Bangalore District Court
State Of Karnataka vs A2. Lokesh S/O Nagaraj on 31 January, 2020
1
SC No. 979/2010
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-70)
Dated this the 31st day of January, 2020
Present: Sri. Gururaj Somakkalavar, M.A., LL.B.,
LXIX Addl. City Civil and Sessions Judge,
Bengaluru.
SESSIONS CASE No.979/2010
Complainant : State of Karnataka
By Basavanagudi layout P.S.
(By Learned Public Prosecutor )
-V/S-
Accused; A2. Lokesh S/o Nagaraj,
30 years, No. 2 BWSSB Quarters,
Mount Joy Extension,
4th main, 4th cross,
Hanumanthanagar,
Bangalore 50.
1 Date of commission of offence; 6.1.2007
2 Date of report of occurrence 6.1.2007
3 Name of complainant; Shobha
4 Date of commencement of 2.2.2011
evidence
5 Date of closing of evidence 24.2.2011
6 Offence complained of U/Sec. 302 of IPC
7 Opinion of the Judge Charge not proved
: JUDGMENT :
The Police Sub Inspector of Basavanagudi Police Station, Bengaluru has submitted the charge-sheet in Cr. No. 181/2007 against the 2 SC No. 979/2010 accused. As per the order passed in SC No. 392/2008 this split up case is registered against A2 Lokesh for the offence punishable under Section 302 of IPC.
2. The present case is unusual wherein it is very much necessary to explain what has transpired during the trial of the original case i.e., S.C. No. 392/2008. The development in SC 392/2008 led to filing of these present 2 cases i.e. SC. No. 979/2010 and SC No.600/2011. Hence before entering into discuss the merits of the case, it is very much necessary to go through the developments in SC. No.392/2008 and subsequently in S.C.No. 979/2010 and SC No. 600/2011.
3. The Basavanagudi Police registered crime No.181/2007 against accused no.1 Ganesh for the offence punishable u/sec 302 of IPC and investigation was completed and charge sheet filed in that case, wherein the present accused was cited as a charge sheet witness No. 13 since he was present on the date of the incident. During the investigation he was taken before Magistrate for recording of statement u/sec 164 of Cr P.C and the said CW.13 I.e. present accused gave statement u/sec 164 of Cr P.C before Magistrate. Subsequently the trial was continued in SC 392/2008. The present accused who was CW.13 in that case was examined on 20.04.2010 as CW.13/PW.21. During the evidence the P.P treated him hostile as he turned to his statement U/sec 164 of CRPC and on 24.05.2010 the prosecution files application u/sec 308 of Cr. PC. On 15.06.2010 the court passed order and allowed IA filed by prosecution U/Sec 308 of Cr.P.C. and CW.13/PW.21 Lokesh i.e., present accused is considered as accused in that case and directed police to file separate charge sheet against the present accused as approver and directed that he has to be tried separately. Subsequently the summons was issued by Magistrate who has recorded the statement of CW13/PW.21 and on 3 SC No. 979/2010 29.06.2010 the 3rd ACMM examined Lokesh. Subsequently the accused No.1 Ganesh in SC No. 392/2008 was convicted.
4. As per the direction of the court on 19.08.2010 the Basavanagudi PS filed split up charge sheet against present accused who was CW13/PW21 in SC No. 392/2008. for the offense punishable u/sec 302 of IPC. In this case the present accused was arrested and he was in custody for almost one year. Subsequently as per the order on Hon'ble High Court of Karnataka in Crl Petition No. 3093/2011 dated 08.07.2011, he was released on bail 21.07.2011. After filing of the charge sheet 5 witnesses were examined in this case and Ex.P.1 to P.4 were marked and subsequently on 24.03.2011 since the charge sheet in the case filed directly before the Sessions Court, the court ordered to return charge sheet and directed to file through committal court. Subsequently in this case trial proceedings continued and by the time on 06.06.2011 another charge sheet is filed for the offence u/sec 302, 114, 193 of IPC and same was committed to this court. By the time in SC No.979/2010 it was brought before the court that 2 cases were filed on the same crime no. Subsequently on 17.10.2011 the accused filed application u/sec 227 of Cr.PC for his discharge in SC No.979/2010 and the matter went up for hearing on the application and this court passed order on 08.12.2015 to put up original file in SC. No. 392/2008 on the file of FTC. 15 to consider the application under sec 27 of Cr.PC.
5. In SC No. 600/2011 on 19.07.2011 a memo is file to club SC 979/2010 with SC No. 600/2011. Subsequently both the matters heard simultaneously and the accused filed application u/sec 227 of CRPC on 16.01.2013 for the discharge. Subsequently the matter was posted for objection on the the said application. In the mean time during the proceedings of the both the matter the accused filed Criminal Petition 4 SC No. 979/2010 No. 8386/2016 and Criminal Petition No. 8387/2016 before Hon'ble High Court of Katakana and matter is pending for adjudication. In spite of sufficient opportunity provided, the status in those criminal petitions is not reported, hence the matters were posted for final disposal. That in the state of affairs in the present case. Now since the matters were taken up for disposal, it has to be discussed whether prosecution was able to prove the guilt of the present accused which were alleged against him.
6. In SC .No. 979/2010 this court framed the charge on material place before it on 07.01.2011 for the offence punishable u/sec 302 of IPC. The accused pleaded not guilty and claims to be tried.
7. The case of the prosecution in brief is as follows:-
That on 6.1.2007 at about 2.45 pm when deceased Mahadev was talking with CW. 1,6,14 and others at house No. 36, in front of ING Vysya Bank, Subramanyashetty road, within the limits of Basavanagudi P.S. and at that time, A2 and A1 came in a scooter with common intention and A1 told Mahadev that many complaints are against him and then he tried to take mobile from the pocket of Mahadev and when the deceased refused to give the mobile, suddenly over previous ill-will, A1 removed the knife and intentionally did commit murder by assaulting with the said knife to his chest, left ear, left eye and thumb causing grievous injuries. Accordingly CW. 1 who is the wife of Mahadeva lodged complaint and criminal case came to be registered.
8. The Prosecution in all cited 29 witnesses, but examined only 5 witnesses as PW.1 to 5 and got marked 4 documents exhibited as Ex.P1 to 4 and 10 Mos. After the recording of the 5 witnesses the matter was posted to hear on application u/sec 227 of Cr.P.C. Subsequently since there is no further evidence on prosecution side the statement of the 5 SC No. 979/2010 accused U/sec. 313 of Cr.P.C. is recorded. The accused denied the evidence adduced against him, but not chosen to lead any evidence.
9. This Court has heard the arguments of both sides and perused records carefully.
10. In the light of above materials and allegation of prosecution, following points arises for my consideration:-
1. Whether the prosecution proves beyond all reasonable doubt that on 6.1.2007 at about 2.45 pm A1 and A2 came through scooter and A1 assaulted Mahadeva with knife on his chest, left ear, left eye and thumb causing grievous injuries and committed his murder and thereby committed an offence punishable under section 120(B) r/w 149 of IPC?
2. What order?
7. My findings to the above points are as follows:-
Point No.1 :- In the negative Point No.2:- As per final order, for the following:-
: REAS O NS :
11. POINT NO.1 :- The prosecution has examined 5 witnesses. PW.1 is the wife of deceased Mahadeva, PW. 2 is the Police Inspector, PW. 3 is the Professor of KIMS Hospital who conducted the PM examination, PW. 4 is the complainant and PW. 5 is the Asst. Director of FSL who examined the articles.
12. PW. 1 and 4 have turned hostile, as stated above PW. 2,3 and 5 are the official witnesses. PW. 1 is the complainant and the wife of deceased. She deposed that she saw the photo of accused Lokesh in the Newspaper and her husband was working as driver and he is no more and he was murdered, but she does not know the reason for murder and 6 SC No. 979/2010 she had not inquired about the murderer and on the date of incident one Narasingrao informed him about the murder near tempo stand and he was shifted to Shekhar hospital and hence she gone to hospital and saw the injuries near eyes, ears, chest and the police have arrested Ganesh and hence she gave statement to the police and when she had been to hospital her husband was dead and she gave statement at the time of inquest.
13. PW. 2 the PI has deposed that as per the orders of his superiors, on 7.8.2010 he submitted the split up charge against the accused Lokesh since the original charge sheet is filed against the accused Ganesh. In the cross-examination he deposed that before submitting the charge sheet he has not recorded the statement of the witnesses and has not conducted TIP and he denied the suggestion that inspite of the fact that there is no material to file the charge sheet against the accused, he filed a false charge sheet.
14. PW. 3 is the Professor of KIMS Hospital and he has deposed that on 7.11.2007 he conducted the PM examination and found that deceased was aged about 35 years and he found injuries on left ear, on head, injury on frontal bone, injury in face, on chest and on dissection found contused over left frontal region, stab wound, upper lobe of right lung adherent to chest wall, left lungs stab wound described, collapsed and pale, stab wound at heart, liver. He opined that death was due to shock and haemorrhage as a result of injuries sustained. He further deposed that he gave his opinion that the said injuries may cause with weapon. The PM report is marked as Ex.P.1, he examined MO. 6 and 10. In the cross-examination he deposed in the requisition the police have stated the name of assailant as Ganesh and another, but he has not mentioned the names of assailants in PM report.
7SC No. 979/2010
15. PW 4 the first informer has deposed that he filed complaint as per Ex.P.2, Ex.P.2(a) is his signature and he put his signature at P.S. and he do not know the contents of the complaint and the police have stated that one Mahadev is murdered. He has not identified the accused before the court. He further deposed that he know Mahadev and Mahadev used to stay in their tempo stand at NR colony. He turned hostile. In the cross-examination he denied the suggestion that he know the contents of Ex.P.1, but he is deposing falsely, he denied the suggestion that when he, Ajithkumar, Veeraswamy, Govardhan, Vajrappa, Subramani, Ramesh were in the tempo stand the accused Lokesh and another accused came in scooter and accused Ganesh stabbed to Mahadev on left eye, left ear, chest and caused injuries and in this regard he gave statement before the police. Though PP cross-examined the said witness, nothing is elicited in support of the case of the prosecution.
16. PW. 5 the Asst. Director of FSL has deposed that he examined 9 items and gave his opinion as per Ex.P.3, he opined that item No. 1,3,6 to 9 and 10(1) contain the human blood and blood found on item No. 4 and 10(2) was not sufficient for serology examination and the blood found on item No. 6 to 9 and 10(1) is the human blood of `A` group. The said items are marked as MO. 1 and 6 to 10. This witness has not been cross examined by the counsel for the accused.
17. In the light of the above evidence and the development in the present case as discussed above it is necessary to discuss that whether the present accused is to be held guilty for the offence punishable u/sec 302 of IPC. The present section under which the charge sheet is filed is one of the heinous affence which is punishable with life imprisonment of death punishment. If the charge sheet material and the evidence is looked 8 SC No. 979/2010 into and also the development in the case is observed whether the present accused is to be held guilty for the heinous punishable u/sec 302 of IPC. In the light of the above discussion let us see whether the prosecution is able to prove the guilt against the present accused. As discussed earlier the development in this case has led to filing of the 2 separate charge sheets one under the present case i.e. SC No. 979/2010 and another in SC. No. 600/2011. In the present case the charge sheet filed for the offence u/se 302 of IPC and charges were framed under the same sections.
18. The case of prosecution is that on 6.1.2007 at about 2.45 pm when deceased Mahadev was talking with CW. 1,6,14 and others at house No. 36, in front of ING Vysya Bank, Subramanyashetty road, within the limits of Basavanagudi P.S. and at that time, the present accused and accused in SC. No. 392/2008 came in a scooter and Accused Ganesh in SC 392/2008 told Mahadev that many complaints are against him and then he tried to take mobile from the pocket of Mahadev and when the deceased refused to give the mobile, suddenly over previous ill-will, Accused Ganesh in SC No. 392/2008 removed the knife and intentionally did commit murder by assaulting with the said knife to his chest, left ear, left eye and thumb causing grievous injuries. Accordingly CW. 1 who is the wife of Mahadeva lodged complaint and criminal case came to be registered.
19. The present accused was cited as CW13 in that case in SC 392/2008. On perusal of the entire material nowhere it is stated that the present accused is approver and there is no approver procedure is conducted. The present accused who is CW13/PW21 in SC. No. 392/2008 who is cited as witness, during the investigation he was taken to 9 SC No. 979/2010 magistrate for recording statement under 164 of Cr.P.C and on 23.11.2007 his statement under sec 164 Cr.P.C was recorded by 3 rd ACMM Bangalore, wherein the present accused has given statement on 06.11.2007 that he went to Srinivas nagar circle to purchase mutton along with child of his sister and he know the accused No.1 i.e. Ganesh from 2 years the said Ganesh came to him and requested to give him droop to Natakallappa Circle, to which he refused but since Ganesh insisted to drop him and also threatened him by showing knife, later he took the child of his sister along with said Ganesh in his scooter to house and after living the child in the house, he took Ganesh towards Natakallappa circle. The said Ganesh get down from and Natakallappa circle and walk down near tempo stand. The said Ganesh took quarrel with one of them and he further stated regarding the incident took place on that day. Subsequently the said Ganesh came to him and asked to take from the spot immediately in his scooter. When the present accused refused the said Ganesh also assaulted on his right sholder with knife. Later the present accused left the Ganesh at the spot and returned to his home in his scooter. The said Ganesh might have made Galata against him once again, hence he went to his native for some days. Later he came to know the person to whom Ganesha assaulted as one Mahadev and he died due to injuries. Subsequently after the investigation was completed the charge sheet is filed and the present accused cited as CW.13. On 20.04.2010 the CW13 i.e present accused was examined as PW.21. During the examination the prosecution treated him hostile as he states that he does not know the accused but he admits that he went before Magistrate and he had given a statement. But he states that he does not remember what statements he had given and further states that he never seen the accused in SC No. 392/2008. But he admits the 10 SC No. 979/2010 signature on the statement given before Magistrate. Further he deposed that he does not know when he has signed and further stated that he forget what had written in that document and since he was disturbed at that time he had given statement as stated by police. On these evidence the prosecution treated him hostile and filed application u/sec 308 of Cr.P.C. Subsequently the application is allowed by the court and directed the police to file the separate charge sheet against CW13/PW21 and as per the said direction split up charge sheet is filed against CW13/PW21 for the offence U/sec 302 of IPC. It is relevant to mention that the present accused who is CW13/PW21 was not approver, he was cited as a witness in SC No. 392/2008. It has to be seen that though charge sheet is filed for the offence u/sec 302 of IPC, whether the offence attracts towards present accused. The concerned police has filed the charge sheet which was filed in SC.No. 392/2008. The involvement and the acts attributed towards present accused are not specifically investigated before filing the charge sheet. As stated above the present case is unusual, the same charge sheet which was filed in SC.No. 392/2008 was filed in the present case and the statement of the accused which he had given as witness was also filed in the present case. As discussed earlier firstly the present accused was not an approver, he was cited as a witness and his statement as witness is produced in the present case. The acts and ingredients of the offence attributed to the accused Ganesh in SC No. 392/2008 are not attributed to the present accused, who was only a witness in SC No. 392/2008. However he was turned hostile to his statement for which he cannot be punished for the offence u/sec 302 of IPC. Further if the evidence in the present case is looked into none of the witnesses have stated against the present accused. The PW.1 who is the wife of the said deceased turned hostile and no incriminating evidence 11 SC No. 979/2010 stated against accused. Further the PW.2 who is the official witness who only states that she has filed split up charge-sheet against CW.13. Apart from that none of the witness stated against this accused. Further more the said PW.2 was cross-examined by the counsel for the accused and during the cross-examination the PW.2 deposed that before filing charge- sheet no investigation was conducted and no statement of the witness were recorded and it is also specifically admitted by the PW.2 that no identification parade to identify the present accused was conducted and it is specifically admits that except the documents of the earlier case no other documents were produced in the present case.
20. Further the prosecution examined PW.3 who is the doctor and he has only deposed regarding the postmortem and medical evidence and he was also cross examined by the counsel for the accused and there is no incriminating material against this present accused and the prosecution examined PW.4 who is pancha witness who has also turned hostile and further PW.5 is the FSL officer who only states regarding the materials in SC. No. 392/2008. None of the witnesses have specifically stated the involvement of the accused in committing the crime or any of the act attributed towards this present accused. That being the state of affairs the accused cannot be found guilty for the offence punishable u/sec 302 of IPC. However there is no mention of sec. 34 of IPC to bring guilt of the accused for the offence u/sec 302 of IPC along with the accused Ganesh in SC No. 392/2008 and even on perusal of the charge sheet material and evidence adduced by witnesses, there is no incriminating material against the present accused and the investigation conducted in SC No. 392/2008 also not reveals the specific overt act of the present accused in committal of the crime. It is also relevant here that since the offence is severe in nature, to look into the statement given by the present accused as CW13 12 SC No. 979/2010 in SC No.392/2008 before the Magistrate wherein under which circumstances the accused got entered into the incident is specifically stated in the 164 statement of the accused and the said accused Ganesh threatened him to drop at the spot of incident and take him from that spot. This version of statement before the Magistrate has to be looked into before convicting the present accused for the offence punishable u/sec 302 of IPC wherein he was forced to be present in that spot of incident and he has not voluntarily involved in the incident.
21. Further the contradiction in the statement u/sec 164 of Cr.PC and the statement in evidence will not attract offence u/sec 302 of IPC. Further as stated earlier the present accused is not approver as the procedure u/sec 306 of IPC are not complied with in respect of the present accused during the investigation. His only statement u/sec 164 of Cr.PC is recorded. Considering the line of investigation in respect of the present accused and facts and circumstance of the case and also the evidence available in this present case, the guilty of the accused for the offence punishable u/sec 302 of IPC is not proved and there is no attributing act and also incriminating material against the present accused. The offences alleged in this case are heinous offences. Since no incriminating evidence is recorded, it can be said that the prosecution failed to bring home the guilt of the accused. The basic principles of criminal justice is that the accused should be treated as innocent till the alleged guilt is proved beyond all reasonable doubt and the doubt if any arises, that benefit of doubt is to be given to the accused. Hence as discussed earlier the severity of the offence u/sec 302 of IPC cannot be attributed to the present accused and he deserved to be acquitted for the offence punishable u/sec 302 of IPC. Accordingly these points are answered in negative.
13SC No. 979/2010
22. POINT NO.7:- In the light of finding on above point, this court proceeds to pass the following:-
ORDER In exercise of power vested with this court U/Sec.235(1) of Criminal Procedure Code, it is ordered that accused No. 2 Lokesh is ordered to be acquitted for the offences punishable under Section 302 of IPC.
Accused is set at free for the said offence. Bail bond and surety bond stands cancelled. The seized articles if any are ordered to be destroyed after the appeal period is over.
(Dictated to the JW on computer, corrected and then pronounced by me in the open court on this the 31st day of January, 2020.) (Gururaj Somakkalavar) LXIX Addl.C.C. & Sessions Judge, Bengaluru.
ANN E XU RE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW 1 Shobha
PW 2 Chandrakala
PW 3 Dr.K. Anand
PW 4 Suresh
PW 5 S.K. Krishna Raju
LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 Report
Ex.P.2 Complaint
14
SC No. 979/2010
Ex.P.3 Forensic Report
Ex.P.4 Sample Seal
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO.1 Baku
MO.2 Leather Pouch
MO.3 -
MO.4 Road Tar (without blood stains)
MO.5 Road Tar with blood stains
MO.6 Inner Garment of Deceased
MO.7 Blood stained pant of deceased
MO.8 Blood stained coffee color banian
Mo.9 Blood blue color shirt
MO.10 Pant belt red and black color waist thread
LIST OF WITNESSES EXAMINED & DOCUMENTS EXHIBITED FOR ACCUSED : Nil (Gururaj Somakkalavar) LXIX Addl.C.C. & Sessions Judge, Bengaluru.