Bangalore District Court
The State Of Karnataka vs Ganesh Kumar @ Kotta on 19 May, 2018
IN THE COURT OF THE LXI Addl. City Civil ,
& SESSIONS JUDGE: BENGALURU CITY (CCH-62)
Dated this the 19th day of May, 2018
PRESENT :- SRI. S.A.CHIKKORDE., M.A., LL.M.,
LXI Addl. City Civil & Sessions Judge,
Bangalore.
SESSIONS CASE No.840/2015
Complainant : The State of Karnataka
By Hanumanthanagara Police Station,
Bengaluru.
Reptd. by Public Prosecutor,
City Civil Court Complex, Bengaluru
.V/s.
ACCUSED: Ganesh Kumar @ Kotta
S/o.Ragavendra Rao
Aged about 31 years
R/o.636, Opp. Kamala Nursing Home,
Hanumanthanagara, Bangalore.
(By Sri.Y.M., Advcoate)
1. Date of occurrence of 15.3.2015
offence
2. Date of report of offence 15.3.2015
3. Arrest of the accused 16.03.2015
4. Commencement of trial 19.09.2016
5. Closing of trial 19.08.2018
6. Name of the complainant Kum.Latha
7. First information report 15.03.15 at 23.30 hours
reached to the Magistrate
2 S.C.No.840/2015
8. Offences complained of U/S.302 of IPC
9. Opinion of the Judge Accused is not found guilty
10. Sentence or order Accused is acquitted as per
the Judgment
JUDGMENT
The P.I. of Hanumanthanagara Police Station, filed charge sheet against the accused for the offence punishable U/s.302 of IPC.
2. The case of the prosecution in brief is as under that, on 15.3.2015 at about 8.45 p.m., when the deceased Veereshmurthy was in the house of Surendra Babu situated at 7th Cross, near Shanimahathma temple, Hanumanthanagara, Bangalore at that time the accused picked up quarrel with the Veereshmurthy and with an intention of causing his death assaulted him by hands and took him near Kamala Nursing Home infront of SLV Enterprises and again assaulted him by hands on forehead and nose and caused grievous injuries and committed murder of Veereshmurthy. Then the CW-1 lodged complaint before the Police. On the basis of which, the police registered the case in Crime No.88/2015 for the offence under Section 302 of IPC and thereafter after completing the investigation, the police submitted charge sheet against the accused.
3. On receipt of the charge sheet, the learned XXIV ACMM, Bengaluru took cognizance of the offence cited therein. Since the offence U/s.302 of IPC is exclusively triable 3 S.C.No.840/2015 by the Court of Sessions, the case was committed to the Court of Principal City Civil and Sessions Judge, Bengaluru City, who in turn registered case against accused in SC.840/2015, and pleased to make over the case to this Court for disposal in accordance with law.
4. Thereafter this Court secured the records. After hearing the learned Public Prosecutor for State and learned Public Prosecutor for the accused, since there are sufficient materials to frame charge, charge for the offences punishable U/s. 302 of IPC was framed, read over and explained to the accused. He pleaded not guilty and claimed for trial.
5. The prosecution in order to establish the guilt of the accused, examined in all Seventeen witnesses as P.Ws.1 to 17 and through them got marked in all twenty six documents at Exs.P.1 to P.26 and M.Os.1 to 6. Inspite of sufficient opportunity given to the prosecution the concerned police failed to secure the presence of C.Ws.6,7, 9, 10,11, 20 to 22, so the prayer of the prosecution to re-issue NBW to those witnesses was rejected and evidence of prosecution was taken as closed.
6. After closure of prosecution evidence, I examined accused U/Sec. 313 of Cr.P.C., so as to enable them to explain the circumstances appearing against the accused, wherein the accused denied the incriminating evidence 4 S.C.No.840/2015 appeared in the prosecution evidence and did not choose to lead any defence evidence on his behalf.
7. Heard the learned Public Prosecutor for the State and defence Counsel for the accused and perused the material placed on record.
8. The following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that on 15.3.15 at about 8.45 p.m., when the deceased Veereshmurthy was in the house of CW-7 Surendra Babu situated at 7th Cross, near Shanimahathma temple, Hanumanthanagara, Bangalore at that time you accused Ganesh kumar @ Kotta picked up quarrel with Veereshmurthy and with an intention of causing death of deceased assaulted him by hands and took him near Kamala Nursing Home infornt of SLV Enterprises an again assaulted him by hand on his forehead, nose and caused grievous injuries to him knowingly that such bodily injuries are sufficient to the ordinary course ofnature to cause death and knowingly that there are s imminently dangerous and that they much in all probability cause death and thereby the accused person has committed an offence of murder punishable U/s.302 of IPC?
2. What order?
9. My findings on the above points are as under:
Point No.1 : Negative.
Point No.2 : As per final order, for the
following :
5 S.C.No.840/2015
REASONS
10. Point No.1: Out of 22 witnesses examined by the prosecution, P.W.1 - Kumari Latha is the daughter of the deceased Veershmurthy, a circumstantial witness to the alleged incident and also a hostile witness, PW-2 Bhramaramba is the wife of the deceased Veershmurthy and also a circumstantial witness, PW-3 Swamy Rao is the witness to mahazar at Ex.P.3 and a hostile witness, PW-4 Mudegowda and PW-5 Chandrashekar are the hostile witnesses, PW-6 Dr.Dilip Kumar K.V. deposed about conducting inquest mahazar and identified Ex.P.7 PM report, Ex.P.8 Final Report, Ex.P.9 Histopathology, Ex.P.10 FSL report and also identified his signatures of Ex.P.7 to Ex.P.10 at Ex.P.7(a) to Ex.P.10(a), PW-7 Harish is a witness to mahazar at Ex.P.11 and identified MO-2 blood stained baniyan and he is also a hostile witness, PW-8 Ramesh HC No.5473 of Hanumanthanagara, P.S., deposed about apprehending of accused and giving report as per Ex.P.13 and this witness also identified his signature on Ex.P.13 as Ex.P.13(a), PW-9 Vijay Kumar HC 4688 of Hanumanthanagara P.S. deposed about collecting PM report, handing of four visera bottle to FSL and receiving acknowledgment at Ex.P.15, Ex.P.16 passport and giving report as per Ex.P.14, this witness also identified his signature on Ex.P.14 at Ex.P.14(a), PW-10 Madesh is a hostile witness, PW-11 Dr.Nataraj, Professor (Pathology) Victoria Hospital, Bangalore has deposed about conducing examination and issuance of Histopathalogy report at Ex.P.9 6 S.C.No.840/2015 and he also identified his signature on Ex.P.9 at Ex.P.9(b), PW-12 Dr.Chandrashekar, Asst. Director of FSL, Bangalore has deposed about conducting examination and issuance of report at Ex.P.19, identified sample seal at Ex.P.20 and also MO-1 to 6, PW-13 Smt.Savitha.S, Scientific examiner, FSL Bangalore, deposed about conducting examination and issuance of report at Ex.P.10 and identified her signature on Ex.P.10 at Ex.P.10(b), PW-14 Vishveshwaraiah brother of the deceased Vereeshmurthy is a circumstantial witness, PW-15 Sadashivaiah and PW-16 Suresh are the witnesses to inquest panchanama at Ex.P.22 and identified their signature on Ex.P.22 at Ex.P.22(a) and Ex.P.22(c) respectively, PW-17 M.Gopal Krishna Gowda, PI, CBI, Bangalore deposed about receiving of compliant from complainant and on the basis of which he registered the case in his P.S. Cr. No.88/15 and sent FIR as per Ex.P.23 to the jurisdictional Court and party conducted investigation and handed over further investigation to CW-22 Dilip Kumar and then CW-22 after verifying the records, filed charge sheet against the accused person.
11. On perusal of the entire evidence of PW-1 to 17 it reveals that out of these 22 witnesses only supporting witness for the prosecution are PWs-2, 4, 5, 6, 8, 9, 11, 12, 13, 14, 15, 16, and 17, remaining witnesses i.e., PW-1, 7 and 10 have been turned hostile to the prosecution in respect of Ex.P.12, Ex.P.18. Hence, keeping in view of this aspect, though these witnesses have been turned hostile to the prosecution but their evidence cannot be totally discarded 7 S.C.No.840/2015 and credibility of their evidence is required to be looked into with regard to nature of the offence alleged against the accused person in the given facts and circumstances of this case are concerned, inorder to ascertain as to whether the evidence of these hostile witnesses would either helpful to the prosecution or to the defence as the case may be. Before considering the credibility of these hostile witnesses, it is also necessary to consider the above supporting witness for the prosecution and also their credibility, in the light of defence taken by the accused persons in this case with regard to the alleged incident is concerned.
12. As could be seen from the entire evidence of PW-2, 4, 5, 6, 8, 9, 11, 12, 13, 14, 15, 16, 17 in the light of suggestions made by the learned counsel for the accused person it clearly reveals that defence of the accused with regard to the alleged offence is concerned it is clear that the defence of the accused person is that of total denial of the case of the prosecution and the accused person is in no way concerned to the alleged incident on the ground that death of the deceased had caused not due to the alleged assault on deceased Vereeshmurthy by the accused person but it was due to the injuries sustained by him if more than one person assaults and also on the ground that accused person is innocent of the alleged crime and he has been falsely implicated in this case. Therefore, having regard to the above defence taken by the accused person in this case, it is to be seen whether the evidence of above supporting witness for the 8 S.C.No.840/2015 prosecution would be helpful to the prosecution inorder to prove its case along with the evidence of above remaining hostile witnesses for the prosecution inorder to bring home the alleged guilt of the accused beyond all reasonable doubt. Therefore, having regard to all these circumstances it is to be see whether the evidence of above supporting prosecution witnesses would be helpful to the prosecution to prove the alleged offence against accused beyond all reasonable doubt.
13. On perusal of evidence of PW-1 Kumari Latha in her examination in chief has deposed that CW-2 Bhramaramba is her mother, she does not know CW-6 and 7, she has seen the accused before the court in the police station and not before that. She further deposed that Vereeshmurthy is her father. On 15.3.2015 her father had expired, her father was working as Junior Assistant in BWSSB. She deposed that on 15.3.15 when herself and her mother were at about at about 9.45 p.m., her fathers' elder sister Sowbhagya had called her and informed her that Vereeshmurthy had met with accident and she also asked to collected information by called to Hanumanthanagara P.S., when they called the police, they informed that they had admitted her father to Victoria Hospital and asked to come there. Later her fathers elder sister again called over phone and informed that in TV Channel it is being telecasting that my father was being murdered, then they went to P.S. and there police informed that her father was being murdered near Kamala Nursing Home by one Ganeshkumar. She deposed that then they 9 S.C.No.840/2015 lodged complaint. She identified complaint at Ex.P.1 and her signature as Ex.P11(a). She further deposed that on the next day she again gave her further statement but she does not know what she had stated in her further statement. At this stage the learned Public Prosecutor treated this witness as hostile and cross-examined wherein she admitted that on 15.3.2015 from TV Channel and phone calls of relatives she came to know that one Ganeshkumar had committed murder of her father and then she went to Police Station and lodged complaint. She further denied the suggestion that she had given further statement as per Ex.P.2 before the police. She identified the accused before the court as accused Ganesh Kumar. She denied the suggestion that inorder to help the accused she is deposed falsely before the court.
14. PW-2 Bhramarambha deposed in her examination in chief that CW-1 Latha is her daughter, she does not know CW-3 to 7, CW-8 is her brother-in-law. On 15.3.2015 her husband Vereeshmurthy had expired. On 15.3.2015 at about 9.45 p.m., her husbands sister Sowbhagya had called over phone and informed that my husband Veereshmurthy was not keeping well and was admitted to Victoria hospital and in TV it was being telecasted as to he was murdered as he was having illegal relationship. She further deposed that when she called over phone to Hanumanthanagara Police Station they informed her that her husband had sustained simple injuries and asked her to come over to police station on the next day, then herself and her daughter went to the police station on 10 S.C.No.840/2015 the same night and police informed her that as her husband was going to the house of one Lakshmi and for that reason one Ganeshkumar had assaulted and caused murder. She deposed that her husband had sustained bleeding injuries on his back side of head and she does not know whether he had sustained injuries on any other parts of his body or not. She further deposed that the persons who is said to have committed murder now present before the court was the same person whom she had seen in the Police Station.
15. PW-3 Swamy Rao deposed that he does not know Vereeshmurthy. He deposed that about one and a half years back he came to know that accused had committed murder of a person and he had not witnessed the incident, police have not recorded his statement, on the next day of incident police had taken his signature at Ex.P.3(a) in police station, no mahazar as per Ex.P.3 was conducted and no articles were seized in his presence. He deposed that he had not seen the blood stained cotton i.e., MO-1 now shown to him but his signature is presence on the chit pasted on it and he had put that signature in the police station. At this stage the learned public prosecutor has treated this witness as hostile and cross-examined him wherein he denied that he had given statement before the Police as per Ex.P.4 and he also denied the suggestion that on the basis of his statement Ex.P.4 he has shown the spot the police and police had collected MO-1 blood with the help of cotton and stored in plastic bottle and conducted mahazar Ex.P.3. He further denied the suggestion 11 S.C.No.840/2015 that in order to help the accused he is deposing falsely before the court.
16. PW-4 Mudegowda S/o.Mari Basavegowda has deposed in his examination in chief that he was at Basaveswara Provision Stores situated at Hanumanthanagara, he knows CW-3 and 5 and he does not know Veereshmuthy and accused. He further deposed that he does not know about the incident, he has not seen the accused hitting Veereshmurthy from his fist and committing murder of him. He deposed that police have not recorded his statement. At this stage the learned public prosecutor has treated this witness as hostile and cross-examined him wherein he denied that he had given statement before the Police as per Ex.P.5. He further denied the suggestion that in order to help the accused he is deposing falsely before the court.
17. PW-5 Chandresh S/o.Mahadevaiah has deposed in his examination in chief that CW-4 is his brother in law and he knows CW-3. He deposed that his brother in law is having a provision stores at Hanumanthanagar and he is along working there, he does not know the deceased Veeereshmurthy so also he does not the accused. He does not know anything about the incident, he has not seen the accused hitting Veereshmurthy with his fist and committing his murder and police have not recorded his statement. At this stage the learned public prosecutor has treated this 12 S.C.No.840/2015 witness as hostile and cross-examined him wherein he denied that he had given statement before the Police as per Ex.P.6. He further denied the suggestion that in order to help the accused he is deposing falsely before the court.
18. PW-6 Dr.Dilip Kumar.K.V. has deposed in his examination in chief that since from 30.10.10 he is working In Victoria Hospital, on 16.3.15 as per the requisition of the PI of Hanumanthanagara P.S. he conducted PM examination on the dead body of the deceased Vereeshmurthy aged about 57 years in between 2.00 to 3.00 p.m., He deposed that the following injuries were on the dead body;
1. Blood clot injury on the middle of the fore head measuring cm X 3 cm
2. Cut injury on the nose measuring 06 cm x 0.4 cm
3. Blood clot injury on the left cheek measuring 5 cm X 7 cm
4. Cut injury inside the lips measuring 0.5 cm X 0.5 cm
5. cut injury inside the left lip measuring 06 cm, X 0.5 cm
6. Blood clot injury on the back left side of the head measuring 5 cm X 4 cm The skull was as it is, heard was weighing about 425 grams, he found patches on the heart and its measurements was 5 X 7 C.m., and 3 X 4 cms, it was enlarged and the other parts of the body was intact. He sent the blood and viscera to the FLS for examination, he also sent heard, brain, lungs, yakrut and kidney to Victoria Hospital for examination and he opined that the death of deceased may be caused due to heart 13 S.C.No.840/2015 attack. He identified the report as Ex.P.7, his signature on Ex.P.7 at Ex.P.7(a), final report at Ex.P.8, his signature onEx.P.8 at Ex.P.8(a), Histopathology report at Ex.P.9, his signature on Ex.P.9 at Ex.P.9(a), FSL report at Ex.P.10, his signature on EX.P.10 at Ex.P.10(a). He further opined that the injury found on Ex.P.7 can be caused if a person hits with his fist. He further deposed in his re-examination that if a persons heart is enlarged and if all of sudden quarrel takes place and assaults him then heart attack may be caused to such person.
19. PW-7 Harish S/o.Babu has deposed in his examination in chief that he does not know CW-12, he has seen mahazar Ex.P.11, his signature Ex.P.11(a) is present on it, he had put that signature about two years back in Hanumanthanagara Police Station, police had taken his signature to mahazar, police have not conducted any mahazar nor seized any articles in his presence. He deposed that his signature is present on the chit pasted to sealed cover containing blood stained baniyan MO-2. He deposed that he had put those signatures in the Police station at the request of the police, he has not seen the accused prior to seen him before the court. He deposed that he has seen spot mahazar Ex.P.3, his signature Ex.P.3(b) is present on it, he has put his signature in the P.S. at the request of the police, police have not conducted any spot mahazar in his presence and no articles have been seized. He further deposed that he had not seen MO-1 before and police have not recorded his 14 S.C.No.840/2015 statement. At this stage learned Public Prosecutor has treated this witness as hostile and cross-examined him wherein he has denied that on 16.3.15 himself and CW-12 were called to the Hanumanthanagara Police Station, the accused who was in the custody of the police told that he would show the place where he had kept his blood stained baniyan MO-2 and took them to the open space near Veerabhadra swamy temple, there police conducted mahazar Ex.P.11 in the evening at about 6.45 to 7.45 p.m., and seized the article. He further denied the suggestion that on 15.3.15 at about 10.30 p.m., to 11.30 p.m., Hanumanthanagara police had conducted panachanama as per Ex.P.3, collected blood fall on the ground with cotton and sealed the same in a plastic box in the presence of himself and CW-12 as per the stop shown by CW-3 on Kamala Nursing Home road, infornt of SLV Enterprises stores. He denied the suggestion that he had given statement as per Ex.P.12. He also denied the suggestion that he is deposing falsely to help the accused.
20. PW-8 Ramesh S/o.M.Siddaiah, HC 5473 has deposed in his examination in chief that since from 23.9.13 he is working as H.C. in Hanumanthanagara P.S., on 16.3.15 CW-12 had deputed himself and CW-18 to search the accused and accordingly through his informant he collected the whereabouts of the accused, at about 3.30 p.m., he went to Gavipuram and caught hold the accused near Veerabhadraswamy temple and produced before CW-21 at about 4.00 pm., accordingly he submitted his report at 15 S.C.No.840/2015 Ex.P.13 and identified his signature at Ex.P.13(a). He identified the accused person before the court as the person whom he apprehended on that day.
21. CW-9 Vijaykumar S/o.Late Govindaraj HC 4688 has deposed in his examination in chief that since 2010 he is working as H.C. in Hanumathanagara P.S., on 7.4.2015 CW- 21 had instructed him to bring the PM report of the deceased Vereeshmurthy from Victoria Hospital, accordingly he went to Victoria hospital and collected PM report and viscera bottle and produced before CW-21. He further deposed that on 30.5.15 as per the instruction of CW-22 he handed over the four viscera bottles and reports to FSL Bangalore and collected acknowledgment Ex.P.15 and produced the same before CW-22 and submitted his report as per Ex.P.14, he identified his signature on Ex.P.14 as Ex.P.14(a). He identified passport as Ex.P.16. He deposed that on 12.6.15 as per the instructions of CW-22 he handed over six sealed items to FSL and received acknowledgement Ex.P.17. He identified pant, shirt, innerwear, baniyan at MO-3 to 6 respectively.
22. PW-10 Mahadesh S/o.Kalaiah has deposed in his examination in chief that he does not know CW-3 and 13 and he has not seen Ex.P.3 and Ex.P.11, his signature is present on them. About one year back when he was playing Cricket behind Gavi Gangadhareshwara Temple police came there and took his signature. He deposed that police have not conducted any mahazar nor seized any articles in his 16 S.C.No.840/2015 presence. He had not seen MO-1 to 2 before. The signatures identified by him are marked as Ex.P.3(c) and Ex.P.11(b), police have not recorded his statement, he had not seen the accused prior to seeing him present before the court. He deposed that his signatures are present on MO -1 and 2 and he had put his signature on them behind Gavi Gagadhareshwara temple while playing cricket. At this stage, the learned Public Prosecutor treated this witness as hostile and cross-examined him wherein he denied the suggestion that on 15.3.15 at about 10.30 to 11.30 a.m., CW-3 shown the spot to the police and explained, accordingly police conducted mahazar as per Ex.P.3 in the presence of himself and CW-13, collected blood spot with the help of cotton and had put the same in a plastic bottle MO-1 and seized the same. He further denied the suggestion that on 16.3.2015 Hanumanthanagara Police had called himself and CW-13 to the police station, the accused who was in their custody took them to the place where he had committed murder and showed the blood stain baniyan MO-2 which was hidden and police conducted mahazar as per Ex.P.11 in between 6.45 to 7.45 p.m., He further denied the suggestion that he had given statement before the police as per Ex.P.18.
23. PW-11 Dr.Natarajan, Professor, Pathology, Victoria Hospital, Bangalore has deposed in his examination in chief that on 20.3.2015 he conducted examination on the body parts of deceased Vereesh and issued Histopathology report as per Ex.P.9 and his signature on it is marked as Ex.P.9(a).
17 S.C.No.840/201524. PW-12 Dr.Chandrashekar, Asst. Director, RFSL, Bangalore has deposed in his examination in chief that since from March 2011 to September 2016 he was working as Scientific officer, FSL. On 12.6.2015 Hanumanthangara P.I. had sent six sealed articles through HC 4688 and the same was received by inward division and dispatched the same his section for chemical examination and report, accordingly he conducted examination and issued report as per Ex.P.19 and his signature is marked at Ex.P.19(a). He further deposed that the Model seal tallies with the seal and the said Model seal is marked at Ex.P.20 and his signature is marked at Ex.P.20(a). The articles subjected for examination is marked at MO-1 to 6.
25. PW-13 Smt.Savitha.S Scientific Officer, FSL, Bangalore has deposed in her examination in chief that since from 2013 she is working as Scientific officer in FSL, on 30.5.15 Hanumanthanagara P.S. P.I. had sent four sealed articles to HC No.4688 for examination and report. The same was received by inward division and dispatched the same her section for chemical examination and report, accordingly she conducted examination and issued report as per Ex.P.10 and his signature is marked at Ex.P.10(a). He further deposed that she had noted in her report if the articles were received they should taken it back after ten days, but as the same was taken back by the I.O., they have destroyed it after six months.
18 S.C.No.840/201526. PW-14 Vishweshwaraiah, S/o.Dodda Veeriah has deposed in his examination in chief that deceased Vereesh in his elder brother, his father had three sons and two daughters. His another brothers name is Shadaksharaiah. Deceased Vereesh married about 25-30 years back, his wife's name is Bramaramba. They had only one daughter and her name is Latha. Deceased Vereesh Murthy was working in BWSSB. About 20 years back Vereesh Murthy and his wife were residing separately. He deposed that in the month of March 2015 at about 11.00 p.m., his sister residing at Bangalore had called him and informed him that Vereeshmurthy was murdered, as there was no bus facility from his village during night, on the next date morning at about 9.00 a.m., he went to P.S., and from there he went to Victoria Hospital and saw the dead body of his brother Vereesh, blood was presenton his ears, eyes, nose and mouth. He deposed that when he enquired with his brother Shadaksharaiah he told him that Ganesh @ Ganesh Kumar had assaulted Vereesh last night at Nursing Home and Temple and committed murder. He deposed that he had seen Ganesh Kumar in the P.S.
27. PW-15 Sadashivaiah.V S/o.Veerabhadraiah has deposed in his examination in chief that his native is Ramanagara Taluk, he knows CW-10 and 11, he deposed that he had seen the police notice Ex.P.21 and identified his signature Ex.P.21(a) on it. He also identified his signature Ex.P.22(a) on inquest panchanama Ex.P.22. He deposed that 19 S.C.No.840/2015 in the year 2015 he came to know over phone that Vereesh Murthy had expired, accordingly he went to Victoria Hospital and saw the dead body in Mortuary, noticed injuries on the nose, front portion of the head and face on the dead body of Vereesh. He deposed that he does not know who had caused those injuries to him, on enquiry with the panchas he came to know that somebody had assaulted and committed murder but he does not know who had assaulted. At this stage the learned Public Prosecutor treated this witness as hostile and wherein he denied the suggestion that he had opined as per marked portion Ex.P.22(b) i.e., para No.17 of inquest panchanama Ex.P.22. He further denied the suggestion that even though he knows the matter he is deposing falsely in order to help the accused.
28. PW-16 Suresh S/o.Siddaverraiah has deposed in his examination in chief that he knows CW-9 and 11. He deposed that he had seen the police notice Ex.P.21 and identified his signature Ex.P.21(b) on it. He also identified his signature Ex.P.22(c) on inquest panchanama Ex.P.22. He deposed that in the year 2015 he came to know over phone that Vereesh Murthy had expired, accordingly he went to Victoria Hospital and saw the dead body in Mortuary, noticed injuries on the nose, front portion of the head and face on the dead body of Vereesh. He deposed that he does not know who had caused those injuries to him, on enquiry with the panchas he came to know that somebody had assaulted and committed murder but he does not know who had assaulted.
20 S.C.No.840/2015At this stage the learned Public Prosecutor treated this witness as hostile and wherein he denied the suggestion that he had opined as per marked portion Ex.P.22(d) i.e., para No.17 of inquest panchanama Ex.P.22. He further denied the suggestion that even though he knows the matter he is deposing falsely in order to help the accused.
29. PW-17 M.Gopalkrishna Gowda PI, CID, Bangalore has deposed in his examination in chief that from the year 2013 to 2015 he was working as P.I. of Hanumanthanagara P.S., On 15.3.2015 he received written complaint of CW-1, on the basis of which he registered the case in their P.S. Cr. No.88/15, sent complaint Ex.P.1 and FIR Ex.P.23 to the jurisdictional Court. He identified the signature of the witness on Ex.P.1 and Ex.P.23 as Ex.P.1(b) and Ex.P.23(a) respectively. On the same day he visited the spot, conducted spot panchanama as per the spot identified by PW-3 in the presence of panchas CW-7 and 10, collected the blood fallen on the ground with the help of cotton and kept the same in a box, then packed and sealed the same. He identified the spot mahazar at Ex.P.3 and signature as Ex.P3(d), took signatures of the panchas on Ex.P.3 mahazar and subjected the seized MO to P.F. On 16.3.15 he conducted inquest panchanama Ex.P.21 in the presence of CW-15 and 16 at Victoria Hospital, he identified signature of witness at Ex.P.21(d). At the time of inquest panchanama he recorded the statement of CW-14. On the same day he deputed staff for search of the accused, accordingly they produced the accused before him along with 21 S.C.No.840/2015 the report Ex.P.13 and identified the witness signature at Ex.P.13(b). He also recorded the statement of CW-18 and 19. He enquired the accused and recorded his voluntary statement Ex.P.24, the portion of his voluntary statement is marked at Ex.P.24(a) as to he had assaulted Vereesh and stated that if he is taken he would show the place where he had hidden his blood stained cloths. The signature of the accused is marked at Ex.P.24(b). He deposed that he had used the cotton MO-1 to collect the blood fallen on the ground and kept the same in a box and used white cloth to seal the said box and pasted the chit on it as per Ex.P.25 and took signature of the witness on the said chit as per Ex.P.25(a). He deposed that the accused took them near Veerabhadraswamy temple and produced the blood stain baniyan MO-2 which was hidden and then he conducted panchanama in the presence of panchas as per Ex.P.11 and took signature of the witness on it as per Ex.P.11(c). He deposed that he had seized and mentioned the same under P.F. He deposed that inorder to cover the MO-1 Baniyan he used a white cloth and pasted the chit on it as per Ex.P.26 and took signature of the witness as per Ex.P.26(A). He deposed that he had recorded the statement of CW-1 to 5, 6 and 7. He further deposed that PW- 1, PW-4, PW-5, PW-7, PW-10 have given their further statement as per Ex.P.2, Ex.P.5, Ex.P.6, Ex..12, Ex.P.18 respectively. He deposed that on the same day PM examination was conducted on the deceased at Victoria Hospital and later handed over the same to his family members. He deposed that on 7.4.15 CW-9 had appeared 22 S.C.No.840/2015 before the P.S. and produced four viscera bottle along with the report Ex.P.14 which was collected at the time of inquest mahazar. He deposed that the signature of witness on Ex.P.14 is marked as Ex.P.14(b). He deposed that he handed over further investigation of this case to CW-22. He further deposed that he had seen the accused and identified the accused before the court as the same person whom he had apprehended. He deposed that CW-22 Dilip Kumar, P.I. had verified the investigation done by him till date and later filed charge sheet before the court.
30. As could be seen from the suggestions made by the learned counsel for accused during the cross examination of PW-1, PW-2, PW-8, PW-9, PW-12, PW-13, PW-14 it clearly reveals that the defence of the accused in respect of the alleged offences are concerned is that of total denial of the case of the prosecution on the ground that accused is no way connected to the alleged offences and false complaint was filed by complainant and the deceased was addicted to consuming alcohol and he was residing separately from his wife prior to the alleged incident and there was a case pending before the family court and on the alleged date of incident some persons of the locality assaulted him as he had misbehaved with one lady and also on the ground that accused is innocent of the charges leveled against him and he is no way connected to the alleged incident, therefore keeping in view of the above defense of the accused it is to be seen whether the evidence of all these witnesses would inspire 23 S.C.No.840/2015 confidence to believe their evidence inorder to hold the accused guilty for the alleged offences and also whether prosecution is able to bring home the alleged guilt of the accused beyond all reasonable doubt. Hence, the version elicited during their respective cross-examination is required to be considered.
31. On going through the entire cross-examination of PW-1 by the learned counsel for the accused wherein PW-1 admitted that while her father was alive he was not residing with her and he was residing separately since eleven years. It is also elicited that her father often use to visit her by coming over to Bangalore from Ramanagara. PW-1 further admitted that there was a family dispute between her mother and father and there was pendency of case before Family Court. It is also elicited that she had seen the accused for the first time in Police Station on 15.3.2015. She also admitted that on the basis of the say of the police she had lodged the complaint. She further admitted that after death of her father she had been appointed on compensatory grounds and her father had health problems but he was not in the habit of drinking alcohol. It also reveals from the remaining suggestions made by the counsel for the accused in respect of the above defenses of the accused are concerned have been categorically denied by PW-1 in toto.
32. Where as the version of PW-2 elicited during her cross-examination by the learned counsel for the accused 24 S.C.No.840/2015 wherein she admitted that she was residing separately from her husband since 2007 and she do not know as to where her husband was residing. She also admitted there was a case pending before the family court. On that night hours only herself and her daughter went to P.S., and by that time she did not notice about the persons acquainted with her. It also reveals from the remaining suggestions made by the counsel for the accused with regard to the above defense are concerned have been categorically denied by PW-2 in toto.
33. Whereas the version of PW-8 and 9 is taken into consideration it is clear that the learned counsel for the accused during their respective cross-examination wherein these two witnesses have admitted that their superiors had not given orders to them in writing except this admission remaining suggestions with regard to above defence of the accused have been categorically denied by them in toto.
34. Where as the version of PW-12 elicited during his cross-examination by the learned counsel for the accused wherein he has admitted that there is no specific mention in his report at Ex.P.19 as to he personally examined articles which were sent for chemical examination though he denied the suggestions that he has not personally conducted the articles for chemical examination and as well as he denied that at the request of the police he issued false report.
25 S.C.No.840/201535. As far as the version of PW-13 elicited by the learned counsel for the accused during her cross-examination by the learned counsel for the accused is taken into consideration wherein she clearly admitted that ¸ÁåZÀÄgÉÃlgï ¦ædgïªÉÃlgïì£À°è ºÁQ, PÉÆïïØ ¸ÉÆÖÃgÉÃeï£À°è ElÖgÉà CzÀÄ ¸ÁªÀiÁ£ÀåªÁV 2 jAzÀ 3 ªÀµÀðUÀ¼ÀªÀgÉUÉ EgÀÄvÀÛzÉ. £ÀªÀÄUÉ PÀ¼ÀÄ»¹zÀ ªÀ¸ÀÄÛUÀ¼ÀÄ ¸ÁåZÀÄgÉÃlgï ¦ædgïªÉÃlÆåªï §UÉÎ CzÀ£ÀÄß PÉÆïïØ ¸ÉÆÖÃgÉÃeï£À°è EqÀ¯ÁVvÁÛ JAzÀÄ ¤.¦.10gÀ°è £ÀªÀÄÆ¢¹®è. CzÀÄ £ÀªÀÄä ¥ÀjÃPÉëAiÀÄ°è UÉÆvÁÛUÀĪÀÅ¢®è. CªÀÅUÀ¼£À ÀÄß £Á£ÀÄ PÉÆïïÖ ¸ÉÄÁÖÃgÉÃeï£À°è ElÖ §UÉÎ £ÀªÀÄÆ¢¹®è. It also reveals from the remaining suggestions made by the counsel for the accused during her cross-examination with regard to the above defense to the accused have been categorically denied by her in toto.
36. Similarly the version of PW-14 elicited by the learned counsel for the accused is taken into consideration wherein his brother Shadakshari came to know about the alleged incident from his sister Bhagyama and also the telecasting of the news in Television. He denied suggestion that they had not told as to Ganesh committed murder. It also reveals that remaining suggestions with regard to the above defence of the accused have been categorically denied by him in toto.
37. At the very outset it is pertinent to note that having regard to the above defence taken by the accused with regard 26 S.C.No.840/2015 to the alleged incident in question, there is no dispute by the learned counsel for the accused with regard to the aspect of death of Vereesh Murthy as well as there is no dispute with regard to conducting inquest mahazar in the said hospital at Ex.P.22. But only dispute by the accused is that he is innocent of the charge levelled against him and he has not committed offence alleged against him and he is no way connected to the alleged incident and thereby accused taken up the above said defence.
38. On going through the entire evidence of PW-1 who is none other than the daughter of the deceased Vereesh Murthy and also PW-2 who is none other than the wife of the said deceased it clearly reveals that they were not eye witnesses to the alleged incident, but they are the hear say witnesses of the alleged incident on the basis of alleged phone call given by paternal aunt of PW-1 Smt.Sowbhagyamma and as well as news in the television that Vereesh Murthy was admitted at Victoria Hospital and as well as telecasting of the news in the T.V. channel in respect of the injured succumbed to the injuries. But so far as the evidence of PW-1 with regard to her further statement made before the police as per Ex.P.2 is concerned, she has categorically denied that on 15.3.2015 during night hours her father Vereesh Murthy had been to the house of one Surendra Babu for entrusting the work of cooking in his house on 15.3.2015, his brother-in-law i.e., accused Ganesh Kumar had picked up quarrel in the said house and assaulted there after at about 8.45 p.m., he was 27 S.C.No.840/2015 took to Kamala Nursing Home and assaulted on his nose, forehead have been categorically denied by PW-1. It is also pertinent to note that PW-1 lodged complaint with regard to the alleged incident on the basis of the say of the police. It is also pertinent to note that PW-1 had only one occasion to see the accused in the P.S. on 15.3.2015 for the first time. It is also clear from the evidence of PW-1 and as well as PW-2 that prior to the alleged incident Vereesh Murthy was residing separately inview of the dispute between PW-2 and deceased Vereesh Murthy and their family dispute pending before the competent family Court i.e., since 2007 PW-2 residing separately from deceased Vereesh Murthy and she was not aware as to where her husband was residing and during night hours on the alleged date of incident PW-2 and her daughter had been to the P.S., and by that time she had not noticed any persons acquainted with her. It is also pertinent to note that the evidence of PW-1 and 2 assessed objectively it clearly goes to show that these two material witnesses and as well as interested witnesses of the deceased person, their evidence with the regard to the alleged incident is not direct and it is not the case of the prosecution that PW-1 and 2 had been to the alleged spot of incident soon after the occurrence of the same, but their evidence which is based on certain circumstances prevailing by that time only they had an occasion to see the accused in the P.S., Therefore, the said circumstance itself is not suffices to believe the evidence of PW-1 and 2 because their evidence is based on hear say and as well as the evidence of these two witnesses is also not 28 S.C.No.840/2015 directly incriminating the alleged overt act of the accused. Hence, the evidence of PW-1 and 2 do not inspire confidence to believe their evidence.
39. Apart from this the evidence of PW-4, PW-5 is taken into consideration these two who are independent witnesses to the alleged incident have also turned hostile to the prosecution and in their respective examination in chief they have not stated anything with regard to the alleged overt act of the accused and accused is responsible for the alleged crime so far as their respective statement made before the I.O. at Ex.P.5 and 6 are concerned. Though PW-5 and 6 have been turned hostile to the case of the prosecution but learned Public Prosecutor inspite of confronting the entire contents of Ex.P.5 and 6 have been categorically denied in toto and nothing worthwhile has been elicited in order to believe their respective evidence. Similarly, PW-14 who is also interested witness and relative of the deceased as well as PW-1 and 2, his evidence is taken into consideration along with the evidence of PW-1 and 2, his evidence is also clear with regard to the aspect that prior to the alleged incident i.e., for the last 20 years deceased Vereesh and his wife were residing separately. It is also clear from his evidence that he too is an hear say witness to the alleged incident and on the very next day morning he came over to Bangalore, Victoria Hospital and saw the dead body of his elder brother Vereesh Murthy and the injuries caused to ear, eyes, nose and also there was a blood in the mouth and according to him accused is 29 S.C.No.840/2015 responsible for the injuries caused to his said elder brother as he came to know that on the previous night hours such assault was made by the accused near Nursing Home and Ganesh Temple as he was informed by his younger Brother Shadaksharaiah. If, Shadaksharaiah had knowledge about the alleged incident as deposed by him certainly he could be competent and material witness for the prosecution but the said Shadaksharaiah was neither cited as a witness in the charge sheet nor prosecution made any effort in this case to examine the said Shadakasharaiah. Therefore, in the absence of his evidence, the hear say evidence of PW-14 is of no consequence inorder to hold that accused is responsible for the alleged crime.
40. As far as evidence of PW-15 and 16 taken into consideration these two witnesses have also turned hostile to the case of the prosecution and in their respective examination in chief except admitting their respective signatures with regard to notice as per Ex.P.21 given to them by Police for the purpose of securing them as a panch witnesses for holding inquest mahazar, as per Ex.P.22 and as well as their signatures on the said mahazars but they have clearly given go bye to the case of the prosecution with regard to the alleged incident as per their statement made before the I.O. as per Ex.P.22(b) and 22(d) respectively, insptie of confronting their relevant statement during their respective cross-examination by the learned Public Prosecutor they have 30 S.C.No.840/2015 categorically denied in toto and nothing worthwhile has been elicited.
41. In this case prosecution has not only failed to prove spot mahazar at Ex.P.3 but also the seizer mahazar as per Ex.P.11. In this regard the evidence of PW-3, PW-7 and 10 are taken in to consideration it clearly reveals that all these panch witnesses for Ex.P.3 and Ex.P.11 are concerned have categorically deposed in their respective examination in chief by giving go bye to the case of the prosecution so far as the contents of Ex.P.3 and 11 are concerned and except admitting their respective signatures it appears that their evidence is contrary to the above said two mahazars and apart from these witnesses though they have turned hostile to the prosecution but their statement before the I.O. with regard to the alleged incident in question as per Ex.P.4, as per Ex.P.12 and Ex.P.18 are concerned learned Public Prosecutor confronted each and every material particulars of the same however they denied categorically in toto and in this regard nothing wroth while has been elicited as to how their evidence is otherwise relevant and believable. Apart from this the evidence of PW-1, 3 to 5, 7, 10, 15 and 16 are taken into consideration along with the evidence of PW-17 I.O., it clearly goes to show that there is no corroboration of the evidence of these witnesses to each other but on the contrary it clearly reveals the evidence of all these material witnesses for the prosecution are contradictory and as well as creating doubt about the circumstances which were prevailing at the time of alleged 31 S.C.No.840/2015 incident and in such kind of cases it is well settled principle of law that if the prosecution case purely based on circumstantial evidence, it is for the prosecution to link the chain of circumstance to each other so as to hold the accused guilty of the alleged offence. In this case the evidence of these material witness for the prosecution are not suffices to create the link of chain to each other so as to hold the accused guilty of the alleged offence and therefore the evidence of these prosecution witnesses are not helpful to believe the case of the prosecution.
42. Now coming to the medical aspects with regard to the injuries found on the deceased person as per the evidence of PW-6 who conducted autopsy over the dead body has found totally six external injuries as deposed by him in his examination in chief and noted in the post mortem report at Ex.P.7. It is also pertinent to note that the injuries shown in Ex.P.7 though they were ante mortem in nature but the opinion in respect of the cause of death of the deceased was got served for want of histopathology report and subsequent to the said report as per Ex.P.9 and also the FSL report produced at Ex.P.10 though PW-6 deposed about possibility of causing injuries shown in Ex.P.7 by a person by giving a fist blow but having regard to his version elicited by the learned counsel for the accused where in he has admitted that injuries shown in Ex.P.7 could be possible if more than one person made assault and he also admitted that there is no mention about the blood group of the deceased either in 32 S.C.No.840/2015 Ex.P.7 or Ex.P.8. In his re-examination PW-6 deposed that person having a large size of the heart and quarrel took place suddenly there is more possibility of heart attack. Similarly, in his further cross-examination by the learned counsel for the accused also he admitted that some times there is a possibility of heart attack due to shock. It is also pertinent to note that having regard to the evidence of PW-11, 12 and PW-13 their respective evidence in chief appears to be formal one with regard to their discharge of duties. Hence, having regard to the entire evidence of PW-6, 11, 12, 13 and as well as PW-8 who only speaks about the arrest of the accused and produced him before the superior officer CW-21 along with his report as per Ex.P.13, the evidence of these witnesses is of no consequence since the evidence of remaining material prosecution witnesses i.e., PW-1, 2, 4, 5, 8, 9, 14, 15, 16 and 17 are taken in to consideration it clearly goes to show that there is no corroboration to each other and as well as there is no clinching evidence available on record against the alleged overt act of the accused in respect of the alleged offence since keeping in view of the cause of death as shown in Ex.P.7 and 8 and as well as the FSL Report this court is of considered view that the evidence of PW-1 to 17 and materials available on record are sufficient to hold the accused responsible for the alleged crime and as well as the entire circumstances prevailing in this case are not linking to each other so as to point out the alleged overt act was due to the person none other than the accused. Therefore, considering all these circumstances it can be inferred from all these aspects so far 33 S.C.No.840/2015 as keeping in view of the above defence of the accused it is clear that as the prosecution has failed to establish the chain of circumstances against the accused for the alleged offence and thereby creating doubt in the mind of this court as per the well settled principle of law, if any doubt arises its benefit shall be extended to the accused and thereby extending the benefit of doubt this court is considered view that prosecution has failed to bring home the guilty of the accused beyond all reasonable doubt. Accordingly, this point is answered in the negative.
43. Point No.2:- Having regard to my above observations and findings on point No.1 in negative, extending the benefit of doubt to the accused, I proceed to pass the following :
ORDER Acting under Sec.235(1) Cr.P.C, I do hereby acquit the accused, for the offences punishable U/s. 302 of IPC.
The bail bond and surety bond of the accused stand cancelled.
M.Os.1 to 6 being worthless articles are ordered to be destroyed after appeal period is over.
(Dictated to the Stenographer directly on the computer, corrected and then pronounced by me in the open Court on this the 19th day of May 2018).
(S.A.CHIKKORDE) LXI Addl. City Civil & Sessions Judge, Bengaluru.
34 S.C.No.840/2015
ANNEXURES
LIST OF WITNESSES EXAMINED FOR THE
PROSECUTION:-
PW.1 - Kum.Latha
PW.2 - Brahmarambha
PW.3 - Swamy Rao
PW.4 - Mudegowda
PW.5 - Chandresh
PW.6 - Dr.Dilip Kuamr.K.V.
PW.7 - Harish
PW.8 - Ramesh
PW.9 - Vijaykumar
PW.10 - Madesh
PW.11 - Dr.Natarajan
PW.12 - Dr.Chandrashekar
PW.13 - Smt.Savitha.S
PW.14 - Vishveshwaraiah
PW.15 - Sadashivaiah.V
PW.16 - Suresh
PW.17 - M.Gopalakrishna Gowda
PW.18 -
LIST OF WITNESSES EXAMINED FOR THE DEFENCE :-
- NIL -
LIST OF DOCUMENTS MARKED FOR THE PROSECUTION:-
Ex.P.1 - Complaint Ex.P.1(a) - Signature of PW-1 Ex.P.1(b) - Signature of PW-17 35 S.C.No.840/2015 Ex.P.2 - Further statement of PW-1 Ex.P.3 - Seizer Mahazar Ex.P.3(a) - Signature of PW-3 Ex.P.3(b) - Signature of PW-7 Ex.P.3(c) - Signature of PW-10 Ex.P.3(d) - Signature of PW-17 Ex.P.3 - Signature of PW-3 Ex.P.4 - Statement of PW-3 Ex.P.5 - Statement of PW-4 Ex.P.6 - Statement of PW-5 Ex.P.7 - PM report Ex.P.7(a) - Signature of PW-6 Ex.P.8 - Final report Ex.P.8(a) - Signature of PW-6 Ex.P.9 - Histopathology report Ex.P.9(a) - Signature of PW-6 Ex.P.9(b) - Signature of PW-11 Ex.P.10 - FSL Report Ex.P.10(a) - Signature of PW-6 Ex.P.10(b) - Signature of PW-13 Ex.P.11 - Seizer mahazar Ex.P.11(a) - Signature of P.W.7 Ex.P.11(b) - Signature of PW-10 Ex.P.11(C) - Signature of PW-17 Ex.P.12 - Statement of PW-7 Ex.P.13 - Report of PW-8 Ex.P.13(a) - Signature of PW-8 Ex.P.13(b) - Signature of PW-17 36 S.C.No.840/2015 Ex.P.14 - Report of PW-9 Ex.P.14(a) - Signature of PW-9 Ex.P.14(b) - Signature of PW-17 Ex.P.15 - Acknowledgment Ex.P.16 - passport Ex.P.17 - Acknowledgment Ex.P.18 - Statement of PW-10 Ex.P.19 - Report Ex.P.19(a) - Signature of PW-11 Ex.P.20 - Model seal Ex.P.20(a) - Signature of PW-11 Ex.P.21 - Notice Ex.P.21(a) - Signature of PW-15 Ex.P.21(b) - Signature of PW-16 Ex.P.21(c) - Signature of witness Ex.P.21(d) - Signature of PW-17 Ex.P.22 - Inquest mahazar Ex.P.22(a) - Signature of PW-15 Ex.P.22(b) - Marked portion of Ex.P.22 Ex.P.22(c) - Signature of PW-16 Ex.P.22(d) - Marked portion of Ex.P.22 Ex.P.23 - FIR Ex.P.23(a) - Signature of PW-17 Ex.P.24 - Portion of Voluntary statement of accused Ex.P.24(a) - Signature of PW-17 Ex.P.24(b) - Signature of accused Ex.P.25 - chit pasted on MO Ex.P.25(a) - Signature of PW-17 37 S.C.No.840/2015 Ex.P.26 - chit pasted on MO Ex.P.26(a) - Signature of PW-17
LIST OF DOCUMENTS MARKED FOR THE DEFENCE:-
- NIL -
LIST OF MATERIAL OBJECTS MARKED FOR THE
PROSECUTION:
M.O.1 - Cotton
M.O.2 - Baniyan
M.O.3 - Pant
M.O.4 - Shirt
M.O.5 - Under wear
M.O.6 - Baniyan of deceased
LIST OF MATERIAL OBJECTS MARKED FOR THE
DEFENCE :-
- NIL -
(S.A.CHIKKORDE)
LXI Addl. City Civil & Sessions Judge,
Bengaluru.
38 S.C.No.840/2015
19.5.18
S-PP
Order pronounced in open
Court vide detailed order
passed separately.
ORDER
Acting under Sec.235(1)
Cr.P.C, I do hereby acquit the
accused, for the offences
punishable U/s. 302 of IPC.
The bail bond and surety bond
of the accused stand cancelled.
M.Os.1 to 6 being worthless
articles are ordered to be destroyed
after appeal period is over.
LXI Addl. City Civil & Sessions Judge
Bangalore.
39 S.C.No.840/2015