Karnataka High Court
State Of Karnataka vs Sri Goverdhana Murthy @ Goverdhan on 20 March, 2020
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
(THROUGH VIDEO CONFERENCE AT DHARWAD BENCH)
DATED THIS THE 20TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
AND
THE HON'BLE MR.JUSTICE H.P.SANDESH
CRL.A.NO.621/2013
BETWEEN
STATE OF KARNATAKA
BY THE BAGALUR POLICE ... APPELLANT
(BY SRI. V.M. SHEELAVANTH, SPP ALONG WITH
SRI. VINAYAKA V.S, HCGP)
AND
SRI. GOVARDHANA MURTHY @ GOVARDHAN
AGED ABOUT 40 YEARS
S/O. SRI. B.C. MUDDANNA
REALTOR BY PROFESSION
RESIDENT OF THE PREMISES, BEARING No.141,
BILISHINALA
DODDAGUBBI POST, BIDARAHALLI HOBLI
BENGALURU-560 049 ... RESPONDENT
(BY SRI. TOMY SEBASTIAN, SENIOR COUNSEL FOR
SRI. C.H. HANUMANTHARAYA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1)(b) CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
DATED 26.12.2012 PASSED BY THE PRINCIPAL SESSIONS
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JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN
S.C.NO.229/2009 - ACQUITTING THE RESPONDENTS/
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 120B, 212, 302, 147, 148, 506B OF IPC AND
SECTION 27 OF INDIAN ARMS ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 17.02.2020 COMING ON THIS DAY,
SANDESH J, PRONOUNCED THE FOLLOWING:-
JUDGMENT
This appeal is filed by the complainant-State challenging the judgment and order of acquittal dated 26.12.2012 passed in Sessions Case No.229/2009 on the file of Principal Sessions Judge, Bengaluru Rural District, Bengaluru, acquitting the accused restricting the challenge only against accused No.1 for the offences punishable under Sections 120B, 212, 302, 147, 148, 149, 506B of the Indian Penal Code, 1860 ('IPC' for short) and Section 27 of the Indian Arms Act, 1959 ('Arms Act' for short).
2. The factual matrix of the case is that, based on the statement of one Sri Shankara Reddy, the Police Sub Inspector of Bagalur Police Station has registered a case in Crime No.38/2008 against accused Nos.1 to 7 for the offence punishable under Section 307 of IPC and Sections 3, 27 and 3 28 of Arms Act at the first instance. The injured in the incident was succumbed to the injuries. Hence, the offence under Section 302 of IPC is also invoked.
3. In a nutshell, it is the case of the prosecution that the first accused and the deceased - Vinod, both belong to the same community and the first accused is the owner of L.G.Builders and Developers/Real Estate Company. The deceased was an actor in Kannada movies and he was engaged in real estate business with C.W.1-Shankara Reddy. The first accused intended to marry the daughter of C.W.25- Dr. Shantha Kumar, which was not to the liking of the family of C.W.25-Dr. Shantha Kumar and they negotiated for alliance with the deceased and the same irked the first accused. Apart from that, the deceased - Vinod, was a competitor to the first accused in real estate business, which prompted the accused to entertain enimity against the deceased and hatched up the plan to finish the deceased - Vinod.
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4. That on 06.10.2008, along with accused Nos.2 to 7, the first accused invited deceased - Vinod through Shankara Reddy (C.W.1) to his club house which is situated at L.G.Rose Heritage Layout by contacting over mobile phone and accordingly, the deceased came along with C.W.1 to the said club house. The first accused persuaded the deceased to consume excess alcohol, the second accused at 12:15 hours picked up quarrel with C.W.6 - K.Ramesh Babu, who is the friend of the deceased and the third accused fired three rounds in the air from his pistol. When the deceased questioned about this, the third and fourth accused threatened him at gun point to do away with his life if ever he talks more and there was a quarrel between the second accused, who is the driver of first accused and friends of the deceased. Thereafter, the deceased and the first accused came out of the club house and stood in front of the gate. The deceased enquired with the first accused as to why the gun was shot. Immediately, the first accused with a clear intention to cause the murder of the deceased - Vinod shot to his stomach by his 7.65 mm Caliber Pistol. As a result, 5 the said Vinod has suffered bleeding injuries and immediately he was shifted to Satya Hospital and thereafter to Manipal Hospital. He was subjected to surgery and while on treatment, he died on 07.10.2008 at 8:30 a.m, in Manipal hospital.
5. The Police Sub Inspector of Bagalur Police Station has conducted the investigation and filed the charge sheet against all the accused persons for the offences punishable under Sections 120B, 212, 302, 147, 148, 149, 506(B) of IPC and Section 27 of the Arms Act. Accused No.3 was absconded and subsequently, accused No.4 was also absconded. Hence, the split-up charge sheet has been filed against them and subsequently fourth accused was secured and after filing of the charge sheet, the case was committed against accused Nos.1, 2 and 4 to 7. The case was registered in S.C.No.251/2009 after the committal and the accused persons were secured. The Trial Court heard both the parties with regard to framing of charges, thereafter, charges were framed and the accused did not plead guilty and claims the trial. Hence, the trial was fixed. 6
6. The prosecution examined PWs.1 to 22 and got the documents marked as Exs.P1 to P106 and the material objects as MOs.1 to 26. After conclusion of the evidence, the accused persons were subjected to 313 statement. The accused have examined DWs.1 to 13 and got marked the documents as Exs.D1 to D129, to substantiate their defence.
7. The Trial Court after hearing both the Public Prosecutor as well as the defence counsel, acquitted all the accused persons. Hence, the present appeal is filed.
8. The State in this appeal would contend that the trial Judge has not properly adverted to the evidence of eyewitnesses testimony and also not chosen to advert to the dying declaration of the deceased made before the Doctor as well as before his relatives, who incidentally had gone to the hospital. The entries were made in the Medico Legal Case (MLC) Register maintained at the Hospital, in which document, the oral dying declaration of the deceased has been recorded by the Doctor.
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9. It is also contended that the eyewitnesses-PWs.5 and 6, who have witnessed the incident of shooting the deceased Vinod by the accused have categorically deposed before the Court with regard to the incident of shooting the deceased Vinod by accused No.1. In the case diary, the statements of P.W.5 and P.W.6 are found and their statements were recorded on the very day based on the disclosure statement made by C.W.1 (Shankara Reddy) and in his statement, he categorically mentions that these two eyewitnesses were present at the time of the incident. P.Ws.5 and 6 have not only spoken before the Investigating Officer and also during the course of trial spoken that, accused No.1-Govardhana Murthy shot the deceased Vinod with his pistol and they have witnessed the same while standing beneath the chajja of the window of the building, which is opposite to the guest house and hardly about the distance of 20 feet. PWs.5 and 6, both identified the firearm used by accused No.1 for shooting the deceased Vinod and their evidence is consistent. It is contended that a futile attempt is made that to bring out the relationship between 8 P.W.5 and the deceased and also the relationship between P.W.6 and the deceased as he was the former driver to discredit the evidence. Although no material whatsoever is brought on record to remotely indicate that, P.W.5, as relative and P.W.6, as former employee of the deceased and the same does not mean that their testimony needs to be discarded as they are the interested witnesses.
10. The other contention of the State is that, an oral dying declaration was made before P.W.4-Dr.Sathyajith and also P.W.3-Rajeev, who incidentally had gone to the hospital to see his friend. P.W.4-Dr.Sathyajith recorded in the MLC Register, the statement given by the deceased in Ex.P104 maintained at the hospital. P.W.4-Dr.Sathyajith was examined and he was subjected to cross-examination and nothing is elicited to disbelieve his evidence and his signature is marked as Ex.P104(a) and Register is marked as Ex.P104. It is contended that with regard to the genuineness of the document at Ex.P104, in the cross-examination of P.W.4, it is suggested that the entries were made after 15 days of registration of the crime and another suggestion was made 9 that MLC Register was created later and these two suggestions were denied by the witness.
11. It is contended that on a cursory look of all the entries made in Ex.P104 would manifestly indicate that Ex.P104 has not been meddled by any one at any point of time. It is further contended that the defendant has got marked Ex.D96, which also contains the dying declaration made by the deceased. If one were to keep the entry made in Ex.P104(a) in juxtaposition with Ex.D96, it could easily and safely be said that they are one and the same and that there has been no meddling or tampering with the entries made in the register as suggested by the defence. The Trial Court ought not to have disbelieved the same. The defence, who have examined the witness - D.W.2 also categorically made the statement that P.W.4-Dr. Satyajith has made the entries and he did not make any wrong entries in the MLC Register.
12. The other witness P.W.3-Rajeev, who is a relative of the deceased had gone to Satya Hospital to see his friend 10 Ibrahim and on getting the information that his friend consumed poison, he was in the hospital and when he witnessed the injured-Vinod was brought to the hospital along with Shankara reddy, he went and enquired. The deceased himself revealed that, accused No.1 shot him with the pistol and he requested to save him. The witness, P.W.3 also deposed before the Court that the deceased Vinod made the statement before him that the accused No.1 shot him and nothing worthwhile is elicited in the cross-examination of P.W.3 to disbelieve the oral dying declaration made before him by the deceased. The Trial Court has committed an error in not appreciating the evidence of P.W.3 in a right perspective. Even though the prosecution was able to examine PWs.5 and 6 as eyewitnesses and also the witnesses, who have recorded the dying declaration of the deceased and also the extra judicial confession made by accused No.1, which would corroborate the testimony of eyewitnesses, the trial Judge erred in not adverting to judicial and extra judicial confession made by the first accused. The extra judicial confession is found in the bail 11 application filed by accused No.1 before the High Court of Karnataka, which is got marked as Ex.P102. Accused No.1, in his 313 statement while answering question No.549, he admitted in his unequivocal terms that Ex.P102, is the bail application which he had filed before the High Court of Karnataka and the same has not been considered by the trial Judge.
13. The said Govardhana Murthy (accused No.1) in Ex.P102 made an attempt to explain his conduct while stating that the prosecution has wantonly and mischievously suppressed the events, which took place prior to and after the shooting and that he never intended to do away with the life of the deceased. But only he made an attempt in his 313 statement that he had not instructed his lawyer to say so in his bail application and that his lawyer also did not plead in his bail application something without his knowledge or consent.
14. It is contended that a plain reading of paragraph Nos.9 and 10 of Ex.P102 would manifestly indicate that the 12 admission made by the accused about having shot the deceased and that he had no intention of doing away with the life of the deceased at the time of shooting, but, he was under the influence of alcohol. The Trial Court also did not look into the material evidence of recovery of firearm used for the commission of the crime by the first accused/respondent herein and the same was recovered on the strength of the voluntary statement given by the first accused/respondent and the opinion of the Firearm Expert, who examined the firearm and the empty cartridge that were found over the scene of offence. The trial Judge, in fact, has not chosen to give any acceptable reason for discarding the eyewitness testimony, dying declaration, extra-judicial confession and also the recovery of firearm.
15. The voluntary statement of the first accused/respondent has been marked as Ex.P69 and the pistol was recovered at the instance of the accused in the presence of panchayathdars in a Garment Factory and the same was owned and possessed by the first accused and the mahazar was drawn in terms of Ex.P13. The said pistol was 13 marked as MO.1. The expert, who has been examined as P.W.8, gave the report in terms of Ex.P22 that, through the said MO.1 only shooting injuries had taken place and recovered material object No.1, which was used for the commission of the crime and expert evidence is clear that the accused did away with the life of the deceased, shot him and the same was totally ignored by the Trial Court.
16. It is also the contention that the motive for the commission of the crime is that, the daughter of D.W.1 - Dr.Shantha Kumar was to be given in marriage to the respondent/accused No.1 and the same was cancelled and marriage talks were held with the deceased to perform the marriage of his daughter with the deceased and so also there was an enimity between the first accused and the deceased with regard to real estate business. In spite of the material has been placed by the prosecution to motive aspect is spoken by P.W.13, the trial Court has committed an error in not accepting the motive for committing the murder. 14
17. The other contention of the State is that the abscondance of the accused from the scene of offence after he shot Vinod, he had been to Tamil Nadu and thereafter he found in Kerala and arrested at Kerala and brought to Karnataka. Thereafter, the documents were seized where he took the shelter.
18. The witness P.W.19 - C.Balakrishna, Circle Inspector of Police, who went and apprehended the accused Nos.1 and 5 at Kerala and brought both of them to Karnataka and produced before P.W.22, the Assistant Commissioner of Police and voluntary statement was recorded and MO.1 was recovered at the instance of this respondent/accused. The conduct of the accused did not consider by the Trial Judge, in spite of the witnesses, P.Ws.10, 11 and 12, who have spoken with regard to the register maintained by them in different lodges/Hotels i.e., in the State of Tamil Nadu and State of Kerala and they have identified the accused persons in the evidence that they stayed in the Hotel. In spite of these materials are placed before the trial Judge, the trial Judge failed to consider the same in a right perspective. 15
19. The prosecution also examined P.W.1 - Ismail Shariff, a licenced Firearm Dealer and P.W.17 - G.N.Naik, District Magistrate of Bengaluru Urban District and documents Exs.P1 to P6 are marked and it is evident that MO.1-Pistol used in the commission of crime is the one purchased by the respondent under a license issued to him and that the permission needed for his prosecution for offences which are made penal under the provisions of Arms Act has been granted. In spite of the material placed before the Trial Court, the trial Judge has also failed to consider the material available on record and committed an error in not considering the material placed by the prosecution.
20. Though the defence examined several witnesses to substantiate their defence, the evidence of D.Ws.1 to 13 virtually does not support the case of the prosecution and instead of the documentary evidence, which are placed as Exhibit-'D' series erupts the prosecution and the witnesses, who have been examined in support of their defence also would not come in the way of the defence and in spite of the 16 same, the trial Judge has committed an error in not appreciating the same in a proper prospective which has resulted in serious miscarriage of justice. Hence, it requires interference of this Court.
21. Shri V.M.Sheelavanth, learned State Public Prosecutor appearing for the appellant/State, in his arguments, he vehemently contends that the person, who is at the spot took the injured immediately to the hospital i.e., Satya Hospital as well as to the Manipal Hospital and the defence did not dispute the fact that the injured was taken at the first instance to Satya hospital and thereafter to Manipal hospital. But only the contention that the document, Ex.P104 was created and on perusal of the statement made before the Doctor at Satya hospital and also at Manipal hospital is one and the same and there is no any contra statement. When such being the case, the Trial Court ought to have accepted the oral dying declaration made before the Doctor, P.W.4. The Trial Court also committed an error in not accepting the evidence of P.W.3 with whom the deceased made the statement that the first accused shot him and 17 requested him to save him. The Trial Court has given much importance to the defence, which is not probable. The recovery of MO.1-Pistol was made at the instance of the accused and Mahazars were drawn. The evidence of PWs.5 and 6 corroborates each other and there is no any contra evidence and no contradictions. P.W.4 - Dr.Sathyajith, speaks with regard to injured himself made the statement before him that the first accused/respondent only shot him. The finding of the Trial Court in page No.41 is contrary to the records. Ex.D124 itself shows that when the injured was taken to Manipal hospital, the name of Govardhana Murthy i.e., the first accused has been specifically mentioned that he has shot the deceased.
22. P.W.13, brother of the deceased regarding engagement and cancellation of the marriage with the daughter of Dr.Shantha Kumar (CW.25) was spoken and P.W.3 also, who gave the evidence before the Court with regard to the dying declaration and categorically stated that he went to Satya hospital to meet his friend Ibrahim and at that juncture, he found the injured-Vinod and made an 18 enquiry and his evidence also has not been properly considered by the Trial Court and the Court disbelieved and comes to the conclusion that Ibrahim was not in the hospital but original documents shows that he was in the hospital. The original MLC register discloses that the said Ibrahim was hospitalized on the very same day in the said hospital. The documentary evidence has not been considered by the Trial Court.
23. The learned counsel also brought to our notice that Ex.P102 with regard to the confession made by the accused himself in his bail petition stating that it was not an intentional act and no intention was having to do away with the life of the victim and when such being the case, the Trial Court out not to have acquitted the accused. The Trial Court also failed to consider the conduct of the accused and the witnesses, PWs.10 to 12 have identified the accused persons that the accused persons came to their Hotels/Lodges and stayed there.
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24. The learned counsel further submits that the Trial Court did not discuss the evidence in detail, a cryptic order has been passed and given more importance to the documents of the defence and did not give any consideration to the documents of the prosecution. Hence, the Trial Court has committed an error and it requires re-appreciation of the evidence.
25. The learned State Public Prosecutor in support of his arguments relied upon the judgment of the Hon'ble Apex Court in the case of WAMAN AND OTHERS v. STATE OF MAHARASHTRA reported in AIR 2011 SC 3327 and brought to our notice paragraph Nos.12, 13, 14, 16 and 17 with regard to relative witnesses. The Apex Court in paragraph No.12 of the judgment has held that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility 20 of a witness and the courts have to scrutinize their evidence meticulously with a little care.
26. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case of ARJUN AND OTHERS v. STATE OF RAJASTHAN reported in AIR 1994 SC 2507. Relying upon this judgment, he brought to our notice paragraph No.12 of the judgment and would contend that even if the complainant and the accused are on inimical terms, the same is not a ground by itself to reject the testimony of witnesses. It is further held that relationship between the deceased and witnesses are no ground to reject the testimony of witnesses. The courts have only to scrutinize the evidence with more than ordinary care.
27. The learned counsel also relied upon the judgment of Hon'ble Apex Court in the case of STATE OF U.P. v. NARESH AND OTHERS reported in 2011 CRI.L.J.2162 and brought to our notice paragraph No.24 of the judgment and would contend that relative witnesses evidence cannot be discarded solely on the ground of his relationship with the 21 victim of the offence. The counsel also brought to our notice paragraph No.25 of the judgment, wherein it is held that under Section 3 of the Evidence Act, discrepancies, contradictions, inconsistencies are bound to occur, unless they affect core of prosecution case cannot be basis to reject the evidence. The discrepancies are bound to occur in depositions of witnesses due to errors of observations, errors of memory due to mental disposition at the time of occurrence.
28. The counsel also brought to our notice the judgment of Hon'ble Supreme Court in the case of VINAY KUMAR RAI AND ANOTHER v. STATE OF BIHAR reported in (2008) 12 SCC 202 and brought to our notice paragraph No.11 of the judgment, wherein it is held that merely because the eyewitnesses are family members, their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. 22 We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. It is further held that each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
29. The learned counsel also relied upon the judgment of the Hon'ble Supreme Court in the case of SALIM SAHAB v. STATE OF M.P. reported in (2007) 1 SCC 699 and brought to our notice paragraph Nos.11 and 13 of the judgment. In paragraph No.11 of the judgment, it is held that we shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a 23 careful approach and analyse evidence to find out whether it is cogent and credible.
30. The learned counsel also relied on the judgment of the Hon'ble Apex Court in the case of ISRAR v. STATE OF U.P. reported in (2005) 9 SCC 616 and brought to our notice paragraph Nos.12, 15 and 17 of the judgment. In this judgment also the Apex Court with regard to interested or partisan witness and related witness held that, testimony of, by itself should not be discarded. If foundation of false implication is laid, the court should carefully analyse the evidence. It is further held that even if part of the prosecution case is not acceptable, that would not result in rejection of the entire prosecution case and if on careful analysis of evidence, case against any accused is made out, he would be liable to be convicted, notwithstanding that evidence found to be deficient to prove guilt of other accused. It is also held that principle of Falsus in uno falsus in omnibus, is not applicable in India.
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31. The learned counsel also relied on the judgment of the Hon'ble Supreme Court in the case of BALBIR SINGH AND ANOTHER v. STATE OF PUNJAB reported in (2006) 12 SCC 283 and brought to our notice paragraph Nos.26 to
30. It is held that the law does not provide that a dying declaration should be made in any prescribed manner or in the form of questions and answers, but it must be voluntary and not tutored. In paragraph No.18 it is held that only because a dying declaration was not recorded by a Magistrate, the same by itself, in our view, may not be a ground to disbelieve the entire prosecution case. When a statement of an injured is recorded, in the event of her death, the same may also be treated to be a first information report. The same is admissible in evidence in special circumstances. But it must be borne in mind that its admissibility is statutorily recognized in terms of Section 32 of the Evidence Act.
32. The learned counsel for the State also relied upon the judgment of Hon'ble Supreme Court in the case of ANJANAPPA v. STATE OF KARNATAKA reported in 25 (2014) 2 SCC 776 regarding the conduct of the accused and non-explanation by the accused of the incriminating facts with regard to his absconding. The counsel brought to our notice paragraph No.30 of the judgment and would contend that the accused did not set up a defence in his 313 statement. It was obligatory on him to explain how the deceased received burn injuries in his house. His silence on this aspect gives rise to an adverse inference against him. It forms a link in the chain of circumstances which point to his guilt. Referring this judgment, he would also contend that the accused did not give any explanation with regard to his absconding immediately after the crime and conduct of the accused is important.
33. The learned counsel also relied on the judgment of the Hon'ble Supreme Court in the case of SATPAL v. STATE OF HARYANA reported in (2018) 6 SCC 610 and would contend that no material is placed by the accused for his false implication. Further he would contend that recovery was made at the instance of the accused i.e., pistol which belongs to him and no material is placed before the Court 26 that he has been falsely implicated. Mere taking the defence that he has been falsely implicated in the case is not enough and the accused has to make out the case that he has been falsely implicated.
34. The counsel also relied upon the judgment of the Hon'ble Supreme Court in the case of RAJENDRA PRALHADRAO WASNIK v. STATE OF MAHARASHTRA reported in (2012) 4 SCC 37 and brought to our notice paragraph Nos.23 and 31 of the judgment. In paragraph No.23 of the judgment it is held that when both circumstantial and direct evidence which links in the story of the prosecution, there is no occasion for this Court to doubt that the prosecution has not been able to prove its case. Further, the counsel brought to our notice paragraph No.31 of the judgment that accused has not given any explanation in his 313 statement and there are no circumstances which can even remotely suggest that the plea taken by the accused even deserves consideration.
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35. Per contra, the learned counsel appearing for the accused in his argument vehemently contended that the witnesses P.Ws.3, 5 and 13 are relatives. P.W.13 is the brother of the deceased. The prosecution in the charge-sheet relied upon C.Ws.4 to 6 as eye-witnesses, but did not examine the said witnesses even though summons were taken against them. It is further vehemently contended that P.Ws.5 and 6, who have been examined as witnesses, their names are not mentioned that they were present at the time of the incident in Ex.P.46(a). It is also contended that the statement of P.W.5 was recorded on 20.8.2010 and statement of P.W.6 was recorded on 31.8.2010 and their statements are not recorded immediately after the incident. The statement of P.W.4 was recorded on 17.8.2010. P.W.4 is the doctor who recorded MLC when the injured was brought to the hospital which is marked as Ex.P104. The same is created one and there was a discrepancy in the timings. In the MLC, timings is mentioned as 1.30 a.m. and in the medical records of Manipal Hospital, the timings is recorded as 1.40 a.m. and the distance between both the hospitals is 28 around 12 kms. The person who took the injured to the hospital who has been cited as C.W.1, has not been examined before the Trial Court. The reason assigned for non-examination of C.W.1 is that he has turned hostile. C.Ws.3 to 9 are also given up as unnecessary. The prosecution has failed to examine the witnesses who have been quoted in the charge-sheet.
36. It is also contended that at the first instance, FIR was registered at 8.00 a.m. in terms of Ex.P46 for the offence punishable under Section 307 of IPC. According to the prosecution, the victim passed away at 8.30 a.m. and second FIR was issued in terms of Ex.P.58 at 11.00 a.m. The said FIR was registered by P.W.19 and there was a delay in registering the case.
37. The learned counsel would also contend that there is a discrepancy with regard to the hole and it is the evidence of the prosecution that there are no blood stains on the clothes and also there was a discrepancy in the evidence of the prosecution that the blood group is 'O' positive and 29 FSL report is 'AB' positive so also there is a discrepancy in respect of M.O.12. M.O.12 is seen by the Ballistic expert who came to the spot and though it is stated that the same was seized, the same was not seized and the evidence discloses that probably the shirt was misplaced or the same is the mischief by the Investigating Officer. It is also the case of the prosecution that the seized cartridge are sent to the FSL, but the same are different and the evidence of P.W.8 cannot be believed regarding M.Os.8 and 12.
38. The learned counsel with regard to dying declaration is concerned, vehemently contended that the oral dying declaration of the deceased was recorded by P.W.4 doctor, who was working as a part -time doctor in Sathya Hospital. The document which is marked as Ex.P104 is contrary to the document Exs.D.94 to 100. On perusal of the document Ex.P104 - MLC register, it is clear that it is nothing but insertion by playing mischief. Page Nos.259 to 261 discloses that the entries are in different handwriting and the same is not in the handwriting of P.W.4 and there is no explanation on the part of the prosecution that the same was 30 in different handwriting and it is the case of the prosecution that P.W.4 was on night duty and he was alone in the night duty. In the absence of the explanation to the document Ex.P104, dying declaration of the deceased, cannot be accepted.
39. The learned counsel would contend that doctor Shantha Kumar is the owner of Sathya Hospital. His daughter was given in marriage to P.W.13, who is none other than the brother of the deceased. Hence, it is clear that P.W.13 who married the daughter of Shantha Kumar, has deposed at the instance of doctor Shantha Kumar since doctor Shantha Kumar's daughter was earlier engaged to the deceased. The learned counsel would contend that the entries made in Exs.P15 and 104 are in the handwriting of P.W.4 and the said entries are made at the instance of Shantha Kumar. Exhibit 'D' series improbablise the case of the prosecution.
40. The conduct of P.W.3 has to be looked into with whom, according to the prosecution, oral dying declaration was made by the deceased. P.W.3 is the relative of the 31 deceased and his statement was recorded and when his statement was recorded, he did not disclose with the Investigating Officer that he is the relative of the deceased. The oral dying declaration made before P.W.3 cannot be believed. P.W.3 remains in the house after informing the family members of the deceased, but he claims that when he went to the house of the deceased, he came to know that the family members have already been informed and he also says that he came to know that the injured was taken to the hospital. But he claims that he informed the same to the family members about what the injured told to him. But P.W.13, brother of the deceased does not whisper anything about P.W.3 has revealed the same.
41. The learned counsel would also contend that the recovery of pistol is also doubtful and P.W.3 says that the same was recovered from the drawer. He claims that he was present, but panch witnesses were not seen in the photographs including P.W.3 and the photographs which are marked as Ex.P48 does not disclose the presence of P.W.3. 32 Hence, it is clear that P.W.3 is not part of the recovery and recovery of M.Os.1 to 3 is doubtful.
42. The learned counsel appearing for the accused would contend that P.Ws.5 and 6 were not present and hence they cannot be treated as eye-witnesses to the incident. There is no mention of their presence in any of the documents which came into existence at the first instance. P.W.5 is also relative of the deceased, but the same was suppressed. The defence has placed material before the Court that P.W.5 is also relative of the deceased. When he was subjected to cross-examination, he suppressed the relationship denying that he is not relative. P.W.6 is the driver of the deceased. P.W.13 also does not say anything about P.W.6 was working as driver. Apart from working as driver, he was also doing real estate business and his statement was recorded only to make him as eye-witness to the incident.
43. During the cross-examination of P.Ws.5 and 6, it is elicited that there are material omissions. Hence, the very 33 presence of P.Ws.5 and 6 is doubtful. P.W.22 in his evidence categorically deposed with regard to the material omissions and P.W.13 has also not spoken anything about these witnesses. It is contended that cross of P.Ws.13 and 5 to be read together with regard to relationship between P.W.13 and 5. The defence also produced release deed, gift deed and partition deed, which shows Manjula is the wife of P.W.5 and through the wife of P.W.5, the deceased is relative to P.W.5. The evidence of P.W.2 is clear that there are contradictions in recording the evidence of P.Ws.5 and 6. It is evident that the statement of P.Ws.5 and 6 was recorded as per P.W.22 after 2.30 p.m. But P.Ws.5 and 6 say that their evidence were recorded before 2.00 p.m. and there was no reference of recording of any eye-witnesses' statement and the same is also not found in the remand application. The evidence of P.Ws.3, 5, and 6 is material to arrive for a conclusion whether the accused has committed the offence alleged against him. The conduct of P.Ws.5 and 6 is also very important. Though, they claim that they were present at the spot, but according to the prosecution, they rushed to the 34 house of the deceased and thereafter they went to the hospital.
44. Though the prosecution examined P.W.13 with regard to the motive, no material is placed before the Court to prove the motive in committing the murder of the deceased by the accused. The prosecution only revolves upon the evidence of P.Ws.3, 4, 5, 6 and 13. The very seizure of M.O.1 is doubtful and P.W.22 has not given any explanation with regard to plenty of cartridges. M.O.8 pistol is created for the purpose of this case so also M.O.12 shirt is also planted and the evidence of Ballistic expert is clear that those two M.Os. are substituted and the evidence of Ballistic expert does not corroborate the evidence of the prosecution witnesses.
45 According to the prosecution, accused Nos.1 and 5 were apprehended at Kerala at 10.30 a.m. on 11.8.2010 and thereafter brought to Bengaluru and their voluntary statements were recorded. The prosecution relies upon the mahazar drawn in terms of Ex.P37 at Vellore Hotel and only 35 seized with regard to the advance receipt and the same is not in the name of the accused. It is also the case of the prosecution that mahazar Exs.P.33 and 34 were drawn i.e., hotel ledger dated 8.10.2008 and also the reservation register dated 7.10.2008 and in order to prove the same, the prosecution examined P.Ws.10, 11 and 12. Though those witnesses have supported the case of the prosecution, but the documents are not in the name of the accused and when the same is not in the name of the accused persons, the prosecution cannot rely upon those documents. P.W.19 stayed in the hotel and not accused No.1. The so called arrest of the accused is also nothing but creation. None of the mahazar witnesses have been examined and actually the accused persons have surrendered on 10th itself, but the prosecution created the story that accused Nos.1 and 5 have been arrested at Kerala. The learned counsel would contend that accused No.5 was acquitted and no appeal has been filed. There is no documentary evidence to show that they have stayed in the hotel. They might have traveled to Kerala on fear and there is no incriminating circumstances. 36
46. The learned counsel would contend that the sum and substance of the case is that no genesis of the crime and not spoken by the persons who are at the spot and they have not been examined and only created P.Ws.5 and 6 as eye- witnesses. The prosecution is relying upon the evidence of P.W.13, who is the son-in-law of Shantha Kumar. In order to prove the motive, only P.W.13 has been examined. It is clear that the deceased was doing real estate business and Shankar is the partner of the real estate business. It is the case of the prosecution that there was rivalry between the deceased and the accused. When such being the case, the deceased would not have gone to the said place, if there was a rivalry. There is no material before the Court that there was prior quarrel. Nothing is recovered with regard to prior firing, since the prosecution claims that before this incident, prior firing was made. The witnesses P.Ws.5 and 6 are strange eye-witnesses and they are not chance witnesses. M.Os.8 and 12 are also tampered. No evidentiary value can be attached to the Ballistic expert. There are no blood stains on the clothes. The shirt was torn at 5th and 6th metallic 37 button. The evidence of P.W.4 cannot be believed that there was an oral dying declaration. The recoveries are also not proved. The discrepancies found, doubts the case of the prosecution. The prosecution was unsuccessful in proving the case against the accused.
47. Learned Senior counsel appearing for the accused, in support of his arguments, has relied upon the judgment in the case of SHANKER v. STATE OF U.P reported in (1975) 3 SCC 851 and brought to our notice para No.11 of the judgment. Referring to the same, he would contend that there is a delay in registering the case and also sending FIR to Court. In the said judgment, it is held that it is well settled that unless a first information report can be tendered in evidence, such as a dying declaration falling under Section 32(1) as to the cause of the informant's death, or as part of the informant's conduct under Section 8, it can ordinarily be used only for the purpose of corroborating, contradicting or discrediting and the same is not free from reasonable doubt.
38
48. Learned Senior counsel further relied upon the judgment in the case of MEHARAJ SINGH (L/Nk.) v. STATE OF U.P. reported in (1994) 5 SCC 188 and brought to our notice para No.12 of the judgment with regard to delay in filing FIR, wherein it is held that FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. The Apex Court further held that on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been 39 ante-timed and had not been recorded till the inquest proceedings were over at the spot.
49. Learned Senior counsel also relied upon the judgment in the case of HARKIRAT SINGH v. STATE OF PUNJAB reported in (1997) 11 SCC 215 and brought to our notice para No.4 of the judgment, wherein the Apex Court has held that the contents of the FIR could have been used for the purpose of corroborating or contradicting if the witness has been examined but under no circumstances as a substantive piece of evidence.
50. Learned Senior counsel further relied upon the judgment in the case of GEORGE AND OTHERS v. STATE OF KERALA AND ANOTHER reported in (1998) 4 SCC 605 and brought to our notice para No.30 of the judgment, wherein it is held that the dying declaration made by the deceased before the witnesses, which has been pressed into service by the prosecution to corroborate the ocular version of the first witness. We must confess that we have not been able to fathom how the trial court could rely upon the 40 contents of Ex.P1 lodged by P.W.1 and that too for the purpose of discarding the evidence of witnesses.
51. Learned Senior counsel further relied upon the judgment in the case of BABY ALIAS SEBASTIAN AND ANOTHER v. CIRCLE INSPECTOR OF POLICE, ADIMALY reported in (2016) 13 SCC 333 and brought to our notice para Nos.29 to 34 of the judgment, wherein it is held that it is a well-settled legal principle that the evidence of a chance witness cannot be brushed aside simply because he is a chance witness but his presence at the place of occurrence must be satisfactorily explained by the prosecution so as to make his testimony free from doubt and thus, reliable. Referring to this judgment, he would contend that the evidence of P.Ws.5 and 6 are planted witnesses and hence, their evidence cannot be reliable.
52. Learned Senior counsel would further rely upon the judgment in the case of PEERAPPA AND OTHERS v. STATE OF KARNATAKA reported in (2005)12 SCC 461 and brought to our notice para Nos.10 and 11, wherein the 41 Apex Court has elaborately discussed with regard to the appreciation of the evidence by the Trial Court as well as High Court and held that it is difficult to believe the version of the evidence of P.Ws.4 and 5. Referring to the said judgment, he would contend that in the case on hand also, the evidence of P.Ws.5 and 6 is not credit worthy to accept the same as they are the eyewitnesses to the incident according to the prosecution and Court has to take note of the conduct of those witnesses who did not rush to the hospital, instead they claim that they rushed to the house of the accused.
53. Learned Senior counsel also relied upon the judgment in the case of KANAKARAJAN ALIAS KANAKAN v. STATE OF KERALA reported in (2017) 13 SCC 597 and brought to our notice para Nos.14, 15, 16, 18 and 19 of the judgment, wherein it is held that there are certain pivotal issues where the prosecution has failed to provide a satisfactory explanation and the evidence of eyewitnesses does not inspire the confidence of the Court. Referring to the same, he would further contend that a closure look at the 42 evidence of the prosecution witnesses, in particular P.W.5 and P.W.6, would reveal that these witnesses are not cogent and trustworthy to form basis to convict the accused. The conduct of P.W.5 and P.W.6 in not accompanying the injured to the hospital, not giving the complaint to the police and not getting his injuries treated raises serious doubts and supports the case of the defence. It is further held by the Apex Court in para No.19 of the judgment that non- examination of credible independent witnesses in this case is very much fatal to the prosecution's case. In the case on hand also, the prosecution did not examine the material witnesses and those witnesses have been dropped on the ground that they are unnecessary.
54. Learned Senior counsel also relied upon the unreported judgment between GUMAN SINGH and STATE OF RAJASTHAN of the Apex Court in Criminal Appeal No.1475/2017 and brought to our notice para Nos.3, 4, 5, 6, 7 and 8 of the judgment. Referring to the same, he would contend that the primary issue/question raised before this Court also relates to veracity and truthfulness of the 43 testimonies of the witnesses, particularly P.Ws.3, 4, 5, 6 and 13, which do not inspire the confidence of the Court. In the said judgment also, the Apex Court did not believe the version of the evidence of P.Ws.1 and 4, so also the evidence of P.W.7. In the case of hand also, the evidence of those witnesses who are referred above also does not inspire the confidence of the Court and the veracity and truthfulness of the testimonies of those witnesses will not come to the aid of the prosecution.
55. Learned Senior counsel also relied upon the judgment in the case of TAKHAJI HIRAJI v. THAKORE KUBERSING CHAMANSING AND OTHERS reported in (2001) 6 SCC 145 and brought to our notice para Nos.7, 9, 12 and 19 of the judgment, wherein the Apex Court, referring to the evidence of the witnesses, in para No.19 has formed its opinion, it is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made 44 good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. Referring to this principle, he would contend that in the case on hand also, the prosecution did not choose to examine the witnesses to prove the genesis of the incident and left those witnesses only on the ground that they are unnecessary and also they are hostile witnesses.
56. Learned Senior counsel further relied upon the judgment in the case of SURINDER KUMAR v. STATE OF HARYANA reported in (2011) 10 SCC 173 and brought to our notice para Nos.19, 20 and 27 of the judgment with regard to non- examination of relative witnesses. Referring to the same, he would contend that the Investigating Officer has not enquired the witnesses, who were present at the spot about the genuineness of the incident, which means that nobody has supported the version of the prosecution. In the 45 case on hand also though the prosecution has relied upon the evidence of CW.3 to CW.9, they were not examined before the Court in support of the prosecution case, which creates doubt.
57. Learned Senior counsel also relied upon the judgment in the case of DENY BORA v. STATE OF ASSAM reported in (2014) 14 SCC 22 and brought to our notice para No.13 of the judgment. Referring to the said judgment, he would contend that non-examination of the most natural and competent witnesses is fatal to the case of the prosecution and also the prosecution has to explain the reasons best known to them for non-examination of such witnesses and also with regard to the presence of the witnesses, who were at the spot. The Apex Court has observed that the prosecution has otherwise not been able to establish the case against the accused and therefore, non- examination of the material witnesses cannot be regarded as inconsequential. He would further contend that the prosecution has filed the memo stating that the evidence of those witnesses are unnecessary and after coming to know 46 that those witnesses does not help the prosecution in any way, they have been left out. As has been held by the Apex Court in the said judgment, non-examination of the material witnesses cannot be regarded as inconsequential.
58. Learned Senior counsel appearing for the accused also relied upon the judgment in the case of SK. YUSUF v. STATE OF WEST BENGAL reported in (2011) 11 SCC 754 and brought to our notice para No.31 of the judgment. Referring to this judgment, he would contend, the theory of the prosecution that the accused persons were absconded cannot be accepted. It is a settled legal position that in case a person is absconding after commission of offence, of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him, as it would go against doctrine of presumption of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment.
47
59. Learned counsel also relied upon the judgment in the case of SUJIT BISWAS v. STATE OF ASSAM reported in (2013) 12 SCC 406 and brought to our notice para Nos.22 and 23 of the judgment, wherein the Apex Court has discussed whether the abscondence of an accused can be taken as circumstance against him as has been considered in the case of BIPIN KUMAR MONDAL v. STATE OF WEST BENGAL reported in AIR 2010 SC 3638, by extracting para No.27 of the said judgment, wherein a reference is also made to the case of MATRU v. STATE OF U.P., wherein, it is held that mere abscondence of accused does not lead to a firm conclusion of his guilty mind. An innocent man may also abscond in order to evade arrest, as in light of prevailing situation, such an action may be part of natural conduct of accused. Abscondence is in fact relevant evidence, but its evidentiary value depends upon surrounding circumstances, and hence, same must only be taken as a minor item in evidence for sustaining conviction.
60. Referring to the judgments stated supra, learned Senior counsel would contend that considering both oral and 48 documentary evidence available on record, nothing inspires the confidence of the Court to come to the conclusion that this accused himself has shot the deceased and the prosecution evidence relied upon by the Trial Court does not corroborate the evidence of each of the witnesses. Though learned Trial Judge has not discussed the evidence in detail in the judgment cryptic, this Court can re-appreciate the evidence available on record and even on re-appreciation of the evidence, it does not inspire the confidence of the Court to reverse the findings of the Trial Court. The evidence available on record does not disclose the genesis of the incident, particularly the evidence of P.Ws.3 and 4 mainly with regard to the oral dying declaration and hence, the same cannot be relied upon. He would further contend that it is nothing but a creation of witnesses and documents, so also the evidence of P.Ws.5 and 6, who claims that they are the eye witnesses to the incident also does not inspire the confidence of the Court. The prosecution mainly relied upon the evidence of P.Ws.3, 4, 5 and 6 and in order to prove the motive, it has been mainly relied upon the evidence of 49 P.W.13, who is none other than the brother of deceased Vinod. Therefore, the prosecution has not made out any grounds to reverse the findings of the Trial Court and hence, the appeal is liable to be dismissed.
61. Having heard the arguments of the State Public Prosecutor Sri.V.M.Sheelavanth and also learned Senior counsel Sri. Tomy Sebastian appearing for the accused, so also considering the principles laid down in the judgments referred supra by the respective counsels, this Court has to re-appreciate the material on record. On re-appreciation of both oral and documentary evidence, the following points arise for consideration before this Court:-
1. Whether the Trial Court has committed an error in acquitting the accused/respondent for the offence punishable under Section 302 of IPC ?
2. Whether the Trial Court has committed an error in acquitting the accused for the offence punishable under Section 27 of the Indian Arms Act?
3. What order?50
62. Before re-appreciating the evidence, we would like to make it clear at the first instance itself that though charge sheet is filed against accused Nos.1 to 7 invoking offences under Sections 120B, 212, 302, 147, 148, 149, 506B of IPC and Section 27 of Indian Arms Act, learned Trial Judge, after considering the material on record acquitted accused Nos.1, 2, 4 to 7. The State also did not choose to file any appeal against the acquittal of the accused Nos.2, 4 to
7. In the present appeal, the State has questioned the judgment and order of acquittal by restricting only in respect of accused No.1. This Court has to re-appreciate the evidence available on record in so far as accused No.1 alone is concerned, since there is no appeal against the acquittal of other accused persons.
63. Taking note of the fact that the appeal is being restricted only in so far as accused No.1 is concerned, no other penal provisions except Section 302 of IPC and Section 27 of the Indian Arms Act, requires reconsideration. 51
64. Now this Court has to re-appreciate both oral and documentary evidence of the relevant witnesses in detail, in view of restriction of appeal only against accused No.1 for the above offences.
65. P.W.1 is the proprietor of Malnad Armoury, from whom accused No.1 had purchased the pistol on 13.06.2007. It is also his evidence that on 15.06.2007, 0.32 Caliber Pistol was delivered to him. The documents for having purchased and delivered the said pistol were got marked as Ex.P1 to Ex.P6. However, learned counsel for the accused did not cross-examine this witness disputing the documents.
66. P.W.2 is the Special Tahasildar, who has been examined in respect of ownership of the L.G. Rose Heritage which is located in Sy.Nos.46/5, 46/7, 46/8 and 46/10 of Kadusonnappanahalli Village, Bidarahalli Hobli, Hosur. Through this witness, Ex.P7 and Ex.P8 to Ex.P11 RTCs are marked. He was subjected to cross-examination. In his cross-examination, he admits that there is no mention of L.G. Rose Heritage layout in Ex.P8 to Ex.P11. It is elicited that 52 police have not enquired him with regard to Ex.P7. It is also elicited that he does not have any information as to what are all the actions, which were taken by Venkatesh before issuing Ex.P7.
67. P.W.3 - Rajeev, in his evidence says that the deceased is his cousin i.e., his father sister's son and he is also having acquaintance with the accused. Since he was also doing real estate business, he used to visit the office of accused No.1. He also knew accused No.5 - Langda Babu, who is the driver of accused No.1. It is his evidence that on 06.10.2008 at about 11.30 p.m., he had been to Sathya Hospital to see his friend Ibrahim, who was admitted in the said hospital for having consumed the poison. It is his evidence that from 11.30 p.m. onwards till 1.30 a.m., he was in the hospital and his friends were also with him in the said hospital. It was informed by the doctor that his friend Ibrahim is out of danger. Since there was nothing to panic, he sent all his friends and he was about to leave the hospital. It is also his evidence that when he came near the main entrance gate of the hospital, a car came in a speed manner 53 and he saw Shankar Reddy sitting in the said car. Ivaar Babu was sitting in the rear seat of the said car and the injured Vinod Kumar was made to sleep in the rear seat and they descended him from the car. Immediately, he went and enquired the injured Vinod Kumar as to what happened to him, he told him that Govardhan shot him in the pistol and requested him to save his life. Shankar Reddy and Ivaar Babu immediately took the injured Vinod inside the hospital. He also went inside the hospital. The doctor examined the injured Vinod Kumar and found gunshot injury on the right portion of his stomach and it was bleeding. When the doctor was examining injured Vinod, he left the hospital and took his car from his house with an intention to inform the family members of said Vinod. By the time, he could reach the house of Vinod, his family members were already informed that Govardhan Murthy had shot Vinod and he has sustained injuries, hence he was taken to Manipal Hospital. It is his evidence that people, who were there near the house of Vinod told that the family members rushed to the hospital. He also immediately went to Manipal Hospital. On the next 54 day morning at about 8.30 a.m., Vinod passed away and his statement was recorded.
68. It is also his evidence that on 12.10.2008, he was called to police station to be a part of mahazar and accordingly, he went to police station. He found accused Nos.1 and 5 in the police station. Accused No.1 told in front of him that he would show the place where pistol is kept. Hence, he himself, Venkatesh, accused No.1, Manjunath, Assistant Commissioner of Police and other two constables along with photographers proceeded in the police vehicle towards Mahadevapura and accused No.1 told to stop the vehicle near right side of the road, where they found a three- floor Garment Factory. They followed accused No.1 towards the Garment Factory. Before entering the Garment Factory, accused No.1 was subjected to personal search and nothing was found. Accused No.1 led all of them to third floor of the said Garment Factory, where they could find a table and when they opened the drawer of the said table, they found a cash box. The said cash box was removed from the drawer and kept on the table. When the said cash box was opened, 55 they could find a pistol and three bullets. Those three bullets were loaded in the magazine of the said pistol. The Assistant Commissioner of Police inspected the pistol, magazine and bullets. Accordingly, the mahazar was drawn in respect of the said proceedings in terms of Ex.P13 and he had signed the said mahazar. He identifies his signature in the said mahazar and his signature is marked as Ex.P13(a), so also the signature of the other witness as Ex.P13(b). The said items were seized by packing in the sealed cover and he identifies the pistol, magazine and bullets as MO.1 to MO.3 respectively.
69. It is also his evidence that accused No.5 made statement before them that he has a dummy pistol and he would show the same, if he is taken. Accordingly, all of them were led to the house of a woman, by name, Madhu. Before getting inside the house, he was also subjected to personal search, and nothing was found. All of them followed accused No.5 to the house of that lady, where they could find a show case in the living area from where a dummy pistol was removed by accused No.5 and the same was handed over to 56 Assistant Commissioner of Police. It is also his evidence that mahazar was drawn in respect of the said proceedings. Accused No.5 also handed over his passport to Assistant Commissioner of Police. The mahazar in respect of the said proceedings was drawn in terms of Ex.P14. He identifies his signature as Ex.P14(a) and the signature of the other witness as Ex.P14(b). He identifies his passport and a dummy pistol as MO.4 and MO.5 respectively.
70. P.W.3 was subjected to cross-examination. In his cross-examination, he admits the relationship between himself and the deceased. It is elicited that, by the time he reached the house of the deceased, the family members of Vinod had already received the information about the incident through Shankar Reddy and the same was informed to him. It was around 1.40 to 1.45 a.m., when he went to the house of Vinod and it could be approximately 2.30 a.m., when he reached the Manipal Hospital. It is also his evidence that the parents and younger brothers of Vinod were also present in the hospital. He was present in the Manipal Hospital along with the family members of Vinod till 11.30 57 a.m. Thereafter, he went to Bowring Hospital, where the postmortem of the deceased Vinod was conducted. It was around 3.30 p.m. when the body was brought to the house of the deceased and in the late evening, the body was cremated. It is also his evidence that the Assistant Commissioner of Police was present in the Bowring Hospital from 12.15 to 2.30 p.m.
71. It is elicited that Govardhan Murthy and Shankar Reddy both were running the real estate office at Kammanahalli and also he was having acquaintance with accused No.1 in relation to the same. He admits that he does not know where Ibrahim was residing and the name of his father, so also his avocation, but he claims that he came to know the said Ibrahim through his friend Deepak. He admits that he had never been to Sathya Hospital earlier to 06.10.2008 and he had never visited the said hospital at any point of time, except his visit on that day. He says that he does not remember as to how many days the said Ibrahim was inpatient in the said hospital and when he got discharged. He says that when he went to the said hospital, 5 58 to 6 friends of Ibrahim were present, but he was not having any acquaintance with them. When he went to see him in the hospital, the Doctor was treating Vinod. He admits that he had seen Vinod in his car near the gate of Sathya Hospital, but he did not help the inmates of the car to take him inside the hospital. However, he enquired Vinod, when he was taking inside the hospital. Since he had left his mobile in the house itself, he could not inform the family members of the injured Vinod about the said incident. He did not even ask the mobile phone from Shankar Reddy or Ivaar Babu.
72. It is elicited that the distance between the house of Vinod and Manipal Hospital is about 10-12 kilo meters and the distance between Sathya Hospital and Manipal Hospital might be half a kilo meter more. He himself went to the office of Assistant Commissioner of Police on 8.10.2008 in order to inform him about what Vinod had conveyed him in the Sathya Hospital. It is suggested that none has informed him about Ibrahim admitted in the Sathya Hospital and he does not know about the same, so also he had not visited the Sathya Hospital at that night and the same was denied. It is 59 further suggested that he is deposing on imagination that Shankar Reddy and Ivaar Babu had brought Vinod to Sathya Hospital during mid night in the car and the same was denied.
73. It is elicited that, it approximately took 20 minutes to reach Garment Factory from the office of Assistant Commissioner of Police and by the time they reach the spot, it was around 7.30 a.m. He further deposed that three to four photographs were taken at the time of identifying the items by Govardhan Murthy and he could not find him in the said photos. It is suggested that he is falsely deposing that Govardhan Murthy had informed the Assistant Commissioner of Police in their presence about placing of pistol in the Garment Factory and the same was denied. It is further suggested that he is deposing falsely that the said Govardhan Murthy took all of them to the spot and produced pistol, magazine and bullets and the same was denied. It is further elicited that during his visit to the hospital at the time of postmortem examination, police enquired him about his visit to the Sathya Hospital on the previous day and 60 accordingly, he informed about the same. He further states that he does not remember as to whether he stated the same during the time of postmortem examination or after the said examination. He does not know as to which police he informed about the same and who he is, so also the post he holds. It is suggested that he did not visit Sathya Hospital on 06.10.2008 or 6th and 7th mid night and there was no occasion for him to visit the said hospital and the said suggestion was denied.
74. P.W.4 is the Doctor, who was working at Sathya Hospital wherein, the injured was treated at the first instance. It is his evidence that, on the night of 06.10.2008, he was the Casualty Medical Officer. A person by name Vinod was brought to Sathya hospital by 1.30 a.m. on the early morning of 07.10.2008 by one person named Shankar Reddy. As soon as the injured was brought to the casualty, he noticed a bullet injury on the right side of his abdomen. The injury was found in Umbilical region towards the right side about 1-2 cms. from the Umbilicus. The injured was conscious and oriented and was responding to verbal stimuli. 61 He enquired with the injured as to how he sustained the injury and he requested him to save his life and told that a person by name Govardhan Murthy shot him with his pistol at L.G. Rose Heritage. On examining him, his vitals were stable. On examining the severity of the wound, he spoke to the attendants of the injured and explained them the higher risk of the complication. Hence, he suggested to take him to a higher hospital for further treatment. Soon after examining the wound and after hearing the say of the injured, he made a record in the M.L.C. Register maintained in Sathya hospital. The relevant entries in the M.L.C. Register are marked as Ex.P15 and his signatures are marked as Exs.P15(a) and P15(b). Further, he states that relevant portion of the say of the injured Vinod Kumar recorded by him at the time of examination is marked as Ex.P15(c).
75. It is his further evidence that on 08.10.2008, the Assistant Commissioner of Police, Sampigehalli Sub-Division came to the hospital and collected the copy of the M.L.C. register pertaining to the admission of Mr. Vinod Kumar from their hospital. Soon after the say of the injured being 62 recorded, he tried to inform the Jurisdictional Police over phone, but no one lifted the telephone. He made a mention to that effect in the M.L.C. Register and the said portion is marked as Ex.P15(d). He also says that patient's father name and complete address was not available and hence, he has mentioned in the M.L.C. Register that M.L.C. could not be done, as the complete information regarding the patient was not known.
76. This witness was subjected to cross-examination. In the cross-examination, it is elicited that he has not brought the M.L.C. Register to the Court. Further, he says that he was attending KIMS during day time. Sathya Hospital was the first hospital in which he joined as a Doctor. He used to work only during night shifts commencing from 8.00 p.m. to 8.00 a.m. He used to be the only doctor in casualty during night shifts. No other doctor used to be present during night shifts, except himself. Dr. Shantha Kumar was the owner of the said hospital. He does not know whether hospital building is owned by Dr. Shantha Kumar. Without referring the M.L.C. Register, he cannot say as to 63 whether there were any M.L.C. cases other than this case in the night shift. When the injured Vinod Kumar was brought, no Surgeon was available in the hospital and no Surgeon could be secured without loss of time. During his service as a Doctor, he has not seen any patient with bullet injuries other than this case. The moment, he saw the bullet injury on the abdomen of Viond; he felt that he was in need of immediate medical attention. He felt that the patient need immediate surgical treatment. On examining the injured, he felt that he has to be referred to a major hospital for immediate surgical treatment. We would make an entry in the M.L.C. Register, in case, if it is a Medico Legal Case and history is made known to by the patient. During his tenure at Sathya Hospital, he has referred some M.L.C. cases to higher hospital, only after making necessary entries in the M.L.C. Register. Even in other M.L.C. cases which were referred to by him to the major hospitals, he had made an entry of the history, as given by the patient. Neither Mr. Vinod Kumar, nor his attendants were known to him earlier to the admission. He was in the room abutting the 64 casualty ward. When he entered the casualty, the patient was there on the bed, there was bleeding from the injury. In order to avert further bleeding, he instructed the nursing staff to provide compression which they gave. The purpose of writing the Doctor's Note is to mention that the Doctor has seen the patient. Hand written contents of Exs.P15 and P16 are one and the same. M.L.C. Register was partly written before the patient was dispatched. Whatever found in page No.2 was written subsequently after the patient was dispatched. Original of Ex.P16-Doctor's Note was written only after the patient was dispatched.
77. It is elicited that he has mentioned in page No.2 of Ex.P15 that patient was shifted against medical advice. He has mentioned this because he wanted to provide highly fluids immediately and to arrange for an ambulance immediately. His inability to inform the police, inspite of attempting to inform over phone to the police is a part of the completion of M.L.C. register. He tried to inform the police after the patient was shifted from the hospital. It is suggested that he was in the casualty and that a car was 65 brought with the injured and was parked outside the hospital and that he referred them to a higher hospital soon after knowing the critical condition of the injured and the same was denied. It is suggested that Ex.P16 was prepared after 15 days and the same was denied. It is suggested that he had not been put in-charge of casualty ward and that he was only a trainee assisting the casualty ward doctor and the same was denied.
78. He admits that MLC Register, Doctor's Note were not being prepared in duplicate or triplicate. There is no rule insisting as to send copies of the original of Exs.P15 and P16 to the District Surgeon or Medical Department of the State. He admits that he did not tell the police that soon after recording the say of the injured, he tried to inform Banaswadi police over phone, but nobody in the police station lifted the phone. It is elicited that when he examined injured Vinod, he noticed an exit injury also, but it was not a through and through wound. He did not measure the depth of the wound. Both the entry and exit wound were found bleeding.
66
79. This witness is further examined and got marked Ex.P104 i.e., M.L.C. Register and the entry regarding injured Vinod is at page No.262 of the register. The relevant entry is marked as Ex.P104(a) and the signature is marked as Ex.P104(b). The Doctor's Note is marked as Ex.P105 and signature is marked as Ex.P105(a).
80. He was subjected to further cross-examination. It is elicited that, he does not know as to in whose hand writing the entry made in page No.260 of Ex.P104 is written. However, it is elicited that his entries are there in some of the pages. It is elicited that the last entry made at page 414 of Ex.P104 is in his hand writing made on 26.12.2008. The entry earlier to Ex.P104(a) is at page No.240 dated 27.09.2008 at 6.30 a.m. It is suggested that the entries made at page Nos.246 to 274 are rewritten and re-stitched and the same was denied. It is suggested that the entries made at earlier to page No.262 i.e. page Nos.258 to 261 were not there and those pages relate to different patients and not to the patients, whose names are mentioned therein 67 and the same was denied. He admits, he is not the author of the entries made in page Nos.258 to 261 and 263 and also unable to say as to whether the names mentioned in the said entries are different from the patients, who were actually admitted and treated.
81. P.W.5 is the eye witness according to the prosecution. In his evidence, he states that, on 06.10.2008 at about 10.30 p.m., he himself and Vincent Smith, who has been examined as P.W.6, went near the house of deceased Vinod and he was not there in the house. When they came to know that he was not there in the house, they went near the office of Shankar Reddy. They found the car of Vinod near the office of Shankar Reddy and collected the key of Innova car through P.W.6-Vincent Smith and on enquiry, came to know that Vinod is in Govardhan Murthy's L.G. Rose Heritage and attending party. In the party, he came to know that Govardhan Murthy, deceased Vinod and Shankar Reddy were there. Hence, both of them went to the said place in Innova car belonging to Vinod to L.G. Rose Heritage and reached at around 11.15-11.30 p.m. They entered the said 68 L.G. Rose Heritage through the small gate since, main gate was closed. The car was parked outside the L.G. Rose Heritage. They found Ivaar Babu and Venkatesh sitting inside the car. They told that they came to see Vinod and they replied that meeting is going on and in the said meeting, Shankar Reddy, Govardhan Murthy, Vinod and Praveen Kumar are there and asked them to wait till they come out. Hence, both of them were standing near the guest house. They waited for 15-20 minutes, but they did not come out and again went and enquired Ivaar Babu and he did not respond properly and told that they may come out from the meeting anytime and hence, again they went and stood in the very same place. In the meanwhile, they heard loud noise inside the club house at around 11.45 p.m. Within fraction of second, they heard three rounds firing in the air. Immediately, Ivaar Babu and Venkatesh came out from the car in which they were sitting and entered inside the club house and both were standing near the gate observing the same.
69
82. Ivaar Babu and Venkatesh brought Michael and Ramesh outside and told that not to make galatta. Hence, Ramesh and Michael left L.G. Rose Heritage. After both of them went out, Praveen Kumar came out from the club house and went towards the backside of the car. Immediately, Vinod and Govardhan Murthy came out from the club house and were standing outside talking to each other. Suddenly, accused-Govardhan Murthy shot Vinod on his stomach and immediately, Vinod took his right hand backwards and Govardhan Murthy again fired one more shot and the same did not touch Vinod but went somewhere else. Immediately, Vinod told that 'partner, partner Govardhan Murthy shot me' and immediately, Ivaar Babu and Venkatesh rushed to the spot and held Vinod who was about to fall down. Ivaar Babu reacted immediately 'maam, maam Govardhan Murthy shot Vinod come soon maam' referring Shankar Reddy. When Ivaar Babu called Shankar Reddy, he himself and Smith rushed towards Vinod. Shankar Reddy also came out from the club house and at that time, Vinod told him that 'Govardhan Murthy shot him, partner save me'. 70 At that time, accused No.1 was having pistol in his hand. When Shankar Reddy came out from the club house towards Vinod, at that time, Govardhan Murthy fell to his feet and asked him to pardon him. Shankar Reddy immediately reacted stating that he has shot his close friend and pushed him and immediately, took the injured in the car along with Ivaar Babu. Shankar Reddy drove the vehicle and Ivaar Babu sat in the right side of the car along with the injured and told Venkatesh and Srinivas to inform the same to the family of the Vinod.
83. It is also his evidence that he himself and Smith went in the car in which they came to L.G. Rose Heritage to the house of Vinod to inform the same and before reaching their house, his family members had left to the hospital on information and persons, who were outside the house told that the injured was taken to Manipal Hospital and both of them again left to Manipal Hospital and they reached at around 2.45-3.00 a.m. Both of them were there in the hospital for about half an hour to 45 minutes. Smith handed over the car key of Vinod to someone else and both of them 71 came to their residence in an auto rickshaw and police have recorded his statement.
84. He was subjected to cross-examination. In the cross-examination, he admits that the distance between his house and the house of Vinod is around half a kilometer. He was having acquaintance only with Vinod and not with his family members, since he did some compound work of Vinod's house. He was also having acquaintance with Shankar Reddy and so also with accused-Govardhan Murthy. He also admits that Govardhan Murthy is having office at Kammanahalli. It is elicited that he has studied up to 10th standard but, failed. He admits that he did not meet Smith on 05.10.2008 and also he does not remember whether he met Smith on 04.10.2008. But on 06.10.2008 in the night at 9.00 p.m., Smith was standing near Sri Sagar Hotel near the house of Vinod and he met him and both of them were talking to each other till 10.30 p.m. He was not having any intention to meet Vinod but, Vincent Smith was having reason to meet and hence, both of them went near the house of Vinod and Vinod was not there in the house. Vincent Smith 72 drove the car from the office of Shankar Reddy. After he saw Vincent Smith, both of them went near the house of Vinod by walk. They met the mother of Vinod but, he does not know whether any other family members were there in the house at that time. He says Vinod used to drive his car on his own and according to his knowledge, he was not having driver, but Vincent always used to be with him.
85. It is elicited that they left the office of Shankar Reddy at 10.45 p.m. and reached L.G. Rose Heritage at 11.30 p.m. It is elicited that they found two cars behind the car in which Venkatesh and Ivaar Babu were sitting, but he cannot tell the model of those cars. Within 5-10 minutes of Ramesh and Michael leaving the spot, Govardhan Murthy shot Vinod. The first three round of firing sound was heard from the club house. Ramesh and Michael left the club house in Scorpio vehicle and thereafter, Praveen Kumar, Govardhan Murthy and Vinod Kumar came out from the club house. He noticed only Praveen Kumar was proceeding on the back side of the car. He cannot tell in which vehicle Srinivas and Venkatesh went to the house of Vinod, after Shankar Reddy 73 gave instructions. It is elicited that both of them have left to the house of Vinod to inform family members of Vinod and to take the parents of the injured to the hospital. The incident has taken place at 12.30 a.m. in the mid night. They left within 5 minutes of the incident after Shanakar Reddy left the place. They did not ask Shankar Reddy to which hospital they are taking the injured. They reached the house of Vinod at around 1.30 a.m. and thereafter, they took 45 minutes to go to hospital.
86. It is elicited that from L.G. Rose Heritage to Sathya hospital, the distance is 12 kms and the distance between L.G. Rose Heritage and house of Vinod is 13 kms. The people who were standing outside the house of Vinod told that injured Vinod was taken to Manipal hospital. They took about 1 hour and 15 minutes to go to hospital from the house of Vinod and found Shankar Reddy and Ivaar Babu in the hospital. He did not inform about the incident to the father of Vinod, since he was crying. In the next day morning, he was sleeping in the house at 8.30 a.m. and came to know that Vinod passed away. But he does not 74 remember, who had informed him about the same over phone. He received a call at 9.00 a.m. from the office of Assistant Commissioner of Police to come and give statement, since he had witnessed the incident. He does not know at what time he went to the office of Assistant Commissioner of Police. Ramachandrappa, Assistant Commissioner of Police recorded his statement. He had seen Vincent at the time of cremation and he did not go to Manipal Hospital but, he went to Bowring hospital where the Post Mortem was conducted. Thereafter he went near the house of Vinod at 6.00 p.m and body was cremated in between 6.00 p.m. to 8.00 p.m. Next day, he met Vincent in the road of his house and both of them spoke to each other for some time. He told Vincent that Assistant Commissioner of Police has recorded his statement on 07.10.2008.
87. In the further cross-examination, it is elicited that he does not know whether Smith had called Vinod over phone or not but, both of them did not try to contact Vinod when they went near L.G. Rose Heritage. He admits both Vinod and himself belong to same caste but, he is not 75 relative of Vinod. It is elicited that Vinod's father name is Narayanappa. It is suggested that his mother is the sister of said Narayanappa and the same was denied. It is suggested that, he is falsely deposing that Praveen Kumar went towards the guest house behind the car and both Vinod and Govardhan Murthy came out from the club house and were talking to each other outside the gate and the said suggestion was denied. It is suggested that, no such incident has taken place as he deposed and the same was denied. He says both Vinod and Govardhan Murthy came out through the small gate and were standing near the main gate. Both Ivaar Babu and Venkatesh went inside and came out from the club house through the small gate and so also Praveen Kumar came out through the said small gate. The main gate was closed when he was there near the club house. It is elicited that he might have told the police that he was having acquaintance with Govardhan Murthy. It is suggested that the distance between his house and the house of Vinod is around 3-4 kms. and the same was denied. 76
88. It is elicited that he does not remember whether he had informed the Police that he has done the compound work of Vinod. He also does not remember whether he had disclosed the Police that he came to know accused No.5 through accused No.1. It is elicited that he does not remember, before he went near the house of Vinod along with Smith, whether Vinod had went to Gudibande or not and does not remember whether he made the statement to that effect before the Police in terms of Ex.D.3. He does not remember whether he had informed the police that both of them went in the Innova Car of Vinod to L.G. Rose Heritage taking the key of the car from the office of Shankar Reddy. He does not remember whether he had informed the police that both of them went inside the club house through the small gate since, the main gate was closed. The galatta has taken place at around 12 o' clock and loud noise was heard at that time. He also does not remember whether he made the statement before the Police regarding three round air firing in terms of Ex.D4. He does not remember whether he had informed the police that they went in the car which was 77 parked outside L.G. Rose Heritage to the house of Vinod. He also does not know whether he had informed the Police that they came back in an auto rickshaw to their respective houses.
89. It is elicited in the cross-examination that he does not know whether Vincent Smith had informed him that the police had called him at the time of cremation. He also did not ask Shankar Reddy whether he had given the complaint or whether he has to give the complaint. He also did not make any efforts to contact the ACP when he was in Bowring Hospital, since he had already visited the ACP office before coming to the hospital. It is elicited that the name of his wife is Manjula and the name of elder sister of his wife is Alamelu.
90. P.W.6 is another eye-witness according to the prosecution. In his evidence, he says that he was working as driver of the deceased and also doing real estate business. It is his evidence that, on 6.10.2008 at about 10.30 p.m., himself and P.W.5 went to the house of Vinod and at that 78 time, his mother told that her son had not come to the house. Thereafter, both of them went to the office of Shankar Reddy and came to know that both Shankar Reddy and Vinod have went to L.G. Rose Heritage Layout to attend the meeting. He had taken the key of Innova car belonging to Vinod and both of them went to L.G. Rose Heritage in the said car and reached at 11.30 p.m. Both parked the said Innova car in front of the Layout front gate and entered the Club House through the small gate. Three cars were parked near the Guest house. Out of three cars, one Volkswagen car was also parked. In that car, Ivaar Babu and Venkatesh were sitting inside the car. Both of them told that they had come to meet Vinod and at that time in reply they told that they were in a meeting and they may come at any point of time and asked them to wait. Hence, both of them were standing near the Guest House gate. But they did not come out for a period of 15 minutes. They again went and asked them and Ivaar Babu told to wait stating that they are coming and did not respond properly. Hence, both went and stood near the same place. They heard loud voice from the Club House and 79 within two or three minutes of the noise, they heard three round firing in the air. Immediately, Ivaar Babu and Venkatesh rushed inside the Club House and thereafter they came out with Michael and Ramesh and both of them were telling them not to make galata in the said place and sent them to their residence. Thereafter, both Ivaar Babu and Venkatesh sat inside the car and in the mean time, Praveen Kumar came out from the Club House and went towards the Guest House behind the Brado car and both of them were standing near the Guest House. The deceased Vinod and accused No.1 also came out from the Guest house through the small gate and both were talking to each other in front of the gate and Vinod wished both by raising his hand and they also responded. When both of them were talking, the accused Govardhan Murthy shot Vinod on the right side of his stomach and Vinod acrossed his left hand and at the same time, another shot was made and immediately Vinod screamed 'partner, partner, Govardhan Murthy shot me'. Immediately, Ivaar Babu and Venkatesh, who were sitting inside the car rushed to the spot and held Vinod. Ivaar Babu 80 also screamed at the spot 'maam, maam, Govardhan Murthy shot Vinod'. Immediately, he himself and P.W.5 Venugopal also rushed to the spot. When Ivaar Babu screamed, Shankar Reddy also came out from the Club House and at that time Vinod reacted 'partner, partner, Govardhan Murthy shot me, save me. Immediately, Govardhan Murthy fell on the feet of Shankar Reddy and asked him to pardon telling that he committed mistake. Immediately, Shankar Reddy scolded him and pulled him telling that he has taken life of his good friend and took the injured Vinod in his car along with Ivaar Babu. Vinod was having his hand on the right side of his stomach. Shankar Reddy informed Srinivas and Venkatesh, who were present at the spot to inform the family members of Vinod and took the injured to the hospital. He himself and P.W.5 also went to the house of Vinod and reached the house at 1.30 - 1.45 a.m. When they went to the house of Vinod, they came to know that the family members had already left to Manipal Hospital and hence they also went to the hospital and reached at 2.45 - 3.00 a.m. Both of them were there in the hospital for about 45 minutes and thereafter car key was 81 handed over to the uncle of Vinod and they came to their respective houses in an autorickshaw and reached their house at around 4.30-5.00 a.m.
91. It is his evidence that in the morning at around 8.00-8.30 a.m., along with his friends he went to L.G. Rose Heritage Layout and police were already there at the spot along with Shankar Reddy. Shankar Reddy told that he himself and P.W.5 Venugopal, were also there at the time of incident. Shankar Reddy led all of them to the incident spot and the police have conducted the spot mahazar. In front of the Club House, they found two used bullets and also blood stains at the spot. All of them went inside the Club House and inspected the kitchen, dining hall and other spots and found empty whiskey bottles and thereafter went near the Guest House. In one room of Club House, they found three live bullets in the cupboard and eight used bullets, which were in the pouch and police have seized the same and drawn the mahazar in terms of Ex.P17. He identifies his signature as Ex.P17(a), (h) and (j). He identifies M.Os.6 to
10. Drawing of mahazar was completed at around 10.30 a.m. 82 He had reached the ACP office at 11.15 a.m. The police were recording the statement of Shankar Reddy and hence he waited for some time and thereafter his statement was recorded. He left the ACP office at around 1.00 p.m. Again on 15.10.2008, he visited the ACP office and on that day, sealed the seized articles separately and he identifies M.Os. and also his signatures. He was subjected to cross-examination.
92. In the cross-examination, it is elicited that he was like permanent driver of Vinod and he was regularly driving the car of Vinod and whenever he was not there, Vinod used to drive the car. He admits Venugopal is his childhood friend since his house and Venugopal's house are neighbouring houses. It is elicited that Rajeev is now using the phone of deceased Vinod. He admits that he did not make any efforts to contact Vinod in the night when he had come to know that he was not in the house. It is further elicited that he was having reason to meet Vinod, but Venugopal was not having any reason. It is elicited that as it was raining on that day, it took time to reach Vinod's house and thereafter to hospital and he did not inform his family 83 members that he is coming late. It is elicited that he did not make any efforts to make call to the house of Vinod and witness volunteers that he was not having the phone number of house of Vinod and his brothers. However, he says that he worked with Vinod for 4-5 years.
93. It is elicited that he did not notice whether Shankar Reddy and Ivaar Babu were there in the hospital when he went to Manipal Hospital, but he says that there were large number of people. It is also elicited that he did not find the parents of Vinod in the hospital and also did not notice Srinivas and Venkatesh. He admits that he did not make any efforts to see the parents of Vinod and to inform the same to them, since they had already come to know about the incident and had went to the hospital. The uncle of Vinod was outside the hospital. His friends came and enquired in the early morning and they told to go to L.G. Rose Heritage layout and hence they had been to the said place. His friend came to his house at around 7.30 a.m. Shankar Reddy has showed the place of incident to the police. He admits that he did not mention to the police while 84 drawing the mahazar that he was there at the spot when the incident had taken place and even after the mahazar also, he did not inform the same. It is elicited that they found blood stains at a distance of 10 ft. from Club House gate and he cannot tell the distance of each of the used bullets. He says that in between two bullets, the gap was 5 ft. Both the bullets were lying in different place. He cannot tell the distance of each bullet. He cannot tell the timings of seizure of those bullets and also cannot tell prior to seizure of both the bullets, what were the materials seized by the police. It is also elicited that the police, who drew the mahazar was there in the ACP office, when he went there and he was also there till his statement was recorded and the Police Inspector name is Balakrishna. His statement was recorded by ACP Ramachandra.
94. It is elicited that both of them were standing in front of L.G. Rose Heritage Layout Guest House. The place in which the galata had taken place in the Club House and also place of firing in the air was not visible. It is elicited that he did not ask Ivaar Babu or Venkatesh with whom galata had 85 taken place inside the Club House and also he cannot tell how many street lights were there in front of the gate of layout. It is elicited that when he went to L.G. Rose Heritage Layout, already police were there at the spot. It is suggested that he is falsely deposing that in his presence Govardhan Murthy shot Vinod, and the said suggestion was denied. It is suggested that he did not visit L.G. Rose Heritage either on 6th or 7th, and the said suggestion was denied. It is elicited that he cannot tell whether he had informed the police that he was working as driver with Vinod. It is elicited that he did not mention to police that he himself and P.W.5 went to L.G. Rose Heritage in a car. But he says that there is a reference about Vinod having gone to layout with Shankar Reddy for a party in his statement. It is elicited that he cannot tell whether he made the statement before the police in terms of Ex.D6 that galata was taken place at 12.00 a.m. in the Club House.
95. It is also elicited that he does not remember whether he had informed police that they were in the hospital for a period of 45 minutes and came to their 86 respective houses in an autorickshaw and so also, he does not remember whether he had made the statement before the police that the car key was given to the uncle of Vinod, namely Vijaykumar. But he claims that he had informed the police that he went to L.G. Rose Heritage layout along with his friend, but he does not remember whether Shankar Reddy had told the police that he himself and Venugopal were there at the time of incident. He cannot tell whether he had made the statement that he had been to ACP office at 11.15 a.m. and he had waited for some time since the statement of Shankar Reddy was being recorded and thereafter his statement was recorded. He admits that on 7th morning he did not enquire with Venugopal what they have to do with regard to Vinod.
96. P.W.7 is the doctor, who conducted the post mortem in respect of the dead body of Vinod. In his evidence he says that in terms of the request made to him, he conducted the post mortem examination between 2.55 p.m. to 4.20 p.m. in the mortuary of Bowring hospital. In his evidence, he also says that immediately after the post 87 mortem, the clothes were handed over to police along with samples. He identifies Ex.P19(a) and also identifies shirt M.O.12 and other M.Os.13, 14 and 15. It is also his evidence that he noticed external injuries on the body. An entry wound was present over the right side front of abdomen, 3 cms. below the level of umbilicus and 2.5 cms. to right of midline, almost circular, margins inverted measuring 1.5 cm. x 1.3 cm., surrounding by a darkened area of 0.3 cm. width. Wound filled with blood. Exit wound present over the right side back of abdomen, situated 29 cms. below the lower border of right scapula and 4.5 cms. to right of midline and 3 cms. above Iliac crest, measuring 1.9 cm. x 2 cms., margins everted, wound filled with blood. He also noticed stapled, sutured, leparotomy wound over the front of middle of abdomen. It is also his evidence that he had opined that the death was due to shock and hemorrhage as a result of fire arm injury sustained and he issued the post mortem report in terms of Ex.P20. He was subjected to cross-examination.
97. In the cross-examination, it is elicited that the patient had been subjected to surgery. When the dead body 88 was handed over to him by the police, the clothes M.Os.12 to 15 were given to him separately. It is elicited that he had not mentioned the dimension of the tear of the shirt. When the shirt was produced to him, it was not stained with blood. If it would have been stained with blood, he would have mentioned the same in his post mortem report. According to him, the shirt in question was not stained with blood at any part. He counted the buttons of the shirt leaving the collar button. The tear was on the right side at the level of fourth button downwards from the neck. It is suggested that the shirt now marked as M.O.12 is not the shirt handed over by the police to him with the dead body, and the same was denied. He admits that injury No.3 was a surgical wound. The corresponding internal injuries vis-à-vis external injury Nos.4 to 6 could be due to that part of the body coming into contact with hard, rough object or surface. Injury No.7 could also be due to external violence in a scuffle or violence due to assault. It is suggested that loss of 15% of blood volume will result in moderate shock, and the same was denied. But he admits that loss of 30% of blood could result in severe 89 shock. It is elicited that there is every possibility of blood spurting if aorta is damaged. If the aorta is directly damaged or injured, there will be bleeding both externally and internally. If a hole is caused to the aorta, most of the blood will gush out within few minutes.
98. P.W.8, Sri N. G. Prabhakar is the Assistant Director, FSL, Bangalore. In his evidence, he says that on 15.10.2008 he has received the requisition in respect of Crime No.38/2008 of Bagalur Police Station produced by Shankar Narayan, PSI. The requisition contains the forwarding letter from the ACP, with the seal of the Investigating Officer as well as Medical Officer. One more letter was received on 23.10.2008 from the Investigating Officer. The seals were intact and tallied with the sample seal sent by the Investigating Officer and the Medical Officer. He opened the said articles and noticed that article No.1 contained 3 revolver cartridges of 32 caliber with a leather pouch; article No.2 contained 5 revolver cartridge cases of 32 caliber; article No.3 contained 3 spent pistol cartridges of 7.65 mm caliber; article No.4 contained 2 spent pistol 90 cartridges of 7.65 mm caliber; article No.9 contained one 7.65 mm browning pistol and a magazine containing 3 pistol cartridges; article No.10 contained one 9 mm caliber signal pistol of Carl Walter; article No.12 contained 41 7.65 mm caliber pistol cartridges; article No.13 contained one cut opened blood stained blue and white striped full arm shirt; article No.14 contained one jeans pant; article No.21 contained one full arm shirt; article No.22 contained one pant. He examined the above mentioned articles. He has given the following opinion:
1) The pistol in Article No. 9 bears signs of
discharge.
2) The Pistol in Article No. 9 was in working
condition at the time of examination.
3) The safety mechanism of the Pistol in
Article No. 9 was in working condition at
the time of examination.
4) The cartridge cases in Article Nos. 3 and 4
have been fired through the Pistol in Article No.9.
5) The cartridges in the magazine in Article No. 9 and the cartridges in Article No. 12 91 were live and the same could be fired through the Pistol in Article No.9.
6) The cartridge cases marked as 2(a) to 2(d) in Article No.2 have been fired through a single 32 caliber Revolver.
7) The cartridge case marked as 2(e) in Article No. 2 is unfit for examination, since the percussion cap on it is perforated.
8) The hole marked as 13H on the shirt in Article No. 13 has been caused due to the passage of a copper jacketed bullet which could have been fired through the Pistol in Article No.9.
9) The approximate range of firing with respect to bullet hole marked as 13H on the shirt in Article No.13 is in between 0.5"
to 1" from the muzzle end of the Pistol.
10) There are no typical gun shot holes and gun shot residues on the garments in Article Nos.14, 21 and 22.
11) It is not possible to state as to whether the cartridges in Article No.1 were live or not since 32 caliber Revolver is not available for test firing purpose.
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12) The weapon in Article No. 10 is a signal
Pistol which cannot discharge any
projectile.
13) It is not possible to state as to whether the Pistol in Article No.10 is in working condition or not since 9mm caliber blank ammunition is not available for test firing purpose.
99. He also identifies his signature on his report as Ex.P22. It is also his evidence that after the examination, all the articles were packed and sealed with their laboratory seal. In the report he has given the details. It is his specific evidence that the pistol in article No.9 bears signs of discharge. But no opinion is possible regarding actual date and time of firing. The said weapon is a firearm and the said pistol is a legally manufactured firearm. The pistol in article No.10 also bears signs of discharge, but no opinion is possible regarding actual date and time of firing. It is his evidence that article No.13 contained one cut opened blood stained full arm shirt with light blue and white stripes. A hole was noticed on right side front portion at the level and in between sixth and seventh button from the top of the shirt. 93 The hole is measuring about 0.3" vertically and 0.55"
horizontally.
100. It is his further evidence that presence of copper was detected around the edges of the hole and not on the control area of the shirt. Hence, the said hole has caused due to the passage of a copper jacketed bullet. The said pistol was in working condition at the time of examination and the cartridges in the magazine were live and the same could be fired through the pistol in article No.9. He also opined that the approximate range of firing with reference to bullet hole marked as 13H on the shirt in article No.13 is in between 0.5" to 1" from the muzzle end of the pistol. The magazine which was found in article No.9 exactly fit into the magazine port of the pistol in article No.9. Hence, the magazine in article No.9 is a component of pistol in article No.9. It is also his evidence that pistol in article No.9 can cause injury or death to the human being within the effective range of 50 meters. The individual characteristic marked in firing pin and breech face on the cartridge cases are marked as 3(a) to 3(c) in article Nos.3, 4(a) and 4(b) in article No.4 are tallying 94 with that of the test cartridges T-1 to T-5, which were test fired through the pistol in article No.9. Hence, the cartridge cases marked as 3(a) to 3(c) in article Nos.3, 4(a) and 4(b) in article No.4 have been fired through the pistol in article No.9.
101. He was subjected to cross-examination. In the cross-examination, it is elicited that Form No.152 bears his initial with date 15.10.2008, which is marked as Ex.D10. He was confronted with one more Form No.152 and the same is marked as Ex.D11. It bears his initial with date 16.10.2008. Ex.D12 is the invoice relating to the articles. It also bears his initial dated 16.10.2008. It is mentioned in Ex.D11 about the description of article No.4 i.e., one sealed packet containing two empty cartridges said to be used for the offence, bottom having red colour with numbers 'S' and 'B-7.65 Pr'. He admits that in Ex.P17 there is reference about finding of two spent cartridges at the scene of occurrence. It is elicited that as per the written information given by the police as well as the mahazar marked as per Ex.P17, article No.4 two spent cartridges were seized from the scene of occurrence. He gave 95 the opinion that two spent cartridges in article No.4 could be fired from the pistol in article No.9. Article No.9 pistol is 7.65 mm caliber. All five cartridges in article Nos.3 and 4 had been fired through pistol in article No.9.
102. The description of article No.13-shirt mentioned in Ex.D11-invoice is the same as the description mentioned in Ex.P20, the postmortem report in respect of the shirt. The hole noticed by him in article No.13 is located in between 6th and 7th button from top of the shirt. He has taken into account the collar button also. There are in all seven buttons in the shirt inclusive of collar button. The hole is seen in between 6th and 7th button from the top inclusive of collar button in M.O.12 shirt. He did not notice discrepancies in regard to the location of the wound, as mentioned in the invoice and the postmortem report with reference to his findings. There were no blood stains at all around the hole in the shirt. He did notice some blood stains on other parts of the shirt examined by him. It is elicited that 38 caliber bullet is much smaller than the bullets itself. It is also elicited that he has found that the wound had been surgically interfered 96 with by the doctor and therefore there is scope for difference in dimension.
103. P.W.9 is the Junior Engineer of PWD, who conducted the spot inspection and prepared the sketch in terms of Ex.P32. He identifies his signature Ex.P32(a). In the cross-examination, he admits that no written instructions were given by his superiors to go to the spot on 16th and to prepare the sketch. It is also elicited that on 16.10.2008 itself he has prepared the sketch marked as Ex.P32 with the help of his laptop.
104. P.W.10 is the Supervisor in Shanthi Tourist Lodge during 2008. In his evidence, a question was asked whether any of these six accused stayed in hotel Shanthi Tourist Lodge and if so, on what date and to point out the accused. The said question was objected. He says that accused Nos.1 and 5 had stayed on 8.10.2008 in Shanthi Tourist Lodge, when he was working as Supervisor. Accused No.5 had introduced himself as Naveen from Bengaluru and he had entered his name in the admission register maintained in the 97 lodge. Room No.35 had been allotted to these two persons and he identifies the accused persons who were before the Court. It is his evidence that they had paid Rs.500/- as advance. Room rent was Rs.325/- per day. Both of them came to the lodge at 4.30 a.m. on 8.10.2008 and left the room on the same day itself by 1.45 p.m. At the time of checking out, his friend Sridhar, Supervisor was on duty.
105. That on 14.10.2008, Karnataka Police had brought these two accused with them to the lodge at about 8.00 a.m. and other two persons were there along with the police. The said Sridhar was also there. Accused Nos.1 and 5 have told the police that they stayed in the Shanthi Tourist Lodge. The police had asked him to produce the admission register. He showed the ledger pertaining to 8.10.2008. The police asked him to give a copy of the relevant page and he gave the copy of the relevant page by attesting the same. The same is marked with objection as Ex.P33. He identifies his signature as Ex.P.33(a).
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106. It is his evidence that relevant entry bearing name of Naveen is found at Sl.No.73, which is marked as Ex.P.33(b). It is also his evidence that accused No.5 Naveen himself wrote the address and signed the admission register, which portion is marked as Ex.P.33(c). The police have inspected Room No.35 and wrote the mahazar in his presence. He identifies mahazar as Ex.P.34 and his signature as Ex.P.34(a).
107. He was subjected to cross-examination. In the cross-examination, it is elicited that even now, Sridhar is working as Supervisor in Shanthi Tourist Lodge. Only Sridhar is competent to tell about the loss caused to original admission register, as it was intact during the period of P.W.10. On 8.10.2008, he had worked almost 24 hours since Sridhar did not come to relieve him and he continued that day i.e., from 9.00 a.m. on 7.10.2008 till 9.00 a.m. on 8.10.2008. It is elicited that the police had specifically instructed them to preserve the original admission register safely. It is suggested that the Karnataka Police had not brought accused No.1 to Shanthi Tourist Lodge on 99 14.10.2008, and the same was denied. It is suggested that the jurisdictional police Trichur instructed him to depose in the above manner, and the same was denied. It is further suggested that they concocted Ex.P.33 at the instance of police, and the same was denied. It is elicited that the entries were made in Sl.No.72 earlier and the entries in Sl.No.73 were made subsequently. In respect of number of persons relating to Sl.No.73, there is no overwriting. The police took the xerox copy of the relevant entry found in the admission register at the fag end of writing the mahazar. The police asked him whether the accused had stayed in their lodge, as the accused had not told the police that they had stayed in their lodge.
108. P.W.11 Sridhar, who is the Manager of Shanthi Tourist Hotel, in his evidence he says that accused Nos.1 and 5 had come to the lodge on 8.10.2008. He had seen both of them at the time of checking out the room at about 1.45 p.m. on 8.10.2008. He paid the balance amount of Rs.175/- at the time of checking out the room by making an entry in the register by obtaining the signature. He identifies the 100 signature of the occupants subscribed by him at the time of checking out and identifies his signature as Ex.P33(d) and also identifies accused No.5 before the Court. It is also his evidence that on 14.10.2008, the Karnataka police had come to the lodge along with accused Nos.1 and 5. Accused Nos.1 and 5 told the police that they had stayed in the said lodge. He also told the police that they had stayed in room No.35. The police also inspected the room and drawn the mahazar in terms of Ex.P.34 and he identifies his signature as Ex.P.34(b) and gave Xerox copy of the relevant page of the register to the police at the time of mahazar.
109. He was subjected to cross-examination. In the cross-examination, it is elicited that on 8.10.2008, he worked from 9.00 a.m. till 9.00 p.m. On night of 7.10.2008, he did not work. Pratap was on duty from morning of 7.10.2008 till morning of 8.10.2008. The check-in entries relating to Sl.Nos.72 and 73 are in handwriting of Pratap, so also Sl.Nos.74 to 80. The check-out entries relating to Sl.No.74 is in his handwriting, so also Sl.No.75. On 14.10.2008 his duty was to end by 9.00 a.m. and Pratap was to resume at 9.00 101 a.m. The police were there in the lodge from 8.00 a.m. to 12.00 noon on 14.10.2008. His signature was taken to the mahazar at about 12.00 noon on 14.10.2008. The writing of the mahazar was started at 9.00 a.m. The police inspected the original register maintained in their lodge and police also took the copy of the relevant page. After verifying the register, the police started writing the mahazar. After completion of writing of the mahazar, Xerox copy was taken. Normally receipt will be given whenever advance is collected. The advance bill had not been given to the occupants of room No.35 as entered in Sl.No.73. Normally they issue advance bill if the customer insists. There is no entry in the admission register about giving the advance receipt. He does not remember whether any regular bill had been given in respect of entry Nos.72 to 80. The police did not inspect either the advance bill book or regular bill book. Since the police did not ask them to produce those two books, they did not produce.
110. P.W.12 is Jayapal, Supervisor of Hotel SAMS. It is his evidence that he had seen accused Nos.1 and 5 on 102 7.10.2008 at about 8.30 a.m. in their hotel at Katpadi. Along with these two accused, two more persons had come with them. They came and asked him whether any room is available for stay. They did not ask for A.C. room saying that they would stay for short period and they intended to go to temple. He gave two rooms bearing Nos.305 and 306. They gave an amount of Rs.1,000/- as advance rent. He had brought the reservation chart register which depicts the admission of the occupants. Out of four, one wrote the details in the register by writing the name as Pramod Raj. Except writing of room number by him, remaining writing is in the handwriting of one of the four persons who came to the hotel. He gave receipt for advance amount of Rs.1,000/-. Arrival time is mentioned in the carbon copy. The register is marked as Ex.P35. Relevant entry in page 354 is marked as Ex.P35(a). Room Nos.305 and 306 is mentioned by him in Ex.P.35(a). The advance receipt book is marked as Ex.P.36. Carbon copy is marked as Ex.P.36(a) and signature is also marked. Xerox copy is marked as Ex.P.35(a), which has been retained by the Court, as the original Ex.P35 and 36 are 103 returned to P.W.12 at his request. It is his evidence that they checked out from the hotel at 11.20 a.m. on 7.10.2008 itself and the same is mentioned in the register. Out of the four persons, who had stayed in their hotel, two persons had been brought by four Karnataka Police to their hotel at 7.00 a.m. on 15.10.2008. He identifies accused Nos.1 and 5 before the Court. It is also his evidence that in turn police asked him whether accused Nos.1 and 5 had stayed in their hotel on 7.10.2008 and on seeing them he answered in the affirmative. He showed the police the reservation chart register and the advance bill book. On seeing the address written on the reservation chart, the police told him that they have given wrong name while taking the room. The police also inspected the room in which accused Nos.1 and 5 had stayed and drawn the mahazar in terms of Ex.P37. He identifies his signature as Ex.P37(a).
111. He was subjected cross-examination. It is elicited that he was looking after the entire hotel during the year 2008. The Guest Register and Reservation Register are one and the same. It is elicited that normally they would not take 104 advance from the occupants who come and stay often and the Government officers. Receipt No.144 bears his signature. The handwriting found in the said receipt belongs to him. He admits that there is difference in his signature found in Ex.P35(c) and 36(c) vis-à-vis the signature found in receipt No.144 in advance receipt book. The advance receipt book is marked as Ex.D.23. Signature in receipt No.145 is that of their room man. The same is marked as Ex.D24. The receipts are marked as Ex.D25 to 28. He was there in the hotel on 15th when the police came and till they left the hotel. The exhibits are confronted to the witness and marked as 'D' series. It is elicited that if the persons who had occupied the rooms in their hotel on 7.10.2008 are produced before him, he can identify them. He cannot say about the persons who have made entries in the advance receipt book other than him and room man. It is suggested that he is falsely deposing stating that accused Nos.1 and 5 came to their hotel along with other two persons and stayed in the room on 7.10.2008, and the same was denied.
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112. It is elicited that the police did not record his statement on 15.10.2008 prior to showing accused Nos.1 and 5 to him. It is elicited that he has not told the police that all the four persons came together and asked about the availability of the room. In the re-examination, it is elicited that Ex.P.36 is in his handwriting. Substantial entries prior to 7.10.2008 and subsequent to 7.10.2008 are also in his handwriting. Since the room man does not know English, in his absence, probably the occupants themselves have made the entries in the book.
113. P.W.13 is the brother of the deceased. In his evidence, he states that his brother Vinod Kumar was doing real estate business and was also acting in cinemas. He was doing real estate business independently and also with Shankar Reddy as partner. He knew the accused-Govardhan Murthy. He was also doing real estate business and also a film producer. He was having sites at L.G. Rose Heritage, Chikkaballapura and Doddaballapura. His brother Vinod Kumar and Govardhan Murthy were not in cordial terms prior to his death. There was a marriage talks with the daughter 106 of Dr. Shantha Kumar with accused No.1, but the marriage did not take place, since the family of Dr. Shantha Kumar did not like to perform the marriage. Thereafter, there was a marriage negotiation to perform the marriage of his daughter Sambrama with his brother Vinod and hence, the relationship between his brother and accused No.1 got deteriorated. It is also his evidence that there was a competition between them in real estate business and his brother was telling the same to him. He also came to know the said fact through Shankar Reddy and his friends.
114. It is his further evidence that on 07.10.2008 at around 1.30 p.m., he received a call to his mobile stating that accused No.1 shot his brother Vinod on his stomach and he was taken to Manipal Hospital. Hence, immediately, he and his family members went to the said hospital in their car. He was in the surgery room and he enquired with Shankar Reddy, who told that Govardhan Murthy shot him at around 12.30 in the mid night. Shankar Reddy also revealed that both himself and his brother Vinod went to Chikkaballapura Sub-Registrar Office and while returning, he received a call 107 from Govardhan Murthy requesting him to come along with Vinod to L.G. Rose Heritage saying that there is a meeting and hence, both of them went to L.G. Rose Heritage Club at around 9.30 p.m. By that time, one Praveen Kumar was also present along with Govardhan Murthy and attended the meeting. At around 12.15 in the mid night, he heard the firing sound and immediately, he rushed to the said spot along with Govardhan Murthy and Praveen where Deena and Ramesh were quarrelling to each other and both of them were sent out. At the same time, Govardhan Murthy and Vinod came out from the club house and they were standing outside the gate and suddenly, Ivaar Babu screamed at the spot, "Maam, Govardhan Murthy shot Vinu". Immediately, he also rushed to the spot and held Vinod and at that time, Vinod told him "partner, partner, Govardhan Murthy shot me and save me". Shankar Reddy also told that, at that time, Govardhan Murthy fell to his feet and asked him to pardon him, for which he scolded him that, he shot his close friend and immediately, he himself and Ivaar Babu shifted the injured to Sathya Hospital. The said Shankar Reddy also told 108 that, Doctor at Sathya Hospital informed that it is not possible to treat him and to take him to Manipal Hospital and thereafter, they took him to Manipal Hospital.
115. It is also his evidence that on 07.10.2008 at around 8.30 a.m., the Doctor declared that his brother Vinod passed away and at that time, he was in the hospital. The police also visited the hospital and his statement was recorded. It is his further evidence that on 08.10.2008 also, the police recorded his further statement. He can identify the clothes which his brother Vinod was wearing on 06.10.2008. He identifies M.Os.12 to 15, shirt, pant, shoes and socks respectively. He also states that he can identify the belt which his brother was wearing.
116. He was subjected to cross-examination. In the cross-examination, it is elicited that Dr. Shantha Kumar is the son of Thayamma and also admits that he is also his relative. It is suggested that on 05.07.2004, a partition has taken place between the sisters of his father and his grand- mother and he denies that he is not aware of the same. A 109 document was confronted that it bears his signature, but he denies the same. It is suggested that he is hiding P.W.5 is the son of sister of his father and he is falsely deposing and the same was denied. He admits that four months prior to the death of his brother, engagement of his brother took place with Sambrama in the house of Dr. Shantha Kumar and all his family members also went to their house. He admits that marriage of his brother has taken place with Sambrama on 15.06.2009 at Lakshmi Kalyana Mantapa, Hennur Ring Road.
117. It is suggested that marriage talks were not held between Govardhan Murthy and Sabrama and the said suggestion was denied. It is elicited that prior to engagement of his brother Vinod with Sambrama, his brother's engagement had taken place with some other bride at Bell Hotel near Bangalore Central Railway Station. He admits that Sathya Hospital belongs to his father-in-law, Dr. Shantha Kumar. Photos were confronted to elicit that P.W.5 is his relative and the same was denied. However, he admits that in Ex.D53, P.W.6-Vincent Smith is available. He also 110 admits that P.W.5, Venugopal was standing on his behind and the same is depicted in Ex.D54. It is elicited that he himself, his brother Arun, his uncle's son Keshav and his parents together went to Manipal Hospital and reached Manipal Hospital within 20-25 minutes. It is suggested that his brother was also doing real estate business wherein, Govardhan Murthy was doing real estate business and hence, he is falsely deposing that there was a rivalry between them and the said suggestion was denied.
118. It is further suggested that due to cancellation of marriage between Sambrama and accused No.1 and thereafter, engagement of Sambrama with his brother Vinod, there was enmity between them and he is falsely deposing and the said suggestion was denied. It is suggested that Vinod was not wearing M.O.12-Shirt on that date and the same was denied. It is suggested that while making statement before the police, he did not make any statement that there was a rivalry between both of them and the said suggestion was denied. Ex.D58 was confronted to him that he made the statement before the police that friend of his 111 brother called and told that galata has taken place between his brother and somebody and he denied that he did not make such statement. It is suggested that he did not make the statement before the police that Shankar Reddy told him that Govardhan Murthy shot his brother and the said suggestion was denied. He also denies that he did not make statement before the police in terms of Ex.D59.
119. It is also suggested that he did not make statement before the police that Shankar Reddy told him that Ivaar Babu called Shankar Reddy and the said suggestion was denied. It is suggested that he did not make statement before the police that before Vinod could fall on the ground, Shankar Reddy himself went and held him and the said suggestion was denied. It is also suggested that he did not make statement before the police that Shankar Reddy told, Vinod screamed saying that "partner, partner, Govardhan Murthy shot me and save me" and the said suggestion was denied. It is elicited that he does not remember whether he had made statement before the police in terms of Ex.D60 or not.
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120. P.W.14 - ARTO, in his evidence says that Investigating Officers sought information with regard to ownership of Scorpio vehicle bearing registration No.KA 03 MK 8030 in terms of Ex.P38. He gave the 'B' extract in terms of Ex.P39, which was standing in the name of Naveen Kumar S/o Raju, resident of Ramamurthy Nagar. The said vehicle was registered on 14.08.2008.
121. He was subjected to cross-examination. In the cross-examination, he admits that he did not fill up the 'B' extract and the same is computer generated 'B' extract which was fed to the computer by Virupaksha. It is suggested that he is not having any acquaintance with the details mentioned in Ex.P39 and the same was denied.
122. P.W.15 is another ARTO, who gave information in respect of Innova Car bearing registration No. KA 51 M 8030 in terms of Ex.P41. He identifies his signature as Ex.P41(a). The original owner is Govardhana Murthy and subsequently, the same was transferred in favour of Alexander. 113
123. He was subjected to cross-examination. In the cross-examination, he admits that, on 23.6.2006, the vehicle was registered when it was purchased and he cannot tell when the vehicle was transferred in favour of Alexander. He admits that the details in Ex.P41 is not in his handwriting but, claims that the same is in the handwriting of his office staff, Jayalakshmi. He admits, there is no reference with regard to the fact that he was the earlier owner in Ex.P41 and the same is not the original registered document.
124. P.W.16 is the mahazar witness. In his evidence, he says that he was requested to be a part of the spot mahazar witness and accordingly, he participated in drawing the mahazar and also the recovery of seizure of cartridge at the instance of accused No.1. He has signed the mahazar in terms of Ex.P17(b) and he identifies his signature as Ex.P17(b). It is also his evidence that on 15.10.2018, he was called to the Police Station and thereafter he was taken to the club house, where mahazar was drawn in terms of Ex.P18. He identifies his signature as Ex.P18(b) and also identifies M.O.11 (13 bottles).
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125. In the cross-examination, it is elicited that he has given the same address in which he is residing while obtaining license and also the election voter's ID. It is suggested that the said address belongs to one Govindaraju and he was his relative and the same was denied. Prior to the mahazar, he was not having any acquaintance with Munegowda, Shankara Reddy, Vincent Smith and Venkatesh. He admits that he is having Maruti Alto Car and he cannot tell when he had purchased the same. In order to purchase the same, he took the financial assistance from the Finance Company. He is having RC book and he has purchased the Car from Vincent Smith and he cannot tell whether the financial assistance was taken in the name of Vincent Smith or in his name. He says, on the instructions of Inspector - Balakrishna, mahazar was drawn, but he cannot tell the name of the scribe. The blood stained place was at the distance of 15 feet from the guest house but, he cannot tell the distance between the club house and the blood stained place. It is suggested that the two brothers of deceased Vinod are his friends and he is the resident of the very same 115 place and the said suggestion was denied. It is suggested that he did not participate in any mahazar under recovery and he is falsely deposing before the Court and the said suggestion was denied.
126. P.W.17 is the Deputy Commissioner. In his evidence, he says that permission was sought under Section 39 of the Arms Act and after satisfying himself, he accorded permission to prosecute the accused and he gave the permission in terms of Ex.P45.
127. He was subjected to cross-examination. In the cross-examination, he admits that he himself cancelled the armed license of accused No.1, since the same had been issued by his predecessor. The said document is marked as Ex.D62. It is elicited that, he does not remember whether a copy of the charge sheet had been furnished to him by the police, before according sanction. He can definitely say that he examined the two reports of Assistant Commissioner of Police and one report of Deputy Commissioner of Police, before according sanction. It is elicited that he has not 116 specifically spelt out the reasons in the orders passed in respect of according sanction and cancellation of Arms License. But, he was very much satisfied before passing the orders.
128. P.W.18 is the Police Constable, who took the FIR to the Court, which is marked as Ex.P46. He says, when the same was given to him, he left the Station immediately and he has reached the Court at 1'o clock and the Magistrate was recording the evidence of witnesses and hence, he gave the same at around 2 or 2:30 p.m. It is also his evidence that he took the seized articles to Forensic Science Laboratory.
129. He was subjected to cross-examination. In the cross-examination, it is elicited that, he cannot tell at what time he left the police station on 06.10.2008. The police have recorded the statement on 15.10.2008. The distance between Bagaluru Station and Bengaluru Chief Judicial Magistrate Court is about 40 kilometers and the same is not mentioned in his statement. It is elicited that while giving statement, he did not mention that immediately he left the 117 Police Station, when FIR was given to him. It is suggested that he has reached the Court between 10:30 to 10:45 a.m. and the said suggestion was denied. It is suggested that he is falsely deposing that he was asked to handover the FIR during lunchtime and the said suggestion was denied.
130. P.W.19, Balakrishna C. is the Police Inspector, Kothanuru Police Station, Bengaluru. In his evidence, he deposed that on 07.10.2008 at around 6.00 a.m., when he was in his residence, he received the information from control room that a shoot out case has taken place. Immediately, he went to Kothanuru Police station and along with staff, visited Bilishivale Village. Thereafter, went to L.G. Rose Heritage and by the time he could reach there, already Shankar Narayan, Police Sub-Inspector of Bagaluru Police Station was recording the statement of Shankar Reddy and came to know that incident has taken place in the said club house. After recording the statement, he instructed Shankar Narayan to go and register the case and communicate the crime number and he instructed Bagaluru Police staff to preserve the scene of occurrence and to inform about any 118 evidence. At that time, when he was talking with Shankar Reddy in front of main gate, three persons came in a motorcycle. Shankar Reddy told that out of three persons, one by name Vincent was known to him and he has also witnessed the incident on the previous night and also told the police that one more person was there along with him on the previous night. He requested Vincent to assist him in drawing mahazar and he also secured other three persons and drew the mahazar from 8.30-10.30 a.m. He also noticed blood stains in front of the club house gate and also found two empty cartridges and the gap between the two cartridges was around 5 feet.
131. It is also his evidence that they went inside the club house and found liquor bottle, non-veg food and glasses containing half used liquor. Thereafter, they went to guest house and searched cupboard, wherein they found brown colour leather pouch where an arrangement is made to keep 8 bullets. In the said pouch, they also found three live bullets and in the same drawer, they found empty 8 cartridges. Out of 8 cartridges, 5 are 3/4th inches and on the 119 remaining three cartridges, the number was mentioned as S & P-7.65 B.R. The guest house two rooms were locked. At the time of drawing mahazar, the finger print expert official also came and verified the two empty cartridges which were seized and gave back the same to him and mahazar was drawn in terms of Ex.P17 and identified his signature as 17(c). He also identifies M.Os.6 to 11.
132. It is his further evidence that 16 photgraphs were taken at the spot which are marked as Ex.P47 series and so also Exs.P47(a) to 47(l) are marked. The rough sketch is also prepared in terms of Ex.P48 and his signature is marked as Ex.P48(a). The articles so seized were handed over to Assistant Commissioner of Police. While handing over the same, complainant and panchayatdars also came to office of Assistant Commissioner of Police. In the meanwhile, he came to know that injured passed away and immediately, he went to Manipal Hospital and thereafter, made arrangements to inquest and post mortem examination. He conducted inquest from 12.15 in terms of Ex.P49 and identifies his signature as Ex.P49(a). The seized articles were included in 120 the PF list in terms of Ex.P50 and identifies his signature as Ex.P50(a). The Assistant Commissioner of Police gave instructions that they have received the information about the accused and instructed him and Sampigehalli Inspector to arrest the accused persons. Next day morning at 3.30 a.m., both of them went to Kerala in a flight and apprehended accused Nos.1 and 5 in Kunnath house at Kundanur Village. Thereafter, both of them were brought to Thrishur and from there, they came to Bengaluru in a taxi and produced the accused persons before Assistant Commissioner of Police and gave the report. The flight ticket is at Ex.P53.
133. It is also his evidence that on 13.10.2008, Assistant Commissioner of Police gave a memo to him and Amruthahalli Inspector, Ashok to take the accused persons to places where they had stayed and collect the evidence and accordingly, both of them went along with their staff to Thrishur. The accused led them to Shanthi Tourist Home and met P.W.10-Prathap, Manager of the Lodge, who identified the accused persons and informed that accused persons 121 came to his lodge on 08.10.2008 at 4.20 a.m. and checked out at 1.45 p.m. The said registers are seized and marked as Ex.P33 and mahazar was drawn in terms of Ex.P34 and identifies his signature as Ex.P34(c) .
134. It is also his evidence that they have also enquired another staff of the said lodge by name Sridhar and thereafter, they left Thrishur and went to Kunnath House at Kundanur and drew the mahazar in terms of Ex.P54 and identifies his signature as Ex.P54(a). He further states that passport was recovered at the instance of the accused and the same is marked as Ex.P55. He also recorded the statement of panch witnesses, Suresh and Unnikrishnan in the said place. They left Kundanur on 15.10.2008 and came to Vellore and accused persons led them to Syams Hotel at Vellore and met Supervisor, Jayapal, who identified both the accused. He informed that on 07.10.2008 at 8.30 a.m., the accused persons took room Nos.305 and 306 and stayed there till 11.20 a.m. The documents in that regard are marked as Exs.P35 to 37 and identified his signatures therein. Thereafter, they came to Bengaluru and produced 122 the accused persons before the Assistant Commissioner of Police and gave the reports in terms of Exs.P56 and P57 and identifies his signatures as Exs.P56(a) and P57(a).
135. He was subjected to cross-examination. In the cross-examination, it is elicited that, if any investigation is done, the same should be entered in the dairy. The said dairy containing entries is marked as Ex.D63. It is also elicited that, there are entries in terms of Exs.D63(a) to D63(d). It is elicited that he went to L.G. Rose Heritage Layout at 7.30 a.m. and by that time, already, Bagaluru Police Sub-Inspector was there along with four to five staff. The Magistrate has signed the PF list and mahazar on 08.10.2008. He has not seen Vincent Smith or other panchas prior to the incident and he did not record the statement of Vincent Smith, when Shankar Reddy told that Vincent Smith was also present on the date of the incident. He also admits that he did not mention in the mahazar that the eye witness Smith had pointed out the spot. He came to know that two empty cartridges are used in the incident, which were found in front of the gate. He does not 123 remember whether there was any serial number to that or not. He admits that live and used cartridges which were seized contains serial number in the mahazar. He admits that two empty cartridges which were lying in front of the club house gate are very important. He admits, he has mentioned that both the two cartridges are put in empty cover and sealed. He also admits that he has given Sl.No.4 in the PF list with regard to two empty cartridges found in front of club house gate. He further admits details of serial numbers of the cartridges have not been mentioned in the PF list. Sl.No.4 mentioned in Ex.P50 is marked as Ex.P50(b). He also admits that in respect of two empty cartridges which were found in front of club house, the serial numbers are not mentioned in the mahazar.
136. It is elicited that both the cartridges were lying at the distance of 5 feet to one another. Before drawing the mahazar, he has prepared the sketch, Ex.P48 within 10-15 minutes. It is suggested that Ex.P48 was prepared after some days and the same is against the condition of the spot and the said suggestion was denied. It is suggested that he 124 is falsely deposing that he went to spot at 7.30 a.m. and in the meanwhile, Police Sub-Inspector was recording the statement of Shankar Reddy and the said suggestion was denied. It is elicited that they did not stop anywhere when they left to Bengaluru but, it is mentioned in the mahazar about seizure of passport. However, he admits that in Exs.P34 and P37, the details of panchas and P.C. numbers are not mentioned. It is suggested that accused No.1 surrendered before the Assistant Commissioner of Police voluntarily on 10th itself and falsely shown that he was arrested on 11th and the said suggestion was denied. It is suggested that he is falsely deposing that the distance between the police station and Court is around 40 k.ms. and the same was denied.
137. P.W.20, Shankara Narayana V., Police-Sub- Inspector in his evidence states that he came to station on 07.10.2008 at 7.05 a.m. and he received the information from control room about the incident. Immediately, he went along with Writer to L.G. Rose Heritage Layout in the motorcycle, wherein he found a person by name Shankar 125 Reddy in the main gate who informed about the incident and hence, he recorded his statement. In the meantime, P.W.19 came to the spot. Immediately after recording the statement, he went to police station and registered the case at the first instance for the offence punishable under Section 307 IPC and Sections 3, 27 and 328 of Arms Act and he gave the information to P.W.19 over phone. Thereafter, he has sent the FIR in terms of Ex.P46 to Court and obtained signature of Shankar Reddy to each pages and Ex.P46 also contains his signature. Thereafter, he went to Manipal Hospital entering the same in the case dairy. He reached the hospital at around 9-9.20 a.m., but on the way itself he received the information that injured passed away. He also recorded the statement of brother of the deceased in the hospital itself and registered fresh FIR invoking Section 302 of IPC and issued the same in terms of Ex.P58.
138. It is also his evidence that along with FIR in terms of Ex.P58, he also sent the statement of P.W.13-Kiran Kumar to the Court in terms of Ex.P59. That on 15.10.2008, Assistant Commissioner of Police gave him 22 sealed bundle 126 along with 13 documents and instructed him to send the same to FSL, Bengaluru and accordingly, he himself and Police Constable-Yogeshwar handed over the same to FSL.
139. He was subjected to cross-examination. In the cross-examination, it is elicited that Ex.P46(a), statement of Shankar Reddy is in the handwriting of Puttaswamy. It is suggested that Ex.P46(a), statement of Shankar Reddy was obtained in the police station and not recorded, and the same was denied. It is elicited that Kiran Kumar did not come to station, after recording the statement. It is elicited that he has mentioned the effort made by him to search the accused in the dairy, but did not mention in the station dairy that he left the Writer at the spot. It is elicited that he recorded the statement of Shankar Reddy in front of layout gate. He admits that when Crime No.38/2008 was registered, he was the Investigating Officer.
140. It is also his evidence that further investigation was taken over by Balakrishna and he gave the CD when he handed over the investigation. It is suggested that P.W.13, 127 Kiran Kumar has not given statement in terms of Exs.D58 and D60 and the same was denied. He admits that P.W.13 did not make any statement that prior to death of his brother, the relationship between Govardhan Murthy and his brother was not in cordial terms. He also admits that P.W.13 did not make any statement with regard to cancellation of marriage of Sambrama with accused and hence, their relationship was not cordial and there was a competition between them in real estate business. He further admits that P.W.13 did not make statement that Shankar Reddy told him that Govardhan Murthy shot Vinod, but he says that P.W.13 informed him that Shankar Reddy told, himself and Vinod both went to Govardhan Murthy's guest house.
141. P.W.21 is the Chief Nodal Officer, Bharathi Airtel, Bengaluru. In his evidence, he says that Assistant Commissioner of Police had sought certain call details relating to Crime No.38/2008 of Bagalur Police station pertaining to certain customers who had enjoyed the mobile facility from us. Mobile bearing No.9845493020 had been given to Govardhan Murthy and was activated on 08.09.2003 128 having postpaid facility. He had made an application seeking mobile service vide application dated 08.09.2003. Ex.P60 is the application and Ex.P61 is the copy of Election Identity Card. On the request of one K.S. Shankar, they had provided mobile service bearing No.9945222222 on 04.05.2006 and the same is also postpaid service. He had submitted an application along with an I.D. card, which are marked as Exs.P62 and P63 respectively. One R. Nagesh had given a written request for National Roaming facility to K. Shankar's above mobile number. The application is marked as Ex.P64. Ex.P65 is the chart of the call details of mobile service given to Shankar. Ex.P66 is the chart containing call details of mobile of Govardhan Murthy. Ex.P67 is the covering letter addressed by the Investigating Officer which bears his signature. First column in Ex.P65 relates to serial number, second column pertains to the mobile number of the subscriber, third column refers to I.M.E.I. number of the mobile instrument, fourth column refers to the date and time of the call from the subscriber or the receiver, fifth column refers to the type of the call i.e., 129 whether outgoing call or incoming call and sixth column refers to the mobile number of the person, who had called or vice versa.
142. It is his further evidence that item Nos.30 and 31 at page No.2 of Ex.P65 are incoming call of mobile bearing No.9845493020 belonging to Govardhan Murthy. Item No.30 was done at 7.01 p.m. and item No.31 was made at 8.03 p.m. The location of the tower of the receiver of the call was Mahakali Road, Chikkaballapur Town. Second call was located to the receiver at Chikkajala. These calls were made from mobile bearing No.9845493020 to 9945222222. These two calls were made on 06.10.2008. Item Nos.27 and 34 are at page 1 of Ex.P66. Call in item No.27 was an outgoing from mobile No.9845493020 to mobile No.9945222222 at 20.07 hours on 06.10.2008 and location of the tower of the caller was C. Bagalur. Item No.34 was again an incoming call from 9945222222 to mobile No.9845493020 and the timing was 17.30 hours on 06.10.2008, tower was again C. Bagalur. Item No.56 in Ex.P66 refers to an outgoing call from mobile No.9845493020 to mobile No.9945222222 at 130 19.06 hours on 06.10.2008, the location of the tower of the outgoing call was C.Bagalur.
143. He was subjected to cross-examination. In the cross-examination, a suggestion was made that he was not authorized to tender evidence and the same was denied. It is elicited that Assistant Commissioner of Police had sought for the call details by E-mail and he has affixed his signatures both on Exs.P65 and P66 with the seals of their office to indicate that they are true copies.
144. P.W.22 is the Assistant Commissioner of Police, Sampigehalli Sub-division, Bengalore. In his evidence, he says that on 07.10.2008 at 6.15 a.m., he received the message from control room that a shoot out incident has taken place at L.G. Rose Heritage Layout. It is also his evidence that he came to know that the information was also passed to C. Bagalur, Police Sub-Inspector and he instructed Police Sub-Inspector, Shankar Narayan to go to the spot and give information and also gave instructions to Balakrishna, who was in-charge of the particular area. Thereafter, he has 131 received the information from Shankar Narayan that he has registered Crime No.38/2008 and also informed that he went to the spot and drew the mahazar. It is his further evidence that on 7th itself, he was informed by Deputy Commissioner of Police to take up the further investigation of the case. Hence, he went to office at 10.30 a.m. and at around 10.45 a.m., Balakrishna came and gave investigation papers to him. Along with Balakrishna, witnesses Shankar Reddy, Vincent Smith and panchayatdars also visited and Inspector, Balakrishna introduced all of them. He verified the investigation done by Balakrishna till then and also received information about the death of the injured and instructed Balakrishna to go to hospital. He also instructed Balakrishna to record statement and register the case under Section 302 of IPC and thereafter, he took Vincent Smith, panchas and Shankar Reddy to L.G. Rose Heritage. He went to the spot and recorded further statement of Shankar Reddy and also recorded statement of Vincent Smith and Venugopal since, Shankar Reddy had informed him that both of them are the eye witnesses to the incident. He also recorded the 132 statement of other witnesses. He deputed the staff to search accused persons.
145. He further states that he also visited Satya Hospital on 08.10.2008 and recorded statement of Dr. Satyajith and also collected the documents and instructed to prepare the spot sketch. He also requested the Tahsildar to furnish the revenue records in respect of the place of incident. He also recorded the statement of witnesses, including the brother of the deceased. He continued the investigation and sent the seized articles to FSL and came to know that accused persons are in Kerala and hence, instructed Inspector-Balakrishna to go to Kerala and apprehend the accused. Thereafter, Balakrishna and Rathnakara Shetty called him over phone and informed that they have apprehended accused Nos.1 and 5 and instructed to bring them to Bengaluru and produce before him. Accordingly, the accused persons were arrested and both of them were produced before him. Voluntary statements of accused No.1 and 5 were recorded in terms of Exs.P69 and P70. Thereafter, he has secured panch witnesses and 133 accused No.1 took the panch witnesses to his garment factory and produced the pistol, wherein he found three live bullets in the pistol magazine and the same was seized and mahazar was drawn from 8.00-9.00 a.m., in terms of Ex.P13. He also identifies M.Os.1 to 3 and the photos which were taken at the time of drawing mahazar which are 15 in numbers are marked as Ex.P71 series.
146. P.W.22 in his evidence says that after seizure of the articles at the instance of accused, the same were included in the PF list and the same are marked as Ex.P72 and Ex.P73. Thereafter, accused No.5 took panch witnesses, himself and staff who accompanied him, to the house of his girlfriend Madhu, from where he produced the hidden pistol, which was kept inside the T.V. show case, so also he produced the passport which belongs to him. The same were seized in terms of mahazar - Ex.P14. He identifies his signature as Ex.P14(c) in the said mahazar. He also identifies the passport and pistol as M.O.4 and M.O.5 respectively. The said mahazar was drawn from 10.00 a.m. to 11.15 a.m. and included the same in the PF list as per Ex.P74. He identifies 134 his signature on Ex.P74 and the same is marked as Ex.P74(a).
147. He further deposed that on 12.10.2008, accused Nos.1 and 5 were taken to police custody till 16.10.2008. That on 13.10.2008, he further investigated the matter. He secured the pancha witnesses CW.44 to CW.46 to his office. Accused No.1 took him and panch witnesses to L.G. Rose Heritage on the premise that he has kept the live bullets in the Rose Heritage Guest House. He deposed that accused No.1 took all of them to first floor of the said Guest House and opened the almerah, which was locked and produced live bullets of 25 and 16 in numbers, which were kept in plastic stand. The said live bullets are marked as MO.17 in total, through this witness. In his evidence, he says that out of the total 41 live bullets, he took 5 for test fire in the Forensic Lab, which are separately marked as MO.16. In this regard mahazar was drawn from 8.00 a.m. to 8.45 a.m. in terms of Ex.P.75. He identifies his signature on the said mahazar as Ex.P.75(a). He included the said seized articles in the PF list as per Ex.P76.
135
148. It is also his evidence that he has recorded the statement of other witnesses. The clothes of the deceased, which were sealed by the doctors of the Bowring Hospital are also seized and the same were produced before him. Mahazar was drawn accordingly as per Ex.P.77. He identifies his signature on the said mahazar as Ex.P77(a). The Seized M.Os were included in the PF list, which is marked as per Ex.P78. The said seized articles are marked as MO.12 to MO.15. It is also his evidence that he sent Inspector - Rathnakar Shetty, Balakrishna and his staff along with accused Nos.1 and 5 to Kerala and Tamil Nadu to collect documents and evidence in respect of apprehension of accused Nos.1 and 5 in the said places after the incident.
149. It is also his evidence that on 07.10.2008, he visited the Bowring Hospital and asked Kirankumar, who is the younger brother of the deceased so also his near relatives to give statement. That on 12.10.2008, accused No.1 led them to Garment Factory to produce pistol and live bullets loaded in the magazine. That on 14.10.2008, he has 136 sent the seized articles to the FSL for examination. That on 15.10.2008, in presence of panch witnesses and complainant, he removed the bottles which were kept in two boxes and wrapped them in the white cloth, so also sealed them. The slips containing the signatures of the witnesses were pasted on the said wrapped bottles. Mahazar was drawn in respect of the same in terms of Ex.P18. Inspector - Balakrishna and Ashok, who went along with accused Nos.1 and 5 to Kerala and Tamil Nadu returned on 15.10.2008 at about 7.00 p.m. and produced the said accused persons along with the documents in respect of mahazar, which was drawn in the said places and the statements which were recorded before him. Those documents are marked as Ex.P33 to Ex.P38 and Ex.P54, so also produced two passports as per Ex.P55. The Investigation Report in respect of their visit to Kerala and Tamil Nadu is also marked as Ex.P56 and Ex.P57. Out going passport issued to Rathnakar Shetty and Balakrishna by DCP and requisition letter for such outgoing passport are marked as Ex.P51 and Ex.P52 respectively. The 137 air ticket of Balakrishna is marked as Ex.P53 and the photographs are marked as Ex.P.84 series.
150. The statement of witnesses, who accompanied Inspector - Balakrishna and Ashok was also recorded, so also the statements of other staffs. It is also his evidence that on 16.10.2008, accused No.1 took pancha witnesses, himself and his staff to L.G. Developers and Builders' office and produced the license for holding pistol, which was kept in the office cupboard. Mahazar was drawn in respect of the same in terms of Ex.P85. He identifies his signature on the said mahazar as per Ex.P85(a). The said seized article is included in the PF list as per Ex.P86. He says that he has also recorded the statement of panch witnesses. On the same day, the accident spot was shown to PWD Engineer, who inspected the same in his presence and prepared the sketch, which is in terms of Ex.P.30.
151. It is his evidence that on 18.10.2008, he made request to Airtel Company to furnish the call details of accused Nos.1, 5 and 7 and so also pertaining to the witness 138 Shankar Reddy. He has sent the seized articles for examination to FSL vide Ex.P.87. He also recorded the statement of P.W.1 on 23.10.2008 and taken to his custody Ex.P1 to Ex.P6, which were produced by him. That on 25.10.2008, he requested the concerned officials to furnish 'B' extract of the vehicles seized. That on 26.10.2008, he received the call details from the official of the Airtel Company in terms of Ex.P65 and Ex.P66. He recorded the statements of other witnesses. That on 30.10.2008, he received the ballistic expert opinion in terms of Ex.P22. That on 25.11.2008, he requested the DC to cancel the license issued in favour of accused No.1 and thereafter, collected the documents in respect of the place of the incident from Tahsildar. That on 02.12.2008, he has received 'B' extract, which is marked as Ex.P41 and requested the office of FSL to furnish the report immediately.
152. It is also his evidence that he obtained the sanction from the District Magistrate to invoke Arms Act in terms of Ex.P45 and so also received the order of cancellation of license issued against accused No.1 in terms 139 of Ex.P62. He also sought certain clarification from the ballistic expert, wherein clarification received by him is in terms of Ex.P29 and the sanction obtained to prosecute the accused is in terms of Ex.P88. He also received the report from the FSL in connection with the seizure of the clothes of the deceased in terms of Ex.P98. Reports submitted by the FSL Department is in terms of Ex.P99, Ex.P100 and Ex.P101. He has also produced the certified copy of the bail application of accused No.1 and the same is marked as Ex.P102. After all the materials are collected, he has filed the charge sheet and additional report.
153. P.W.22 is subjected for cross-examination. In the cross-examination, it is suggested that he was having ill will against the accused in connection with Crime No.296/2003 and the same was denied. It is elicited that while conducting the investigation, case diary was prepared in duplicate. The original was kept in his custody and copy of the same was sent to the office of DCP. It is elicited that Puttaswamy PC No.7900 wrote mahazar in terms of Ex.P13 and Ex.P14 on his instructions. It is suggested that Ex.P46(a) is written on 140 his instructions by P.C.No.7900 on 07.10.2008, after 10.30 a.m. and the same was denied.
154. It is suggested that Ex.P.17 is written on his instructions by P.C.No.7900 on 08.10.2008 in his office and the same was denied. It is suggested that the same is pretended as if the same has been made by Inspector Balakrishna and the said suggestion was denied. It is suggested that on 10.10.2008, they have seized Ex.P55 and Ex.P6-License and M.O. - pistol from the house of accused No.1 and the said suggestion was denied. It is further suggested that the passport is pretended to have been seized from Kerala and the said suggestion was also denied. He admits that the things which are mentioned in Ex.P17 is shown as that of the same series in Ex.D.11. He admits that the M.Os which were seized as per Ex.P17 is shown as article Nos.1 to 8. In respect of article Nos.1 to 7, Ex.D.11 is prepared on the basis of Ex.P17. It is also elicited that the two used cartridges which were seized in terms of Ex.P17 in the presence of the officials of FSL Department are shown as article No.4 in Ex.P17. It is elicited that the details of article 141 No.4 is not mentioned in Ex.D11. He admits that the details of article No.4, which is mentioned in Ex.D.11 is not mentioned in Ex.P17. He admits that the two used empty cartridges are already marked together as MO.8. He further admits that the said two used cartridges are marked as article No.4 in both Ex.D11 and Ex.P17.
155. It is elicited that while sending the said articles to FSL for examination, no mention is made in Ex.P26 as to whether the same was prepared on that day or not. It is elicited that the details of MO.12 (article No.13) shirt is pasted on slip of the pocket affixed on the said article. It is elicited that the persons who are mentioned in Ex.P.66(a) i.e., CW.3 - Srinivas, CW.4 - Venkatesh, CW.5 - Suresh Babu @ Ivaar Babu, CW.6 - K.Ramesh Babu @ Ramesh, CW.7 - Michael Disouza and CW.8 - Praveen Kumar were present during that night when the incident took place in the said guest house. It is elicited that the names of P.W.5 - Venugopal and P.W.6 - Vincent Smith are not found in Ex.P46(a). It is further elicited that P.W.3 - Rajeev (C.W.38) was present at the time of drawing inquest and his 142 submission was also recorded on 8th. Hence, on 12th while recording his statement in terms of Ex.P13, he was aware of the fact that he is the relative of the deceased.
156. It is suggested that accused No.1 has not given statement in terms of Ex.P59 and the articles which were seized under mahazar drawn as per Exs.P13, P75, P85 are not produced by accused No.1 and the said suggestion was denied. It is suggested that the sim card which is mentioned in Ex.P68 is not recovered at the instance of accused No.1 and he is deposing falsely. The said suggestion was denied. It is suggested that CW.1 has not given further statement and also CWs.3 to 9 and 25 have not made the statement as made in my presence and it has been recorded to suit the convenience of the case and the said suggestion was denied. It is elicited that the case sheet pertaining to admission of deceased in the Manipal Hospital, which contains 39 pages is confronted to the witness and he admits the same. Hence, the same is marked as Ex.D85. It is further elicited that he came to know that after admission of deceased in the Manipal Hospital, blood was given to him and he also under 143 went surgery. On examination of the blood of the deceased in the laboratory of Manipal Hospital, it was found that his blood group is O positive. The same is mentioned in ink page No.197 of Ex.D85.
157. It is his evidence that P.W.4 - Dr.Satyajeeth furnished Ex.P15 and Ex.P16 to him on 08.10.2008. At that time he inspected the main register and also verified the previous and subsequent entries. Ex.P15 contains the page No.262 and the same series finds place in its original. It is elicited that the letter was sent to him by Public Relation Office of Manipal Hospital stating that the original register is required for the day-to-day affairs of the hospital and the same would be produced whenever it is required by the Court. The same is in terms of Ex.P86. It is suggested that by bringing Dr.Sathyajeeth from Victoria Hospital on 07.10.2008, in page No.262 of the original register, entries were made by 3.00 p.m. and the same is pretended to have been made between 6th and 7th mid night at 1.30 a.m. and the said suggestion was denied. It is suggested that the previous and subsequent entries were also got prepared and 144 the said suggestion was denied. It is suggested that original MLC Register was suppressed and the said suggestion was denied. It is elicited that in Ex.P71 series photographs, himself, his staff and accused No.1 are seen but volunteers that the panch witnesses who accompanied them to the spot on that day are not seen in the said photographs. It is suggested that Ex.P13 and Ex.P14 are prepared in his presence and the same was denied. It is elicited that he left his office at around 1.45 p.m., in order to go to Bowring hospital and he was present in the Bowring Hospital from 2.00 p.m. to 2.30 p.m. After returning to office from the place of incident, he recorded the statement of the witnesses. Between 11.45 a.m. to 1.45 p.m., he recorded the additional statement of Shankar Reddy and also the statements of CW.3 - Srinivas and CW.4 - Venkatesh. He also recorded the statements of other witnesses after returning from Bowring Hospital but he cannot say as to on which date he recorded those statements. He admits that the articles MO.4 and MO.5 which were seized from accused are 145 having no connection to this crime. He admits that Report was given by the FSL Authorities in terms of Ex.P101.
158. It is suggested that he was in the Manipal Hospital from 4.00 a.m. to 10 a.m. on 07.10.2008 at Manipal Hospital and the same was denied. It is suggested that he visited Sathya Hospital on 7th afternoon along with Kiran Kumar and in order to suit the case, entry was made in the MLC Register by creating the same, late the statement of Kiran Kumar was recorded and the said suggestion was denied. It is suggested that in order to save the real culprits, these accused persons have been falsely implicated by filing the false charge sheet against them, and the said suggestion was denied.
159. In his further cross-examination, suggestions are made with regard to the omissions of the witnesses. It is elicited that P.W.5 - Venugopal did not make any statement that after they came to know that Vinod was not there in his house, both of them went to the office of Shankar Reddy. Vinod's car was parked near the office of Shankar Reddy and 146 one of the employees in the office told Vincent Smith that Shankar Reddy is engaged in the party at L.G. Rose Heritage belong to Govardhan Murthy and he also came to know that deceased Vinod, Shankar Reddy and Govardhan Murthy are in the said party. P.W.5 also did not make statement before him that on the advice of Vincent Smith, they both went together to L.G. Rose Heritage in the car of Vinod to bring back him from the said party. But P.W.5 made statement before him that since Govardhan Murthy had asked Shankar Reddy to join for the party in his L.G. Rose Heritage, both Vinod and Shankar Reddy has been there. P.W.5 did not disclose that he came to know the said fact in the office of Shankar Reddy. Witness volunteers that P.W.5 had stated before him that he himself and Vincent went to L.G. Rose Heritage Layout at around 11.30 p.m. It is elicited that P.W.5 did not state before him about their stay for about ½ an hour to 45 minutes in the said Manipal Hospital. But he has stated that by 3' Clock, they reached Manipal Hospital. He says that P.W.5 did not make any mention about handing over of car 147 key to some one who is known person of the Vinod's family and both of them went to their houses in auto.
160. He further says that P.W.6 made statement before him that on enquiry, he came to know that Vinod has not yet gone to his house. He admits that P.W.6 did not mention in both the statements made before him that both of them went to the real estate office of Shankar Reddy from the house of Vinod. He admits that Vincent Smith in his statement did not mention as to when they went to Manipal Hospital, they handed over the car key to the uncle of Vinod by name Vijay Kumar. He also admits that Vincent Smith has not stated in his statement that Shankar Reddy did not inform the police that he was present along with Venugopal at the time of incident. He says that P.W.13 did not make any statement before him that the relationship between Govardhan Murthy and his brother was not in cordial terms.
161. It is elicited that, P.W.16 did not mention when he went near L.G. Rose Heritage Layout gate, he found Munegowda, Venkatesh and Vincent Smith were present, but 148 he mentioned the used cartridges were lying on the left and right side of the gate in between the distance of 5 feet. It is suggested that he did not mention in the CD that he has received the information at 6:15 a.m. on 07.10.2008 about the shoot out and the same was denied. He admits that, in Ex.D88, it is mentioned the Inspected spot is "guest house"
and also he did not mention the complainant name in Ex.D87 and so also it is not mentioned in the CD that, the same was prepared in the afternoon at 1 p.m. He admits that, the order of Deputy Commissioner of Police to take up the further investigation is in terms of Ex.D89. He also admits that, he verified Ex.P17 and in Ex.P17, it is not mentioned that, Vincent Smith and Venugopal were eye witnesses. It is elicited that, he has recorded the statement of 12 witnesses on 7.10.2008 and the same was recorded in the computer.
He admits that, when the remand application in terms of Ex.P73 was submitted to the Court on 12.10.2008, there was no mention of recording of further statement of C.W.1 and also recording the statements of C.Ws.3 to 8 and 10 and 11.
He says he came to know that the accused persons were at 149 Kundanooru and also came to know that the accused persons were in contact with C.W.17 over the phone and the same is mentioned in the CD. He admits that, to go to Kerala a separate memo was not issued, but it was instructed orally and the same is mentioned in the CD. It is elicited that in the voluntary statement of Ex.P69, no mention of live bullets, but it is mentioned the concerned bullets. He also admits that, in Ex.P69, it is not mentioned that the some work hiding in L.G. Rose Heritage guest house. He admits that with regard to the clothes of accused, the same is not mentioned in the charge sheet, but the same is mentioned in the mahazar - Ex.P82. Mahazar-Ex.P34 was drawn at Shanti Tourist Home, situated at Trisoor, Kerala, but the accused did not mention in his voluntary statement that he would lead the team to Shanti Tourist Home and the same is also not mentioned in the CD. He admits that, the presence of P.Ws.5 and 6 at the spot, the same is not mentioned in Ex.P59. It is suggested that in order to implicate the accused persons, circumstances are created and the said suggestion was denied.150
162. The defence also led the defence evidence by examining D.Ws.1 to 13. D.W.1 is Dr. Shanta Kumar, owner of Satya Hospital. In his evidence, he says that, P.W.2 is working as administrator since eight years and he is not familiar with the writings of the Doctors, who are employed in his hospital. He admits the Victim, Vinod Kumar is his relative. This witness is not subjected to cross-examination.
163. D.W.2 - Shubha, Administrator of Satya Hospital, in her evidence, she says that, Dr. Shanta Kumar is the Medical Director in the said hospital and he maintains the attendance registers of Casualty Medical Officers and the staff of the Hospital. Chinnappa Raju is a regular attender in the hospital since ten years. She had sent attendance register and also MLC register through Babu with covering letter, the same is confronted and marked as Ex.D95. In the said letter, she mentioned that she sending the records with one Chinnappa Raju and though it is mentioned the said Chinnappa Raju came late and hence, she sent the records through one Babu.
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164. On reading Ex.D95, she has mentioned that she was unable to trace the attendance register at the hospital for the year 2008 and she does not remember as to what documents she has sent on that particular day. She is not familiar with the handwriting or signatures of the Doctors in the hospital. She says she had put her seal and signature on Ex.D96. When she was told that the same was sent by Court, the signatures were confronted to her on Ex.D97 to D119 and she admits the same. But she claims she has affixed her signature and attested the true copy, affixed the seal and initials as she was told that the same was sent by the Court. Respective signatures are marked in Exs.97(a) to 119(a) and Exs.D96(b) to 119(b) and 120(b). She does not remember as to whether she affixed all those signatures and seal at a time or at a different time and also does not remember as to whether she affixed her signatures in Exs.D96 to 121 earlier to sending the letter as per Ex.D95.
165. On reading the documents she can make out those documents discloses the name of Satya Hospital. She did not compare the records in the hospital before affixing 152 her signature at Ex.D96(a), 97 to 120. It is also her evidence that she has certified the same as it bears the name of the hospital.
166. In the cross-examination, it is suggested that Ex.D120(b), the MLC register was taken by ACP on 16.08.2010 and the same was denied. It is elicited that the patient by name Ibrahim came to the hospital at 11:30 p.m. on 06.10.2008. It is suggested that a lady advocate from the office of M/s.Tomy Sebastian Associates had brought letters on 05.08.2010, 11.08.2010 and 08.01.2011 and the same is admitted. It is suggested that on 08.01.2011, that lady advocate who had brought the letters had also brought Ex.D96, Ex.D97(a) to 119(a) and the same is admitted. It is elicited that the said lady advocate told her that those documents are brought from the Court and hence she has affixed her seal and signature and the same is admitted. It is suggested that since those documents contained the name of the hospital and other details, she has affixed her signature and also attested as true copy by believing her 153 words and the lady advocate took those papers after getting her signature and the same is admitted.
167. D.W.3 - Shivshankar, Senior Executive, Airtel, in his evidence, he says P.W.21 has received summons from the Court to produce the call details and the same will be preserved for one year and they did not get the call details for the said period. In this regard, P.W.21 has addressed a letter to the Court in terms of Ex.D123. This witness is not subjected to cross-examination.
168. D.W.4 - Dr. U. Vasudeva Rao, is the Consultant Surgeon of Manipal Hospital, Bengaluru. He identified the case file confronted to him and admits the same as Ex.D124. He says by looking to Ex.D124, he can say that the patient was received in the hospital on 07.10.2008 at 1:50 a.m., and also identifies the operation notes as Ex.D124. When he arrived to the hospital, injured was already shifted to operation theatre from Casualty. This witness is not subjected to cross-examination.
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169. D.W.5 is Dr. Chetan, Student (Post M.S. Higher Studies), in his evidence, he says that by looking to Ex.D124, he can say the patient by name Vinod Kumar was brought to the hospital with the history of gun shot on 07.10.2008. He saw him at 1:50 a.m. in the casualty. The duty Doctor of the said Department has come immediately and preliminary investigation was done. One Dr.Mamatha has seen the patient at 1:40 a.m. The entries made in this regard by a nurse found at page Nos.23 and 24 of Ex.D124 and Ex D124(b). The entries upto the stage of taking the patient to the operation theater is made by him in the out patient record i.e., in the page Nos.21 and 22 of out patient record, which is marked as Ex.D124(c). After surgery, the surgical team has seen the patient at 6:00 a.m., 7:00 a.m. and 7:30 a.m. The entry in this regard is made by him at page No.39 in the progress sheet i.e., Ex.D124(d). He was also not subjected to cross-examination.
170. D.W.6 - Dr. C. Shivaram, Chief of Transfusion Services, Manipal Hospital, Bengaluru, in his evidence, he says that the patient had a massive blood loss, the blood 155 bank has issued nearly 25 units of blood between 2 a.m. till his death. The blood group of the patient was O+. He was also not subjected to cross-examination.
171. D.W.7, Dr. Swathi, is the Consultant, Heamato Pathologist, Manipal Hospital, Bengaluru, in her evidence, by looking to Ex.D124 says on 07.10.2008, the haematology department received the blood sample of the patient - Vinod Kumar for blood counts and they performed the same and report is found at page No.44 of Ex.D124, which is marked as Ex.P124(g). He was also not subjected to cross- examination.
172. D.W.8 - D. Umashankar Swamy, District Registrar, Gandhinagar, Bengaluru, in his evidence, he says he received the summons from the Court to produce certified copy of Document bearing No.1145/08-09 of Book No.1, stored in C.D.No.HBBD11 on 24.09.2008 of Sub-Registrar, Hebbal and the same is marked as Ex.D125. The other documents are as Exs.D125 and 126. He was also not subjected to cross-examination.
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173. D.W.9, Manjunath, Second Division Assistant, Office of Sub-Registrar, Peenya, Bengaluru, in his evidence, he says that, he was authorized to produce the documents No.16063/04-05 dated 05.07.2004 and document No.16064/04-05 dated 07.07.2004, accordingly he produced and the same are marked as Exs.D128 and D129. He was also not subjected to cross-examination.
174. D.W.10, Shahnaz Fathima, Scientific Officer, FSL, Bengaluru, in her evidence, she deposed that she has examined thousands of such cases and Ex.P98 is issued by her and identified her signature as Ex.P98(a). The FSL received the articles in Crime No.38/2008 and item Nos.13, 14 (1 and 2), 21 and 22 were received from Ballistic Division of her Laboratory on 25.10.2008 for further examination. Item No.13 is one shirt, Item No.14(1) is one jeans pant, Item No.14(2) is one belt, Item No.21 is one shirt and Item No.22 is one pant. All these items were tested for blood stains. The blood grouping was done by absorption. The result was - Item No.13 was stained with human blood belonging AB group of blood.
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175. This witness was subjected to cross-examination. In the cross-examination, it is elicited that the Director, who has counter signed Ex.P98 is placed under suspension by the Government of Karnataka for dereliction of duty. Another Senior Scientific Officer of the FSL came to be suspended and subsequently dismissed from the service. She has no idea that she was dismissed for having prepared a false report. It is elicited that the two officers, who have counter signed Ex.P98 have not participated in the process of examination of the blood. It is suggested that her report is lopsided and perfunctory and is given by her in collusion with the accused and the said suggestion was denied.
176. D.W.11 - C. Puttashamaiah, is the Police Constable, in his evidence, he says that he worked at Bagaluru Police Station and worked with PSI - P.W.20 as Assistant Writer. He identifies his handwriting as Ex.P46(a). The document - Ex.P59 was confronted but he says the same is not in his handwriting. But, it is similar to his handwriting. He also admits the handwriting available in Ex.P17 belongs to him and he has signed. It is suggested that Ex.P59 was also 158 prepared by him only at Manipal hospital and the same was denied. In the cross-examination, with regard to Ex.P59, nothing is elicited.
177. D.W.12 - Shankar Mahadev Bidari, Director General and Inspector General of Police on leave, in his evidence, he says that, he participated in the press meet and he admits that the photographs at Exs.D128 and 129, in both the photos he is holding two firearms and both appears to have been taken during the press meet. It is suggested that the guns seen in his arms were given to him by one Ramachandrappa, Assistant Commissioner of Police, who is the Investigating Officer of this case and the same was denied. He says he is not showing any seized article of a particular case. It is a practice in their Department when ever certain articles are seized and sealed by the Investigating Officer to convince the public regarding detection of the case and to instill the confidence amongst the public, they show weapons more or less identical to the weapons seized by the Investigating Officer which are in their 159 armory or with the officers. He was not subjected to cross- examination.
178. D.W.13 - Raghavendra Bhat, Reporter, Kannada Prabha, Kannada Daily News Paper, Bengaluru, in his evidence, he says that he participated in the press meet. It has come to his notice that the family of the deceased had alleged that one Govardhan Murthy and Langda Babu were the accused persons in the said case. When the accused were arrested D.W.12, held a press meet. He attended the press meet. In the said press meet, D.W.12 informed the media persons that they have arrested the two accused persons and are subjecting them for further investigation. He also showed two pistols showing that those pistols were in the possession of the accused persons. They had taken the photograph of D.W.12 holding those pistols.
179. This witness was subjected to cross-examination by Special Public Prosecutor and in his evidence, it is elicited that in every press meet, the Police Commissioners will furnish hand outs and press meet would be held. The hand 160 outs will contain the Police Station, Crime Number, brief history of the case and the result of the investigation held till then. It is elicited that on 12.10.2008, it was a regular press meet. Further, it is elicited that the media persons who are assembled in the said press meet would prepare notes of whatever is said by the person who addresses the press meet. In the said press meet, he had prepared the notes in his hand writing and he had carried the hand outs and also the notes prepared by him to his office. But he has not brought the hand outs and the notes prepared by him before coming to the Court on 12.10.2008. He is not in a position either to admit or deny the suggestion of the then Commissioner of Police did not state while showing two firearms that they are the one which were recovered from the possession of the accused persons in this case.
180. Having considered the oral and documentary evidence in support of both the prosecution and also the defence, so also taking into consideration of the submissions of both the Special Public Prosecutor appearing for the State and also learned counsel appearing for the accused, this 161 Court has to re-appreciate the material available on record. On going through the judgment and order of acquittal passed by the Trial Court, the same is more cryptic. Since the Trial Court has not discussed the evidence available on record in detail, this Court had discussed the same in depth to consider the matter on merits. Accordingly, the evidence of the witnesses are discussed elaborately to come to a right conclusion.
181. Now this Court has to consider whether the death of Vinod Kumar is homicidal or not. In order to come to a conclusion that the death of Vinod Kumar is homicidal, this Court has to examine the evidence of P.W.7 - doctor who conducted the postmortem examination of the dead body of Vinod Kumar. P.W.7 in his evidence deposed that he conducted the post mortem examination of the dead body of one Vinod Kumar @ Vinod and while conducting the said postmortem examination, he found external injuries to entry wound and also the exist wound, so also other 5 injuries including the surgical wound, abrasion and scratch marks. It is his evidence that the death was due to shock and 162 hemorrhage as a result of firearm injury sustained. He issued the postmortem examination report in terms of Ex.P20. Though this witness was cross-examined in length regarding the nature of death of Vinod Kumar, he did not dispute the same that the death was due to shock and hemorrhage as a result of fire arm injury sustained. It is elicited that injury No.3 was a surgical wound and conduct of such surgery is also not in dispute, so also the defence did not dispute the same. When such being the case, it is clear that the death of Vinod Kumar is a homicidal one as a result of firearm injury.
182. Now this Court has to consider the material on record, with regard to the genesis of the crime. It is the case of the prosecution that the accused Govardhan Murthy shot Vinod Kumar at 00.20 hours on 07.10.2008. In order to substantiate the same, the prosecution relies upon the document Ex.P46 - FIR, under which the criminal law was set in motion. The FIR is registered on the basis of the statement of Shankar Reddy, which is marked as Ex.P46(a). It is elicited in the evidence that Ex.P46(a) is in the handwriting of D.W.11. The defence also did not dispute the same. The 163 statement of Shankar Reddy was recorded on 07.10.2008 at 8.00 a.m. and FIR was prepared immediately after receiving the statement of Shankar Reddy. It is important to note that the said Shankar Reddy has not been examined, but the defence themselves have examined D.W.11 - Puttashamaiah and got elicited that the same is in the hand writing of D.W.11. Hence, it cannot be disputed that Shankar Reddy has not given the statement in terms of Ex.P46(a).
183. It is pertinent to note that the prosecution relies upon mainly the documents Ex.P104 - Medico Legal Cases Register extract of Sathya Hospital, wherein it is recorded that the injured Vinod Kumar himself made statement before doctor, who has been examined as P.W.4 before the Court that Govardhan Murthy himself has shot him. The injured was taken to Sathya Hospital by Shankar Reddy and document reveals that he was taken at 1.30 a.m., so also based on the statement of injured, history was recorded. The prosecution, in order to prove the history of the incident given by the injured himself, examined P.W.4 - Dr.Sathyajith.
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184. On perusal of evidence of Doctor - P.W.4, he reiterates that injured was brought by Shankar Reddy and the said injury was bullet injury on the right side of his abdomen. The injured was conscious, oriented and was responding to verbal stimuli. He enquired the patient as to how he sustained the injury. The injured requested him to save his life and told him that a known person by name Govardhan Murthy shot him with his pistol at L.G. Rose Heritage. Soon after examining the wound and after hearing the say of the injured, he made entries in the Medico Legal Case Register and copy of the same is marked as Ex.P15. He identifies his signatures as Ex.P15(a) and Ex.P15(b). The relevant portion of the say of the injured Vinod Kumar recorded by him at the time of examination is marked as Ex.P15(c). The defence disputed the very document contending that the same is created in order to implicate the accused. In the cross-examination, it is suggested that the same was created and the said suggestion was denied. He categorically admits that except him, no other doctor was present during night shifts. He categorically admits that when 165 the injured was brought to hospital, no surgeon was available. He advised the attendants to shift the injured immediately to the higher hospital since he was in need of an immediate surgical treatment by an experienced surgeon and that facility was not available in the said hospital at that point of time. He also says that during his examination he had noticed some other injuries other than the said bullet injury, but he had no time to thoroughly examine other injuries. The defence themselves elicited that neither Vinod Kumar nor his attendants were known to him earlier to the admission.
185. It is elicited that MLC register was partly written before the patient was dispatched and whatever found in page No.2 was written subsequently after the patient was dispatched. The original Ex.P16 - Doctor's note was written only after the patient was dispatched/referred. He admits that in page No.2 of Ex.P15, he has mentioned that patient was shifted against his medical advise. He volunteers that he mentioned the same because he wanted to provide highly fluids immediately and to arrange for an ambulance. It is also 166 his evidence that he tried to inform the police after the patient was shifted from the hospital, but he could not do so since the police did not take his phone call. The defence themselves suggested in the cross-examination that he was in the casualty and that a car which brought the injured was parked outside the hospital and that he referred them to a higher hospital soon after knowing the critical condition of the injured and the said suggestion was denied. But it is suggested that all the entries found in Ex.P15 were made by him in the MLC Register 15 days after the incident that to on the instance of Dr.Shanth Kumar, owner of Sathya Hospital and the same was denied. It is also suggested that Ex.P16 was prepared after 15 days and the same was also denied. Hence, it is clear that taking the injured to Sathya Hospital is not in dispute, but the only dispute is with regard to the entry made in Ex.P15 and Ex.P16, so also the original MLC register, which is marked as Ex.P104. It is pertinent to note that the said hospital belongs to Dr.Shanth Kumar who has been examined as D.W.1 and he is also the relative of the victim Vinod Kumar. But the defence is that Ex.P15 and 167 Ex.P16 and Ex.P104 are created at the instance of the said Dr.Shantha Kumar.
186. In the cross-examination of PW.4, nothing is elicited with regard to the same being created at the instance of Dr.Shanth Kumar. The main contention of the defence is that the previous and subsequent writings in Ex.P104 are not in the hand writing of P.W.4 and hence, the same cannot be believed. The said contention of the defence cannot be accepted for the reason that no doubt the said entries are not in the hand writing of P.W.4 and the defence also did not dispute the fact deposed by P.W.4 in his evidence that when the car was parked outside the hospital, he referred the injured to the higher hospital. The evidence of P.W.4 is clear that he examined the injured and also enquired him, wherein he disclosed that Govardhan Murthy shot him, and the same has been recorded in Ex.P104. The original Ex.P104 is also meticulously examined by this Court and on examining the same, nothing is found to disclose that the same is created and on examining Ex.P104, it shows continuity of the proceedings date-wise with regard to the MLC Register 168 maintained in the hospital. Merely because the previous and subsequent entries are not in the hand writing of the doctor, it cannot be contended that the same cannot be accepted.
187. Apart from that, it is pertinent to note that the defence also examined the witness - D.W.5 regarding the case file of the Manipal Hospital. D.W.5 in his evidence categorically deposed that he saw the injured at 1.50 a.m. No doubt there is a discrepancy in the record that he was taken to Manipal Hospital at 1.40 a.m. The defence also mainly disputed that the distance between both the hospitals is about 12 kilo meters and it is not possible to reach the said hospital within 10 minutes. D.W.5 says that he saw him at 1.50 a.m. and he also speaks with regard to the case file Ex.D.124, which was confronted to him. He also categorically says that the patient was received in the hospital on 7.10.2008 at 1.50 a.m. Taking into consideration of the evidence of D.W.4 and D.W.5, who are the defence witnesses, it is clear that the injured was received at 1.40 a.m. and D.W.5 has seen the injured at 1.50 a.m. and the time gap is 10 minutes. It is also important to note that it 169 was mid night when the victim Vinod Kumar was brought to the hospital. D.W.5 says that doctor has seen the patient at 1.40 a.m. It is pertinent to note that he says that the entry made in Ex.D124 at the first instance is by nurse at page No.23 and 24, which is marked as Ex.D.124(b). It is his evidence that the entries up to the stage of taking the patient to operation theatre is made by him in the outpatient record i.e., in the page Nos.21 and 22 of out patient record, which is marked as Ex.D.124(c).
188. On perusal of Ex.D124(c), the history recorded by the doctors of Manipal Hospital is also in the outpatient record, which states that the injured was brought by his friend Mr. Shankar with alleged history of bullet injury to patient's tummy. He was shot by Mr. Govardhan on 07.10.2008 at about 1.00 a.m. near Hosur Bunde for reasons unknown to patient's friend. The main contention of the defence is that the said Shankar Reddy has not been examined. However, this Court is of the view that even though he has not been examined, it is important to note that within one hour of the incident of bullet injury sustained 170 by the injured, the injured was taken to another hospital i.e., Manipal Hospital, where the said Shankar Reddy has made the statement that Govardhan Murthy shot him. It is the contention of the defence that the said document Ex.D124(c) has not been proved by the prosecution. The said contention cannot be accepted for the reason that the defence themselves have summoned the document - Ex.D124, which is the out patient record of the hospital, so also the author of Ex.D124(c) is examined before the Court as a witness. The defence did not dispute the entry made by D.W.5 in Ex.D124(c) and the said document has been marked by the defence themselves, wherein it is categorically mentioned that the accused Govardhan Murthy shot the injured. Thus, the defence cannot blow hot and cold at one breath contending that the same cannot be accepted and in another breath stating that Shankar Reddy has not been examined. The authenticity of the document Ex.D124 is proved by examining the author of the document as D.W.5.
189. Having considered both document Ex.P15 and Ex.P16, so also the original MLC register of the Sathya 171 Hospital i.e., Ex.P104 and the relevant entry at Ex.D124(c), which is in the handwriting of D.W.5, this Court has to accept the immediate records of both hospitals, which reveals that within a span of one hour of the incident, the name of accused Govardhan Murthy is mentioned in the relevant medical records that he shot the victim.
190. It is the further contention of the defence that there was a delay in sending FIR to the Court. It is the main contention of the defence that police came to know about the incident immediately on its occurrence nearly around 4.00 a.m. In order to substantiate the same, though the Investigating Officer has been cross-examined as to whether they were aware of the same, nothing is elicited. It is categorically deposed by P.W.20 and P.W.21, who immediately rushed to the spot that P.W.20 - V. Shankaranarayana has recorded the statement of Shankar Reddy in between 7.30 a.m. to 8.00 a.m. and the same is also supported by P.W.19 - Balakrishna, who went to the spot. On perusal of Ex.P46(a), it is clear that the same is in the handwriting of D.W.11 - Puttashamaiah P.C., who 172 recorded the statement of Shankar Reddy in his hand writing. The defence themselves have examined D.W.11 Puttashamaiah both in respect of Ex.P46(a) and also Ex.P59, but D.W.11 denies the document - Ex.P59. He categorically says that Ex.P46(a) is in his handwriting but admits in Ex.P59 found similarity. The defence also did not dispute the fact that the statement of Shankar Reddy was recorded and the same is in the hand writing of D.W.11. In the said statement, he has categorically mentioned the name of the accused, who shot the deceased Vinod Kumar.
191. Now the question before this Court is with regard to non-examination of said Shankar Reddy and whether the same is fatal to the case of prosecution. It is evident in the records that the State Public Prosecutor has filed memo before the Court stating that he is not going to examine Shankar Reddy since he has turned hostile and for the said reason, the prosecution has not examined him. But the particular relevant entries made in the medical records i.e., Ex.P104 and also the document - Ex.D124(c) relied upon by the defence clearly reveals that at the first instance the name 173 of the accused was found in both the records stating that he has shot the deceased Vinod Kumar. Consequently, when the documentary evidence available before the Court itself is clear and the defence themselves have examined D.W.5, now they cannot contend that the same is fatal to the case of prosecution. The defence itself made prosecution case easier by examining the author of Ex.D 124 as D.W.5.
192. On perusal of FIR, which is marked as Ex.P46, it is clear that the FIR was dispatched immediately after the registration of the case, which could reach the Court at 2.30 p.m. and there is also an endorsement on Ex.P46 by the concerned Magistrate. The main contention of the defence is that there was a delay in sending FIR to the Court and in order to prove the same, the prosecution has examined the witness who carried the FIR to Court i.e., P.W.18. He says that on 07.10.2008 at 10.30 a.m. FIR was handed over to him to submit the same to the Court. He had reached the Court at around 1.00 p.m, at that time, the Magistrate was engaged in the Court proceedings. Hence, he handed over the said FIR during the lunch time between 2.00 p.m. to 2.30 174 p.m. It is also his evidence that the distance between the Court and the police station is around 40 kilo meters. When such being the case and when P.W.18 has been examined before the Court, who categorically deposed that the distance between the place is around 40 kilo meters and explained the reason as to why he reached the Court at 2.30 p.m., the defence cannot contend that there is a delay in sending the FIR to the Court and also did not dispute the distance of 40 kms.
193. P.W.18 has explained the reason for not reaching the Court in time and also the fact that the distance between the Court and the station is around 40 kilo meters is not disputed by the defence. The Trial Court has committed an error in coming to the conclusion that there was a delay in sending the FIR to the Court and the reason for such conclusion has not been supported by any material and explanation has been offered by P.W.18 for such delay. The same has not been considered. The finding of the Trial Court is apparent on record, which is against the material available on record and thus, the Trial Court has committed an error in 175 coming to the conclusion that the delay has not been properly explained.
194. The defence relied upon the document Ex.D83 with regard to the intimation sent to the police from Manipal Hospital and the same was dispatched at 2.15 a.m. on 7.10.2008 and it is contended that the case is registered at 8.00 a.m. It is emerged in the evidence that they came to know about the incident at 6.00 a.m. and thereafter P.W.21 went to the spot and recorded the statement of Shankar Reddy and thereafter case has been registered. A perusal of Ex.D83 discloses that the intimation was served on the ACP office, but there is no mention of the timings what time it was served. But mere mentioning the time as 2.15 a.m., it cannot be contended that the same has been reached immediately. The Trial Court relied upon the document of Ex.D83 to come to a conclusion that the case was registered at 8.00 a.m. and there is no satisfactory explanation for the said delay. In the absence of the timings in Ex.D83, it cannot be contended that there was a delay and this Court has already pointed out that the witness who took the FIR has 176 explained the same. It appears that the Trial Court proceeded in a prejudicial manner against the prosecution in the absence of timings for having served the intimation immediately and failed to consider the evidence of P.W.18 and erroneously comes to the conclusion that there is no satisfactory explanation for the said delay. It is important to note that even reaching of the FIR belatedly, is no consequential to the case on hand, since Ex.P104 as well as Ex.D124 produced by the defence itself clearly mentions the name of the culprit within the span of one hour of the incident, that too in the mid night and incident had taken place at 00.30 a.m. and hospital records bears the name of the accused. Even disputed records of Satya Hospital and documentary proof of Manipal Hospital, which is admitted by defence specifically mentions the name of accused Govardhan Murthy and hence the delay is no consequence to the case on hand and the same has not been considered in a right perspective.
195. Now coming to the involvement of the accused is concerned, the prosecution mainly relies upon the evidence 177 of P.W.3, who makes the statement before the police as well as the Court that the injured Vinod Kumar was brought to Satya Hospital at around 1.30 a.m. by Shankar Reddy and he was in the hospital since he had been to see his friend Ibraham, who was admitted in the hospital and when he was about to leave the hospital, he noticed that a car entered Satya Hospital and he found Shankar Reddy and Ivaar Babu in the said car and also noticed the injured in the said car and immediately he rushed to the spot and enquired the injured and the injured himself told that Govardhan Murthy shot him. The prosecution also relies upon the oral dying declaration made before P.W.3. No doubt, in the cross- examination of P.W.3, it is elicited that he is the relative of injured and Ex.P104(c) confirms that Ibrahim was hospitalized on the very same night at 11.30 p.m. in connection with consuming of poison and the treatment column in Ex.P104(c) confirms that his stomach wash was made and he was treated.
196. In the cross-examination of P.W.3, an attempt was made by the defence that he was not present in the 178 hospital and nothing is elicited to disbelieve the evidence of P.W.3 and his evidence is very clear that when he came to know about his friend Ibrahim consuming poison, he had been to hospital. But only the fact elicited in the cross- examination is that at the time of inquest, he did not reveal the same to the police. The defence disputes that when he came to know about the injury sustained by Vinod, he went to the house of the injured instead of providing the treatment. But it is clear that the injured was brought by Shankar Reddy and another and they were providing treatment and hence he went to the house of injured to inform the same to the family members. Both by considering the evidence of doctor P.W.4 and also evidence of P.W.3 and also admission of defence that injured was brought to Satya Hospital, the evidence of P.W.3 cannot be disbelieved. The document Ex.P104(c) also discloses that the friend of P.W.3, Ibrahim was also hospitalized on that day and the same substantiates the evidence of P.W.3.
197. Having considered the evidence of P.Ws.3 and 4, it is clear that the injured only made the statement in Satya 179 Hospital before the doctor as well as P.W.3 requesting him to save him. The very contention of the defence is that having considered the conduct of P.W.3, instead of providing the treatment, he had been to the house of the injured, his evidence cannot be accepted. Already two persons were taking care of the injured and when P.W.3 came to know about the injuries sustained to the injured and also he is the relative, the normal conduct would be informed to the family members of the injured. Hence, the evidence of P.W.3 cannot be discredited. The prosecution has proved the oral declaration made by the injured before the doctor-P.W.4 and P.W.3. It is clear that the injured was having conscious and he was able to make the statement before the doctor and the document placed before the Court discloses that he was conscious and oriented when the injured was brought to the hospital. Hence, the prosecution has proved the oral dying declaration made before the P.Ws.4 and 3.
198. Now with regard to the involvement of the accused is concerned, this Court has pointed out at the first instance that the name of the accused was recorded in the 180 medical records of Satya Hospital as well as Manipal Hospital and also it is the evidence of P.Ws.5 and 6 who are the eye- witnesses, according to the prosecution. P.Ws.5 and 6 in their evidence have deposed that on the same day at around 10.30 p.m. both of them have visited the house of the victim and at that time he was not available in the house and on enquiry, the mother of the victim told that the victim has not yet arrived to the house and hence both of them went to the office of Shankar Reddy and came to know about Shankar Reddy and victim both had been to L.G. Rose Heritage. Hence, they took the car of the victim by collecting the key in the office of Shankar Reddy and both had been to L.G. Rose Heritage. It is also their evidence that they went and met Ivaar Babu and Venkatesh and on enquiry they told that Govardhan Murthy, Shankar Reddy and victim were in the meeting and instructed both of them to wait for some time and they waited for a period of 15 minutes and they did not come out and again they went and asked Ivaar Babu and Venkatesh and again they told to wait for another 15 minutes, they will come out and when they were waiting, 181 they heard firing in the air three times and immediately the persons who were sitting in the car rushed to the spot and brought two persons outside the club house, who did the gun shot in the air and sent them out and advised them not to make such galata in the Club House. When they were standing near the said place, both victim as well as the accused came out from the Guest Hose and both of them were talking to each other outside the Club House and suddenly the accused shot the victim and immediately others who were present at the spot screamed that Govardhan Murthy shot Vinod and they rushed to the spot. At that time Shankar Reddy also rushed to the spot and the victim told them that Govardhan Murthy shot him. The accused expressed sorry to Shankar Reddy and Shankar Reddy scolded him saying that he committed murder of his close friend and pulled him and immediately Ivaar Babu and Shankar Reddy shifted the injured to the hospital. Later, both went to the house of the victim to inform the same to the family members and when they visited the house of the victim, family members were already informed about the 182 incident since someone else had called P.W.13. They came to know about the family members have been to hospital since people who were near the house of victim told that family members went to Manipal Hospital. Hence both of them went to Manipal Hospital and they were there for a period of 45 minutes in the said hospital.
199. The main contention of the defence is that P.Ws.5 and 6 were not there at the spot and made efforts to elicit answer from the mouth of P.W.5 and 6 that they were not present at the spot. Having considered the evidence of P.Ws.5 and 6, though certain answers are elicited with regard to the omission in the statement made before the police, but the evidence of P.Ws.5 and 6 is consistent with regard to the fact that they were present at the spot when the incident had taken place. No doubt, in the cross-examination of P.W.5 it is elicited that both of them have left the place within 6-7 minutes of the incident, but they say that they immediately went to the house of the victim and it is also elicited in the cross-examination that they did not disclose the incident to the father of the injured. It is further elicited that he went to 183 the incident spot in the early morning and did not go to the hospital. The defence contended that the said conduct of P.W.5 is clear that he was not an eye-witness to the incident. The normal conduct of a person would take care of the injured.
200. The defence also in the cross-examination of P.W.6 has elicited that he was working as driver with the victim Vinod and normally he used to drive the vehicle of the victim. It is also elicited that Vinod's mobile handset is now used by P.W.3. It is also elicited that he did not call the family members over phone. It is also elicited that he was in need to meet Vinod but not P.W.5. It is also elicited that when they left the layout, it was around 00.30 a.m, and reached the house of the victim at 1.45 a.m, since they were anxious to convey the incident to the members of the family. Hence, both of them went to the house of the victim since other two persons had taken the injured to the hospital. P.W.6 also says that he was not aware of the telephone number of Vinod and his brothers. It is also elicited that he did not notice whether the parents were there in the hospital 184 or not and also he did not make any attempt to inform the same. He has also given an explanation that already the family members have come to know about the incident and have rushed to the hospital. It is elicited in the cross- examination that while drawing the mahazar, he did not inform the police that he was present at the spot. In the cross-examination of P.Ws.5 and 6, nothing is elicited with regard to the contradictions and in order to prove that they are not eyewitnesses to the incident. Nothing is also elicited in the cross-examination with regard to any discrepancies. If really they were not present at the spot, contradictions are bound to occur and no such contradictions have occurred in the evidence of P.Ws.5 and 6. The evidence of P.Ws.5 and 6 is consistent with regard to the incident and also taking the injured to the hospital by Shankar Reddy and another. Thereafter they had been to house of Vinod and thereafter went to Manipal Hospital and the timings elicited from the mouth of P.Ws.5 and 6 is also consistent. Merely because they have not made the statement before the police at the time of drawing of the mahazar with regard to the incident, 185 that is not fatal to the case of the prosecution and it was known to everyone that the accused Govardhan Murthy only shot him and incident had taken place. The answers elicited from the mouth of P.Ws.5 and 6 with regard to not disclosing the same to the police while drawing the mahazar would not amount to fatal to the case of the prosecution since it was an open secret that the accused only shot him.
201. This Court has already pointed out that the name of the person who shot the injured was already on record in both the hospitals records and everyone knows about the person who shot the injured and when such being the case, the very contention of the defence that P.Ws.5 and 6 were not there at the spot, cannot be accepted. There are certain omissions in the cross-examination of P.Ws.5 and 6 with regard to non-disclosure of the incident to the police at the time of drawing the mahazar. The defence also disputed that their statements were not recorded on the particular day, but the material discloses that the statements of these two witnesses were recorded on 7.10.2008 itself. It is the main contention of the defence that in the case diary which has 186 been placed before the Court, does not disclose that their statements were recorded on the particular date and mere non-mentioning of the same in the case diary, particularly not mentioning the name of the persons, whose statements are recorded, cannot be fatal to the case of the prosecution.
202. In the case on hand, the victim had sustained injuries at the hands of the accused and the same was known to everyone at the spot itself and injured was taken to the hospital and hospital records also reveal that the injured was shot by Govardhan Murthy. When such being the case, non- disclosure of certain aspects before the police is not fatal to the case of the prosecution, as contended by the defence. It is clear that it is the case of the prosecution that the accused only called Shankar Reddy and asked Shankar Reddy to come along with the victim to the L.G. Rose Heritage belonging to the accused. The fact that L.G. Rose Heritage belongs to the accused is not in dispute. The prosecution also in order to prove the fact that the accused called Shankar Reddy to bring the victim to his L.G. Rose Heritage, relied upon the phone call details and to prove the same, examined 187 the witness P.W.21 Nodal Officer, Bharati Airtel. The evidence of P.W.21 is clear that the Investigating Officer sought the call details of Shankar Reddy and also Govardhan Murthy. P.W.21 says that the mobile bearing No.9845493020 had been given to Govardhan Murthy and the same was post-paid facility given to him and the same was activated on 8.9.2003. He made an application on 8.9.2003 vide Ex.P60 and Ex.P61 is the copy of the election identity card. It is also his evidence that on the request of K.S.Shankar, they have provided mobile No.9945222222 on 4.5.2006 and he had submitted an application in terms of Ex.P62 and identity card as Ex.P63. Ex.P65 is the chart of the call details of mobile service given to Shankar. Ex.P66 is the chart containing call details of mobile of Govardhan Murthy. It is also his evidence that on the date of the incident, calls were exchanged between them at around 7.01 p.m. and also at 8.03 p.m. The location of the tower of the receiver of the call was Mahakali Road, Chikkaballapur Town. Second call was located to the receiver at Chikkajala. These calls were made from telephone number of Govardhan Murthy to Shankar and one more call 188 was made on the same day in respect of very same number at 20.07 hours on 06.10.2008 and the location of the tower of the caller was at C. Bagalur. Hence, the evidence of P.W.21 also substantiates the case of the prosecution that Govardhan Murthy called Shankar on that particular day. It is also the case of the prosecution that Govardhan Murthy called Shankar Reddy and asked to come to his L.G. Rose Heritage along with the victim.
203. It is also not in dispute that the incident had taken place in front of L.G. Rose Heritage. The mahazar was drawn in terms of Ex.P17. The defence also did not dispute the fact that the incident had not taken place in front of the said L.G. Rose Heritage. It is also important to note that the said L.G. Rose Heritage belongs to the accused. In order to substantiate the same, the prosecution relied upon the evidence of P.W.2 Tahsildar and got marked the documents to prove that the said Club House belongs to the accused. Ex.P7-letter of the Tahsildar and also Exs.P8 to 11 pahani extracts confirms that L.G. Rose Heritage belongs to the accused. Apart from that, it is also important to note that 189 P.W.1 is also examined to prove the fact that the pistol which was used in the incident was purchased by the accused. P.W.1 categorically deposed that the accused only had purchased the pistol on 14.6.2007. The receipt is also produced for having purchased the pistol and also licence is got marked and permit is also marked as Ex.P5 in order to bring the pistol from Hassan to Bengaluru. The defence did not dispute the purchasing of pistol by the accused by cross- examining P.W.1. In order to prove the fact that the very same pistol was used in firing, the prosecution relies upon the evidence of P.W.8, who is the Ballistic expert.
204. P.W.8 in his evidence deposed that he examined the pistol which was sent for examination and gave the opinion that pistol in article No.9 bears the signs of discharge and further opined that the hole marked as 13H on the shirt in article No.13 has been caused due to the passage of a copper jacketed bullet which could have been fired through the pistol in article No.9. The approximate range of firing with respect to bullet hole marked as 13H on the shirt in article No.13 is in between 0.5" to 1" from the muzzle end of 190 the pistol. His report is marked as Ex.P22. It is also his evidence that article No.4 contained two pistol rimless spent cartridge cases of 7.65 mm caliber bearing head stamp S and B 7.65 between 'O'. The percussion caps having red coloured shellac. These cartridges cases are marked as Exs.P4(a) and 4(b) in the laboratory. It is also his evidence that on chemical analysis, it was confirmed that presence of combustion products of smokeless gun powder residues and copper were detected in the barrel of pistol in article No.9. Hence, the pistol in article No.9 bears signs of discharge, but no opinion is possible regarding actual time and date of firing.
205. In the cross-examination of this witness, it is elicited that as per the written information given by the police as well as the mahazar marked as per Ex.P17, article No.4 two spent cartridges were seized from the scene of occurrence. It is also elicited that the description of article No.13 shirt mentioned in Ex.D11 invoice is the same as the description mentioned in Ex.P20, the postmortem report in respect of the shirt. The hole noticed by him in article No.13 191 is located in between 6th and 7th button from top of the shirt. The hole is seen in between 6th and 7th button from the top inclusive of collar button in M.O.12 shirt. It is also elicited that there were no blood stains at all around the hole in the shirt. He did notice some blood stains on other parts of the shirt examined by him.
206. Having considered the evidence of P.W.8, no doubt certain discrepancies are elicited from the mouth of P.W.8 with regard to not containing blood stains in hole of the shirt, but nothing is disputed in the cross-examination that the pistol which was seized by the prosecution has not been used in firing and also an attempt made by the defence that the hole found in the shirt, there is discrepancy in the evidence of prosecution. It is contended that M.O.13 shirt was not the shirt which was seized by the prosecution and an attempt has been made to replace the same, since the same does not contain the blood stains and also it is contended that the blood group of the victim is 'O' positive as per the medical records of Manipal Hospital, but the opinion given by the FSL is 'AB' positive. Here it has to be noted that the FSL 192 official who has been examined before the Court as D.W.10 in order to substantiate the case of the defence, in the cross- examination categorically says that the presence of blood was detected in item No.13, was not detected in item No.14 and the report given by her is marked as Ex.P98. The result in respect of item No.13 was stained with human blood belonging to AB group. This witness was subjected to cross- examination.
207. In the cross-examination of D.W.10, it is elicited that Director who has counter-signed Ex.P98 is placed under suspension by the Government of Karnataka for dereliction of duty and another Scientific Officer of FSL came to be suspended and subsequently dismissed from service. She has no idea that she was dismissed for having prepared a false report. He admits that two officers who have counter- signed Ex.P98 have not participated in the process of examination of the blood.
208. Having considered the evidence of D.W.10 and the discrepancy in the blood group of the victim, it is clear 193 that there is something fishy in ascertaining the blood group. The evidence of D.W.10 is clear that the persons who have signed Ex.P98 were suspended and another Senior Scientific Officer was suspended and subsequently dismissed from service. The very contention of the defence that there is discrepancy in the records that blood group is different, cannot be sustainable in the eye of law. The other material available before the Court is with regard to eye-witnesses as well as dying declaration made before the doctor-P.W.4. Though he is the doctor working in the hospital belonging to the relative of the victim, he is not the relative of the victim and he gave first aid and advised the person who brought the injured to take the injured to the Manipal Hospital and he is in need of surgical treatment. Under the circumstances, the discrepancy in the blood group cannot take away the case of the prosecution.
209. It is also important to note that the pistol was also seized at the instance of the accused. P.W.3 is also the witness to the seizure of pistol at the instance of the accused. P.W.3 in his evidence categorically says that he was 194 called to Police Station and when he went to the Police Station, the accused was in the Police Station and based on his voluntary statement of the accused, he took the panchas, Investigating Officer and other staff to his Garments Factory and produced the pistol. The same was seized by drawing mahazar in terms of Ex.P13. He also identified the signature as Exs.P13(a) and (b). It is also his evidence that while seizing the pistol, they found three bullets and also seized the magazine and he identified M.O.1 as pistol and M.O.2 as magazine and three bullets as M.O.3.
210. In the cross-examination of P.W.3 with regard to the seizure of M.Os.1 to 3, it is elicited that from the office of ACP to go to the Garments Factory, they took 20 minutes and reached at around 7.30 a.m. It is also his evidence that the accused took all of them to III Floor and produced the pistol and photographs were taken, but he is not found in the said photographs. It is suggested that he is falsely deposing that the accused made the voluntary statement that he will produce the pistol which is kept in Garments Factory and he 195 did not take them to the Garments Factory and not produced M.Os.1 to 3 and the same was denied.
211. On perusal of cross-examination of P.W.3 with regard to the seizure of pistol and other articles - M.Os.1 to 3, nothing is elicited to disbelieve the evidence of P.W.3, except eliciting that he is the relative of the victim. Merely because the recovery mahazar witness is the relative of the victim, it cannot be a ground to disbelieve his evidence. In the cross-examination of P.W.3 with regard to recovery, no worthwhile cross-examination is made. Hence, it is clear that pistol which was used to shoot the victim was also seized at the instance of the accused and also the pistol belongs to accused is also not in dispute and further the very same pistol was used in firing is also not in dispute. The main defence of the accused is that two used cartridges which were found in front of the said Club House were not that of articles which were subjected to examination. No doubt, in the cross-examination, it is elicited that article No.4 has not been mentioned in some of the documents of the prosecution, but that does not mean that the very same 196 cartridges are not used to shoot the victim merely because the same is not mentioned in some of the prosecution document. But while drawing the mahazar, the same was seized at the spot in the presence of the panch witnesses and the same has been proved by examining the panch witnesses.
212. Now with regard to the conduct of the accused is concerned, immediately after the incident, it is the case of the prosecution that this accused along with others had been to Tamil Nadu and thereafter he had been to Kerala, where, he was arrested.
213. The contention of the prosecution is that, this Court has to take note of the conduct of the accused immediately after the incident. It is the contention of the defence that, the accused was arrested from his house and it is pretended that he was arrested at Kerala.
214. The prosecution in order to substantiate its case relied upon the evidence of P.W.19, who is the Investigating 197 Officer, who apprehended the accused according to the prosecution at Kerala.
215. P.W.22, also in his evidence, he says that he gave the instructions to P.W.19 to apprehend the accused and he received the credible information that they are in Kerala. The prosecution relies upon the documentary evidence of Ex.P53 - air ticket and also relies upon Ex.P51 outgoing passport. Having taken note of Ex.P53, it is clear that the Investigating officer along with another police official have traveled in the AIR to Kerala in the early morning and it is the evidence of P.W.19 that accused Nos.1 and 5 were apprehended at Kunnath house at Kerala.
216. It is the contention of the defence that, in order to prove the said fact, none of the witnesses have been examined. No doubt, the local witnesses have not been examined but the Court has to take note of the documentary evidence, particularly, Ex.P53. It is pertinent to note that in the early morning on 11.10.2008, P.W.19 travelled to Kerala 198 along with other police official - Rathnakara Shetty and Ex.P.51 is outgoing passport issued by the Department.
217. It is also the case of the prosecution that, accused Nos.1 and 5 were apprehended on the same day and mahazar was drawn. It is also pertinent to note that Ex.P51 issued by the Deputy Commissioner of Police in favour of P.W.18 and also to Sri Rathnakara Shetty, Police Inspector, who were deputed to Kerala in connection with Crime No.38/2008 of Bagaluru Police Station. These documentary evidence supports the case of the prosecution for having P.W.19 along with Rathnakara Shetty traveled in the AIR to apprehend the accused. The witnesses in their evidence have categorically deposed with regard to receiving the credible information and thereafter visited Kerala and apprehended the accused. It is also pertinent to note that after apprehending the accused they were brought to Bengaluru and the voluntary statement of the accused was recorded and consequent upon the voluntary statement, MOs.1 to 3 were seized at the instance of the accused and P.W.3 is the witness to the said mahazar for recovery of 199 MOs.1 to 3 i.e., Gun pistol CZ.83 CAL 7.65 Browning (made in Czech Republic), magazine and three bullets.
218. Apart from that, the prosecution also examined two witnesses PWs.10 and 11, who are the employees of the particular Hotel, in which, the accused persons were stayed and on perusal of both oral and documentary evidence of PWs.10 and 11, it is clear that both are working at Shanthi Tourist Lodge, Trichur. It is their evidence that accused Nos.1 and 5 came to Shanthi Tourist Home and stayed in the Hotel. The fifth accused had introduced himself as Naveen from Bengaluru and they took Room No.35, paid the advance of Rs.500/- and the room rent of Rs.325/- per day. It is also important to note that, they went to the said Hotel at 4:30 a.m. on the early morning of 08.10.2008 and they left the room on 08.10.2008 itself by 1:45 p.m. The relevant entries are marked in the admission register as Ex.P33 and the signatures of the witnesses are marked at Ex.P33(a) and 33(b) and the name of accused No.5 is found in Sl.No.73. Further, the evidence of the case of the prosecution is that, 200 mahazar was drawn in terms of Ex.P34 and witness identifies his signature as Ex.P34(a).
219. In the cross-examination of P.W.10, it is elicited that the police had specific instruction to preserve the original admission register safely. It is suggested that the jurisdictional police of Trichur instructed him to depose in the manner of the prosecution's case and the said suggestion was denied. It is suggested that Ex.P33 was concocted when the police came on 14.10.2008 and the said suggestion was also denied. It is also suggested that the police had not brought accused No.1 to their Lodge and the said suggestion was also denied. Nothing is elicited to disbelieve the evidence of P.W.10. The only answer elicited from the mouth of P.W.10 is that, it is the police, who had asked him whether the accused had stayed in their Lodge and accused did not tell the police that they had stayed in their Lodge. Having taken note of the documentary evidence available on record in terms of Ex.P33 and also it is clear that in terms of Ex.P34, mahazar was drawn in the said Hotel and copy of the register was seized.
201
220. The other evidence is P.W.11, who is also working as Manager in the very same Lodge and he also reiterates the evidence of P.W.10.
221. In the cross-examination of P.W.11 also, except making a suggestion that he is deposing falsely at the instance of the police, nothing is elicited to disbelieve the case of the prosecution. The documentary evidence is clear that the accused had been to Kerala on 08.10.2008 and they were staying in Kerala. It is also pertinent to note that P.W.19, who has been examined before the Court categorically deposed that, the accused also took them to Hotel SAMS and one Jayapal, Hotel Supervisor was there in the Hotel and he has identified the accused persons. The said Jayapal told that four persons came to their hotel on 07.10.2008 at 8:30 a.m., and they booked room Nos.305 and 306 and they were there till 11:20 a.m. Thereafter, they checked out the Hotel. The copy of the Hotel register is marked as Ex.P35 and also the mahazar was drawn in terms of Ex.P37. He identifies his signature in the mahazar as Ex.P37(b). It is also important to note that, P.W.19 says that 202 after seizure of the register, he gave the reports in terms of Exs.P56 and 57.
222. In the cross-examination of P.W.19, it is suggested that accused Nos.1 and 5 did not take them either to Tamil Nadu or Kerala and the accused persons are not arrested at Kunnath house at Kerala and these suggestions are denied.
223. Having considered the material available on record both oral and documentary evidence, particularly, the evidence of PWs.10 and 11 and also the evidence of P.W.19, who went and apprehended the accused and documentary evidence at Exs.P51, P53, P33, P34, P35 and P37, it is clear that the accused persons were apprehended at Kerala and the documentary evidence was collected for having stayed in the hotel immediately after the incident and their very conduct supports the case of the prosecution that immediately after the incident, in the mid-night of 07.10.2008, they left Bengaluru and reached Tamil Nadu in 203 the early morning at 8'o Clock and thereafter, they went to Kerala.
224. The judgments quoted by the learned Special Public Prosecutor regarding the conduct of the accused is concerned, are aptly applicable to the case on hand.
225. This Court also would like to refer to the Judgment of the Apex Court in the case of State of Karnataka v. Suvarnamma and Another reported in (2015) 1 SCC (CRI) 663 wherein the Apex Court has referred the judgment in the case of State of U.P. v. M.K. Anthony reported in 1985 SCC (CRI) 105 and extracted para No.10 of the judgment which reads as under:
''10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error 204 committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.'
226. The said principle is aptly applicable to the case on hand since, the trial Judge has committed an error in not appreciating the evidence available on record in a right perspective.
227. We also would like to refer the judgment of the Apex Court in the case of Rameshbhai Mohanbhai Koli and Others v. State of Gujarat reported in (2011) 3 SCC (CRI) 102 wherein the Apex Court has held at para Nos.35 and 36 that merely because panch witnesses turned hostile, is no ground to reject evidence, if the same is based on testimony of Investigating Officer alone. It is further observed that, in the instant case, it is not the case of the 205 defence that testimony of Investigating Officer suffered from any infirmity or doubt.
"35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt.
36. In view of the above principles and in the light of the discussion about the recovery as stated and concluded earlier, those materials produced by the prosecution are relevant, acceptable and rightly connected these circumstances with the appellants."
228. In the case on hand, except not collecting the mobile handsets of the deceased, there is nothing on record to show that the Investigating Officer committed an error and the same suffers from any infirmity or doubt. The PW-3 panch witness may be relative of the victim, but in the cross- examination nothing elicited to disbelieve his evidence and inspires the confidence of the Court.
229. The Apex Court in the case of Leela Ram (Dead) Through Duli Chand v. State of Haryana and Another reported in (1999) 9 SCC 525, has held that in a criminal trial, contradictions, inconsistencies, exaggerations 206 and embellishments are bound to occur. Minor embellishments and trivial discrepancies do not by themselves render the evidence of eyewitnesses unbelievable. Evidence should be considered from the point of view of trustworthiness. In criminal cases, corroboration with mathematical niceties should not be expected. The Apex Court at para Nos.9, 11 and 12 has observed as under:
9. "Be it noted that the High Court is within its jurisdiction being the first appellate court to re-
appraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate and otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in the State of U.P. v. M.K. Anthony, reported in (1985) 1 SCC 505 : 1985 scc (Cri) 105 : AIR 1985 SC 48. In para 10 of the Report, this Court observed:
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in 207 view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
11. The court shall have to bear in mind that different witnesses react differently under different situations : whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.
12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishments - sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their overanxiety they may give a slightly exaggerated 208 account. The Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence though not however in the absence of the same."
230. The Division Bench of this Court in the case of Boraiah @ Pujari Boraiah v. State by Thalak Police reported in ILR 2004 KAR 2531 has held with regard to the evidence of Investigating Officer, official act of the police have been regularly performed is a wise principle of presumption. The evidence of Investigating Officer is reliable. It is open for the accused to prove the same as unreliable as discussed by the Apex Court at para Nos.14 and 15 so also with regard to Section 313 of Cr.P.C. at para Nos.17 and 18, which reads as hereunder:
"14. In addition, the prosecution also places reliance upon the recovery of weapon-M.O. 1 at the instance of accused, to prove its case. The seizure panch-P.W.8 has turned hostile. But the prosecution heavily relied upon the evidence of P.W.14-the Investigation Officer. Upon consideration of the relevant material on record relating to recovery, the Court is of the considered opinion that there is absolutely no reason as to why the evidence of independent witness-public servant i.e., Investigating Officer-P.W.14 should be 209 disbelieved. The evidence of P.W.14-Inspector discloses that on getting information about the presence of accused at Chikkaullarthi, he went to the said place along with the staff and arrested the accused. The voluntary statement of accused- Ex.P9, was recorded. The accused led the Police and Panchas to the land called Sangammanavara Ajjanna Hola near Gajjiganahally bus stand and took out kodli (M.O. 1) from Jail bush. There is nothing on record the show that P.W. 14 has got any axe to grind against the accused and that he has acted partially.
15. In this connection, a reference may be made to the judgment of the Apex Court in the case of State Government of NCT of Delhi v Suni and Anr. reported in 2000(7) Supreme 728 wherein the Apex Court observed thus:
"It is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hand over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the Legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect 210 the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions"
In the instant case, we find that the evidence of P.W. 14 is reliable and there is no reason for us to suspect the truthfulness of the records of the police investigation. Merely because, P.W. 14 is the Investigating Officer, his version cannot be discarded on the ground of alleged interestedness. We do not find any reason to disbelieve the recovery of M.O. 1 on the basis of voluntary statement of accused.
17. Before parting with the appeal, we would like to note that in spite of repeated observations and directions issued by the Hon'ble Supreme Court as well as this Court in respect of recording of statements under Section 313 of the Cr.P.C. the Trial Judge has not complied with the basic requirements while recording the statement under Section 313 Cr.P.C.
18. Examination of the accused under Section 313 Cr.P.C. is not an empty or idle formality. The underlined object behind Section 313 of Cr.P.C. is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. Thus, said provision makes it obligatory on the part of the Court to question the accused on the evidence and circumstances appearing against him 211 so as to apprise him the exact case which he is required to meet. Thus, each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so amounts to serious irregularity, vitiating the trial if it is shown to have prejudiced the accused. Apart from affording an opportunity to the accused to explain the incriminating circumstances against him, it would also help the Court in appreciating the entire evidence. While deciding the criminal case, the Court has to consider the statement of the accused in the light of the evidence adduced by the prosecution and weigh such statements with the probabilities of the case either in his favour or against him. Hence, the questions to be put to the accused are to be framed with care and caution which should contain mainly the incriminating material against the accused. Recording of the statement under Section 313 Cr.P.C. is the last opportunity for the accused to explain any circumstance that may appear against him in the evidence. The accused should know as to what is the exact incriminating material against him. As such the Trial Courts shall frame questions on the basis of incriminating evidence against accused. In spite of repeated pronouncements on this aspect, it is seen from the record of the present case that the learned Sessions Judge has not given his due attention to this aspect while framing the questions under Section 313 Cr.P.C. The learned Sessions Judge has simply extracted the evidence of the prosecution witnesses at length, some of the questions are running into pages, without pointing out exact material against the accused. Many questions put to the accused under Section 313 Cr.P.C. by the Court below do not conform to the requirements of Section 313 Cr.P.C.
231. The defence mainly contends that the witnesses, who have been examined, are almost all relative witnesses 212 except P.W.6. P.W.6, was also working as driver with the victim and his evidence cannot be relied upon.
232. The defence also relied upon number of judgments referred (supra) with regard to the consideration of the evidence of relative witnesses. It is mainly contended that P.Ws.5 and 6 are planted witnesses and they are not even chance witnesses. Relying upon those judgments, they would contend that the evidence of witnesses cannot be accepted. It is pertinent to note that while cross-examining P.W.5, number of documents including partition deed, release deed are confronted to the witness to elicit the answer from the mouth of P.W.5 that he is a relative and mainly contended that the prosecution has suppressed that he is a relative of the victim and made it a Herculean Task to bring out that he is a relative of the victim. It has to be noted, it is settled law that even the witnesses are related witnesses and their evidence has to be examined with due care and caution. The relative witnesses are not forbidden in giving evidence before the Court. The Court has to take note of the factual aspects of each of the case and scrutinize the 213 evidence with due care and caution. No doubt, the witness P.W.3, is also a relative and P.W.13 is the brother of the deceased, who has been examined only to prove the motive.
233. The prosecution in order to prove the 'motive' examined P.W.13. It has come in the evidence of P.W.13 that one Sambrama, daughter of D.W.1 was engaged with the accused and the said engagement was cancelled and thereafter the very same girl Sambrama was engaged to the victim. Hence, he was having the animosity against the victim. It is also the evidence of P.W.13 that both the victim as well as the accused were doing real estate business and hence, there was competitiveness between them and that is also one of the reasons for committing the murder. The fact that both were doing real estate business is not in dispute, but defence disputed the fact of cancellation of engagement between the said Sambrama and also the accused. However, it is evident from the records that there was an engagement between the accused and the said Sambrama and the same was later cancelled and the witnesses have spoken about the same and it is also evident from the records that the victim 214 marriage was also earlier settled between other girl and the same was also cancelled and the same is also emerged in the evidence. Having taken note of the material available on record, it is clear that on the date of the incident, the victim was secured through Shankar Reddy by calling over the phone and the evidence of the Nodal Officer of AIRTEL Company, substantiate the same by producing the call details and hence, the material available on record supports the case of the prosecution with regard to the motive to commit the murder of the victim.
234. While discussing the principles laid down in the Judgment referred (supra), it is clear that the Court has to analyze the evidence of relative witness with due care and caution. In the case on hand, it has to be noted that the witnesses, who have been examined before the Court except P.Ws.3, 6 and 13, other witnesses are not relative witnesses and all the witnesses, who have been examined before the Court are supported the case of the prosecution. Though an attempt is made by the defence that P.W.4 recorded the MLC register at the instance of D.W.1 and nothing is elicited in the 215 evidence of D.W.1 to prove the contention of the defence. It is also pertinent to note that on perusal of the entire appreciation of evidence by the Trial Court, the Trial Court proceeded in the manner of the defence arguments and had not touched upon the evidence of the prosecution and it is pertinent to note that the Trial Court considered the defence documents, which are marked as exhibit 'D' series, which are related to statement of the witnesses and also the inter correspondence between the police department in entrusting the case to investigation and other documentary evidence of Satya Hospital and also the medical records of Manipal Hospital.
235. The defence also examined D.Ws.1 to 13. It is pertinent to note that D.W.2, in her evidence categorically deposed that she has attested the documents when the Junior Counsel of the defence advocate brought the same and requested to attest the documents stating that those documents are brought from the Court. Hence, she has attested those documents.
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236. In the cross-examination of D.W.2, the evidence of D.W.2 is clear that, she categorically says that on perusal of Ex.P104, it reveals that the patient - Ibrahim came to the hospital at 11:30 p.m. on 06.10.2008. The defence itself elicited the answer and that answer supports the evidence of P.W.3, who happens to be present in the Satya Hospital to see Ibrahim and incidentally he was present when the injured victim was brought to the Satya Hospital. It is elicited from the mouth of D.W.2 that on 08.01.2011, a lady advocate brought the letters in terms of Exs.D96 to D119(a) and the said lady advocate told that the documents are brought from the Court. Hence, she affixes her seal and signature and attested as 'true copies', believing her words. It is also pertinent to note that letter is also addressed by the defence counsel in terms of Ex.D122 to issue the certified copy and the said evidence has not been disputed by the defence. D.W.2 has categorically deposed. Hence, it is clear that the learned advocate for the defence counsel took the documents and got attested the same from D.W.2. It is unfortunate that the Trial Court believed those documents and has given more 217 importance to the defence documents instead of the documents produced by the prosecution. When the documents attestation itself is doubtful and when those documents were attested by the colleague of defence counsel saying that those documents are brought from the Court and got those documents attested. The Trial Court ought not to have given importance to those documents and ought to have considered the original documents which are available before the Court. The Trial Judge, while considering the case on hand has given more importance to the defence documents and also it appears that, the Trial Judge committed an error in considering exhibit 'D' series, particularly, Exs.D96 to D119, which has been discussed in paragraph No.41 of the judgment and the same is contrary to the originals but relied upon the defence exhibits and failed to consider the documents Ex.P104 and Exs.P15 and P16 and this Court has already noticed and perused the original document of MLC register and both the previous entries and subsequent entries even though the same is not in the handwriting of P.W.4 and those entries are found in 218 the original book. Hence, the very contention of the defence that Ex.P104 was created and there is no semblance of force in the submission of the defence. But the Trial Court has committed an error in mainly relying upon Exs.D96 to D119 and fails to consider the document of Ex.D124(c) and there was an entry in the records of Manipal Hospital, which was made at 1:50 a.m. on the same night within a span of one hour that Govardhan Murthy shot the victim. The defence itself made it easier to prove the case of the prosecution by examining D.W.5, who made the entry in respect of Ex.D124(c) and got corroborated the same by examining D.W.5 that Govardhan Murthy-accused No.1 himself shot the injured and inspite of the said primary evidence available on record before the Court, the learned Trial Judge proceeded in a prejudicial manner and not discussed the oral and documentary evidence available on record except mentioning that P.Ws.1 to 22 have been examined on behalf of the prosecution. It is pertinent to note that while discussing the case and the evidence of the defence in paragraph No.30 in detail discussed the evidence of the defence, which runs 219 almost 5 pages of defence evidence. While considering the evidence of prosecution, except mentioning P.Ws.1 to 22 simply mentioned while they have examined, not discussed their evidence which has been adduced before the Court. Hence, this Court also in the earlier discussion itself pointed out that, the judgment is nothing but cryptic and did not discuss both oral and documentary evidence and it requires re-appreciation of evidence. The prosecution also brought to notice of this Court Ex.P-102 bail application filed by the accused admitting the incident of gun shot but contended that there was no intention to take away the life but contended no such instruction was given. Though bail application averments are not conclusive proof but the same narrow down the extant of proof of the case of the prosecution. The same is an additional factor to substantiate the case of the prosecution.
237. The other circumstance, which goes against the accused is that, in 313 statement, the accused did not deny the fact that the incident had taken place in his club house. He also did not dispute the facts that, the pistol which was 220 used in the incident belongs to him, license is also standing in his name and also did not dispute the fact that he had purchased the said pistol from P.W.1. In order to substantiate the L.G. Rose Heritage belongs to the accused, the documents Exs.P7 to 11 are marked through the Tahasildar, which corroborate the place of incident belongs to the accused and there is no explanation in his 313 statement about the incident taking place in his L.G. Rose Heritage and also did not dispute the pistol, which belongs to him was purchased from the accused and the very same pistol was used in firing against the victim.
238. On perusal of his 313 statement, while answering to question No.4, he admits L.G. Rose Heritage has sites. He also did not dispute the fact that Shankar Reddy and Ivaar Babu took the Vinod to Satya Hospital in a Car while answering question No.14, but he only says that he is not aware of it and there is no specific denial in his 313 statement. While answering question Nos.57 and 58, he has admitted that he went to the shop of P.W.1 and purchased the pistol with a licence to possess the gun with 0.32 Caliber 221 for a sum of Rs.1 Lakh. After purchasing the same, he brought the same with the permit given by the Deputy Commissioner of Hassan District. He also did not dispute the purchasing of the said pistol and admits Exs.P2, P3, P5 and P6 for having purchased the pistol. But he has not given any explanation in his 313 statement for using the said pistol in firing against the victim. The accused also has not given any explanation with regard to, why he was apprehended at Kerala. It is also pertinent to note that while answering question No.233 with regard to his mobile number and obtaining certain details with regard to his mobile, he only says that, 'he does not know' about the same and also with regard to the phone number of K.S.Shankar (C.W.1) also he answers that, 'he does not know'. But the evidence of P.W.18 is clear that there was conversation between accused and Shankar Reddy on the date of the incident and call details also placed before the Court in terms of Exs.P65 and
66. The only answer given by him is that, he is not aware of it and no explanation was given in his 313 statement. 222
239. In 313 statement he admits that, P.W.2 has given the evidence that the land belongs to him and he formed the layout. When such being the case, the accused ought to have given the explanation in his 313 statement. In the 313 statement, except denying in one word i.e., 'false' and certain answers are elicited from the mouth of the accused regarding his ownership of the heritage, ownership of the pistol and also the telephone number of his call details, no explanation was given.
240. Having considered the answers elicited in the 313 statement of the accused, this Court would like to refer the following judgments:
(i) in the case of Rajendra Pralhadrao Wasnik v. State of Maharashtra reported in (2012) 4 Supreme Court Cases 37, the Apex Court held that, no satisfactory explanation from accused as why several witnesses from the same village, the Police and Doctors have falsely implicated the accused. The accused in his statement under Section 313 of Cr.P.C, in response to 223 all the questions put to him, his answers are in one simple word, which is 'false'. But contended that the Police have registered a false case against him and no circumstances are made out, why he has been falsely implicated in the case and in order to implicate him in the case on hand, no suggestion was made in the cross-examination. Hence, the Judgment is aptly applicable to the case on hand.
(ii) This Court also would like to refer the Judgment in the case of Neel Kumar Alias Anil Kumar v. State of Haryana reported in 2012(3) SCC (Cri) 271, the Apex Court in para 30 of the judgment as held as follows:
"30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 Cr.P.C. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him."
The principles of these judgments are aptly applicable to the case on hand.
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241. On perusal of the evidence of the Investigating Officers, it is emerged in the evidence of P.W.20 that he went to the spot immediately after he came to know about the incident and recorded the statement of C.W.1, who shifted the injured to the hospital. It is pertinent to note that other witness, P.W.19, who came to know about the incident, also went to the spot and by that time, P.W.20 was recording the evidence of Shankar Reddy, who shifted the injured to the hospital. It is also pertinent to note that the evidence of P.W.20, P.W.22, who took up further investigation of the case from P.W.19 when the same was entrusted to him is consistent.
242. In the cross-examination of these three witnesses, nothing is elicited from the mouth of these witnesses that the Investigating Officers were having any enmity against the accused persons, in order to falsely implicate them in the case on hand. The evidence of the official witnesses particularly, the police witnesses is consistent with each other that immediately after the 225 incident, they have acted upon, based on the credible information which they have received with regard to the incident and proceeded in a legal manner. The defence of the accused is that, he has been falsely implicated in the case. However, the accused persons have not made out any case to come to a conclusion that P.Ws.19, 20 and 22 have acted against them and no material of animosity is placed against these witnesses. When such being the case, the Court has to analyze the evidence available on record with due care and caution.
243. In the case on hand, nothing is on record that there was an enmity against the accused by the Investigating Officers, in order to falsely implicate them in the case. Under the circumstances, in view of the principles laid down in the judgments referred below, the Court has to accept the evidence of the official witnesses.
244. This Court would like to refer the judgment of the Hon'ble Supreme Court in the case of BALDEV SINGH v. STATE OF HARYANA reported in 2015 AIR SCW 6174, 226 wherein it is held that the evidence of police witnesses cannot be discarded merely on ground that they belong to police force. Paragraph No.17 of the judgment reads as under:
"17. In his statement under Section 313 Cr.P.C., no plea has been taken that the appellant was not in conscious possession of the contraband. The appellant has only pleaded that he being falsely implicated and that a false case has been foisted against him in the police station. In his statement under Section 313 Cr.P.C, the appellant had not stated anything as to why would the police foist the false case against the appellant. It is to be noted that huge quantity of poppy straw was recovered from the possession of the appellant. Admittedly, the police officials had no previous enmity with the appellant. It is not possible to accept the contention of the appellant that he is being falsely implicated as it is highly improbable that such a huge quantity has been arranged by the police officials in order to falsely implicate the appellant."
245. This Court would also like to refer to the judgment of the Hon'ble Supreme Court in the case of 227 STATE, GOVERNMENT OF NCT OF DELHI v. SUNIL AND ANOTHER reported in 2000(7) SC 728, wherein it is held that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hand over persisted during post-independent years, but it is time now to start placing at least initial trust on the action and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official act of the police have been regularly performed is the wise principle of presumption and recognized even by the legislature.
246. This Court would also like to refer the judgment of the Hon'ble Supreme Court in the case of RAKESH AND ANOTHER v. STATE OF M.P. reported in 2011 (3) SCC (Cri) 803. In this judgment, the Apex Court has held that there was no proof that the Investigating Officer had any animosity or any kind of interested closeness to the 228 deceased. The question of not believing his statement does not arise.
247. In view of the principles laid down in the judgments supra, the evidence of P.Ws.19, 20 and 22 is reliable and creditworthy and no circumstances are made out to disbelieve the evidence of these official witnesses. Apart from the evidence of these witnesses, all the other witnesses, who have been examined on behalf of the prosecution, have also supported the case of the prosecution. Now, the question before this Court is whether the evidence of prosecution witnesses is trustworthy or not and whether it inspires the confidence of the Court or not.
248. Having given anxious consideration to both oral and documentary evidence of prosecution witnesses, this Court is of the considered opinion that the evidence of these witnesses are trustworthy and inspires the confidence of the Court.
249. It is also pertinent to note that, in 313 statement, he categorically admits that the place of incident, 229 which had taken place belongs to him and he is the owner of the said club house and the incident had taken place in front of the club house and throughout cross-examination of this witness, he did not dispute the fact that he was not present at the time of the incident except denying the case of the prosecution and when the incident had taken place in the premises, which belongs to the accused and when the ample evidence is placed before the Court that he only called the victim through one Shankar Reddy, who shifted the injured after the incident and that too incident had taken place in the odd hour i.e., 00:30 hours in the premises belongs to the accused. He has not offered any explanation and this Court can invoke Section 106 of the Indian Evidence Act, 1872, that the accused has to explain the same when the incident had taken place within the premises belongs to the accused and the same has not been done. The pistol used for committing the offence belongs to him and license stands in his name and recovery is also made at his instance.
250. Having considered the material available on record i.e., both oral and documentary evidence, it is clear 230 that, the incident has taken place at 00:30 a.m, and no discrepancy with regard to the timings of the incident and it has also emerged in the evidence that immediately after the shot, the injured was taken first to Satya Hospital and though defence dispute the entry made in Ex.P104, but does not dispute the fact that the injured was taken to Satya Hospital at the first instance and thereafter the injured was taken to Manipal Hospital and in both the records of Satya Hospital and Manipal Hospital, it is clear that this accused only shot the injured and the entries made in both the Hospitals clearly disclose that this accused only shot him and those entries are made within one hour of the incident and also pertinent to note that in the FIR, name of the accused is also mentioned and no doubt the names of the eyewitnesses, who have been examined as P.Ws.5 and 6 were not mentioned in the FIR and mere omission of mentioning of those names itself is not fatal to the case of the prosecution. The FIR is not an encyclopedia.
251. In the case on hand, there are eyewitnesses to the incident and the incident had taken place in the presence 231 of the persons, who are in the club house and immediately after the shot, he was taken to the hospital and the injured himself made the statement before P.Ws.3 and 4. No doubt, it is the case of the prosecution that, he also made the statement before Shankar Reddy, C.W.1, but he has not been examined. In the absence of evidence of C.W.1 also, the other material available before the Court is sufficient to come to a conclusion that the accused only committed the murder of the deceased. It is also pertinent to note that this Court has to take note of the 'conduct' of the accused and on the night itself he left the place and he was at Tamil Nadu in the early morning on the next day and thereafter he traveled to Kerala and he was apprehended at Kerala after four days of the incident. It is also pertinent to note that though he contended that, he was apprehended at Bengaluru, but the documents, particularly, Exs.P51 and P53 disclose that the passport was given to P.W.19 to apprehend the accused at Kerala and in turn they had traveled from Karnataka to Kerala in the flight and apprehended the accused at Kerala and brought the accused to Karnataka. The documents show 232 that the accused stayed in the Hotel at Tamil Nadu and Kerala and documents were seized at the instance of P.Ws.10 and 11, who have supported the case of the prosecution and also identified the accused that he has stayed in the said Hotel. It is also important to note that the pistol was recovered at the instance of the accused based on his voluntary statement and P.W.3 - panch witness supports the case of the prosecution.
252. The prosecution also relies upon the evidence of P.W.13 with regard to the motive and prosecution probablised its case that there was a motive to commit the murder and the evidence of PWs.5 and 6, is clear that they were present at the time of the incident and though disputed seriously about their presence and nothing is elicited in the cross-examination of P.Ws.5 and 6 and their evidence is consistent with regard to the incident as well as the chronological events after the incident they had been to the house of the victim, thereafter, they had been to the hospital and participated in the cremation and also made the statement before the Police and all these materials clearly 233 discloses the prosecution has made out a case and in spite of these evidences are available before the Court, the learned Trial Judge has committed an error and proceeded in the line of the defence of the accused and ignored both oral and documentary evidence available on record and in a callous manner appreciated the evidence of defence only and not appreciated the material available on record in a right perspective. While appreciating the evidence of the prosecution, highlighted the defects and magnified the discrepancies found in the oral and documentary evidence and those discrepancies are not material contradictions and the same cannot take away the case of prosecution and those discrepancies are not fatal to the case of the prosecution and there is an ample evidence before the Court that this accused only shot the victim - Vinod, that too in the odd hour i.e., at 00:30 hours in his club house and immediately the injured was taken to the hospital and he made the dying declaration before P.Ws.3 and 4. P.W.4, is the Doctor, who is not the relative of the victim. May be he is working in the Hospital of a relative of victim. The very 234 defence itself did not dispute in taking the injured to Satya Hospital after the incident but only suggestion was made that he was not taken inside the hospital and he was in the car and on perusal of the Judgment of the Trial Court the same is replica of the defence arguments. When such being the case, the learned Trial Judge committed an error and ought not to have acquitted the accused and the very order of acquittal is nothing but miscarriage of justice and it requires reversal of the Judgment of the Trial Court. Hence, it requires interference of this Court or otherwise the real wrong doer would be escaped from the clutches of the law.
253. The prosecution has invoked charges against the accused for the offence punishable under Section 27 of Arms Act and the ingredients of Section 27 does not attracts since the penal provisions says that, whoever uses any arms or ammunition in contravention of Section 5 and uses prohibited arms or prohibited ammunition in contravention of Section 7 will be punishable. In the case on hand, the accused was having the license and not contravened either Section 5 or Section 7, but only he contravened the license which has 235 been given to him by using the licensed arms. When such being the case, Section 27 (1), (2) & (3) do not attract and attracts Section 30 for punishment of contravening of license, since he has used the licensed weapon to take away the life of a person as against license. Though, the charge has not been framed under Section 30 and the charges framed against the accused under Section 27 is greater offence than Section 30 and hence, even in the absence of the specific charge and when the punishment for the offence punishable under Section 30 is lesser than the offence punishable under Section 27, there is no bar to alter the charge for the offence punishable under Section 30 and invoke Section 30 as against Section 27 of the Arms Act, 1959 and hence, the charge has been considered for an offence under Section 30 in substitution of Section 27 and hence, penal provision of Section 30 is invoked as against the accused.
254. In view of the discussions made above, we pass the following:
ORDER
(i) The appeal is allowed;
236
(ii) The impugned judgment and order of acquittal
dated 26.12.2012 passed in Sessions Case
No.229/2009 on the file of Principal Sessions Judge, Bengaluru Rural District, Bengaluru, is hereby set aside;
(iii) Accused No.1 is convicted for an offence punishable under Section 302 of IPC and Section 30 of the Arms Act;
(iv) Accused No.1 is sentenced to undergo life imprisonment and to pay a fine of Rs.5,00,000/-
(Rupees five lakhs only) for the offence punishable under Section 302 of IPC, in default, to undergo simple imprisonment for a further period of one year;
(v) Accused No.1 is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,000/- (Rupees two thousand only) for the offence punishable under Section 30 of the Arms Act and in default, to undergo simple imprisonment for a further period of one month;
(vi) The sentence shall run concurrently.
(vii) The Trial Court is directed to secure accused No.1 and subject him to serve sentence, forthwith. 237
(viii) On deposit of fine amount, ordered to pay Rs.4,50,000/- in favour of the mother of the victim on proper identification and rest of the amount shall vest with the State.
Sd/-
JUDGE Sd/-
JUDGE CP/MD/PYR/ST