru City, in contemplation with the 4 SC No.705/2014 provisions U/Sec.207 of Cr.P.C. and thereafter committed the case to this court in contemplation with the provisions U/Sec.209 of Cr.P.C.
After committing the case to this court by the III ACMM Court, Bengaluru City, the process were issued to the accused No. 3 and secured the presence of accused No.3 before this court.
After hearing both-sides, charges for the offences punishable U/Secs.302 & 201 r/w Section 34 of I.P.C. were framed, and the same were read-over, and explained to the accused-person in the vernacular best-known to him.
The accused-person has denied the same and pleaded not guilty and further claimed to be tried.
4. In order to prove the guilt against the accused-person, the prosecution has adduced the evidence of the witnesses, in all as PWs.1 to 14, and placed it's reliance-on the documents marked at Exs.P.1 to P.35, P.1(a), P.1(b), P.1(c), P.2(a), P.3(a), P.4(a), P.5(a), P.10(a), P.10(b), P.11(a), P.11(b), P.13(a), P.14(a), P.15(a), P.21(a), P.24(a) & P.35(a), and the material-objects marked on behalf of the prosecution are at MO No's.1 to 5.
5. After the prosecution's evidence was closed, as the incriminating circumstances were arising-out of the evidence of the prosecution-witnesses, the statements of the accused-person under the provisions U/Sec.313 of Cr.P.C., were recorded. 5 SC No.705/2014
6. I have heard the arguments advanced by both the learned Public Prosecutor for the State as-well-as the learned counsel for the accused-person.
7. Now, the points that arise for my consideration are:
(1) Whether the prosecution proves beyond the shadow of all the reasonable doubts that, the accused No.1/Sampath having suspected his wife having illicit-
relationship with the deceased Manimutthu and the CW.4/Sathishkumar, questioned his wife for which she left the accused No.1 and his children, wherefore, the accused No.1/Sampath having animosity against Manimutthu and the CW.4 under the impression that they are the main-root-cause persons having spoiled his entire life, had an intention to kill/murder the said Manimutthu and CW.4/Sathishkumar, and on 12.09.2003 phoned Manimutthu and called him stating that he would arrange for providing the carpentry-contract and thereby made him to consume alcohol and assaulted with a chopper on his neck at no-man's area situated near small-tank on the Western Kodi of Gandhi Nagar tank within the limits of Kengeri and also killed/murdered him with his leg by pressing on his neck and thereby, the accused-
persons committed the offence punishable U/Sec.302 r/w Section 34 of I.P.C.?
(2) Whether the prosecution proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, with the aid of the accused No's.2 & 4 packed the said dead-body of the deceased Manimutthu in a gunny-bag and covered a fishing-net 6 SC No.705/2014 by keeping big size-stones therein to see that the said dead-body should drown but should not come-up and thereby threw the same in the Northern-portion of the said tank and thereby, the accused-persons committed the offence punishable U/Sec.201 r/w Section 34 of I.P.C.?
(3) What order?
8. My findings on the above said points are as under:
Point No.1 .. In the Negative.
Point No.2 .. In the Negative.
Point No.3 .. As per the final-order,
for the following:
REASONS
9. Point No's.1 & 2:- To avoid reiteration of material available in hand and to appreciate the evidence in better position, I hereby take-up Point No's.1 & 2 together admixingly for discussion.
10. It is the specific tale of the prosecution that, the accused No.1/Sampath having suspected his wife having illicit-relationship with the deceased Manimutthu and the CW.4/Sathishkumar, questioned his wife for which she left the accused No.1 and his children, wherefore, the accused No.1/Sampath having animosity against Manimutthu and the CW.4 under the impression that they are the main-root-cause persons having spoiled his entire life, had an intention to kill/murder the said Manimutthu and CW.4/Sathishkumar, and on 12.09.2003 phoned Manimutthu and 7 SC No.705/2014 called him stating that he would arrange for providing the carpentry-contract and thereby made him to consume alcohol and assaulted with a chopper on his neck at no-man's area situated near small-tank on the Western Kodi of Gandhi Nagar tank within the limits of Kengeri and also killed/murdered him with his leg by pressing on his neck and thereafter with the aid of the accused No's.2 & 4 packed the said dead-body of the deceased Manimutthu in a gunny-bag and covered a fishing-net by keeping big size- stones therein to see that the said dead-body should drown but should not come-up and thereby threw the same in the Northern- portion of the said tank and thereby, the accused-persons committed the offence punishable U/Sec.302 & 201 r/w Section 34 of I.P.C.
11. At the very outset, the absolute burden of proving the alleged imputations against the accused-person is casted-upon the prosecution alone in pursuance with the provisions under the Indian Evidence Act, 1872.
12. To substantiate it's case, the prosecution has got examined in all the witnesses as PWs.1 to 14, in which CW.9 is examined as P.W.1 who is the inquest-mahazar-witness, CW.1 is examined as PW.2 who is the partial investigating-officer, CW.8 is examined as PW.3 who is also the inquest-mahazar-witness, CWs.14, 13, 15 & 16 are examined as PWs.4, 5, 6 & 7, respectively, who are the circumstantial-witnesses, CW.19 is 8 SC No.705/2014 examined as PW.8 who is the police videographer, CW.24 is examined as PW.9 who is the police-constable having carried the original First Information Report and complaint to the Judicial Magistrate concerned as-well-as the circumstantial-witness, CWs.28 & 30 are examined as PWs.10 & 11, respectively, who are the elderly-persons having advised the accused-persons as-well-as the circumstantial-witnesses, CW.37 is examined as PW.12 who is the Medical-Officer having conducted the post-mortem of the deceased, CW.17 is examined as PW.13 who is the wife of the deceased having identified the MO No's.1 to 3 as-well-as the circumstantial-witness and CW.3 is examined as PW.14 who is the brother-in-law of the deceased Manimutthu, having identified the MO No's.1 to 3 as-well-as the circumstantial-witness, and thereby, the prosecution has placed it's reliance-on the documentations marked at Exs.P.1 to P.35, in which Ex.P.1 is the inquest-report, Ex.P.1(a) is the signature of the PW.1, Ex.P.1(b) is the signature of the PW.2, Ex.P.1(c) is the signature of the PW.3, Ex.P.2 is the First Information Report, Ex.P.2(a) is the signature of the PW.2, Ex.P.3 is the complaint, Ex.P.3(a) is the signature of the PW.2, Ex.P.4 is the spot-mahazar, Ex.P.4(a) is the signature of the PW.2, Ex.P.5 is the sketch, Ex.P.5(a) is the signature of the PW.2, Exs.P.6 to P.9 are the photographs, Ex.P.10 is the voluntary-statement of the accused-Sampath, Ex.P.10(a) is the signature of the accused, Ex.P.10(b) is the signature of the PW.2, Ex.P.11 is the voluntary- 9 SC No.705/2014 statement of the accused-R.Shekar, Ex.P.11(a) is the signature of the accused, Ex.P.11(b) is the signature of the PW.2, Ex.P.12 is the PF Form No.81/2004, Ex.P.13 is the First Information Report, Ex.P.13(a) is the signature of the PW.2, Ex.P.14 is the complaint, Ex.P.14(a) is the signature of the PW.2, Ex.P.15 is the seizure- mahazar, Ex.P.15(a) is the signature of the PW.2, Ex.P.16 is the PF Form, Ex.P.17 is the requisition for DNA test, Ex.P.18 is the forwarding-note, Ex.P.19 is the identification-form, Ex.P.20 is the invoice, Ex.P.21 is the report, Ex.P.21(a) is the signature of the PW.2, Ex.P.22 is the acknowledgement, Ex.P.23 is the PF Form, Ex.P.24 is the post-mortem report, Ex.P.24(a) is the signature of the PW.2, Ex.P.25 is the statement of the PW.4, Ex.P.26 is the additional-statement of the PW.4, Ex.P.27 is the statement of the PW.5, Ex.P.28 is the additional-statement of the PW.5, Ex.P.29 is the statement of the PW.6, Ex.P.30 is the additional-statement of the PW.6, Ex.P.31 is the statement of the PW.7, Ex.P.32 is the additional-statement of the PW.7, Ex.P.33 is the statement of the PW.10, Ex.P.34 is the statement of the PW.11, Ex.P.35 is the post- mortem report and Ex.P.35(a) is the signature of the PW.12, and the material-objects marked on behalf of the prosecution are at MO No's.1 to 5, in which MO No.1 is the fishing-net, MO No.2 is the piece of pant, MO No.3 is the shirt-piece which is in the form of a noose, MO No.4 is the motorcycle and MO No.5 is the video- cassette.
10 SC No.705/2014
13. On meticulous perusal of the entire depositions of the PWs.1 to 14, it is crystal clear that, the PWs.1 & 2 being the inquest-mahazar-witnesses, PWs.4 to 7 being the circumstantial- witnesses and PWs.10 & 11 being the elderly-pacifying-persons having advised the accused-persons as-well-as the circumstantial- witnesses, have absolutely turned hostile to the prosecution by exhibiting their animus of hostility, for which the learned Public Prosecutor was inclined to treat them as hostile-witnesses and cross-examine them; But, no worth-relying material has been elicited and extracted through their mouths, wherefore, the prosecution has utterly failed to establish the Exs.P.1, P.25 to P.32, P.33 & P.34 beyond the shadow of all the reasonable doubts.
14. Further, the PW.2 being the Police-Inspector of Kengeri Police Station having registered the case on his own and further conducted the investigation completely, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, the accused-persons were produced on 15.05.2004 before him and on interrogating them, he came to know that the accused- persons were involved in murder of the deceased Manimuthu, wherefore, he himself prepared a complaint on behalf of the State and registered the Cr.No.199/2004 for the offences punishable U/Secs.302 & 201 r/w Section 34 of IPC. He has further deposed regarding the mahazars in respect of spot as-well-as the recovery of the motorcycle bearing No.KA-05-ED-1089 as per Ex.P.4 and 11 SC No.705/2014 also the recovery of skeletal remains from Gandhinagar/Kengeri Water Tank, in respect of which the video-cassette was also made, which is marked as per MO No.5. It is further stated that, on 06.08.2004 he sent the bones for DNA test along-with a forwarding-note, identification-form and invoice, and the same are marked as per Exs.P.27 & P.28. It is stated that, at the time of handing-over the bones to the wife of the deceased, the hospital had retained 2 - 3 bones for the purpose of FSL and the same were forwarded to CDFD, who had demanded Rs.10,800/- towards the laboratory-charges and they had also asked to send the blood- sample of the blood-relatives of the deceased for the purpose of DNA test; but his senior-officers having no powers to draw more- than Rs.10,000/-, the demanded amount and also the blood- sample of the relatives of the deceased were not sent to CDFD, wherefore, no final-report was received from CDFD by examining the bones sent for analysis and thereafter, on 10.08.2004 showing the other two accused as absconding and awaiting the report from CDFD, he submitted the charge-sheet to the concerned court.
15. Further, the PW.13/Smt. Selvambha being the wife of the deceased Manimuthu, has endeavored to depose in favour of the prosecution in her chief-examination to the effect that, she had lodged the complaint in Girinagar police station about missing of her husband and thereafter about 9 months, the Kengeri police took her to Kengeri Water Tank and pointed the spot where her 12 SC No.705/2014 husband was murdered and at that time the divers removed some- bones from the tank along-with piece of cloth and also identified the same stating that it belonged to her husband and further stated that the said piece of cloth as per MO No.3 does-not belong to her husband. But, however, on seeing the another-piece of cloth which is marked as per MO No.2, she has identified immediately stating that it belonged to her husband. It is also stated by the PW.13 that, the police also told her that the said bones were belonging to her husband and thereafter about 3-4 days, the police have handed-over some of the bones to her to cremate them.
16. Further, the PW.14 being the brother of the PW.13, has endeavored to depose in favour of the prosecution in his chief- examination to the effect that, on 12.09.2013 at about 7.00 p.m. in the evening, while himself and the deceased Manimuthu were returning home on the motorcycle of the deceased, the deceased received a mobile-phone-call while on the way and after stopping the said motorcycle, he stated in the mobile as "I will come" and thereafter asked him (PW.14) to go to home and thereby the deceased went-back on his motorcycle, and since-then the deceased remained as missing, wherefore, in-spite of efforts put-in to trace-out the said deceased, they could not trace-out him for a longer-period. But, after about 9 months there-from, once-again he came to Bengaluru and went to Kengeri police station, whereby the police took him and his sister to the Kengeri Water Tank, 13 SC No.705/2014 where-at they saw some-bones and cloths were taken-out from the said water-tank, during which time the police stated that the cloths removed from the said water-tank were of the deceased Manimuthu. Further, the PW.14 has identified the MO No.2/piece of cloth as belonging to the deceased. Even, he has identified the MO No.4/motorcycle stating that it belonged to the deceased.
17. Further, the PW.8 being the police-videographer has endeavored to depose in favour of the prosecution in his chief- examination to the effect that, on 15.05.2004 while he was on general-duty in the police station, at about 10.00 a.m., he was directed by his higher-authorities to go to CW.1 (PW.2) for the purpose of taking the videography, wherefore, he went to PW.2, who took him near the water-tank situated near Ramanagara of Kengeri, where-at, from 2.00 p.m. to 6.30 p.m. the divers were made to swim in the water-tank and search for the dead-body, whereby they found the human-bones in a gunny-bag wrapped with the fishery-net with the pant and shirts in respect of which he has made a videography as per MO No.5.
18. Further, the PW.9 being the police-constable having carried the FIR/complaint to the Judicial Magistrate, has endeavored to depose in favour of the prosecution in respect of the same, wherefore, the very nature of the said PW.9 is merely a circumstantial-witness.
14 SC No.705/2014
19. Further, the PW.12 being the Dr. C.N.Sumangala/Medical-Officer stated to be as a medical-expert having deposed in favour of the prosecution has stated with respect to the examination of the skeletal remains of one Manimuthu, which were brought by Kengeri Police-Inspector on 20.05.2004, by examining them medically and given an opinion as per Ex.P.18 certifying that the bones examined by her were belonging to a male aged of 25 years and the fracture of mandible noted therein is possible to be caused if assaulted with any hard and blunt-object.
20. During the time of trial, the learned Public Prosecutor has voluntarily given-up the CWs.4, 27 & 34. The CWs.6, 10 & 21 having been reported to be as demised, they have been dropped. Despite, having issued sufficient process to the CWs.5, 7, 11, 12, 17, 18, 20, 22, 23, 25, 31 to 33, 35, 36 & 38, they have neither been endeavored to produce before this court by the concerned police nor they have turned-up before this court to depose in favour of the prosecution in the witness-box, wherefore, in the lack of substantial-grounds, this court was inclined to reject the prayer of the learned Public Prosecutor and dropped the CWs.5, 7, 11, 12, 17, 18, 20, 22, 23, 25, 31 to 33, 35, 36 & 38 and closed the prosecution's-side. Non-examination of the said material-witnesses is absolutely fatal to the prosecution's case.
15 SC No.705/2014
21. On meticulous consideration of the entire depositions of the PWs.1 to 14, the PWs.1, 3, 4, 5, 6, 7, 10, & 11 being the material-witnesses have absolutely turned hostile to the prosecution, wherefore, it has utterly failed to establish the Exs.P.1, P.25 to P.34. The PW.4 being a mere police-videographer, his deposition alone does-not come to the aid of the prosecution unless there is substantial material established by the prosecution to connect the alleged seized-bones with the accused establishing that the said seized-bones were belonging to the said deceased Manimuthu. Apart from the same, the PW.9 being a mere police- constable having carried the FIR and complaint to the Magistrate concerned, his sole-deposition is of no assistance and consequence in favour of the prosecution.
22. At the very outset, basing-on the overall evidence available on record, it is clear that there are no eyewitnesses and direct-witnesses to the alleged incident to establish the involvement of the accused in the commission of the alleged offences. The prosecution has utterly failed to assert that the accused caused the death of the deceased, whereas, it has solely relied-on the circumstantial-witnesses but, no such substantial and circumstantial-witnesses are also being examined and the one who have been examined, have not at-all supported the prosecution, whereas, they have turned hostile, in respect of which it has been made clear herein before supra.
16 SC No.705/2014
23. It is an undisputed fact that, the deceased was last-seen on 12.09.2003 by the PW.14/Sharavana while returning home on his motorcycle and since-then, the deceased remained missing without knowing his whereabouts for about 9 months, wherefore, the wife of the deceased PW.13 and his son lodged a missing- complaint, basing-on which the FIR was registered by the Girinagar police, which aspect has been confirmed by the PW.13 in her evidence regarding the disappearance of the deceased since 12.09.2003, wherefore, the evidences on record do-not suffice to hold that the deceased was missing since 12.09.2003 basing-on the circumstances, such as, the recovery of skeletal remains from Kengeri water-tank on 25.05.2004 when the accused were caught and inquired under the interrogation by the PW.2, and gathered the significant clues regarding the murder of the deceased which led the PW.2 to register the case against the accused, the PW.2 taken-up the investigation in the case. It is also significant to note that, the evidence collected by the prosecution is insufficient in connection with the alleged recovery made at the instance of the accused because, the prosecution has absolutely relied only on the evidence of the PW.2/investigating-officer, whereas, none of the witness have been examined to establish the alleged voluntary- statements of the accused, wherefore, in the lack of corroborative material, this court is not inclined to take-into consideration and rely solely on the basis of the evidence of the investigating-officer, 17 SC No.705/2014 consequent-upon which the recovery of the bones from the said Kengeri water-tank on 16.05.2004 cannot be connected to the accused in view of the prosecution having failed to establish and convince this court regarding the alleged recovery was made only at the instance of the accused.
24. It is also significant to note that, the 'corpus delecti' was not available to the investigating-agency because, as per the prosecution's tale, only 6-7 bones with decomposed pieces of cloths wrapped in a fishing-net were discovered from the water-tank, whereas, the prosecution having proceeded on the supposition that the said bones were belonging to the deceased Manimuthu absolutely relied-on the identification made by the wife of the deceased Manimuthu, i.e., PW.13 and also her brother (PW.14). Except the oral-evidence of the PWs.13 & 14 regarding the identification of the piece of cloth, there is an absolute lack of substantial material-evidence in establishing the alleged identity of the said bones. Even, as admitted by the PW.2/investigating- officer, the alleged recovered skeleton remains and bones from the Kengeri water-tank, were sent to Victoria Hospital for preservation and two of the said bones were sent to CDFD, Hyderabad for DNA test after obtaining the opinion from Victoria Hospital as they were fit for sending the same for DNA test. It is also relevant to note that, having submitted the charge-sheet awaiting the report from CDFD, as admitted by the PW.2 himself that the laboratory- 18 SC No.705/2014 charges and the blood-sample of the deceased for the purpose of DNA test were not sent and when that is so, no expert's opinion- report was able to be received from CDFD, Hyderabad. This particular aspect is absolutely the major discrepancy fatalling the very crux of the prosecution's case because, the said DNA test could have become a conclusive-proof in favour of the prosecution's case to prove the nexus between the said seized- skeletal remains and bones and the deceased husband of the PW.13 indicating that the said skeletal remains and bones were absolutely belonging to the deceased himself. Therefore, in this particular aspect, the prosecution has utterly failed. Apart from the same, even the PW.12 being the Medical-Officer/Dr. C.N.Sumangala as a medical-expert has opined on examining the said seized-bones that they were belonging to a male-person aged of 25 years. The very-evidence of the PW.12 comes to the aid of the prosecution only to the extent that the said bones were belonging to a male-person aged of 25 years only. But, however, unfortunately though, as per the prosecution's tale, about 6-7 pieces of bones were recovered and sent to Victoria Hospital, according to the opinion of the PW.12/Dr. C.N.Sumangala, 16 bones were examined by her which is clearly in a contradictory manner with the very-version of the PW.2 and also the prosecution's case with respect to the number of bones which were sent to Victoria Hospital for the medical-opinion, wherefore, this 19 SC No.705/2014 particular aspect also certainly stands absolutely under suspicious circumstances creating the fatal doubts in the mind of this court regarding the very number of and seizure of the alleged bones. In addition to the same, the prosecution has failed to produce the said alleged pieces of bones before the court for identification or in proof of the alleged recovery. Therefore, it is unsafe to opine in favour of the prosecution solely basing-on the very evidence of the PW.2.
25. In addition to the same, to connect the said bones of the deceased and also with regard to the identification of the bones, though the PWs.13 & 14 having been got examined by the prosecution, they have failed to give the definite basis to arrive-at a conclusion that the piece of cloth endeavored to identify by them which is marked as per MO No.2 belonged to the deceased himself. The said PW.13 has stated in the cross-examination that, she cannot say whether the said MO No.2 is a pant-piece or shirt-piece of her husband and similarly the PW.14 has admitted to the effect that since MO No.2 was drowned in water nearly for 9 months, he could not specify as to whether the said MO No.2 belonged to the deceased or otherwise. But, however, he has further clearly admitted that he cannot say as to whether the said MO No.2 was a piece of shirt, pant, lungi or any other-dress, wherefore, on the face of record itself, the very-evidence of the PWs.13 & 14 do-not come to the aid and assistance in favour of the prosecution's case 20 SC No.705/2014 either in proving the identity of the MO No.2 or to connect the same with the deceased. Without admitting, if it is assumed for the time-being that the MO No.2 is a piece of cloth worn by the deceased, it would not need to draw the inference or arrive-at a conclusion that the bones found along-with the pieces of cloths were that of the deceased. Even, if a piece of cloth was found along-with the bones, it cannot be held that the said piece of cloth was of the very same-person whose bones were recovered from the water-tank. As stated herein before supra, there is no substantial and clear-evidence regarding the identification of the bones, and evidence of the PWs.13 & 14 are not absolutely acceptable to hold that the bones recovered from the water-tank belonged to the deceased Manimuthu. In overall this court is of the opinion that the prosecution has utterly failed to establish that the said bones recovered from the Kengeri water-tank were that of the deceased Manimuthu and also failed to establish that the accused caused the death of the deceased.
26. To sum-up, in overall, the prosecution has utterly failed to establish the motive for the alleged murder as the PWs.13 & 14 have not at-all deposed anything regarding the alleged illicit- relationship of the deceased Manimuthu with the wife of the accused No.1 as projected by the prosecution. Even, there is no substantial material to depict the estrangement or desertion by the wife of the accused No.1 nor the prosecution has produced any 21 SC No.705/2014 reliable-evidence establishing the motive for the commission of the alleged offences by the accused.
27. In addenda of the same, the identity of the dead-body having not been established by the prosecution, it has utterly failed to prove the nexus between the sequential circumstances and events to establish the complete chain of the alleged commission of the offences by the accused. Merely basing-on the very depositions of the PWs.8 & 9, this court cannot arrive-at a conclusion to target the accused No.3 for conviction in the lack of substantial chunk of material-evidence.
28. Therefore, under all these circumstances, I am of the clear opinion that, the entire case of the prosecution is prevailing with the major discrepancies, discrepanting the entire case of the prosecution, creating the fatal doubts in the mind of this court, without any alimentation. Therefore, the benefit of such doubts will have to be given to the accused-person by virtue of a well- settled principle of criminal jurisprudence. Under all these circumstances, even it is highly impossible and improbable to ameliorate regarding the alleged imputations against the accused No.3. Therefore, in view of all these reasons, this court is of the clear opinion that, the prosecution has utterly failed to establish and prove the Point No's.1 & 2 beyond the shadow of all the reasonable doubts. Hence, I am inclined to answer Point No's.1 & 2 in the 'Negative'.
22 SC No.705/2014
29. Point No.3:- For the reasons discussed at much-length while answering the Point No's.1 & 2 in the Negative herein before supra, I am inclined to proceed to pass the following:
ORDER The prosecution has utterly failed to prove the guilt against the Accused No.3 and therefore, the Accused No.3 is found not guilty for having committed the offences U/Secs.302 & 201 r/w Section 34 of I.P.C.
In exercise of the powers conferred-upon me U/Sec.232 r/w Sec.235(1) of Cr.P.C., I hereby acquit the instant Accused No.3 by name, Kumara, S/o. Varadharaj, aged 20 years, residing at No.106/M, 7th Main Road, Behind Government School, Kengeri Upanagara, Bengaluru - 560 060, and set him to liberty forthwith in this case.
The Accused No.3 is hereby discharged of his bail- bond, along-with his surety.
The seized-properties marked at MO No's.1 to 5, namely, fishing-net, piece of pant, a shirt-piece which is in the form a noose, Hero-Honda Splendor Motorcycle bearing No.KA-05-ED-1089 and video-cassette, respectively, are hereby ordered to be preserved, maintained and retained by the concerned, wherever they are in the same position, until the case against the co- accused person by name Raja, and if no case is pending against the said co-accused person by name Raja, then the said MO No's.4 & 5 namely, Hero-Honda Splendor Motorcycle bearing No.KA-05-ED-1089 and video- cassette, are hereby ordered to be confiscated to the Exchequer of the State Government after the efflux of the 23 SC No.705/2014 appeal period and MO No's.1 to 3 being worthless, are hereby ordered to be destroyed after the efflux of the appeal period.
(Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 1st day of October, 2016) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.
APPENDIX List of the witnesses examined for the prosecution-side:
PW.1 Anand PW.2 C. Gopal PW.3 Nagaraj PW.4 Rama PW.5 Nanjunda Shastry PW.6 Srinivasa PW.7 Mohan PW.8 Narendra Kumar G PW.9 T. Suresh PW.10 Srinivasa PW.11 Shankarappa D PW.12 Dr. C.M. Sumangala PW.13 Smt. Selvambha PW.14 Saravanan
List of documents exhibited for the prosecution-side:
Ex.P.1 Inquest-report.
Ex.P.1(a) Signature of the PW.1.
Ex.P.1(b) Signature of the PW.2.
Ex.P.1(c) Signature of the PW.3.
Ex.P.2 First Information Report.
Ex.P.2(a) Signature of the PW.2.
Ex.P.3 Complaint.
Ex.P.3(a) Signature of the PW.2.
Ex.P.4 Spot-mahazar.
Ex.P.4(a) Signature of the PW.2.
Ex.P.5 Sketch.
24 SC No.705/2014
Ex.P.5(a) Signature of the PW.2.
Exs.P.6 to P.9 Photographs.
Ex.P.10 Voluntary-statement of the accused-Sampath.
Ex.P.10(a) Signature of the accused.
Ex.P.10(b) Signature of the PW.2.
Ex.P.11 Voluntary-statement of the accused-R.Shekar.
Ex.P.11(a) Signature of the accused.
Ex.P.11(b) Signature of the PW.2.
Ex.P.12 PF Form No.81/2004.
Ex.P.13 First Information Report.
Ex.P.13(a) Signature of the PW.2.
Ex.P.14 Complaint.
Ex.P.14(a) Signature of the PW.2.
Ex.P.15 Seizure-mahazar.
Ex.P.15(a) Signature of the PW.2.
Ex.P.16 PF Form.
Ex.P.17 Requisition for DNA test.
Ex.P.18 Forwarding-note.
Ex.P.19 Identification-form.
Ex.P.20 Invoice.
Ex.P.21 Report.
Ex.P.21(a) Signature of the PW.2.
Ex.P.22 Acknowledgement.
Ex.P.23 PF Form.
Ex.P.24 Post-mortem report.
Ex.P.24(a) Signature of the PW.2.
Ex.P.25 Statement of the PW.4.
Ex.P.26 Additional-statement of the PW.4.
Ex.P.27 Statement of the PW.5.
Ex.P.28 Additional-statement of the PW.5.
Ex.P.29 Statement of the PW.6.
Ex.P.30 Additional-statement of the PW.6.
Ex.P.31 Statement of the PW.7.
Ex.P.32 Additional-statement of the PW.7.
Ex.P.33 Statement of the PW.10.
Ex.P.34 Statement of the PW.11.
Ex.P.35 Post-mortem report.
Ex.P.35(a) Signature of the PW.12.
List of material-objects marked for the prosecution-side:
MO No.1 Fishing-net.
MO No.2 Piece of pant.
MO No.3 Shirt-piece which is in the form of a noose.
MO No.4 Hero-Honda Splendor Motorcycle bearing No.
KA-05-ED-1089.
MO No.5 Video-cassette.
25 SC No.705/2014
List of witnesses examined for the defence-side:
- NIL -
List of documents exhibited for the defence-side:
- NIL -
LI Addl. City Civil & Sessions Judge, Bengaluru City.26 SC No.705/2014
(Judgment pronounced in the
open-court. Operative-portion of the
same is extracted as under)
ORDER
The prosecution has utterly failed
to prove the guilt against the Accused
No.3 and therefore, the Accused No.3 is
found not guilty for having committed
the offences U/Secs.302 & 201 r/w
Section 34 of I.P.C.
In exercise of the powers
conferred-upon me U/Sec.232 r/w
Sec.235(1) of Cr.P.C., I hereby acquit
the instant Accused No.3 by name,
Kumara, S/o. Varadharaj, aged 20
years, residing at No.106/M, 7th Main
Road, Behind Government School,
Kengeri Upanagara, Bengaluru - 560
060, and set him to liberty forthwith in
this case.
The Accused No.3 is hereby
discharged of his bail-bond, along-with
his surety.
The seized-properties marked at
MO No's.1 to 5, namely, fishing-net,
piece of pant, a shirt-piece which is in
the form a noose, Hero-Honda Splendor
Motorcycle bearing No.KA-05-ED-1089
and video-cassette, respectively, are
hereby ordered to be preserved,
maintained and retained by the
concerned, wherever they are in the
same position, until the case against
the co-accused person by name Raja,
and if no case is pending against the
said co-accused person by name Raja,
then the said MO No's.4 & 5 namely,
Hero-Honda Splendor Motorcycle
bearing No.KA-05-ED-1089 and video-
cassette, are hereby ordered to be
confiscated to the Exchequer of the
State Government after the efflux of the
appeal period and MO No's.1 to 3 being
worthless, are hereby ordered to be
destroyed after the efflux of the appeal
period.
LI Addl. City Civil & Sessions Judge,
Bengaluru City.
27 SC No.705/2014
28 SC No.705/2014