Bangalore District Court
State By: Police Inspector vs ) Lokesh @ Nepali S/O Dharmaraj on 7 April, 2017
IN THE COURT OF LXV ADDL CITY CIVIL AND
SESSIONS JUDGE; BANGALORE CITY
CCH.NO 66
PRESENT
SRI.N.R.CHENNAKESHAVA B.A.,LL.B.,
LXV ADDL CITY CIVIL & SESSIONS JUDGE,
Bengaluru
DATED THIS THE DAY 7th APRIL, 2017
S.C.No.317/2014
COMPLAINANT: State By: Police Inspector,
Rajagopala Nagara Police
Station, Bengaluru:
(Reptd by Public Prosecutor.)
/ Vs /
ACCUSED:
1) Lokesh @ Nepali S/o Dharmaraj,
aged about 22 years, R/at
Metakost Factory, R.I.
Polytechnic college, 11th Main, 3rd
Phase, Peenya Industrial Area,
Bengaluru.
3) Chethan Kumar @ Chethu S/o
Shivanna, Aged about 25 years,
R/at Machohalli Gate, Near Pooja
Hospital, Thavarekere, Magadi
Taluk, Ramanagara District.
(By Sri P.R.B, Adv for A1)
(By Sri.H.P.S, Adv for A3)
2 S.C.No.317/2014
Date of 24.08.2013
Commission of
offence
Date of report of 24.08.2013
offence
Name of Sri.N.A.Nagaraju
complainant
Date of recording 18.10.2016
of evidence
Date of closing of 08.03.2017
evidence
Offence U/s., 302 and 392 r/w Sec.34
complained of of IPC
Opinion of the Convicted for an offence
judge
p/u/Sec.302 r/w 34 of IPC
and acquitted for an offence
p/u/Sec.392 r/w Sec.34 of
IPC
JUDGMENT
Police Inspector, Rajagopalanagara P.S., Bengaluru, has filed this charge sheet against A1 to A3, for the offences u/Sec.302 and 392 r/w Sec.34 of IPC. 3 S.C.No.317/2014
2. Brief facts of prosecution case are as follows:
On 24.8.2013 at about 10.30pm deceased Basavaraju and CW4 Mehaboob Ali were proceeding near the premises of Indian Garage, 11th Main road, 3rd Phase, Peenya Industrial Area, Kaveri Nagar, Laggere, within the limits of Rajagopalanagar police station, they were wrongfully restrained by A1, A3 and absconded A2 and questioned them, why they are proceeding their at late night and at that juncture there was exchange of words took place between them and that apart A1 to A3 have abused the deceased and CW4 Mehaboob Ali, in filthy language and hence deceased questioned A1 to A3 about abusing him and CW4. Therefore A1 to A3 with their intention to commit the murder of deceased, A2 and A3 held him and at that juncture, A1 stabbed below the left portion of chest and right hand of deceased, by means of knife and as a result Basavaraj collapsed on the ground and that juncture absconded 4 S.C.No.317/2014 A2 robbed the Cell phone of deceased and then they ran away from the scene of offence. Thereafter CW1 Nagaraj and CW4 Mehaboob Ali shifted the deceased to Premier Sanjeevini Hospital, T.Dasarahalli, wherein the Doctor attached to be said Hospital, by examining the victim, has declared that victim Basavaraju dead and thereby A1 to A3, have committed alleged offences.
3. After filing charge sheet, committal court took cognizance of the offences u/Sec.302 and 392 r/w Sec. 34 of IPC and then committed the case to Sessions and the same has been registered in S.C.No.317/2014 and made over to this court for disposal, in accordance with law. After hearing, charges framed and explained A1 to A3, for the offences p/u/Sec.302 and 392 r/w Sec.34 of IPC. However A1 to A3 pleaded not guilty of the charges leveled against them and they claim to be tried. Hence the case has been posted for trial. During 5 S.C.No.317/2014 pendency of case, A2 remained absent, Hence, case against A2, is ordered to be split up and register a separate case against him and hence proceeded against A1 and A3. Prosecution in all examined 17 witnesses as PW1 to PW17, got exhibited 18 documents at Ex.P.1 to Ex.P.18, got identified M.O.1 to M.O.8. After conclusion of evidence from prosecution side, A1 and A3 are examined as required under Sec.313 of Cr.P.C. However, they denied the incriminating evidence on record. A1 and A3 have not chosen defense evidence.
4. Heard argument. Learned PP for prosecution and learned counsel for A1 and A3, have filed Memo with citations. I have perused the available materials on record.
5. Now the points that arise for my consideration are:
1) Whether the prosecution beyond all reasonable doubt proves that death of 6 S.C.No.317/2014 deceased Basavaraj was culpable homicide and not under natural circumstances?
2) Whether the prosecution beyond all reasonable doubt proves that, on 24/8/2013 at about 10.30PM, deceased Basavaraju and CW4 Mehaboob Ali were proceeding near the premises of Indian Garage compound, 11th Main road, 3rd Phase, Peenya Industrial Area, Kaveri Nagar, Laggere, within the limits of Rajagopalanagar police station, A1 and A3 along with absconded A2 with their common intension, by wrongfully restraining and abusing them in filthy language and when Basavaraju questioned the same, A1 and A3 along with absconded A2 with their intention to commit his murder, A2 and A3 while holding him, A1 stabbed below the left portion of chest and his right hand, by means of button knife and as a result, Basavaraj succumbed to injuries and thereby A1 and A3 have committed an offence p/u/Sec.302 r/w Sec.34 of IPC.7 S.C.No.317/2014
3) Whether the prosecution beyond all reasonable doubt proves that on the above said date, time and place, while deceased Basavaraj collapsed on the ground, A1 and A3 along with absconded A2 with their common intention, have robbed his cell phone from the shirt pocket and thereby A1 and A3, have committed an offence p/u/Sec.392 r/w Sec.34 of IPC.?
4) What Order?
6. My answer to the above points are:
POINT NO.1 : In the Affirmative POINT NO.2 : In the Affirmative POINT NO.3 : In the Negative POINT NO.4 : As per final order for the Following:
REASONS
7. POINT NOs.1 : It is the specific case of prosecution that death of deceased Basavaraj was 8 S.C.No.317/2014 homicidal death, as A1 and A2 along with absconded A2 with their common intention have murdered him.
8. According to prosecution, on 24.8.2013 at about 10.30pm deceased Basavaraju and CW4 Mehaboob Ali were proceeding near the premises of Indian Garage compound, 11th Main road, 3rd Phase, Peenya Industrial Area, Kaveri Nagar, Laggere, within the limits of Rajagopalanagar police station, A1, A3 and absconded A2 have wrongfully restrained them and questioned them why they are proceeding at late night and then by picking up quarrel abused them in filthy language. However, when Basavaraju questioned the same with them, A1 and A3 and absconded A2 with their intention to commit his murder, A2 and A3 held him and at that juncture A1 stabbed below the left portion of his chest and right hand by means of button knife and as a result he succumbed to injuries. 9 S.C.No.317/2014
9. To prove the cause of death of deceased Basavaraj, prosecution has relied upon inquest report at Ex.P.11 as well as P.M.report Ex.P.12 and evidence of PW17 B.Vijay Kumar, PI, PW12 Mallikarjuna, PW14 Dr.Dinesh Kumar and PW15 Dr.Chandrashekhar.
10. According to prosecution, PW17 B.Vijaykumar then PI, Rajagopala Nagar PS, the I.O in this case has conducted the inquest at Ex.P.11 on the dead body of Basavaraju in the mortuary of Sapthagiri Hospital, in the presence of PW12 Mallikarjuna, CW14 Suresh V Kularni and CW15 Mehaboob Ali.
11. PW12 deposes that before conducting inquest of the dead body, I.O, has issued notice at Ex.P.10 to him. He deposes that at the time of conducting inquest he found stab wound on the stomach and hand. PW12 identifies inquest report at Ex.P.11. In the cross examination of PW12, nothing much contrary elicited 10 S.C.No.317/2014 from his mouth to hold that PW17 being the I.O in this case has not at all drawn inquest proceedings at Ex.P.11 in his presence. PW17 B.Vijaykumar deposes that before conducting inquest, he caused notice at Ex.P.10 to PW12, CW14 and CW15 and then he conducted inquest at Ex.P.11. In his cross examination, nothing much contrary elicited form his mouth to disbelieve his evidence. Hence, I hold that PW17 has conducted inquest on the dead body at Ex.P.11 at mortuary of Sapthagiri hospital.
12. It is the case of prosecution that PW14 Dr. Dinesh Rao HOD, Forensic Medicine, Oxford Medical College, Bengaluru, has conducted P.M. of the dead body of Basavaraj in the mortuary of Sapthagiri Hospital. PW14 deposes that on 25.8.2013 I.O. issued requisition to conduct P.M. of the dead body and accordingly on the same day between 11.10 and 11 S.C.No.317/2014 12.30PM, he conducted P.M of the dead body of deceased, in the mortuary of Sapthagiri Hospital. PW14 also deposes that in the said requisition letter, it was alleged that on 24.8.2013 at about 10.30PM while deceased Basavaraj and his friends while proceeding on their way at Laggere, near Kaveri Circle, 3 assailants by approaching there, have asked the deceased Basavaraju and CW4 Mehaboob Ali, why they are proceeding there at late night and hence at that juncture, there was exchange of words between them and then those 3 assailants by stabbing the deceased, have committed his murder.
13. PW14 further deposes that before conducting P.M. of the dead body, he found the clothing at M.O.4(a) to M.O.8 on the dead body and then he seized the same in the separate paper covers and he affixed seals and also prepare sample seals. PW14 12 S.C.No.317/2014 categorically deposes that upon examination of dead body presence of Rigor Mortis found all over the body. Postmortem staining faintly visible over the different parts and that apart banian at M.O.4 and shirt at M.O.8 found tear and blood stains and it was corresponding wounds. PW14 categorically deposes that upon examination of dead body he found evidence of following injuries.
1. Nearly oblique linear superficial incised wound present over the right anterior-lateral chest measuring 2.3 cmsx2mm, situated 121 cms above the sole of feet and 11 cms from midline. The surface showed dried blood stain.
2. Oblique wedge shaped stab wound present over the lower aspect of left anterior-lateral part of chest situated 114 cms above the sole of feet and 13.05cms from midline, measured 3x0.4cms on approximation of margins. The medial and lower end pointed and lateral and upper end blunted. The margins are 13 S.C.No.317/2014 retracted. Dried blood stains present across the margins and towards the lower and lateral aspect of the abdomen. The lateral margin showed beveling and the medial margin showed undermining. The track was established through the skin and subcutaneous tissue and ribcage upwards, backwards and medially through the 8th intercostals space pericardium to perforate the heart through apex of heart through the left ventricle.
3. Nearly horizontal cresentric deep incised wound present across the ventral aspect of right mid forearm measured 4.3 cmsx1cms exposing the muscle and shaft of right radius the radial artery is intact.
14. PW14 also deposes that he conducted internal examination of dead body and described the injury to the chest wall. Abdomen wall intact. Left chest cavity showed 3 liters of blood with large clots. Right cavity and abdominal cavity devoid of blood or fluids. 14 S.C.No.317/2014
15. PW14 further deposes that injury to pericardium and apex described in external injury. The injury no 2 has perforated the left ventricle through the apex and penetrated the septum. The pericardial sac contains 200ml fluid blood. The chest cavity contains 3 liters of blood mixed with large clots. The valves, coronary and large vessels are unremarkable the left ventricle wall thickness measured 1.6 cms. The large veins contain fluid blood. Arteries are empty. The stomach contains 250 ml of greenish brown saucy fluid. Sweetish sour smell indicating alcohol is present. Urogenital systems both the kidney are dark coloured and devoid of blood patent ureteres and bladder distended with urine, clear fluid devoid of blood or disease. PW14 also deposes that upon dissection of, Skull, brain and scalp were found intact, brain congested with mild edema. PW14 deposes that upon dissection of throat, vessels and muscles showed no 15 S.C.No.317/2014 injuries. PW14 further deposes that after conducting P.M. on the dead body, he issued P.M. report at Ex.P.12. PW14 at Ex.P.12 opines that death of Basavaraju was hemorrhage due to stab injury in the chest of deceased by means light single sharp cutting edged pointed weapon over the chest of the deceased as well as haemothorax with cardiac tamponade. PW14 at Ex.P.12 also opines that deceased Basavaraju sustained 3 sharp injuries. The nature and pattern of injury indicates the Homicidal nature of attack. Injury No.3 is defensive in nature and injury No.1 the victim has possible escaped the penetration. Injury No.2 is the fatal wound. Injury No.2, the deceased possible was in lying down position and the assailants across the left side of his boy. The other possible position to sustain injury No.2 is the victim in standing/bending position and the assailant in standing position over the left side of the victim. The victim is unlikely to have survived 16 S.C.No.317/2014 beyond 15 - 20 mints after the fatal attack. That apart, PW14 at Ex.P.12 opines that the nature and pattern of distribution of injuries are homicidal in nature. In the cross examination of PW14, nothing much contrary elicited from his mouth to disbelieve his evidence. PW14 categorically denies the suggestion that if a by person falls from the elevated place and at that juncture a sharp edged weapon came into contact to the body, similar kind of injury could be happen. However, PW14 opines that while a person slept over the floor and that juncture if a sharp edged weapon contacts the body, then similar kind of injury mentioned at Ex.P.12, could be caused.
16. I have carefully gone through Ex.P.11, Ex.P.12, coupled with evidence of PW12, PW14 and Ex.P.17. Injuries which are explained at column No.7 of Ex.P.11 are corresponding to the injuries mentioned 17 S.C.No.317/2014 in the PM report at Ex.P.12. That apart, PW12 being an attester to Ex.P.12 deposes that he found the injuries over stomach and right hand of the deceased. More so PW14 Dr.Dinesh Rao, by conducting the P.M. on the dead body of deceased, categorically deposes about the injuries found on the dead body at the time of conducting P.M. Added to this, very evidence of PW14 also corresponds to the injuries which are mentioned at Ex.P.12. Suffice it to say, PW14 at Ex.P.12 opines that cause of the death of deceased was due to stabbing by means of sharp knife by 3rd person and in this regard, he also given reasons at Ex.P.12. It is pertinent to note that PW14 at Ex.P.12 opines that nature and pattern of distribution of injuries are homicidal in nature and are caused by an light single sharp cutting edged pointed weapon. That apart, PW14 at column No.29 of Ex.P.12 opines that cause of the death of deceased was due to left haemothoraz with cardiac 18 S.C.No.317/2014 tamponade and also stab wound to left side of chest. More so, PW14 at column No.28 at Ex.P.12 opines that deceased sustained three sharp force injuries. Injury No.2 penetrated the left chest cavity and perforated the heart through the apex, causing hemorrhage inside the left side chest cavity and pericardial sac. The hemorrhage continued at each beat of the heart into the chest cavity, causing loss of supply of blood to rest of the body. The increased accumulation of blood inside the cavity and the pericardial sac lead to the arrest of the heart casing death of the individual. In my considered view, Ex.P.12 coupled with PW14 which are prima facie sufficient to hold that death of deceased Basavaraju was homicidal death. Suffice it to say, PW14 is an expert in Forensic medicine. Therefore, I am of the considered view that certainly evidence of PW14, which cannot be discarded at all. Hence, for the above reasons, I hold that death of deceased 19 S.C.No.317/2014 Basavaraju was homicidal death. For the above reasons I answered point No.1 in the 'Affirmative'.
17. Point No.2: It is the specific case of prosecution that alleged incident took place within the limits of Rajagopal Nagar police station, Laggere, Peenya Industrial estate, 3rd Stage, Kaveri Nagara, 11th main, near the premises of Indian Garage. In order to prove the scene of offence, prosecution has relied spot mahazar at Ex.P.1 and evidence of PW1 G.Venkateshappa, PW3 N.A. Nagaraju, PW8 Sridhar.V; the attesters to Ex.P.1 and also evidence of PW17 B.Vijaykuamr; the I.O in this case. It is also the case of prosecution that under Ex.P1, I.O has seized M.O.1 and M.O.2 i.e. bloodstained and sample soil. Contents of Ex.P.1 disclose that PW17 has drawn Ex.P.1 at the alleged scene of offence in the presence of PW1, PW3 and PW8 and also seized M.O.1 and M.O.2 under 20 S.C.No.317/2014 Ex.P.1. It is relevant to note that PW1 has not whispered in his evidence that I.O has drawn Ex.P.2 in his presence at the alleged scene of offence and seized M.O.1 and M.o.2 in his presence. Since PW1 has not supported the case of prosecution, he is subjected into cross examination, after treating him as hostile witness. Inspite of it, nothing much contrary elicited from his mouth hold that he deposes falsely before the court. However, PW1 in his cross examination deposes that I.O has not at all drawn Ex.P.1 at the alleged scene of offence and seized M.O.1 and M.O.2 in his presence. However, PW3 and PW8 categorically depose that I.O has drawn Ex.P.1 at the scene of offence and also seized M.O.1 and M.O.2 in their presence. Suffice it to say, in the cross examination of PW3 and PW8, nothing much contrary elicited from their mouth to hold that they depose falsely before the court. Suffice it to say, PW17 being the I.O in this case 21 S.C.No.317/2014 categorically deposes that he has drawn Ex.P.1 at the alleged scene of offence and seized M.O.1 and M.O.2 in the presence of PW1, PW3 and PW8. In my view, assuming that PW1 has not supported the case of prosecution, as far as drawing up of Ex.P.1 and seizure of M.O.1 and M.O.2, at the same time evdinece of PW3 and PW8 clearly establishes that PW17 has drawn Ex.P.1 and seized M.O.1 and M.O.2 at the alleged scene of offence. Added to this, in the cross examination of PW17 nothing much contrary elicited from his mouth to hold that he deposes falsely before the court. PW17 in his cross examination categorically deposes that the scene of offence identified by PW3. Therefore, I safely rely the evidence of PW3, PW8 and PW17 to come to the conclusion that scene of offence is located as narrated in Ex.P.1. That apart, under Ex.P.1, PW17 has seized M.O.1 and M.o.2 in the presence of PW1, PW3 and PW8.
22 S.C.No.317/2014
18. It is the specific case of prosecution that, very incident took place on 24.8.2013 at about 10.30PM, near the premises of Indian Garage, 11th Main road, 3rd Phase, Peenya Industrial Estate, Kaveri Nagara, within the limits of Rajagopal Nagara police station. According to prosecution, at the material point of time of incident, deceased Bavaraju and PW4 Mehaboob Ali were proceeding on their way at the scene of offence, A1, A3 and absconded A2 approached there from the opposite direction and by intercepting the deceased Basavaraj and PW4, have abused in filthy language and questioned them why at late night they came there and at that juncture there was exchange of words took place between them. Hence, A1, A3 and absconded A2 by enraging, with their common intention to murder Basavaraju, A3 and absconded A2 have held him and at that juncture A1 stabbed the right hand and below the chest by means of knife M.O.3, 23 S.C.No.317/2014 resulting in, Basavaraju succumbed to injuries and at that juncture, A2 robbed cell phone at M.O.4, from the possession of deceased and at the material point of time, PW3 N.A.Nagaraj, PW9 R.K.Bavaraju and PW10 Ramesh rushed there by hearing the crying from the scene of offence and at that juncture A1, A3 and absconded A2 ran away from the scene of offence.
19. According to prosecution, on 25.8.2013 at about 1.30AM, PW3 N.A.Nagaraj has lodged first information at Ex.P.5 before PW17 and accordingly, PW17 by receiving first information at Ex.P.5, has lodged F.I.R at Ex.P.14 to the jurisdictional court.
20. It is also case of the prosecution that PW3 N.A.Nagaraj, PW4 Mehaboob Ali, PW9 R.K.Basavaraj and PW10 Ramesh are the direct witnesses to the alleged incident. Evidence of PW3, PW4, PW9 and PW10 disclose that they witnessed the alleged incident, as the 24 S.C.No.317/2014 very incident said to have been took place in their presence.
21. PW3 and PW4 depose that on 24.8.2013 at about 10.30PM themselves and deceased Basavaraj left the house of PW9 R.K.Basavaraj to buy Supari sachet from the shop nearby the house of PW9 and after buying the same, while they were returning to the house, A1, A3 and absconded A2 by intercepting, have abused them in filthy language and hence, deceased Basavaraj questioned accused persons and therefore they enraged and then A3 and absconded A2 held the deceased and at that juncture, A1 stabbed on the right forearm and below the chest of deceased, resulting in he succumbed to injuries. During the course of evidence, PW3 and PW4 also identified A1 and A3 as well as the knife at M.O.3, which was alleged to have been used by A1 in committing the crime. PW3 25 S.C.No.317/2014 deposes that after the incident, they shifted the deceased in the car of PW9 Basavaraju, to the hospital for getting treatment. However, Doctor by examining the victim, has declared that he is dead. PW3 deposes that later at about 1.00AM, he rushed to the Rajgopal Nagar PS and lodged first information at Ex.P.5.
22. According to prosecution PW9 and PW10 are also direct witnesses to the incident, since at the material point of time, both of them were at their house, as their house is located at about 100 - 150 ft away from the scene of offence. Evidence of PW9 and PW10 disclose that after hearing the crying, they rushed to the scene of offence and at that point of time, they found the victim Basavaraju was caught hold by two assailants and beside them another assailant was standing. PW9 and PW10 also depose that the assailant holding with a knife has also threatened them 26 S.C.No.317/2014 and hence, they have not proceeded further and at that juncture, assailant who was holding the knife, has stabbed the left portion of chest of victim Basavaraju and hence, he collapsed on the ground. Evidence of PW9 and PW10 disclose that immediately they shifted the victim to Sanjeevini Hospital, T.Dasarahalli. However, the Doctor by observing victim has declared that victim is no more. PW9 and PW10 during the course of evidence identify A1 and A3. That apart, PW3, PW4, PW9 and PW10 categorically depose that it is A1, stabbed the victim Basavaraju, by means of M.O.3 and at that juncture, A3 and absconded A2 were holding the victim. In the cross examination of PW3, PW4, PW9 and PW10, nothing much contrary elicited from their mouth to disbelieve their evdinece. Though it is suggested to these witnesses that they have not at all witnessed the presence of A1, the same is denied by PW3, PW4, PW9 and PW10. It is important to note that 27 S.C.No.317/2014 PW3 in his cross examination deposes that at Ex.P.5 first information, he has not furnished any details about the identity of A1 to A3. However, he deposes that while he lodged first information he has given information about identity of A1 to A3. More so, PW3 in his cross examination deposes that after 4 days of the incident, police have asked him to come over to the police station. Accordingly, he had been to the police station at about 10.00AM and at that juncture, police have told him about the arrest of accused persons. PW3 deposes that prior to the alleged incident; he has not seen the accused persons. PW3 further deposes that police have told him that they arrested the accused persons and hence, to identify them police have asked him to come over to the police station and asked him to identify the accused persons. While PW3 cross examined on behalf of A3, he denies the suggestion that before he identifying A3 during the 28 S.C.No.317/2014 course of trial, he had not seen A3. On the other hand, PW3 voluntarily deposes that he had identified A3 at the relevant time of incident.
23. PW4 Mehaboob Ali deposes par with that of PW3. He also identifies A1, A3 and absconded A2. That apart, PW4 deposes that A1 stabbed the victim Basavaraj by means of M.O.3 and at that time, he was held by A2 and A3. Suffice it to say, PW4 deposes that on the date of alleged incident himself and deceased had come over to Bengaluru to purchase the machine. PW4 also identifies Ex.P.6 and Ex.P.7, showing the photographs of dead body of deceased. Evdinece of PW3 discloses that he is the cousin brother of deceased, likewise evidence of PW4 discloses that himself and deceased were friends to each other. PW4 in his cross examination also deposes that at the material point of time of alleged incident, nearby 29 S.C.No.317/2014 residents not rushed to the scene of offence. He deposes that there are about 2 - 3 houses located. PW4 denies the suggestion that at the material point of time, himself and deceased consumed liquor and have picked up quarrel with some other person and as a result deceased had suffered injuries and hence, the accused have no connection whatsoever to the alleged incident. PW4 denies the suggestion that at the material point of time of alleged incident, A1 to A3 were not at all present there nor A1 stabbed the deceased by means of knife at M.O.3, nor at that juncture A2 and A3 have held the deceased. PW4 deposes that while he was examined by the I.O, he has not all given particulars about the identity of A1 to A3. He admits the suggestion that since the alleged incident took place at about 10.30PM, he has not given any particulars as to the identity of A1 to A3. PW4 also denies the suggestion that for the first time, he 30 S.C.No.317/2014 identifies A1 and A3 before the court and he has not seen them at the time of alleged incident, nor prior to the incident, as well as at the Rajgopala Nagara PS. PW4 also identifies A3. PW4 denies the suggestion that except the identifying A3 through video conference prior to that he has not seen A3 elsewhere. PW4 voluntarily depose that he has identified A3 at the time of alleged incident.
24. PW9 and PW10 who are the brother in law and co-brother of victim Basavaraj, depose that after hearing crying, they rushed nearby the scene of offence and at that time, they found victim was held by two assailants and another assailant was also standing beside them. They also depose that one of the assailant stabbed the victim on his chest and as a result the victim collapsed and after that one of the assailant robbed the cell phone from the possession of victim 31 S.C.No.317/2014 and then all the assailants ran way from the scene of offence. Evidence of PW9 discloses that after the incident, they shifted the victim to Sanjeevini hospital in his car. PW9 and PW10 have also identifies A1 and A3. Evidence of PW9 and PW10 disclose that after 3 days of incident, they were summoned by the I.O to the Rajgopala Nagar police station and hence they have been to the said police station. PW8 and PW15 also dispute their previous statement at Ex.P.11 and Ex.P.18 respectively said to have been given by them before the police station wherein they found A1 and absconded A2. PW9 and PW10 categorically depose that while they rushed to the scene of offence, except PW3, PW4 and accused persons, general public were not at all present nearby scene of offence. PW9 in his cross examination admits a stray sentence that since the incident took place during night hours, he was unable to identify the assailants. PW9 and PW10 32 S.C.No.317/2014 categorically deny the suggestion that they have identified the accused persons for the first time in the police station and prior to that they have not at all identified them. On the other hand, PW9 and PW10 categorically depose that they identified the accused persons at the material point of time of incident. It is denied the suggestion by the PW9 and PW10 that accused have not at all committed the alleged offences and were not present at the scene of offence and inspite of it, they depose falsely as against the accused persons before the court.
25. PW11 Siddappa HC-5143 deposes that on 25.8.2011, CW20 to CW22 and himself were designated by the I.O to trace out the accused persons. Accordingly, on the said day at about 9.00PM in the playground of Sriranga Vidyanikethana school, by cordoning A1 and absconded A2, have apprehended 33 S.C.No.317/2014 them and then brought them to the PS and at about 9.45Pm they produced them before the I.O and submitted report at Ex.P.9. PW11 during the course of his evdinece has identified A1. PW11 in his cross examination deposes that while himself and others, were designated by the I.O. they have not given with any details by the I.O as to of the identity of the A1 to A3. However, PW11 in his cross examination denies the suggestion that himself and CW20 to CW22 have not at all arrested A1 and absconded A2 from the playground of Srirangha Vidyanikethana School, however, they arrested A1 and absconded A2 from their residence and submitted false report at Ex.P.9 to the I.O. PW17 deposes that on 25.8.2013 at about 9.30 AM A1 and absconded A2 were produced before him by PW11 and CW20 to CW22 and then he arrested A1 and absconded A2 and interrogated them and at 34 S.C.No.317/2014 that juncture they gave voluntary statement at Ex.p.15 and Ex.P.16 respectively.
26. According to prosecution, PW17 being the I.O in this case, has seized M.O.3. i.e. single edged knife under Ex.P.4 at the instance of A1 and absconded A2 in the presence of PW2, Chetan Raj and CW9 Manjunatha. It is also the case of prosecution that during the course of interrogation, A1 and A2 gave their voluntary statement at Ex.P.15 and Ex.P.16, respectively before PW17 Dr.Vijaya Kumar, I.O in this case. According to prosecution, A1 and A2 by giving voluntary statement at Ex.P.15 and Ex.P.16, have led PW17 and the panchas PW2 Chetan Raj and CW9 Manjuntha to Laggere, Peenya 3rd stage, 11th Main road, to a sump, situated in front of Swastik plastic industry bearing D.No.151. PW17 deposes that after production of A1 and A2 before him, he arrested and interrogated them 35 S.C.No.317/2014 and at that juncture, A1 and A2 gave their voluntary statement at Ex.P.15 and Ex.P.16 respectively. PW17 further deposes that A1 gave statement before him as "FUÀ £À£ÀߣÀÄß PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀgÉ ªÉƨÉÊ®ï ¥sÉÆãï£ÀÄß QvÀÄÛPÉÆAqÀ eÁUÀªÀ£ÀÄß vÉÆÃV¸ÀÄvÉÃÛ £É ºÁUÀÆ §l£ï ZÁPÀÄ ªÀÄvÀÄÛ ªÉƨÉÊ®ï ¥sÉÆãï£ÀÄß §aÖmÉgÀĪÀ eÁUÀªÀ£ÀÄß vÉÆÃj¹ vÉUÉzÀÄ ºÁdgÀÄ¥Àr¸ÀÄvÉÛÃ£É ªÀÄvÀÄÛ ZÉÃvÀ£ï ªÁ¸À«gÀĪÀ ªÀÄ£ÉAiÀÄ£ÀÄß vÉÆÃj¸ÀÄvÉÛãÉ". Evidence of PW17 discloses that A1 and A2 given their voluntary statement at Ex.P.15 and Ex.P.16 respectively, before him and then they led him, PW2 and CW9 in the police vehicle to Laggere, Peenya 3rd stage, 2nd main road, near Swastik plastic bearing D.No.151. PW17 deposes that many general public were gathered there and then he requested PW2 and CW9 to assist as panchas. Accordingly, they assisted as panchas and after that A1 and A2 by getting down from the vehicle, have accompanied him, PW2 and CW9 Manjunatha in front of 36 S.C.No.317/2014 said building and then they accompanied to the sump located in front of the said building and at that juncture A1 has produced M.O.3, which was kept under the mat. PW17 further deposes that he has seized M.O.3 under Ex.P.4 in the presence of PW2 and CW9 and then he returned along with M.O.3 to the police station and subjected M.O.3 to P.F. PW2 categorically deposes that on 26.8.2013, the I.O by drawing Ex.P.4, has seized M.O.3, at the instance of A1 and A2. PW2 further deposes that at the material point of time, CW9 was also present there. Likewise, A1 to A3 were present there. PW2 also deposes that at the relevant point of time, A1 and A2 have produced M.O.3 from the sump, which was kept under the mat and bedspread was also found there and then under Ex.P.4, I.O. has seized M.O.3 . PW2 identifies M.O.3.
27. I have carefully gone through evdinece of PW2 and PW17, coupled with contents of Ex.P.4. 37 S.C.No.317/2014 Contents of Ex.P.4 clearly disclose that on the basis of voluntary statement of A1 and absconded A2 at Ex.P.15 and Ex.P.16 respectively, PW17 being the I.O has seized M.O.3 under Ex.P.4 in the presence of PW2 Chetan Raj and CW9 Manjunatha. In the cross examination of PW2 and PW17 nothing much contrary elicited from their mouth to hold that they depose falsely before the court. On the other hand, evidence of PW2 and PW17 coupled with Ex.P.4, Ex.P.15 and Ex.P.16, which clearly disclose that A1 and absconded A2 by leading PW17, PW2 and CW9 to Laggere, Peenya 3rd Stage and then A1 has produced M.O.3 from a sump situated in front of Swastik plastic industry. Therefore, certainly evdinece of PW2 and PW17 coupled with Ex.P.15 and Ex.P.16, which are prima facie sufficient to hold that PW17 being the I.O has seized M.O.1 at the instance of A1 and absconded A2 under Ex.P.4. Hence 38 S.C.No.317/2014 prosecution has proved the seizure of M.O.3 under Ex.P.4 at the instance of A1 and absconded A2.
28. PW17 being the I.O also deposes about registering of case, lodging FIR to the court and conducting major portion of investigation. It is reported that CW25 M.K.Ganapathi, then PI Rajgopala Nagara PS, who submitted final report to the court, is dead. PW17 deposes that he has conducted major portion of investigation. However, CW25 has secured A3 through Body Warrant and then he submitted final report before the court.
29. According to prosecution PW15 DR.Chandrashekar Scientific officer, FSL Bengaluru, has examined M.O.1, M.O.3, M.O.4(a) to M.O.8 and issued Report at Ex.P.13. PW15 categorically deposes that on 21.10.2013 10 items were handed over to him by his Asst Director, for examination and after receiving those 39 S.C.No.317/2014 items, he compared those items with the sample seal with original seal and were found corresponding to each other and then he examined those items. PW15 deposes that the blood samples, which were sent for examination were disintegrated and hence he has not examined those disintegrated blood samples. PW15 further deposes that while examining those items, he found that AB human blood group found over M.O.3, M.O.4(a) to M.O.8. In the cross examination of PW15 nothing much contrary elicited from his mouth to disbelieve his evdinece.
30. PW14 Dr.Dinesh Rao who conducted Post mortem on the dead body categorically opines that after conducting PM on the dead body, he issued PM report at Ex.P.12 to the I.O. PW14 also opines at Ex.P.12 that cause of death of victim Basavaraj was due to left haemothorax with cardiac tamponade, due 40 S.C.No.317/2014 to stab wound to left side chest. PW14 further opines that injuries which were found over the person of victim, could be caused by stabbing by means of knife at M.O.3. That apart, injuries found over the person of deceased were all ante-mortem in nature and were not self inflicted or accidental wound. However 3rd person by using sharp pointed knife has caused those injuries. PW14 at para 28 of Ex.P.12 opines that deceased had sustained three stab injuries. The nature and pattern of injury indicates the Homicidal nature of attack. Injury No.3 is defensive in nature and injury No.1 the victim has possible escaped the penetration. Injury No.2 is the fatal wound. Injury No.2, the deceased possibly, was in lying down position and the assailants across the left side of his body. The other possible position to sustain injury No.2 is the victim in standing/bending position and the assailants in standing position over the left side 41 S.C.No.317/2014 of the victim. The victim is unlikely to have survived beyond 15 - 20 minutes after the fatal attack.
31. I have carefully gone through the evidence of PW3, PW4, PW9 to PW11, PW14, PW15 and PW17. It is important to note that PW3, PW4, PW9 and PW10 during the course of their evidence, have clearly identified A1 and A3 and they also depose about overt act attributed by absconded A2. More so, these witnesses categorically depose that it is the A1 who stabbed the victim Basavaraj while A3 and absconded A2 were held him.
32. According to prosecution, very incident alleged to have taken place at about 10.30PM on 24.8.2013. Learned counsel for A1 and A3 vehemently argued that since the alleged incident taken place during dark hours at about 10.30PM, certainly, it was 42 S.C.No.317/2014 impossible for PW3, PW4, PW9 and PW10, to identify the assailants that who alleged to have been stabbed the deceased by means of M.O.3. He further argued that to properly identify A1 and A3, I.O has not at all conducted Test Identification Parade (in short TIP), though it is mandatory under law. He vehemently argued that admittedly A1 and A3 were not familiar to PW3, PW4, PW9 and PW10. To strengthen the contention, learned counsel has drawn the attention of the court to a judgment reported in (2016) 3 SCC 325
- Noorahammad and ors V/s State of Karnataka.
33. Learned counsel for A1 by relying the principles laid down in the said case law, strenuously argued that since A1 to A3 were not familiar to PW3, PW4, PW9 and PW10 and that apart, the alleged incident alleged to have taken place during dark hours at about 10.30PM, certainly, the I.O should have 43 S.C.No.317/2014 conducted TIP of accused through the Executive Magistrate. However, no TIP of A1 to A3 conducted in this case. On the other hand, while A1 to A3 were in police custody, I.O said to have been shown them to the above witnesses, stating that A1 to A3 have committed the offences alleged. Therefore, learned counsel would contend that PW3, PW4, PW9 and PW10 being the direct witnesses i have not at all identified of A1 to A3 and hence, l prosecution has failed to prove the identity of A1 to A3 and therefore, A1 and A3 cannot be connected to the guilt circumstances.
34. Per contra, learned PP would submit that on the said day though the alleged incident took at about 10.30PM, which was took place on a public road, within the limits of Rajagopala Nagara PS. Hence, this court can draw the inference that there was street light at the scene of offence, since the very incident took place 44 S.C.No.317/2014 on the main road and therefore, it is very easy to identify A1 to A3 by PW3, PW4, PW9 and PW10. That part PW3, PW4, PW9 and PW10 are the direct witnesses to the alleged incident and hence, question of conducting TIP by the I.O was not warranted and hence I.O has not conducted TIP of A1 to A3. She vehemently argued that since PW3, PW4, PW9 and PW10 identified A1 and A3, which is sufficient to hold that A1 and A3 along with absconded A2 have committed the offences alleged. Learned PP also argued that when the direct witnesses clearly identifies A1 and A3, certainly conducting of TIP of A1 and A3 was unnecessary, though A1 and A3 were not familiar to these witnesses. She also argued that in the cross examination of PW3, PW4, PW9 and PW10, nothing much contrary elicited from their mouth to disbelieve their evidence. Hence, learned PP would submit that evdinece of PW3, PW4, PW9 and PW10, itself sufficient to hold that they 45 S.C.No.317/2014 properly identified A1 and A3 at the material point of time of incident.
35. I have carefully gone through the rival contention. In my view, assuming that very incident took place at about 10.30PM, at the same time, PW3, PW4, PW9 and PW10 categorically depose before the court that they identified A1 and A3 at the material point of time of incident. In my view, since the case of prosecution based on direct evidence, certainly there is no necessity of conducting TIP. More importantly contents of Ex.P.1 i.e spot mahazar clearly disclose that scene of offence is not a remote place. Suffice it to say, scene of offence also comes within the limits of BBMP. Therefore, certainly, it is to be presumed that there was street light at the scene of offence. It is also pertinent to note that during the course of evidence of PW3, PW4, PW9 and PW10, it is not suggested to them 46 S.C.No.317/2014 that there was no street light at the scene of offence. Hence, in the above circumstances I am of the considered view that certainly, evidence of PW3, PW4, PW9 and PW10, which are prima facie sufficient to hold that they identified A1, A3 and absconded A2 at the material point of time of incident. Therefore, I am of the considered view that contention of learned counsel for A1 and A3 that prosecution has failed to prove that PW3, PW4, PW9 and PW10 have identified A1 and A3, which cannot be acceptable at all. Hence for the above reasons, I am not relying the above case law to the case on hand, as the facts and circumstances come out in the said case law are not squarely applicable to the case on hand.
36. During the course of argument learned PP strenuously argued that prosecution has proved the recovery of M.O.3 at the instance of A1 under Ex.P.4 in 47 S.C.No.317/2014 the presence of panchas. In this regard, I have already come to the conclusion that prosecution has proved the recovery of M.O.3 at the instance of A1, as per u/Sec.27 of Evidence Act. It is important to note that M.O.3, M.O.4(a) to M.O.8 were scientifically examined by PW14 and he found 'AB' human blood stains over M.O.3, M.O.4(a) to M.o.8. That apart, bloodstains which were mound in M.O.4(a) to M.O.8 were corresponding to the bloodstains found in M.O.3. Therefore, learned PP further argued that PW14 the Doctor who conducted P.M on the dead body also come to the conclusion that stab injuries found over the person of deceased, were the resultant of stab by means of M.O.3. That apart, those injuries were not self inflicted nor accidental one. That apart he opines that those injuries were homicidal in nature, caused by a light single sharp cutting edged pointed weapon. It is important to note that M.O.3 is a single sharp edged 48 S.C.No.317/2014 pointed knife. In this regard, PW14 clearly opines that injuries found over the person of deceased, could be caused by means of M.O.3. Added to this, PW14 also deposes that while he examining the dead body of deceased, he found M.O.4(a) to M.O.8 showed linear tear and presence of bloodstains. Learned PP argued that prosecution has placed prima facie evidence on record to hold that death of deceased Basavaraj was due to stab by means of M.O.3 by A1, while deceased was held by A3 and absconded A2. Learned PP also argued that bloodstains which were found over M.O.3, M.O.4(a) to M.O.8 are that of deceased, which are not disputed by A1 and A3. Therefore, learned PP would contend that M.o.3 has been used by A1 to stab deceased Basavaraju.
37. During the course of argument, learned counsel for A1 and A3 would submit that prosecution has failed to prove that A1 and A3 had motive to 49 S.C.No.317/2014 murder deceased Basavaraju. Therefore, learned counsel would submit that A1 and A3 are entitled for an acquittal, since prosecution has failed to prove the guilt of A1 and A3 beyond all reasonable doubt.
38. Per contra, learned PP would submit that proving motive of A1 to A3 behind the crime, is of no consequence, since the prosecution has established that the very crime pertains to this case, based on direct evidence of PW3, PW4, PW9 and PW10. To strengthen the contention, she has drawn the attention of the court to a judgment reported in (2017) I SCC (Cri) 206 - Saddik @ Lalo Gulam Hussein Shaikh V/s State of Gujarat.
39. I have carefully gone through the ratio laid down in the said judgment. In my view, when the prosecution placed direct evidence to connect guilt of accused persons, absence of motive is of no 50 S.C.No.317/2014 consequence and places into insignificance. In the present case on hand, prosecution has relied direct evidence of PW3, PW4, PW9 and PW10 to connect the guilt of A1 and A3. As I already come to the conclusion that PW3, PW4, PW9 and PW10 have clearly identified that A1 to A3 have committed the crime. Therefore, in my view, in view of ratio laid down in the above judgment, certainly contention learned counsel for A1 and A3 that prosecution has failed to prove that A1 and A3 had motive to commit murder the deceased Basavaraj, cannot be acceptable at all. Hence, I rely the above judgment in support of contention of prosecution. Therefore, in my view, in view of ratio laid down in the above judgment, certainly judgment relied by the learned counsel for A1, reported in 2016(2) KCCR 1175(DB), The state of Karnataka by Nyamathi police station, Nyamathi v/s Kantaraj, is not at all applicable to the case on hand. 51 S.C.No.317/2014 Suffice it to say, ratio laid down in the said judgment is not squarely applicable to the case on hand, since the present case at hand, mainly based on direct evidence as well as recovery of M.O.3 under Ex.P.4. On the other hand, case referred above by learned counsel, which is based on purely circumstantial evidence. Hence, I am of the considered view that principles laid down in the said judgment, is not squarely applicable to the case on hand, since in the present case on hand, proving of motive does not play much role in view of the fact that prosecution has placed enough direct evidence on record. During the course of argument learned counsel for A1 has also drawn the attention of the court to a judgment report in 2016(1) SCC 550 Nizam and anr V/s State of Rajasthan. I have carefully gone through the ratio laid down in the said judgment. In my view, principle laid down in the said judgment is not applicable to the case on hand, since in 52 S.C.No.317/2014 the present case at hand is based on direct evidence and however, above case law based on circumstantial evdinece. No doubt, it is settled principles of law that when the case of prosecution is based on circumstantial evidence, then prosecution has to prove each chain of circumstances and if any one of the circumstances missing, then case of prosecution is to viewed with suspicion. In the present case at hand, prosecution by placing cogent direct evidence, has satisfied this court that A1, A3 and absconded A2 with their common intention have committed the offences, since A3 and absconded A2 while holding deceased Basavaraj at the material point of time, A1 has stabbed below the left side chest by means of M.O.3 and as a result he succumbed to the injuries. In the above circumstances very case laws relied by A1 is not applicable to the case on hand. Hence, I am not rely the above case law to the case at hand. Learned counsel for A1 has drawn 53 S.C.No.317/2014 the attention of the court to another judgment reported in AIR 1989 SC 1519 - State of UP V/s Madan Mohan and ors.
40. I have carefully gone through the above case law, wherein Hon'ble Apex court held that when the presence of eyewitnesses at the scene of occurrence found doubtful, in such event no independent witnesses from the locality are examined and that apart no explanation offered by prosecution regarding injury on the person of one of the accused, then the case of the prosecution is to be viewed with suspicion. In my view, this case law is not applicable to the case on hand, since in the present case at hand, prosecution by examining PW3, PW4, PW9 and PW10, has proved that it is A1, A3 and absconded A2 with their common intention have murdered deceased Basavaraj. Therefore, without any hesitation, I rely the evidence of 54 S.C.No.317/2014 PW3, PW4, PW9 and PW10 to hold that it is A1, A3 and absconded A2 have committed the offences alleged. More so, evidence of PW3, PW4, PW9 and PW10 disclose that at the material point of time of incident, except themselves, deceased Basavaraj and A1 to A3, no other persons present at the scene of offence. Suffice it to say, very incident took place at about 10.30PM. Hence, generally in such odd hours moving of people at the scene of offence, would be rare. Hence, question of holding that petitioner has not examined any independent witnesses do not arise at all. Therefore, I am not relying the above case law.
41. During the course of argument learned counsel for A3 would submit that I.O has falsely implicated A3, even though A3 has not committed the offences alleged. He further argued that absolutely there is no evidence placed by the prosecution about 55 S.C.No.317/2014 his arrest and interrogation by the I.O. He further argued that it is only during the course of trial PW3, PW4, PW9 and PW10 have identified A3. However, prosecution has not placed any iota of evidence as against A3 that after alleged arrest of A3, PW3, PW4, PW9 and PW10 have identified him. Hence, learned counsel submits that A3 cannot be connected to the guilt circumstances.
42. Per contra, learned PP would submit that in this case PW17 had conducted major part of investigation and then he handed over the case file to his successor in office, CW25 M.K.Ganapathi PI, in connection with further investigation of this case. She further argued that CW25 after receiving the case file, has conducted further investigation and then by concluding the investigation has submitted final report to the court. However, CW25 is dead. She also argued 56 S.C.No.317/2014 that CW25 after receiving the case file from PW17, took custody of A3 under Body Warrant as A3 was in judicial custody in some other case and then A3 has been secured in this case before the court. Hence, learned PP would submit that the materials placed on record, which are prima facie sufficient to implicate A3 and that apart, PW3, PW4, PW9 and PW10 have identified A3 during the course of their evidence. In my view, certainly, evidence of PW3, PW4, PW9 and PW10, which clearly discloses that A3 has actively participated in the crime. Hence, I am of the considered view that he cannot escape from the clutches of law. It is also pertinent ton note that in view of the death of CW25 M.K.Ganapathi, the other I.O in this case, prosecution unable to place evidence before the court as to the arrest of A3 by CW25. Therefore, I am of the considered view that A3 cannot take advantage of the same. Hence, in view of my above discussion, certainly, 57 S.C.No.317/2014 whatever the argument addressed by the learned counsel for A3, will not helpful to the defense of A3.
43. Viewed from angle, I am of the considered view that certainly, evidence placed by the prosecution as discussed above, which are prima facie sufficient to hold that A1, A3 and absconded A2 with their common intention have committed the murder of deceased Basavaraj, though there was no provocation from the deceased nor there exists enmity between A1 to A3 and deceased. Prosecution by placing direct evidence, coupled with circumstantial evdinece i.e. recovery of M.O.3, has proved the guilt of A1 and A3 beyond all reasonable doubt. For the foregoing reasons, I answer the above point in the "Affirmative".
44. POINT NO.3 : It is the case of prosecution that A1 after stabbing deceased Basavaraj, absconded A2 robbed cell phone at M.O.4 from the possession of 58 S.C.No.317/2014 deceased and then A1 to A3 ran away from the scene of offence and thereby A1, A3 and absconded A2, with their common intention have also committed an offence p/u/Sec.392 r/w Sec.34 of IPC. It is the case of prosecution that under Ex.P.8, M.O.4 has been seized by PW17 at the instance of absconded A2, as he led the I.O and panchas to the place of alleged recovery of M.O.4. On going through the contents of Ex.P.8, it appears that PW5 Yellappa Attigeri, PW6 Kiran Kumar and PW7 Somappa are the attesters to Ex.P.8. According to prosecution absconded A2 given his voluntary statement at Ex.P.16 before PW17 and then, absconded A2 has led PW17 and panchas PW5 to PW7 to the place of recovery of M.o.4. Contents of Ex.P.8 disclose that PW17 being the I.O said to have been seized M.O.4 at a vacant house site nearby Sun Manufacturing solution factory, 11th Main road, No.151, Peenya Industrial estate, within the limits of Rajagopala 59 S.C.No.317/2014 Nagara police station. PW5 to PW7 depose that A2 has led them and PW17 to the place of recovery of M.O.4. PW17 being I.O in this case deposes that he has recovered M.O.4 under Ex.P.8 at the instance of absconded A2, in the presence of PW5 to PW7 at a vacant site near Sun Manufacturing solutions factory. During the course of evidence PW5 to PW7 as well as PW17 identifies M.O.4. It is important to note that PW5 deposes that while he has seen M.O.4, it was not found with its SIM Card. PW5 in his cross examination denies the suggestion that he has witnessed M.O.4 for the first time before the court and M.O.4 was not belonged to deceased Basavaraj. PW6 in his cross examination deposes that he do not know whether there was SIM card found inserted to M.O.4 at the time of scene of offence. However, PW6 denies the suggestion that M.O.4 was not at all seized at the instance of absconded A2. PW7 in his cross 60 S.C.No.317/2014 examination denies the suggestion that A1 and absconded A2 were not at all present at the time of drawing of mahazar at Ex.P.8. PW17 being the I.O in this case deposes that he has seized M.O.4 under Ex.P.8 in the presence of panchas as he recovered M.O.4 at the instance of A2 and he has given voluntary statement at Ex.P.16. PW17 in his cross examination admits the suggestion that while he seized M.O.4, it was found inserted with SIM card. PW17 in his cross examination admits the suggestion that M.O.4 is not found with SIM Card, however, PW17 denies the suggestion that he has not at all seized M.O.4 under Ex.P.8 , as he cooked up Ex.P.8 at the police station for the purpose of this case. It is important to note that at Ex.P.8 the IMEI No. of the said cell phone is mentioned as 864056010939012 and IMEI 864056010939020. However, to corroborate the contention of prosecution that the said cell phone at M.O.4 belonged to deceased 61 S.C.No.317/2014 Basavaraj is concerned, absolutely prosecution has not placed any iota of documentary evidence. Suffice it to say, evidence of PW17 discloses that while he seized M.O.4, it was found with its SIM card. However, during the course of evidence, PW17 categorically admits that M.O.4 is now not found with SIM card. In my view, without placing any relevant documentary evidence to hold that deceased was the registered customer of the about the M.O.4, certainly, it cannot be held that cell phone at M.O.4, belonged deceased Basavaraj. In my view, when the prosecution has failed to place any iota of documentary evidence to show that SIM Nos as well as said cell phone belonged to deceased Basavaraj, whatever the contention of prosecution that said cell phone at M.O.4, belonged to deceased, which cannot be acceptable at all. Therefore, under such circumstances whatever the case of prosecution that PW17 has seized M.O.4 under Ex.P8 on the basis of 62 S.C.No.317/2014 voluntary statement at Ex.P.16 said to have been given by absconded A2, which cannot be believed at all. Hence, I hold that prosecution has failed prove that A1, A3 and absconded A2 with their common intention, have committed robbery of M.O.4 from deceased Basavaraju. In the circumstances, I need discuss much about this point, since the prosecution has failed to establish that M.O.4 has been robbed by A1, A3 and absconded A2. Prosecution has filed to prove that A1, A3 and absconded A2 with their common intention have robbed M.O.4 from the possession of deceased Basavaraj, by placing convincing and cogent evidence. More so, prosecution has failed to prove that M.O.4 belonged to deceased. Hence, under such circumstances, very contention of prosecution that A1, A3 and absconded A2 with their common intention have committed robbery of M.O.4 is to be viewed with 63 S.C.No.317/2014 suspicion. For the foregoing reasons, I answer the point No.3 in the "Negative".
45. POINT NO.4 : By answering point No.1, I have come to the conclusion that death of deceased Basavaraj was homicidal death. Further by answering point No.2, I have come to the conclusion that A1, A3 and absconded A2 with their common intention have committed the murder of deceased Basavaraj. However, by answering point No.3, I have come to the conclusion that prosecution has failed to prove that A1, A3 and absconded A2 with their common intention, have committed robbery of M.O.4, from the possession of deceased Basavaraj. Hence, in the above circumstances, A1 and A3 are to be convicted for an offence p/u/Sec.302 r/w Sec.34 of IPC and to be acquitted for an offence p/u/Sec.392 r/w Sec.34 of IPC. In the result, I proceed to pass the following : 64 S.C.No.317/2014
ORDER Acting u/Sec.235(2) of Cr.P.C., A1 and A3 are convicted of an offence p/u/Sec.302 r/w Sec.34 of IPC.
Acting u/Sec.235(1) of Cr.P.C A1 and A3 are acquitted of an offence p/u/Sec.392 r/w Sec.34 of IPC.
Bail Bond of A3 and his Surety Bond stands cancelled.
Note:- Office is hereby directed to
preserve the entire records with M.O.1 to
M.O.8, in connection with the split up case registered against A2.
To hear regarding sentence.
*** (Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 7th day of April, 2017) (N.R.CHENNAKESHAVA) LXV Addl.City Civil and Sessions Judge, *ic BANGALORE.65 S.C.No.317/2014
Heard A1 and A3 and learned PP regarding imposition of sentence.
ORDER REGARDING SENTENCE Learned PP for prosecution would submit that A1 and A3 along with absconded A2, have committed heinous crime, by committing murder of deceased Basavaraju, which is very grave offence and therefore, learned PP prays this court to impose maximum punishment as provided u/Sec.302 of IPC.
2. Per contra, A1 submits that he is the only bread earner in his family and he has to look after his aged parents and younger sister. A1 also submits that he is under trial prisoner since more than 3 ½ years, he economically poor and there are nobody to look after his aged parents and sister and that apart, he is now aged 25 years and hence, he prays this court to impose minimum sentence and not to impose fine on him.66 S.C.No.317/2014
2. A3 submits that he is having wife and 3 year old daughter and he has to maintain his parents as well as wife and child, who are depending on him and that apart he is economically poor and he is now aged about 25 years. Therefore, A3 prays this court to impose minimum sentence and not to impose fine on him.
3. I have carefully gone through the respective submissions. It is important to note that, offence u/Sec.302 of IPC, is punishable with death or imprisonment for life and shall also be liable to fine.
Though the maximum punishment u/Sec.302 of IPC, is death penalty, in the present case on hand, in view of facts and circumstances of the case, it is not proper to impose death penalty on A1 and A3 and hence, having regard to the economic conditions, social background and considering age of A1 and A3, I am of the considered view that if A1 and A3 are sentenced to undergo imprisonment for life with fine, it would met 67 S.C.No.317/2014 the ends of justice. In my view, if A1 and A3 are sentenced to undergo imprisonment for life and with fine of Rs.50,000/- each, it would met the ends of justice. In the result, I proceed to pass the following:
ORDER Acting under Sec.235(2) of Cr.P.C., A1 and A3 are convicted for an offence p/u/Sec. 302 r/w Sec.34 of IPC A1 and A3 shall undergo imprisonment for life and shall pay fine amount of Rs.50,000/- each (Rupees Fifty thousand only/-).
NOTE: Deliver the copy of judgment to A1 and A3 forthwith.
Issue Warrant of commitment on sentence, accordingly.
(N.R.CHENNAKESHAVA) LXV Addl.City Civil and Sessions Judge, *ic BANGALORE.68 S.C.No.317/2014
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW-1 G.Venkateshappa PW-2 Chethan Raj PW-3 N.A.Nagaraju PW-4 Mehaboob Ali PW-5 Yellappa Attigeri PW-6 Kiran Kumar PW-7 Somappa PW-8 Sridhar.V PW-9 R.K.Basavaraju PW-10 Ramesh PW-11 Siddappa PW-12 Mallikarjuna PW-13 Guddappa PW-14 Dr.Dinesh Rao PW-15 Dr.Chandrasheker PW-16 K.Manju PW-17 B.Vijaya Kumar LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Mahazar Ex.P.2 Photos of deceased Ex.P.3 Statement of PW1 Ex.P.4 Seizure Mahazar Ex.P.5 Complaint Ex.P.6 & 7 Photos of deceased Ex.P.8 Seizure Mahazar Ex.P.9 Statement of PW11 Ex.P.10 Notice to Pancha 69 S.C.No.317/2014 Ex.P.11 Inquest Mahazar Ex.P.12 P.M. Report Ex.P.13 FSL Report Ex.P.14 FIR Ex.P.15 Voluntary statement of A1 Ex.P.16 Voluntary statement of A2 Ex.P.17 Further Voluntary statement of A1 Ex.P.18 Further Voluntary statement of A2 LIST OF MATERIAL OBJECTS MARKED MO-1 Blood stained Soil MO-2 Sample soil MO-3 Button Knife MO-4 Mobile Phone MO-4(a) Banian (half) MO-5 Maroon underwear MO-6 Black pant with stripes MO-7 Yellow towel MO-8 Shirt LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(N.R.CHENNAKESHAVA) LXV ADDL CITY CIVIL & SESSIONS JUDGE, BANGALORE *ic 70 S.C.No.317/2014 Judgment pronounced in open court, vide separately, ORDER Acting u/Sec.235(2) of Cr.P.C., A1 and A3 are convicted of an offence p/u/Sec.302 r/w Sec.34 of IPC.
Acting u/Sec.235(1) of Cr.P.C A1 and A3 are acquitted of an offence p/u/Sec.392 r/w Sec.34 of IPC.
Bail Bond of A3 and his Surety Bond stands cancelled.
Note:- Office is hereby directed to preserve the entire records with M.O.1 to
M.O.8, in connection with the split up case registered against A2.
To hear regarding sentence.
(N.R.CHENNAKESHAVA ) LXV ADDL CITY CIVIL & SESSIONS JUDGE, BANGALORE 71 S.C.No.317/2014 ORDER ON SENTENCE Acting under Sec.235(2) of Cr.P.C., A1 and A3 are convicted for an offence p/u/Sec. 302 r/w Sec.34 of IPC A1 and A3 shall undergo imprisonment for life and shall pay fine amount of Rs.50,000/-
each (Rupees Fifty thousand only/-).
NOTE: Deliver the copy of judgment to A1 and A3 forthwith.
Issue Warrant of commitment on
sentence, accordingly.
(N.R.CHENNAKESHAVA )
LXV ADDL CITY CIVIL & SESSIONS JUDGE,
BANGALORE
72 S.C.No.317/2014