Bangalore District Court
State By J.P.Nagar Police Station vs K. Manjunatha @ Lodde on 28 April, 2016
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH-65) AT BENGALURU.
Dated this the 28th day of April, 2016
-: P R E S E N T :-
Sri. MADHUSUDHAN B.,
B.Com, LL.B (Spl.).,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.28/2010
COMPLAINANT:- State by J.P.Nagar Police Station,
Bengaluru.
-Vs-
ACCUSED: 1. K. Manjunatha @ Lodde,
S/o. Krishnappa,
Aged about 23 years,
R/at. Road of Anjanappa's House,
Near Pavithra Kalyana Mantapa,
J.P.Nagar 7th Stage,
Bengaluru-78.
2. H. Manjunatha @ Foreman Manja,
S/o. Huchappa,
Aged about 23 years,
R/at. Road of Anjanappa's House,
Near Pavithra Kalyana Mantapa,
J.P.Nagar 7th Stage,
Bengaluru-78.
1. Date of commission of offence : 21.06.2009
2. Date of report of offence : 21.06.2009
3. Date of arrest of the Accused : A.1 & A.2 on 25.6.2009
2 S.C.No.28/2010
4. Name of the complainant : Sri. Ashoka
5. Date of recording evidence : 2.11.2010
6. Date of closing evidence : 27.03.2015
7. Offences complained of : U/Sec. 302 of I.P.C., R/w.Section
34 of IPC.
8. Opinion of the Judge : The accused No.1 and 2 are
convicted U/s.235(2)
of Cr.P.C.
9. State represented by : Public Prosecutor
10. Accused defended by : Sri. M.Shashidhar, for A.1
Sri. Hanumantharaya D. for A-2,
JUDGMENT
Circle Inspector of Police of J.P.Nagar police station, Bengaluru submitted charge sheet against accused, for trial of offence punishable U/s.302 of I.P.C. R/w. Section 34 of I.P.C., in Cr.No.337/2009.
2. Brief facts of prosecution case may be stated as under; On 21.6.2009 at about 9.30 p.m., accused had been to hotel of one Gopal situated opposite to IDBI Bank, 24th Main Road, 6th Phase, J.P.Nagar, Bengaluru. When accused were eating kabab, at that time deceased- Suresh seen towards accused with an angry mood and pushed accused No.1 and 2 with his shoulder for which both accused got annoyed. 3 S.C.No.28/2010 Therefore, there were some exchange of words between accused and Suresh. Meanwhile, Suresh left the place on his motor bike and stopped his motor bike near Shamanna Garden Circle, where his friend - Ashok was present. These accused followed deceased- Suresh and there also they picked up quarrel with him. When accused tried to assault, Suresh under fear of threat and in order to escape from the clutches of accused, he ran away towards Hanumantha Reddy Garden, but, accused chased and attacked Suresh and assaulted him with stones on his head, due to which he sustained grievous injuries on his head. Accused gave slip from the spot of incident. Thereafter, injured-Suresh was shifted to Rajashekhar Hospital, where he took treatment and thereafter, on the same day, he was shifted to Apollo Hospital for higher treatment. On the same day, at about 11.00 p.m., complainant/Ashok lodged a written complaint on the basis of which police concerned have registered a case against both accused in Cr.No.337/2009 for the offence punishable U/s.307 of I.P.C. R/w. Section 34 of I.P.C.
3. Police concerned started investigation. On 23.6.2009 at about 3.00 p.m. Suresh succumbed to the injuries while under going treatment at Apollo Hospital. Thus, Hospital Authorities have issued Death Memo, on the basis of which, Investigating Officer submitted report before Learned 4 S.C.No.28/2010 Magistrate for inclusion of penal provisions of Section 302 of I.P.C. Post Mortem was conducted at Kempegowda Institute of Medical Science, Bengaluru. Investigating Officer seized material objects by conducting panchanamas. Investigating Officer concerned has recorded statements and further statements of witnesses. On 25.6.2009 these accused were apprehended by police. Investigating Officer has recorded voluntary statements of both accused. On the same day, accused were produced before Learned Magistrate and since then both accused were in J.C., till they were released on bail as per the orders passed by this court on 29.10.2013.
4. Investigating Officer concerned secured the P.M.Report and also obtained opinion of doctor. Seized material objects were sent to F.S.L., Bengaluru and got prepared sketch map of spot of incident and after completion of investigation charge sheet is laid against accused for the offence punishable U/s. 302 of I.P.C. R/w.Section 34 of I.P.C.
5. Learned Magistrate took cognizance of the offence. Accordingly criminal case against accused is registered in C.C.No.20659/2009 on the file of VI-A.C.M.M., Bengaluru. On 9.11.2009 Learned Magistrate passed committal order since offence alleged against accused is triable exclusively by the court of Sessions. After committal of 5 S.C.No.28/2010 case, same is re-registered as S.C.No.28/2010. After hearing, on 11.8.2010 charges against accused were framed, which they denied. Hence, claimed to be tried.
6. In order to prove guilt of the accused, prosecution in all together cited as many as 26 witnesses, among them 20 witnesses were examined as Pw.1 to 20 and got exhibited as many as 19 documents at Ex.P.1 to 19. During trial, prosecution got identified 7 material objects at Mo.1 to 7.
7. On completion of the evidence of the prosecution side, accused statements, as required U/s. 313 of Cr.P.C., are recorded by giving an opportunity to accused persons for explaining incriminating circumstances appearing in the evidence of the prosecution. Defence of accused is one of total denial of prosecution case. However no any defence evidence led in by accused.
8. I have heard arguments.
9. The following are the points for my consideration:
1. Whether prosecution proves that, death of A.Suresh is homicidal?
2. Whether prosecution proves beyond all reasonable doubt that accused No.1 and 2 have committed murder of A. Suresh, as alleged in the charge sheet, thereby both accused committed offence of murder 6 S.C.No.28/2010 punishable U/s.302 of I.P.C. R/w.Section 34 of I.P.C.?
3. To what Order ?
10. My findings on the above points are as under:
Point No.1 : In Affirmative
Point No.2 : In Affirmative
Point No.3 : As per final order
for the following:
REASONS
11. POINTS NO.1 & 2:- I have taken these two points together to avoid repeated discussions.
12. Among the witnesses examined by prosecution, Pw.1 is complainant as well as eyewitness to the seen of incident. Pw.2 to 5 are eyewitnesses to the scene of incident. Pw.6 is brother of deceased. Pw.7 is hawker - vender of kabab, where accused were eating kabab, when deceased A. Suresh was also present there on that day. Pw.8, Pw.9 and Pw.10 are the panch witnesses for spot, inquest, and seizure mahazars. Pw.11 is doctor, who was serving at Emergency Unit at Apollo Hospital, when deceased - Suresh was admitted in the said hospital. Pw.12 is doctor of Rajashekhar Hospital, where deceased was first treated for the injuries. Pw.13 is police constable, who was deputed for delivery of F.I.R., to the court. Pw.14 is Head Constable, who was deputed for transportation 7 S.C.No.28/2010 of dead body to Kempegowda Institute of Medical Science, Bengaluru for conducting autopsy. Pw.15 is another Head Constable, who according to the story of the prosecution arrested both accused on 25.6.2009. Pw.16 is the doctor, who conducted autopsy and issued P.M.Report marked at Ex.P.7. Pw.17 is P.S.I. who registered a case against accused by preparing F.I.R., and also conducted part of investigation. Pw.18 is Circle Inspector, who is second Investigating Officer and after completion of investigation, submitted charge sheet. Pw.19 is officer of F.S.L.Madivala, Bengaluru. Pw.20 is doctor at Apollo Hospital. Therefore, prosecution examined almost all material witnesses.
13. During course of arguments, learned Public Prosecutor vehemently argued contending that, evidence projected by prosecution clearly indicates the implication of these accused in the alleged incident. Deceased-Suresh succumbed to injuries while undergoing treatment at hospital. It is contended that, almost all witnesses are truthful witnesses, therefore, their testimony is sufficient for recording conviction. He also submitted that, evidence brought on record would clearly indicates that, these accused assaulted deceased - Suresh with stone and hallo block on his head with an intention to cause his death or with knowledge that such injuries are likely to cause his death. Therefore, act of the accused 8 S.C.No.28/2010 would constitute offence punishable U/s.302 of I.P.C. He also submitted that, there may be a some variance and minor contradictions and even minor improvements in the evidence led in by prosecution. But such variance or minor contradictions will not goes to the root of the case. Even the opinion of medical officer with ocular evidence is considered, there may be a slight discrepancies, but such minor discrepancies are not enough to discard the entire story of the prosecution. He further submitted that, presence of eyewitnesses to the scene of incident is most natural in which case their testimony cannot out rightly be rejected. Evidence projected by prosecution witnesses is very much clear that, witnesses have identified the accused. Therefore, even identity of the accused, who are real assailants is also proved by the prosecution beyond reasonable doubt. He submitted that, some omissions or contradictions are bound to occur when evidence is projected through truthful witnesses. He also argued contending that, cumulative effect of entire evidence on record would clearly establishes the guilt of the accused beyond reasonable doubt. Hence, he insisted for recoding conviction. In support of his submissions, he has relied upon the following decisions;
1. 1996 Crl.L.J.713 in a case of Sanjay Ramachandra Tarare V/s. State of Maharashtra.
9 S.C.No.28/2010
2. 1995 Supreme Court Cases (Cri) 1043 in a case of State of U.P. V/s. Roop Singh and others.
3. AIR 2004 SUPREME COURT 2329 in a case of Ram Bali V/s. State of Uttar Pradesh. (C)
4. AIR 2010 Supreme Court 361 in a case of Dilip Premnarayan Tiwari and another V/s. State of Maharashta (A) Per contra, learned advocate appearing for accused also vehemently argued contending that accused were not acquaintance with the witnesses, prior to the incident. Therefore, it is contended that, identity of the accused as real assailants has not been proved by the prosecution, since as per the story of the prosecution incident occurred during night hours. Therefore, contended that, it is unsafe to rely on the testimony of Pw.1 to Pw.6. They also argued contending that, Investigating Officer during investigation has not conducted test identification parade, which is mandate. Therefore, without conducting test identification parade, it is unsafe to place reliance on the testimony of these witnesses about identity of accused during trial. On this aspect, they have relied upon the following decisions;
1. AIR 1974 SUPREME COURT 1740 (A) in a case of The State of U.P. V/s. Hari Prasad and others.
10 S.C.No.28/2010
2. (1979) 3 Supreme Court Cases 319 in a case of Kanan and others V/s. State of Kerala.
3. AIR 1988 SUPREME COURT 345 (A) in a case of Hari Nath and another V/s. State of U.P.
4. (2012) 4 Supreme Court Cases 722(B)
5. Crl.ANo.337/2008 on the file of Hon'ble Supreme Court of India in a case of Vijay Shankar V/s. State of Haryana.
They have also argued contending that, names of these accused neither properly disclosed in F.I.R. nor witnesses have deposed about the identity of both accused during trial. Thus testimonies of witnesses is unworthy of credence, since witnesses have not actually seen the accused assaulting deceased. In their further arguments also they have categorically contended that, there are major discrepancies in prosecution evidence. It is argued contending that, no any corroborative evidence to accept the story of the prosecution with regard to accused assaulting the deceased. They submitted that, there are inconsistent versions and major contradictions, which creates entire doubt about the truthfulness of the story of the prosecution. They also argued contending that, these witnesses have deposed contrary statements, if their evidence is considered with their statements recorded by Investigating Officer during 11 S.C.No.28/2010 investigation. Even medical evidence also does not conclusively proved, the cause of death is only because of injuries sustained by deceased. Placement of injuries as stated by witnesses does not corroborate with the contents of complaint marked at Ex.P.1. They also argued contending that, very presence of so called eyewitnesses near the scene of incident is highly doubtful in which case their testimony does not deserves to be believed. They contended that, on close scrutiny of evidence of eyewitnesses it infers that, they have not actually seen the accused on that day, since witnesses in their evidence have stated that, assailants ran away from the spot of incident, in which case no conviction could be recorded. They also argued contended that, so called eyewitnesses are interested witnesses. Inordinate delay in lodging the F.I.R., which creates entire doubt in prosecution story. Thus, it is urged that, it is highly improbable to hold that, accused committed murder by assaulting with stones like Mo.3 and 4, which are not deadly weapons. They also argued contending that, there is no any direct evidence on record to implicate these accused as assailants. During the course of arguments they have drawn my attention to contradictions in the evidence of ocular witnesses. Therefore, with these among other grounds, inter -alia they argued contending that, prosecution has failed to prove the main ingredients of the offence punishable U/s. 302 of I.P.C.
12 S.C.No.28/2010
14. In support of their submissions they have also relied upon following decisions, with regard to contradictions and omissions in the evidence of prosecution witnesses, for trial of offence punishable U/s. 302 of I.P.C.
1. (2010) 6 Supreme Court Cases 525 (A) in a case of Niranjan Panja V/s. State of West Bengal.
2. (1973) 2 Supreme Court Cases 808 in a case of Kali Ram V/s. State of Himacha Pradesh.
3. (2012) 4 Supreme Court Cases 124 (A) in a case of Sampath Kumar V/s. Inspector of Police, Krishnagiri.
4. (2010) 2 Supreme Court Cases (Cri) 1176(B) in a case of Javed Masood and another V/s. State of Rajasthan.
5. AIR 1993 SUPREME COURT 1678 in a case of Thakarde Malaji Ramsangji V/s. State of Gujarat.
6. ILR 1995 KAR 2139 in a case of State of Karnataka V/s.Revappa @ Mudakappa.
7. AIR 1959 Supreme Court 1012 in a case of Tahsildar Singh and another V/s. State of U.P. Keeping these rival contentions as well as principles laid down in the above dictums in my mind, I have gone through the evidence on record.
13 S.C.No.28/2010
15. Before dealing with main contention of prosecution and defence, I feel it necessary to record my findings as to whether death of Suresh is homicidal death or not. On this aspect, I have gone through the medical evidence. As per the story of the prosecution soon after the incident, deceased was shifted to Rajashekhar Hospital at about 10.45 p.m. and thereafter, he was shifted to Apollo Hospital for higher treatment. Ex.P.5 is endorsement issued by Rajashekhar Hospital and on perusal of this document, it is clear that, Suresh was admitted in the said hospital with the history of assault. Further, it also appears that, doctor at hospital has clearly opined that, patient is not in a position to give statement, which means Suresh was unconscious and he was not in a position to state the cause for which he suffered injuries. Ex.P.16 is wound certificate, which is issued by Apollo hospital. In the wound certificate, it is clearly mentioned said Suresh was admitted to Apollo hospital on 21.6.2009 at about 11.25 p.m., and he was treated by Neuro Surgeon as well as Orthopedics. In the wound certificate three following injuries are indicated.
Sever Head Injuries;
1. Right temporo parietal fracture.
2. Right Temporo parietal sub dural hematoma present mass effect with medial shift.
14 S.C.No.28/2010
3. Brain stem infarction.
Further, it is opined by the doctor that, all above three injuries are grievous in nature. Ex.P.17 is Extract of Admission Register maintained by Apollo Hospital. On perusal of contents of Ex.P.17 also, it is clear that, doctor has clearly indicated that said Suresh sustained injuries and because of that he become unconscious. Ex.P.18 is copy of intimation to the police concerned about death of Suresh on 23.6.2009 at about 3.15 p.m. Ex.P.7 is P.M.Report and as per the opinion of the doctor cause of death is due to head injury sustained. In P.M.Report internal as well as external injuries are also indicated, which are as under;
External Injuries;
1. An healed abrasion measuring 2 cm X 2 cm covered by scab present over the forehead situated 8 cm above the left eyebrow.
2. An healed abrasion covered with scab measuring 3 cm x 1cm present over the right cheek situated 2 cm below the right eye.
3. A sutured wound measuring 5cm present over the right temporal region of the scalp situated 8 cm from top of the right ear.
4. An healed abrasion measuring 2 cm x 1 cm covered with scab present behind the right ear.
Internal injuries- Scalp- Extravasations of blood present over the right tempo- parietal, occipital region of the scalp. Fissure fracture present 15 S.C.No.28/2010 in the occipital region of the scalp. Base of the Skull. Fissure fracture present in the middle cranial fosse extending into posterior cranial fosse. Meanings torn at fractured sites. Brain and Spinal cord- covered by Subdural and sub arachnoids hemorrhage present over the cerebral hemisphere of the brain.
16. Therefore, considering the contents of wound certificate as well as P.M.Report, I am of the opinion that, death of Suresh is not suicide, but it is case of homicidal and moreover, defence of accused though total denial of prosecution case, but they never contended that, he died, due to suicide or unnatural death. In that view of the matter, I have come to the conclusion that, death of Suresh is homicidal.
17. In order to prove the guilt of the accused prosecution examined almost all material witnesses. Among them Pw.1 to Pw.6 claims to be the eyewitnesses. As per the story of the prosecution first incident occurred at Kabab Shop. Therefore, I feel it necessary to discuss the evidence of prosecution on this aspect. Pw.7, who according to the story of the prosecution is Kabab Vender. He states that, he is dealing in sale of Kabab opposite to IDBI Bank situated at 24th Main of J.P.Nagar. He states that, every day, he used to sale kabab in between 6.00 p.m. to 10.00 p.m. He also states that, deceased-Suresh used to pay visit to his 16 S.C.No.28/2010 shop for purchase of kabab. Therefore, he is acquaintance with him. He further states that, even accused are also acquainted with him since they are also his regular customers. In his evidence, he states that, on 21.6.2009 at about 9.00 p.m., deceased-Suresh had been to his kabab shop, at that time, accused have also came to his shop. He further states that, shoulder of deceased-Suresh came in contact with one of the accused. Therefore, there were some exchange of words between accused and Suresh. He further states that, it is he, who intervened and pacified the quarrel. He also states that, after that incident, deceased-Suresh left with his motor bike and accused have followed him. I have also gone through his cross-examination. Pw.7 is hawker and vendor of kabab. He also stated that, every day more number of customers will visit to his shop for purchase of kabab. It is suggested to Pw.7 that, no any tassel occurred on that day between accused and deceased-Suresh. But this has been specifically denied. It is also suggested to Pw.7 that, he is deposing falsely at the instance of police, but this suggestion is also denied. It is pertinent to note that, defence no where contended that, Pw.7 is not vendor of kabab and he is not hawker at 24th Main Road of J.P.Nagar. Thus, on careful scrutiny of version of Pw.7, I am of the opinion that, nothing has been elicited from his mouth to indicate that, he is deposing falsely before the court about the incident in which accused and 17 S.C.No.28/2010 deceased-Suresh had quarreled on that day at Kabab Sale Centre and more over, there is no any enimocity between Pw.7 and accused in order to discard his testimony. Therefore, story of the prosecution so for as the motive for incident cannot be disbelieved. Ofcourse, motive is not relevant fact in order to prove the guilt of the accused. But in the instant case, dispute or the quarrel started at Kabab Centre. Therefore, evidence of Pw.7 assumes much relevant and significant in order to prove the intention of the accused. With this background, now I will deal with evidence of each eyewitnesses and to record my findings as to whether their testimony is to be believed or not.
18. As per story of the prosecution, Pw.1/Ashok is the complainant as well as eyewitness to the scene of incident. In his evidence, he has stated that, on 21.6.2009 at about 9.30 p.m., he had been to C.D.Shop and while returning, he met deceased-Suresh, who came near Shamanna Garden Circle. He also stated that, when he and deceased-Suresh were talking with each other, accused came there and there were some exchange of words between accused and complainant. He further stated that, deceased-Suresh went towards Hanumantha Reddy Garden and accused chased him and accused No.1 assaulted deceased- Suresh with his hand. Due to which, deceased-Suresh fell down, at that 18 S.C.No.28/2010 time, again accused No.1/ K.Manjunatha took one hallo block with which he assaulted him on his left forehead. He also stated that, accused No.2/H.Manjunatha took a stone with which he assaulted Suresh on his head. He further states that, deceased-Suresh sustained bleeding injury on his head. He further states that, accused ran away from the spot of incident. He has also spoken about the presence of Pw.2/ Muniraju @ Gowda, Pw.3/Devaraj @ Devi, Pw.4/Raghu @ Achari and Pw.5/Anil, when incident took place. He states that, Suresh was admitted to Rajashekhar Hospital. He also stated that, he has lodged complaint with police. He also stated that, on that day, accused with an intention to cause death of Suresh, assaulted him. He further states that, he had seen the incident in the street light. He further stated that, he has clearly identified the accused, who are the assailants. He has identified complaint marked at Ex.P.1. He has also identified hallo block and stone, which are marked at Mo.3 and Mo.4. If examination-in-chief of Pw.1 is read with contents of complaint, it is clear that, complainant has stated almost all material facts as indicated in his complaint. He has spoken about the presence of other witnesses and he has also stated the placement of injury which deceased sustained due to assault by accused. I have also gone through his cross examination. On perusal of his cross examination, it appears that, there is bit improvement in his version. But so for as his witnessing the incident 19 S.C.No.28/2010 and also the presence of other witnesses has not been shaken. He has also stated about the shifting of injured/deceased to hospital in auto rickshaw. He has also admitted that, he and accused were classmates and he studied with accused from 1st standard to 7th standard. He also stated that, he has disclosing the names of assailants as K.Manjunath and H.Manjunath on the say of other persons. In his cross-examination, he states that, on that night, at about 10.30 p.m., he met police at police station. During course of cross-examination, it is suggested to Pw.1 that, he has not seen Mo.1 to Mo.5 prior to recording of his deposition. But these suggestions have been denied by Pw.1. In his cross examination, he also admitted that, he has not tried to give information about the incident to the family members of deceased-Suresh. He also admitted that, he has not disclosed about the fact of proceeding to hospital, in his complaint. In his cross examination, he has also stated that, Pw.3/Devaraj, Pw.2/Muniraju, Pw.5/Anil were took deceased to hospital. Thus, on close scrutiny of entire evidence of Pw.1, he is very much consistent about the identity of these two accused as assailants and also his version so for as assault by these accused to deceased with hallo block and stone and causing head injuries remained unshaken.
20 S.C.No.28/2010
19. Pw.2/Muniraju is another eyewitness to the scene of incident. In his evidence, he states that, on 21.6.2009 at about 9.30 p.m., he along with Pw.4/Raghu, Pw.5/Anil, Pw.3/Devaraj were present near Shammanna Garden Circle. At that time, Pw.1/Ashok was proceeding after buying one C.D. He also states that, at that time, deceased- Suresh came there on his motor bike and he stopped his motor bike and while he was talking with Pw.1/Ashok, these two accused came there and picked up quarrel with deceased- Suresh by abusing him. Thereafter, deceased- Suresh went in side Hanumantha Reddy Garden and accused chased him. He further states that, accused No.1/K.Manjunath assaulted deceased with his hand. Due to which, deceased- Suresh fell down. He also states that, both accused assaulted Suresh with stone on his head. Thereafter, he states that, he went to the spot of incident and accused ran away from the spot of incident. He also spoken about sustaining head injury by deceased- Suresh. He also stated that, deceased- Suresh was not in a position to speak. He further states that, they took Suresh in an auto rickshaw and got admitted him at Rajashekhar Hospital. He further states that, there is street light at Shamanna Garden Circle. He has identified hallo block marked at Mo.3 and stone marked at Mo.4, with which accused assaulted Suresh. On going through his cross examination, it is clear that, Pw.2 is dealing with real estate business and he is having his office 21 S.C.No.28/2010 near Shamanna Garden Circle. He also stated that, he has seen the accused on the day of incident. He states that, on that day, he was watching live cricket match between India V/s. Pakisthan, which was being telestated. He states that, his office is situated at Shamanna Garden Circle. He further states that, he along with his friends by name Devaraj, Anil, Raghu, were watching live cricket telecaste. He also states that, he did not watch live cricket telecaste, since he had been to hospital. He further states that, on next day of the incident, he had been to J.P.Nagar police station. In his cross-examination, he states that, he had not seen the persons, who took the deceased towards Hanumantha Reddy Garden, prior to the day on which the incident took place. He states that, house of Pw.1 is situated within the distance of one or ½ km., from Shamanna Garden Circle. He also states that, he went to hospital along with Srinivas (Pw.6/Brother of deceased) and he was in the hospital till 1.00 a.m. He further states that, entire incident occurred within 5 minutes. During his cross examination, it is suggested to Pw.2 that, he never went to Shamanna Garden Circle on that day along with Raghu, Anil, Devaraj. But this suggestion has been denied. It is suggested to Pw.2 that, it is Pw.6/Srinivas, who bring him to court to depose on his behalf. But this suggestion has been denied. It is suggested to Pw.2 that, on 21.6.2009 he never went to hospital. But this has been specifically denied. It is also 22 S.C.No.28/2010 suggested to Pw.2 that, it is the first time that he is seeing Mo.3 to 5, but this suggestion has been also denied by Pw.2. Thus, on going through the entire evidence of Pw.2, his version so for as assaulted by accused No.1 and 2 on deceased- Suresh causing head injury has not been shaken.
20. Pw.3/Devaraj is another eyewitness to the scene of incident. He also stated that, on 21.6.2009 at about 9.30 p.m., he along with Muniraju, Anil, Raghu were standing near Shamanna Garden Circle, at that time, Pw.1 was proceeding there and even deceased- Suresh also came there on his motor bike and he was talking with Pw.1/Ashok. He further states that, accused came there from back side of deceased- Suresh and started to abuse him. He also states that, they chased Suresh in side the Hanumantha Reddy Garden and accused No.2/H.Manjunath assaulted him with stone on his cheek. He also stated that, deceased- Suresh fell down, at that time another accused assaulted him with stone on his head. Thus, he has clearly stated that, both accused assaulted Suresh and they ran away from the spot of incident. He further states that, they got admitted Suresh to Rajashekhar Hospital. He also stated that, Suresh was not in a position to speak. He also states that, incident occurred within two or three minutes and he has seen the incident. In his cross examination, he states that, on that day, he had been to office of Pw.2/Muniraju to watch 23 S.C.No.28/2010 live cricket match between India V/s. Pakisthan which was being telecasted. During cross examination, he states that, they came out from the office of Pw.2/Muniraju for taking tea. In his cross examination, he states that, it is the first time that he is saying that accused No.2/ H.Manjunath assaulted Suresh with stone on his cheek. He has also stated that, it is the first time that, he is saying that accused No.1 assaulted Suresh with stone on his head. He states that, he has seen the incident in street light.
21. Pw.4/Raghu is another eyewitness to the scene of incident. In his evidence he states that, on 21.6.2009 at about 9.30 p.m., he along with his friends by name Pw.5/Anil, Pw.3/Devaraj, Pw.2/Muniraju were near Shamanna Garden Circle. At that time, deceased - Suresh came there on his Hero Honda Motor Bike. He also states that, deceased- Suresh was talking with his friend -Pw.1/Ashok, at that time, accused came there and chased him towards Hanumantha Reddy Garden, where accused No.1/K.Manjunath assaulted him with stone on his head. He further states that, accused ran away from the spot of incident by the time, he and his friends reached the spot of incident. He also states that, brother of Suresh also came there. He states that, Suresh sustained bleeding injury on his head and he became unconscious. He further states that, sister of Suresh 24 S.C.No.28/2010 also came there and thereafter they have shifted Suresh to Rajashekhar Hospital. He states that, deceased-Suresh was not in a position to speak. He has also stated that, prior to the incident, there was galata between accused and Suresh at Kabab Shop. He further states that, he has seen the incident in a street light. He states that, accused No.1/K.Manjunath assaulted with small stone on his head, while accused No.2/H.Manjunath assaulted Suresh with hallo block. He further states that, Suresh was shifted to Apollo Hospital from Rajashekhar Hospital. He has also stated that, Suresh died, while undergoing treatment at Apollo Hospital. This witness has clearly identified these accused as assailants. He also identified hallo block marked at Mo.3 and one small stone marked at Mo.4. I have also gone through his cross examination. He states that, prior to the incident, he had not seen these accused. In his cross examination, he states that, on that day, he had been to the office of his friend to watch live cricket telecaste. In his further cross examination, he states that, Suresh was shifted to hospital in a passenger auto rickshaw.
22. I have also gone through the evidence Pw.5/ Anil, who is another eyewitness to the scene of incident. This witness has also stated that, on 21.6.2009 at about 9.30 p.m., he along with his friends by name Muniraju, Devaraj and Raghu were near Shamanna Garden Circle, at that 25 S.C.No.28/2010 time, deceased-Suresh came there on motor bike and said Suresh was talking with his friend -Pw.1/Ashok. He further states that, at that time, accused came from back side of Suresh and chased him towards in side the Hanumantha Reddy Garden. He further states that, accused No.1/K.Manjunath assaulted deceased-Suresh with his hand. Due to which, he fell down. He further states that, both accused have assaulted him with two stone on his head. He further states that, he and his friends went near the spot of incident, meanwhile, brother of Suresh also came to the spot. He states that, injured-Suresh was shifted to Rajashekhar Hospital. He states that, Suresh sustained injury on his back portion of head and blood was oozing from right ear. He states that, he had seen the incident in street light. He also stated that, Suresh was not in a position to speak. He also states that, Suresh succumbed to the injuries while undergoing treatment at Apollo Hospital. This witness has clearly identified the accused as assailants and he has also stated that, he can identified Mo.3 and Mo.4, which are hallo block and stone, with which accused have assaulted deceased-Suresh. During course of cross examination, it is suggested to Pw.5 that, it is the first time, that he is seeing accused, but this suggestion has been denied. Therefore, even evidence of Pw.5 will also discloses that, it is accused No.1 and 2, who assaulted Suresh on his 26 S.C.No.28/2010 head with hallo block and stone, due to which deceased sustained head injury.
23. Pw.6/Srinivas is elder brother of deceased-Suresh. I have gone through his testimony. Though Pw.6 states that, he has also seen the incident. But in my opinion, he has not actually seen the act of accused assaulting Suresh. Because if I perused the evidence of Pw.2, he states that, entire incident took place within 5 minutes, whereas Pw.3 states that, incident occurred within 2 or 3 minutes. Further, as per version of Pw.2, house of deceased i.e. house of Pw.6 is away from ¼ km from the spot of incident and moreover, there is no any conclusive proof of giving message of incident to Pw.6/Srinivas by any of the eye-witnesses. Even for moment, it is held that, some unknown persons gave information about the incident to the Pw.6/Srinivas, but by the time Srinivas reached the spot of the incident, already incident was over and even accused was not present there. Thus, if I considered the evidence of Pw.6 with version of Pw.2 and Pw.3 and also having regard to the distance of house of Pw.6 from the spot of incident, it is highly improbable to accept his version about his witnessing incident by him. At the most Pw.6/Srinivas reached the spot of incident only after happening of incident. He and Pw.1 to Pw.5 were shifted the deceased to Rajeshekhar Hospital in auto rickshaw. 27 S.C.No.28/2010 Hence, I have made clear that, Pw.6 has not witnessed act of accused assaulting deceased-Suresh.
24. Pw.12 is Dr.Manjunath at Rajshekhar Hospital. As per the story of the prosecution, at first instance, deceased was shifted to Rajshekhar Hospital. Therefore, now I will deal with his version. He states that, on 21.6.2009 at about 10.45 p.m., some public brought him to Rajshekhar Hospital and told that, some one have assaulted Suresh at about 10.30 p.m. He further states that, persons, who brought him to Hospital told that, Suresh has been assaulted with stone on his head. He further states that, Suresh was unconscious and he was feeling difficulty in breathing. He also states that, at about 11.00 p.m., police had been to the hospital to record his statement, but they could not record statement of Suresh as he was unconscious. On perusal of the Ex.P.5, it is very much clear that, on 21.6.2009 at about 11.00 p.m., police concerned had been to Rajshekhar Hospital. Further in Ex.P.5 it is clearly mentioned that, patient not fit to give his statement. Further, on perusal of the Ex.P.5, time and date of incident is also indicated. Suresh was admitted in Rajashekhar Hospital with the history of assault. Further, Pw.12 in his evidence states that, on the same day, at about 11.30 p.m., injured- Suresh was shifted to Apollo hospital. Though Pw.12 states that, Suresh 28 S.C.No.28/2010 was admitted in Rajashekhar Hospital by the public, but on entire evaluation of evidence of Pw.12, one thing is very much clear that, Suresh was shifted to Rajashekhar Hospital on 21.6.2009 at about 10.45 p.m. and thereafter he was shifted to Apollo Hospital on the same day.
25. Pw.11 is Dr.Richard Edwin at Emergency Ward of Apollo Hospital. He states that, on 21.6.2009 at about 11.25 p.m., patient by name Suresh was brought to emergency Apollo Hospital, Bengaluru for treatment with the history of assault on his head on 21.6.2009. He also states that, patient-Suresh was unconscious and he noticed bleeding in his right ear and even he deposed that, he already took treatment at Rajashekhar Hospital. He also states that, he shifted Suresh to ICU, for further treatment or management. He also stated about the injuries, which he observed on the body of Suresh. He states that, Suresh was accompanied by his friend-A.Srinivas, who gave history about the incident. I have also gone through the cross examination. Ex.P.16 is wound certificate, where in I have noticed three injuries, which I have already indicated in foregoing paras of this judgment. In his cross examination he states that, Ex.P.16 was issued on 22.2.2013. He also states that, Dr.Jaganmohan Reddy issued Wound Certificate. Said Jaganmohan Reddy has been examined as Pw.20, who has also stated 29 S.C.No.28/2010 about the injuries, which he observed when Suresh was admitted to Apollo Hospital. Ofcourse, Pw.20 did not appear before this court to face his cross examination by defence. But so for as evidence of Pw.11 is considered, it is abundant clear that, after admitting Suresh in Rajashekhar Hospital, he was shifted to Apollo Hospital on the day of incident only.
26. Pw.13 is police constable, who was deputed for delivery of F.I.R. He states that, on 22.6.2009 he delivered F.I.R. to the Learned Magistrate at about 11.00 p.m. On perusal of Ex.P.10, which is original F.I.R., it appears that, case against accused is registered in Cr.No.337/2009 on 21.6.2009 at about 11.00 a.m.
27. Thereafter investigation started and Ex.P.2 is Spot Panchanama conducted on 22.6.2009. To prove the contents of spot panchanama, prosecution examined Pw.8/K.Jagadhish, who is panch witness. I have gone through his version. This witness has stated that, police have conducted panchanama as per Ex.P.2. At that time, police have seized one rubber piece, one chapel, hallo block and stone. He has stated that, Pw.1/Ashok shown the spot of incident. This witness has identified those materials at Mo.1 to 4. I have also gone through his cross examination. No any damaging statement has been deposed by Pw.8, in 30 S.C.No.28/2010 order to disbelieve his version. Ofcourse, he states that, police have not issued prior notice to him for conducting mahazar. But merely because police concerned have not issued prior notice intimating this Pw.8 to accompany police to conduct mahazar is not by itself a ground to reject his testimony.
28. Pw.9/Achyutha Rao is panch witness for inquest panchanama marked at Ex.P.4, who in his evidence has stated that, on 23.6.2009 inquest mahazar conducted at Apollo Hospital. He also states that, he noticed injuries on right cheek, back portion of right ear, right forehead and back portion of head on the dead body of deceased-Suresh. He states that, police have shown him the injuries, which Suresh sustained. Ex.P.4 bears the signature of Pw.9, which is marked at Ex.P.4(A). Inquest Mahazar conducted on 26.3.2009 in between 5.45 p.m. and 7.45 p.m. Even in his cross examination Pw.9 has clearly stated that, on that day, he had been to Apollo Hospital at about 5.00 p.m. This witness has denied other suggestions as suggested by defence counsel. Thus, nothing has been elicited during course of cross examination to infer or to hold that, this witness is deposing falsity before the court so for as conducting of Inquest Mahazar.
31 S.C.No.28/2010
29. Pw.10/Lakshminarayana Rao is another panch witness for seizure mahazar marked at Ex.P.3 under which one shirt marked at Mo.5 is recovered. This witness has also supported the story of the prosecution, so for as conducting seizure mahazar marked at Ex.P.3. This witness is paper vendor/agent. In his cross examination, he states that, P.S.I./Srinivas called him for conducting mahazar. Ex.P.3 bears the signature of this witness as well as signature of Pw.18, who is Police Inspector. He further states that, P.S.I./Srinivas might have put his signature on Ex.P.3. This witness has identified shirt marked at Mo.5. This witness has denied other suggestions. In his further cross examination, he states that, on that day, at about 9.00 a.m. or 9.15 a.m., he had been to police station. On perusal of Ex.P.3, it appears that, cloth seizure mahazar is conducted in between 8.30 a.m., and 9.30 a.m. Though there is bit variation about conducting of seizure mahazar marked at Ex.P.3 as stated by Pw.10, but so for as identification of Mo.5 by Pw.10 is very much consistent and moreover due to loss of human memory also there may be a some variation in the statement of Pw.10 and contents of Ex.P.3 about the timings of conducting mahazar. Though Pw.10 is subjected to cross examination in length, but considering the entire evidence of Pw.10, I do not find any substance, in the contention of defence that Pw.10 is a stock witness. Thus, I have believed his version.
32 S.C.No.28/2010
30. Pw.14/Sundar Raj is Head Constable, who was deputed for transportation of dead body to KIMS Hospital, Bengaluru for conducting autopsy. He states that, on 23.6.2009 as per the directions of Pw.18, he transported the dead body to the KIMS Hospital. On 24.6.2009 autopsy was conducted at KIMS Hospital, Bengaluru.
31. Pw.16/Naveen Kumar is doctor at KIMS Hospital, who conducted autopsy. On perusal of his version, it appears that, Dr.Naveen Kumar who is Associate Professor at KIMS Hospital, Bengaluru conducted autopsy on 24.6.2009 in between 11.05 a.m. and 12.30 p.m. Ex.P.7 is P.M.Report, in which external as well as internal injuries are indicated. As per the opinion of Pw.16, Suresh died due to head injury. Pw.16 in his cross examination states that, injury No.1 as indicated in P.M.Report is not head injury. He further states that, injury No.3 is scalp injury and not head injury. He further states that, if injury caused to head, he is not treated for long time, then the blood will be oozing. On 13.8.2009 Investigating Officer concerned has got opinion about the examination of weapon i.e. hallo cement block and one stone. Ex.P.8 is opinion or report regarding weapon examination. In Ex.P.8, Pw.16 has opined that external injuries No.1 to 4 and internal head injuries would have been caused by article No.3 and 4, which are hallo block and stone.
33 S.C.No.28/2010
32. As per the story of the prosecution, both accused arrested on 25.6.2009. To prove arrest of both accused, prosecution examined Pw.15/Putteeranna, who is Head Constable. I have gone through his evidence. Both accused No.1 and 2 were apprehended by police on 25.6.2009 and on the same day, at about 10.30 a.m., they were produced before Pw.18, who arrested the both accused.
33. Prosecution examined Pw.19/Purushothama, who is Scientific Officer at F.S.L., Bengaluru. I have gone through his version. If entire evidence of Pw.19 is considered, it appears that, sample blood/Mo.6, which is sent to F.S.L., was perished. Therefore, Mo.1 to Mo.5 were not scientifically examined with Mo.6, which is blood sample. I feel it necessary to reproduce relevant portion of cross examination of Pw.19, which reads thus;
"¥ÀjÃPÀëÉUÉƼÀ¥Àr¹zÁUÀ £Á£ÀÄ AiÀiÁªÀ AiÀiÁªÀ PÀ®gï EzÉ CAvÁ ªÀgÀ¢AiÀÄ°è £ÀªÀÄÆzÀÄ ªÀiÁrgÀĪÀÅ¢®è. £À£Àß ªÀgÀ¢ ¤¦-19 gÀ°è £Á£ÀÄ ¥ÀjÃPÉëUÉ §¼À¹zÀ gÁ¸ÁAiÀĤPÀzÀ ¥ÀæªÀiÁtªÀ£ÀÄß §gÉ¢gÀĪÀÅ¢®è ªÀÄvÀÄÛ gÁ¸ÁAiÀĤPÀ D ¥ÀæªÀiÁtªÀ£ÀÄß FUÀ ºÉüÀ®Ä §gÀĪÀÅ¢®è. §¼À¹zÀ gÁ¸ÁAiÀĤPÀ ¥ÀæªÀiÁtzÀ°è ªÀåvÁå¸ÀªÁzÀgÉ ¥ÀjÃPÉëAiÀÄ ¥Às°vÁA±À ªÀåvÁå¸ÀªÁUÀÄvÀÛzÉ. mÁPÁAiÀÄ ¥ÀjÃPÉëAiÀÄ ¥Às°vÁA±À ¤zÀsðj¸ÀĪÀÅzÀÄ CAwªÀÄ ºÀAvÀzÀ°è gÀÆ¥ÀÅUÉƼÀÄîªÀ Qæ¸ÀÖ¯ïUÀ¼À DzsÁgÀzÀ ªÉÄÃ¯É J£ÀÄߪÀÅzÀÄ ¸Àj. ¤¦.19 gÀ°è Qæ¸ÀÖ¯ïUÀ¼ÀÄ gÀÆ¥ÀÅUÉÆAqÀ §UÉÎ £ÀªÀÄÆ¢¹gÀĪÀÅ¢®è. JA.M. 6 gÀ gÀPÀÛzÉÆA¢UÉ JA.M.1 jAzÀ 7 gÀ ªÉÄÃ¯É gÀPÀÛzÀ 34 S.C.No.28/2010 PÀ¯ÉUÀ¼À£ÀÄß MAzÉà DVzÉAiÀÄ JAzÀÄ ¥ÀjÃQë¸À®Ä £ÀªÀÄä PÁAiÀiÁð®AiÀÄPÉÌ PÀ¼ÀÄ»¹PÉÆqÀ¯ÁVvÀÄÛ. DzÀgÉ JA.M.6 gÀ gÀPÀÛ DUÀ¯Éà PÉƼÉvÀÄ ºÉÆÃVzÀÝjAzÀ CzÀÄ ¥ÀjÃPÉëUÉ AiÉÆÃUÀåªÁVgÀ°®è. »ÃUÁV JA.M.1 jAzÀ 5 gÀ ªÉÄðgÀĪÀ gÀPÀÛzÀ PÀ¯ÉUÀ¼À£ÀÄß JA.M.6 ªÀÄÁzÀjAiÀÄ gÀPÀÛzÉÆA¢UÉ ºÉÆAzÁtôPÉ ªÀiÁr ¥ÀjÃQë¹gÀ°®è. "
Therefore, version of Pw.19 as well as contents of Ex.P.19 are not much helpful for prosecution.
34. I have also gone through the evidence of Investigating Officers, who are examined as Pw.17 and Pw.18. Both Investigating Officers have deposed about the investigation, which they did in this case. Pw.17 is first Investigating Officer, who was serving as P.S.I., at J.P.Nagar police station, when incident took place. He has spoken about the registration of crime against accused in Cr.No.337/2009, conducting of spot mahazar as per Ex.P.2, recording of statements of witnesses. He also states that, he had been to Apollo Hospital for recording statement of injured-Suresh, but he could not record his statement as Suresh was not in a position to give his statement. He also stated about seizure of Mo.1 to 4 from the spot. Even Pw.18 has also stated that, on 23.6.2009, he took further investigation from Pw.17/Srinivas and on the same day, he went to Apollo Hospital, where he obtained Death Memo. He has also stated that, he has conducted Inquest Mahazar as per Ex.P.4. He has also stated 35 S.C.No.28/2010 about conducting of mahazar marked at Ex.P.3, in the presence of panch witnesses. He identified seized Shirt as Mo.5. He also stated about recording of statements of witnesses. He further states that, he has recorded voluntary statements of accused marked at Ex.P.13 and Ex.P.14. Thus, if I perused the evidence of Pw.17 and Pw.18 coupled with evidence of panch witnesses, I am of the opinion that, contents of spot mahazar, seizure mahazar as well as inquest mahazar are almost proved by prosecution. Panch witnesses have clearly identified material objects marked at Mo.1 to Mo.5.
35. Now, I will deal with contention of defence. It is specific contention of defence that, evidence projected by prosecution cannot be accepted for more than one reason. It is their specific case that, there is delay in lodging F.I.R., which has created doubt in the entire story of the prosecution. On this aspect, I have perused material on record. Ofcourse, in most of the cases, delay may create doubt about truthfulness or correctness of the story of the prosecution. But merely because there is delay in lodging F.I.R. and merely because there is delay in sending F.I.R. to the court, is not only criteria to reject the entire case of the prosecution. Defence is expected to substantiate that, due to false implication of accused, delay has been caused. In this case, on perusal of 36 S.C.No.28/2010 entire evidence on record, I do not find any substance in the contentions of defence that, they have falsely implicated and because of that only, the delay has been caused. Incident occurred on 21.6.2009 at about 9.30 p.m. and on the same day, at about 11.00 p.m., written complaint is lodged by Pw.1. On the basis of such written complaint, police have registered a case against accused No.1 and 2 in Cr.No.337/2009 for the offence punishable U/s. 307 of I.P.C. R/w.Section 34 of I.P.C. It is borne out from the records that, soon after the incident, victim -Suresh shifted to Rajashekhar Hospital, Bengaluru for treatment. Though brother of deceased by name Srinivas was also present at Hospital, he has not lodged any complaint. It is human tendancy that first and foremost thing which a man of ordinary prudence would act under the circumstance is that instead of lodging complaint, he will take care of the injured. In this case also soon after the incident, witnesses shifted the deceased-Suresh to Rajshekhar Hospital and only thereafter written complaint is lodged in which case delay about 1 ½ hours in lodging F.I.R. is not fatal to the case of the prosecution and more over, no any circumstance is made out by defence in order to held that, because of false implication of accused, there was delay in registering the case. F.I.R. was delivered to the court on next date i.e. on 22.6.2009 at about 11.00 a.m. Ofcourse, there is inordinate delay in sending F.I.R. to the Learned Magistrate. But this 37 S.C.No.28/2010 circumstance is not suffice to hold that, accused have been falsely implicated in this case.
36. Yet another main defence of accused is that, Investigating Officer has not conducted test identification parade, since identity of accused by the prosecution witnesses has not been proved by the prosecution. Ofcourse, identity by prosecution witnesses about the complicity of accused in the alleged crime is most material fact in order to prove the guilt of the accused beyond reasonable doubt. More particularly, when incident took place during night hours, prosecution is expected to prove the identification of accused by prosecution witnesses. On this aspect, I have gone through the evidence of Pw.17 and Pw.18, who in their cross examination, they have stated that, both accused were strangers to the complainant. In this case, no any test identification parade is conducted by Investigating Officer during investigation. But it is pertinent to note that, names of both accused finds place both in complaint as well as in F.I.R. Pw.1 to 5 in their evidence have clearly stated that, they have witnessed the incident. They have also stated that, they have seen the accused assaulting Suresh as there was sufficient street light. In addition to this, though Pw.17 and Pw.18 have stated that, accused are strangers to the complainant but during course of cross 38 S.C.No.28/2010 examination, Pw.1 clearly stated that, both accused were his classmates. He also stated that, he studied his first standard up to his 7th standard along with both accused. He also stated that, he and accused have studied in the same classroom up to 7th standard. In addition to this so for as identity of accused is concerned, another material witness is Pw.7, who in his evidence has clearly stated that, both accused are his regular customers. He has seen these two accused on that day in his Kabab shop. He also stated that, after the incident, which occurred at his Kabab shop, deceased went on his motor bike and these accused followed him. Therefore, Pw.7 is not stranger to the accused. His evidence so for as identity of accused by prosecution witnesses cannot be doubted. Ofcourse, Pw.2 in his cross-examination stated that, he had not seen these accused prior to the incident, though in his examination-in-chief, he states that, accused No.1 and 2 are known to him. But in his evidence, he has stated the overt act of accused and he further states that, he saw the accused in street light. Even for that matter, Pw.1, Pw.3, Pw.4 and Pw.5 have also stated that, they saw the accused in the street light at Shamanna Garden Circle. It is borne out from the records that, halogen street light was put on and they have seen the accused, who chased deceased-Suresh and assaulted him by causing head injury. Thus, they had an opportunity to see the accused.
39 S.C.No.28/2010
37. Ofcourse, I have gone through the cross-examination of Pw.17, who in his cross-examination states as under;
" ¥Áæ¸Á.4 gÁWÀªÉÃAzÀæ £À£Àß ¸ÀªÀÄPÀëªÀÄ £Á£ÀÄ UÀ¯ÁmÉAiÀÄ°è ±ÁªÀÄtÚ UÁqÀð£ï£À°ègÀĪÀ ©Ã¢ ¢Ã¥ÀzÀ ¨É¼ÀQ£À°è £ÉÆÃrzÉÝÃ£É CAvÀ £À£Àß ¸ÀªÀÄPÀëªÀÄ ºÉýPÉ PÉÆnÖ®è JAzÀgÉ ¸Àj ."
38. Thus, even if it is held that, Pw.4 has not stated about street light when he gave his statement before Investigating Officer, during investigation, but other witnesses have clearly stated that, they have seen the incident in the street light. Therefore, under these circumstances, test identification parade is not required. I am satisfied that, witnesses have identified these accused as real assailants. In that view of the matter contention of defence that, prosecution has not proved the identity of accused by prosecution witnesses has no any substance. Thus, principles laid down in the decisions as indicated herein before, which are relied upon by defence on the aspect of identification of accused are not helpful to the defence/accused, since in this case there is sufficient direct evidence on record to hold that, prosecution witnesses had an opportunity to see the accused assaulting deceased-Suresh.
39. Yet another contention of defence is that, all witnesses i.e. Pw.1 to Pw.5 are friends of deceased-Suresh and they are chance 40 S.C.No.28/2010 witnesses. Therefore, it is contended that, their testimonies cannot be believed. On this aspect also, I have also gone through the evidence on record. It is almost admitted fact that, Pw.1 to Pw.5 are the close friends of deceased. Chance witness is one whose presence at the scene, place, date and time of occurrence is doubtful. Evidence of Pw.1 discloses that, on that day, he was returning to home after purchase of C.D. Further, Pw.2 in his cross-examination stated that, house of Pw.1/Ashok is situated within ¼ or ½ k.m. from the Shamanna Garden Circle. In which case, presence of Pw.1 near Shamanna Garden Circle, when deceased- Suresh came there on his motor bike, cannot be doubted. Further, evidence of Pw.2 discloses that, he is doing real estate business and his office is situated at Shamanna Garden Circle. This fact has not been denied by defence. Evidence brought on record also clearly infers that, on that day, Pw.3, Pw.4 and Pw.5 had been to the office of Pw.2 since on that day live cricket match between India V/s. Pakisthan was being telecasted. Therefore, on that day, Pw.2 to Pw.5 were present near Shamanna Garden Circle, when accused chased deceased-Suresh and have assaulted him in Hanumantha Reddy Garden. Evidence of Pw.3 discloses that, he was present there along with Pw.2, Pw.4 and Pw.5 for taking tea. Therefore, considering the evidence of Pw.2 to Pw.5, I am satisfied with the explanation of witnesses for their presence at the scene, 41 S.C.No.28/2010 place, date and time of the occurrence. Their presence at the scene of offence is most natural and they are natural witnesses, in which case their testimony cannot be discarded on the ground that, they are the chance witnesses. Therefore, contention of defence that, Pw.1 to Pw.5 are chance witnesses cannot be accepted. On the other hand, there is sufficient evidence to believe that, Pw.1 to Pw.5 were present at Shamanna Garden Circle, when deceased-Suresh came there on his motor bike.
40. Another contention of defence is that, Pw.1 to Pw.5 are close friends of deceased, therefore, their testimony cannot be believed. Ofcourse, it is admitted fact that, Pw.1 to Pw.5 were closely associated with deceased-Suresh. Though they are not related to Suresh, but it is borne out from the records that, their relationship with deceased-Suresh was cordial. But it is pertinent to note that, mere fact that, Pw.1 to Pw.5 are close friends of deceased-Suresh, would not by itself be sufficient to discard their evidence. Further, nothing on the record to indicate that, Pw.1 to Pw.5 have deposed against accused since they had enimical terms with accused. No where it is brought on record that, Pw.1 to Pw.5 have deposed against accused, since their relationship with accused was not cordial. Hence, no any animosity between Pw.1 to Pw.5 and and these accused. No circumstances are made out by defence in order to hold that, 42 S.C.No.28/2010 Pw.1 to Pw.5 are most interested in recording conviction against accused. Therefore, contention of defence that, accused have been falsely implicated by Pw.1 to Pw.5 and have deposed falsity against accused cannot be accepted.
41. Another contention of the defence is that, evidence of Pw.1 to Pw.5 cannot be accepted or believed, since there are contradictions and discrepancies on travial matters in the evidence of Pw.1 to Pw.5. While appreciating the oral testimony of witnesses, court should keep in mind that, there is every possibility of loss of human memory due to lapse of time. In this case, alleged incident occurred during the month of June 2009 and evidence of material witnesses is recorded after more than one year, after the incident, in which case minor contradictions and some improvements and omissions are bound to occur when evidence is projected through truthful witnesses. Merely because there are some minor contradictions or omissions or some improvements in the story of the prosecution during trial is not a ground to discard the entire story of the prosecution.
42. On careful scrutiny of evidence of Pw.1 to Pw.5, it appears that, there are some minor contradictions. As for instance, Pw.1 in his 43 S.C.No.28/2010 evidence stated that, accused No.1 assaulted Suresh with his left hand. Thereafter, again accused No.1 assaulted him with hallo block on and over left eye i.e. on forehead, while accused No.2 assaulted Suresh with stone on his head. But Pw.2 in his evidence states that, accused No.1/K.Manjunath assaulted Suresh with his hand, due to which, Suresh fell down, at that time both accused assaulted Suresh with stones on his head. Pw.3 in his evidence states that, accused No.2/H.Manjunath assaulted Suresh with stone on his cheek, due to which he fell down, at that time, another accused assaulted Suresh with stone on his head. Pw.4 stated that, accused No.1/K.Manjunath assaulted Suresh with his hand, due to which he fell down, at that time both accused assaulted Suresh with stones on his head. While Pw.5 in his evidence stated that, accused No.1 assaulted Suresh with is hands, due to which he fell down, at that time each accused assaulted Suresh with one stone each. Thus, on strict scrutiny of version of Pw.1 to Pw.5, I do admit that, there are some minor contradictions between their versions. But, such minor contradictions are bound to occur due to loss of human memory. But one thing is clear that, Pw.1 to Pw.5 have clearly stated that, both accused have assaulted with stones, because hallo block is almost similar to stone and moreover, Pw.1 to Pw.5 have stated that, due to assault, deceased-Suresh sustained injuries on his head. Therefore, 44 S.C.No.28/2010 cumulative effect of evidence of Pw.1 to Pw.5 would clearly indicates that, on that day, Pw.1 to Pw.5 have witnessed the scene of assaulting Suresh by these two accused. If I carefully scrutinized their evidence with medical evidence also, there are some contradictions about the placement of other injuries other than the head injuries. Therefore, there are some minor contradictions between medical evidence and ocular evidence. But it should not be forgotten that the eye -witnesses may not give a very correct and accurate account of the version and may at places make exaggeration or may fail to give correct facts either on account of lapse of memory or on account of inability to observe minutely or to recount and recite correctly. It should also be borne in mind that sometimes the medical officers also do not bestow sufficient care while performing examinations and their opinions may not be properly formed on account of inadequate or defective examinations or lack of complete knowledge. It is hardly fair to expect a complete and perfect correspondence between the medical evidence and the oral testimony, based on what the witnesses saw with their own eyes. Naturally, the Court must carefully examine the discrepancies, and if it is reasonably possible to arrive at a substantial and true version of the prosecution case, the Court should not adopt the easy course of throwing away the prosecution case on the alleged discrepancies between the medical evidence and the eye-testimony and more over, 45 S.C.No.28/2010 prosecution case cannot be doubted merely on the ground that, witnesses have not stated all injuries as indicated in Wound Certificate as well as, as indicated in P.M.Report. When ocular evidence is very much clear about attacking deceased-Suresh by accused and further ocular evidence discloses that, both accused assaulted and caused head injuries. I have no compelling reasons either to reject or to suspect their version, since their presence at the time of occurrence near the place of incident is proved by the prosecution. Thus, minor discrepancies on travial matters in the evidence of natural witnesses does not affect the credibility of prosecution version.
43. I have also gone through the statements of accused recorded U/s. 313 of Cr.P.C. Both accused in their statements though denied all incriminating evidence appearing against them, but accused No.1 stated as under;
" ..........D ¢£À £Á£ÀÄ £ÀªÀÄä ªÀÄ£ÉAiÀÄ §½ EgÀĪÀ gÀ¸ÉÛAiÀÄ°è PÀA© PÉ®¸À ªÀiÁqÀÄwÛzÉÝ."
Accused No.2 in his statement recorded U/s. 313 Cr.P.C., stated as under;
" .........D ¢£À £Á£ÀÄ £À£Àß ªÀÄ£ÉAiÀÄ°è EzÉÝ . £À£Àß vÁ¬ÄUÉ ºÀĵÁjgÀ°®è. "
Thus, it infers that, both accused have taken plea of alibi. But it is pertinent to note that, this plea of alibi has not at all been suggested to 46 S.C.No.28/2010 any of the witnesses, during trial. Contention of accused has not been substantiated. In that view of the matter, it is highly improbable to accept theory of defence.
44. In view of my above discussions and in the result, I am of the opinion that principles laid down in the decisions, which are relied upon by defence, which are already indicated above are not helpful to the accused.
45. Considering the entire evidence on record, I am of the opinion that, both accused with an intention to cause death of deceased-Suresh, chased him, even though Suresh tried to escape, and with knowledge that, assault with material objects like Mo.3 and Mo.4 would cause injuries, which are likely to cause his death. Thus, ingredients of offence punishable U/s. 302 of I.P.C. are proved by prosecution beyond reasonable doubt. Accordingly, charges leveled against accused No.1 and 2 are sustainable. Hence, I answer these points No.1 and 2 in affirmative.
46. POINT NO.3: In view of my findings on above points No.1 and 2, both accused No.1 and 2 are found guilty of the offence punishable under section 302 IPC, Hence, I proceed to pass the following: 47 S.C.No.28/2010
ORDER Acting U/Sec.235 (2) Cr.P.C., accused No.1 and 2 are found guilty of the offence punishable U/Sec.302 of IPC.
Further Judgment on imposing sentence is deferred.
Call on for hearing on sentence.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this the 28th day of April, 2016.) (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.48 S.C.No.28/2010
Further Order on imposing sentence Again case is called out. Accused No.1 and 2 are present. Learned Public Prosecutor is present. Counsels appearing for accused No.1 and 2 are also present. Learned Public Prosecutor submitted that, since offence committed by accused No.1 and 2 is heinous offence, therefore, he insisted this court for sentencing accused No.1 and 2 with maximum punishment.
Counsels appearing for accused No.1 and 2 submitted that, both accused are innocent and even otherwise also considering the very story of the prosecution, present case cannot be considered as rarest of rare case for sentencing accused No.1 and 2 with death penalty/capital punishment.
Further, counsel appearing for accused No.1 submitted that, accused No.1 is having a son and he has to maintain his old aged mother. He also submitted that, he has to maintain his wife and a small child. He also submitted that, accused No.1 is doing bar bending work in construction of buildings. Hence, he submitted for taking lenient view in the matter of imposing sentence.
It is submitted by counsel appearing for accused No.2 that, accused No.2 is having two children and he is the only earning 49 S.C.No.28/2010 member in his family. He also submitted that, considering the facts and circumstances of this case and also defence taken by accused in this case, he insisted this court to take lenient view.
Perused the provisions of Section 302 of I.P.C. Offence punishable U/s.302 of I.P.C., is punishable with death or imprisonment for life and shall also be liable to fine. Capital punishment can be imposed only in rarest of rare cases. Having regard to the circumstance under which accused committed offence and also having regard to the material with which they committed offence, court is of the opinion that, in this case, capital punishment cannot be imposed. Therefore, both accused are to be sentenced with imprisonment for life. Further an amount of Rs.10,000/- is to be imposed as fine to each accused and in default of payment of fine, accused No.1 and 2 shall serve R.I. for 6 months.
Accused No.1 and 2 are in J.C., during trial. Accused No.1 was in J.C., from 26.6.2009 to 6.11.2013 as under trial prisoner. Accused No.2 was in J.C., from 26.6.2009 to 30.10.2013 as under trial prisoner. Hence, accused No.1 and 2 are entitled for set off the period of detention undergone by them during trial, as provided U/s. 428 of Cr.P.C. With these observations, and being of that opinion, court proceed to pass the following; 50 S.C.No.28/2010
ORDER ON IMPOSING SENTENCE Acting U/Sec.235(2) of Cr.P.C., accused No.1 and 2 are convicted for the offence punishable U/Sec.302 of IPC and sentenced to undergo imprisonment for life and are sentenced to pay fine of Rs.10,000/- each, in default of payment of fine, accused No.1 and 2 shall serve R.I. for 6 months.
MO.1 to 7 are worthless. Hence, same are ordered to be destroyed, after the expiry of appeal period.
Accused No.1 and 2 are entitled for set-off the period of detention undergone by them during the trial, as provided U/s. 428 of Cr.P.C.
Office is directed to furnish the certified copy of entire judgment to the accused No.1 and 2, forthwith, free of cost.
Bail bonds and their surety bonds shall stands
cancelled.
Office is directed to issue conviction warrant
accordingly.
51 S.C.No.28/2010
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this the 28th day of April, 2016.) (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 Ashoka Pw.2 Muniraju Pw.3 Devaraj Pw.4 Raghu Pw.5 Anil Pw.6 Srinivas Pw.7 Gopal Poojari Pw.8 K.Jagadish Pw.9 Achyutha Rao Pw.10 Laxminarayana Rao Pw.11 Dr.Richard Edwin Pw.12 Dr. Manjunath Pw.13 Krishnamurthy Pw.14 Sundar Raj Pw.15 Putteeranna Pw.16 Dr.Naveen Kumar Pw.17 Srinivas Pw.18 Deepak Pw.19 Purushothama Pw.20 Jagan Mohan Reddi 52 S.C.No.28/2010 II. For Defence:- - Nil- III. List of exhibits marked on behalf of the Prosecution side:- Ex.P.1 Complaint Ex.P.1(a) Signature of Pw.1 Ex.P.1(b) Signature of Pw.17 Ex.P.2 Spot Mahazar Ex.P.2(a) Signature of Pw.1 Ex.P.2(b) Signature of Pw.8 Ex.P.2(c) Signature of Pw.17 Ex.P.3 Mahazar Ex.P.3(a) Signature of Pw.6 Ex.P.3(b) Signature of Pw.10 Ex.P.3(c) Signature of Pw.18 Ex.P.4 Inquest mahazar Ex.P.4(a) Signature of Pw.9 Ex.P.4(b) Signature of Pw.18 Ex.P.5 Written Intimation Ex.P.5(a) Signature of Pw.12 Ex.P.6 Report of Pw.15 Ex.P.6(a) Signature of Pw.15 Ex.P.6(b) Signature of Pw.18 Ex.P.7 P.M.Report Ex.P.7(a) Signature of Pw.16 Ex.P.8 Report of Doctor/Pw.16 Ex.P.8(a) Signature of Pw.16 Ex.P.8(b) Signature of Pw.18 Ex.P.9 Sample Seal Ex.P.9(a) Signature of Pw.18 Ex.P.10 F.I.R. Ex.P.10(a) Signature of Pw.17 Ex.P.11 Requisition Ex.P.11(a) Signature of Pw.18 Ex.P.12 Death Memo Ex.P.12(a) Signature of Pw.18 Ex.P.13 Voluntary statement of accused 53 S.C.No.28/2010 Ex.P.13(a) Signature of Pw.18 Ex.P.14 Voluntary statement of accused No.2 Ex.P.14(a) Signature of Pw.18 Ex.P.14(b) Signature of accused No.2 Ex.P.15 Rough Sketch Ex.P.15(a) Signature of Pw.18 Ex.P.16 Wound certificate Ex.P.16(a) Signature of Pw.11 Ex.P.16(b) Signature of Pw.20 Ex.P.17 & 18 M.L.C. Register Extracts Ex.P.19 Report of Pw.19 Ex.P.19(a) Signature of Pw.19 For Defence side:- Nil IV. List of material objects marked:- Mo.1 Rubber Piece Mo.2 One slipper Mo.3 Hallo block piece Mo.4 Stone Mo.5 Bloodstained Shirt Mo.6 Sample blood Mo.7 Chemical substance (gÁ¸ÁAiÀĤPÀ zÁæªÀt) (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY 54 S.C.No.28/2010 55 S.C.No.28/2010 Judgment pronounced in the open Court. Vide separate judgment:- ORDER Acting U/Sec.235 (2) Cr.P.C., accused No.1 and 2 are found guilty of the offence punishable U/Sec.302 of IPC. Further Judgment on imposing sentence is deferred. Call on for hearing on sentence. LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-65, BENGALURU CITY. 56 S.C.No.28/2010 (Vide separate further order on imposing
sentence is passed and pronounced in open court) ORDER ON IMPOSING SENTENCE Acting U/Sec.235(2) of Cr.P.C., accused No.1 and 2 are convicted for the offence punishable U/Sec.302 of IPC and sentenced to undergo imprisonment for life and are sentenced to pay fine of Rs.10,000/- each, in default of payment of fine, accused No.1 and 2 shall serve R.I. for 6 months.
57 S.C.No.28/2010
MO.1 to 7 are worthless. Hence, same are ordered to be destroyed, after the expiry of appeal period.
Accused No.1 and 2 are entitled for set-off the period of detention undergone by them during the trial, as provided U/s. 428 of Cr.P.C.
Office is directed to furnish the certified copy of entire judgment to the accused No.1 and 2, forthwith, free of cost.
Bail bonds and their surety bonds shall stands
cancelled.
Office is directed to issue conviction warrant
accordingly.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
58 S.C.No.28/2010