Bangalore District Court
Jeevan Bheema Nagara Ps By H And B Cid ... vs A1 Ajaj Khan on 25 November, 2024
KABC010345192019
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 25th day of November 2024
:PRESENT:
Sri. Yashawanth Kumar, B.A.(Law), LL.B,
LI Addl. City Civil & Sessions Judge, Bengaluru City.
S.C. No. 1723/2019
Complainant : State of Karntaka,
Jeevana Bheema Nagar PS
BY H and B CID,
Bengaluru.
Through Police Station Officer
Jeevana Bheemanagar PS
65, Bengaluru,
Bengaluru-South,
Bengaluru.
(By Public Prosecutor)
Vs.
Accused : A-1 Ejaj Khan, S/o Nawab Khan,
Aged about 36 years,
R/at No.18, Kadirenapalya,
Indira Nagar Post,
Bengaluru.
A-2 Keshava Murthy,
S/o Munivenkatappa,
Aged about 36 years
R/at No.E 418,
ITI Quarters, Bengaluru.
2
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A-3 Mohan Ram,
S/o Hanumanthappa,
Aged about years,
R/at No.423, 1st Main Road,
New Binny Layout,
Bengaluru.
A-4 Siddappa Bommanahalli,
S/o Seethappa,
Aged about 26 years,
R/at No.02, 1st Main Road,
3rd Cross Road, Bengaluru -17.
( A- 1 to 4 by Sri.SB/LM, Advocate)
1 Date of commission of offence 19.3.2016
2 Date of report of offence 13.2.2017
3 Date of arrest of the accused Accused No.1 to 4 are on
anticipatory bail
4 Date of release of accused on
bail
A-1
A-2 13.4.2017
A-3
A-4
5 Date of commencement of 7.1.2021
evidence
6 Date of closing of evidence 23.5.2023
7 Name of the complainant Sri. B.S. Srinivas, Dy.S.P.
8 Offences complained of Sections 304, 324, 326, 330 R/w.
34 of I.P.C
9 Date of pronouncement of 25.11.2024
judgment
3
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10 Opinion of the Judge Guilt of accused No. 1 to 4 is
proved.
11 Order of Sentence As per final-order
JUDGMENT
The Dy.S.P., H&B Division, CID, Bengaluru, has filed charge-sheet against accused No.1 to 4 for the offence punishable under Sections 304, 324, 326 and 330 R/w. 34 of IPC.
2. The case of the prosecution in brief is as under:-
The deceased Mahendra Rathod was working in Baruka Steel and Services Ltd belonging to PW-5 Ramesh Chandra Purohith. Sometimes he was also doing the gardening and household work in the house of PW-5. He was working in the house of PW-5 since about 10-12 years. PW-5 and his wife were having full confidence in him. He used to work inside the house of PW-5. On 15.2.2016, PW-5 had kept a sum of Rs. 3,60,000/- in the cupboard of the room. On 17.3.2016, he found that the said money was missing. In his house himself, his wife and deceased Mahendra Rathod were there. PW-5 developed suspicion on Mahendra Rathod. PW-5 inquired the deceased Mahendra Rathod as to whether he has 4 SC No.1723/2019 taken the said money. He denied the same. PW-5 filed a complaint to the police on 19.3.2016 regarding theft of Rs. 3,60,000/- from his house and that he was having suspicion on deceased Mahendra Rathod. On the basis of the said complaint a case was registered in Cr.No.89/2016 of the J B Nagar Police station. At 10.30 a.m., before registration of the case, on the request of PW-5, PC12804 Prakash Rathod i.e., PW-2 and accused No.4 Siddappa Bommanahalli PC12509 went to the house of PW-5 and secured the deceased Mahendra Rathod to the police station. In the police station he was made to sit on the steps of the hall in the police station. On the same day, at 3.37 p.m., he was taken to the chamber of PW-18 and brought him back at 3.45 p.m. and again made him to sit on the same steps. Thereafter, at 3.56 p.m., the accused persons took him to a place behind the police station and at that time he was hale and healthy. Accused persons physically assaulted the deceased Mahendra Rathod at the time of interrogation and he suffered grievous injuries. At 6,30 p.m., the accused persons took the deceased to CMH Hospital saying that deceased was suffering from breathing problem and chest pain. The doctors who have examined the deceased declared him brought dead and noted 5 SC No.1723/2019 that there were blueish discolored swelling over the left and right foot, both knee joint, both shoulder and both hands over lower jaw.
3. Immediately after the death of Mahendra Rathod UDR case was registered in UDR No.12/2016. On 20.3.2016, the investigation was handed over to CID and PW-3 B.S. Srinivas Dy.S.P., CID, was appointed as investigating officer. Inquest panchanama on the dead body was conducted by the learned 11th ACMM, Bengaluru City as per Ex.P-52. Thereafter, post mortem examination was conducted on the dead body on 22.3.2016. In the inquest panchanama and post mortem report the injuries found on the dead body were noted. Prior to that PW-3 B.S. Srinivas, the investigating officer, had conducted the spot mahazar, recovered the records of J B Nagar police station in respect of arrest of deceased Mahendra Rathod and the DVR Boxes of CCTV cameras in the house of PW-5 R.C. Purohith and of J.B. Nagar police station. PW-3 collected the medical documents and other documents. The doctors who have conducted post mortem examination, opined that the death was due to Vaso- occulusive crisis in brain, kidney, heart and lungs following physical exertion cannot be ruled out, associated with ante- 6
SC No.1723/2019 mortem soft tissue injuries and fracture right fifth metatarsal bone. The reason for the above diagnosis as cause of death is Sickle cell trait precipitated by physical exertion in terms of assault. Therefore, the death of the deceased Mahendra Rathod was due to physical ill-treatment given by the accused persons to him at the time of his interrogation in the police station. On the basis of the same PW-3 filed his report. On the basis of the report, a case was registered against the accused persons for the offences punishable U/sec.s 304, 324, 326, 330 R/w. Sec. 34 of IPC in Cr. No. 65/2017 of J.B. Nagar police station. The Forensic Report obtained regarding the articles collected during the investigation of the case. Statements of witnesses recorded. After completion of the investigation, charge-sheet has been filed for the above said offences.
4. During the committal proceedings accused No.1 to 4 got released on bail. After the committal proceedings, the case committed to the Hon'ble Prl. City Civil and Sessions Judge, Bengaluru and case made over to this court for trial. The accused No.1 to 4 appeared before this court and offered surety for their appearance before this court. 7
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5. The charge framed for the offences punishable U/sec.s 304, 324, 326, 330 R/w. Sec. 34 of IPC, read over and explained to them. They pleaded not guilty and claimed to be tried. Hence, the case posted for prosecution evidence.
6. To prove its case, the prosecution has examined 34 witnesses as PW-1 to PW-34 and got marked documents at Ex.P-1 and P-59 and also got marked material objects as M.O.-1 to M.O-16. Defendands have got marked two documents as Ex.D-1 and 2.
7. Accused No.1 to 4 have been examined under Section 313 of Cr.P.C. They have denied all the incriminating circumstances appearing in the prosecution evidence. However, They have not chosen to lead any evidence on their defence. They have filed their written statement U/sec. 313(5) of Cr.P.C.
8. Heard the arguments of learned public prosecutor for state, she has filed written arguments and relied on the following decisions:-
1) (2019) 14 SCC 438(Prahlad Vs. State of Rajasthan)
2)(2021) 11 SCC 1,( Aravindh Singh Vs. State of Maharastra.) 8 SC No.1723/2019
3) (2023) 05 SCC 522,(Premchand Vs. State of Maharastra)
4) 1995 Crl.L.J. 3748,Ganesh Jadhav S/o. Lt. Harichand Jadav and others Vs. State of Assam)
5) 2023 SCC online SC 355,(Balu Sudam Khalde & Another Vs. State of Maharastra)
6) 2006 Cri.L.J. 413,(Saidu Mohammed and others Etc, Vs. State of Kerala)
7) (2005) 09 SCC 631,Munshi Singh Gautham(dead) and others Vs. Stateof M.P.)
8) (2013) 15 SCC 117,(Sunil Mahadev Jadhav s. State of Maharastra)
9) (2017) 16 SCC 54,(State through C.B.I. Spl. Crime branch, Mumbai,Maharastra Vs. Sanvlo Naik and another)
10) (1993) 02 SCC 746,(Nilabati Behera(Smt) @ Alitha Behera(Through Supreme court Legal Aid Committee) Vs. State of Orissa & others.
11) (1980) 03 SCC 70,(Raghbir singh Vs. State of Haryana)
12)(1997)1 SCC 416 (D.K. Basu Vs. State of W.P.)
13) (2004)10 SCC 657 (Anter Singh Vs. Stateof Rajasthan)
9. Heard the arguments of learned counsel for Accused No.1 to 4. He has also filed his written arguments. 9
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10. The following points arise for my consideration:-
(1) Whether the prosecution proves beyond reasonable doubt that on 19.3.2016 at 4.15 p.m. the accused No.1 to 4 in furtherance of their common intention of causing hurt to deceased Mahendra Rathod committed culpable homicide not amounting to murder of Mahendra Rathod by assaulting him with rollers and lathis with an intention to and such act by which death is caused is done with an intention to causing death or causing such bodily injury as is likely to cause death and thereby committed the offence punishable U/sec. 304 of IPC R/w. Sec. 34 of IPC? (2) Whether the prosecution proves beyond reasonable doubt that on the said date, time and place, the accused No.1 to 4 in furtherance of their common intention voluntarily caused simple hurt and grievous hurt to deceased Mahendra Rathod by assaulting him with lathis and rollers, which were weapons of offence and thereby committed an offence punishable under Section 324 and 326 R/w. 34 of IPC?
(3) Whether the prosecution proves beyond reasonable doubt that on the said date, time and place, the accused No.1 to 4 in furtherance of their common intention of voluntarily caused hurt to deceased Mahendra Rathod for the purpose of 10 SC No.1723/2019 extracting from him a confession which may lead to detection of offence punishable U/sec. 381 of IPC and thereby committed an offence punishable under Section 330 R/w. 34 of IPC?
(4) What order?
11. My findings on the above said points are as under:
Point No.1 : In the Affirmative, Point No.2 : Does not arise for consideration, Point No.3 : In the Affirmative, Point No.4 : As per the final order, for the following:
REASONS
12. Points No.1 to 3:
Deceased Mahendra Rathod brought to the police station:
It is the case of the prosecution that a sum of Rs.3,60,000/- which was kept in the house of PW-5 Ramesh Chandra Purohit was missing. Deceased Mahendra Rathod was working as a maid in his house. PW-5 had suspicion about Mahendra Rathod. Therefore, he had complained to the police. The police took Mahendra Rathod to the police station. In the police station, they subjected him to ill-treatment by beating him with lathis and rollers. Due to the same he fell ill. 11
SC No.1723/2019 He was shifted to hospital. In the hospital he declared brought dead by the doctors.
13. PW-5 Ramesh Chandra Purohith has stated in his evidence that deceased Mahendra Rathod was working as a gardener in his company Baruka Steels and Services Pvt. Ltd., on contract basis. He used to take his service at home when his wife was ill and deceased Mahendra Rathod used to assist them in household work. One day in the month of March 2016, he had given money to his wife and she had kept it in a safe place. On 18.3.2016, when his wife wanted to take the money, it was not found. During that time his wife used to go to Hulasuru to attend yoga therapy classes between 10 a.m. to 12 noon. During that time deceased Mahendra Rathod was used to be alone in their house. Therefore, he and his wife raised suspicion about deceased Mahendra Rathod. When they inquired the deceased, he denied having taken money. On 19.3.2016, he (PW-5) and his staff PW-4 Sham Sunder and PW-6 Jagadish Singh Yadav went to the house of deceased Mahendra Rathod at 7 a.m. and searched his house, but they did not find money. Thereafter, they came back, along with deceased Mahendra Rathod to his house. 12
SC No.1723/2019 Again they searched in the house of PW-5, but they did not find the money. PW-5 requested the deceased Mahendra Rathod to disclose where he had kept the money. But he denied taking money. Thereafter, PW-5 made a call to J B Nagar police station and informed the same to them. At about 9 a.m., the police came from J B Nagar police station to his house, he gave them a complaint in writing. The police also requested the deceased to disclose where he kept the money. But, the deceased Mahendra Rathod did not heed to their request. Finally, the police men took the deceased to the police station.
14. PW-15 Smt. Usha Purohit is the wife of PW-5 Ramesh Chandra Purohit. She has stated in her evidence that her husband was the managing director of Baruka Steels and Services Pvt Ltd., Deceased Mahendra Rathod was working in the said company. Deceased used to come to their house to attend the house hold work and he was very close to them. They allowed him inside their entire house. Her husband had given a sum of Rs.3,00,000/- to her and she had kept the same in the almirah of bed room. When they were in need of some money, she opened the almirah, but she did not find the 13 SC No.1723/2019 cash in it. She informed the same to her husband. Except deceased Mahendra Rathod no one had came inside their house. Therefore, they entertained doubt about deceased Mahendra Rathod. They inquired deceased Mahendra Rathod about the money. He denied having taken the money. Thereafter, her husband filed a complaint against Mahendra Rathod in the police station. The police visited their house and inquired deceased Mahendra Rathod.
15. In the cross-examination by the learned public prosecutor, PW-15 has admitted that her husband had given a cash of Rs. 3,00,000/- for the purpose of preparing gold jewellery and a sum of Rs. 60,000/- for house hold expenses. Further, she has admitted that pursuant to the complaint given by her husband, police took deceased Mahendra Rathod to the police station for inquiry. In her cross-examination by learned counsel for accused, she admitted that deceased Mahendra Rathod was working in the factory of her husband and very rarely he used to come to their house to attend household work.
16. P.W.4 B.V.Shamasundar was the senior manager of Baruka Steels and Services Pvt. Ltd., He has stated that PW- 14
SC No.1723/2019 5 was their managing director and deceased Mahendra Rathod used to work as office boy and gardener in their company on contract basis. He used to send the deceased to the house of PW-5 to do some household work whenever wife of PW-5 go outside. When the alleged incident took place, deceased was deputed to the house of PW-5 to attend household work as his wife was not keeping good health and she was on bed rest. On 18.3.2016, PW-5 informed through phone to him that some money kept in his house was missing and he was having suspicion about deceased Mahendra Rathod and asked him to come home on the next day morning to go to the house of deceased Mahendra Rathod and to inquire him about the same. On the next day morning he went to the house of PW-5 and from there he along with PW-5 and PW-6/CW-17 Jagadish Singh Yadav went to the house of deceased Mahendra Rathod at Cauvery Nagar. They searched the house with the co-operation of the deceased, but they did not find the missing amount. Thereafter, they came back to the house of PW-5 and deceased Mahendra Rathod followed them in a Motor cycle. Again they searched for money in the house of PW-5. Deceased Mahendra Rathod again denied taking the money from the house of PW-5. Thereafter, PW-5 15 SC No.1723/2019 contacted the J B Nagar police station through phone and informed them about the incident. On 19.3.2016 at 9.30 a.m., J B Nagar police came to the house of PW-5 and insisted for a written complaint. Accordingly, PW-5 typed a complaint in computer and handed it over to the police. They received the complaint and took the deceased to the police station along with them.
17. PW-6 Jagadish Singh Yadav was the security officer in the company of PW-5. He has stated in his evidence that PW- 4 was working as manager and deceased Mahendra Rathod was working as gardener in the said company. Deceased used to attend the household work of PW-5. On 18.3.2016 at about 5-6 p.m., PW-5 called him over phone and informed that some amount was missing from his house and expressed suspicion about deceased Mahendra Rathod and asked him to come home on the next day morning to go to the house of deceased Mahendra Rathod to inquire about the money. Accordingly, on 19.3.2016 at 9 a.m. he, PW-4 and PW-5 went to the house of deceased Mahendra Rathod in a car. They searched the house, but they did not find money. They came back to the house of PW-5. Deceased Mahendra Rathod 16 SC No.1723/2019 followed them in his motor cycle to the house of PW-5. Again they searched in the house of PW-5, but they did not find money. PW-5 asked deceased Mahendra Rathod to return the money, but he denied having taken the money from the house of PW-5. Thereafter he returned to the office.
18. PW-18 M.S. Hithendra was the police Inspector of J B Nagar police station. He has stated in his evidence that on 19.3.2016 when he had been to Indiranagar police station to attend a meeting called by ACP, he received a phone call from DCP at 8 a.m., informing that he may receive a mobile number and he has to call the said number and solve the problem of said person. Thereafter, he contacted PW-5 and PW-5 informed that there was a theft of Rs. 3,60,000/- from his house and he has doubt about his house attendant by name Mahendra Rathod. PW-18 informed PW-5 that he would attend to his problem soon after conclusion of the meeting. At 10.30 am., again he received call from PW-5 and told him that no staff of their police station visited his house. Immediately, PW-18 spoke to S.H.O. of J B Nagar police station and asked him to send two police staff to the house of PW-5 for inquiry. PW-11 ASI Munikrishnaiah who was the SHO, assured him that he would send PW-2 P.C. Prakash to the house of PW-5 17 SC No.1723/2019 Purohit. At 11 a.m., PW-18 went to the office of the Police Commissioner to attend a meeting and met DCP and he inquired about the complaint of PW-5. PW-18 reached police station at 12.30 p.m., already police constable Prakash had come to the police station along with written complaint of PW.5 and the suspect by name Mahendra Rathod. On perusal of the complaint, he found there was lack of details like date, timings etc., After some time PW-4 came to the station with written complaint. PW-18 accepted the said complaint and registered a case in their Cr.No.89/2016 for the offence punishable U/sec. 381 of IPC. At that time, he told that suspect Mahendra Rathod was sitting in front of the visitors table. After attending his work, at 2.30 p.m. he summoned PW-2 PC Prakash to his chamber and asked to bring suspect Mahendra Rathod to his chamber. He made preliminary inquiry of Mahendra Rathod. Mahendra Rathod informed that he has not committed the theft of cash in the house of PW-5. At about 2.30 to 2.40 p.m., he received wireless message to attend the bandobast work at KSCS stadium as there was a cricket match. Asking P.C. Prakash to take care of Mahendra Rathod, he went to the stadium to attend the bandobast work. Prior to that he had made a formal arrest of Mahendra 18 SC No.1723/2019 Rathod in connection with Crime No.89/2016 and he has given to the custody of his subordinates to look after him. In the meanwhile, he requested the PSI Rajashekaraiah to go to the house of PW-5 to make further inquiry about the incident. PW-18 has stated that the entry regarding keeping the deceased Mahendra Rathod in lock-up and deputing P.C.12804 Prakash as lock guard has been marked as Ex.P- 1(a) and the lockup guard register extract is marked as Ex.P- 10(g).
19. PW-2 Prakash is the Police constable of J B Nagar police station. He has stated in his evidence that he and Siddappa Bommanahalli i.e., accused No.4 went near the house of PW-5 at 9.45 a.m. PW-5 gave complaint and expressed suspicion about deceased Mahendra Rathod, who was the maid servant of his house. Thereafter, they came to the police station along with PW-5 and Mahendra Rathod at 10.15. a.m.
20. PW-11 Munikrishaiah was the S.H.O. of J B Nagar police station on 19.3.2016 at 2.30 p.m. He has deputed PW- 2 Prakash and accused No.4 Siddappa Bommanahalli to secure deceased Mahendra Rathod to the police station. 19
SC No.1723/2019 Accordingly, they secured Mahendra Rathod presence and produced him in the police station at 3.00-3.30 p.m.
21. From the evidence of the above witnesses it is clear that a sum of Rs. 3,60,000/- was missing from the house of PW-5. In connection with the same, a DCP asked PW-18 to help PW-5 to trace the said amount. Therefore, PW-18 asked PW-11 to send two policemen to the house of PW-5. Accordingly, PW-2 and accused No.4 went to the house of PW-5 and brought deceased Mahendra Rathod to the police station for inquiry along with the complaint of PW-5. From the evidence of above witnesses it is clear that Mahendra Rathod was brought to J B Nagar police station on 19.3.2016 in between 9.30 and 10.30 am by PW-2 Prakash and accused No.4 Siddappa Bommanahalli.
Interrogation of Deceased Mahendra Rathod in the police station:
22. PW-8 Rajashekaraiah was the P.S.I. of J B Nagar police station. He has stated in his evidence that at 12.30 p.m., when he came out of his cabin, a person was sitting on the stair case. On inquiry with ASI Munikrishna, he came to know that PW-18 the Police Inspector had secured him for inquiry in connection with a case. At 3.30 p.m., PW-18 came 20 SC No.1723/2019 to the police station. He asked PW-11 Munikrishna, PW-2 Prakash and two other crime staff to bring the said person inside the station and at 3-45 to 4-00 p.m., PW-18 informed that the said person was secured for inquiry in connection with a theft case. But, the said person is not disclosing any useful information in connection with the crime and asked him to go to the house of PW-5 to make inquiry about the suspect and sent PW-2 with him. When he visited the house of PW-5, PW-5 and his wife were present. They inquired PW-5 and then they returned to police station and informed the same to PW-18. PW-18 asked him to verify who were the crime staff present in the police station and send them near him. Accordingly, accused No.4 and others went inside the police station to meet PW-18. PW-8 has identified the accused persons as the persons who went and met PW-18.
23. PW-9 Manjunatha Badiger was another police constable of J B Nagar police station. He has stated in his evidence that on 19.3.2016, he was on duty as lock-up guard from 8 a.m. to 8 p.m. At 11 a.m., three persons were siting on the staircase of the police station. At that time, PW-18 called one among them to come inside. Accordingly, crime staff i.e, 21 SC No.1723/2019 accused No.1 to 4 came near the staircase and took one person inside the chamber of PW-18. But he does not know what happened thereafter.
24. PW-9 in his cross-examination by learned public prosecutor, has stated that he was on lock-up guard duty. The staircase was just adjacent to the lock-up room. The person sitting on the staircase was visible to him from the place where he was sitting. The person who was taken into the chamber of PW-18 was Mahendra Rathod. Further, he has admitted that he was aware of the names of the staff who were on crime duty on 19.3.2016. He has admitted that Mahendra Rathod was secured to the police station for inquiry in connection with theft case. At that time PW-18 secured Mahendra Rathod to his chamber by the crime staff to make inquiry about theft case. Again he has stated that the crime staff i.e., accused No.1 to 4 took one of the persons who was sitting on the staircase before PW-18. PW-18 inquired the said person and later instructed the crime staff to make further inquiry and left the police station. Later the said crime staff took Mahendra Rathod for inquiry. It is his further 22 SC No.1723/2019 evidence that PW-18 entrusted Mahendra Rathod to crime staff for inquiry at 1 p.m.
25. PW-11 Munikrishnaiah has stated in his evidence that around 3.30 p.m., PSI asked him to attend some other work outside, when he came back to police station at 5.30 p.m., said Mahendra Rathod was not sitting in the place where he was sitting while he was leaving the station. When he inquired the W.H.C. who was the S.H.O., he was informed that Mahendra Rathod was taken for inquiry by crime staff i.e., Accused No.1 to 4.
26. PW-13 Biju Mathew was the woman Head constable of J B Nagar police station. She has stated in her evidence that on 19.3.2016 she found a person by name Mahendra Rathod in the police station sitting on the staircase right behind her table. PW-18 came to the police station at about 3 p.m., he directed PW-11 Munikrishnaiah to bring Mahendra Rathod to his chamber. PW-18 asked some of crime staff who were present in the police station to get Mahendra Rathod to his chamber for interrogation. Meanwhile PSI Rajashekaraiah asked PW-13 to assume the charge of S.H.O. as PW-11 Munikrishnaiah was going out of the station. At 4 p.m., PW- 23
SC No.1723/2019 13 assumed charge of S.H.O. During the said period, PSI Rajashekaraiah i.e, PW-8, PW-2 Prakash, accused No.4 Siddappa shifted Mahendra Rathod to a room where the staff used to have lunch. In the cross-examination PW-13 has stated that she has not noted in the Station House Dairy that Mahendra Rathod was shifted out-side the Police Inspector's chamber by PW-8, PW-2 and accused No.4. In her cross- examination PW-13 has stated that the accused persons took Mahendra Rathod after interrogation by PW-18 from his chamber. PW-13 admitted that she has not entered in the station dairy that Mahendra Rathod was brought to the police station and he was interrogated by PW-18 and others.
27. In the evidence of PW-8, he has stated that PW-18 Hithendra informed that he would make detailed inquiry and he asked to verify who were crime staff in the police station at that time and send them to his chamber. Accordingly, accused No.1 to 4 who were crime staff went inside the station to meet PW-18. The evidence of PW-9 shows that when Mahendra Rathod was siting on the staircase of police station, accused No.1 to 4 took Mahendra Rathod to the chamber of PW-18. PW-18 inquired him and later instructed 24 SC No.1723/2019 the crime staff to make further inquiry of said Mahendra Rathod and accordingly the crime staff took the aforesaid Mahendra Rathod for inquiry. The evidence of PW-11 shows that the Woman Head constable took over the charge as S.H.O. from him, informed him that accused No.1 to 4 had taken said Mahendra Rathod for inquiry. The evidence of PW- 13 discloses that PSI Rajashekaraiah i.e., PW-8, PW-2 Prakash and accused No.4 Siddappa shifted Mahendra Rathod to a room where staff used to have lunch. In her cross-examination, she has clearly stated that accused persons took Mahendra Rathod for interrogation, after interrogation by PW-18.
28. One more important witness who states about the accused persons interrogating Mahendra Rathod is PW-2. He has stated during his cross-examination by learned public prosecutor that at 3 p.m., when PW-18 asked him to produce suspect, he produced Mahendra Rathod before him and thereafter PW-18, accused No.1 to 4 started interrogating Mahendra Rathod in his chamber and after some time accused persons shifted Mahendra Rathod to the dress changing room by the side of lock-up and started interrogating him.
25
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29. The evidence of PW-8, 9, 11 and 13 shows the presence of accused No.1 to 4 in the police station on 19.3.2016, when deceased Mahendra Rathod was brought to the police station and they took said Mahendra Rathod to the chamber of P.I. i.e, PW-18. Thereafter on the instruction of PW-18, he was taken by accused persons for further interrogation.
Preparation of spot mahazar in the place where deceased was interrogated:
30. PW-13 has stated in her evidence that on 16.3.2017, the investigating officer i.e., PW-3 B.S.Srinivas came to J B Nagar police station and asked to show the place where Mahendra Rathod was interrogated. Accordingly, she showed a small room situated behind the police station. PW-3 prepared mahazar in the presence of panch witnesses as per Ex.P-43 and she signed the same. It is her evidence that the said mahazar was prepared in between 12.30 p.m. to 1.30 p.m.
31. PW-16 Anil Kumar is a panch witnesses to the mahazar as per Ex.P-43. He has stated in his evidence that on 16.2.2017, he and CW-20 Asad Mirza went along with PW- 3 B.S. Srinivas to J B Nagar police station. PW-13 was 26 SC No.1723/2019 present in the police station and led them to the place where J B Nagar police had inquired and interrogated the person by name Mahendra Rathod. The said room was located behind the J B Nagar police station. PW-3 prepared mahazar as per Ex.P-43 in between 12.30 p.m. to 1.30 p.m. He and CW-20 have signed the said mahazar, so also PW-13. In his cross-
examination, PW-16 has stated that the mahazar was prepared by PW-3 and he put his signature on the same. Before attesting Ex.P-43, he was read over the contents and understood the same. It was the room where Mahendra Rathod was interrogated.
32. Ex.P-43 is the panchanama dtd: 16.2.2017. But PW- 13 has stated the date of panchanama as 16.3.2017. It appears that it is due to slip of tongue. PW-3 B.S. Srinivasa the investigating officer has stated in his evidence that on 16.2.2017, he visited J B Nagar police station and conducted spot mahazar in the spot shown by the S.H.O., in presence of Anil Kumar and Asad Mirza and he identified the mahazar as per Ex.P-43.
33. The evidence of PW-3, PW-13 and PW-16 clearly shows that PW-13 showed the place where Mahendra Rathod 27 SC No.1723/2019 interrogated by the accused persons and PW-3 prepared mahazar in the said place in presence of PW-16 and CW-20 Asad Mirza. The above evidence of PW-8, 9, 11,13, 3 and 16 prove the place of incident as a room situated behind the J B Nagar police station.
Deceased Mahendra Rathod fell ill and taken to the hospital:
34. PW-8 Rajashekaraiah, PSI, J B Nagar police station has stated that at around 6.00-6.30 p.m. on 19.3.2016, he came near the main gate of police station. At that time Constable Parashuram and PW-11 Munikrishnaiah came outside the police station and informed him that at the time of interrogation suspect Mahendra Rathod has become unconscious and therefore, the crime staff shifting him to hospital. When he went inside the police station, the crime staff was taking Mahendra Rathod in a Omni car to the hospital. PW-8 has stated that crime staff were accused No.1 to 4. Further, PW-8 has stated that when he informed the incident to PW-18 the police inspector Hithendra, he asked him to follow the crime staff to hospital, saying that he would join him in the hospital. At around 6.30 p.m., he went to CMH Hospital and at that time all the accused persons were present in the hospital.
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35. PW-18 Police inspector M.S. Hithendra has stated that at 6.30 p.m., he received phone call and spoke to police constable Jayaram and Jayaram informed him that Mahendra Rathod fell unconscious in the police station and he having breathing problem and chest pain. He requested Jayaram to shift Mahendra Rathod to the hospital for treatment. At about 7.30 p.m., he went to Chinmaya hospital, Indiranagar, at that time the crime staff accused No.1 to 4 were present in the hospital. PW-12 Parashuramiah, the police constable of J B Nagar police station has stated that on 19.3.2016, he returned to the police station at 6.30 p.m. After about 45 minutes, he received call from PW-18 the P.I. asking him to came near CHM Hospital, when he reached the said hospital, accused No.1 to 4 were present in the said hospital. When he inquired accused No.1 to 4, they informed that they have shifted a person brought to the police station for inquiry, who was having some respiratory problem to the hospital for treatment.
The above evidence shows that crime staff i.e., accused No.1 to 4 were interrogating the deceased Mahendra Rathod 29 SC No.1723/2019 and during their interrogation he fell unconscious and same crime staff accused No.1 to 4 have shifted him to the hospital. Delay in FIR and creation of arrest documents and false entries in SHD:
36. PW-3 the investigating officer has stated in his evidence that on 21.3.2016 by securing PW-29 Girish and PW-33 T.G.Abhinandan recovered Ex.P-10 to 15 registers from the J.B Nagar police station. Those registers were produced by the S.H.O. PW-13 Biju Mathew by preparing mahazar as per Ex.P-9 between 4 pm to 5 pm in the said police station. He has identified those mahazars in his evidence.
37. PW-13 Biju Mathew stated in her evidence that on 21.3.2016, PW-3 visited the J B Nagar police station and asked her to produce the registers pertaining to this case.
Accordingly, she has produced the registers and PW-3 recovered the same under mahazar as per Ex.P-9.
38. PW-29 N.Girish is the panch witness to the mahazar as per Ex.P-9. He has stated in his evidence that on 21.3.2016 PW-3 came to his office and took him to J B Nagar police station. In the said police station PW-3 recovered 6-7 30 SC No.1723/2019 registers by preparing mahazar as per Ex.P-9 in between 3.30 p.m. to 4.30.p.m.
39. PW-33 T.G.Abhinandan is another panch witness to the said mahazar, has also stated in his evidence that he accompanied PW-3 to J B Nagar police station. They reached the police station at 4 p.m. In the police station, PW-13 produced 7 documents and PW-3 recovered the same under mahazar as per Ex.P-9 between 4.00 to 4.30 p.m.
40. The above witnesses have stated that they have signed said mahazar as per Ex.P-9. Though the accused persons have cross-examined the above witnesses, they have not disputed the recovery of Ex.P-10 to 15 registers and preparation of mahazar as per Ex.P-9 in J B Nagar police station. Therefore, there is nothing to disbelieve the recovery of Ex.P-10 to 15 Registers from J B Nagar police station.
41. PW-18 has stated in his evidence that the entry regarding keeping deceased Mahendra Rathod in lockup and deputing PW-2 Prakash as lockup guard is marked as per Ex.P-1(a) and P-10(g).
42. PW-2 Prakash Police constable 12804 has stated in his evidence that after deputing him to lockup guard duty, he 31 SC No.1723/2019 was looking after Mahendra Rathod who was in the lockup. It is his evidence that at 5 p.m., there was a meeting in the office of DCP and he attended the said meeting. It is his evidence that before going to the said meeting, he was doing lockup guard duty. Therefore, it is his evidence that up to 5 p.m. he was in lockup guard duty. It is the defence of the accused persons that when deceased was kept in lockup, it is the duty of the staff who was appointed as lockup guard to look after the person kept in the lockup.
43. PW-25 Anil Kumar, who was in lockup of J B Nagar has stated in his evidence that he was in lockup in the said police station for 9 days in connection with murder of his wife. He has admitted that on that day there was no one else in the lockup of said police station. The evidence of PW-25 shows that deceased Mahendra Rathod was not kept in the lockup.
44. Moreover, the evidence already discussed in this case shows that in the beginning PW-18 interrogated deceased Mahendra Rathod in his chamber, thereafter he asked accused No.1 to 4 to interrogate him and he left the police station. Subsequently, accused No.1 to 4 interrogated him, 32 SC No.1723/2019 during that time he fell ill. Therefore, though there was an entry in the lockup guard register about keeping the Mahendra Rathod in lockup and appointing PW-2 as a lockup guard, he was not kept in the lockup. But he was interrogated by the accused No.1 to 4 in a separate room. If deceased was in lockup how can PW-2 who was lockup guard leave the police station to a meeting without deputing another staff as lockup guard.
45. PW-3 is the investigating officer B.S. Srinivas, during the cross-examination by accused persons, he has admitted that FIR No.89/2016 of J B Nagar reached the jurisdictional magistrate at 8.30 p.m. on 19.3.2016 and he did not investigate about delay in sending the FIR to jurisdictional magistrate. His evidence discloses that Mahendra Rathod was in the police station between 10.30 a.m. to 12 noon. He has stated that he is not aware that the FIR No.89/2016 was registered at about 7.45 p.m. He has stated that Mahendra Rathod was in the police station up to 3.45 p.m. He admits the suggestion that the detention of Mahendra Rathod in the police station at 10.30 a.m. to 3.45 p.m., was illegal detention. Further, he has stated that as per the CCTV 33 SC No.1723/2019 footages, deceased Mahendra Rathod was brought to the police station at 10.30 a.m. It is the evidence of PW-18 that he registered a case after 12.30 p.m. PW-1 who was Head constable of J B Nagar police station, has stated in his evidence that on 19.3.2016 at 2.30 p.m., when he was in 10 th ACMM Court in Mayohall, he received a phone call to collect the FIR No.89/2016 to dispatch the same to jurisdictional magistrate. He was busy in the court and thereafter he went to the police station at 4.30 to 4.45 p.m., he collected the FIR and came back to the court, by that time the jurisdictional magistrate had left the court premises after court hours. Thereafter, he returned to the police station and handed over the warrants and summons in the police station, he proceeded to home office of jurisdictional magistrate, reached at 8.30 p.m. and handed over the FIR. This is the explanation given by PW-1 for the delay in dispatching the FIR to the jurisdictional magistrate.
46. PW-8 Rajashekaraiah, PSI, J B Nagar police station has stated in his evidence that Mahendra Rathod was not arrested, but he was secured for inquiry and made to stay on the staircase and he came to know about the same when he 34 SC No.1723/2019 inquired PW-11 Munikrishnaiah who was the S.H.O. at around 2.30 p.m.
47. The evidence of PW-2 Prakash was that he brought Mahendra Rathod to the police station at 10.15 a.m. The evidence of PW-4 Shamsunder shows that Mahendra Rathod was taken to the police station after 9.30 a.m. PW-5 R.C. Purohit stated that Mahendra Rathod was taken to the police station after 9 a.m. PW-8 Rajashekaraiah has stated in his evidence that he has seen Mahendra Rathod in the police station at 12.30 p.m. PW-13 Biju Mathew has stated that she has seen Mahendra Rathod in the police station at 10 a.m. PW-18 police inspector Hithendra himself has stated in his evidence that prior to 12.30 p.m., PW-2 had brought Mahendra Rathod to the police station. However PW-11 Munikrishnaiah has stated that Mahendra Rathod was brought to the police station at 3.00-3.30 p.m. the evidence of PW-3 on the basis of CCTV footages show that Mahendra Rathod was brought to the police station in the morning 10.30 a.m.
48. From the evidence of PW-2, 4, 5, 8,13 and 18 it can be clearly made out that Mahendra Rathod was brought to the 35 SC No.1723/2019 police station in the morning itself at around 10 a.m. But PW-11 the S.H.O. has stated that Mahendra Rathod was brought at 3.30 p.m. Ex.P-10 is the Station House diary, it shows that R.C.Purohit came to the police station at 12.45 p.m. and lodged a complaint and on the basis of the same, he registered case in Cr. No. 89/2016 for the offence punishable U/sec. 381 of IPC; thereafter at 3 p.m. he asked PW-2 to produce the Mahendra Rathod before him at 4 p.m.; PW-2 produced Mahendra Rathod in the police station and he was arrested at 4.30 p.m.; Mahendra Rathod was kept in lockup by deputing a lockup guard; at 7.30 p.m., at the time of interrogation of Mahendra Rathod, he fell down and therefore immediately he was sent to CMH Hospital.\
49. The above entries in the Station house diary does not get support from the oral evidence of the aforesaid witnesses. The name or P.C number of the lockup guard has not been mentioned. It appears that the station house diary has been subsequently written to suit the convenience of J B Nagar police. No one in their oral evidence stated that PW-5 Ramesh Chandra Purohit had visited the police station to lodge the complaint. But the station house diary shows that himself came to the police station and lodged complaint. The fact that 36 SC No.1723/2019 the case was registered at 12.45 p.m. and FIR reached the magistrate at 8.30 p.m., for the reasons stated in the evidence of PW-1 cannot be accepted. It appears that the FIR against Mahendra Rathod was registered after he was shifted to hospital and subsequently the arrest documents were created cannot be ruled out. Therefore the possibility of illegal detention of Mahendra Rathod as admitted by PW18, cannot be ruled out.
Recovery of CCTV DVR in the police station and the CCTV footages:
50. PW-2 in his cross-examination by the accused persons has admitted that J B Nagar police station is under CCTV surveillance and there are no CCTV footages to the effect that some stranger was brought into the police station and he was kept inside the police station and interrogated. In his further chief examination by the learned public prosecutor he has stated that there were four CCTV cameras in their police station. He has identified the footages which shows he and accused No.4 bringing the deceased Mahendra Rathod to the police station.
51. PW-8 Rajashekaraiah, P.S.I. also admitted that there are four CCTV camaras installed in J.B. Nagar police station. 37
SC No.1723/2019 The DVR and monitor were in the cabin of the police station. PW-13 has stated that there are three CCTV camaras in their police station, one is situated in the SHO Room and another is situated in front of the lockup and third one is located in the police inspector room. He has stated that there are no camera in the room used by the staff. The camera in SHO room captures the front portion of the police station.
52. In the evidence of PW-3, he has stated that as per the CCTV footages the victim was brought to the police station at 10.30 a.m. PW-3 the investigating officer has stated in his evidence that he has analyzed the CCTV footages and mentioned the same in his report as per Ex.P-42. It is evidence of PW-3 that he has collected the CCTV footages of all four cameras installed inside the premises of police station, as per CCTV footages deceased was inquired by PW- 18 between 3.37 to 3.45 p.m.
53. In his report as per Ex.P-2 on the basis of which the present case has been registered, it has been stated by PW-3 that as per the CCTV footages the deceased brought to the police station at 10.30 a.m., made him to sit on the steps of the front hall of the police station; the crime staff took 38 SC No.1723/2019 Mahendra Rathod to the chamber of the Police Inspector at 3.37 p.m. and he was brought back at 3.45 p.m. and made him to sit on the steps; at 3.56 p.m., the accused No.2 and 4 took him to the place where the crime writer used to sit and thereafter he was taken to the back side of the police station and accused No.1 and 3 also went towards the backside of the police station; when the deceased Mahendra Rathod was taken to the back side of the police station, he was looking healthy. But PW-3 has not stated the above facts in his evidence.
54. It is the evidence of PW-3 that on the same day i.e., on 21.3.2016, he recovered a CCTV DVR with hard disk with the assistance of technicians by name Lingappa and Kiran Kumar. He retrieved the contents of DVR pertaining to 19.3.2016 from 9.30 a.m. to 9.30 p.m. He copied the CCTV footages in pendrive with the help of above said technicians. Further he recovered 2 hard disks used by crime writer Jayaram and along with 2 seagate hard disks of 160GB. The mahazar prepared at that time marked as Ex.P-16. He has identified the DVR with the power connector as MO.1, Sea gate hard disks as MO.2 and 3.
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55. PW-13 Biju Mathew has stated that Ex.P-16 Mahazar was prepared at the time of recovery of DVR of J B Nagar police station with the assistance of technician Lingappa in presence of panch witnesses. The footages from the DVR were copied to the pen drive. These articles were recovered by PW-3 and mahazar was prepared from 5.15 pm to 6.15 pm. She has identified the DVR with hard disk as MO1 and 2 hard disks as MOs. 2 and 3.
56. PW-29 N. Girish, the panch witness has stated that PW-3 took them to the chamber of SHO and copied the footages from CCTV DVR to a pen drive with the help of computer technician. Thereafter, he recovered both pen drive and DVR hard disk under mahazar as per Ex.P-16. He has also identified the DVR as MO1 and harddisks as MO2 and 3.
57. PW-33 T.G.Abhinandan is another panch witness. He has stated that PW-3 took them to the place where typist was doing his work. He collected hard disk from the computers, 2 hard disks were removed with the help of technicians. In respect of the same, mahazar was prepared as per Ex.P-16 from 5-15 pm to 6.15 pm. He has identified those hard disks 40 SC No.1723/2019 as MOs 2 and 3. In his cross-examination by the learned public prosecutor, he has admitted that in the chamber of SHO, investigating officer has copied the CCTV footages recorded in the DVR pertaining to 19.3.2016 from 9.30 a.m. to 9.30 p.m. from the DVR to a pen drive. The police recovered the DVR also, he has identified the DVR as M.O.1.
58. The above witnesses have identified their signatures in the Mahazar as per Ex.P-16. Though the accused persons have cross-examined above witnesses in respect of contents of DVR, the recovery of MOs.1 to 3 under mahazar as per Ex.P- 16 has not been disputed. There is no cross-examination to the above witnesses disputing recovery of MOs.1 to 3 and preparation of Mahazar as per Ex.P-16. Therefore, recovery of Mos.No.1 to 3 and preparation of Mahazar as per Ex.P-16 cannot be disbelieved.
59. In the evidence of PW-3, he has analyzed the CCTV footages found in the DVR recorded in the J B Nagar police station under mahazar as per Ex.P-16. He has stated that in one footage recovered from said DVR shows accused No.2 and 4 with another persons bringing the deceased Mahendra Rathod to the J B Nagar police station; another footage shows 41 SC No.1723/2019 deceased coming out of chamber of SHO to be produced him before the Police Inspector and the deceased coming from the chamber of police inspector and sitting in the steps of the first floor; another footage shows that accused No.2 and 4 taking deceased to the back side of police station and that accused no.4 goes with with a lathi in his hand, thereafter, the accused No.1 and 3 goes behind them.
60. In his cross-examination by accused persons, PW-3 has stated that in the first footage it is seen that two accused persons bringing the deceased from back side of police station. He has also stated that he has no video footage to show that accused persons brought the deceased inside the police station from the entrance of police station. He has admitted that backside of the police station cannot be seen in the footage. Further, he has stated in the said footage on the left side there is lock up and on the right side there is work place where staff of police station works. PW-3 has stated that deceased was not brought from the main entrance of police station. PW-3 has admitted that the footage shows that the SHO came from police inspector's chamber and called the deceased to the chamber of police inspector and SHO sent the 42 SC No.1723/2019 deceased outside the chamber of police inspector. Further, he has admitted that in the footage it cannot be made out whether the deceased was taken inside the lock up or he was taken to the back side of police station. He has admitted that in the footage, it cannot be seen accused No.3 went inside the lock up or went to the back side of the police station. However, PW-3 has voluntarily stated that there was no need for accused No.3 to go inside the lockup as there was no necessity to put the deceased inside the lockup.
61. From the evidence of PW-3 and CCTV footages it is clear about bringing deceased to the police station, thereafter taking him to the chamber of police inspector and subsequently accused No.2 and 4 taking him backside of the police station and accused No.1 and 3 following them. Recovery of CCTV DVR from the house of PW-5 R.C Purohith:
62. There is evidence of PW-3 regarding preparation of mahazar as per Ex.P-17 in the house of PW-5 Ramesh Chandra Purohith and recovery of CCTV DVR from his house. He has identified the said DVR is M.O.4.
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63. Though PW-5 also a witness to the mahazar as per Ex.P-17. In his evidence it has not been elicited regarding Ex.P-17 mahazar and recovery of CCTV DVR. However, in his cross-examination by accused persons he has stated that police have collected CCTV DVR for inquiry from his house.
64. PW-29 Girish has also a witness to the mahazar as per Ex.P-17. In his evidence he has stated that on 21.3.2016 at 6.30 p.m., PW-3 took them to the house of PW-5 and recovered CCTV DVR as per MO.4 from the house by preparing mahazar as per Ex.P-17. He has also identified his signature as per Ex.P-17(b).
65. PW-33 T.G. Abhinandan is also a witness to the mahazar as per Ex.P-17. It is his evidence that on 21.3.2016, from J B Nagar police station, police took him and another panch witness and technicians to the house of PW-5. There were 4 CCTV cameras in the said house. The staff of CID police copied them to a pen drive. Thereafter panchanama was prepared as per Ex.P-17 in between 6.15 to 7.25 p.m. However, in his cross-examination, he has admitted that PW- 5 shown the CCTV cameras installed in his house, thereafter he took them to bed room in the first floor and showed the 44 SC No.1723/2019 DVR. The CID police recovered the said DVR with help of technician by name Lingappa and said DVR is marked as M.O. 4.
66. The accused persons have not disputed the recovery of MO.4 DVR under mahazar Ex.P-17 from the house of PW-
5. However, there is cross-examination to the witness disputing the contents of DVR.
67. In the DVR recovered in the house of PW5 no incriminating evidence revealed Injuries found on the dead body of Mahendra Rathod and vase-occlussive crisis:
In Ex.P.21(c) post mortem report the external injuries found on the dead body are stated as under:
External injuries
1. Abrasion 1.5 cm X 1 cm over middle of upper lip.
2. Abrasion 1.5 cm X 1.5 cm over middle of chin.
3. Contusion 10X3 cm present over top of right shoulder.
4. Defuse contusion over lower part of right forearm and right hand and including fingers and palm over an area of 13X12 cms with superficial pressure abrasions measuring 6 X 0.2 cms.
5. Five Tram Track contusions seen over right outer thigh over an area of 18 cm X 12 cm ranging from 11 cm X 3 cm to 6cm X 2 cms.
6. Contusion 11 X 11 cm present over front of right knee joint.
7. Diffuse contusion present over right foot and sole, including fingers over an area 22 X 6 cms. 45
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8. Diffuse contusion over left foot and sole including finger over an area of 23 X 19 cms.
9. Contusion 10 X 7 cms present over front of left knee.
10. Diffuse contusion over lower part of left forearm including fingers and palm over an area 21 X 16 cmc.
11. Diffuse contusion over left buttock over an area 23 cm X 21 cms with presence of abrasions over the lower and outer aspect of buttock 10 x 4 cms.
12. Diffuse contusion over right buttock over an area of 23 cm X 20 cms.
13. Tram Track contusion present over outer aspect of middle and lower part of left thigh measuring 20 X 1.5 cms.
14. Graze abrasion present over top of the left shoulder measuring 9 cm .
15. Contusion over right mandible over an area 6 X 3 and in left mandible measuring 5 X 3 cms.
68. PW-23 has reiterated those injuries in his evidence. PW-27 Murali Kumar was the chief casualty medical officer in Chinmaya hospital, Bengaluru. He has stated in his evidence that there were multiple contusions on the body. Ex.P-19 is the record of Chinmaya Mission Hospital. It is stated in it, there were swelling over the right and left foot, both knee joints, both shoulders and both hands and over the lower jaw.
69. PW-23 who has conducted the post-mortem examination has stated in para No.8 of his evidence regarding cause of death as under:-
8. On the requisition dated 22.3.2016, I gave my opinion regarding the cause of death based on 1) FSL 46 SC No.1723/2019 report 2) HPE report that death is due to vaso-occlusive crisis in brain, kidney, heart and lungs following physical exertion cannot be ruled out associated with ante mortem soft tissue injuries and fracture of right 5 th meta tarsal bone. Vaso-occlusive crisis means the blood cells get stagnated at the peripheral part of inner blood vessels causing blockage.
70. Further he has stated that the injuries mentioned in the Post mortem report could be possible by assaulting with lathis and rollers. In para No.15 he has stated regarding cause of death as under:-
15. The opinion given in Ex.P.35 is my final opinion. It is true that, Sickle cell trait and sickle cell disease is caused due to the shape of the cells becomes sickle cells. It is true that, it clogs the blood vessels and prevents blood supply to the vital organs and it results in death. It is true that, physical exertion could be caused due to any physical activity.
71. It is his evidence that he has received requisition on 27.7.2016 from the investigating officer with queries and Ex.P-36, 37 and 40 are the answers to those queries. Those queries have been replied by both PW-23 Dr. Sathish K.B. and PW-26 Dr. Siddique M. Ahmed, who have conducted the 47 SC No.1723/2019 post mortem examination on the dead body. In Ex.P-36 they have explained the following terms;
1) Cerebral edema with congestion,
2) Pulmonary edema and congestion.
3) Liver congestion
4) Acute tubular injury/Necrosis.
5) Congested & edamatous Heart
6) Congested testis and normal spermatogenesis.
7) Small intestine-denuded mucosa with congestion.
8) Skin-hematoma in subcutaneous fact and dermal hemorrhage.
72. In Ex.P-37, they have replied to the queries as under:-
1. The mentioned external injuries are possible due to repeated blunt and forceful impacts.
2. Mentioned injuries are possible due to blunt repeated/rolling hard objects on the described areas forcefully.
3) Age on the injuries with abrasion shows brownish black scab which are 2-3 days old. Blackish red colored contusions are less than 24 hours old. The colour changes may be hastened by sickle cell disease.
4)The death due to sickle cell disease is precipitated by mentioned injuries in the form of physical stress and also depends on the sensitivity and the lifestyle of the individuals to cope up for the situations.
5) Mentioned injuries are possible to sustain by blunt objects.
6) Mentioned injuries are possible to sustain within 24 hours before death.
7) Mentioned external injuries are not possible to be inflicted by himself in an ordinary course and are possible due to more 48 SC No.1723/2019 than one person assaulting the victim/deceased, in areas which are not self accessible.
8) It is not possible to comment about which weapon is put in use however blunt objects like that of a lathi or roller are possible.
9) Mentioned injuries are ante-mortem in nature, but not post- mortem.
10) Mentioned external injuries are simple if they are considered as isolated, they are grievous if these woulds are multiple at different areas to comment. However severity can be commented on a live person. Right metatarsal bone fracture is grievous.
11) Possible that more than one blunt weapon in use.
12) Yes there is evidence of fracture mid metatarsal bone of Right foot, by X-ray findings. The fracture is possible to sustain by forceful impact Fracture shows extravasation of blood-recent on set.
13) Other than external wounds and fracturre described there were no other demonstrable internal wounds.
14) These type of injuries directly do not cause death in normal individuals, where as these type of injuries cause physical stress can lead to Vaso-Occlusive Crisis is a part of sickle cell disease(Journal-26 times risk in patients of sickle cell trait)
15) Yes-Vaso-Occusive Condition caused by sickle cell disease.
73. In Ex.P-40, they have answered the queries regarding sickle cell crisis and Vaso-Occulsive crisis as under:- 49
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1) Reasons for the Sickle cell trait and Sickle cell disease is unknown etiology however regional and genetically transmission is well known.
2) Sickle cell trait and Sickle cell disease is an Healthy individual is a genetic disease, which will not express the manifestations unless there are some precipitating factors like A)Strenuous exercised/ high altitudes/oxygen deprivation evokes four forces that in concert foster sickling a) Severe hypoxemia, b) Metabalic acidosis, c) Hyperthermia in muscles
d) Red cell degenration evidence supports- During intense exertion and hypoxemia. Sickle cell can accumulate in the blood and cause heamolysis. If the hyposaemia is severe then patient may go in for crisis like occulsion blood vesselsw by formation of thrombi.
3)Yes even healthy human being can die in situations raised out of Sickle cell trait and Sickle cell anaemia due to crisis leading to renal shut down caused by rhabdomyolysis.
4) Mentioned injuries in the post-mortem report are possible due to assault on the individual. However physical exertion induced by assault can precipitate the disease undermined to cause death.
5) Mentioned "Death due to Vaso-occlusive crisis in brain, kidney, heart and lung following physical exertion cannot be ruled out, associated with Ante-mortem soft tissue injuries and fractures right fifth metatarsal bone"
6) The reason for the above diagnosis as a cause of death is Sickle cell Trait precipitated by physical exertion in terms of assault. As above mentioned it can occur immediately when exertion leads to hypoxia and causing sickling which can cause 50 SC No.1723/2019 vaso-occulusion leading to crisis. Vaso-occlusive crisis means circulation in the blood vessles are obstructed by sickled red blood vessels causing ischemia(reduced blood supply to the organs) that causes irreversable organ damage leading to either renal shutdown/stroke/myocardial infarction/pulmonary infact. This damage can cause death because of acute renal shut down due to rhabdomyoysis.
6) The reason for the death remains same Vaso-occlusive crisis consequent upon Sickle cell trait and Sickle cell disease cannot be ruled out. However associated assaulted injuries mentioned can cause to physical exertion leading to hypoxemia and metabolic acidosis triggering sickling crisis in an person who has trait.
74. PW-26 Dr. Siddique M. Ahmed has stated in his evidence as under:-
" Since 2008, I am working as Professor of Pathology in Bengaluru Medical College, Bengaluru. Ex.P-33 report is given by me, it bears my signature, my signature is Ex.P-3(b). On 22.3.2016 I received articles i.e., Heart, Half of Brain, 4 pieces of Lung, 2 pieces of Liver, Half of Kidney, Spleen, Portiion of Intestine, Left Testis, Normal Skin, Skin from Left Forearm, Right thigh and Right Shoulder from Forensic Department of Bowring and Lady Curzon Hospital (B and LCH), Bengaluru, with the history of Custodial 51 SC No.1723/2019 Death. Those organs were sent to me to examine the same microscopically regarding the changes in those organs and to note the changes in those organs and to report. On the same day I examined those organs, kept the organs in preservative called as 10% Formalin. After knowing that, the organs are fixed and become harder, I gave a gross sections(cutting the organs) and took the representative bits and then processed in different chemicals. Then they were cut into small thin sections in microns and then strained and viewed under the microscope. Looking at the bits of different representative organs, I examined them miscroscopically and noted down the features of the tissues from the different representative organs:-
a) Section studied from Cerebrum shows congestion and edema with clogging of blood vessels with sickle cells.
b) Section studied from Cerebrum shows congestion and edema with clogging of blood vessels with sickle cells.52
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c) Section studied from Lung tissue shows interstitial edema and severe congestion. The blood vessels show sickle cells at focal areas.
d) Section studied from Lung tissue shows steatosis, chronic venous congestion with clogging of sinusoids and blood vessels with sickle cells.
e) Section studied from Spleen tissue shows congestion with clogging of blood vessels by numerous sickle cells.
f) Section studied from both Kidneys showssevere glomerular congestion with presence of sickle cells and clogging of interstitial blood vessels with sickle cells. Also seen is acute tubular and cortical necrosis.
g) Section studied from Testis shows congestion and normal spermatogenesis.
h) Section studied from Left circumflex artery is unremarkable.
i) Section studied from Left anterior descending artery shows Class IV atherosclerosis with 50% lumen narrowing.
j) Section studied from Left coronary artery is unremarkable.
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k) Section studied from Right coronary artery is unremarkable.
l) Section studied from Left atrium and left ventricle are congested and edematous.
m) Section studied from right atrium and left ventricle are congested and edematous.
n) Section studied from Aorta is unremarkable.
o) Section studied from Normal skin appears unremarkable.
p) Section studied from Contused skin(Left Forearm)- shows epidermis, dermis and subcutaneous tissue. Dermis shows congestion and subcutaneous tissue shows marked congestion and severe hemorrhage. Also seen are sickle cells in the blood vessels.
q) Section studied from Contused skin(Right thigh)- shows epidermis, dermis and subcutaneous tissue. Dermis shows congestion and subcutaneous tissue shows marked congestion and severe hemorrhage.
r) Section studied from Contused skin(Right Shoulder)- shows peidermis, dermis and subcutaneous tissue, Dermis shows mild congestion.
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s) Section studied from Small intestine shows denuded mucosa with congestion.
FOLLOWING ARE THE IMPRESSIONS;-
a) Cerebral Edema with congestion.
b) Pulmonary Edema and Congestion.
c) Congested Liver.
d) Acute Tubular Necrosis with Severe Interstitial and Glomerular congestion.
e) Congested and Edemataoous Heart.
f) Congested Testis with normal spermiogenesis.
g) Small Intestine-Denuded Mucosa with Congestion.
h) Skin- Hematoma in Subcutaneous Fat and Dermal Hemorrhage.
2. In simple language, the cause for death could be stagnation of blood in the organs leading to deprivation of oxygen to the organs called Hypoxia. Normally the human red blood cells are biconcave in shape and they move freely in blood vessels. But in sickle cells trait or anemia, there is a genetic mutation wherein we get a defective protein, which is mainly required for hemoglobin, that defective protein polymerases and form sickle cells. Normally in the 55 SC No.1723/2019 sickle cell trait these cells will not be showing the features as sickle, but due to stress, exercise, high altitude and any infections which deprived the oxygen, lead to sickle cell formation. Once sickle cells formed those cells move very slowly and circulation of blood slows sown and it causes stagnation of blood in various organs. Once there is a stagnation of blood it will decrease the oxygen supply to the tissues. Hence, it causes sudden death."
75. He has stated regarding answering queries as per Ex.P-35, P-36, P-37 and P40. He has stated that Ex.P-23, three x-ray films show the fracture of right metatarsal bone and such fracture can be caused due to assault.
76. In his cross-examination, PW-26 has stated that fracture of metatarsal bone may be caused due to physical exertion and it may lead to Vaso-occulsive crisis, Vaso- occulsive crisis is a crisis in which sickle cells are formed, contusions are also called as bruises.
77. PW-23 has stated in his cross-examination that there is possibility of bruises finding on body of a person having sickle cell anemia without there being any physical impact. 56
SC No.1723/2019 PW-26 has stated that bruises may be caused without external injuries and it is called as a rash in medical terminology. Therefore, it is the defence of the accused persons that the contusion (bruises) found on the dead body were due to sickle cell anemia and deceased died due to the same i.e., Vaso-occlusive crisis.
78. In Ex.P-35, PW-23 and PW-26 the doctors who have conducted the post mortem examination on considering the FSL report, Histopathology report have given opinion that the death was due to Vaso-Occlusive crisis of brain, kidney, heart and lungs following physical exertion cannot be ruled out. Associated with ante-mortem soft tissue injuries and fracture right fifth metatarsal bone. In Ex.P-40 they have stated that the reason for the death remains same that Vaso-occlusive crisis consequent upon sickle cell trait/sickle cell disease can not be ruled out; however associated assaulted injuries mentioned can cause to physical exertion leading to hypoxemia and metabolic acidosis triggering sickling crisis in a person who has trait. Both PW-23 and PW-26 have admitted in their evidence there is possibility of physical bruises finding on the body of a person having sickle cell 57 SC No.1723/2019 anemia without there being any physical impact. PW-26 has stated that, in simple language the cause of death could be stagnation of blood in the organs leading to deprivation of organs called hypoxia; normally in the sickle cell trait these cells will not be showing the features as sickle, but due to stress, exercise of high altitude and any infections which deprive oxygen lead to sickle cell formation; once sickle cells formed, these cells move very slowly and circulation of blood slow down and it causes stagnation of blood in various organs. Once there is a stagnation of blood it will decrease the oxygen supply to the tissues; it causes sudden death.
79. In Ex.P-40 they have stated that the reason for the death remains same Vaso-occlusive crisis consequent upon sickle cell trait/sickle cell disease cannot be ruled out. However, associated assaulted injuries mentioned can cause physical exertion leading to hypoxemia and metabolic acidosis triggering sickling crisis in a person who has trait.
80. Both PW-23 and PW-26 have admitted in their evidence there is possibility of physical bruises finding on the body of a person having sickle cell anemia without there being any physical impact.
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81. PW-26 has stated that in simple language, the cause of death could be stagnation of blood in the organs leading to deprivation of organs called hypoxia. Normally in the sickle cell trait these cells will not be showing the features as sickle, but due to stress, exercise of high altitude and any infections which deprive oxygen led to sickle cell formation. Once sickle cells are formed these cells move very slowly and circulation of blood slow down and it causes stagnation of blood in various organs. Once there is a stagnation of blood it will decrease the oxygen supply to the tissues. Hence, it causes sudden death.
82. On the basis of the above evidence, the accused persons are contending that the death was due to sickle cell disease and bruises found on the dead body was due to sickle cell anemia and bruises may be caused even without external injuries. Therefore, it is contended that the bruises(contusion) found on the dead bodies were due to sickle cell anemia and sudden death was due to Vaso-occlusive crisis.
83. The post mortem report shows 15 injuries among those injuries injury No.5 is five tram track contusions seen over right outer thigh over the area of 18 cm x12 cm ranging 59 SC No.1723/2019 from 11cm x 3 cm to 6 cm x 2cms. Injury No. 13 is stated as tram track contusion present over outer aspect of middle and lower part of left thigh measuring 20 cm x 1.5 cm.
84. In Modi's Jurisprudence tram track contusions refer to a specific injuries characterized by parallel, linear bruises or marks typically 2-5 cm apart, resulting from blunt force trauma. Tram track contusions are considered a type III injuries, indicating 1) Non-accidental injury 2) Intentional infliction of harm 3) High likelihood of abuse. It can be interpreted as tram track contusions suggest repeated blows or strikes; the injuries imply dynamic interaction between perpetrator and victim; parallel nature of bruises indicate use of object with parallel edges. The tram track contusions are strong indicator of child abuse or non accidental injury. They provide available evidence for investigators and courts and help establish the manner of injury (Homicidal, assault or abuse)
85. Considering the above, it is highly unlikely that tram track contusions(bruises) caused due to sickle cell anemia. Further there are abrasions and fracture of 5th metatarsal 60 SC No.1723/2019 bone. There is nothing to show that sickle cell anemia will cause such abrasions and fracture.
86. The evidence of PW-2, 4, 5 and 15 discloses that Mahendra Rathod was taken to J B Nagar police station from the house of PW-5 in connection with case of missing of money from the house of PW-5. The evidence of PWs-2, 8, 9, 13 and 18 shows that Mahendra Rathod was made to sit on the staircase of the police station. After PW-18 the Police inspector came to the police station, he interrogated him and at that time accused persons were present. Thereafter PW-18 entrusted Mahendra Rathod to accused persons for interrogation. The evidence of PW-2, PW-3, PW-13 and the CCTV footages show that the accused persons shifted Mahendra Rathod to another room and interrogated him. The evidence of PW-2 and 15 shows that before the accused was taken by accused persons for interrogation the health of Mahendra Rathod was good. The evidence of PW-8 shows that during interrogation Mahendra Rathod became unconscious. The evidence of PW-9 also shows that at about 6 pm, all the crime staff became panic saying that Mahendra Rathod fell sick, later he was shifted to hospital. From the evidence of 61 SC No.1723/2019 PW-8 and PW-9 it appears that the accused persons shifted Mahendra Rathod to hospital. The evidence of PW-8, 12 and PW-18 shows that when they went to the hospital, accused No.1 to 4 were present in the hospital. The CCTV footages along with the evidence of PW-3 shows that the accused No.1 to 4 took the accused to a room behind the police station and at that time accused No.4 was holding a lathi with him and the accused No.1 and 3 followed them. The evidence of PW-23 and 26 doctors who have conducted the post mortem examination on the dead body of Mahendra Rathod opined that the injuries found on the dead body of deceased Mahendra Rathod can be possible by assaulting with lathi and rollers. The post mortem report shows presence of abrasions, contusions, tram track contusions and a fracture on the dead body. As per medical jurisprudence, tram track contusions are caused due to assault by weapons such as lathis and rollers. PW-23 and 26 have admitted in their evidence that sickle cell anemia causes bruises (contusions). But in the dead body of Mahendra Rathod abrasions, tram track contusions, metatarsal bone fracture were found. It cannot be said that those injuries were possible by sickle cell anemia.
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87. It is true that there is no direct evidence to show that accused No.1 to 4 assaulted Mahendra Rathod. The circumstances clearly show that it was during interrogation by accused persons Mahendra Rathod sustained injuries such as abrasions, contusions, tram track contusions, metatarsal bone fracture etc., and those injuries were caused by assaulting with lathis and rollers. But, no effort has been made to recover lathis or rollers or the weapon used by the accused persons. It appears that it is only to protect the accused No.1 to 4 the weapons used for assault were not recovered and no effort was made to recover those weapons. As far as cause of death is concerned, the opinion of PW-23 and 26 is that the death was due to Vaso-Occlusive crisis of brain, kidney, heart and lungs following physical exertion cannot be ruled out associated with ante-mortem soft tissue injuries and fracture right fifth metatarsal bone. It is clearly stated that the injuries were ante mortem. There is no evidence to show that deceased Mahendra Rathod was having sickle cell disease. PW-2 has stated in his evidence that Mahendra Rathod was in the police station till 4.45 p.m., till PW-2 left the police station, and the health condition of 63 SC No.1723/2019 Mahendra Rathod was normal till that time. The evidence of PW-15 is to the effect that the health condition of Mahendra Rathod was good. The opinion regarding cause of death stated by PW-23 and PW-26 is not convincing. The possibility of giving such opinion to save accused No.1 to 4 cannot be ruled out. However, the prosecution has not led evidence to disbelieve the opinion given by PW-23 and PW-26 regarding cause of death. Because it has come in the evidence that PW-5 was an industrialist and he was the President of Karnataka Federation of Commerce and Industries. The DCP asked PW-18 police inspector to look into the matter of missing of money from the house of PW-5. Thereafter, PW-18 himself asked accused No.1 to 4 to interrogate Mahendra Rathod. Such circumstances show that case against Mahendra Rathod registered after he was shifted to the hospital and that Ex.P-1, 10 to 15 came into existence during that time.
Decisions:
1) (2019) 14 SCC 438 (Prahlad Vs. State of Rajasthan), wherein it is held in Para No.11 as under:-
"11. No explanation is forthcoming from the statement of the accused under Sec. 313 Cr.P.C. as 64 SC No.1723/2019 to when he parted the company of the victim. Also no explanation is there as to what happened after getting the chocolatets for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with the explanation, leads to an adverse inference against the accused."
2) (2018) 2 SCC 69, ( State of Himachalapradesh Vs. Rajkumar) wherein it is held in para No.17 as under:-
"17. As pointed out by the Sessions Judge, deceased Meena Devi was last seen alive in the company of accused Raj kumar and the accused did not satisfactorily explain the missing of deceased Meena devi and the same is a strong militating circumstance against the accused. Meena Devi who was residing in the same house with the accused and was last seen alive with the accused, it is for him to explain how the deceased died. The accused has no reasonable explanation as to how the body of Meena devi was found hanging from the tree. As held in Kashi ram case, it is for the accused to explain as to what happened to the deceased. If the accused does not throw light 65 SC No.1723/2019 on the fact which is within his knowledge, his failure to offer any explanation would be a strong militating circumstance against him."
3) (2021) 11 SCC 1,( Aravindh Singh Vs. State of Maharastra.) "G. Evidence Act,1872-S.106- When applicable- Law summarised-Cautioned, that S.106 cannot be applied to undermine the well-established rule of law that, save in very exceptional cases, burden is on prosecution to establish its case-
Facts"especially" within knowledge of accused means that it would be impossible or extremely difficult for prosecution to establish such facts, but which accused could prove without difficulty or inconvenience.
H. Evidence Act,1872-S.106-Prosecution having established that deceased was last seen with accused before his death-Burden on accused thereafter under S.106 to provide reasonable explanation as to how and when they parted company with deceased before his death- When is such burden discharged, particularly in cases 66 SC No.1723/2019 resting on circumstantial evidence-Law summerized."
4) (2017) 16 SCC 54,(State through C.B.I. Spl. Crime branch, Mumbai,Maharastra Vs. Sanvlo Naik and another), wherein it is held as under:
" A-Police- Police atrocities/Inaction/Custodial Death/Custodial Violence/Illegal Detention- Custodial death-Conviction of accused police personnel under Sec. 304 Pt-II R/w. S.34 IPC, reversed by High Court, thereby acquitting them- Sustainability-Burden of explaining how deceased died in custody of accused- Not discharged by accused-Conviction restored.
.....Respondent-accused(Accused No.2 and Accused No.5), who were serving as Inspector In- charge and Police constable, respectively, arrested the deceased, who was an accused in a case, with help of others, and brought him to police station in a fit condition- He was then interrogated in the room of Accused 2 and then put in a female lock-up- There is no general diary entry as to why he was put in female lock-up-As per doctor PW-5, deceased 67 SC No.1723/2019 was brought dead to hospital at 2.40 a.m. and memo prepared by the police was received by him after he had examined the deceased and found him brought dead-Medical Board conducted autopsy and found more than 14 injuries on person of deceased which were ante-mortem and fresh in nature- As per opinion of Medical Board, injuries were fatal in ordinary course of nature, which could not be self-inflicted and could be caused by baton/danda or a patta- Respondents conviction under S.304 Pt.II r/w. S. 34 IPC was reversed by High Court.
-Held, only explanation offered by respondents regarding death of deceased, was plea of alibi, stating in their statements under Sec. 313 Cr.P.C, that they were not at the police station-Evidence shows that respondents fudged general diary register of police station to put up their defence and put up a false plea of alibi to cover up death in police custody- Further, no cogent explanation was given by the respondents about injuries on deceased, who was in police custody, that caused 68 SC No.1723/2019 his death-Accused prepared false memo, sending deceased to hospital, when he was already dead- Having regard to aforesaid circumstances and absence of any cogent explanation on part of respondents and taking into account fact that deceased was in police custody and death had occurred in such custody, it is clear that it is respondents - accused (Accused 2 and 5) who, to the exclusion of any other persons, were responsible for injuries that caused death of deceased-Therefore, acquittal of respondents under S.304Pt.II r/w S.34 IPC by High Court, cannot be legally sustained- Hence, order of High Court acquitting respondents is set aside and their conviction under Sec. 304 Pt.II r/w S.34 IPC, stands restored-Penal code, 1860, S.304 Pt.II r/w. S.34.
It is true that the accused persons have filed their written statement at the time of their examination u/Sec.313 of Cr.P.C. But, it is like written arguments on their behalf. There is no specific defence or explanation by the accused persons in respect of any aspects of the case.69
SC No.1723/2019 In the present case the evidence clearly shows that the deceased was last seen with the accused persons at the time of taking him towards the backside of the police station before he fell sick or unconscious. Thereafter, he was seen shifting him from the police station to the hospital by the accused persons and in the hospital he was seen with the injuries as noted in the PM report. Therefore, it is for the accused persons to explain how the deceased sustained injuries. Though it is admitted by the doctors who have conducted postmortem examination that the bruises or contusions occur due to sickle cell disease also. But, there were abrasions, tram track contusions, metatarsal bone fractures found on the dead body. It cannot be said that those injuries can be caused by sickle cell disease. Therefore, the accused persons ought to have explained how the deceased sustained those injuries. But there is no explanation to the same from the accused persons.
5) (2005) 09 SCC 631 (Munshi Singh Gautham(dead) and others Vs. State of M.P.) wherein para 6 and 7 reads as under:-
" 6. Rarely in cases police torture or custodial death, direct ocular evidence is available of the 70 SC No.1723/2019 complicity of the police personnel, who alone can only explain the circumstances in which a person in their custody had died. Bound as they are by ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues- and the present case is an apt illustration- as to how one after the other police witnesses feigned ignorance about the whole matter.
7. The exaggerated adherence to and insistence upon the establishment of proof beyond very reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis society suffers and a criminal gets encouraged. Tortures in police custody, which is of late are on the increase, receive 71 SC No.1723/2019 encouragement by this type of an unrealistic approach at times of the courts as well, because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them in the torture. The Courts must not lose sight of the fact that death in police custody is perhaps one of the worst kinds of crime in a civilized society governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under trial prisoners or suspects tarnishes the image of any civilized nation and encourages the men in "Khaki"
to consider themselves to be above the law and sometimes even to become a law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crop, the foundations of the criminal justice-delivery system 72 SC No.1723/2019 would be shaken and civilization itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens, will be a said day, for anyone to reckon with."
6) 1991 SCC (Cri) 67 : AIR 1990 SC 709 (Gauri Shanker Sharma v. State of U.P.) Wherein in Para Nos. 15 and 17 it is held as under:-
"15. ....it is generally difficult in cases of deaths in police custody to secure evidence against the policemen responsible for resorting to third-degree methods since they are in charge of police station records which they do not find difficult to manipulate as in this case.
17. ...The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse 73 SC No.1723/2019 his uniform and authority to brutally assault them while in his custody. Death in police custody must e seriously viewed for otherwise we will help take a stride in the direction of police raj. It must be cured with a heavy hand. The punishment should be such as would deter others from indulging in such behaviour. There can be no room for leniency."
In this case the weapons used for committing the offence are not recovered. It appears that deliberately the weapons are not recovered by the investigating agency. The CCTV footages of the accused persons coming back from the backside of the police station with deceased Mahendra Rathod and shifting him to the hospital are not collected. The station house dairy and arrest documents in respect of deceased Mahendra Rathod appears to have been created after he was taken to the hospital to suit the convenience of the police. There are inconsistencies in the evidence of police witnesses as to what happened in the police station. However, inspite of the same, the circumstances of the case clearly shows the involvement of the accused persons in the case.
7) (1997)1 SCC 416 (D.K. Basu Vs. State of W.P.) Wherein in Para No. 44 and 45 it is held as under:-
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44. The claim of public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only a civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for 75 SC No.1723/2019 the public wrong on the State which failed in the discharge of its public duty to protect he fundamental rights of the citizen.
45. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much, as the protector and custodian of the indefeasible rights of the citizens. The Courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim-
civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family." 76
SC No.1723/2019 Therefore, in view of the principles laid down in the above decisions it is necessary to grant compensation to the dependents of the deceased Mahendra Rathod. Conclusion:
88. The evidence clearly shows that the accused No.1 to 4 have assaulted deceased Mahendra Rathod with lathis and rollers and caused injuries such as abrasions, contusions, tram track contusions, right 5th metatarsal bone fracture etc., Ex.P-59(1)to(63) are the photographs of dead body of deceased Mahendra Rathod. In those photographs also the above injuries are clearly visible. But, the opinion of PW-23 and PW-26 is that the cause of death is due to Vaso-Occlusive crisis of brain, kidney, heart and lungs following physical exertion associated with ante-mortem soft tissue injuries and fracture of right fifth metatarsal bone. There is clear evidence that physical exertion leads to vaso-occlusive crisis. Physical exertion caused due to assault on him by accused persons No.1 to 4. Therefore, there is direct nexus between the death of deceased Mahendra Rathod and the assault by accused persons 1 to 4 on him.
89. Sec. 304 of IPC reads as under:-
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304. Punishment for culpable homicide not amounting to murder:-
"Whoever commits culpable homicide not amounting to murder, shall be punished with (Imprisonment for life), or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; Or with imprisonment of either description for a term which may extent to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
90. I am of the opinion that Sec. 304 Part I of IPC is not attracted to this case. It is not a case where the act by which death is caused is done with an intention of causing death or of causing bodily injuries as is likely to cause death. But the injuries found on the deceased Mahendra Rathod clearly 78 SC No.1723/2019 show that the act was done by the accused persons with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. I am of the opinion that, there is no intention to cause death of Mahendra Rathod, but there was knowledge that the act is likely to cause death, but without there being intention to cause death. Injuries found shows that there were repeated blows on him. The knowledge can be made out from the act of causing repeated blows on the deceased Mahendra Rathod with lathis and rollers. It is also a case where the death was caused by police personnel without pre-meditation. Considering the above circumstances, I am of the opinion that accused No.1 to 4 have committed the offences punishable U/sec. 304 Part II of IPC.
91. When the offence U/sec. 304 Part II of IPC is proved against accused No.1 to 4, it is need not necessary to find them guilty of offences punishable U/sec. 324 and 326 of IPC in respect of the same transaction. As far as Sec. 330 of IPC is concerned, it is clear case of prosecution that accused No.1 to 4 caused death of deceased Mahendra Rathod in order to extract confession from him in connection with theft of money from the house of PW-5. Therefore, Sec.330 of IPC is 79 SC No.1723/2019 attracted. The accused No.1 to 4 are liable to be convicted for the offence punishable U/sec. 330 of IPC also.
92. In view of the above discussions, the prosecution has proved that the accused persons No.1 to 4 have committed the offences punishable U/sec. 304 part II of IPC and Sec. Sec. 330 of IPC R/w. Sec. 34 of IPC. Accordingly, I answer Points No.1 and 3 in the Affirmative and Point No.2 does not arise for consideration.
93. Point No. 4:- I am of the opinion that, the prosecution has proved the case against accused No.1 to 4 for the offences punishable U/sec. 304 Part II and Sec. 330 of IPC R/w Sec.34 of IPC and hence, the accused persons are liable to be convicted for the above said offences. Accordingly, I proceed to pass the following:-
O R D E R Accused No.1 to 4 found guilty of the offences punishable U/secs. 304 Part II and Sec. 330 r/w 34 of IPC.
Acting under u/Sec. 235(2) of Cr.P.C., accused No. 1 to 4 are convicted for the offences punishable under Sections 304 Part II and Sec. 330 r/w 34 of IPC.80
SC No.1723/2019 Bail bonds of accused and their sureties stands cancelled.
To hear regarding sentence.
Accused no. 1 to 4 are directed to appear before the court on 26.11.2024 to hear regarding sentence and they shall execute personal bond for a sum of Rs. 1 lakh each for their appearance before the court on 26.11.2024.
(Dictated to the Stenographer grade-I, transcribed and computerized by her and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 25th day of November, 2024) (Yashawantha Kumar) LI Addl. City Civil & Sessions Judge, Bengaluru City.81
SC No.1723/2019 26.11.2024 Order regarding Sentence Heard the Accused No.1 to 4. Accused No.1 submitted that he is having aged parents, father is aged 75 years and mother is aged 65 years. Both the parents are suffering from age related ailments. His daughter is studying in Degree course. His wife is a home maker. They are all depending upon him. Hence maximum leniency may be given at the time of awarding sentence.
2. Accused No.2 submitted that his wife is a housewife.
His first son is studying in 10th standard and second son is studying in 7th standard. His family is depending upon him for their livelihood. He is residing in the police quarters. He may be given maximum leniency at the time of awarding sentence.
3. Accused No.3 submitted that he is suffering from Blood Pressure, Sugar and Kidney problems. His wife is a home maker. Considering his health condition, he may be awarded lesser sentence.
4. Accused No.4 submitted that he is having a child of 10 months and his wife is a home maker. His father is aged 78 years and he is a heart patient. His family members are 82 SC No.1723/2019 depending upon him for their livelihood. Hence he has also prayed for leniency while awarding sentence.
5. The learned counsel for the accused persons submitted that the accused No.1 to 4 are Police officials. They have have no remarks in their service. They are the sole bread earners of their respective family. They are all first offenders. Sec. 4 of Probation of Offenders Act may be applied to them.
6. Learned Spl. P.P. has prayed that maximum sentence may be passed against the accused persons. She has relied on a decision reported in (2019) 18 SCC 571 and submitted that the Hon'ble Supreme court has observed in the said decision that the punishment of 3 years rigorous imprisonment for the offence punishable U/Sec. 330 of IPC is grossly insufficient and disproportionate and increased the sentence to 7 years rigorous imprisonment.
7. In this case the medical evidence shows that there are several abrasions, contusions and tram track contusions and a fracture on the dead body of deceased Mahendra Rathod. It also shows that those injuries were caused due to giving repeated blows on the deceased Mahendra Rathod. It also shows that such assault on deceased Mahendra Rathod led 83 SC No.1723/2019 to Vaso-occlusive crysis and deceased succumbed to the injuries.
8. It is clearly held that there is clear nexus to the act of the accused persons to the death of deceased Mahendra Rathod. In the decision relied by the Spl. P.P. referred above, it clearly held that the sentence imposed for the offence punishable U/sec. 330 for a period of 3 years rigorous imprisonment is inadequate and the sentence enhanced to 7 years rigorous imprisonment. Considering all these aspects, I am of the opinion that the accused persons shall be sentenced to under go simple imprisonment for a period of 7 years for the offence punishable U/sec. 304 Part II of IPC and for a period of 5 years of simple imprisonment for the offence punishable U/sec. 330 of IPC.
9. In a decision reported in 2013(16) SCC 770,(Ankush Shivaji Gaikwad V. State of Maharastra) in Paragraph 66 and 7 it has been observed as under:-
66. To sum up :while the award or refusal of compensation in a particular case may be within the court's discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the 84 SC No.1723/2019 question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 CrPC would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so.
Such an enquiry can precede an order on sentence to enable the Court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family"
7. It is clearly held in the above cited decision that, the Court has mandatory duty to apply its 85 SC No.1723/2019 mind to question the awarded compensation in every case to the victim. However, it is also observed that, the capacity of the accused to pay the compensation amount constitutes an important aspect of any order passed under Section 357 of Cr.P.C.
10. In this case the accused persons are police officials and they are salaried persons. Therefore, they are capable of paying compensation as per Sec. 357 of Cr.P.C. to the dependents of deceased Mahendra Rathod. Therefore the accused No.1 to 4 shall pay compensation of Rs. 50,000/- each to the dependents of deceased Mahendra Rathod.
11. The compensation amount to be paid by the accused No.1 to 4 to the dependents of deceased Mahendra Rathod cannot said to be adequate. Therefore, I am of the opinion that it is just and necessary to make recommendation to the District Legal Service Authority, Bengaluru City to determine the compensation payable to the dependents of deceased Mahendra Rathod, in addition to the compensation awarded from accused No.1 to 4. Inview of the same, I proceed to pass the following;86
SC No.1723/2019 ORDER The Accused No.1 to 4 are hereby sentenced to under go Simple Imprisonment for a term of 7 years for the offence punishable U/sec. 304 Part II of IPC. They shall pay a fine of Rs. 30,000/- each. Indefault of payment of fine amount, they shall further under go simple imprisonment for a period of 1 year.
The Accused No.1 to 4 are hereby sentenced to under go Simple Imprisonment for a period of 5 years for the offence punishable U/sec. 330 of IPC and they shall pay a fine of Rs. 25,000/- each. In default of payment of fine amount, they shall further under go simple imprisonment for a period of 1 year.
All the above sentences shall run concurrently. Out of fine amount a sum of Rs. 50,000/- each i.e., in total Rs. 2 lakhs shall be paid to the dependents of deceased Mahendra Rathod after proper identification of dependents.
The accused No.1 to 4 are entitle for set-off as per Sec. 428 of Cr.P.C., for the period of detention already undergone.87
SC No.1723/2019 Recommendation is hereby made to the District Legal Services Authority, Bengaluru city to determine compensation amount to be payable to the dependents of deceased Mahendra Rathod and to award the same to them as per Sec. 357(A) of Cr.P.C. and as per the Karnataka Victim Compensation Scheme 2011.
A copy of this Judgment shall be furnished to accused No.1 to 4 separately forthwith.
A copy of the Judgment shall be sent to Member Secretary, District Legal Service Authority, Bengaluru City for further action to determine and award compensation to the dependents of deceased Mahendra Rathod.
A copy of this judgment shall be sent to Deputy Commissioner, Bengaluru City as provided U/sec. 365 of Cr.P.C.
The M.O.1 DVR with Connector. M.O.2 & 3 Hard disks, M.O.4 DVR, M.O.5 Hard disk, M.O.6 Micromax mobile phone, M.O.7 Samsung Galaxy Mobile phone, M.O.8 another Samsung Galaxy Mobile phone. M.O.9 Samsung Note mobile phone, M.O.10 HTC Mobile phone, M.O.11 L.G. Mobile phone, M.O.12 Samsung 88 SC No.1723/2019 basic model, M.O.13 Samsung mobile phone, M.O.16 Pen drive shall be confiscated to Government and M.O. 14 and 15 cloths being worthless shall be destroyed after the completion of appeal period. (Dictated to the Stenographer grade-I,transcribed and computerised by her and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 26th day of November, 2024) (Yashawanth kumar) LI Addl. City Civil & Sessions Judge, Bengaluru City.
ANNEXURE List of the witnesses examined for the prosecution-side:
PW.1 K. Srinivasa Murthy,
PW.2 Prakasha
PW.3 B.S. Srinivasa,
PW.4 B.V. Shyama sundar
PW.5 Ramesh Chandra Purohit
PW.6 Jagadish Singh Yadav
PW.7 Vinay R.S.
PW.8 Rajashekaraiah
PW.9 Manjunath Badeger
PW.10 H.R. Sridhar
PW.11 Munikrishnaiah
PW.12 Parashuramaiah
PW.13 Biji Mathews
PW.14 Chandrashekar Murthy
PW.15 Usha Purohit
PW.16 Anil Kumar
PW.17 Smt. Savitha S
PW.18 M.S. Hithendra
PW.19 Smt. Kumudha Rani
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PW.20 Preethi Sridharanchari
PW.21 Kavya Shankar Narayan
PW.22 Dr. Radha S
PW.23 Dr. Sathish
PW.24 Hemanthi devi
PW.25 Anil Kumar
PW.26 Dr. Siddique Mukamil Ahmed,
PW.27 Dr. Murali Kumar V.
PW28 Annasaheb Deshmukh
PW.29 N. Girish
PW.30 Kiran Kumar
PW.31 P. Srinivasa
PW.32 S.T.Chandrashekar
PW.33 T.G.Abhinandan
PW.34 Renuka Prasad
List of documents exhibited for the prosecution-side :
Ex.P.1 L.G. Book Ex.P.1(a) Signature Ex.P.1(b) Signature Ex.P.1(c) Signature Ex.P.1(d) Signature Ex.P.2 UDR Ex.P.3 Complaint of Sri. Purohit Ex.P.4 Memo dtd: 20/3/2016 Ex.P.5 Requisition Ex.P.5(a) Signature Ex.P.6 Request letter Ex.P.7 Letter of Agriculture Dept. Ex.P.7(a) Signature Ex.P.8 Office order Ex.P.9 Seizure mahazar Ex.P.9(a) (b) & (c) Signatures Ex.P.10 S.H.D. Book Ex.P.10(a) (b) (c) (d) (e)(f)(g) Signatures Ex.P.11 Station Pahare book Ex.P.11(a) Signature Ex.P.12 PSR Book Ex.P.12(a) 90 SC No.1723/2019 (b) &(c) Signatures Ex.P.13 Arrest Card book Ex.P.13(a) Signatures Ex.P.14 SHK(Page 1)Rules follow book Ex.P.14(a) Signature Ex.P.15 Rough book Ex.P.15(a) Signature Ex.P.16 Spot mahazar Ex.P.16(a) (b) & (c) Signatures Ex.P.17 Seizure mahazar Ex.P.17(a) &(b) Signatures Ex.P.18 Request letter CMH Ex.P.18(a) (b) &(c) Signatures Ex.P.19 Out patient documents Ex.P.19(a) Signature Ex.P.20 Seizure mahazar Ex.P.21 Seizure mahazar Ex.P.21(a) (b) Signatures Ex.P.21(c) Original PM report, Ex.P.22 Inquest mahazar Ex.P.23 X-ray Ex.P.24 Public notice Ex.P.24(a) Signature Ex.P.25 Covering letter Ex.P.26 Location details Ex.P.27 Letter Ex.P.28 Detiar Walki-Talkie Ex.P.29 FSL Mysore report, Ex.P.30 Mahazar Ex.P.31 Science report Ex.P.32 Report Ex.P.33 Histopathology report Ex.P.33(a) (b)(c) Signatures Ex.P.34 Requisition of Medical officer Ex.P.34(a) Signature Ex.P.35 Medical report Ex.P.35(a) (b) &(c) Signatures 91 SC No.1723/2019 Ex.P.36 Doctor report Ex.P.36(a) Signature Ex.P.37 Doctor report Ex.P.37(a) Signature Ex.P.38 Doctor report Ex.P.38(a) Signature Ex.P.39 Doctor report Ex.P.39(a) Signature Ex.P.40 Report Ex.P.40(a) Signature Ex.P.41 Request letter for register case Ex.P.41(a) Signature Ex.P.42 Complaint Ex.P.43 Mahazar Ex.P.43(a) &(b) Signatures Ex.P.44 Complaint Ex.P.44(a) Signature Ex.P.45 FSL report Ex.P.45(a) Signature Ex.P.46 Seizure report Ex.P.46(a) Signature Ex.P.47 Inquest Report of Hemanthi devi Ex.P.47(a) Signature Ex.P.48 Statement of Hemanthi devi Ex.P.49 FIR Ex.P.49(a) Signature Ex.P.50 Report of Thahasildar Ex.P.50(a) Signature. Ex.P.51 FIR Ex.P.51(a) Signature Ex.P.52 Inquest mahazar Ex.P.52(a) Signature Ex.P.53 Letter Post mortem Ex.P.53(a) Signature Ex.P.54 Post mortem Report Ex.P.54(a) Signature Ex.P.54(b) Signature Ex.P.55 Memorandum dtd: 8/3/2018 Ex.P.56 Memorandum dtd: 8/5/2017 Ex.P.57 Memorandum dtd: 19/6/2019 Ex.P.57(a) Signature 92 SC No.1723/2019 Ex.P.58 Order(Proceedings of Govt) Ex.P.59 (1 to 63) Photographs
List of material-objects marked for the prosecution-side:
M.O.1 DVR with Connector M.O.1(a) Signature M.O.2 Hard disk M.O.3 Hard disk M.O.4 DVR M.O.4(a) & (b) Signature M.O.5 Hard disk M.O.6 Micromax mobile phone M.O.7 Samsung Galaxy Mobile phone M.O.8 Samsung Galaxy Mobile phone M.O.9 Samsung Note mobile phone, M.O.10 HTC Mobile phone M.O.11 L.G. Mobile phone M.O.12 Samsung basic model M.O.13 Samsung mobile phone M.O.14 T Shirt M.O.15 Pant Black M.O.16 Pen drive.
List of witnesses examined for the defence-side :
- Nil -
List of documents exhibited for the defence-side : Ex.D-1 Objections of HOD Ex.D-2 Letter dtd: 26/3/2006 from Medical board.
LI Addl. City Civil & Sessions Judge, Bengaluru City.