Bangalore District Court
State By vs Venugopal @ Venu on 27 November, 2018
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE; BANGALORE CITY
CCH.NO 66
PRESENT
SRI.SUBHASH SANKAD,
B.A.,LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
DATED THIS THE 27th day of November, 2018
S C No. 774/2012
COMPLAINANT :- State by
Thyagarajanagar Police Station,
Bengaluru.
(Rep. by Public Prosecutor)
V/s
ACCUSED: 1. Venugopal @ Venu,
s/o Venkatappa,
Aged about 30 years,
C/o Govindaraju's house,
No.21, 3rd Cross,
K.R. Road, 7th Block,
Jayanagar,
Bengaluru -82.
3. Pratap,
s/o Late Rajappa,
Aged about 19 years,
R/at No.13, 2nd Floor,
Nagasandra Main Road,
Thyagarajanagar,
Bengaluru.
(A1 and 3 by Sri. TP, Advocate)
2 S.C.No.774/2012
Date of Commencement of 05.02.2011
offences
Date of report of offences 23.06.2012
Name of complainant Sri. P.S. Puneeth
Date of recording of 25.06.2013
evidence
Date of closing of evidence 22.09.2018
Offence complained of U/s.120(B), 302, 201 r/w Section
34 of IPC
Opinion of the judge Acquittal
****
JUDGMENT
The Police Inspector, Thyagarajanagara police has submitted this charge sheet against the accused No.1 to 3 for the offence punishable under sections 120B, 302, 201 r/w Section 34 of Indian Penal Code.
2. The case of the prosecution can succinctly be narrated as follows:-
The first informant Shri Puneeth lodged information before the complainant police stating that on 05.02.2012, at about 7.00 3 S.C.No.774/2012 a.m. he received telephone call from the neighbour, and he was informed that, one gunny bag is lying in the place of his newly constructed house and he was asked to take it inside. After 10 minutes he went there and saw the gunny bag lying near the electric pole in front of the house. Suspecting the body inside the gunny bag, he telephoned the police. After half an hour the police came and opened the gunny bag, after opening the gunny bag a dead body of a male person was found and stated that some unknown persons have killed that person and have thrown the dead body in order to screen the offence. The complainant police registered the case and conducted the spot mahazar. After completing the required procedure the I.O. sent the dead body to the post mortem. Thereafter, the I.O. after preliminary investigation came to know that the deceased is Narayanaswamy from Jayanagar 7th block. During the investigation it is found that the accused No.1 is the friend of deceased Narayanaswamy, the accused No.1 had been to Shabarimalai in the month of January 2012. After returning from Shabarimalai, his wife PW5 told him that, when accused No.1 had been to Shabarimalai, when she was alone in home deceased Narayanaswamy came and threatened her by showing chopper and attempted to commit 4 S.C.No.774/2012 rape on her. Due to this, the accused No.1 developed rivalry against deceased and conspired with accused No.2 and 3, with common intention to commit murder of deceased Narayanaswamy. On 18.02.2012 at 4.30 p.m. the accused No.2 brought auto-rickshaw near K.R. Road, 14th Cross in front of Manjushree Bar and induced the deceased Narayanaswamy to sit in the auto-rickshaw and took him to Nagasandra road to the house of the accused No.3 bearing door No.13, in the 2nd floor of the building. All the accused persons along with the deceased Narayanaswamy consumed alcohol, at 7.30 p.m., accused No.2 caught hold the legs of Narayanaswamy, accused No.1 tied the legs of Narayanaswamy with piece of bed sheet, accused No.2 assaulted the deceased Narayanaswamy on his forehead with stone and accused No.1 caught hold the hairs of Narayanaswamy and slit the neck of Narayanaswamy. Thereafter, all the accused persons with an intention to screen the dead body, brought a gunny bag from the shop of CW-14 and put the dead body in the said bag, took it in an auto-rickshaw and thrown the dead body at Thyagarajanagar, Byrappa Block. After investigation, PW22, the investigation officer filed charge sheet against the accused persons before the committal court. 5 S.C.No.774/2012
3. The committal court took cognizance of the offence punishable under Sections 120B, 302, 201 r/w Section 34 of IPC. After committal, the case was made over to this court for disposal in accordance with law. All the accused persons were released on bail.
4. The charge were framed against the accused persons and read over to the accused persons. Accused persons stated that they have understood the charge, and pleaded not guilty and claimed to be tried. After securing the case properties, the matter was posted for trial. During the trial, the accused No.2 remained absent continuously. Inspite of taking coercive steps, the accused No.2 was not secured. Hence, the bail bond of the accused No.2 and surety bond were forfeited and the charge sheet against the accused No.2 was ordered to be split up. Accordingly, case against accused No.2 was split up and S.C.No.699/2016 was registered against accused No.2 and separate miscellaneous proceedings is initiated in Crl.Mis.No.2129/2016 on 29.03.2016. The said petition is pending.
6 S.C.No.774/2012
5. In order to prove the case, the prosecution in all cited totally 4 witnesses. However, the prosecution could examine 22 witnesses as PWs.1 to 22, and exhibited documents as Exs.P1 to 70 and also marked M.Os.1 to 46 and closed its side. The accused No.1 and 3 were examined as required under Section 313 of Cr.P.C. The accused No.1 and 3 denied the incriminating statement and got marked the portion of statements of CW19, PW9, PW10, PW12 and CW17 as EX.D1 to 5. After conclusion of the trial, the case was posted for argument.
6. I have heard learned advocate for the accused and the learned Public Prosecutor for the state on the merits of the case.
7. The following points arise for my consideration:-
1. Whether the prosecution proves beyond reasonable doubt that, death of deceased Narayanaswamy is a homicidal death?
2. Whether the prosecution proves beyond reasonable doubt that, the accused No.1 and 3 in furtherance of common intention conspired to murder the deceased Narayanaswamy?
3. Whether the prosecution proves beyond reasonable doubt that, on 03.02.2012 at about 4.30 p.m. accused No.2 induced the 7 S.C.No.774/2012 deceased Narayanaswamy to sit in his auto-
rickshaw and took to the house No.13, 2nd Floor of the house and all of them consumed alcohol and at 7.30 p.m. accused No.2 caught hold the legs of Narayanaswamy with piece of bed sheet and accused No.2 assaulted with stone on the forehead, accused No.1 caught hold the hairs of Narayanaswamy and slit the neck of Narayanaswamy and caused the death of deceased Narayanaswamy and thereby committed an offence punishable under Section 302 r/w Section 34 of IPC?
4. Whether the prosecution further proves beyond reasonable doubt that, after committing the murder of deceased Narayanaswamy, the accused persons took gunny bag from the shop of PW14 and kept the dead body in Thyagarajanagar, Byrappa Block and thereby committed an offence punishable under Section 201 of IPC r/w Section 34 of IPC?
5. What Order?
8. My findings on the above said points are as under:-
Point No.1 :- In the Affirmative
Point No.2 :- In the Negative
Point No.3 :- In the Negative
Point No.4 :- In the Negative
Point No.5 :- As per the final order for
the following:
8 S.C.No.774/2012
REASONS
9. Points No.1 to 4:- For the sake of convenience and in order to avoid repetition of appreciation of evidence, all these points are considered together.
10. It is the case of the prosecution that, the accused No.1 is the friend of deceased Narayanaswamy, in the month of January 2012, accused No.1 had been to Shabarimalai. After returning the wife of accused No.1 informed him that, when she was alone in the house deceased Narayanaswamy came to house, threatened her by showing chopper and attempted to rape her. Due to this, accused No.1 along with accused No.2 and 3 conspired to commit murder deceased Narayanaswamy. Accused No.2 brought the deceased Narayanaswamy to the house of the accused No.1, after consuming the alcohol, all the accused persons in furtherance of their common intention murdered deceased Narayanaswamy and in order to screen the offence put the dead body of the deceased Narayanaswamy in a gunny bag, tied the gunny bag and thrown the gunny bag in Thyagarajanagara, Byrappa Block.
9 S.C.No.774/2012
11. It is the prosecution to prove the charges leveled against the accused beyond reasonable doubt. The whole case of prosecution rests on the circumstantial evidence. The following are the circumstance on which prosecution case rests:
i) recovery of blood stained clothes worn by the accused at the time of incident,
ii) recovery of the blood stained knife alleged to have been used in the commission of murder of deceased Narayanaswamy,
iii) previous ill will between the accused and the deceased Narayanaswamy in respect of the illicit relation between the wife of accused No.1 and the deceased,
iv) previous meeting of the accused persons and the deceased and consumption of alcohol,
v) post mortem report.
12. In order to prove its case, the prosecution has examined in all 22 witnesses, viz., PWs.1 to 22, exhibited the documents as Exs.P1 to P70 and got marked M.Os.1 to 46.
13. Out of 22 witnesses, the PW1-Ravikumar is the Inquest witness for seizing clothes of the deceased and gunny 10 S.C.No.774/2012 bag and bed sheets at hospital. PW2-Puneeth, the first informant, speaks regarding lying of a gunny bag nearby his building and also filed complaint, PW3-Girivasalu Naidu - the seizure mahazar witnesses for clothes of the accused, PW4 - Krishnagiri, the seizure mahazar witness for auto-rickshaw, PW5-Kumar, the spot mahazar witness, PW.6- Prashanth, the seizure mahazar witness for recovering of knife and stone and other articles, PW7- Manjunath, the seizure mahazar witness for recovering of knife and stone and other articles, PW8- Anand- Seziure mahazar witness for clothes of the accused, PW9- Papamma, Mother of deceased and PW10- N.Sambappa, Father or deceased. PW11-Smt. Shanthamma, speaks about lying of gunny bag at the spot, PW12- Muniraju- brother of deceased, PW13- Sri. Basavaraj, owner of the building in which the accused persons were residing, PW14- Sri. Gangaraju, purchasing of gunny bag by the accused, PW15- Laxmi @ Kutti. PW16- Dr. Anand.K, who conducted autopsy on the dead body of the deceased Narayanaswamy, PW17- Nagarajaiah. P.R, AEE- drawing of the sketch, PW18- Shahanaz Fathima, FSL. PW19- Mahadeva. P.M, ASI/handed over the dead body of the relatives. PW20- Kempegowda, ASI/FIR, PW21- Rajesh, PC, arrest, and 11 S.C.No.774/2012 PW22- Mahadeva. G, PI, I.O., who took up investigation and filed charge sheet.
14. As stated earlier, the case of the prosecution completely rests on the circumstantial evidences. So far as the actual incident is concerned, the prosecution relies on the evidence of the PWs.1 to 22. I have carefully gone through the evidences of all the witnesses. On the basis of the materials available on record and evidences I proceed to answer the points for consideration. In this context, I will now discuss as to what the witnesses have got to say before the court.
15. PW1-Ravikumr, who is an inquest mahazar witness for seizing clothes of the deceased, gunny bag and bed sheets, has stated that he has gone to KIMS hospital for his personal work, the Thyagarajanagar police were there and gave him a notice as per EX.P1 and he has put his signature to Ex.P1 as per Ex.P1(a). PW1 further deposed that he was taken to mortuary, there he had seen clothes and one rope. Further he has deposed that the police showed him M.Os.1 to 3 -gunny bag, M.O.5-Bed sheet, M.O.5 -Woolen mat, M.O.6-Woolen rug, M.O.7-turky towel, M.O.8- Cotton bed sheet and M.O.9- Plastic rope. And 12 S.C.No.774/2012 further deposed that, the police have seized the articles and drawn the recovery mahazar as per Ex.P2 and take his signature as per Ex.P2(a).
16. The advocate for accused No.3 cross-examined PW1 in length. The advocate for accused asked him as to why he had gone to KIMS hospital on that day. The witness replied that he had gone to KIMS hospital to see one patient. However, he has admitted that he does not know the name of the patient to whom he had gone to see and in which room and in which ward the patient was admitted and for which disease he was taking treatment. The witness volunteered that, the patient is the friend of his friend and he did not enquire the name and whereabouts of that patient. He has further admitted in the cross-examination that, the notice was given at his home, at that time he was not in home, he came to know about the notice in the evening, he went to the hospital at about 1.00 p.m. and the notice was given on 4.02.2012. He denied the suggestion that the police have given notice to other cases also. This witness has further stated that the police have taken his signature but, admitted that he does not know the contents of the documents since police have not read 13 S.C.No.774/2012 over the contents of the document. He has denied the suggestion that, the police have not seized the articles and packed those articles in front of him. Further it is stated that, there is a distance of about 4 KMs in between his house and Thyagarajanagar P.S. He has admitted that he has not asked the police as to what for the notice given to him. He denied the suggestion that he did not visit KIMS, police did not conduct recovery panchanama as per Ex.P2 and did not seize M.O.1 to 9 in his presence as stated by him. Further he has denied that the Thyagarajanagar police have not issued him notice, he is a stock witness of Thyagarajanagar police and he falsely deposing before the court.
17. PW2-Puneeth deposed that on 05.02.2012 Sunday at about 7.00 a.m. he received telephone call from the neighbour, that one gunny bag is lying in the place of his newly constructed house and told him to take it inside. After 10 minutes he went there and saw the gunny bag lying near the electric pole in front of the house. Suspecting the body inside the gunny bag, he called the police after half an hour the police came to the spot and at about 11.00 a.m. the police opened the gunny bag, and 14 S.C.No.774/2012 the said gunny bag was containing 4 to 5 clothes i.e., bed sheets, rug. The police removed the rug and bed sheet and found foot of the dead body. Further he has stated that the police drawn the spot mahazar as per Ex.P4 and obtained his signature at Ex.P4(a). Further he has stated that the police have written the contents of the Ex.P4 and CW3- Sanjeevkumar was also there, the police tied the gunny bag with green coloured plastic wire, thereafter, the said gunny bag was taken to KIMS hospital. PW2 has further stated that he has not seen accused No.1 to 3 and police have not recorded his further statement. After completion of the chief examination of PW1 the learned Public Prosecutor sought permission to treat the witness hostile. My predecessor has granted permission to cross-examine PW2. The learned Public Prosecutor cross-examined PW2. In the cross- examination, PW2 has admitted that he had given complaint it was about 11.05 a.m. The police called him and two other persons to stay in the spot for completion of procedure. PW2 has further admitted that the gunny bag was tied with a plastic wire and it was opened a little bit. PW2 has admitted that, when the writing was completed it was about 12.30 p.m. and the police have read over the contents to him, Shivakumar and Kumar and 15 S.C.No.774/2012 all of them put their signatures. He has admitted that, the police have called him and showed accused No.1 to 3, he has denied the suggestion that the police have enquired accused No.1 to 3 in his presence. Further denied the suggestion that he has stated before the police that he can identify the accused if shown to him.
18. The advocate for accused No.1 and 3 has also cross- examined PW2. PW2 has admitted that he cannot say as to who has written the complaint, and he cannot write kannada, the police have not recorded statements of anybody and he do not know where he has put his signature. Further he has stated that the police has written the complaint, the police did not read the complaint to him. PW2 has denied the suggestion that police secured him to police station and taken signature on the document.
19. PW3-Girivasalu Naidu is the seizure mahazar witness for clothes of the accused. He has deposed before the court that he has received notice as per Ex.P6 and he has signed to Ex.P6 as per Ex.P6(a) and he had signed the said document at the place where the clothes of the accused were recovered. He has stated that there is a drainage at the distance of 500 feet from his 16 S.C.No.774/2012 house, there is an open and the clothes were recovered from the open site. He has further stated that another 3-4 people were there and he does not remember the names of those persons, where three persons gave three shirts as per M.Os.11, 13, 15, two pants and one jeans pant as per M.Os.10, 12, 14. Thereafter, police drawn the mahazar and put those three shirts and pants in a white colored cloth and sealed it with office seal. However, this witness has further stated that the police have affixed a slip on the cover as per Exs.P8 to 13 and obtained his signature on those slips. And stated that the police have taken his statement. However, this witness has not identified the accused persons. The Public Prosecutor treated the witness as hostile and cross-examined the witness with the permission of this court. In the cross-examination he has admitted that he has stated before the police that the names of those three persons are Venugopal, Harish and Pratap. Further, he has stated that on request made by the police he has agreed to act as witness to the recovery of clothes worned by the accused at the time of killing the deceased Narayanaswamy by slitting his neck. Further he has denied the other part of his own statement given before the police.
17 S.C.No.774/2012
20. The defense counsel has cross-examined this witness. In the cross-examination, he has admitted that he is seeing accused persons first time in the court, and he has not seen them before, the police have not affixed the chit bag containing the clothes. Further, he has admitted the suggestion that the police has not called him to police station after conducting panchanama and subsequently also the police have not taken his signature. He has stated that he does not know about Gopinath, Harish and Pratap as to who they are. He has further admitted that the police have not recovered any clothes in his presence.
21. PW4 - Krishnagiri, seizure mahazar witness for auto rickshaw has turned hostile to the case of the prosecution. He has deposed that the police have taken one auto rickshaw standing in front of his house. The police have taken his signature at Ex.P16. However, he has stated that he has not given statement before the police. The learned Public Prosecutor has cross-examined the witness with the permission of the court. In the cross-examination, he has denied the suggestion that the police have given him notice near to his home. Further, he has 18 S.C.No.774/2012 denied the suggestion that the accused persons had parked the vehicle to transport the dead body of the deceased after committing his murder. Further, he has denied the suggestion that he has signed to the notice, the police have seized the auto rickshaw which was used for transport of dead body of deceased Narayanaswamy, and the same was parked in front of his house. During the cross-examination, the Public Prosecutor has read over the statement of this witness given before the police as per Ex.P17. Further in the cross-examination by Public Prosecutor this witness has stated that he does not know anything about this case.
22. PW5 - Kumar, a spot mahazar witness has deposed that on 10.02.2012 the Thyagarajanagar police had given him notice as per Ex.P18 and he had signed to that notice as per Ex.P18(a). Further he has deposed that Thyagarajanagar police have written the mahazarat Ex.P4 and the same was written near the electric pole at the side of foot path at Nagasandra. This witness has continued to depose that the gunny bag was lying at the said place, number of people had gathered at the said place, police came to the spot and opened the gunny bag, head of a 19 S.C.No.774/2012 man was seen inside the gunny bag. Thereafter, the police sent the gunny bag to the Kempegowda hospital. Further this witness has deposed that the police have written the mahazar as per Ex.P4 in his presence and he has signed to Ex.P4. Before signing to Ex.P4 notice was given to him as per Ex.P18.
23. The Public Prosecutor sought permission to treat this witness as hostile and cross-examined him with the permission of the court. In the cross-examination, the learned Public Prosecutor has extracted from the mouth of PW5 that, the place in which the dead body was found is 2nd Main Road, Byrappa Block and adjacent to the spot, the house is being constructed and in front of the said house there is an electric pole. However, he has denied the suggestion that immediately after opening the gunny bag head of the male person was seen and the body was covered with rug and the bed sheet. He has also denied the suggestion that he is telling lie in order to help the accused persons. The defense has also cross-examined PW5. He has stated that he is an agriculturist, earlier he was working in a private security company, at the time of preparing Ex.P4 he was going through that road, and further he has stated that he does 20 S.C.No.774/2012 not know to whom he was going to see. He has admitted the signatures of Ex.P4(b) and 18(a) are his signatures. And he has denied the suggestion that both the signatures differ. He has admitted that he does not know the contents of Ex.P4 and the same is not written at the place which he has told and the same is written in police station. However, he has denied the suggestion that he has signed the said Ex.P4 at the police station, he had not gone to the said place and he has admitted that he does not know as to whom that newly constructed home belong to.
24. PW6 - Prashanth, who is a seizure mahazar witness for recoveries of knife and stone and other articles deposed that on 10.02.2012, Thyagarajanagar police gave him notice and said that one Mr. Narayanaswamy has been murdered and the accused persons are taking them to the spot and asked him to act as pancha. Accordingly, he agreed and went to the police station, at that time CW6 - Manjunath and CW8 -Ravi were also there. Thereafter, the police took himself and CWs.6 and 8 and the accused persons. The police stopped the jeep near Nagasandra circle. At that time the accused persons showed them a house at the 2nd floor of the building and took them to that 21 S.C.No.774/2012 house in the 2nd floor. This witness has further deposed that, the police broken the locks and opened the door and the police and the accused all of them entered into the house. He has further deposed that when they entered the house, blood stains was there in the house, the police scratched the blood stained spot by blade and collected the scratched blood stain in a box at M.O.16, police took one blood stained pillow M.O17, one blood stained knife- M.O.18, blood stained stone M.O.19, 4 bed sheet pieces - M.O.20 drinks packet as per M.O.21-22 and sealed the drinks packet in a white cloth and drinks packet as per M.O.23 -26. Thereafter, put the seal as M.O. on the white cloth and obtained his signature. Further he has deposed that the police have written the seizure mahazar as per Ex.P32 and obtained his signature at Ex.P32(a). On that the police have seized the items from night at 8.30 to 10.30 p.m. The learned Public Prosecutor treated the witness as partly hostile and cross-examined the witness with the permission of the court. In the cross- examination, the learned Public Prosecutor asked that the police have put HMN seal at M.O.29-41, the witness replied that he has not seen the seal. The witness has stated that he is confused as 22 S.C.No.774/2012 to the seal, whether it is HMN or MHN and admitted that the seal on M.O.29-41 is H.M.N.
25. PW7 - Manjunatha has deposed in his examination- in-chief that he has seen the accused No.1 and 3 who are present before the court and Thyagaraja Nagar Police Station at about 2 years back. And he has further deposed that he would identified the accused No.2 who has been absconded. He has further deposed that Thyagaraja Nagar police have called him to the police station and he went to the police station along with PW6-Prashanth, the police told him that Narayanaswamy has been murdered and dead body is thrown at sewage at Thyagaraja Nagar. And further stated that the police took himself and PW6 to one house near Nagasandra Circle at Thyagaraja Nagar. At that time, police have stated that murdered has occurred that home. However, he has stated that, he does not know as to how the police came to know about the murder in that house. Thereafter, police took them to 1st floor of the building and took them to that house and informed that the accused persons have committed a murder and seized the articles such as Knife, Liquor packet, Stone and Bed sheets. And further stated that the 23 S.C.No.774/2012 police have obtained his signature on the slip affixed to that items.
26. The defense counsel cross-examined PW7. In the cross-examination, PW7 has stated that the deceased Narayanaswamy and PW6-Prashanth are his childhood friends and CW8 -Ravi is also friend of Narayanaswamy. And he has further stated that he does not know as to where the police have given him notice at Ex.P42. However, he has stated that after issuing the notice he was called by the police to the police station. Further he has stated in the cross-examination that after going to the police station, the police have obtained his signature on some papers and he does not know who is the owner of the house to which the police have taken him and CW6 and he was not able to tell the boundaries of that house. He has further admitted that MOs.16 to 28 and Exs.P20 to 30 were there in the police station, when he went to police station and those materials were already closed and sealed in the white cloth. PW7 has further stated that he does not know the contents of Ex.P32 and the police have not obtained his signature at the slip affixed to MOs.16 to 28 and he does not remember that whether MOs.16 to 28 were recovered in 24 S.C.No.774/2012 his presence. However, he has denied that he is deposing falsely before the court.
27. PW8- Anand has deposed that the police have informed him to come to the police station to be a witness as they are require witnesses. When he went to the police station, the witness -Girish and another person were present. Thereafter, the police took himself and other 3 persons to sewage near the S.M.S. School. This witness has further stated that at that point of time the accused person gave MOs.11 to 14, T-shirt, Jeans Pant, Coffee color pant, Blue color pant taken from the bush and the said clothes were blood stained. He has further deposed that the police have seized the clothes and written the mahazar and he has identified his signature at the slip affixed on the MOs.11 to
14. The learned Public Prosecutor treated this witness as hostile and cross-examined the witness with the permission of the court. In the cross-examination by the Public Prosecutor this witness has admitted the suggestion that at the time of preparing Ex.P7 Panchanama, accused No.2-Harish gave MO.13 - Rose color Shirt and MO.12 -Coffee color Pant gave to the police. He has further admitted the suggestion that the accused No.3 gave 25 S.C.No.774/2012 Exs.P14 and 15 to the police. The advocate for accused has also cross-examined this witness. In the cross-examination, this witness has admitted that prior to this case, the Thyagarajanagar police have called him to act as a witness in earlier 4 to 5 cases also and he denied the suggestion that the police have obtained his signature in the police station and admitted that the police have read over the contents of the Ex.P7. He does not know and he cannot read and write and he cannot say to whom M.Os.8 to 15 belonging to respective accused, M.Os.8 to 15 given by the accused together and he denied that the police have not seized the M.Os.8 to 15 and not sealed in a white color and he does not know what seal the police have affixed on M.Os.8 to 15. And further he has voluntary stated that there was blood stains on M.Os.8 to 15, there were many persons in the place and the police have not asked those persons to sign as witness. He himself gone to the place and the police obtained only one signature from him. And he has not given any statement before the investigating officer. And he has denied that the police have read over all the contents of Ex.P7. And further stated that at the time of Panchanama, the S.M.S. school was opened and the place from which the accused persons pick up clothes and gave it 26 S.C.No.774/2012 and that place is belonging to BBMP. And further denied the suggestion that he is deposing before the court as per the direction given by the Public Prosecutor. Further denied the suggestion that he has not gone to the spot and he was not present in the place and he has signed to the Ex.P7 on the police station. And he is deposing falsely before the court even though he does have any knowledge about the case.
28. PW9- Papamma has spoken about the motive behind the crime. She has stated that deceased Narayanaswamy is her first son, he was working in a photo studio for 7 - 8 years, thereafter, he is running a auto rickshaw and he used to go to marriage ceremony for photograph purpose. She has further stated that she knows the accused persons in the present case, and she has taken names as Venu, Harish and Prateep. And further she has stated that the deceased Narayanaswamy and Pradeep were good in the relation. Thereafter, some misunderstanding arose between them and her son use to go to house of Mr. Pradeep. She use to go to adjacent home for domestic work. She asked Lakshmi to call her son Narayanaswamy and Lakshmi said that he is not there in the 27 S.C.No.774/2012 house, when Papamma said Lakshmi that why she does this do you need this? For this lakhsmi replied that she has not done anything and thereafter she has asked her son Narayanaswamy as to why you had gone to her house, Narayanaswamy has stated that Lakshmi is good lady. After this Papamma fix a girl for marriage with Narayanaswamy. Friday after taking the bath Narayanaswamy went away from the house morning at 11.00 a.m. and thereafter he did not return to home for two days. And further stated that on that day evening at about 6.00 p.m. she was sitting in her home the police came by showing her son Narayanaswamy photo and she identified his photo and went with the police. Further stated that the police took her to the hospital and shown the dead body of her son and she has stated that, there is a cut injury on the neck of the deceased Narayanaswamy. This witness further deposed that till the marriage of deceased Narayanaswamy was fixed, Venugopal and Narayanaswamy were in good terms, subsequently they had quarreled. And further stated that, earlier she lodged the complaint against Lakshmi, as she had a doubt on her and when she went to police station, the police have stated that the accused persons have killed her son Narayanaswamy. This witness was 28 S.C.No.774/2012 subjected to cross-examination by the learned advocate for accused. She has denied the suggestion that there were many cases registered against her son Narayanaswamy, and she has voluntary stated that no cases were registered against her son Narayanaswamy, and she admitted that once her son was going for work for 2 -3 days. And further she denied the suggestion that since her son involved in the criminal act he was not coming to the house for 2 -3 days. She went to police station, and the police stated that the accused have killed her son. And she has admitted that earlier she has filed a complaint against Lakshmi but, she has stated that she had a doubt on Lakshmi. Further she has stated in her complaint that some criminals have killed her son and she has not stated before the police. And she has denied the suggestion that her son frequently was going to house of Venugopal and she has not stated such before the police. And further denies that, she has not given any statement before the police and first time she is seeing the accused before this court. She voluntary stated that the police have taken a statement and stated that the accused will be sent to the jail for 7 years. It is relevant to mention here that, she has wrongly identified accused No.3 as Harish, but, accused No.3 who was present before the 29 S.C.No.774/2012 court on that day stated that his name is Pradeep not Harish. And she denied the suggestion that though the accused persons are not involved in the commission of crime she has falsely deposing before the court stating the accused persons have committed a murder of her son.
29. PW10- Sambappa has stated in his examination-in- chief that deceased Narayanaswamy is his first son and he was working in a photo studio and also driving the auto rickshaw and he died 3 years back he identified the accused. And further stated that his son Narayanaswamy had left the house on Friday, when he was in Masthi morning at about 9.00 p.m., his 3rd son Muniraju called him and told that the friends of Narayanaswamy killed him and thrown the body at Shasthrinagar, Byrappa Block. Immediately, he came to the home the dead body is brought to his home. He has further deposed that his wife Papamma-PW9 stated that the accused persons and her son were quarrelled. Further he has deposed that he had went to the police station the police have stated that the accused persons have killed his son. This witness also admitted that whenever his son went outside he was not returning for 3 -4 days. He does not know his son was 30 S.C.No.774/2012 involved in some criminal cases. However, denied the suggestion that because he was involved in the criminal cases he was not coming to house for 3 - 4 days and he has stated that he does not know that some criminal cases were registered against his son before Thyagarajanagar police station. And further stated that he has seen the accused persons before he seen them in a police station and he went to the police station and the intimation given by the police along with his wife PW1 and daughter PW17 Renuka and his another son Muniraju PW7. And he has stated that he does not know what statement the police have taken from him and the police who stated that it is accused persons who killed his son and he never seen the quarrel between Narayanaswamy and the accused persons and he got to know from his son Muniraju that the accused persons have killed his son Narayanaswamy and thrown him at Byrappa Block, Thyaragarajanagar. And further he has stated that he stated before the police that some unknown persons have killed his son Narayanaswamy. He has admitted, the statement given before the police stating that on 05.02.2012 night at about 9.00 p.m., he was there in Masthi and his son informed him. Further he has admitted that he has given statement before the police that, some 31 S.C.No.774/2012 criminals have killed his son by slitting his neck with sharp weapon and put the dead body in gunny bag and thrown near Thyagarajanagar, Byrappa Block, 2nd Main at the side of the road. This witness has denied the suggestion that the accused persons and his son have never quarreled, since his son had involved in many other criminal cases, those unknown person have killed his son and thrown near Thyagarajanagar, Byrappa Block, 2nd Main. Due to personal enmity he has falsely deposing before the court.
30. PW11-Smt. Shanthamma stated in her examination- in-chief that on the said day, and at the said time she went to the spot as large number of people gathered there and she could see that a gunny bag was lying near the electric pole and the foot of a man was appearing before the gunny bag. However, she has stated that she has not given any statement before the police. The learned Public Prosecutor sought permission to treat this witness as hostile and cross-examined this witness with the permission of the court. However, nothing beneficial could be elicited from the mouth of this witness.
31. PW12- Muniraju s/o Sambappa, brother of deceased, who speaks about the crime has stated that deceased 32 S.C.No.774/2012 Narayanaswamy is his elder brother and accused No.1 in this case is residing in the house which is in front of his house, accused No.2 and 3 are friends of his deceased brother. He has further deposed that his brother Narayanaswamy and wife of accused No.1 had wandering together one or two occasions. Due to this reason, there was a quarrel between deceased brother and accused No.1. Earlier his brother was working as a photographer and subsequently, started working as a driver of auto rickshaw and recently his marriage was fixed with one Mala. Whenever his brother went outside for photograph work, he was not coming to the house for 2 -3 days, and that on 03.02.2012 his brother had gone to outside of the home and he did not come to house and he was under the impression that he has gone to different places on photographs work. And he has further deposed that on 05.02.2012 the police came and shown the photo of his deceased brother and he identified the photo as his brother. At that time his mother and his uncle also seen the photo of his brother of Narayanaswamy. Thereafter, all of them went to the Kempegowda hospital and seen the dead body and identified that dead body is of his deceased brother Narayanaswamy and thereafter he called his father and informed 33 S.C.No.774/2012 that his brother has been killed. This witness has further stated that when he seen the dead body it appeared to him that this is a murder. And he has further stated that in relation to this case, the police have not obtained his statement. However, he has stated that police have enquired him. And further deposed that, the police asked him he has stated that he has doubt on Venugopal. Thereafter, on 12.02.2012 the Thyagarajanagar police have called him to police station and at that time accused No.1 to 3 were there in the police station. And he has stated before the police that these accused had quarrelled 2 -3 days prior to the incident. And further he has stated that he came to know that, the deceased Narayanaswamy had illicit relation with wife of Venugopal, due to this reason all the accused persons have killed his brother Narayanaswamy. The learned counsel for the defense has cross-examined this witness. In the cross- examination, he has stated that he does not know the house number of the accused No.1, he does not know in which place the house of the accused No.1 is there. However, he has stated that the house of the accused No.1 is in 7th block and he denied the suggestion that the house of the accused No.1 is not in front of the house of this witness. And he has further stated that after 34 S.C.No.774/2012 his brother Narayanaswamy's cremation he went to the police station. At that time the accused persons were in the police station and the police told him that it is these accused persons who have killed his brother Narayanaswamy. Thereafter, he came to know that it is accused persons who have killed his brother Narayanaswamy and on that day he came to police station along with his father and he does not remember, as to what statement had taken by the police. However, he denied the suggestion that he has not given statement before the police saying that his deceased brother Narayanaswamy was having illicit relation with the wife of Venugopal. He further denied the suggestion that he has not given the statement before the police, and he has not even seen the dead body in the Kempegowda hospital and he has admitted that he has given statement before the police. And further in the cross-examination he has admitted that he has never seen clearly that what has happened between his brother Narayanaswamy and accused No.1-Venugopal. Further he denied that there are several criminal cases registered against his brother Narayanaswamy and because his brother was involved in several criminal cases some unknown persons have 35 S.C.No.774/2012 killed his brother. And further denied that he has falsely deposing before the court as per the say of the police.
32. PW13- Basavaraju, owner of the house wherein the accused No.1 was residing and stated that the 2nd floor of the 1st house he had lent to one Mr. Venugopal and he does not know who was residing in the house let out to the Venugopal. And further deposed that on 11.02.2012 he gone to police station, police informed that some body had killed a person in the house which was given in rent to the Venugopal. And he has stated that he has not given any statement before the investigating officer. He does not remember as to which document he has given before the police and he had identified his signature in the rent agreement that was entered between himself and Venugopal. The learned Public Prosecutor treated this witness as hostile and cross-examined this witness with the permission of the court. However, he has stated that he has not given any statement before the police. And advocate for the accused cross-examined this witness. And in the cross-examination, he has stated that he is not having a personal knowledge as to what has happened in 36 S.C.No.774/2012 the house No.13 and he does not know who is the person, who has signed to Ex.P42.
33. PW14- Gangaraju. N and PW15- Lakshmi @ Kutti. Both of these witnesses have turned hostile, though the learned Public Prosecutor has cross-examined these witness with the permission of the court, nothing beneficial could be elicited from the mouth of these witnesses.
34. PW16- Dr. K. Anand, who conduct the autopsy over the dead body of the deceased Narayanaswamy, has deposed in examination-in-chief that, on 05.02.2012 he was working as professor in the Kempegowda Medical College. While he was on duty evening at about 7.00 p.m. the as per Ex.P46 - the Police Inspector, Thyagarajanagar police came and requested him to conduct autopsy on the dead body of the deceased Narayanaswamy which was kept in the mortuary and requested him to give report. And further stated that after receipt of Ex.P46 he conducted post mortem examination over the dead body of the deceased Narayanaswamy on 05.02.2012 from night at 7.15 to 8.30 p.m. and along with Ex.P46 he sent the report as per the Ex.P47 to the Police Inspector, Thyagarajanagara police. 37 S.C.No.774/2012
35. He further states that, dead body is of aged about 23 years, measuring 160 c.ms., in length, Dark brown in completion, moderately built and nourished. Rigor mortis passed off. Post mortem staining fixed over back. Tattoo marks found Manju in Kannada over fron of right side chest, Heart with arrow mark present over front of left side chest. Tattoo marks of girl and Geetha, Jyothi V.H. in kannada over right forearm, PG Chandra in kannada over left forearm. Pigmentation with fungal infection present over front of abdomen, lower part of front of chest and back of gluteal region. And found following:-
- Clothes and articles on the body of deceased Narayanaswamy,
1. Jeans pant with belt, blood stained
2. Dark green Kacha
3. Black T-shirt, blood stained
4. Four pieces of cotton clothes, two around neck, one around hands and one around legs.
5. One ear stud present on right ear. All the above clothes and articles with 10 ml of blood collected, packed, sealed labeled and handed over to concerned police. And opined that the time of death is 24 to 48 hours earlier to preserving the body in clod stage.
And found the following injuries:-
38 S.C.No.774/2012
1. Cut throat injury over upper part of the neck on front and sides measuring 12 x 2 cms. Trachea, oesophagus, neck muscles and blood vessels on both sides on the neck cut exposed. Margins are clean cut and on right side of the injury peeling of the skin for 6 x 2 cms on the front and 4 x 3 cms on the right side. The wound is slightly oblique. It is 7 cms from the right ear lobule, 9 cms from the left ear lobule, 5 cms from chin and 9 cms from suprasternal notch. The injury has cut up to C3, C4 vertebrae. The transverse processes and body of both vertebrae cut. Cut throat injury is Ante Mortem in nature and the peeling of skin is post mortem in nature.
2. Incised wound over left side of neck in the lower part 1 cms below the left edge of previous injury measuring 3 x 0.5 cms x Skin deep, with tailing towards left side.
3. Abrasion over left side of forehead, 5 x 3 cms.
4. Abrasion over left cheek lateral to eye, 4 x 3 cms.
5. Abrasion over left side cheek lateral to nose, 2 x 1 cms.
6. Contusion over inner aspect of left side of lower lips and gums, 7 x 1 cms.39 S.C.No.774/2012
7. Contusion over inner aspect of left side of upper lips, 2 x 1 cms.
8. Abrasion over back of left elbow, 1 x 1 cms.
9. Abrasion over back of right leg above the sole, 1 x 1 cms.
36. This witness also stated above the state of the object of dissection has stated that after dissecting the body, he found clotted blood, to the extent of 5 x 2 c.m., the lungs of the decease were cut and bleeding esophagi, and the stomach was empty before conducting the autopsy. He further deposed about the clause cut are there body of the deceased. And further stated that the deceased died before 24 to 48 hours prior to the keeping the dead body in freezer. And he further opined as Ex.P47 that the death was due to shock and hemorrhage as a result of cut throat incised injury over the neck. And further deposed about the knife alleged to have been used for commission of crime. And he has examined the knife and the said knife of 28 c.m., in length and sharp in one side and 2.5 c.m. width and 0.1 c.m. size. According to the doctor, the 1st and 2nd category injuries are caused from knife rest of the injuries are caused due to assault at the time of killing the deceased, after examining the knife at 40 S.C.No.774/2012 M.O.18 he placed the knife in the same stage in which stage he has received it and again he removed clothes such as Jeans pant with belt, green color Nikar, black color T-shirt, 4 pieces of clothes and packed them in a white bag as per M.Os.42 to 46. And he has also stated that he collected 10 m.l. blood from the dead body of the deceased and ear stud from the deceased and same was handed over to the police, and after investigation he sent blood and viscera to FSL, and gave opinion as to the case of death as "Death was due to shock and haemorrhage as a result of cut throat incise injury over the neck".
.
37. Doctor was subjected to cross-examination by the advocate for accused. He has denied the suggestion that he has not given his opinion in respect of 1st and 2nd category of injuries as to how they are. And he has further deposed that through oversight he has put the words 'and' before starting the 2nd sentence and he come to the conclusion that deceased died because of 1st and 2nd category of injuries. And he denied the suggestion that he has not mentioned at Ex.P49 that the 1st category injury is caused by M.O.18 and he has admitted that the one side of edge of the knife is not that much sharp. Further he 41 S.C.No.774/2012 denied the suggestion that whenever there is a cut injury on the body of the person by the weapon like M.O.18, the injury will not be straight and they will be zigzag motion. And further he has admitted that, the 1st and 2nd category injuries can occur even by the double edged knife. And he has further admitted that he cannot say specifically that, the 1st and 2nd category of injuries can be caused by M.O.18. And he has further admitted that, he has not put anything regarding opening of the bag containing M.O.18, and closing it inside and sealing with it is not mentioned in Ex.P49. And he has voluntary stated that he himself has put his seal on Ex.P50 and he has not affixed a chit on bag containing M.O.18 and put his signature. He has stated that, he does not remember at what time M.O.18 was sent for his test, and he has issued Ex.P50 as per the request made by the investigating officer. Further, he has denied the suggestion that he has produced the document Exs.P49 and 50 at the instance of the police in order to help the police, he has followed by the procedure, while conducting autopsy and removing the clothes from the dead body and packing them in a white color bag. He has further admitted that, he has not mentioned about the blood stain that present on Ex.P49, and admits that even the brown 42 S.C.No.774/2012 colored vegetables can be cut by M.O.18. And he has not mentioned the age of injury on Ex.P48 and he cannot come to the conclusion that the deceased died before 24 to 48 hours prior to keeping the dead body in the freezer. And he has admitted that it is only the forensic laboratory expert who can tell that the blood stain found on a particular object belonging to a particular person and human being. He has further denied the suggestion that he has not conducted the autopsy over the dead body of the deceased, and he has falsely deposing before the court.
38. PW17- P.R. Nagarajaiah, Assistant Engineer, BDA, Bengaluru, has deposed that the investigating officer in this case requested him to prepare a sketch of the spot. As per their request he prepared the sketch and submitted it to CW40 as per EX.P51 in the office itself.
39. PW18- Shahanaz Fathima, Scientific Officer, FSL, Madivala, Bengaluru, has deposed that on 22.02.2012 the Investigating officer in this case has sent 33 articles to their laboratory with CW39 - Devaraju, HC-2803. After receiving these articles, though the articles were sent to the Biological Department for examination, and the investigating officer has 43 S.C.No.774/2012 requested her to examine those articles as per Ex.P52 and invoice as per Ex.P53. And she has deposed that when those articles were sent for examination all of them were in a good condition. As per this witness, the articles which were sent for examination are 3 gunny bags, 2 bed sheets, 1 woolen mat, 1 woolen rug, 1 towel, 1 rope, blood scrapings, pillow, knife, stone, bed sheet pieces, 2 empty mugdaval packet, empty old traven packets, 1 Jeans pant, 2 T-shirt, 2 pants, 2 shirts, Jeans pant with belt, 1 Nikar, 4 clothes pieces, 1 ear stud, collected blood stains from glass. She has further stated that she has examined all these 33 articles and given her report as per Ex.P54. According to this witness, there were blood stains and those blood stains were human being and there was no blood stains in articles No.13B, 13C and 13E and since the model blood at article No.23 and she cannot identified the blood group containing in model blood. That, the blood group of the blood that was there on articles No.1, 1A, 1B, 2, 3, 6, 9, 10, 11, 12, 14, 14A, 15, 15A, 16, 16A, 17 to 21 was of 'A' group blood. And she has further stated that she cannot tell that the blood found on articles No.4, 5, 7, 13, 13A, 13B and 22 are belonging to human being. After detail examination, she has produced the report as per Ex.P55. This 44 S.C.No.774/2012 witness has cross-examined by the advocate for accused. She has admitted that she has not mentioned the date on which she has examined the articles No.1 to 33. She has not sent blood and blood samples to the DNA test. And she has further admitted that it is possible to identify that whether a particular blood group belonging to a man or women only by the DNA test but, however she denied the suggestion that blood of animal is examined the same result would come. And further she has admitted that as the time passes the colour of the blood changes, initially the blood particulars will remain in red colour and thereafter they will turn to dark brown color, if human blood is not freezed it will turned to brown color not to the black color, if the blood is in liquid stage, it will turn to black color. The human blood stain remain for long time they will turn to brown color. She has not examined as to the age of the blood contained in a container because she was only asked to ascertain whether the blood group, and the blood is belonging to human being. And she has further admitted the suggestion that whenever the blood is brown color, that stain is of the very recently occurred, and to identify the blood group minimum 150 m.l. blood is required. And she has not mentioned that the sample blood sent to her by the investigating officer of 45 S.C.No.774/2012 150 milli grams, and none of the blood stains were of 150 milli grams. And she has admitted that though she cannot tell exactly that to which group the blood is belonging to, after examining one by one, she could identify that the blood is belonging to particular blood group and she has denied the suggestion that, she has not received any articles from the investigating officer, and she has not conducted any examination and she has not given a false report and falsely deposing before the court.
40. PW19- P.M. Mahadev, retired PSI, deposed that on 05.02.2012 as per the direction of the investigating officer, at about 11.00 a.m. he went to KIMS hospital, gave requisition to him and requested him, conduct autopsy over the dead body of deceased Narayanaswamy. Accordingly, the doctor conducted the autopsy and gave report, thereafter he handed over the dead body to the family of the deceased Narayanaswamy. PW20 - Kempegowda, retired PSI, deposed that on 05.02.2010 as per the direction of his higher officer he submitted FIR to the home office, as is was Sunday. After return, he gave statement. The defense has not examined these witnesses.
46 S.C.No.774/2012
41. PW21, Rajesh, PC, Lokayukta, Bengaluru, has deposed that on 10.02.2012, PW22 directed himself, CW33, CW35, CW36 to find out and arrest the accused persons of this case. As per his direction and after receiving the credible information they went near the Kalasipalya Bus stop and the informant shown the accused persons, himself and CW33, CW35, CW36 and CW40 surrounded and arrested the accused No.1 and 3 at 2.35 p.m. This witness has identified the accused persons present before the court. The defense has cross- examined this witness. He has admitted that they did not have the photographs of accused persons when they had gone to arrest the accused persons and they were not informed about the identification of the accused persons. The investigating officer has not conducted panchanama, at the time of taking them to custody. This witness has further admitted that, the accused No.1 and 3 are resident of Bangarpete, but he has denied the suggestion that they have arrested these persons from their home.
42. PW22- G. Mahadev, PI, CIB, Cyber Crime, Bengaluru, investigating officer in the present case has deposed 47 S.C.No.774/2012 that, he came to know about the incident on 04.02.2012 morning at about 7.30 a.m. when ASI Shankaregowda informed him through phone, that a gunny bag with a dead body inside was lying on the spot. Immediately, he went to the spot along with his staff, opened the gunny bag and found leg of a dead body of a man, immediately he informed his higher officer, his higher office directed him to call the forensic experts, as per the direction of the higher officer, he called the forensic experts Dr. Ravindra. Thereafter, Dr. Ravindra, insisted him to shift the dead body to KIMS hospital. He has further stated that he has received Ex.P3, the written complaint from PW3, went station, registered the crime, as per Ex.P56 and submitted to the court. Thereafter, he went to the spot along with his staff, conducted the spot mahazar as per Ex.P4. Thereafter, he went to KIMS hospital along with Dr. Ravindra, conducted the recovery mahazar as per Ex.P2 in presence of PW1 and PW5. He further stated that before preparing Ex.P2 he had issued notice to PWs.1 and 5 as per Exs.P1 and 2 and recovered M.Os.1 to 9. Thereafter, he enquired PW9, she identified that dead body of his son. Thereafter, he issued notice as per Form No.144 to PWs.29 and 30 to prepare Ex.P58-Inquest mahazar and recorded the 48 S.C.No.774/2012 statement of PW9, PW12, CW25 - P.V. Shankar and requested the doctor to conduct post mortem as per Ex.P46. Thereafter, he deputed PW19 after completing the formalities PW19 handed over the dead body to the relatives of the deceased.
43. PW22, further deposed that on 10.02.2012 after receiving credible information he went to Kalasipalya along with PW21, CW30- Shivalingaiah, CW32 - Rathod, CW33 - M. Shivaraj to arrest the accused persons, and arrested the accused persons brought them to station for enquiry all the accused persons admitted their guilt. Thereafter, he recorded the voluntary statement of the accused persons. Thereafter, he issued notice to PW5- Kumar, CW5- Shiva Kumar as per EX.P19 and 18 to act as pancha, the accused persons took them to one house of Nagasandra Main Road. The house was at 2nd floor they saw the blood stains, at the instance of the accused persons, he recovered M.Os.16 to 18. That on 11.02.2012 he recorded the statement of PW13 and CW20- Harish. Again on 12.02.2012 he requested PW3 and CW9 - R. Guru issued them notice as per Ex.P5 and Ex.P6 to act as panchas. The accused persons took them near SMS school, asked to stop the vehicle 49 S.C.No.774/2012 again the accused persons took them behind the bush and recovered M.Os.10 -15 at the instance of accused No.1 to 3. Against at the instance of accused No.2 Harish he recovered M.O.9. All the accused persons shown the auto rickshaw used to transport the dead body conducted the mahazar as per Ex.P16 in presence of CW13. After this, they came back to station and recorded the statement of CW9- R. Guru, PW3, PW8, PW4, CW13 -Shiva, CW14- R. Suresh and also recorded the further statement of PW9, PW10, PW11, PW12 and CW17 - Renuka. On 13.02.2012 he recorded the statement of PW15, on 14.02.2012 he send H.C. 4258 -Shivaramayya to get post mortem report. Again on 26.03.2011 he send knife subjected to P.F.No.10 to KIMS hospital requesting the doctor to ascertain whether the injuries of the dead body could be caused by that knife. Thereafter, he received the post mortem report, at Ex.P48 and Exs.P42 to 46 from his official H.C. 4258 Shivaramayya. He has further deposed that he sent all the material object in P.F.No.10 to FSL for examination. Keeping FSL report pending. He submitted the charge sheet before the court, after receiving the FSL report, he submitted the same to committal court. 50 S.C.No.774/2012
44. The defense has cross-examined this witness. He has admitted that he has received complaint from PW2 in the spot, PW2 has written the complaint and he has niot written any endorsement on the complaint, he has not recorded the statement of any of the workers working in the building, he has enquired Smt. Savithramma whose name appears in Ex.P4. He has further admitted that the names of girls were found on the dead body of deceased Narayanaswamy, and he has not enquired these girls. He has further admitted that PW9, PW10 and PW12 have given statement to the effect that the deceased Narayanaswamy was murdered by unknown person for unknown reasons, he has mentioned the same statement in the remand application. He has not obtained the signature of the owner of that building, for the seizure mahazar of articles and weapons, when they went to the home wherein the accused No.3 was residing the door was not locked and he has not recorded the statement of any of the tenants. This witness has further admitted that he has collected the finger prints of the accused and collected the finger prints from the scene of offence. 51 S.C.No.774/2012
45. This is the oral evidence led on behalf of the prosecution. Apart from the oral evidence, the prosecution has got marked Exs.P1 to 70 and M.Os.1 to 46. M.Os. consist of blood stained clothes, knife, rope, gunny bag, woolen rug, drinks packet and stone etc.,
46. The learned Public Prosecutor, has argued that the evidence of PWs.1 -21, and I.O. coupled with medial evidence, unflinchingly point that it is the accused and the accused only who committed the murder of deceased Narayanaswamy, and further stated that the oral evidence coupled with documentary evidence proved the prosecution case beyond reasonable doubt. Hence, he prays that accused be held guilty of the offence alleged against them and convicted.
47. Per contra, the learned defense counsel has contended that, there are no direct evidence, and eye witnesses, the police have created the false story in order to implicate these accused persons in the crime. The defense counsel has further stated that the defense has failed to prove the motive. Earlier, the complaint was lodged against the unknown persons. PW.9, mother of deceased has not even raised doubt on these accused 52 S.C.No.774/2012 about the involvement of their involvement in the omission of the crime at the time of giving statement before the police. Further, he relied on the evidence of P.W.21 & 22 regarding doubt in conducting the investigation, though the fingerprints of the accused are collected they have not been tallied with other material objects, further the police have not enquired the girls, whose names were tattooed on the body of the deceased Narayanaswamy. On this ground, he has argued that, the prosecution has failed to rule out the possibility of involvement of some other person in the alleged crime. The learned defense counsel has vehemently argued that, the entire story of prosecution is an after thought process, as the complaint was lodged against unknown persons and the names of the accused were mentioned subsequently in the 2nd remand application. He further contends that, the entire case of the prosecution is full of fabrication and creation of false evidence and there is no nexus between the case of the prosecution and the accused. Hence, he prayed for acquittal of the accused.
48. I have carefully gone through the statements of witnesses examined on behalf of the prosecution, so also the 53 S.C.No.774/2012 contents of documents produced by it. Keeping in view the oral and documentary evidence and the rival contention of both the sides, I will now proceed to answer the points for consideration. The first point that needs to be answered is, whether the deceased Narayanaswamy died a homicidal death? In this record I would like to refer the evidence of P.W.2, P.W.9, P.W.10, P.W.12 and P.W.16 and Ex.P.4 and Ex.P.48 and all the M.O.s P.W.9 Papamma, P.W.10 -Sambanna both have stated that some unknown persons (AiÀiÁgÉÆÃzÀÄgÁvÀägÀÄ) have killed their son, this version of P.W.9 & 10 has been supported by P.W.2 punchas who has stated that after receiving the phone call he went to the spot, and found the gunny bag containing the dead body. By these evidence what can be stated is that, the dead body can be thrown as like a present one only after killing the person. If it were to be a natural death the body could not have been inside the closed gunny bag along with the blood stained clothes, bed sheets and woolen rug in the present case. More so, the relevant document, Ex.D-48, the post mortem report, wherein P.W-16, Dr. Anand has specifically given the opinion as to the death of deceased Narayanaswamy is that "Death was due to shock and haemorrhage as a result of cut throat incised injury over the 54 S.C.No.774/2012 neck." The oral evidence of P.W-16 also support his opinion. Though the learned defense counsel has cross examined this witness, all the suggestion put by the defense counsel were not relating to prove that, the death is not a homicidal one. Therefore, by looking into the oral evidence of P.Ws.9, 10, 12 & 16 and injury mentioned in the documentary evidence at Ex.D-48. I am of the view that, the prosecution has proved beyond reasonable that the deceased Narayanaswamy has died a homicidal death. Accordingly I answer point No.1 in the affirmative.
49. Now coming to points No.2, 3 and 4. As it is stated earlier the entire case of the prosecution rests on the circumstances mentioned above. Now I would like to discuss the judicial precedents with regard to the circumstantial evidence.
1. Satish Nirankari Vs. State of Rajastan. (2017) 8 Supreme Court cases 497 - The Hon'ble Apex Court has observed as follows:-
"It is now well established, by a catena of judgments of this Cour, that circumstantial evidence of the following character needs to be fully established:
(i) Circumstances should be fully proved.55 S.C.No.774/2012
(ii) Circumstances should be conclusive in nature.
(iii) All the facts established should be consistent only with the hypothesis of guilt.
(iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused. It also needs to be emphasized that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In he case of circumstantial evidence, the influence of guilt can be justified only when all the incrimination facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of the any other person.
2. A.T. Mahaswerappa versus State of Karnataka, laws (Kar) 2017 181 - The Hon'ble Court has observed as follows:
"It is trite law that in a case based on circumstantial evidence, the Court has to take the totality of circumstances in to consideration and come to the conclusion that the facts established in evidence are inconsistent with the innocence of the accused and incapable of explanation on any reasonable 56 S.C.No.774/2012 hypothesis other than the guilt of the accused. The chain of circumstances must be complete (a) as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and (b) to show that within all human probability, the act must have been done by the accused and the accused alone. The following principles are laid down by judicial precedents in proving the culpability of the accused in a case based on circumstantial evidence namely;
(i) Facts or circumstances alleged must be proved by cogent and convincing evidence;
(ii) They must be of a conclusive nature and tending to be totally inconsistent with the innocence of the accused and are not explainable by any other hypothesis except the guilt of the accused'
(iii) There should be no missing links in the case; yet it is not essential that every one of the links must appear on the surface of the evidence. Some of the links may have to be inferred from the true facts;
(iv) In drawing the inferences or presumption, the court must have regard to the common course of evens and human conduct in their relation to the facts of the particular case; 57 S.C.No.774/2012
(v) Where the circumstances are susceptible of two equally possible inferences, the court should accept the inference which favours he accused, rather than an inference which goes in favour of the prosecution.
(vi) Motive is important, though not indis-jensable. Failure to prove motive is not fatal by itself."
50. In the light of the above cited principles I will now discuss how the prosecution has put forth its case in order to connect the alleged crime. In this regard, I would like to take first two circumstances.
I) Recovery of clothes worn by the accused at the time the time of incident stated to have been blood stained.
II) Recovery of blood stained knife alleged to have been used in the commission of murder of deceased Narayanaswamy. In this regard the evidence of P.W6, P.W.7, P.W.8 and P.W.18 and P.W.22. P.W.22 - Mahadev, is Investigation officer has stated that on 10.02.2012, along with his official P.W.-21, Rajesh, CW.-32 S.K.Rathod and C.W-23, M. Shivajirao H.C. went to Kalasipalya Bustop and arrested the accused persons, brought them to the station and recorded this statements and at their 58 S.C.No.774/2012 instant, visited the spot, recovered the M.O.16 to M.O.41. So far as present circumstance are concerned M.O.18 knife and MO.19 stone are related, According to P.W.-22 these M.O.18 & 19 were recorded in presence of P.W.-6 and P.W.-7. P.W.6 Prashant friend of deceased has stated in the cross examination that, it is the police who has shown the house of the accused No.3. He has admitted that the police have not recorded his statement and further admits that he did not know the contents of Ex.D.32, Mahazar and he has signed the said document since the police have asked him to do so. He has also admitted that the police have not requested the neighbors as witnesses for the said mahazar. One more admission, which needs to noted here is that, he has stated in his examination in chief that the house to which they were all taken was locked and the police have broken open the lock with the help of a stone. But seizure mahazar shows that there was no lock to the home and P.W-22 I.O. has stated that the door was not locked and it was latched (¨ÁV°UÉ a®PÀ ºÁQvÀÄÛ) . Therefore the careful perusal of the oral evidence of P.W.-6, 22 & Ex.D-22, there arises a doubt on this witness whether he has participated in the seizure mahazar procedure. 59 S.C.No.774/2012
51. PW7- Manjunatha, who is another seizure mahazar witness to the knife and stone, has stated that the police have taken his signature on some papers in the police station. He has further stated that when he had gone to police station all the M.Os. ie., M.Os.16 to 18 and Exs.P20 to 30 were in the police station and before he would go to the police station they were already packed and sealed. The police did not read the contents of the said document i.e., Mahazar. He has further deposed that he does not remember whether all the M.Os. were seized in his presence or not. Therefore, the careful perusal of the testimony of this witness it is clear that this witness has not participated in the mahazar procedure, hence his evidence is not trust worthy.
52. Now, coming to the evidence of PW8-Anand, a seizure mahazar witness to the clothes worned by the accused persons at the time of commission of crime. This witness has admitted in the cross-examination that the police took his signature in this case and also 4 to 5 other cases, he has stated that he cannot say exactly which accused has given which M.O. and to whom the particular M.O. belong to. And he has further admitted that he has not given any statement before the police. 60 S.C.No.774/2012 The careful appreciation of the evidence of this witness, shows that he is a police stock witness and he has mechanically deposed before the court. Hence, I decline to agree with what this witness has stated. So far as seizer mahazar and recovery of M.Os.8 to 15, the evidence of PW22 needs to be looked into. PW22 has admitted in his cross-examination that the place from which, M.Os.8 to 15 are recovered is near a school, and he has not taken signature of any of the public there, even from the school. And PW8 has mechanically deposed before the court. On careful comparison of evidence of PW8 and PW22 and Ex.P7. The evidence of PW8 is not trust worthy.
53. Now, coming to the evidence of PW18, Shahanaz Fathima, Scientific expert, FSL, Madivala, Bengaluru is the one who examined M.Os.1 to 19 and M.Os.23 to 45 and issued Ex.P54. She has deposed in her cross-examination that she has not ascertained whether the sample blood examined by her belong to male or female. And she further admits that to ascertain the blood group, 150 m.l. blood is required and she has not mentioned in her evidence that, the blood received by her was 150 m.l. She has further stated that, she has not 61 S.C.No.774/2012 ascertained whether blood which she has examined is of male or female. Further she has admitted that it was not possible for her to give blood group of blood found on the M.O.18-knife as the same was completely in a dry position. One more important aspect which needs to be observed is that, she has not given the blood group of blood on objects on the individual basis, and it is not possible for her also, after examining the objects sequentially she came to a particular result and it is not possible to come to exact result.
54. Therefore, on careful perusal of the evidence of PW7, 8, 18, 22 and Exs.P32, 7 and 54, it is not possible for me to come to the conclusion that the prosecution has proved beyond reasonable doubt the recovery of M.Os. such as knife, stone and the clothes, alleged to have worned by the accused at the time of commission of crime. Further PW18 stated that she could not identify the blood group of the blood found on M.O.18 knife alleged to have been used to slit the neck of deceased Narayanaswamy. In my view, the prosecution has failed to prove these sub circumstances, in order to connect the guild of the accused.
62 S.C.No.774/2012
55. Now, coming to the 3rd circumstances, previous ill will between the accused and the deceased Narayanaswamy, in respect of the illicit relation between the wife of accused No.1- Lakshmma and the deceased. The only evidence which needs to be looked into in this regard is the evidence of PW9-Papamma, PW10-Sambappa and PW12- Muniraju, mother, father and brother of the deceased respectively. All these witnesses have stated that there was illicit relation between the wife of accused No.1 and the deceased. Except these interested witnesses, no other witness has stated this. The evidence of these witnesses is not corroborated with any other witnesses. So far as previous meeting of the accused and the deceased Narayanaswamy absolutely there is no evidence at all. The only thing which is ascertained is the consumption of alcohol by the deceased Narayanaswamy as Ex.P48 show that there was alcohol in the body of the deceased. However, there itself not sufficient to believe that it is the accused and accused only who forced him to consume alcohol. Therefore, the prosecution has again failed to prove this circumstance also. The prosecution has failed to prove the aforementioned circumstances, beyond reasonable doubt. 63 S.C.No.774/2012 The only circumstance which appeared to be prove is the previous ill will between the accused and the deceased Narayanaswamy. However, this circumstance is not linked to any other circumstance. In this regard, I would like to refer the judgment in Mohammed Sultan and Others. Vrsus State of Karnataka, Laws (Kar) 2017 181 - The Hon'ble Court observed as follows:-
"It is well established principles of law that when the entire case rests on the circumstantial evidence, and if the prosecution fails to prove the chain of circumstances and events to point out the guilt of the accused, then the case of the prosecution has to fail and the benefit of doubt should go in favour of the accused persons."
In the light of the above cited observation, I am of the opinion that the prosecution has utterly failed to link any of the circumstances mentioned above.
56. Now, I would like to refer to the evidence of PW22 who conducted the investigation and the evidence of PW19. PW19 has stated that as per the direction of PW2, he went to 64 S.C.No.774/2012 KIMS hospital and submitted the requisition given by PW22 and requested the doctor to conduct P.M. over the dead body of deceased Narayanaswamy. And after conclusion of P.M. he handed over the dead body to his family and came to the police station and gave report. However, PW22 has stated that he himself has gone to the KIMS hospital and requested the doctor to conduct P.M. over the dead body of deceased Narayanaswamy. There is a doubt as to whose version to be believed. Further, in the cross-examination, PW22 has admitted that names of some girls were tattooed on the dead body of Narayanaswamy and he has not enquired about those girls . In my view this tattooed names show that the deceased Narayanaswamy was having some kind of connection with the girls whose names were tattooed on his body. Therefore, there arise a serious doubt in involvement of the accused persons in the death of Narayanaswamy. The possibility of the involvement of the some other persons in commission of crime is not ruled out.
57. On careful perusal of the entire materials available on record and the oral evidence, I am of the opinion that the 65 S.C.No.774/2012 prosecution has not proved any of the circumstances and the circumstances has not exchanged the possibility of guilt of any person other than the accused in commission of crime. Therefore, in view of my above discussions, I hold that the evidence led on behalf of the prosecution to prove the guilt of the accused is unworthy of evidence, and a well founded doubt arises about the genuineness of the case put forth by the prosecution and benefit of doubt shall have to be given to the accused. Hence, I hold that the prosecution has miserably failed to prove the charges leveled against the accused beyond reasonable doubt and the accused No.1 and 3 are entitled for an acquittal. Hence, in the light of the materials placed before the court and for the foregoing reasons, I answer points No.1 to 4 in the 'Negative'.
58. Point No.5:- For the above reasons, I proceed to pass the following :
ORDER Acting under Sec.235(1) of Cr.P.C., Accused No.1 and 3 are acquitted for the offences punishable under sections 120(B), 302, 201 r/w Section 34 of IPC.66 S.C.No.774/2012
The bail bonds and surety bonds of Accused No.1 and 3 shall stands cancelled.
Note:- Office is hereby directed to preserve the entire case file along with M.O.1 to M.O.46 in connection with the split up case registered against absconding accused.
(Directly dictated to the stenographer on computer, corrected and then pronounced by me in the Open Court on this 27th day of November, 2018) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION:-
PW1 : Sri. Ravi Kumar
PW2 : Sri. Puneeth
PW3 : Girivasu Naidu
PW4 : Krishnagiri
PW5 : Kumar
PW6 : Prashanth
PW7 : Manjunath
PW8 : Anand
67 S.C.No.774/2012
PW9 : Papamma
PW10 : Sambappa
PW11 : Shanthamma
PW12 : Muniraju
PW13 : Basavaraju
PW14 : Gangaraju. S
PW15 : Lakshmi @ Kutti
PW16 : Dr. Anand. K
PW17 : P.R. Nagarajaiah
PW18 : Shahanaz Fathima
PW19 : P.M. Mahadeva
PW20 : Kempegowda
PW21 : Rajesh
PW22 : G. Mahadeva
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION:-
Ex.P1 : Notice to PW1 (Pancha)
Ex.P1(a) : Signature of PW1
Ex.P2 : Recovery Mahazar
Ex.P2(a) : Signature of PW1
Ex.P3 : Complaint
Ex.P3(a) : Signature of PW2
Ex.P4 : Spot Mahazar
Ex.P4(a) : Signature of PW2
Ex.P4(b) : Signature of PW5
68 S.C.No.774/2012
Ex.P5 : Statement of PW2
Ex.P6 : Notice to PW3
Ex.P6(a) : Signature of PW3
Ex.P7 : Mahazar
Ex.P7(a) : Signature of PW3
Ex.P8 to 13 : Slips on the covering bags of
M.Os.10 to 15
Ex.P14 : Portion of statement in statement of
PW3
Ex.P14(a) : Portion of statement of PW3
Ex.P15 : Notice to PW4
Ex.P15(a) : Signature of PW4
Ex.P16 : Document written by police regarding
auto (KA-02/AC-653) (mahazar on
auto)
Ex.P17 : Statement of PW4
Ex.P18 : Notice to PW5
Ex.P18(a) : Signature of PW5
Ex.P19 : Notice of PW6
Ex.P19(a) : Signature of PW6
Ex.P20 : Slip on M.O.16
Ex.P20(a) : Signature of PW6
Ex.P21 : Slip on M.O17
Ex.P21(a) : Signature of PW6 on Ex.P-21
Ex.P22 : Slip on M.O.18
Ex.P22(a) : Signature of PW6 on Ex.P-22
Ex.P23 : Slip on M.O.19
Ex.P23(a) : Signature on PW6 on Ex.P-23
69 S.C.No.774/2012
Ex.P24 : Slip on M.O.20
Ex.P24(a) : Signature of PW6 on Ex.P-24
Ex.P25 : Slip on M.O.21
Ex.P25(a) : Signature of PW6 on Ex.P-25
Ex.P26 : Slip on M.O.22
Ex.P24(a) : Signature of PW6 on Ex.P-26
Exs.P27 to 30 : Slip on M.Os.23 to 26 respectively
Exs.P27(a) to 30(a) : Signatures of PW6 on Exs.P-27 to 30 Ex.P31 : Slip on M.O.41 Ex.P31(a) : Signature of PW6 on Ex.P-31 Ex.P32 : Seizure mahazar Ex.P33 : Notice to PW7 Ex.P34 : Notice to PW8 Ex.P34(a) : Signature of PW8 Exs.P35 to 39 : Photos of deceased Ex.P40 : Statement of PW11 Ex.P41 : Statement of PW11 Ex.P42 : Rent agreement Ex.P43 : Statement of PW13 Ex.P43(a) : Portion of Ex.P43 Ex.P44 : Statement of PW14 Ex.P45 : Statement of PW15 Ex.P46 : Requisition for P.M. Ex.P47 : Report by police to doctor Ex.P48 : P.M. report Ex.P49 : Report on M.O.18 Ex.P50 : Sample seal on Ex.P49 70 S.C.No.774/2012 Ex.P51 : Sketch of spot Ex.P52 : Requisition for FSL Ex.P53 : Invoice showing items sent to FSL Ex.P54 : FSL report Ex.P55 : Sample seal on FSL report Ex.P56 : FIR Ex.P57 : Notice to pancha for inquest Ex.P58 : Inquest mahazar Ex.P59 : Receipt of body Exs.P60 to 62 : Voluntary statements Ex.P63 : Notice to pancha Ex.P64 : Rough sketch of spot Ex.P65 : Notice to pancha Ex.P66 : Notice to CW13 Ex.P67 : Notice to CW14 Exs.P68 and 69 : Photos of Auto rickshaw bearing No. KA-02/AC-653 Ex.P70 : Report of HC 4258 -Shivaramaiah LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE:-
Ex.D1 : Portion of CW19 - Statement Ex.D2 : Portion of PW9 - statement Ex.D3 : Marked portion of CW17 - Statement Ex.D4 : Marked portion of PW12- statement Ex.D5 : Marked portion of PW10 - statement 71 S.C.No.774/2012 LIST OF MATERIAL OBJECTS MARKED:- M.O.1 : Gunny bag M.O.2 : Gunny bag M.O.3 : Gunny bag M.O.4 : Bed sheet M.O.5 : Woolen mat M.O.6 : Woolen rug M.O.7 : Turkery towel M.O.8 : Cotton bed sheet M.O.9 : Small plastic rope (red) M.O.10 : Jeans pant M.O.11 : T-shirt M.O.12 : Trousers (Pants) M.O.13 : Half shirt (slag) M.O.14 : Coffee coloured pants M.O.15 : Full sleeve shirt M.O.16 : Blood stains collected in a container M.O.17 : Pillow M.O.18 : Knife M.O.19 : Stone M.O.20 : 4 cut pieces of bed sheet M.O.21 : Drinks packet (Alcohol) M.O.22 : Drinks packet (Alcohol) M.Os.23 to 26 : Drinks packets M.O.27 : Video cassette recorded @ the time of recovering M.O.16 to M.O. 26 M.O.28 : Cassette cover, containing M.O.27 M.Os.29 to 41 : Covers containing M.Os.16 to M.O.28 72 S.C.No.774/2012 M.O.42 : Jeans pant with belt M.O.43 : Dark green coloured inner wear M.O.44 : Black T-shirt M.O.45 : 4 pieces of clothes M.O.46 : Blood taken from deceased body in a bottled. (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.