Bangalore District Court
The State Of Karnataka vs No.1 : Mariyappa on 25 March, 2017
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 25th day of March 2017
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. 1276/2013 (Main-case)
Connected
S.C.No's.1362/2013 & 529/2016 (Clubbed-cases)
S.C.No. 1276/2013
Complainant : The State of Karnataka,
Represented by it's
The Police Inspector & SHO,
MICO Layout Police Station,
Bengaluru - 560 076.
(By Public Prosecutor)
Vs.
Accused No.1 : Mariyappa,
S/o. Joseph,
Aged 20 years,
R/a. No.81, 5th Cross,
Thayappa Garden, Bilekahalli,
Bengaluru.
Accused No.2 : Nagaraja C @ Gajjinaga
(Abated)
Accused No.3 : George,
(Produced under S/o. Anthonyraj,
Body-warrant) Aged 20 years,
R/a. No.72, 1st Cross, 1st Main,
Doresanipalya, B.G.Road,
Bengaluru.
Accused No.6 : Babu @ Babli,
S/o. Devaraj,
Aged 27 years,
2 SC No.1276/2013
Connected
SC No's.1362/2013 & 529/2016
R/a. 217, 1st Cross,
Behind Church, Doresanipalya,
B.G.Road,
Bengaluru.
(By Sri R.V. Rajashekara, Advocate
for accused No's.1, 3 & 6)
S.C.No. 1362/2013
Complainant : The State of Karnataka,
Represented by it's
The Police Inspector & SHO,
MICO Layout Police Station,
Bengaluru 560 076.
(By Public Prosecutor)
Vs.
Accused No.5 : Sampath @ Joseph Anilkumar,
S/o. Late Chinnappa,
Aged 27 years,
R/a. No.20, Ground Floor,
Manjunath Layout,
Near Ganesha Temple, Arakere,
MICO Layout,
Bengaluru - 560 076.
(By Sri R.V. Rajashekara, Advocate
for accused No.5)
S.C.No. 529/2016
Complainant : The State of Karnataka,
Represented by it's
The Police Inspector & SHO,
MICO Layout Police Station,
Bengaluru 560 076.
(By Public Prosecutor)
Vs.
Accused No.4 : Bala @ Balaraj Victor,
S/o. Joseph,
Aged 28 years,
R/a. No.132, 30 Houses Street,
3 SC No.1276/2013
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SC No's.1362/2013 & 529/2016
School Road,
Doresanipalya, B.G. Road,
Bengaluru.
(By Sri R.V. Rajashekara, Advocate
for accused No.4)
1 Date of commission of offence 24.06.2013
2 Date of report of offence 01.07.2013
3 Date of arrest of the accused A-1, A-4 & A-6 = 01.07.2013
A-3 = 02.07.2013
A-5 = 20.10.2013
4 Date of release of accused on bail 19.02.2015 = A-1
06.08.2015 = A-3
18.12.2013 = A-4
08.07.2014 = A-5
23.11.2013 = A-6
5 Date of commencement of evidence 16.02.2015
6 Date of closing of evidence 09.01.2017
7 Name of the complainant B. Bharath
8 Offences complained of Sections 323, 364, 506(B),
302 & 201 r/w Sec.149
IPC.
9 Date of pronouncement of judgment 25.03.2017
10 Opinion of the Judge Guilt of the accused-
persons not proved
11 Order of Sentence As per final-order
COMMON-JUDGMENT
This is an original charge-sheet at SC No.1276/2013, filed
by the Police Inspector & SHO, MICO Layout police station,
Bengaluru City, leveling the charges against the above said
accused-persons for the commission of the offences punishable
U/Secs.323, 364, 506(B), 302 & 201 r/w Section 149 of IPC in the
committal VI ACMM Court, Bengaluru City, in it's CC
No.15506/2013 in connection with the MICO Layout P.S.
Cr.No.397/2013.
4 SC No.1276/2013
Connected
SC No's.1362/2013 & 529/2016
2. These are the split-up charge-sheets at SC No.1362/2013
and SC No.529/2016 filed by the Police Inspector & SHO, MICO
Layout police station, Bengaluru City, leveling the charges against
the above said accused No.5 and the accused No.4, respectively,
for the commission of the offences punishable U/Secs.323, 364,
506(B), 302 & 201 r/w Section 149 of IPC in the instant-court,
Bengaluru City, in connection with the MICO Layout P.S.
Cr.No.397/2013.
3. These SC No's.1362/2013 & 529/2016 against the
accused No's.5 & 4, respectively, having been split-up from the
original SC No.1276/2013 for the same and similar-offences, these
SC No's.1362/2013 & 529/2016 have been clubbed-with original
SC No.1276/2013 as per the order-sheets dated 06.03.2015 &
23.09.2016 of SC No's.1362/2013 & 529/2016, respectively, for
the purpose of common-evidence and for disposal on merits by way
of common-judgment.
4. The epitomized-facts of the allegations that are leveled
against the above said accused-persons in the charge-sheet/s run
thus:
The deceased Tilak Kumar and the accused No.3/George S/o
Anthonyraj both being in love with one-girl by name Arpitha who
was residing in their locality, there were differences between the
said deceased Tilak Kumar and accused No.3/George; but, later-on
the said deceased Tilak Kumar though married another-girl, he
5 SC No.1276/2013
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SC No's.1362/2013 & 529/2016
continued to love the said earlier-girl/Arpitha, for which the
accused No.3/George objected, as there were already differences
between them in connection with loving the said girl/Arpitha,
wherefore, the accused No.3/George was having the grudge against
the deceased Tilak Kumar, which factum was known to the
accused No.1; such being the background, on 24.06.2013 the
deceased Tilak Kumar came near the house of accused
No.1/Mariyappa and raised the scramble with his mother, which
factum having noticed by the accused No.1/Mariyappa, he called
the accused No.2/Nagaraja C @ Gajjinaga over phone, wherefore,
the said accused No.2/Gajjinaga, accused No.3/George S/o
Anthonyraj, accused No.4/Bala @ Balaraj Victor S/o Joseph,
accused No.5/Sampath @ Joseph Anilkumar and accused
No.6/Babu @ Babli S/o Devaraj came on 2 motor-bikes near
P.B.Bakery and the accused No.1/Mariyappa also having come
there-at at about 11.30 p.m. in the night, in prosecution with
common-object raised the scramble and assaulted on the cheeks of
the complainant/informant/B. Bharath and thereby, all the
accused-persons took/abducted the deceased Tilak Kumar in
order to murder him, to a vacant-site situated in between Apollo &
Forties Hospital at Sahyadri Layout, by threatening the
informant/B. Bharath to consume the Beer kept in the house of
accused No.4/Bala @ Balaraj Victor S/o Joseph and thereafter
having raised the scramble with the deceased Tilak Kumar by the
6 SC No.1276/2013
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SC No's.1362/2013 & 529/2016
accused-persons, the accused No.1 assaulted the deceased Tilak
Kumar with his hands, the accused No.2/Nagaraja pierced the
knife into the left-elbow of deceased Tilak Kumar, the accused
No.4/Bala @ Balaraj Victor, accused No.5/Sampath @ Joseph
Anilkumar and accused No.6/Babu @ Babli assaulted the
deceased Tilak Kumar with their hands and kicked him with their
legs and when the deceased Tilak Kumar fell-down, the accused
No.3/George S/o Anthonyraj put the sized-stone on the head of
the deceased Tilak Kumar and the accused No.2/Nagaraja also put
the same sized-stone on the deceased Tilak Kumar intentionally to
kill the deceased Tilak Kumar and thereby, all the accused No's.1
to 6 intentionally murdered the deceased Tilak Kumar; and
thereafter covered the dead-body of deceased Tilak Kumar with
mud and stones with an intention to causing disappearance of
evidence of the offence committed by them in order to screen
themselves from the legal-punishment and thereby, all the
accused-persons committed the offences punishable U/Secs.302,
364 & 201 r/w Section 149 of IPC.
5. After filing the charge-sheet, cognizance of the offences
punishable U/Secs.323, 364, 506(B), 302 & 201 r/w Section 149
of IPC was taken by VI ACMM Court, Bengaluru City.
In response to the process issued against the accused No's.1,
3, 4 & 6, they have put-in their appearance before the committal-
court, through their learned counsel.
7 SC No.1276/2013
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SC No's.1362/2013 & 529/2016
On moving for bail, the accused No.6 has been released on
bail, as per the order dated 19.11.2013 in Crl. Petition
No.6180/2013 of the Hon'ble High Court of Karnataka, Bengaluru.
On moving for bail, the accused No.4 has been released on
bail, as per the vide-order dated 17.12.2013 by this court.
On moving for bail, the accused No.1 has been released on
bail, as per the order dated 13.02.2015 in Crl. Petition
No.7839/2014 of the Hon'ble High Court of Karnataka, Bengaluru.
On moving for bail, the accused No.5 has been released on
bail, as per the vide-order dated 07.07.2014 by this court.
Copies of the charge-sheet and other-documents referred to
U/Sec.173 of Cr.P.C. were supplied to the accused-persons, by the
VI ACMM Court, Bengaluru City, in contemplation with the
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 VI ACMM
Court, Bengaluru City, the accused No.3 being in judicial-custody,
on moving for bail, the accused No.3 was earlier released on bail,
as per the order dated 30.07.2015 in Crl. Petition No.2324/2015 of
the Hon'ble High Court of Karnataka, Bengaluru. But, now,
accused No.3 being in judicial-custody in some-other-case, he is
secured under body-warrant in this case.
8 SC No.1276/2013
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SC No's.1362/2013 & 529/2016
After hearing both-sides, charges for the offences punishable
U/Secs.364, 302 & 201 r/w Section 149 of IPC were framed, and
the same were read-over, and explained to the accused-persons in
the vernacular best-known to them.
The accused-persons have denied the same and pleaded not
guilty and further claimed to be tried.
6. In order to prove the guilt against the accused-persons, the
prosecution has adduced the evidence of the witnesses, in all as
PWs.1 to 23, and placed it's reliance-on the documents marked at
Exs.P.1 to P.42, P.1(a), P.1(b), P.3(a), P.3(b), P.5(a), P.5(b), P.5(c),
P.5(d), P.6(a), P.6(b), P.8(a), P.8(b), P.9(a), P.10(a), P.10(b), P.11(a),
P.11(b), P.11(c), P.12(a), P.13(a), P.14(a), P.14(b), P.15(a), P.15(b),
P.16(a), P.17(a), P.18(a), P.19(a) to P.22(a), P.19(b) to P.22(b),
P.23(a), P.23(b), P.23(c), P.24(a), P.24(b), P.24(c), P.25(a), P.26(a),
28(a), 28(1), 28(2), 28(2)(a), 39(a), P.40(a), P.41(a), P.42(a), and the
material-objects marked on behalf of the prosecution are at MO
No's.1 to 14.
7. 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-persons
under the provisions U/Sec.313 of Cr.P.C., were recorded.
8. I have heard the arguments advanced by both the learned
Public Prosecutor for the State as-well-as the learned counsel for
the accused-persons.
9 SC No.1276/2013
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SC No's.1362/2013 & 529/2016
9. Now, the points that arise for my consideration are:
(1) Whether the death of deceased Tilak Kumar @
Tilak is a homicidal-death?
OR
........ deceased Tilak Kumar @ Tilak met with the
homicidal-death?
(2) Whether the prosecution proves beyond the
shadow of all the reasonable-doubts that, on
24.06.2013 at 11.30 p.m. in the night, the accused
No's.1 to 6 in prosecution with the common-object
abducted the deceased Tilak Kumar from P.B.Bakery
to a vacant-site situated in between Apollo & Forties
Hospital at Sahyadri Layout in Bengaluru City, in
order to murder him, and thereby, all the accused-
persons committed the offence punishable U/Sec.364
r/w Section 149 of IPC?
(3) Whether the prosecution further proves beyond
the shadow of all the reasonable-doubts that, on the
above said date, time and place, with the background
that the deceased Tilak Kumar and the accused
No.3/George S/o Anthonyraj both being in love with
one-girl by name, Arpitha who was residing in their
locality, there were differences between the said
deceased Tilak Kumar and accused No.3/George; but,
later-on the said deceased Tilak Kumar though
married another-girl, he continued to love the said
earlier-girl/Arpitha, for which the accused
No.3/George objected, as there were already
differences between them in connection with loving the
said girl/Arpitha, wherefore, the accused No.3/George
was having the grudge against the deceased Tilak
10 SC No.1276/2013
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SC No's.1362/2013 & 529/2016
Kumar, which factum was known to the accused No.1;
on 24.06.2013 the deceased Tilak Kumar came near
the house of accused No.1/Mariyappa and raised the
scramble with his mother, which factum having
noticed by the accused No.1/Mariyappa, he called the
accused No.2/Nagaraja C @ Gajjinaga over phone,
wherefore, the said accused No.2/Gajjinaga, accused
No.3/George S/o Anthonyraj, accused No.4/Bala @
Balaraj Victor S/o Joseph, accused No.5/Sampath @
Joseph Anilkumar and accused No.6/Babu @ Babli
S/o Devaraj came on 2 motor-bikes near P.B.Bakery
and the accused No.1/Mariyappa also having come
there-at at about 11.30 p.m. in the night, in
prosecution with common-object raised the scramble
and assaulted on the cheeks of the
complainant/informant/B. Bharath and thereby, all
the accused-persons took/abducted the deceased
Tilak Kumar in order to murder him, to a vacant-site
situated in between Apollo & Forties Hospital at
Sahyadri Layout, by threatening the informant/B.
Bharath to consume the Beer kept in the house of
accused No.4/Bala @ Balaraj Victor S/o Joseph and
thereafter having raised the scramble with the
deceased Tilak Kumar by the accused-persons, the
accused No.1 assaulted the deceased Tilak Kumar
with his hands, the accused No.2/Nagaraja pierced the
knife into the left-elbow of deceased Tilak Kumar, the
accused No.4/Bala @ Balaraj Victor, accused
No.5/Sampath @ Joseph Anilkumar and accused
No.6/Babu @ Babli assaulted the deceased Tilak
Kumar with their hands and kicked him with their legs
and when the deceased Tilak Kumar fell-down, the
11 SC No.1276/2013
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SC No's.1362/2013 & 529/2016
accused No.3/George S/o Anthonyraj put the sized-
stone on the head of the deceased Tilak Kumar and
the accused No.2/Nagaraja also put the same sized-
stone on the deceased Tilak Kumar intentionally to kill
the deceased Tilak Kumar and thereby, all the accused
No's.1 to 6 intentionally murdered the deceased Tilak
Kumar, and thereby, all the accused-persons
committed the offence punishable U/Sec.302 r/w
Section 149 of IPC?
(4) Whether the prosecution further proves beyond
the shadow of all the reasonable-doubts that, on the
above said date, time and place, after committing the
murder of deceased Tilak Kumar, all the accused
No's.1 to 6 in prosecution with common-object covered
the dead-body of the deceased Tilak Kumar with mud
and stones with an intention to causing disappearance
of evidence of the offence committed by them in order
to screen themselves from the legal-punishment, and
thereby, all the accused-persons committed the offence
punishable U/Sec.201 r/w Section 149 of IPC?
(5) Whether the accused-persons are liable to be
convicted for the alleged offences?
(6) What order?
10. My findings on the above said points are as under:
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 .. As per the final-order,
for the following:
12 SC No.1276/2013
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REASONS
11. Point No.1:- According to the case of the prosecution, the
deceased Tilak Kumar and the accused No.3/George S/o
Anthonyraj both being in love with one-girl by name, Arpitha who
was residing in their locality, there were differences between the
said deceased Tilak Kumar and accused No.3/George; but, later-on
the said deceased Tilak Kumar though married another-girl, he
continued to love the said earlier-girl/Arpitha, for which the
accused No.3/George objected, as there were already difference
between them in connection with loving the said girl/Arpitha,
wherefore, the accused No.3/George was having the grudge against
the deceased Tilak Kumar, which factum was known to the
accused No.1; such being the background, on 24.06.2013 the
deceased Tilak Kumar came near the house of accused
No.1/Mariyappa and raised the scramble with his mother, which
factum having noticed by the accused No.1/Mariyappa, he called
the accused No.2/Nagaraja C @ Gajjinaga over phone, wherefore,
the said accused No.2/Gajjinaga, accused No.3/George S/o
Anthonyraj, accused No.4/Bala @ Balaraj Victor S/o Joseph,
accused No.5/Sampath @ Joseph Anilkumar and accused
No.6/Babu @ Babli S/o Devaraj came on 2 motor-bikes near
P.B.Bakery and the accused No.1/Mariyappa also having come
there-at at about 11.30 p.m. in the night, in prosecution with
common-object raised the scramble and assaulted on the cheeks of
13 SC No.1276/2013
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SC No's.1362/2013 & 529/2016
the complainant/informant/B. Bharath and thereby, all the
accused-persons took/abducted the deceased Tilak Kumar in
order to murder him, to a vacant-site situated in between Apollo &
Forties Hospital at Sahyadri Layout, by threatening the
informant/B. Bharath to consume the Beer kept in the house of
accused No.4/Bala @ Balaraj Victor S/o Joseph and thereafter
having raised the scramble with the deceased Tilak Kumar by the
accused-persons, the accused No.1 assaulted the deceased Tilak
Kumar with his hands, the accused No.2/Nagaraja pierced the
knife into the left-elbow of deceased Tilak Kumar, the accused
No.4/Bala @ Balaraj Victor, accused No.5/Sampath @ Joseph
Anilkumar and accused No.6/Babu @ Babli assaulted the
deceased Tilak Kumar with their hands and kicked him with their
legs and when the deceased Tilak Kumar fell-down, the accused
No.3/George S/o Anthonyraj put the sized-stone on the head of
the deceased Tilak Kumar and the accused No.2/Nagaraja also put
the same sized-stone on the deceased Tilak Kumar intentionally to
kill the deceased Tilak Kumar and thereby, all the accused No's.1
to 6 intentionally murdered the deceased Tilak Kumar, and
thereby, all the accused-persons committed the offence punishable
U/Sec.302 r/w Section 149 of IPC.
12. Therefore, it is incumbent-upon this court to look-into as
to whether the death of the deceased Tilak Kumar @ Tilak is a
homicidal-death or otherwise?. Undoubtedly, there is no dispute
14 SC No.1276/2013
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in respect of the death of the said Tilak Kumar @ Tilak, aged of 23
years, is concerned. But, however, the dispute is only in respect of
the nature of the death of the deceased i.e., as to how and in what
way he has met with the homicidal-death.
13. In respect of the same, the prosecution has got examined
the PW.15/Dr. C.N. Sumangala, who is none-other than the
Medical-Officer having conducted the post-mortem, who has
endeavored to depose in favour of the prosecution in respect of she
having conducted the post-mortem of the deceased Tilak Kumar on
02.07.2013 from 2.00 p.m. to 3.15 p.m. in the afternoon, in the
mortuary of Victoria Hospital, Bengaluru, in connection with the
MICO Layout police-station Cr.No.397/2013 and thereafter issued
the post-mortem-report as per Ex.P.14, on which her signature is
as per Ex.P.14(a) giving specific-opinion with regard to the cause of
death of the deceased Tilak Kumar as due to head-injury
sustained. It is also deposed by the PW.15 that, on 10.09.2013,
the MICO Layout police having sent a knife and a sized-stone as
per MO No's.10 & 11, respectively, for forming the opinion and
accordingly, on examining the said MO No's.10 & 11, she has given
her opinion-report as per Ex.P.15, on which her signature is as per
Ex.P.15(a), opining that the injuries mentioned in the post-
mortem-report as per Ex.P.14 are likely to be caused with the MO
No's.10 & 11. Thereafter, she has sent MO No's.10 & 11 to the
concerned MICO Layout police, by packing and sealing the same
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and thereafter, on 04.02.2014, she has sucked/collected the
blood-sample of the mother of the deceased Tilak Kumar by name,
Kamala W/o MICO Siddaraju with her consent for the purpose of
DNA-examination and got filled identification-form as per Ex.P.16,
on which her signature is as per Ex.P.16(a). It is further opined by
the PW.15 that, if a sized-stone put-on the head, the death will
cause and the death of the deceased was taken place one-week
prior to conducting of the post-mortem, wherefore, the
flies/maggots were flying there-on the said dead-body.
14. Accordingly, the said PW.15 having issued the Exs.P.14
to P.16, Ex.P.14/post-mortem-report discloses the details as
under:
External-appearance:
Dead-body is that a male measuring 165 cm in length, foul
smelling and is a highly decomposed state. Soft tissues of scalp,
face, neck, right-shoulder and axillary-region. Right-side of front of
Abdomen, Right-forearm and hand, left-forearm and hand, inner
aspect of both-thighs are missing. Adipocere formation noted at
places over the chest and Abdomen. Face is depressed, front to
back with fractures involving the bones of the forehead, eye-
sockets, nose, right-cheek and mandible. Maggots varying in size
from 1 to 1.5 cm present crawling in clusters at places.
Scalp: Missing
Skull: Communited Discoloured Brain: Liquified
fracture over an area Lacerated into a pinkish
of 4 X 4 cm present corresponding mass.
over the frontal-bone to the fracture
in the midline. site.
Vertebrae: Intact
Softened Softened Heart: Soft, flabby
Discoloured and and and
discoloured discoloured discoloured
Softened Stomach -
16 SC No.1276/2013
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Discoloured and empty smell Gas and it's Softened
Discoloured of decomposition contents and Softened
discoloured
Mucosa - discoloured
Softened and Softened and External Genitalia:
discoloured discoloured
Distended
Internal Genitalia:
Softened and
discoloured
Clothes and Articles found over the body:
1. White full-sleeved T-shirt.
2. White sandow-banyan.
3. Blue-jeans-pant labeled 'DIESEL'.
4. White underwear labeled 'JOCKEY'.
5. Black and white NOKIA mobile-phone-set with 'IDEA'
sim-card in the right-pant-pocket.
After examination, the above mentioned clothes and articles are
packed, labeled and sealed and handed-over to the concerned
police along-with sample-seal.
- Viscera has been collected, preserved, labeled, sealed and
sent to Forensic Science Laboratory for chemical-analysis.
- Lower-end of femur and upper-left 4 teeth have been sent
to DNA Analysis Centre for DNA analysis and confirmation.
- Fracture of Right Zygomatic-bone, Nasal-bones, both
maxilla and mandible noted fractured-bone-ends show
black-pigment.
Opinion as to the cause of death
"DEATH IS DUE TO HEAD-INJURY SUSTAINED.
However, viscera has been sent for chemical-analysis."
15. Similarly, the opinion regarding MO No's.10 & 11 in
Ex.P.15 reads thus:
"OPINION:
On perusal of P.M. report and examination of the articles, I
am of the opinion that, it is possible to sustain such external and
internal-head-injury mentioned in the P.M. report, when
assaulted with the type of sized-stone - article No.8 examined.
After examination, the articles are affixed with the sticker,
which bears my signature and date, re-packed, resealed and
handed-over to concerned police along-with sample-seal."
17 SC No.1276/2013
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16. In addition to the same, the prosecution has got
examined the PW.14/Dr. Chandrashekar, who is none-other than
the Scientific-Officer, FSL, Bengaluru, has also endeavored to
depose in favour of the prosecution in respect of he having
examined the MO No's.2 to 14, which were sent on 20.08.2013 by
the MICO Layout police-station Cr.No.397/2013 and in view of
having entrusted the work of scientifically examining the same by
his Assistant-Director, FSL, Bengaluru, he has scientifically
examined accordingly the said MO No's.2 to 14, whereby item
No's.1, 2 & 5 to 13 disclosed the bloodstains thereon, whereas, on
the item No's.3 & 4, no bloodstains were detected and the
bloodstains detected on item No's.1,2 & 5 to 13 were belonging to
the human-blood with 'A' group, in respect of which he has issued
a report as per Ex.P.13, on which his signature is as per
Ex.P.13(a). It is further deposed by the PW.14 that, after examining
the said MO No's.2 to 14, he re-packed the same and put the FSL-
seals thereon and sent the same with his opinion-report as per
Ex.P.13 to the MICO Layout police, through the Director of FSL,
Bengaluru. Even, he has identified all the said MO No's.2 to 14 in
the open-court.
17. Further, apart from the same, the PW.20/Dr. M.D.
Goutham, who is none-other the Scientific-Officer, FSL, Bengaluru,
has also endeavored to depose in favour of the prosecution to the
extent that, while he was on OOD at FSL, Bengaluru, from
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11.11.2013 to 16.11.2013, on 20.08.2013 having received 3
sealed-items by the FSL from MICO Layout police-station in
connection with it's Cr.No.397/2013, through it's PC No.3453, it's
work was entrusted to him to scientifically examine and give the
opinion and accordingly, on opening the said sealed-packet, item
No.1 was containing to human-stomach and portion of the small-
intestine; and item No.2 was containing the portions of the liver
and kidneys and similarly, item No.3 was containing the liquid-salt
and on examining the said item No's.1 to 3 scientifically by
chemical-analysis, he found that item No's.1 & 2 were taken with
ethyl-alcohol, whereas, nothing was detected from item No.3 and in
respect of the same, he has issued the opinion-report as per
Ex.P.24, on which his signature is as per Ex.P.24(a) and the
signatures of his Deputy-Director and Director thereon are as per
Exs.P.24(b) & P.24(c), respectively, and thereafter, he has
destroyed the said item No's.1 to 3 as per medical-instructions.
18. Even, the PW.13/S.P. Manjunath being the police-
constable having carried the material-objects to FSL and collected
the blood of the mother of deceased Tilak Kumar and produced
before the investigating-officer/CW.35/PW.22, has also endeavored
to depose in favour of the prosecution in his chief-examination to
the effect that, on 20.08.2013, PW.22/CW.35- L.Y.Rajesh/Police-
Inspector having directed him to hand-over the seized and sealed-
packets of material-objects in connection with the
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Cr.No.397/2013, to the FSL, accordingly he went and handed-over
the said sealed-packets of the material-objects to the FSL and by
returning he has submitted a report before the PW.22/CW.35, as
per Ex.P.12, on which his signature is as per Ex.P.12(a) and
similarly, on 04.02.2014, he had taken the mother of deceased
Tilak Kumar, by name, Kamala to Victoria Hospital and got
sucked/collected the blood for DNA test purpose and thereafter
brought the same and produced before the PW.22/CW.35.
19. On meticulous-consideration of these-depositions of the
PWs.15, 14, 20 & 13, it is clear on the face of record prima-facie
that the death of the deceased Tilak Kumar was not a natural-
death, whereas, it was a homicidal-death, in respect of which the
prosecution on the face of record has established, but nothing is
forthcoming on record contrary to the same, from the other-side.
20. Therefore, under all these circumstances, this court can
safely arrive-at a conclusion and hold that the death of deceased
Tilak Kumar was a homicidal-death. Therefore, with these
observations, this court is inclined to answer the Point No.1 in the
'Affirmative'.
21. Point No's.2 to 4:- To avoid reiteration of material
available in hand and to appreciate the evidence in better-position,
I hereby take-up Point No's.2 to 4 together admixingly for
discussion.
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22. It is the specific-tale of the prosecution that, the
deceased Tilak Kumar and the accused No.3/George S/o
Anthonyraj both being in love with one-girl by name, Arpitha who
was residing in their locality, there were differences between the
said deceased Tilak Kumar and accused No.3/George; but, later-on
the said deceased Tilak Kumar though married another-girl, he
continued to love the said earlier-girl/Arpitha, for which the
accused No.3/George objected, as there were already difference
between them in connection with loving the said girl/Arpitha,
wherefore, the accused No.3/George was having the grudge against
the deceased Tilak Kumar, which factum was known to the
accused No.1; such being the background, on 24.06.2013 the
deceased Tilak Kumar came near the house of accused
No.1/Mariyappa and raised the scramble with his mother, which
factum having noticed by the accused No.1/Mariyappa, he called
the accused No.2/Nagaraja C @ Gajjinaga over phone, wherefore,
the said accused No.2/Gajjinaga, accused No.3/George S/o
Anthonyraj, accused No.4/Bala @ Balaraj Victor S/o Joseph,
accused No.5/Sampath @ Joseph Anilkumar and accused
No.6/Babu @ Babli S/o Devaraj came on 2 motor-bikes near
P.B.Bakery and the accused No.1/Mariyappa also having come
there-at at about 11.30 p.m. in the night, in prosecution with
common-object raised the scramble and assaulted on the cheeks of
the complainant/informant/B. Bharath and thereby, all the
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accused-persons took/abducted the deceased Tilak Kumar in
order to murder him, to a vacant-site situated in between Apollo &
Forties Hospital at Sahyadri Layout, by threatening the
informant/B. Bharath to consume the Beer kept in the house of
accused No.4/Bala @ Balaraj Victor S/o Joseph and thereafter
having raised the scramble with the deceased Tilak Kumar by the
accused-persons, the accused No.1 assaulted the deceased Tilak
Kumar with his hands, the accused No.2/Nagaraja pierced the
knife into the left-elbow of deceased Tilak Kumar, the accused
No.4/Bala @ Balaraj Victor, accused No.5/Sampath @ Joseph
Anilkumar and accused No.6/Babu @ Babli assaulted the
deceased Tilak Kumar with their hands and kicked him with their
legs and when the deceased Tilak Kumar fell-down, the accused
No.3/George S/o Anthonyraj put the sized-stone on the head of
the deceased Tilak Kumar and the accused No.2/Nagaraja also put
the same sized-stone on the deceased Tilak Kumar intentionally to
kill the deceased Tilak Kumar and thereby, all the accused No's.1
to 6 intentionally murdered the deceased Tilak Kumar; and
thereafter covered the dead-body of deceased Tilak Kumar with
mud and stones with an intention to causing disappearance of
evidence of the offence committed by them in order to screen
themselves from the legal-punishment and thereby, the accused-
persons committed the offences punishable U/Secs.364, 302 &
201 r/w Section 149 of IPC.
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23. At the very outset, the absolute burden of proving the
alleged imputations against the accused-persons is casted-upon
the prosecution alone in pursuance with the provisions under the
Indian Evidence Act, 1872.
24. To substantiate it's case, the prosecution has got
examined in all the witnesses as PWs.1 to 23, in which CW.1 is
examined as PW.2 who is the complainant as-well-as the partial-
eyewitness, CW.2 is examined as PW.1 who is the mother of the
deceased as-well-as the hearsay-witness, CW.3 is examined as
PW.11 who is the spot-mahazar-witness, CW.5 is examined as
PW.17 who is the seizure-mahazar-witness, CWs.6 & 7 are
examined as PWs.9 & 10, respectively, who are the seizure of the
dead-body as-well-as the MO No's.5 to 10 mahazar-witnesses,
CW.8 is examined as PW.3 who is the spot-mahazar-witness,
CW.11 is examined as PW.4 who is the inquest-mahazar-witness,
CW.12 is examined as PW.12 who is the younger-sister of the
deceased as-well-as the hearsay-witness, CW.13 is examined as
PW.5 who is the circumstantial-witness, CW.19 is examined as
PW.23 who is the seizure-mahazar-witness, CW.22 is examined as
PW.15 who is the Medical-Officer having conducted the post-
mortem and given the opinion regarding a knife and sized-stone
marked at MO No's.10 & 11, respectively, CW.23 is examined as
PW.6 who is the police-constable as-well-as the circumstantial-
witness, CW.24 is examined as PW.13 who is also the police-
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constable having carried the material-objects to FSL as-well-as the
circumstantial-witness, CW.25 is examined as PW.16 who is the
ASI having nabbed the accused No's.3 & 5 and produced before the
investigating-officer as-well-as the circumstantial-witness, CW.26
is examined as PW.7 who is the Head-Constable having nabbed the
accused-persons as-well-as the circumstantial-witness, CW.32 is
examined as PW.8 who is the Head-Constable having carried the
First Information Report to the court, CW.33 is examined as PW.21
who is also the Head-Constable having registered the missing-
complaint, CW.34 is examined as PW.18 who is the initial-partial-
investigating-officer, CW.35 is examined as PW.22 who is the
investigating-officer of the later-part of the investigation, CW.36 is
examined as PW.14 who is the Scientific-Officer of FSL, Bengaluru,
CW.37 is examined as PW.20 who is also the Scientific-Officer of
FSL, Bengaluru, and CW.38 is examined as PW.19 who is also the
Scientific-Officer of FSL, Bengaluru, and thereby, the prosecution
has placed it's reliance-on the documentations marked at Exs.P.1
to P.42, in which Ex.P.1 is the complaint of the PW.1, Ex.P.1(a) is
the signature of the PW.1, Ex.P.1(b) is the signature of the PW.21,
Ex.P.2 is the relevant-portion of the statement of PW.1, Ex.P.3 is
the complaint of the PW.2, Ex.P.3(a) is the signature of the PW.2,
Ex.P.3(b) is the signature of the PW.18, Ex.P.4 is the additional-
statement of the PW.2, Ex.P.5 is the mahazar, Ex.P.5(a) is the
signature of the PW.3, Ex.P.5(b) is the signature of the PW.9,
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Ex.P.5(c) is the signature of the PW.10, Ex.P.5(d) is the signature of
the PW.18, Ex.P.6 is the inquest-panchanama, Ex.P.6(a) is the
signature of the PW.4, Ex.P.6(b) is the signature of the PW.22,
Ex.P.7 is the statement of the PW.5, Ex.P.8 is the report of the
PW.6, Ex.P.8(a) is the signature of the PW.6, Ex.P.8(b) is the
signature of the PW.22, Ex.P.9 is the report of the PW.6, Ex.P.9(a)
is the signature of the PW.6, Ex.P.10 is the statement of the PW.8,
Ex.P.10(a) is the signature of the PW.8, Ex.P.10(b) is the signature
of the PW.18, Ex.P.11 is the spot-panchanama, Ex.P.11(a) is the
signature of the PW.11, Ex.P.11(b) is the signature of the PW.17,
Ex.P.11(c) is the signature of the PW.18, Ex.P.12 is the report of
the PW.13, Ex.P.12(a) is the signature of the PW.13, Ex.P.13 is the
report of the PW.14, Ex.P.13(a) is the signature of the PW.14,
Ex.P.14 is the post-mortem report, Ex.P.14(a) is the signature of
the PW.15, Ex.P.14(b) is the signature of the PW.22, Ex.P.15 is the
opinion-report of the PW.15, Ex.P.15(a) is the signature of the
PW.15, Ex.P.15(b) is the signature of the PW.22, Ex.P.16 is the
identification-form, Ex.P.16(a) is the signature of the PW.15,
Ex.P.17 is the report of the PW.16, Ex.P.17(a) is the signature of
the PW.16, Ex.P.18 is the First Information Report, Ex.P.18(a) is
the signature of the PW.18, Exs.P.19 to P.22 are the self-voluntary-
statements of the accused No's.1, 2, 4 & 6, Exs.P.19(a) to P.22(a)
are the signatures of the PW.18, Exs.P.19(b) to P.22(b) are the
signatures of the accused No's.1, 2, 4 & 6, Ex.P.23 is the DNA
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profile-report, Ex.P.23(a) is the signature of the PW.19, Ex.P.23(b)
is the signature of the Deputy-Director, Ex.P.23(c) is the signature
of the Director, Ex.P.24 is the FSL-opinion-report, Ex.P.24(a) is the
signature of the PW.20, Ex.P.24(b) is the signature of the Deputy-
Director, Ex.P.24(c) is the signature of the Director, Ex.P.25 is the
First Information Report, Ex.P.25(a) is the signature of the PW.21,
Ex.P.26 is the seizure-panchanama of red-color Suzuki Axis
Scooter, Ex.P.26(a) is the signature of the PW.22, Ex.P.27 is the
color-photograph of the Axis Scooter, Ex.P.28(1) is the seizure-
panchanama of the yellow-color-banyan and knife, Ex.P.28(2) is
the seizure-panchanama of sized-stone, Ex.P.28(a) is the signature
of the PW.22, Ex.P.28(2)(a) is the signature of the PW.23, Exs.P.29
to P.33 are the self-voluntary-statements of the accused No's.1 to 4
& 6, Exs.P.34 to P.38 are the color-photographs for having taken at
the time of seizure-panchanama, Ex.P.39 is the original-sketch of
the spot of incident, Ex.P.39(a) is the signature of the PW.22,
Ex.P.40 is the CDR particulars pertaining to the mobile-number of
accused No.2 in respect of having tower-coverage, Ex.P.40(a) is the
signature of the PW.22, Ex.P.41 is the seizure-panchanama of
black-color-bike, Ex.P.41(a) is the signature of the PW.22, Ex.P.42
is the report dated 04.02.2014 and Ex.P.42(a) is the signature of
the PW.22, and the material-objects marked on behalf of the
prosecution are at MO No's.1 to 14, in which MO No.1 is the
bloodstained-shirt, MO No.2 is the bloodstained-jeans-pant, MO
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No.3 is the bloodstained-banyan, MO No.4 is the bloodstained-
underwear, MO No's.5 to 7 are the sample-mud-packets, MO
No's.5(a) to 7(a) are the signatures of the PW.3, MO No.8 is the
Nokia-Mobile and Idea-simcard, MO No.9 is the pant, MO No.10 is
the knife (ZÀÆj), MO No.11 is the sized-stone, MO No.12 is the T-
shirt, MO No.13 is the banyan and MO No.14 is the jeans-pant.
25. On meticulous-perusal of the entire-depositions of the
PWs.1 to 23, it is crystal clear that, the PW.2/Bharath being the
complainant as-well-as the partial-eyewitness, PWs.11 &
17/Nagaraja & Aiyappa, respectively, being the spot-cum-seizure-
mahazar-witnesses and PW.5/Raju being the circumstantial-
witness, have absolutely turned hostile to the prosecution by
exhibiting their animus of hostility, for which the learned Public
Prosecutor was inclined to 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.3, P.4, P.7 & P.11, respectively.
26. Further, the PW.1/Smt. Kamala W/o Siddaraju being
the mother of the deceased Tilak Kumar as-well-as the hearsay-
witness, has endeavored to depose in favour of the prosecution to
some-extent in her chief-examination to the effect that, the
deceased Tilak Kumar being her son being married, was having a
girl-child and he was working as a driver on the vehicle belonging
to the furniture-shop, whereas, she is working in Day-Care Center
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as attender. Herself, her son, her daughter-in-law, her daughter,
her younger-brother and his wife, with her father and mother were
staying in the same house. On 24.06.2013, after returning from
the work in the night at about 9 - 9.30 p.m. Tilak Kumar handed-
over the packet of Bonda to his younger-sister and went-out
stating that he would be attending the birthday-function of his
friend and thereafter, he did-not return to the house at-all. The
said Tilak Kumar being aged of 23 years was often use to go to
various temples for about 2 - 3 days and never use to return-back
to the house, wherefore, under the impression that he had been to
some-other temple, she waited for him; but, as Tilak Kumar did-
not return-back for 4 days there-from, she went and lodged the
missing-complaint on Friday before the police, as per Ex.P.1, on
which her signature is as per Ex.P.1(a). On the very-next Monday,
the police called her to identify the dead-body, which was stated to
be found and accordingly herself, her younger-sister and sister's-
husband, and her daughter went to the open-place besides Apollo
Hospital and saw the dead-body which was absolutely
decomposed; but she identified the said dead-body as belonging to
her son Tilak Kumar basing-on the apparels on it, as they were
yellow and white-colored T-shirt and blue-colored-pant. Even, her
son Tilak Kumar being height than her, with dark-complexion.
Thereafter the post-mortem, the dead-body of Tilak Kumar was
given to her on Tuesday. She has identified the bloodstained-shirt
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as MO No.1, bloodstained-jeans-pant as MO No.2, bloodstained-
banyan as MO No.3 and bloodstained-underwear as per MO No.4.
Further, she has stated that she does-not know who has murdered
her son and she has never seen the accused No's.1 to 5 who were
present before the court and even she cannot identify a mobile as
to whether it was belonging to her deceased son Tilak Kumar or
otherwise?. Even, she does-not know as to who is one Bharath
and the police have not recorded the statement at the time of
inquest-mahazar and thereby turned hostile to the prosecution by
exhibiting her animus of hostility, for which the learned Public
Prosecutor was inclined to cross-examine her at much-length; but,
no worth-relying material has been elicited and extracted through
her mouth except the version by way of admission that she came
to know that the murder of her son Tilak Kumar was taken place
in connection with the grudge between her son Tilak Kumar and
accused No.3/George in connection with loving a girl.
27. Even, in the cross-examination by the learned counsel
for the accused, she (PW.1) has responded that earlier her son
Tilak Kumar was loving a girl; but after his marriage, there was no
any relationship with the said earlier-girl, when he was suggested
by the learned counsel for the accused that there was no any
grudge between her son Tilak Kumar and accused No.3/George
S/o Anthonyraj in connection with loving a girl. Even, the PW.1
has fatally stated that there is no relationship/nexus between the
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murder of her son Tilak Kumar and accused No.3/George and also
loving the girl. These 2 versions of the PW.1 are absolutely
emanating in the nature of major-discrepancies fatalling the very-
crux of the prosecution's-tale. Therefore, under all these
circumstances, though the PW.1 has given a single-admission in
the cross-examination by the learned Public Prosecutor, ultimately
the prosecution has failed to elicit and extract the worth-relying
material through her mouth in favour of the prosecution's-tale,
wherefore, the prosecution having utterly failed to establish the
Ex.P.2 through her mouth, the entire-deposition of the PW.1 does-
not come to the aid and assistance of the prosecution as it is
absolutely worthless, under the circumstances prevailing herein.
28. Further, the PW.9/Manjunath S/o Annayappa being the
seizure of dead-body-mahazar-witness, has endeavored to depose
in favour of the prosecution in his chief-examination to the effect
that, on 01.07.2013 in the night at about 10.30 p.m. near open-
place situated besides Apollo Hospital on Bannerghatta Road
stated to be the spot of incident where the deceased Tilak Kumar
was murdered, the accused No.2/Gajjinaga led him and the police
to the said spot in the police-jeep, where-at the police in the torch-
light on removing the stones and the heap of soil, a male dead-
body without hairs on the head with obnoxious decomposed-smell
with maggots on the leg, was found, wherefore, the police wound
the said dead-body in a white-cloth under a panchanama, and
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thereafter the police have obtained his signature in the police-
station on the said panchanama as per Ex.P.5, on which his
signature is as per Ex.P.5(a) and except the same, the police have
not seized any material in presence of him and thereby turned
hostile to the prosecution by exhibiting his animus of hostility, for
which the learned Public Prosecutor was inclined to cross-examine
him suggesting that MO No's.5 to 7/mud-samples were seized in 3
different packets by the police in presence of him; but,
unfortunately, the PW.9 has denied the said suggestion.
29. It is also significant to note that, in the cross-
examination by the learned counsel for the accused, he (PW.9) has
disclosed his no knowledge and pleaded ignorance regarding the
contents of Ex.P.5 and also stated that the police have not read-
over the same to him, but he has signed only at the say of the
police. It is also pertinent to note that, in the chief-examination
itself, the PW.9 has clearly stated that the said dead-body was
seized by the police in a white-cloth from the spot under a
panchanama; but, his signature has been obtained in the police-
station, as per Ex.P.5(a). It is also pertinent to note that, if really
the said dead-body was seized by the police as stated by the PW.9,
in presence of him under a mahazar as per Ex.P.5, I fail to
understand as to what prevented the concerned police to obtain
his signature on the spot itself and what was the reason for
obtaining his signature in the police-station. This particular aspect
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having remained absolutely under darkness with cloudy-
circumstances without any clarification, it creates the fatal-doubts
in the mind of this court regarding the very-genuinity of Ex.P.5 and
also drawing of the same, seizure of MO No's.5 to 7 and seizing of
the said dead-body of Tilak Kumar in presence of the PW.9
specifically at the show and behest of accused No.2/Gajjinaga from
the open-site besides Apollo Hospital specifically. Therefore, the
prosecution has utterly failed to establish the Ex.P.5 through the
mouth of the PW.9, wherefore, his deposition also does-not come to
the aid and assistance of the prosecution, in any way.
30. Further, the PW.10/Nagaraj S/o Somaiah being the
seizure of MO No's.5 to 7 mahazar-witness and also the spot-
mahazar-witness, has also endeavored to depose in favour of the
prosecution in his chief-examination as stated by the PW.9 in his
chief-examination, and also identified the MO No's.5 to 7 stating
that the same were seized from the spot under Ex.P.5, on which
his signature is as per Ex.P.5(c).
31. But, in the cross-examination by the learned counsel for
the accused, he (PW.10) has clearly stated that, apart from himself
and CW.6/PW.9, about 5 - 6 other-persons were also present and
others had signed on the said Ex.P.5 prior to him who have not
signed thereon in presence of him. In addition to the same, the
PW.10 has further stated that the police had not given any prior-
notice to him for becoming the mahazar-witness. On consideration
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of these-versions of the PW.10 in the cross-examination by the
learned counsel for the accused consolidatingly, if really the said 5
- 6 persons were other-than himself (PW.10), were present on the
spot and signed already before he signed thereon but not in
presence of him, it clearly goes to indicate that the said alleged
panchanama as per Ex.P.5 has not been drawn in presence of him
by the police because, if really the said Ex.P.5 was drawn in
presence of PW.10 by the police, then the question of 5 - 6 other-
persons who are stated to be present during that particular point
of time could not be expected to sign thereon the said alleged
Ex.P.5/mahazar behind and back of the said PW.10. This
particular aspect has absolutely remained under darkness which
further leads to doubt regarding the seizure of MO No's.5 to 7 and
also the dead-body of deceased Tilak Kumar in presence of him
from the spot itself at the behest and show of the accused
No.2/Gajjinaga and accused No.4/Bala @ Balaraj Victor
specifically from the said spot itself. Therefore, even the
prosecution has utterly failed to establish the Ex.P.5 through the
mouth of the PW.10, whose deposition also does-not come to the
aid and assistance of the prosecution, under the circumstances
prevailing herein.
32. Further, the PW.3/Mallappa Thammanna Inapur S/o
Thammanna Inapur being the spot-cum-seizure-mahazar-witness,
has also endeavored to depose in favour of the prosecution in his
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chief-examination to the effect that, on 01.07.2013 at about 6.00
p.m. in the evening, the MICO Layout police secured him to the
police-station and thereafter, the police took him and FSL officers
to the spot of incident situated near Apollo Hospital on
Bannerghatta Road, in the open-site, and stated the ditch besides
the said road as the spot where the dead-body of a person after
murdering him is thrown there-at and accordingly, when they saw
there, both the hands were able to be seen partly and remaining-
body was hidden under the stones and soil and the police secured
the petromax-gas for the purpose of focusing/throwing light
thereon, where-at he saw the dead-body with T-shirt and pant
without the hairs on the head and the entire-body with skin was
decomposed, during which time the FSL and police-officers seized
the stones and soil from the said spot and seized the said dead-
body with a cloth under the mahazar as per Ex.P.5, on which his
signature is as per Ex.P.5(a), during which time the local-panchas
and 4 accused-persons were present. He has identified the said
MO No's.1 to 5 stating that they were seized from the spot in
presence of him and his signatures thereon the said MO No's.5 to 7
are as per MO No's.5(a) to 7(a).
33. But, in the cross-examination by the learned counsel for
the accused, he (PW.3) has stated clearly that no prior-notice was
issued to him by the police and the said accused-persons have
stated their names respectively in the police-station, but he cannot
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identify the said accused-persons with their names specifically and
also he does-not know the names of FSL officers who had come to
the spot. It is further stated that, he does-not know the name and
address of the deceased and also he does-not know which
uniform/dress was worn by the deceased because, everything was
decomposed. Apart from the same, in view of scarcity of the light
on the spot, the police have written the mahazar as per Ex.P.5 at
some-distance there-from and though others were signing thereon,
he does-not know who has signed thereon specifically and also he
cannot say as to who has written the said Ex.P.5. It is further
stated that, it is very difficult to say the boundaries of the said spot
of the alleged incident. Even, he has disclosed his non-
remembrance that whether he has signed in the police-station as
per MO No's.5(a) to 7(a). But, unfortunately, he has not denied the
same. Even, he has disclosed his no knowledge that who-else have
signed on MO No's.5 to 7 and also he does-not know which police-
officer had signed there-on the said MO No's.5 to 7 and also he
does-not know where the said soil was packed by the police in the
said MO No's.5 to 7 packets. On meticulous-consideration of
these-versions of the PW.3 consolidatingly, though he has
endeavored to depose in favour of the prosecution in his chief-
examination, he has tried to disclose his no knowledge and non-
remembrance with regard to the material aspects, in his cross-
examination by the learned counsel for the accused, which
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certainly goes to dismantle the very-crux of his own-chief-
examination creating the major-discrepancies resulting-into
suspicious-circumstances in the mind of this court, wherefore, it is
unsafe to rely-on the very-deposition of the PW.3, as the
prosecution has utterly failed to establish the Ex.P.5 and also
seizure of MO No's.5 to 7 through the mouth of the PW.3.
34. Further, the PW.4/Prashanth S/o Swaminathan being
the inquest-mahazar-witness, has endeavored to depose in favour
of the prosecution in his chief-examination to the effect that, about
2 - 3 years-back one-day the family-members of the deceased Tilak
Kumar brought to his notice regarding the murder of deceased
Tilak Kumar and thereafter took him to Victoria Hospital to see the
dead-body and when he saw the same, it's face was absolutely
destroyed, during which time the police reduced-into writing as per
Ex.P.6, on which his signature is as per Ex.P.6(a).
35. But, in the cross-examination by the learned counsel for
the accused, he (PW.4) has fatally admitted that before his arrival
to the hospital, the entire-dead-body was tied and wound by the
cloth, due to which injury and etc., could not be seen. If really the
said dead-body was absolutely covered with the cloth and tied,
then I fail to understand as to how was it possible to see the very-
face of the dead-body to say specifically that it was absolutely
destroyed. It is further stated by the PW.4 that, he has signed on
the said Ex.P.6 at about 60 - 70 feet distance from the said spot of
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inquest. It is further stated that, the police have not shown the
injuries on the said dead-body, to him. Another CW.13/Raja was
also present at the time of Ex.P.6 and he has signed thereon. It is
further admitted by the PW.4 that, he has signed only at the
request of the police on Ex.P.6, which was written by them (police)
and he does-not know the contents of Ex.P.6. It is pertinent to
note that, if really the said Ex.P.6/inquest-mahazar was drawn in
presence of the PW.4, he was expected to be conversant with all
the details of the dead-body as-well-as the contents of Ex.P.6. But,
unfortunately, he having disclosed his ignorance and etc., it goes
to indicate that the said alleged Ex.P.6 is not drawn in presence of
him, wherefore, it creates the doubt with respect to the very-
genuinity of Ex.P.6 and also the alleged inquest-mahazar by the
police in presence of him, wherefore, under the circumstances
prevailing herein, the very-deposition of the PW.4 prevailing with
the plethora of suspicious-circumstances without any clarification,
it does-not deserve for believing and considering, as it does-not
come to the aid and assistance of the prosecution, in any way.
36. Further, the PW.12/Kum. Harshitha being the younger-
sister of the deceased as-well-as the hearsay-witness, has
endeavored to depose in favour of the prosecution in her chief-
examination to the effect that, on 24.06.2013, at about 10.30 p.m.
in the night, her elder-brother Tilak Kumar went-out of the house
stating that he would dine outside and return. But, even-though
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after 2 days, he did-not return, wherefore, she was under the
impression that he might have gone to some-other-place for picnic.
In view of he having not returned, her mother/CW.2/PW.1 lodged
a missing-complaint before the police and thereafter, about 2 days
at the intimation of the police, they had been to Victoria Hospital
and identified the dead-body of her elder-brother Tilak Kumar,
during which time the police stated the names of the accused
No's.2 to 4, 6 and others stating that they have murdered the
deceased Tilak Kumar.
37. It is significant to note that, though the learned counsel
for the accused has not chosen for cross-examining the PW.12, she
has stated in the chief-examination itself that after 2 days from the
date of departure of her elder-brother Tilak Kumar, her mother
lodged a missing-complaint and thereafter 2 days, at the
information of the police, they had been to Victoria Hospital and
identified the dead-body of her elder-brother Tilak Kumar. But,
the PW.1 has stated in her chief-examination itself that, she waited
for 4 days and thereafter, she lodged a missing-complaint before
the police on Friday, and thereafter, on Monday at the information
of the police, herself, her younger-sister and her husband, and her
daughter had been to vacant-site besides the Apollo Hospital and
saw the decayed/decomposed dead-body and identified it as the
dead-body of her son Tilak Kumar, basing-on the clothes on the
said dead-body. It is pertinent to note that, the PW.1 has stated
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that after 4 days she has lodged a missing-complaint, whereas, the
PW.12 has stated that after 2 days, a missing-complaint was
lodged by the PW.1. Apart from the same, the said PW.1 after
lodging the missing-complaint about 3 - 4 days i.e., on Monday,
herself, her daughter, her sister and sister's husband had been to
the open-place besides Apollo Hospital at the say of the police and
identified the dead-body of her son Tilak Kumar. But, the PW.12
has stated that, 2 days later to the lodging of missing-complaint,
they had been to Victoria Hospital to identify the dead-body of
deceased Tilak Kumar. These-versions of the PWs.1 & 12 are
absolutely emanating in-contravention with each-other creating
the fatal-doubts in the mind of this court, wherefore, the very-
deposition of the PW.12 prevailing with major-contradictions, it
does-not come to the aid and assistance of the prosecution, in any
way.
38. Further, the PW.23/Aravind S/o Shivanna being the
seizure-mahazar-witness, has endeavored to depose in favour of
the prosecution in his chief-examination to the effect that, about 3
years-back MICO Layout police had secured him to the police-
station, where-at already 3 - 4 persons were present and admitted
that they had committed the murder and thereafter, they led him
and the police to the open-place behind Apollo Hospital and one of
the accused-persons produced a cloth and a knife as per MO
No's.10 & 13 from his house situated there-at and accordingly the
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police seized the same and thereafter, they had been to the spot of
incident, where-at there being the bushes, some-objects were
seized, but he does-not remember and at that time the color-
photographs marked at Exs.P.34, P.36 & P.38 have been taken.
39. Therefore, in view of the animus of the PW.23 having
depicted with regard to his hostility, the learned Public Prosecutor
treated him hostile and elicited through his mouth regarding the
accused No.2 having produced MO No's.10 & 13, the police have
seized the same in presence of him, on which his signatures
containing chits have been pasted and further admitted that the
accused No.3/George produced the MO No.14/jeans-pant from his
house and the same has been seized by the police, on which his
signature containing the chit has been pasted and thereafter, at
the behest and show of the accused No.3/George, they visited the
spot of incident and seized a sized-stone as per MO No.11.
40. But, in the cross-examination by the learned counsel for
the accused, he (PW.23) has fatally stated that he cannot say as to
who other-persons were present at that time apart from him and
also he cannot say specifically as to the said MO No.8 have been
produced by the accused-persons themselves by showing the spot.
Even, he has stated that there was no any written-notice given by
the police to him. On consideration of these-versions of the PW.23
consolidatingly in the cross-examination, it creates a doubt in the
mind of this court regarding the alleged fact that if really he had
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been to the spot as stated in his chief-examination, he was
expected to be conversant as to who-else had come there-at for the
panchanama, seizure and etc., but, unfortunately, he has
disclosed his inability to say the same, wherefore, his deposition
also does-not come to the aid and assistance of the prosecution,
since it is prevailing with major-discrepancies.
41. Further, the PW.6/C. Raghavendra S/o Chennakeshava
being the police-constable as-well-as the circumstantial-witness,
has endeavored to depose in favour of the prosecution in his chief-
examination to the effect that, on 02.07.2013, as per the directions
of the CW.35/Police-Inspector, he shifted the dead-body of Tilak
Kumar to Victoria Hospital for the purpose of post-mortem and
after the said post-mortem, he has handed-over the dead-body to
it's father- Siddaraju in connection with which he has submitted a
report to the CW.35/Police-Inspector, as per Ex.P.8, on which his
signature is as per Ex.P.8(a). On 12.08.2013, at the oral-direction
of the CW.35, again he went to Victoria Hospital and brought the
post-mortem-report and 10 material-objects pertaining to the Tilak
Kumar and produced before the CW.35 under his own-report as
per Ex.P.9, on which his signature is as per Ex.P.9(a) and out of
the said 10 material-objects, he has identified MO No's.1 to 4 and
the black and white Nokia-Mobile with Idea sim-card as per MO
No.8.
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42. But, in the cross-examination by the learned counsel for
the accused, he has stated that the said material-objects were
covered and sealed and therefore, he was not knowing as to what
material-objects were there in the sealed-covers independently. If
that was to be so, then I fail to understand as to how the PW.6 has
identified MO No's.1 to 4 & 8 in the open-court, because as per his
own-version in the cross-examination by the learned counsel for
the accused, he had no chance of seeing the said material-objects
brought by him from the Victoria Hospital in the packed and
sealed-covers. Therefore, by virtue of these versions of the PW.6
emanating in-contravention with each-other creating the major-
discrepancies, his deposition also does-not come to the aid and
assistance of the prosecution, independently.
43. Further, the PW.16/T.K. Krishna S/o Kamanna being
the ASI stated to have nabbed the accused No's.3 & 4 and
produced before the investigating-officer, though endeavored to
depose in favour of the prosecution in respect of he having nabbed
the accused No.5/Sampath @ Joseph Anilkumar, basing-on the
informations received from the informants. But, he has turned
hostile with respect to he having nabbed the accused No.3/George
S/o Anthonyraj, wherefore, the learned Public Prosecutor was
inclined to treat him as hostile and cross-examine; but, no worth-
relying material has been elicited and extracted through his
mouth, wherefore, the prosecution has utterly failed to establish
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the Ex.P.17 through his mouth. Apart from the same, by virtue of
turning hostile by the PW.16 with respect to the alleged nabbing of
accused No.3 by him, even it certainly dismantles the very-
weightage of his versions with respect to he having nabbed the
accused No.5, in his chief-examination, as his deposition itself is
emanating in-contravention with the prosecution's-case. Therefore,
the entire-deposition of the PW.16 does-not deserve for relying and
believing, as it does-not come to the aid and assistance of the
prosecution, in any way.
44. Further, the PW.7/C. Shivananda S/o B.C.
Chennegowda being the Head-Constable, has endeavored to
depose in favour of the prosecution in respect of he having traced-
out the accused No's.1, 2, 4 & 6 on 01.07.2013 and produced
before the investigating-officer.
45. Further, the PW.8/K. Govindaraju S/o Kakappa being
another Head-Constable and circumstantial-witness, has
endeavored to depose in favour of the prosecution to the effect that
on 01.07.2013, he has carried the original-First Information Report
and complaint of the Cr.No.390/2013 as per the direction of the
SHO/CW.34/Nanjegowda, to the Judicial-Magistrate's Home-Office
and also on the same-day the injured- Tilak having succumbed to
the injuries sustained, he carried a memo/requisition at about
11.15 p.m. in the night to the Judicial-Magistrate's Home-Office
seeking for converting the case for the offence punishable
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U/Sec.302 of IPC and accordingly, with respect to the same, he
has submitted a report as per Ex.P.10, on which his signature is
as per Ex.P.10(a).
46. Thereafter, the learned Public Prosecutor has treated the
said witness as partly-hostile and elicited by way of admissions
through his mouth that, at 11.15 p.m. in the night after tracing-
out the dead-body of deceased Tilak Kumar in the open-place
between Apollo & Forties Hospital, the said requisition/memo for
converting the case for the offence punishable U/Sec.302 of IPC
was carried to the Judicial-Magistrate's Home-Office.
47. Further, the PW.21/Narasimhamurthy S/o Narasappa
being another Head-Constable, has endeavored to depose in favour
of the prosecution in his chief-examination to the effect that, on
28.06.2013, at about 10.15 p.m. in the night while he was in-
charge of the police-station, the CW.2/PW.1/Smt. Kamala W/o
Siddaraju appeared before him and lodged a written-missing-
complaint reporting that her son/Tilak Kumar was missing,
basing-on which he registered the Cr.No.391/2013 and thereafter,
he sent copies of the same to his higher-authorities and thereafter
handed-over the case-file to the CW.35/L.Y. Rajesh/Police-
Inspector for further-investigation. The said missing-complaint is
as per Ex.P.1, on which his signature is as per Ex.P.1(b) and the
First Information Report relating to Ex.P.1 is as per Ex.P.25, on
which his signature is as per Ex.P.25(a).
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48. Further, the PW.19/Smt. Shehanaz Fathima W/o
Mohammed Ibrahim being another Scientific-Officer, FSL,
Bengaluru, has endeavored to depose in favour of the prosecution
in her chief-examination to the effect that, on 05.02.2014, the FSL
having received 3 sealed-articles from MICO Layout police, through
it's PC No.3453 in connection with it's Cr.No.397/2013 and in
respect of the same, the work of examining the said 3 articles
scientifically, the Deputy Director entrusted to her and
accordingly, she having attended the said work and scientifically
examined, she extracted the DNA contents from the said 3 articles
by amplifying them and considering the profile of the same for the
purpose of DNA test and then she has given her opinion. It is
further stated by the PW.19 that, the article No's.1 & 2 which are
the teeth and femur-bone were belonging to a male-human-being
and since the less-amount of DNA portion was available therein,
due to the scarcity of profile to make the analysis with the sample
DNA, no opinion could be given with regard to the article No's.1 &
2. Accordingly, she has given her opinion-report as per Ex.P.23,
on which her signature is as per Ex.P.23(a) and the signatures of
the Deputy-Director and Director of FSL, Bengaluru, are as per
Exs.P.23(b) & P.23(c), respectively. Thereafter, she packed the said
article No's.1 & 2 and put the FSL-seal and sent the same to the
police concerned. As the article No.3 was used completely for
scientific-examination, there was nothing in article No.3 remained
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to send-back to the police. If the said article No's.1 & 2 are shown
to her, she is capable of identifying the same.
49. It is pertinent to note that, though the said article No's.1
& 2 have been sent-back to the concerned police by the instant
PW.19, the said articles have not been produced before this court
for the reasons best-known to the concerned investigating-officer.
50. Further, the PW.18/S. Nanjegowda S/o Shivananjaiah
being the initial-partial-investigating-officer, has endeavored to
depose in favour of the prosecution in his chief-examination to the
effect that, while the investigation was pending with respect to
Cr.No.391/2013 in connection with missing of Tilak Kumar as it
was filed by his mother/CW.2/Smt. Kamala, on 01.07.2013, at
about 12.30 p.m. the brother of deceased Tilak Kumar-
CW.1/Bharath appeared before him and lodged a oral-complaint,
which has been got converted-into computerization and registered
a Cr.No.397/2013 for the offences punishable U/Secs.323, 364 &
506 r/w Section 34 of IPC, and thereafter sent the First
Information Report and original-complaint to the concerned court
and it's copies to his higher-authorities for information. The said
complaint is as per Ex.P.3, on which his signature is as per
Ex.P.3(b). The said First Information Report is as per Ex.P.18, on
which his signature is as per Ex.P.18(a). On the same-day he
visited the spot of incident from 1.00 p.m. to 1.45 p.m. in the
afternoon in presence of CWs.1 to 3 and drawn the spot-mahazar
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as per Ex.P.11, on which his signature is as per Ex.P.11(c). On the
same-day on receiving the credible-information regarding the
accused No's.1, 2, 4 & 6 from the informants, he went near the
slum-quarters situated near KSRP quarters on Kasavanahalli Road
of Kudlu village and arrested the accused No's.1, 2, 4 & 6 from
3.00 p.m. to 4.00 p.m. in the afternoon, by following the arrest-
rules and then he recorded their self-voluntary-statements on due-
inquiry, as per Exs.P.19 to P.22, on which his signatures are as
per Exs.P.19(a) to P.22(a) and the signatures of the accused No's.1,
2, 4 & 6 are as per Exs.P.19(b) to P.22(b). The said accused No's.1,
2, 4 & 6 having volunteered in their self-voluntary-statements that,
they would show the spot where the dead-body of deceased Tilak
Kumar is hidden and also the spot of incident and etc., he (PW.18)
secured the CWs.6 & 7/Manjunath and Nagaraj, respectively,
BESCOM Asst.Engineer/CW.8/M.C. Inapur and also CW.36/FSL-
Scientific-Officer/Dr. Chandrashekar and visited the said spot at
the behest of the accused-persons and when they went near the
open-place in between Apollo Hospital and Forties Hospital, there
being the bushes, only portions of the hands and legs of the dead-
body were appearing and remaining-body was hidden under the
soil and stones and it was comprised of the decomposed-smell and
it was covered by maggots and therefore, it was not in a position to
identify. At that time, the Scientific-Officer/CW.36 sealed the
sample-soil in various envelops for scientific-examination.
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Thereafter, the said seized-soil-packets are subjected to PF
No.108/2013 and thereafter handed-over the same to his
succeeding-investigating-officer for further-investigation. He has
identified the said soil-packets as MO No's.5 to 7, on which his
signatures containing chits are pasted. Thereafter, he sent the
dead-body to Victoria Hospital for post-mortem purpose, through
CW.33. On the same-day from 6.00 p.m. to 8.20 p.m., he drawn
the spot of incident and spot of the dead-body found mahazar in
the gas-light which was carried along-with them in presence of the
panchanama as per Ex.P.5, on which his signature is as per
Ex.P.5(d) and thereafter returning-back to the police-station, he
kept the accused-persons in the safe-custody and thereafter in
view of sufficient-evidence available against the accused-persons,
he sent a requisition to the Judicial-Magistrate seeking permission
to convert the case for the offences punishable U/Secs.302 & 201
of IPC, in respect of which the CW.32 has submitted his report as
per Ex.P.10, on which his signature is as per Ex.P.10(b).
Thereafter, he has recorded the statements of the CWs.6 to 8 & 21
to 29and then handed-over the entire-case-file to the CW.35 for
further-investigation.
51. Further, the PW.22/L.Y. Rajesh S/o P.V. Lakshmaiah
being the complete-investigating-officer of the remaining-portion of
the investigation, has also endeavored to depose in favour of the
prosecution in his chief-examination to the effect that, on
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01.07.2013, he received the case-file of the instant-case from
CW.34/PSI for further-investigation, and on 02.07.2013, he has
arrested the accused No.3/George, as he was produced by the
ASI/CW.25 and Head-Constable/CW.33. On the same-day from
10.30 a.m. to 12.30 p.m., he visited the mortuary of Victoria
Hospital and drawn the inquest-mahazar as per Ex.P.6 in presence
of the inquest-mahazar-witnesses, on which his signature is as per
Ex.P.6(b) and at the same-time he recorded the statements of the
CW.2/Smt. Kamala who is the mother of deceased Tilak Kumar,
CW.12/Harshitha who is the sister of deceased Tilak Kumar and
CW.13/Raju who is the friend of deceased Tilak Kumar, by getting
identified the apparels on the dead-body and thereafter, he sent a
requisition to the Medical-Officer for conducting the post-mortem
of the dead-body of the deceased Tilak Kumar. After conducting
the post-mortem, the CW.23/police-constable by name,
Raghavendra having handed-over the dead-body to his father
Siddaraju, under an acknowledgement, the said CW.23 has
submitted his report as per Ex.P.8, on which his signature is as
per Ex.P.8(b). On the same-day the accused No.6/Babu having
given the self-voluntary-statements during his inquiry, has
produced the Axis Scooter used by him for the purpose of
committing the offence, he seized the same from 2.25 p.m. to 3.00
p.m. in the afternoon in the police-station, under a seizure-
mahazar as per Ex.P.26, on which his signature is as per
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Ex.P.26(a), in presence of CWs.14 & 15/panchas and thereafter, he
got subjected the said Axis Scooter to PF No.109/2013. The
photograph of the said Axis Scooter is as per Ex.P.27 and
thereafter, he has recorded the statements of the CWs.14 & 15 and
on the same-day he inquired the accused No's.1 to 4 and recorded
their self-voluntary-statements and as the properties were to be
seized through the accused No's.1 to 4, he produced the accused-
persons before the court and took them to police-custody till
04.07.2013 with the permission of the court. On 03.07.2013, he
seized the material-objects at the behest of the accused No's.1 to 4
in presence of the mahazar-panchas/CWs.19 & 21, under a
mahazar as per Ex.P.28(1). Thereafter, he recorded the additional-
self-voluntary-statements of the accused No's.1 & 2 and the
relevant-portions are marked as per Exs.P.29 & P.30, respectively.
The seized-coffee-color-pant is as per MO No.9. The accused No.4
having produced the knife used for the commission of the murder,
has produced the same from his house and thereby, he (PW.22)
seized the same with yellow-color-banyan in presence of
panchas/CWs.19 to 21, under a seizure-mahazar as per
Ex.P.28(1). At the same-time the accused No's.3 & 4 produced
their apparels which were worn at the time of commission of the
offence and accordingly, the same have been seized by him. The
seized-knife, bloodstained-yellow-color-banyan, gray-color-
bloodstained-pant are as per MO No's.10, 13 & 14, respectively.
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The accused No.3/George has led him and the panchas/CWs.19 to
21 to the spot near the Apollo Hospital and shown and produced
the sized-stone having used the same for murdering the deceased
Tilak Kumar, he (PW.22) seized the same as per MO No.11, under
Ex.P.28(2) and the said Exs.P.28(1) & P.28(2) have been drawn
from 3.00 p.m. to 6.10 p.m. and his signature thereon the said
Ex.P.28 is as per Ex.P.28(a). On 02.07.2013, he has recorded the
self-voluntary-statements of the accused No's.3, 4 & 6 and the
relevant-portions are as per Exs.P.31 to P.33. His signatures are
appearing on the chits pasted on MO No's.9 to 11, 13 & 14. The 5
colored-photographs taken at the time of drawing the seizure-
panchanama as per Exs.P.28(1) & P.28(2) are as per Exs.P.34 to
P.38, in which himself, the police-staff, panchas and accused-
persons with the deceased accused No.2/Nagaraj and another
accused No.5/Sampath @ Joseph are appearing therein. He has
prepared a hand-sketch map of the spot of incident as shown by
the accused No's.1 to 4, as per Ex.P.39, on which his signature is
as per Ex.P.39(a). On the same-day in the evening, he secured the
complainant/CW.1 to the police-station and recorded his
additional-statements and on the same-day he recorded the
statements of the CWs.17 to 21. Thereafter, since he was suffering
from illness, he handed-over the entire-case-file with the accused-
persons to the CW.34 stating that on the very-next-day the said
accused No's.1 to 4 be produced before the judicial-custody and
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then he went-away on the leave. On 09.07.2013, on returning-
back to his duties, he obtained the said case-file for further-
investigation from CW.34 and deputed the police-staff to search
the absconding-accused No.5/Sampath. On 25.07.2013, he wrote
a requisition to the PWD Engineer to draw the hand-sketch map of
the spot of incident and provide the same. On 08.08.2013, the
CW.23/PC- 12235 produced the post-mortem-report of the
deceased Tilak Kumar by obtaining the same from CW.22/Medical-
Officer, as per Ex.P.14, on which his signature is as per Ex.P.14(b).
On 12.08.2013, the CW.23 having produced the articles on the
dead-body along-with viscera from Victoria Hospital, he has
subjected the same to PF No.141/2013. Apart from the same,
viscera-articles, apparels and the mobile are as per MO No's.1 to 4
& 8, respectively. On 20.08.2013, he sent all the seized material-
objects to FSL, Bengaluru, through the CW.23/PC- 3453 and
obtained the acknowledgement. On 10.09.2013, he sent the MO
No's.10 & 11/knife and sized-stone to the CW.22/Medical-Officer,
through PC- 9031 for forming her opinion regarding the said MO
No's.10 & 11 in connection with the injuries found on the dead-
body and the cause of death and accordingly, the CW.22 has
issued her opinion-report on 14.09.2013 as per Ex.P.15, on which
his signature is as per Ex.P.15(b). On 25.09.2013, since there was
sufficient-material available against the accused-persons, he
completed his investigation and submitted charge-sheet against
52 SC No.1276/2013
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the accused-persons, reserving the clause of filing the separate-
charge-sheet against the absconding-accused No.5 after he is
traced-out. He has secured the CDR of the mobile-number of the
accused No.2 towering the coverage as on the date of offence from
the concerned officers, as per Ex.P.40, on which his signature is as
per Ex.P.40(a). According to Ex.P.40, during the night-hours in
between 24.06.2013 and 25.06.2013, the mobile of accused No.2
was behind the Apollo Hospital. On 20.10.2013, the CWs.25 & 29
traced-out the absconding-accused No.5/Sampath @ Joseph
Anilkumar and produced before him, to whom he has identified in
the open-court, during his evidence. After arresting the said
accused No.5, he has inquired the said accused No.5 and recorded
his self-voluntary-statements, in which the accused No.5 has
admitted that he had used the Pulsar-two-wheeler-motorcycle for
the commission of the said offence and he would show the said
motorcycle and therefore, on 21.10.2013, the elder-brother of the
accused No.5 by name, Ravi has produced the said Pulsar-two-
wheeler-motorcycle voluntarily, he seized the same in presence of
panchas by name, Nadeem and Siddagangappa, under a seizure-
mahazar as per Ex.P.41, on which his signature is as per
Ex.P.41(a) and thereafter, he got subjected the said motorcycle to
PF No.176/2013 and even he has identified the said accused No.5
in the open-court. On 04.02.2014, the CW.24 having produced the
blood of CW.2/Smt. Kamala/mother of deceased Tilak Kumar, in
53 SC No.1276/2013
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Victoria Hospital for the purpose of DNA-examination, under a
report as per Ex.P.42, on which his signature is as per Ex.P.42(a),
he got subjected the same to PF No.23/2014. On 05.02.2014, he
sent the said sample-blood collected, tooth and bone sent by the
doctor, to FSL, Bengaluru, through PC- 34535 for the purpose of
DNA-test. On 25.02.2014, on completion of the further-
investigation, he submitted the additional-charge-sheet against the
accused No.5. CWs.1, 2, 13 & 25 have given the statements before
him, as per Exs.P.4, P.2, P.7 & P.17, respectively.
52. During the time of trial, the learned Public Prosecutor
has voluntarily given-up the CWs.27 to 31. In-spite of having
issued sufficient-process against the CWs.4, 9, 10, 14 to 18, 20,
21, 39 & 40, neither the concerned police have endeavored to
produce before this court nor the said witnesses have appeared
before this court in the witness-box to depose in favour of the
prosecution, wherefore, the instant-court being inclined to hold
that no grounds for re-issuing the further-process to them, this
court has rejected the prayer of the learned Public Prosecutor and
dropped the said CWs.4, 9, 10, 14 to 18, 20, 21, 39 & 40 and
thereby closed the prosecution's-side.
53. On meticulous-perusal of the entire-depositions of the
PWs.1 to 23, it is crystal clear that the PWs.2, 5, 11 & 17 have
absolutely turned hostile to the prosecution, wherefore, it has
utterly failed to establish the Exs.P.3, P.4, P.7 & P.11 through their
54 SC No.1276/2013
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mouths. Therefore, it is clear on the face of record that, the
prosecution has utterly failed to establish the spot-mahazar and
spot-cum-seizure-mahazars. Apart from the same, even the PW.1
being the mother of deceased Tilak Kumar as-well-as hearsay-
witness, PW.9 being the seizure of dead-body and MO No's.5 to 7
mahazar-witness, PW.16 being the ASI having stated to have
nabbed the accused No's.3 & 4 and produced before the
investigating-officer and PW.23 being another seizure-mahazar-
witness, have though partly turned hostile to the prosecution, their
remaining-depositions prevailing with the absolute major-
discrepancies and contradictions creating the fatal-doubts in the
mind of this court regarding the creditworthiness of their
respective-depositions, their remaining-depositions also do-not
come to the aid and assistance of the prosecution. Apart from the
same, the said witnesses have not supported even during their
cross-examination by the learned Public Prosecutor after treating
them as hostile-witnesses, except PW.8; but, his deposition is also
prevailing with the major-discrepancies in the cross-examination,
wherefore, it also does-not come to the aid and assistance of the
prosecution's-case. The very-depositions of the PW.3 who is the
spot-mahazar-witness, PW.4 who is the inquest-mahazar-witness,
PW.8 who is the Head-Constable having carried the First
Information Report to the Judicial-Magistrate, PW.10 being the
seizure of dead-body as-well-as MO No's.5 to 7 mahazar-witness,
55 SC No.1276/2013
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PW.12 being the younger-sister of the deceased Tilak Kumar as-
well-as the hearsay-witness, are prevailing with the plethora of
major-discrepancies and contradictions creating the doubts in the
mind of this court, wherefore, their depositions also do-not come to
the aid and assistance of the prosecution. But, however, PW.6
being the police-constable as-well-as the circumstantial-witness,
PW.7 being the Head-Constable having nabbed the accused-
persons and the circumstantial-witness, PW.13 being the police-
constable having carried the material-objects to FSL and the
circumstantial-witness, PW.19 being the Scientific-Officer, FSL,
Bengaluru, PW.21 being the Head-Constable having registered the
missing-complaint and PW.18 being the initial-partial-
investigating-officer and PW.22 being the investigating-officer in
respect of remaining complete-investigation, their depositions do-
not come to the aid and assistance of the prosecution in the
absence of substantial-material in favour of the prosecution. It is
pertinent to note that, as stated by the PW.19 in the cross-
examination regarding she having examined the item No's.1 & 2
and issued the opinion-report as per Ex.P.23, the said article
No's.1 & 2 have not been produced by the investigating-officer
before this court for the reasons best-known to him. Non-
production of the said article No's.1 & 2 i.e., a tooth and femur-
bone is absolutely fatal to the prosecution's-case, under the
peculiar-circumstances prevailing herein.
56 SC No.1276/2013
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SC No's.1362/2013 & 529/2016
54. To put-into simple-terms, in overall the prosecution has
utterly failed to establish the essential-ingredients of the alleged
offences punishable U/Secs.364, 302 & 201 r/w Section 149 of
IPC and also failed to bring-home the guilt against the accused-
persons by establishing the complete-chain of sequential-
circumstances with the un-detachable and suitable
relationship/nexus between them to constitute the complete-
circle/ring of the commission of the said alleged offences. In the
lack of substantial chunk of material as discussed herein before
supra, this court is of the clear-opinion that the prosecution has
utterly failed to prove the guilt against the accused-persons in
respect of the commission of the alleged offences punishable
U/Secs.364, 302 & 201 r/w Section 149 of IPC, against the
accused-persons specifically. Hence, this court is inclined to
answer the Point No's.2 to 4 in the 'Negative'.
55. Point No.5:- As stated herein before supra, while
discussing the Point No.1 at much-length and arrived-at a
conclusion to hold it as in the Affirmative, undoubtedly, it has
been held that the prosecution has established prima-facie the
death of the deceased Tilak Kumar is a homicidal-death. But, in
view of the prosecution has utterly failed to bring the substantial-
material in favour of it on record with respect to the alleged
offences punishable U/Secs.364, 302 & 201 r/w Section 149 of
IPC, against the accused-persons specifically and for the reasons
57 SC No.1276/2013
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SC No's.1362/2013 & 529/2016
discussed at much-length while answering the Point No's.2 to 4 in
the Negative, the prosecution has utterly failed to connect the
alleged offences with the accused-persons specifically. When that
is so, in-spite of the said death of the deceased Tilak Kumar is held
to be as homicidal-death, in the absence of substantial chunk of
material to state and hold that the accused-persons themselves
have committed the offences punishable U/Secs.364, 302 & 201
r/w Section 149 of IPC, the said accused-persons cannot be made
liable for the same and cannot be targeted for the conviction.
56. Therefore, under all these circumstances, this court is 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-persons 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's.1, 3, 6, 5 & 4, respectively.
57. Therefore, in view of all these reasons, this court is of the
opinion that the accused No's.1, 3, 6, 5 & 4, respectively, are not
liable to be convicted. Hence, this court is inclined to answer the
Point No.5 in the 'Negative'.
58 SC No.1276/2013
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SC No's.1362/2013 & 529/2016
58. Point No.6:- For the reasons discussed at much-length
while answering the Point No.1 in the Affirmative and Point No's.2
to 5 in the Negative, herein before supra, this court is inclined to
proceed to pass the following:
O R D E R
The prosecution has utterly failed to prove the guilt against the Accused No's.1, 3, 6, 5 & 4, respectively, and therefore, the Accused No's.1, 3, 6, 5 & 4, respectively, are found not guilty for having committed the offences U/Secs.364, 302 & 201 r/w Section 149 of IPC.
In exercise of the powers conferred-upon me U/Sec.235(1) of Cr.P.C., I hereby acquit the instant- Accused No.1 in SC No.1276/2013, by name, Mariyappa, S/o. Joseph, aged 20 years, residing at No.81, 5th Cross, Thayappa Garden, Bilekahalli, Bengaluru; the instant- Accused No.3 in SC No.1276/2013, by name, George, S/o. Anthonyraj, aged 20 years, residing at No.72, 1st Cross, 1st Main, Doresanipalya, B.G.Road, Bengaluru; the instant-Accused No.6 in SC No.1276/2013, by name, Babu @ Babli, S/o. Devaraj, aged 27 years, residing at No.217, 1st Cross, Behind Church, Doresanipalya, B.G.Road, Bengaluru; the instant-Accused No.5 in split- up SC No.1362/2013, by name, Sampath @ Joseph Anilkumar, S/o. Late Chinnappa, aged 27 years, residing at No.20, Ground-Floor, Manjunath Layout, Near Ganesha Temple, Arakere, MICO Layout, Bengaluru - 560 076; and the instant-Accused No.4 in split-up SC No.529/2016, by name, Bala @ Balaraj Victor, S/o. Joseph, aged 28 years, residing at No.132, 30 Houses Street, School Road, Doresanipalya, B.G.Road, 59 SC No.1276/2013 Connected SC No's.1362/2013 & 529/2016 Bengaluru, and set them to liberty forthwith in these- cases.
The instant-Accused No.1 in SC No.1276/2013, by name, Mariyappa, S/o. Joseph, aged 20 years, residing at No.81, 5th Cross, Thayappa Garden, Bilekahalli, Bengaluru; the instant-Accused No.6 in SC No.1276/2013, by name, Babu @ Babli, S/o. Devaraj, aged 27 years, residing at No.217, 1st Cross, Behind Church, Doresanipalya, B.G.Road, Bengaluru; the instant-Accused No.5 in split-up SC No.1362/2013, by name, Sampath @ Joseph Anilkumar, S/o. Late Chinnappa, aged 27 years, residing at No.20, Ground- Floor, Manjunath Layout, Near Ganesha Temple, Arakere, MICO Layout, Bengaluru - 560 076; and the instant- Accused No.4 in split-up SC No.529/2016, by name, Bala @ Balaraj Victor, S/o. Joseph, aged 28 years, residing at No.132, 30 Houses Street, School Road, Doresanipalya, B.G.Road, Bengaluru, are hereby discharged of their bail- bonds, along-with their sureties.
The instant-Accused No.3 in SC No.1276/2013, by name, George, S/o. Anthonyraj, aged 20 years, residing at No.72, 1st Cross, 1st Main, Doresanipalya, B.G.Road, Bengaluru, shall be released, in the instant-case alone, if he is not required in any other-cases.
The seized-properties marked at MO No's.8 & 10, namely, Nokia-Mobile along-with idea-simcard and knife (ZÀÆj), respectively, are hereby ordered to be confiscated to the Exchequer of the State Government after the efflux of the appeal-period.
The seized-properties marked at MO No's.1 to 7, 9, 11 to 14, namely, bloodstained-shirt, bloodstained-jeans-
60 SC No.1276/2013Connected SC No's.1362/2013 & 529/2016 pant, bloodstained-banyan, bloodstained-underwear, 3 sample-mud-packets, pant, sized-stone, T-shirt, banyan and jeans-pant, respectively, being worthless, are hereby ordered to be destroyed after the efflux of the appeal- period.
The first-copy of this judgment shall be kept in the case-file of SC No.1276/2013, the second-copy shall be kept in the case-file of split-up SC No.1362/2013 and the third-copy shall be kept in the case-file of split-up SC No.529/2016.
(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 25th day of March, 2017) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.
APPENDIX List of the witnesses examined for the prosecution-side in SC No.1276/2013, SC No.1362/2013 & SC No.529/2016:
PW.1 Smt. Kamala
PW.2 Bharath
PW.3 Mallappa Thammanna Inapur
PW.4 Prashanth
PW.5 Raju
PW.6 Raghavendra C
PW.7 C. Shivananda
PW.8 K. Govindaraju
PW.9 Manjunatha
PW.10 Nagaraj
PW.11 Nagaraja
PW.12 Kum. Harshitha
PW.13 Manjunath S.P.
PW.14 Dr. Chandrashekar
PW.15 Dr. C.N. Sumangala
61 SC No.1276/2013
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SC No's.1362/2013 & 529/2016 PW.16 T.K. Krishna PW.17 Aiyappa PW.18 S. Nanjegowda PW.19 Smt. Shahanaz Fathima PW.20 Dr. M.D. Goutham PW.21 Narasimhamurthy PW.22 Rajesh L.Y. PW.23 Aravind List of documents exhibited for the prosecution-side in SC No. 1276/2013, SC No.1362/2013 & SC No.529/2016:
Ex.P.1 Complaint of the PW.1. Ex.P.1(a) Signature of the PW.1. Ex.P.1(b) Signature of the PW.21. Ex.P.2 Relevant-portion of the statement of PW.1. Ex.P.3 Complaint of the PW.2. Ex.P.3(a) Signature of the PW.2. Ex.P.3(b) Signature of the PW.18. Ex.P.4 Additional-statement of the PW.2.
Ex.P.5 Mahazar.
Ex.P.5(a) Signature of the PW.3.
Ex.P.5(b) Signature of the PW.9.
Ex.P.5(c) Signature of the PW.10.
Ex.P.5(d) Signature of the PW.18.
Ex.P.6 is Inquest-panchanama.
Ex.P.6(a) Signature of the PW.4.
Ex.P.6(b) Signature of the PW.22.
Ex.P.7 Statement of the PW.5.
Ex.P.8 Report of the PW.6.
Ex.P.8(a) Signature of the PW.6.
Ex.P.8(b) Signature of the PW.22.
Ex.P.9 Report of the PW.6.
Ex.P.9(a) Signature of the PW.6.
Ex.P.10 Statement of the PW.8.
Ex.P.10(a) Signature of the PW.8.
Ex.P.10(b) Signature of the PW.18.
Ex.P.11 Spot-panchanama.
Ex.P.11(a) Signature of the PW.11.
Ex.P.11(b) Signature of the PW.17.
Ex.P.11(c) Signature of the PW.18.
Ex.P.12 Report of the PW.13.
Ex.P.12(a) Signature of the PW.13.
Ex.P.13 Report of the PW.14.
Ex.P.13(a) Signature of the PW.14.
Ex.P.14 Post-mortem report.
Ex.P.14(a) Signature of the PW.15.
Ex.P.14(b) Signature of the PW.22.
62 SC No.1276/2013
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SC No's.1362/2013 & 529/2016 Ex.P.15 Opinion-report of the PW.15. Ex.P.15(a) Signature of the PW.15. Ex.P.15(b) Signature of the PW.22. Ex.P.16 Identification-form. Ex.P.16(a) Signature of the PW.15. Ex.P.17 Report of the PW.16.
Ex.P.17(a) Signature of the PW.16. Ex.P.18 First Information Report. Ex.P.18(a) Signature of the PW.18. Exs.P.19 }{ Self-voluntary-statements of the accused No's.
to P.22 }{ 1, 2, 4 & 6.
Exs.P.19(a) }{ Signatures of the PW.18. to P.22(a) }{ Exs.P.19(b) }{ Signatures of the accused No's.1, 2, 4 & 6. to P.22(b) }{ Ex.P.23 DNA profile-report. Ex.P.23(a) Signature of the PW.19. Ex.P.23(b) Signature of the Deputy-Director. Ex.P.23(c) Signature of the Director. Ex.P.24 FSL-opinion-report. Ex.P.24(a) Signature of the PW.20. Ex.P.24(b) Signature of the Deputy-Director. Ex.P.24(c) Signature of the Director. Ex.P.25 First Information Report. Ex.P.25(a) Signature of the PW.21. Ex.P.26 Seizure-panchanama of red-color Suzuki Axis Scooter.
Ex.P.26(a) Signature of the PW.22. Ex.P.27 Color-photograph of the Axis Scooter. Ex.P.28(1) Seizure-panchanama of the yellow-color-banyan and knife.
Ex.P.28(2) Seizure-panchanama of sized-stone. Ex.P.28(a) Signature of the PW.22. Ex.P.28(2)(a) Signature of the PW.23.
Exs.P.29 }{ Self-voluntary-statements of the accused No's.1
to P.33 }{ to 4 & 6.
Exs.P.34 Color-photographs for having taken at the time
to P.38 of seizure-panchanama.
Ex.P.39 Original-sketch of the spot of incident.
Ex.P.39(a) Signature of the PW.22.
Ex.P.40 CDR particulars pertaining to the mobile-number
of accused No.2 in respect of having tower- coverage.
Ex.P.40(a) Signature of the PW.22. Ex.P.41 Seizure-panchanama of black-color-bike. Ex.P.41(a) Signature of the PW.22. Ex.P.42 Report dated 04.02.2014.63 SC No.1276/2013
Connected SC No's.1362/2013 & 529/2016 Ex.P.42(a) Signature of the PW.22.
List of material-objects marked for the prosecution-side in SC No. 1276/2013, SC No.1362/2013 & SC No.529/2016:
MO No.1 Bloodstained-shirt. MO No.2 Bloodstained-jeans-pant. MO No.3 Bloodstained-banyan. MO No.4 Bloodstained-underwear. MO No's.5 to 7 Sample-mud-packets. MO No's.5(a) }{ Signatures of the PW.3.
to 7(a) }{
MO No.8 Nokia-Mobile and Idea-simcard.
MO No.9 Pant.
MO No.10 Knife (ZÀÆj).
MO No.11 Sized-stone.
MO No.12 T-shirt.
MO No.13 Banyan.
MO No.14 Jeans-pant.
List of witnesses examined for the defence-side in SC No. 1276/2013, SC No.1362/2013 & SC No.529/2016:
- NIL -
List of documents exhibited for the defence-side in SC No. 1276/2013, SC No.1362/2013 & SC No.529/2016:
- NIL -
LI Addl. City Civil & Sessions Judge, Bengaluru City.
.64 SC No.1276/2013
Connected SC No's.1362/2013 & 529/2016 (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's.1, 3, 6, 5 & 4, respectively, and therefore, the Accused No's.1, 3, 6, 5 & 4, respectively, are found not guilty for having committed the offences U/Secs.364, 302 & 201 r/w Section 149 of IPC.
In exercise of the powers conferred-upon me U/Sec.235(1) of Cr.P.C., I hereby acquit the instant- Accused No.1 in SC No.1276/2013, by name, Mariyappa, S/o. Joseph, aged 20 years, residing at No.81, 5th Cross, Thayappa Garden, Bilekahalli, Bengaluru; the instant-Accused No.3 in SC No.1276/2013, by name, George, S/o. Anthonyraj, aged 20 years, residing at No.72, 1st Cross, 1st Main, Doresanipalya, B.G.Road, Bengaluru; the instant-Accused No.6 in SC No.1276/2013, by name, Babu @ Babli, S/o. Devaraj, aged 27 years, residing at No.217, 1st Cross, Behind Church, Doresanipalya, B.G.Road, Bengaluru; the instant-Accused No.5 in split-up SC No.1362/2013, by name, Sampath @ Joseph Anilkumar, S/o. Late Chinnappa, aged 27 years, residing at No.20, Ground-Floor, Manjunath Layout, Near Ganesha Temple, Arakere, MICO Layout, Bengaluru - 560 076; and the instant-Accused No.4 in split-up SC No.529/2016, by name, Bala @ Balaraj Victor, S/o. Joseph, aged 28 years, residing at No.132, 30 Houses Street, School Road, Doresanipalya, 65 SC No.1276/2013 Connected SC No's.1362/2013 & 529/2016 B.G.Road, Bengaluru, and set them to liberty forthwith in these-cases.
The instant-Accused No.1 in SC No.1276/2013, by name, Mariyappa, S/o. Joseph, aged 20 years, residing at No.81, 5th Cross, Thayappa Garden, Bilekahalli, Bengaluru; the instant-Accused No.6 in SC No.1276/2013, by name, Babu @ Babli, S/o. Devaraj, aged 27 years, residing at No.217, 1st Cross, Behind Church, Doresanipalya, B.G.Road, Bengaluru; the instant-Accused No.5 in split-up SC No.1362/2013, by name, Sampath @ Joseph Anilkumar, S/o. Late Chinnappa, aged 27 years, residing at No.20, Ground- Floor, Manjunath Layout, Near Ganesha Temple, Arakere, MICO Layout, Bengaluru - 560 076; and the instant-Accused No.4 in split-up SC No.529/2016, by name, Bala @ Balaraj Victor, S/o. Joseph, aged 28 years, residing at No.132, 30 Houses Street, School Road, Doresanipalya, B.G.Road, Bengaluru, are hereby discharged of their bail-bonds, along-with their sureties.
The instant-Accused No.3 in SC No.1276/2013, by name, George, S/o. Anthonyraj, aged 20 years, residing at No.72, 1st Cross, 1st Main, Doresanipalya, B.G.Road, Bengaluru, shall be released, in the instant-case alone, if he is not required in any other-cases.
The seized-properties marked at MO No's.8 & 10, namely, Nokia-Mobile along-with idea-simcard and knife (ZÀÆj), respectively, are hereby ordered to be confiscated to the Exchequer of the State 66 SC No.1276/2013 Connected SC No's.1362/2013 & 529/2016 Government after the efflux of the appeal-period.
The seized-properties marked at MO No's.1 to 7, 9, 11 to 14, namely, bloodstained-
shirt, bloodstained-jeans-pant, bloodstained-banyan, bloodstained-underwear, 3 sample-mud-packets, pant, sized-stone, T-shirt, banyan and jeans-pant, respectively, being worthless, are hereby ordered to be destroyed after the efflux of the appeal-period.
LI ACC & SJ, Bengaluru City.
67 SC No.1276/2013Connected SC No's.1362/2013 & 529/2016