Bangalore District Court
The State Of Karnataka vs No.1 : Kanva Charan Naik on 8 February, 2017
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 8th day of February 2017
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
S.C.No. 149/2014
Complainant : The State of Karnataka,
Represented by it's
The Police Inspector & SHO,
MICO Layout Police Station,
Bengaluru - 560 076.
(By Public Prosecutor)
Vs.
Accused No.1 : Kanva Charan Naik,
S/o. Ravindra Naik,
Aged 30 years,
R/a. No.103, Geddalahalli,
RMV 2nd Stage,
Bengaluru.
Accused No.2 : Manoj Kumar Behara @ Babu,
S/o. Gorang Behara,
Aged 27 years,
R/a. No.111/15, Bhovi Colony,
S.G. Palya, Thavarekere Main Road,
Bengaluru.
Accused No.3 : Mahesha,
S/o. Late Chikkegowda,
Aged 32 years,
R/a. No.117, 2nd Cross, 2nd Main,
Floor Mill Road, Ashwathnagar,
Sanjaynagar Main Road,
Bengaluru.
(By Sri M. Partha & Associates,
Advocates)
2 SC No.149/2014
1 Date of commission of offence 04.11.2013/05.11.2013
2 Date of report of offence 07.11.2013
3 Date of arrest of the accused 08.11.2013
4 Date of release of accused on bail 18.02.2014
5 Date of commencement of 09.12.2015
evidence
6 Date of closing of evidence 04.01.2017
7 Name of the complainant Dr. Sumangala C.N.
8 Offences complained of Section 304(II) r/w
Sec.34 IPC.
9 Date of pronouncement of 08.02.2017
judgment
10 Opinion of the Judge Guilt of the accused-
persons not proved
11 Order of Sentence As per final-order
JUDGMENT
This is a charge-sheet filed by the Police Inspector & SHO of MICO Layout Police Station, Bengaluru City, leveling the charges against the above said accused-persons for the commission of the offence punishable U/Sec.304(II) r/w Section 34 of IPC in the committal VI ACMM Court, Bengaluru City, in it's CC No.2424/2014 in connection with the MICO Layout P.S. Cr.No.701/2013.
2. The epitomized facts of the allegations that are leveled against the above said accused-persons in the charge-sheet run thus:
On 04.11.2013 at about 10.00 p.m. in the night, the accused No's.1 to 3 in furtherance of common-intention to teach a lesson to one Babu Dalai, made a criminal-conspiracy within themselves to do an illegal-act of assault knowing-fully-well that it would cause the death of the said Babu Dalai, in connection with 3 SC No.149/2014 the said Babu Dalai often visiting and lastly having visited the house of the accused No.1 in his absence to chat with his (accused No.1) wife on 01.11.2013, in respect of which the accused No.1 having doubted that the said Babu Dalai was having illicit-
relationship with his (accused No.1) wife, went to a room bearing No.111/15, Bhovi Colony, S.G. Palya, Thavarekere Main Road, Bengaluru City, where the said deceased Babu Dalai was residing and the accused No.1 questioning his (Babu Dalai) contact with his (accused No.1) wife Smt. Bhagya, and raised the scramble with the said Babu Dalai and all the accused-persons knowing-fully-well that if they (accused-persons) kick and harp on the stomach of Babu Dalai, then it is likely to cause his death, the accused No.1 forcefully kicked three-times to his (Babu Dalai) stomach and the accused No.2 harped on his (Babu Dalai) stomach and sat, and all the accused No's.1 to 3 together assaulted the said Babu Dalai with their hands and legs, during which time the CW.1 came there-at and pacified, and on the same-day in the midnight at about 12.30, when the said Babu Dalai was suffering from severe stomachache, the accused No's.1 to 3 and CWs.3 & 5 together shifted him to Health India Hospital situated at Thavarekere Main Road, in an auto-rickshaw, fakely stating the doctor to screen themselves having committed the offence and caused to disappear the evidence of the offences committed by them that some unknown-person has assaulted him by snatching-away his mobile-
handset and ran-away there-from and thereby got provided the 4 SC No.149/2014 medical-treatment and brought-back to his residence, but on 05.11.2013 in the early-morning-hours when the said Babu Dalai started suffering from severe stomachache, again his younger-
brother/CW.2 shifted him to Victoria Hospital, Bengaluru, at about 9.30 a.m. in the morning, in an auto-rickshaw, whereby on examining the said Babu Dalai by the doctors, it was declared that Babu Dalai was dead and thereby, the accused-persons committed the offences punishable U/Secs.120(B), 304 (II) & 201 r/w Section 34 of IPC.
3. After filing the charge-sheet, cognizance of the offence punishable U/Secs.304 (II) r/w Section 34 of IPC was taken by VI ACMM Court, Bengaluru City.
In response to the process issued against the accused- persons, they have put-in their appearance before the committal- court, through their learned counsel.
On moving for bail, the accused No's.1 to 3 have been released on bail, as per the order dated 12.02.2014 in Crl. Misc. No.489/2014 of the then FTC - XI, Bengaluru City.
Copies of the charge-sheet and other-documents referred to U/Sec.173 of Cr.P.C. were supplied to the accused-persons by the VI ACMM Court, Bengaluru City, in contemplation with the provisions U/Sec.207 of Cr.P.C. and thereafter committed the case to this court in contemplation with the provisions U/Sec.209 of Cr.P.C.
5 SC No.149/2014
After committing the case to this court by the VI ACMM Court, Bengaluru City, the process were issued to the accused- persons and secured the presence of accused-persons before this court.
After hearing both-sides, charges for the offences punishable U/Secs.120(B), 304 (II) & 201 r/w Section 34 of IPC were framed, and the same were read-over, and explained to the accused-persons in the vernacular best-known to them.
The accused-persons have denied the same and pleaded not guilty and further claimed to be tried.
4. In order to prove the guilt against the accused-persons, the prosecution has adduced the evidence of the witnesses, in all as PWs.1 to 10, and placed it's reliance-on the documents marked at Exs.P.1 to P.17, P.1(a), P.2(a), P.6(a), P.7(a), P.7(b), P.10(a), P11(a), P.12(a), P.13(a), P.14(a), P.15(a), P.16(a) & P.17(a), and the material-objects marked on behalf of the prosecution are at MO No's.1 & 2.
5. After the prosecution's-evidence was closed, as the incriminating circumstances were arising-out of the evidence of the prosecution-witnesses, the statements of the accused-persons under the provisions U/Sec.313 of Cr.P.C., were recorded.
6. I have heard the arguments advanced by both the learned Public Prosecutor for the State as-well-as the learned counsel for the accused-persons.
7. Now, the points that arise for my consideration are: 6 SC No.149/2014
(1) Whether the prosecution proves beyond the shadow of all the reasonable-doubts that, on 04.11.2013 at about 10.00 p.m. in the night, the accused No's.1 to 3 in furtherance of common-
intention to teach a lesson to one Babu Dalai, made a criminal-conspiracy within themselves to do an illegal- act of assault knowing-fully-well that it would cause the death of Babu Dalai and thereby, the accused-
persons committed the offence punishable U/Sec.120(B) r/w Section 34 of IPC.?
(2) Whether the prosecution further proves beyond the shadow of all the reasonable-doubts that, on the above said date, time and place, the accused No's.1 to 3 in furtherance of common-intention to teach a lesson to one Babu Dalai, in connection with the said Babu Dalai often visiting and lastly having visited the house of the accused No.1 in his absence to chat with his (accused No.1) wife on 01.11.2013, in respect of which the accused No.1 having doubted that the said Babu Dalai was having illicit-relationship with his (accused No.1) wife, went to a room bearing No.111/15, Bhovi Colony, S.G. Palya, Thavarekere Main Road, Bengaluru City, where the said deceased Babu Dalai was residing and the accused No.1 questioning his (Babu Dalai) contact with his (accused No.1) wife Smt. Bhagya, and raised the scramble with the said Babu Dalai and all the accused-persons knowing-fully-well that if they (accused-persons) kick and harp on the stomach of Babu Dalai, then it is likely to cause his death, the accused No.1 forcefully kicked three-times to his (Babu Dalai) stomach and the accused No.2 harped on his (Babu Dalai) stomach and sat, and all the accused No's.1 to 3 together assaulted the said 7 SC No.149/2014 Babu Dalai with their hands and legs, during which time the CW.1 came there-at and pacified, and on the same-day in the midnight at about 12.30, when the said Babu Dalai was suffering from severe stomachache, the accused No's.1 to 3 and CWs.3 & 5 together shifted him to Health India Hospital situated at Thavarekere Main Road, in an auto-rickshaw, fakely stating the doctor that some unknown-person has assaulted him by snatching-away his mobile-handset and thereby got provided the medical-treatment and brought-back to his residence, but on 05.11.2013 in the early-morning-hours when the said Babu Dalai started suffering from severe stomachache, again his younger-brother/CW.2 shifted him to Victoria Hospital, Bengaluru, at about 9.30 a.m. in the morning, in an auto-rickshaw, whereby on examining the said Babu Dalai by the doctors, it was declared that Babu Dalai was dead and thereby, the accused-
persons committed the offence punishable U/Sec.304(II) r/w Section 34 of IPC.?
(3) Whether the prosecution further proves beyond the shadow of all the reasonable-doubts that, on the above said date, time and place, the accused No's.1 to 3 in furtherance of common-intention gave the false- information to screen themselves having committed the offence and caused to disappear the evidence of the offences committed by them, by stating falsely in the hospital that someone had assaulted the said Babu Dalai and snatched-away his mobile-phone and thereafter ran-away there-from; and thereby, the accused-persons committed the offence punishable U/Sec.201 r/w Section 34 of IPC.?
(4) What order?
8 SC No.149/2014
8. My findings on the above said points are as under:
Point No.1 .. In the Negative.
Point No.2 .. In the Negative.
Point No.3 .. In the Negative.
Point No.4 .. As per the final-order,
for the following:
REASONS
9. Point No's.1 to 3:- To avoid reiteration of material available in hand and to appreciate the evidence in better-position, I hereby take-up Point No's.1 to 3 together admixingly for discussion.
10. It is the specific-tale of the prosecution that, on 04.11.2013 at about 10.00 p.m. in the night, the accused No's.1 to 3 in furtherance of common-intention to teach a lesson to one Babu Dalai, made a criminal-conspiracy within themselves to do an illegal-act of assault knowing-fully-well that it would cause the death of the said Babu Dalai, in connection with the said Babu Dalai often visiting and lastly having visited the house of the accused No.1 in his absence to chat with his (accused No.1) wife on 01.11.2013, in respect of which the accused No.1 having doubted that the said Babu Dalai was having illicit-relationship with his (accused No.1) wife, went to a room bearing No.111/15, Bhovi Colony, S.G. Palya, Thavarekere Main Road, Bengaluru City, where the said deceased Babu Dalai was residing and the accused No.1 questioning his (Babu Dalai) contact with his (accused No.1) wife Smt. Bhagya, and raised the scramble with the said Babu 9 SC No.149/2014 Dalai and all the accused-persons knowing-fully-well that if they (accused-persons) kick and harp on the stomach of Babu Dalai, then it is likely to cause his death, the accused No.1 forcefully kicked three-times to his (Babu Dalai) stomach and the accused No.2 harped on his (Babu Dalai) stomach and sat, and all the accused No's.1 to 3 together assaulted the said Babu Dalai with their hands and legs, during which time the CW.1 came there-at and pacified, and on the same-day in the midnight at about 12.30, when the said Babu Dalai was suffering from severe stomachache, the accused No's.1 to 3 and CWs.3 & 5 together shifted him to Health India Hospital situated at Thavarekere Main Road, in an auto-rickshaw, fakely stating the doctor to screen themselves having committed the offence and caused to disappear the evidence of the offences committed by them that some unknown- person has assaulted him by snatching-away his mobile-handset and ran-away there-from and thereby got provided the medical- treatment and brought-back to his residence, but on 05.11.2013 in the early-morning-hours when the said Babu Dalai started suffering from severe stomachache, again his younger- brother/CW.2 shifted him to Victoria Hospital, Bengaluru, at about 9.30 a.m. in the morning, in an auto-rickshaw, whereby on examining the said Babu Dalai by the doctors, it was declared that Babu Dalai was dead and thereby, the accused-persons committed the offences punishable U/Secs.120(B), 304 (II) & 201 r/w Section 34 of IPC.
10 SC No.149/2014
11. At the very outset, the absolute burden of proving the alleged imputations against the accused-persons is casted-upon the prosecution alone in pursuance with the provisions under the Indian Evidence Act, 1872.
12. To substantiate it's case, the prosecution has got examined in all the witnesses as PWs.1 to 10, in which CW.1 is examined as PW.1/Dr. C.N.Sumangala W/o S. Ramesh, who is the doctor having conducted the post-mortem of the dead-body of the deceased Babu Dalai; CW.3 is examined as PW.4/Niranjan S/o Madhusudhan, who is the eyewitness; CW.4/Mithun Sethia S/o Sukhdev Sethia and CW.5/Krishna Pathra S/o Vidhyadara Pathra are examined as PWs.2 & 3, respectively, who are the circumstantial-witnesses; CW.8 is examined as PW.5/Narendra Kedia S/o Mohanlal Kedia, who is the owner of the company, in which the deceased Babu Dalai was working, as-well-as the hearsay-witness; CW.9 is examined as PW.6/K. Selvamani S/o Kannan, who is the owner of the house, in which the employees of the said CW.8 were residing, as-well-as the hearsay-witness; CW.15 is examined as PW.7/S. Manjunath S/o M.M. Shivamurthy, who is the circumstantial-witness as-well-as the hearsay-witness; CW.18 is examined as PW.8/S.P. Manjunath S/o S. Puttaswamappa, who is the police-constable having carried the seized-properties to FSL as-well-as the circumstantial-witness; CW.21 is examined as PW.9/A.C. Shivamadappa S/o Chikkamadhegowda, who is the head-constable having produced 11 SC No.149/2014 the accused No's.1 to 3 before the CW.25/investigating-officer, as- well-as the circumstantial-witness and CW.24 is examined as PW.10/H.A. Ravikumar, S/o Anjanappa, who is the initial-partial- investigating-officer, and thereby, the prosecution has placed it's reliance-on the documentations marked at Exs.P.1 to P.17, in which Ex.P.1 is the post-mortem report, Ex.P.1(a) is the signature of the PW.1, Ex.P.2 is the final-opinion, Ex.P.2(a) is the signature of the PW.1, Ex.P.3 is the statement of the PW.2, Ex.P.4 is the statement of the PW.3, Ex.P.5 is the statement of the PW.4, Ex.P.6 is the report, Ex.P.6(a) is the signature of the PW.5, Ex.P.7 is the rental-agreement, Ex.P.7(a) is the signature of the PW.5, Ex.P.7(b) is the signature of the PW.6, Ex.P.8 is the statement of the PW.5, Ex.P.9 is the statement of the PW.6, Ex.P.10 is the opinion, Ex.P.10(a) is the signature of the PW.7, Ex.P.11 is the report, Ex.P.11(a) is the signature of the PW.8, Ex.P.12 is the First Information Report through UDR, Ex.P.12(a) is the signature of the PW.10, Ex.P.13 is the complaint, Ex.P.13(a) is the signature of the PW.10, Ex.P.14 is the spot-panchanama, Ex.P.14(a) is the signature of the PW.10, Ex.P.15 is the inquest-panchanama, Ex.P.15(a) is the signature of the PW.10, Ex.P.16 is the original- First Information Report, Ex.P.16(a) is the signature of the PW.10, Ex.P.17 is the requisition-letter and Ex.P.17(a) is the signature of the PW.10, and the material-objects marked on behalf of the prosecution are at MO No's.1 & 2, in which MO No.1 is the T-shirt and MO No.2 is the shorts.
12 SC No.149/2014
13. On meticulous-perusal of the entire-depositions of the PWs.1 to 10, it is crystal clear that, the PW.4 being the eyewitness, PWs.2 & 3 being the circumstantial-witnesses, have absolutely turned hostile to the prosecution by exhibiting their animus of hostility, for which the learned Public Prosecutor was inclined to treat them as hostile-witnesses and cross-examine them; but, no worth-relying material has been elicited and extracted through their mouths, wherefore, the prosecution has utterly failed to establish the Exs.P.5, P.3 & P.4, respectively, beyond the shadow of all the reasonable-doubts.
14. Further, the PW.1/Dr. C.N. Sumangala W/o S. Ramesh being the Doctor having conducted the post-mortem report of the deceased Babu Dalai, has endeavored to depose in favour of the prosecution in her chief-examination to the effect that, on 06.11.2013 basing-on the requisition of the investigating-officer from MICO Layout police station, Bengaluru, she has conducted the post-mortem of the deceased Babu Dalai from 3.00 p.m. to 4.00 p.m. in the afternoon in the mortuary of Victoria Hospital, Bengaluru, and found the following:
(1) The said dead-body was 179 cms in length with well-built and moderately nourished. (2) There was a presence of IB canella on the right-elbow.
(3) There was a presence of blue-ink-mark on the left-thumb.
(4) The stomach was swollen.
(5) 2 X 2 cms to 3 X 3 cms lymphomas were appearing on both the hands.13 SC No.149/2014
(6) There was appearance of staining on the back of dead-body.
(7) Presence of rigor-mortis on all over the body. (8) Presence of superficial laceration was 1 X 0.5 cm deep-skin over the left-lower eyelid. (9) Heart and skull were intact peritoneum was containing 1.5 liters of blood with blood-clots. (10) There was bleeding in the small and large intestine.
(11) There was a tearing of small-intestine with the blood-vessels therein.
- One T-shirt and shorts on the said dead-body as per MO No's.1 & 2 were packed and sealed with a label and handed-over to the concerned police with the sample-seals and then sent the blood and viscera to the FSL for chemical-analysis. According to her opinion, the death of Babu Dalai is caused due to shock, consequent to blunt-trauma sustained to abdomen, and accordingly she has issued the post-mortem report as per Ex.P.1, on which her signature is as per Ex.P.1(a). Thereafter, on 13.01.2014 as per the requisition of the police-inspector seeking for the final-opinion, she has given her final-opinion as a person is likely to die if another kicks, as per Ex.P.2, on which her signature is as per Ex.P.2(a). It is also stated by the PW.1 that, a person is likely to sustain the superficial laceration over the left-lower eyelid in the scuffle and also if a person is kicked and made him to fall and after sitting on his body and punching with the fist on his stomach, it may cause the death of such person sustaining the internal-injury.
14 SC No.149/2014
15. But, in the cross-examination by the learned counsel for the accused, she has stated that in a road-accident while a person either sitting as a driver or the front-passenger, such person is likely to sustain the internal-injury to his stomach due to the forceful contact of the stearing or the dash-board and also further stated that if a person is kicked, then there are every-chances of causing the injuries due to the toe-nails; but, further she has volunteered that such toe-nails are not expected in every-situation.
16. Further, the PW.5/Narendra Kedia S/o Mohanlal Kedia being the owner of the company, in which the deceased Babu Dalai was working, as-well-as the hearsay-witness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, the said deceased Babu Dalai was working in his company, along-with the accused No's.1 & 2 and he had made the arrangement of accommodation by providing a house from CW.9/PW.6 and about 1½ years-back when he heard of the demise of Babu Dalai, the accused No's.1 & 2 had not come to the duty/work in his company and since during the night of 04.11.2013 and on 05.11.2013 the accused No's.1 & 2 and deceased Babu Dalai did-not come to the work/duty, he has given a written-letter to the police in respect of the same, as per Ex.P.6, on which his signature is as per Ex.P.6(a) and also he has produced the lease-deed which was entered-into by him i.e., CW.9/PW.6 for the purpose of arranging the accommodation to the said accused No's.1, 2 and the deceased Babu Dalai, on which his 15 SC No.149/2014 signature is as per Ex.P.7(a); but he does-not know as to how and for what reason the said Babu Dalai has demised and he has neither given any statement before the police regarding the demise of the said Babu Dalai, nor he knows anything; and thereby partly turned hostile to the prosecution by exhibiting his animus of hostility, for which the learned Public Prosecutor was inclined to cross-examine him; but, no worth-relying material has been extracted and elicited through his mouth, wherefore, the prosecution has utterly failed to establish the Ex.P.8 beyond the shadow of all the reasonable-doubts.
17. But, in the cross-examination by the learned counsel for the accused, he (PW.5) has clearly stated to the effect that the attendance-register of the employees in his company is being maintained and further admitted fatally that he cannot say as to who-else had come and who-else had not come to the work/duty on that day to his company without looking-into the said attendance-register. The said version of the PW.5 certainly goes against his own-versions in the chief-examination, whereby his version in the chief-examination stands falsified because, the said versions in his cross-examination and chief-examination are absolutely emanating in-contravention with each-other creating the fatal-doubts in the mind of this court. In addition to the same, he has further admitted fatally that from 03.11.2013 to 05.11.2013 his company was declared the holidays in view of Deepavali festival. It is significant to note that, as per the prosecution's-case 16 SC No.149/2014 the said Babu Dalai has been murdered in the night on 04.11.2013 and the said accused No's.1, 2 and the deceased Babu Dalai had remained absent. When the company was declared with the holidays from 03.11.2013 to 05.11.2013, the question of expecting them to come to the duty/work to his company, does-not arise at-all. Therefore, the said versions of the PW.5 in his chief- examination are absolutely emanating in the fashion of creating the fatal-doubts in the mind of this court. It is also fatally admitted by the PW.5 that he has given the letter/Ex.P.6 to the police at the request of the police and he has not produced the copy of attendance-register in respect of the employees of the company, to the police. On overall-consideration of these versions of the PW.5, it is crystal clear that even the portion to the extent that which the PW.5 has endeavored to depose in favour of the prosecution, in exclusion of the portion of his hostility, does-not deserve for believing, whereas, it can be stated that even the said supporting- portion is absolutely prevailing with the major-discrepancies with contractions creating the fatal-doubts in the mind of this court, wherefore, the said deposition of the PW.5 does-not come to the aid and assistance of the prosecution, in any way.
18. Further, the PW.6/K. Selvamani S/o Kannan being the owner of the house, in which the accused No's.1 & 2 and the deceased Babu Dalai were residing, as-well-as the hearsay- witness, has endeavored to depose in favour of the prosecution only to the extent that, he knows the CW.8/PW.5 and he had given 17 SC No.149/2014 his house on lease/rental-basis to the CW.8, in which his employed-boys were residing, in respect of which the lease-deed is made as per Ex.P.7, on which his signature is as per Ex.P.7(b) and he does-not know as to how and for what reason the said Babu Dalai has demised and he has never given any statement before the police in respect of the same and thereby turned hostile to the prosecution by exhibiting his animus of hostility, for which the learned Public Prosecutor was inclined to treat him as hostile- witness and cross-examine; but, no worth-relying material has been elicited and extracted through his mouth, wherefore, the prosecution has utterly failed to establish the Ex.P.9 beyond the shadow of all the reasonable-doubts.
19. Further, the PW.7/S. Manjunath S/o M.M. Shivamurthy being the circumstantial as-well-as the hearsay-witness, has endeavored to depose in favour of the prosecution only to the effect that, about 2 years-back he having stated by the duty-doctor that in the hospital he had received an outdoor-patient by name, Babu with the history of the stomach-pain due to the assault, wherefore, the said duty-doctor though insisted for getting admitted himself in the hospital as indoor-patient, the said Babu Dalai did-not agree and consented for the same, wherefore, the first-aid was provided to Babu Dalai, in respect of which on the very-next-day, he (PW.7) was told by the said duty-doctor; and accordingly in respect of the same he has given a report to the police, as per Ex.P.10, on which his signature is as per Ex.P.10(a).
18 SC No.149/2014
20. But, in the cross-examination by the learned counsel for the accused, he (PW.7) has clearly disclosed his no personal- knowledge regarding the said Babu Dalai having come to their hospital and taken the treatment. Even, he has stated that he does-not know as to at what time the said Babu (patient) returned- back to the said hospital after taking the treatment at 1.00 a.m. in the midnight and even he cannot say the specific-date on which the said Babu had come to their hospital. On consideration of these versions of the PW.7 in his cross-examination, it clearly goes to indicate that the said PW.7 has no personal-knowledge regarding the said Babu having come to their hospital and taken the treatment, and etc., wherefore, his nature being merely as the hearsay as-well-as the circumstantial-witness, no much weightage can be adhered-to his versions to rely-upon his deposition unless the substantial-material is emanating on record.
21. Further, the PW.8/S.B. Manjunath S/o S. Puttaswamappa being the police-constable, has deposed in favour of the prosecution in his chief-examination to the effect that, on 20.12.2013 he had carried the seized-properties to the FSL, as per the instructions of the investigating-officer and thereafter, he has given a report to that effect before the CW.25/investigating-officer, as per Ex.P.11, on which his signature is as per Ex.P.11(a).
22. But, in the cross-examination by the learned counsel for the accused, he (PW.8) has stated that he does-not know the details of the materials/articles in the sealed-bags which were 19 SC No.149/2014 carried by him to the FSL. This version clearly goes to indicate that he does-not have the personal-knowledge regarding the contents of the said sealed-bags which were being carried by him to the FSL. But, however, it can be stated that the very-deposition of the PW.8 is merely in the fashion and status of the circumstantial-witness, wherefore, it does-not come to the aid and assistance of the prosecution unless there is the substantial- material with regard to the substantial-allegations against the accused-persons.
23. Further, the PW.9/A.C. Shivamadappa S/o Chikkamadhegowda being the head-constable having produced the accused No's.1 to 3 before the CW.25/investigating-offcer, as-well- as the circumstantial-witness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 08.11.2013 as per the informations received through the CW.25/investigating-officer and the instructions given by the investigating-officer, he went near S.G.Palya, along-with informers and caught 2 persons and inquired their names, whereby they stated their names as Kanva and Manoj and also he secured another-accused by name, Mahesh through phone and thereafter, he brought the said 3 accused-persons and produced before the CW.25/investigating-officer and he has identified the accused No's.1 & 2 in the open-court and also stated that he is able to identify the accused, if he is shown the accused No.3. 20 SC No.149/2014
24. But, in the cross-examination by the learned counsel for the accused, he (PW.9) has clearly admitted that the accused No's.1 & 2 are the employees in the garments situated at S.G.Palya. When he was suggested that he had brought the accused-persons from the said garments-factory, he (PW.9) has responded to the effect that the said accused No's.1 & 2 were outside the said garments. But, unfortunately further he has disclosed his no knowledge regarding the address of the said garments. It is pertinent to note that, as per the very-versions of the PW.9 in his cross-examination when he is capable of saying the said accused No's.1 & 2 were outside the said garments-factory where the accused No's.1 & 2 were working, I fail to understand as to how he is incapable of saying the address of the garments- factory. In addition to the same, as per his versions in his chief- examination, he had visited the spot where the accused-persons were allegedly stated to have been caught-hold by him. When he had visited the spot and caught-hold the accused No's.1 & 2, he was expected to be conversant with the said spot. When that is so, he was expected to know the address of the said garments-factory also. By virtue of these particulars of versions of the PW.9, they certainly create the fatal-doubts in the mind of this court regarding the aspect as to whether really the said PW.9 had been to S.G.Palya and caught-hold the accused No's.1 & 2 and then secured the accused No.3 and produced before the CW.25/investigating-officer in the police-station, or otherwise.? 21 SC No.149/2014 This particular substantial-question has remained absolutely under darkness without any clarification, wherefore, the said deposition of the PW.9 prevailing with the substantial fatal-doubts creating the suspicion regarding the contentions of the PW.9, his deposition does-not deserve to be believed and relied-upon; consequent-upon which, it does-not come to the aid and assistance of the prosecution, in any way.
25. Further, the PW.10/H.A. Ravikumar S/o Anjanappa being the initial-partial-investigating-officer, has endeavored to depose in favour of the prosecution in respect of the extent of portion of the investigation conducted by him to the effect that, on 05.11.2013 at about 7.30 p.m. in the evening, the complainant/Sukanth appeared before him and lodged a written- complaint stating that his brother Babu Dalai has demised under suspicion, basing-on which he registered the UDR No.53/2013, U/Sec.174(c) of Cr.P.C., and sent the original-First Information Report and the complaint to the Asst. Commissioner concerned, and the said First Information Report is as per Ex.P.12, on which his signature is as per Ex.P.12(a) and the complaint is marked as per Ex.P.13, on which his signature is as per Ex.P.13(a) (marked subject to objections). On 05.11.2013 he visited the spot of incident at the behest of CW.6 and drawn the spot-panchanama as per Ex.P.14 in presence of the spot-mahazar-witnesses/CWs.13 & 14 and his signature on the said Ex.P.14 is as per Ex.P.14(a) (marked subject to objections). Further, he has deposed that on 22 SC No.149/2014 06.11.2013 he visited the Victoria Hospital, Bengaluru, and drawn the inquest-mahazar between 10.00 a.m. and 12.30 p.m. in the afternoon in presence of the inquest-mahazar-witnesses/CWs.10 to 12, as per Ex.P.15, on which his signature is as per Ex.P.15(a) (marked subject to objections). He has recorded the statements of the CW.6/Balabhadra and CW.7/Saroj at the time of drawing the inquest-mahazar as per Ex.P.15. After the post-mortem, he has handed-over the dead-body to one Sukanth, the brother of the deceased under an acknowledgement. On obtaining the post- mortem report from the doctor and on perusal of the statements of the CWs.6 & 7, on 07.11.2013 he having suspected regarding the demise of the deceased Babu Dalai, he obtained the written- permission from the VI ACMM Court and then re-registered the case at Cr.No.701/2013 for the offence punishable U/Sec.302 r/w Section 34 of IPC, and thereafter sent the original-First Information Report as per Ex.P.16 to the court and his signature on the said First Information Report is as per Ex.P.16(a) (marked subject to objections). Even, the requisition sent to the court along-with Ex.P.16, is as per Ex.P.17, on which his signature is as per Ex.P.17(a) (marked subject to objections). On the same-day even the post-mortem report was also sent to the court, along-with Exs.P.16 & P.17 and thereafter, the case-file was handed-over to the CW.25/police-inspector for further-investigation.
26. But, in the cross-examination by the learned counsel for the accused, he (PW.10) has clearly admitted that he never issued 23 SC No.149/2014 any notices to the persons who were knowing regarding the demise of Babu Dalai, after registering the case as UDR case. It is further fatally admitted that after registering the case, immediately they visited the spot. Even, he has admitted that, Ex.P.14/spot- panchanama is earlier to Ex.P.13/complaint. It is also admitted that, he has not specifically mentioned at whose behest the said Ex.P.13/complaint has been drawn by visiting to the spot, in the said Ex.P.14/spot-panchanama. Even, he has stated that he has never issued any notices to the CWs.13 & 14 calling them to be as the mahazar-witnesses. Apart from the same, he has stated that he signs in both Kannada as-well-as English language. But, he has further admitted that the signatures in Exs.P.14 to P.17 are not similar to each-other and his signatures on Exs.P.13 & P.15 to P.17 are in Kannada language. It is also fatally admitted by the PW.10 that they have not received any information regarding the murder of Babu Dalai either by way of a complaint through anybody-else or any credible-information regarding the same. On overall-consideration of these versions of the PW.10 in his cross- examination by the learned counsel for the accused, they are absolutely emanating in the fashion of major-discrepancy in his initial-investigation and also the said Exs.P.13 & P.14, wherefore, even it is unsafe to rely-on the very-deposition of the PW.10.
27. During the time of trial, the learned Public Prosecutor has voluntarily given-up the CWs.7, 19, 20, 22 & 23. But, in-spite of having issued sufficient-process to the CWs.2, 6, 7, 10 to 14, 16 24 SC No.149/2014 & 24 to 27, they have neither been endeavored to produce before this court by the concerned police nor they have turned-up before this court to depose in favour of the prosecution in the witness- box, wherefore, in the absence of substantial-grounds, this court was inclined to reject the prayer of the learned Public Prosecutor and dropped the CWs.2, 6, 7, 10 to 14, 16 & 24 to 27 and thereby closed the prosecution's-side.
28. On meticulous-consideration of the entire-depositions of the PWs.1 to 10, it is crystal clear that the PW.4 being the eyewitness and PWs.2 & 3 being the circumstantial-witnesses have absolutely turned hostile to the prosecution, wherefore, the prosecution has utterly failed to establish the Exs.P.5, P.3 & P.4, respectively. In addition to the same, the PW.5 also being the owner of the company as-well-as the hearsay-witness and the PW.6 being the owner of the house as-well-as the hearsay-witness have partially turned hostile to the prosecution, wherefore, it has utterly failed to establish the Exs.P.8 & P.9, respectively, beyond the suspicious-doubts reasonably. But, in respect of the portions to the extent they have supported in their respective chief- examinations, they have lost their weightage in view of they having been falsified by virtue of the very-versions of the PW.5 in his cross-examination, whereas, though nothing has been cross- examined to the PW.6 by the learned counsel for the accused, his sole-versions in the chief-examination does-not come to the aid and assistance of the prosecution. Therefore, the very-depositions 25 SC No.149/2014 of the PWs.5 & 6 are worthless to the case of the prosecution. Further, the PW.7 being the circumstantial-witness as-well-as the hearsay-witness, PW.8 being the police-constable having carried the seized-properties to the FSL, PW.9 being the head-constable having nabbed and produced the accused No's.1 to 3 before the CW.25/investigating-officer, PW.10 being the initial-partial- investigating-officer, the depositions of the PWs.9 & 10 are absolutely prevailing with the major-discrepancies, wherefore, they do-not come to the aid and assistance of the prosecution, whereas, merely basing-on the very-depositions of the PWs.7 & 8 coupled with the very-deposition of the PW.1 who is the doctor having conducted the post-mortem, this court cannot arrive-at a conclusion to target the accused-persons for the conviction in the lack of substantial chunk of material, since the prosecution has utterly failed to establish the essential ingredients of the alleged offences punishable U/Secs.304(II), 120(B) & 201 r/w Section 34 of IPC and also failed to establish the nexus and interlink between the sequential-circumstances to form/constitute a complete-ring of commission of the alleged offences.
29. Therefore, under all these circumstances, this court is of the clear opinion that, the entire-case of the prosecution is prevailing with the major-discrepancies, discrepanting the entire- case of the prosecution, creating the fatal-doubts in the mind of this court, without any alimentation. Therefore, the benefit of such doubts will have to be given to the accused-persons by virtue 26 SC No.149/2014 of a well-settled principle of criminal jurisprudence. Under all these circumstances, even it is highly impossible and improbable to ameliorate regarding the alleged imputations against the accused No's.1 to 3. Therefore, in view of all these reasons, this court is of the clear opinion that, the prosecution has utterly failed to establish and prove the Point No's.1 to 3 beyond the shadow of all the reasonable-doubts. Hence, this court is inclined to answer Point No's.1 to 3 in the 'Negative'.
30. Point No.4:- For the reasons discussed at much-length while answering the Point No's.1 to 3 in the Negative herein before supra, this court is inclined to proceed to pass the following:
ORDER The prosecution has utterly failed to prove the guilt against the Accused No's.1 to 3 and therefore, the Accused No's.1 to 3 are found not guilty for having committed the offences U/Secs.304(II), 120(B) & 201 of IPC.
In exercise of the powers conferred-upon me U/Sec.235(1) of Cr.P.C., I hereby acquit the instant- Accused No.1 by name, Kanva Charan Naik, S/o. Ravindra Naik, aged 30 years, residing at No.103, Geddalahali, RMV 2nd Stage, Bengaluru; the instant- Accused No.2 by name, Manoj Kumar Behara @ Babu, S/o. Gorang Behara, aged 27 years, residing at No.111/15, Bhovi Colony, S.G. Palya, Thavarekere Main Road, Bengaluru; and the instant-Accused No.3 by name, Mahesha, S/o. Late Chikkegowda, aged 32 years, residing at No.117, 2nd Cross, 2nd Main, Floor Mill Road, 27 SC No.149/2014 Ashwathnagar, Sanjaynagar Main Road, Bengaluru, and set them to liberty forthwith in this case.
The Accused No's.1 to 3 are hereby discharged of their bail-bonds, along-with their sureties.
The seized-properties marked at MO No's.1 & 2, namely, T-shirt and shorts, respectively, being worthless, are hereby ordered to be destroyed after the efflux of the appeal-period.
(Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 8th day of February, 2017) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.
APPENDIX List of the witnesses examined for the prosecution-side:
PW.1 Dr. C.N. Sumangala PW.2 Mithun Sethia PW.3 Krishna Pathra PW.4 Niranjan PW.5 Narendra Kedia PW.6 Selvamani K PW.7 Manjunath S PW.8 Manjunath S.B. PW.9 Shivamadappa A.C. PW.10 H.A. Ravikumar
List of documents exhibited for the prosecution-side:
Ex.P.1 Post-mortem report.
Ex.P.1(a) Signature of the PW.1.
Ex.P.2 Final-opinion.
Ex.P.2(a) Signature of the PW.1.
Ex.P.3 Statement of the PW.2.
Ex.P.4 Statement of the PW.3.
Ex.P.5 Statement of the PW.4.
Ex.P.6 Report.
28 SC No.149/2014
Ex.P.6(a) Signature of the PW.5.
Ex.P.7 Rental-agreement.
Ex.P.7(a) Signature of the PW.5.
Ex.P.7(b) Signature of the PW.6.
Ex.P.8 Statement of the PW.5.
Ex.P.9 Statement of the PW.6.
Ex.P.10 Opinion.
Ex.P.10(a) Signature of the PW.7.
Ex.P.11 Report.
Ex.P.11(a) Signature of the PW.8.
Ex.P.12 First Information Report through UDR.
Ex.P.12(a) Signature of the PW.10.
Ex.P.13 Complaint.
Ex.P.13(a) Signature of the PW.10.
Ex.P.14 Spot-panchanama.
Ex.P.14(a) Signature of the PW.10.
Ex.P.15 Inquest-panchanama.
Ex.P.15(a) Signature of the PW.10.
Ex.P.16 Original-First Information Report.
Ex.P.16(a) Signature of the PW.10
Ex.P.17 Requisition-letter.
Ex.P.17(a) Signature of the PW.10.
List of material-objects marked for the prosecution-side:
MO No.1 T-shirt. MO No.2 Shorts.
List of witnesses examined for the defence-side:
- NIL -
List of documents exhibited for the defence-side:
- NIL -
LI Addl. City Civil & Sessions Judge, Bengaluru City.29 SC No.149/2014
(Judgment pronounced in the open-court. Operative-portion of the same is extracted as under) ORDER The prosecution has utterly failed to prove the guilt against the Accused No's.1 to 3 and therefore, the Accused No's.1 to 3 are found not guilty for having committed the offences U/Secs.304(II), 120(B) & 201 of IPC.
In exercise of the powers conferred-upon me U/Sec.235(1) of Cr.P.C., I hereby acquit the instant-
Accused No.1 by name, Kanva
Charan Naik, S/o. Ravindra Naik,
aged 30 years, residing at No.103,
Geddalahali, RMV 2nd Stage,
Bengaluru; the instant-Accused
No.2 by name, Manoj Kumar Behara
@ Babu, S/o. Gorang Behara, aged
27 years, residing at No.111/15,
Bhovi Colony, S.G. Palya,
Thavarekere Main Road, Bengaluru;
and the instant-Accused No.3 by
name, Mahesha, S/o. Late
Chikkegowda, aged 32 years,
residing at No.117, 2nd Cross, 2nd
Main, Floor Mill Road,
Ashwathnagar, Sanjaynagar Main
Road, Bengaluru, and set them to
liberty forthwith in this case.
The Accused No's.1 to 3 are
hereby discharged of their bail-
bonds, along-with their sureties.
The seized-properties marked
at MO No's.1 & 2, namely, T-shirt
and shorts, respectively, being
worthless, are hereby ordered to be
destroyed after the efflux of the
appeal-period.
LI Addl. City Civil & Sessions Judge,
Bengaluru City.
30 SC No.149/2014