Bangalore District Court
The State By vs M.M.Krishna on 5 September, 2019
IN THE COURT OF THE LXX ADDL. CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU
CITY (CCH-71)
Dated this the 5 th day of September, 2019
:PRESENT:
SRI. MOHAN PRABHU
M.A., L.L.M.,
LXX Addl. City Civil & Sessions & Special Judge,
Bengaluru.
S.C.NO.1348/2013
COMPLAINANT: The State by
Nandini Layout Police Station ,
BENGALURU
(By Special Public Prosecutor)
V/s
ACCUSED:
1. M.M.Krishna,
S/o Late Muniswamy,
65 years, R/at No.403/2,
8th Cross, Malleshwaram,
Bengaluru-560 003.
2. K.L.Jagadeesh,
S/o M.M.Krishna,
39 years, R/at No.403/2,
8th Cross, Sampige Road,
Malleshwaram,
Bengaluru-560 003.
(By Sri A.B.P. Advocate for A.1 & A.2)
S.C. No.1348/2013
2
1. Date of commission of offence: 25-08-2013
2. Date of report of occurrence : 25-08-2013
3. Date of commencement of : 05-04-2018
recording of evidence
4. Date of closing of evidence : 23-05-2019
5. Name of the Complainant : Smt.Varalakshmi
6. Offences Complained of : Sec. 302,r/w 34 of IPC &,
Sec.3(2)(v), 3(1)(x) and
3(1)(xii) of S.C. & S.T. (P.A.)
Act, 1989.
7. Opinion of the Judge : Accused are acquitted.
J UD GM E N T
A Charge sheet is filed by the Assistant Commissioner of
Police Malleshwaram, Sub-Division, Bengaluru City against
the accused No.1 and 2 for the offences punishable u/s 302
r/w 34 of I.P.C. and u/s 3(1)(v) of S.C./S.T. (P.A.) Act.
2. The deceased Padmamma while taking treatment in
NIMHANS Hospital gave her First Information Statement on
25.08.2013 and based on the same case in Crime
No.203/2013 registered by Nandini Layout Police for the
S.C. No.1348/2013
3
offences punishable u/Ss.324, 506 r/w 34 of I.P.C. and sent
FIR to the Court. After the death of Smt.Padmamma on
27.08.2013 on the basis of the complaint lodged by C.W.1 the
police filed another FIR adding Section 302 r/w 34 of IPC and
u/S.3(2)(v) of S.C./S.T. (P.O.A) Act. The Investigation Officer
has filed the charge sheet directly to the Special Court for the
aforesaid offences. This case which was pending before II
Additional city Civil and Sessions court transferred to this
Exclusive Special court as per notification ADM I(A)
No.599/2017 dated 29.07.2017.
3. The case of the prosecution is as under:-
On 25.08.2013 at 4-00 p.m at Jarak Bande Kaval
Village, near the house number-31, situated in Sy.No.94,
Jarak Bande Kaval village, 4th Cross, 5th main, Shankar
Nagar, Bengaluru the accused No.1 and 2 who had previous
enmity with deceased Smt.Padmamma regarding house,
quarrelled with her and asked her to vacate the house and
accused No.1 assaulted her with a stick on her head and
S.C. No.1348/2013
4
back, the accused No.2 by using the same stick beat the
deceased on the shoulder, right knee both hands and caused
her bleeding injuries. Immediately, after this incident the said
Smt.Padmamma was taken to NIMHANS hospital for
treatment. On the same day she was discharged and brought
back to her house. On 27.08.2013 the deceased died due to
the injuries sustained by her due to assault made by the
accused on 25.08.2013. The accused persons knowing very
well that the deceased belongs to Scheduled Tribe caused her
murder by assaulting her with stick.
4. Initially based on the first information statement
lodged by Smt.Padmamma on 25.08.2013 the Nandini Layout
Police registered a First Information Report bearing Crime
No.203/2013 for the offence u/s 324, 506 r/w 34 of IPC
against unknown persons. It is further case of the
prosecution that on 26.08.2013 Smt.Padmamma gave her
further statement naming the accused as assailants.
Smt.Padmamma died on 27.08.2013. On 27.08.2013
S.C. No.1348/2013
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CW.1/Smt.Varalakshmi lodged her complaint to the police.
On the basis of complaint lodged by CW.1 Section 302 r/w 34
of IPC and Section 3(2)(v) of S.C./S.T. (POA) Act were added.
After completion of investigation charge sheet is submitted
against the accused for the offences punishable u/s 302 r/w
34 of IPC and u/s 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act.
5. Accused No.1 and 2 are on bail. Charge sheet copies
furnished to the accused and thereby the provision u/s 207
of Cr.P.C. in duly complied with.
6. On 05.09.2017 charge is framed against the accused
for the offences punishable u/s 302 r/w 34 of IPC and u/s
3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act for which accused pleaded not
guilty and claimed for trial.
7. During trial, the prosecution has examined 20
witnesses as PW.1 to PW.20 and got marked Ex.P.1 to Ex.P.28
S.C. No.1348/2013
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documents and got marked MO.1 to MO.8. Out of 35
witnesses cited in the charge sheet only 20 witnesses are
examined.
8. On 27.06.2019 the statement of the accused as
contemplated under Section 313 of Cr.P.C. is recorded by
putting all incriminating circumstances available in the
prosecution evidence to them. The accused have denied all
the incriminating evidence on the side of the prosecution. The
accused persons have not lead any defence evidence. During
the cross examination of PW.10 document Ex.D.1 is marked
on the side of the accused.
9. I have heard the arguments of the learned Spl.Public
Prosecutor and learned counsel for the accused and also
perused the entire case papers.
10. The learned Special Public Prosecutor argued that
PW.1 who is the daughter of the deceased who lodged her
complaint as per Ex.P1 has deposed about the injuries
S.C. No.1348/2013
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sustained by her mother in the hands of the accused. P.W1
has deposed regarding the statement given by her mother to
the police in the hospital. PW.1 has also deposed regarding
the enimity between the accused and the deceased. She
argued that PW.2 is the husband of PW.1 also supported the
case of the prosecution. PW.4 is the Inquest Mahazar witness
has deposed regarding the inquest panchanama conducted in
her presence. She has deposed about the injuries found on
the body of the deceased. She submitted that PW.5 is the
mahazar witness to the seizure mahazar Ex.P5 partly
supported the case of the prosecution about the seizure of the
Bajaj bike bearing No.7891 in his presence. She argued that
PW.6 is the Engineer who has prepared sketch as per Ex.P7
the place of incident supported the case of the prosecution.
PW.7 is the mahazar witness. PW.8 is the ASI who has
recorded the statement of Padmamma as per Ex.P9. PW.9 is
the Revenue Officer of BBMP has issued document Ex.P10.
PW.10 Nagaraju is the circumstantial witness also supported
the case of the prosecution. PW.11 is the Police Constable
S.C. No.1348/2013
8
who has brought M.O.3 to M.O.8 from the hospital produced
before the ACP. PW.12 S.M. Gaonkar, Asst. Director of FSL
has examined M.O.1 to 8 and issued examination report as
per Ex.P12. She submitted that the blood was detected in
M.O.1 wooden stick, M.O.2 blood swab, M.O.4 blouse, M.O.5
saree, M.O.7 Petty coat. PW.13 Venkatesh PSI who has
apprehended the accused No.1 along with Bajaj motorbike.
PW.14 Sara Fathima was the ACP who conducted further
investigation and filed the charge sheet. PW.15 Vijaya
Hadagali, Police Inspector who has received Ex.P1 complaint
of CW.1 and sent 2nd FIR Ex.P21 to the court. He visited to
the house of Padmamma and conducted Inquest Panchanama
as per Ex.P4. PW.16 S.N. Gangadhar, ACP who took up the
further investigation, recorded the statement of CW.9 to
CW.12, arrested accused No.1 and 2, seized Bajaj Scooter by
conducting panchanama as per Ex.P5. PW.17 Dr. K.S.
Pradeep has conducted Postmortem Examination of the dead
body of the deceased and issued Ex.P24 the Postmortem
Report. PW.18 who was SHO., of Nandini Layout Police
S.C. No.1348/2013
9
Station on the basis of the first information as per Ex.P9
brought by ASI registered the case on 25.8.2013 at 11 PM.
Thereafter on 26.8.2013 he visited to the place of incident
and conducted Ex.P8 panchanam. He has also recorded the
further statement of Smt. Padmamma on 26.8.2013 as per
Ex.P26. He has seized M.O.1 wooden club and M.O.2 blood
swab in the presence of panchas by name Narayana and
Kumar @ Manja as the place of incident was shown by Smt.
Padma. PW.20 Dr. Malla Bhaskara Rao who is working as
Nuero Surgeon at NIMHANS Hospital has deposed regarding
document Ex.P8 medical report and also deposed regarding
examination of M.O.1 wooden stick and issued Ex.P19
opinion report. She has submitted that the accused No.1 and
2 who had enimity with the deceased Padmamma in order to
vacate her from the house quarrelled with her on 25.8.2013
at 4 PM and assaulted her with wooden stick on her head and
other parts of the body and caused her bleeding injuries and
due to the injuries sustained by her she died on 27.8.2013.
S.C. No.1348/2013
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She argued that the prosecution has proved the case against
the accused beyond all reasonable doubt.
11. On the other hand, the learned counsel for the
accused argued that PW.1 and PW.2 are not the eye
witnesses. PW.1 is the daughter of the deceased and PW.2 is
the son-in-law of the deceased. They are interested
witnesses. He argued that in order to grab the property of the
accused No.1, PW.1 and 2 have falsely implicated the accused
in this case colluding with the police. He submitted that
Ex.P9 is the alleged statement given by the deceased on
25.8.2013. It is mentioned that on 25.8.2013 after
consuming the alcohol at about 4 PM when she was sitting in
front of her house some unknown persons quarrelled with her
and assaulted her with wooden stick by stating that why she
is murmuring by consuming the alcohol. Hence, she has
sustained injuries and admitted to the hospital. He argued
that after the death of the deceased Padmamma PW.1 and
PW.2 colluding with the police have created the document
S.C. No.1348/2013
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Ex.P26 alleged further statement of the Padmamma and also
created the document Ex.P8 spot mahazar. He submitted
that PW.2 and 10 in their chief-examination as well as in
their cross-examination have clearly stated that when they
came to the house of the Padmamma on 26.8.2013
Padmamma was in unconscious state. He argued that if at
all Padmamma was in unconscious state on 26.8.2013 how
can she give such statement as per Ex.P26 and how can in
her presence Ex.P8 mahazar was drawn. He argued that the
document Ex.P25 FIR reached to the court on 27.8.2013 at
11 AM. If at all Padmamma was given further statement on
26.8.2013 itself the Investigation Officer would have sent the
same to the court prior to registering the 2 nd FIR. He
submitted that in first FIR Ex.P25 the name of the assailants
are not mentioned. He argued that after the death of
Padmamma, the documents Ex.P26 and Ex.P8 are created by
the police in order to falsely implicate the accused. He
submitted that the accused are not strangers. The civil
dispute was going on between the deceased Padmamma and
S.C. No.1348/2013
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accused No.1 since 1995. If at all the accused were assaulted
Padmamma she would have stated before the police in her
first complaint lodged as per Ex.P9. He argued that PW.3
Jayalakshmi has completely turned hostile to the case of the
prosecution. PW.20 Dr. Mala Bhaskara Rao was not given
treatment to the injured. He submitted that the prosecution
has not examined CW.26 Dr. Raghavendra who is stated to be
treated to the injured Padmamma. He argued that PW.17
who has conducted Postmortem Examination admitted the
suggestion that such injury No.1 and mentioned in Ex.P24
P.M. Report can be possible if the deceased by loosing the
balance fall on the stone edge of the footpath. He submitted
that PW.3 who is stated to be eye witness has deposed that
when she was working as maid servant in neighbouring
house of Padmamma and came out from the house she found
Padmamma was fallen down on the ground. She was not
seen the accused in that place. He argued that in this case,
there is no eye witness who saw the accused in the place of
incident. The recovery of the Bajaj Motorcycle also not proved
S.C. No.1348/2013
13
by the prosecution. He submitted that there is no evidence
on the side of the prosecution to show that the Bajaj
motorbike was used for commission of the offences. Mere
seizure of the motorcycle is not sufficient. He submitted that
PW.6 who has deposed regarding the drawing of the sketch as
per Ex.P7 and the place of incident has deposed that as
shown by the Police Constable he was drawn the sketch.
When Police Constable himself was not the eye witness to this
incident no evidentiary value can be attached to Ex.P7
sketch. He submitted that PW.7 spot mahazar witness has
completely turned hostile to the case of the prosecution. He
argued that the document Ex.p8 mahazar is not proved by
the prosecution by giving cogent evidence. He argued that
the police have created the documents Ex.P8 and Ex.P26
further statement of the deceased only after the death of the
deceased. He submitted that the civil dispute is pending
between the accused No.1 and the deceased since 30 years
that cannot be a motive for the alleged offences. He
submitted that the accused No.2 at no point of time
S.C. No.1348/2013
14
participated in the civil proceedings. The civil dispute
pending between the accused No.1 and the deceased. He
submitted that no evidentiary value can be attached to the
document Ex.P26. He argued that the prosecution has failed
to prove the case against the accused beyond all reasonable
doubt.
12. The following point arise for my consideration:
POINTS
Point No.1:- Whether the prosecution proves beyond all
reasonable doubt that on 25.08.2013
at 4-00 p.m. at Jarak Bande Kaval
village, Shankar Nagar, 5th main, 4th
Cross near house No.31, Sy.No.94
the accused No.1 and 2 who had
previous enmity with deceased
Smt.Padmamma in order to vacate
her from the house with common
intention picked up quarrel with her
and with an intention of committing
her murder, assaulted the deceased
with a stick which is a deadly
S.C. No.1348/2013
15
weapon on her head, back, shoulder,
right knee and both hands and
caused life threatening injuries, that
the said Smt.Padmamma had taken
treatment for the said injuries at
NIMHANS Hospital, Bengaluru. After
discharge, after coming to the house,
on 27.08.2013 the deceased expired
due to said injuries and thereby the
accused have committed the offence
punishable under Section 302 r/w
34 of IPC?
Point No.2:- Whether the prosecution proves beyond all
reasonable doubt that the accused
who are not belongs to Scheduled
Castes or Scheduled Tribes knowing
very well that the deceased belongs
to Scheduled Tribes committed her
murder and thereby the accused
have committed the offence
punishable under Section 3(2)(v) of
the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act?
S.C. No.1348/2013
16
Point No.3:- What order?
13. My findings on the above points are as
follows:
Point No.1:- In the Negative
Point No.2:- In the Negative
Point No.3:- As per final order for
the following
REASONS
14. POINTS No.1 and 2:- These two points are taken
up together for discussion for the sake of convenience and
in order to avoid repetition of facts and evidence.
P.W.1/Smt.Varalakshmi has deposed that deceased
Padmamma is her mother. They belongs to Bhovi
community comes under Scheduled Caste. Her mother
was living in the house situated at 5 th Cross, 4th main
Shankara Nagar. She is the only daughter to her parents.
Her father expired when she was about 3 years old. PW.1
S.C. No.1348/2013
17
has deposed that on 25.08.2013 at 4-00 p.m. accused
No.1 and 2 beat her mother near her mothers house.
Accused No.1 assaulted her mother with club on back of
her head and accused No.2 assaulted her mother on the
hands legs and shoulder with his hands and legs hence
her mother fell down with bleeding injuries. The
neighbours of her mother telephoned for Ambulance and
then her relatives CW.9 Nethra and CW.10 Vipul took her
mother to NIMHANS Hospital. Her mother has given
statement to the police in the hospital. PW.1 has deposed
that her mother's neighbour CW.12 Jayalakshmi
telephoned and informed her about this incident on
25.08.2013 at 6-00 p.m. When she reached to that place
at about 8-00 p.m. her mother was already taken to the
hospital. She informed her husband CW.4 through phone.
PW.1 has deposed that her mother was discharged from
the hospital and she expired on 27.08.2013 at 11-30 a.m.
Hence she has lodged the complaint to the police as per
S.C. No.1348/2013
18
Ex.P.1. PW.1 has deposed that her mother had told her
that the accused No.1 and 2 have beat her mercilessly and
she may not survive. The accused have also insulted them
in the name of caste. PW.1 has deposed that her mother
has given two statements once in the Ambulance and
another time in the hospital. She states that during both
times when her mother given statement to the police she
was not present. She has deposed that there was civil suit
between accused No.1 and her mother over the house of
her mother. At the time of incident accused No.1 said that
he has won the case and pulled her mother out and both
accused No.1 and 2 beat her mother.
15. During the course of cross-examination by the
learned counsel for the accused PW.1 admitted the
suggestion that her mother Padmamma was second wife of
her father Hanumanthaiah. She admitted that her mother
got the Job in BBMP, after the death of her father on
S.C. No.1348/2013
19
compassionate ground. She admitted the suggestion that
her mother filed case against the first wife in family Court.
She admitted the suggestion that her husband CW.4/PW.2
belongs to Bale Banajiga Caste. After her marriage with
CW.4 she residing with CW.4 at Vijayananda Nagar. She
states that half an hour requires to come from her house
to her mother house. She pleaded her ignorance whether
her mother had drinking habits. She states that her
mother died on 27.08.2013 at 8-00 a.m. and on the same
day she has lodged Ex.P.1 complaint at 12-00 noon. She
has deposed that her complaint written by her relative
Shivalingaiah. She has pleaded her ignorance about filing
cases in H.R.C.No.1818/1995, H.R.R.P.No.119/2003. She
has admitted the suggestion that accused No.1 has filed
suit in O.S.No.7933/2008 against her mother. She has
admitted the suggestion that after the death of her mother
she had filed Civil Mis.No.376/2015 praying to set aside
the judgment and decree passed in O.S.No.7933/2008.
S.C. No.1348/2013
20
The said Civil.Mis.No.376/2015 in still pending. She has
denied the suggestion that in order to grab the property
belongs to accused they have falsely implicated the
accused in this case.
16. PW.2/Raju is the wife of PW.1. He has deposed
that in the year 2013 August one day on Sunday he went
to Anekal. On that day one maid servant who was working
in the house near his garage informed him over phone that
accused Krishna and Jagadeesh assaulting his mother in
law Padmamma. On that day he could not come from
Anekal to his mother-in-laws house. On the next day he
came to his mother in laws house and found that his
mother-in-law in unconscious state. He saw the injuries
on the head, chest, hands and legs of Padmamma. He has
deposed that one Jayalakshmi as well as his wife PW.1
told him that said injuries to Padmamma caused by the
accused by beating her. He has deposed that due to Civil
S.C. No.1348/2013
21
dispute pending between his mother-in-law and accused
due to enmity the accused persons assaulted his mother-
in-law and due to the injuries she died.
17. During the course of his cross-examination by
the learned counsel for the accused PW.2 has admitted the
suggestion that the Civil suit was pending between the
accused and the deceased with respect to house. He has
deposed that he came to the house of his mother-in-law
on Monday at 9-30 a.m. He has admitted the suggestion
that since from 30 years the dispute pending between
accused No.1 and his mother-in-law in respect of house
property. He admitted the suggestion that his mother-in-
law Padmamma is the second wife of Hanumanthaiah. He
has denied the suggestion that since the deceased had
habit of consuming alcohol, she had number of enemies.
He has denied the suggestion that some unknown persons
assaulted his mother-in-law. He has denied the suggestion
S.C. No.1348/2013
22
that after the death of Padmamma in order to grab the
properties of accused they have falsely implicated the
accused in this case.
18. PW.3/Jayalakshmi has completely turned hostile
to the case of the prosecution. PW.3 has deposed that she
had seen Smt.Padmamma. She do not know the accused.
She do not know the caste of PW.1 and accused. At about
3 to 4 years back when she was working as maid servant
near the house of Smt.Padmamma in order to throw the
garbage she came out from the house and found that
Padmamma fallen down near her house. Thereafter, she do
not know what happened. She has deposed that she had
not seen the accused in that place. She has given
statement to the police that she do not know about the
incident.
Having turned hostile to the case of the prosecution
learned Spl. Public Prosecutor cross-examined PW.3 in
S.C. No.1348/2013
23
detail. During the course of her cross-examination PW.3
has denied all the suggestions made to her. PW.3 has
denied of giving any statement before the police as per
Ex.P.2. she has denied of giving any further statement as
per Ex.P.3. Nothing is elicited from the mouth of PW.3 to
support the case of the prosecution.
19. PW.4/Smt.Uma has deposed that her house is
situated near the house of Smt.Padmamma. She came to
know that due to assault made by the accused
Smt.Padmamma admitted to the Hospital. Thereafter
coming to know that the dead body of the deceased
Padmamma brought from the hospital to the house hence
in order to see the body she went near the house of
Smt.Padmamma. PW.4 has deposed that the police have
conducted the Inquest panchanama as per Ex.P.4 and
noted down the injuries found on the body of the deceased
Padmamma. During the course of the cross-examination of
S.C. No.1348/2013
24
PW.4 by the defence she has denied all the suggestions
made to her. Nothing is elicited from her mouth to discard
her version about the inquest panchanama.
20. PW.5/Ismail has deposed that the police have
summoned him to the Nandini Layout Police Station and
seized a Bajaj bike bearing No.7891 by conducting
panchanama in his presence as per Ex.P.5. He has
deposed that he was not seen the accused persons in the
police station. In his presence the police have not seized
the Motor bike from the possession of the accused. He has
not given any statement before the police. Since PW.5 has
partly turned hostile to the case of the prosecution at the
instance of learned Spl.P.P. he has treated as hostile and
permitted to cross examine. During the course of his
cross-examination by the learned Spl.P.P. PW.5 has denied
the suggestion that he has seen the accused in the police
station. In his cross-examination by the learned counsel
S.C. No.1348/2013
25
for the accused PW.5 has denied the suggestion that in
order to help the police on the say of Police Inspector he
has signed on Ex.P.5.
21. PW.6/S.P.Gangadhar Assistant Engineer has
deposed that on 09.10.2013 he visited to the place of
incident along with P.C.No.10388 Harish R.H. and as
Police Constable shown him place of incident he had
prepared rough sketch in the place of incident and
thereafter came to his office and prepared pakka sketch as
per Ex.P.7. During the course of his cross-examination by
the learned counsel for the accused he has deposed that
he has not noticed any visible signs in the place of
incident. As shown by the police he has noted in his
sketch as place of incident. He has not enquired with the
police constable whether he was witnessed the incident.
He has denied the suggestion that without visiting to any
S.C. No.1348/2013
26
place he prepared Ex.P.7 by sitting in his office as per the
direction of his higher official and as per the say of police.
22. PW.7/Manjunath Prasanna is the spot mahazar
witness has completely turned hostile to the case of the
prosecution by stating that in his presence the police have
not conducted any panchanama. The police have took his
signature on Ex.P.8 in his shop. He do not know the
contents of the document Ex.P.8 panchanma. Having
turned hostile to the case of the prosecution learned
Spl.P.P. cross examined PW.7 in detail. During the course
of his cross-examination by the learned Spl.P.P. PW.7 has
denied the entire contents of the document Ex.P.8
panchanama. He has denied the suggestion that in his
presence the police have seized MO.1 stick and MO.2
blood swab under Ex.P.8 panchanama. Nothing is elicited
from his mouth to support the case of the prosecution.
S.C. No.1348/2013
27
23. PW.8/Sri.Nanjappa ASI has deposed that on
25.08.2013 at about 8-00 p.m. PSI Srikanth deputed him
to record the statement of Smt.Padmamma who was
taking treatment in NIMHANS Hospital. Hence he has
recorded the first information statement given by
Smt.Padmamma as per Ex.P.9 and brought the same to
the police station and given the same to PSI at 11-00 p.m.
He has identified the Ltm of Padmamma which is marked
at Ex.P.9(a). During the course of his cross-examination by
the learned counsel for the accused PW.8 has deposed
that after ascertaining from the doctor that
Smt.Padmamma was capable to give statement he has
recorded the statement of Smt.Padmamma. When he was
recorded the statement of Smt.Padmamma nobody were
there including her relatives.
24. PW.9/H.R.Shivamma Revenue Officer of BBMP
deposed that ACP of Malleshwaram sought the information
S.C. No.1348/2013
28
regarding site No.31 to know whether it was standing in
the name of Smt.Padmamma. After verifying the official
documents she has sent her report on 05.11.2013 as per
Ex.P.10 that site No.31 is not standing in any bodies
name.
25. PW.10/Nagaraju has deposed that he has
working as Mechanic in the garage of PW.2 since 14 years.
On 25.08.2013 at about 7-00 p.m. PW.2 Raju informed
him over phone that the accused Krishnappa and
Jagadeesh were assaulted his mother in law Padmamma
hence she had sustained injuries and admitted to the
hospital. PW.10 has deposed that on 26.08.2013 he came
to garage of PW.2 for work and from there he went to the
house of Smt.Padmamma and found that Padmamma
lying on the bed. She was not in a position to talk. Hence
he returned to garage. Two days later PW.2 informed him
over phone that Padmamma died. Hence when he went to
S.C. No.1348/2013
29
the house of Padmamma he saw the dead body of
Padmamma. PW.10 has deposed that he came to know
that due to assault made by the accused as Padmamma
sustained injuries, hence she died. During the course of
his cross-examination by the learned counsel for the
accused he has denied of giving any such statement before
the police as per Ex.D.1. He states that on 26.08.2013
when he went to the house of Padmamma PW.2/CW.4 was
there. He has denied all other suggestion made to him.
26. PW.11/D.D.Devakumar P.C.No.6032 has deposed
that on 04.09.2013 as per order of ACP he went to
M.S.Ramaiah Hospital and collected MO.3 to MO.8 given
by the Doctor and produced the same before ACP and
submitted his report as per Ex.P.11. In his cross-
examination by the defence nothing in elicited from his
mouth to discard his version.
S.C. No.1348/2013
30
27. PW.12/S.N.Gaonkar was Assistant Director of
Biology Section FSL Madiwala, Bengaluru has deposed
about examination of MO.1 to MO.8 and issued his
examination report as per Ex.P.12. PW.12 has deposed
that on examination of these articles the presence of blood
was detected in MO.1 Wooden stick, MO.2 blood swab,
MO.4 blouse, MO.5 saree, MO.7 petticoat. The blood was
human blood of 'B' group. During the course of his cross-
examination by the learned counsel for the accused PW.12
has denied all the suggestions made to him. Nothing is
elicited from his mouth to discard his version.
28. PW.13/Venkatesh PSI has deposed that on
27.08.2013 ACP Gangadhar deputed him and
H.C.No.1874, P.C.No.2933 to trace out the accused. Hence
on the same day he contacted the informant and collected
the information and apprehended the accused No.1 near
Malleshwaram market and also brought a Bajaj Scooter
S.C. No.1348/2013
31
which was in possession of the accused No.1. PW.13 has
deposed that he has produced the accused No.1 and Bajaj
Scooter before ACP at 4-45 p.m. and submitted his report
as per Ex.P.14. PW.13 further deposed that on 03.09.2013
at about 5-00 p.m. he along with his police staff
H.C.No.1874, H.C.No.5218, P.C.No.9261 went in search of
the accused No.2 and apprehended the accused No.2 near
Udupi Hotel situated near Vijayanagar Bus stop and
brought him to the police station and produced him before
ACP at 5-30 p.m. and submitted his report as per Ex.P.15.
During the course of his cross-examination by the learned
counsel for the accused PW.13 has denied the suggestion
that they have brought the accused from their house. He
has denied the suggestion that he has brought the scooter
to the police station from the house of accused No.1. He
has denied all other suggestions made to him.
S.C. No.1348/2013
32
29. PW.14/Sara Fathima, who was working as ACP
in Malleshwaram, Sub-Division has deposed that on
15.10.2013 she took up the case file from CW.34 ACP
Gangadhar for further investigation. On 19.10.2013 she
has received Ex.P.16 report regarding the caste of the
complainant from the Tahashildar. On 23.10.2013 she has
received Ex.P.12 FSL report and also received Ex.P.7
sketch from PWD Engineer. On 05.11.2013 she has
received Ex.P.10 report of Assistant Revenue Officer of
BBMP. On 24.10.2013 she had sent MO.1 stick to the
NIMHANS Hospital in order to obtain the opinion report of
the doctor. On 08.11.2013 she has received Ex.P.19
opinion report of the doctor and also received Ex.P.20
sample seal and MO.1. On 08.11.2013 she has recorded
the further statement of the complainant. On completion
of she has filed the charge sheet against the accused.
During course of her cross-examination by the learned
counsel for the accused PW.14 has denied all the
S.C. No.1348/2013
33
suggestions made to her. She has admitted the suggestion
that Dr.Mallabhaskar Rao who is issued Ex.P.19 opinion
report was not conducted any post-mortem examination of
the deceased and also not given any treatment to the
deceased. She has denied the suggestion that all these
documents Ex.P.16 to P.18, Ex.P.12 and P.13, Ex.P.10,
Ex.P.19, Ex.P.6 and P.7 are all created documents.
30. PW.15/Vijay Hadagali Police Inspector has
deposed that on 27.08.2013, he has took up the case filed
from CW.32 Sri.S.Srikanth PSI. PW.15 has deposed that
on the same day at about 12-30 p.m. complainant
Varalakshmi came to the police station and lodged the
complaint as per Ex.P.1 and based on the same he added
Section 302 r/w 34 of IPC and Section 3(2)(v), 3(1)(x), 3(1)
(xii) of The Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act and sent Ex.P.21 FIR to the
Court. On the same day he visited to the house of the
S.C. No.1348/2013
34
deceased and conducted inquest panchanama as per
Ex.P.4 in the presence of pachas Balakrishna, Lokesh and
Uma and also recorded the statements of witnesses Raju
and Nagaraju. He has deposed that he noted down in
Ex.P.4 regarding the head injuries sustained by the
deceased. He has deposed that he has conducted the
inquest panchanama between 1-00 p.m and 3-00 p.m.
Thereafter, he has sent the dead body to the M.S.Ramaiah
Hospital for post-mortem examination. During the course
his cross-examination by the learned counsel for the
accused PW.15 has deposed that CW.1 complainant came
to the police station between 12.20 p.m. to 12.30 p.m. on
27.08.2013. He has admitted the suggestion that in Ex.P.1
complaint, the complaint has not mentioned that the
accused persons have insulted her mother in the name of
caste. He has admitted the suggestion that in Ex.P.1
complaint the complaint has mentioned her phone
No.9741025728. He states that Raju in his statement has
S.C. No.1348/2013
35
stated his phone No.9741025728, same phone number.
PW.15 has denied all other suggestions made to him.
31. PW.16/S.N.Gangadhar who was working as ACP
has deposed that on 27.08.2013, he took up the case file
from CW.33/Vijay Hadagali. On same day he has recorded
the statement of CW.9-Nethra, CW.10-Vipul, CW.11-
Krishna Murthy and CW.12-Jayalakshmi. He has deputed
PSI and the police staff in order to trace out the accused.
On the same day at about 4-45 p.m. PSI and his staff
produced accused No.1 and also produced Bajaj Scooter
bearing No.CKM-7891. He has arrested the accused No.1
and also seized the Bajaj Scooter in the presence of
panchas by name Ismail and Mallikarjuna by conducting
Ex.P.5 panchanama. He has deposed that on 03.09.2013
he sent letter to the Tahashildar to obtain the caste
certificate of the deceased. On 03.09.2013 PSI Venkatesh
and his staff produced the accused No.2 before him at 5-
S.C. No.1348/2013
36
30 p.m. Hence, he arrested the accused No.2 and recorded
the voluntary statement given by accused No.2. On
04.09.2013 he has received Ex.P.24 post-mortem report of
the deceased from M.S.Ramaiah Hospital. He has also
received MO.3 to MO.8 from M.S.Ramaiah Hospital. On
17.09.2013 he has sent MO.3 to MO.8 to the FSL,
Bengaluru for chemical examination. On 15.10.2013 he
has sent requisition to the PWD Engineer in order to draw
the sketch placed of the incident. On 15.10.2013 he has
handed over the case filed to CW.35 ACP for further
investigation. He has deposed that on 27.08.2013 after
arresting the accused he called CW.11 and CW.12 to the
police station and as they identified the accused No.1 he
recorded the further statement of CW.11 and CW.12. He
has deposed that on 03.09.2013 after arresting the
accused No.2 he called the witnesses CW.11-Krishna
Murthy and CW.12-Jayalakshmi to the police station and
S.C. No.1348/2013
37
as they identified accused No.2, he has recorded further
statement of the CW.11 and CW.12.
During the course of cross-examination by the
learned counsel for the accused PW.16 has denied the
suggestion that he has not recorded the statement of
CW.9-Nethra, CW.10-Vipul, CW.11-Krishna Murthy and
CW.12-Jayalakshmi and also not recorded the further
statement of CW.11 and CW.12. He has denied the
suggestion that he has created all the documents. He has
denied all other suggestion made to him.
32. PW.17/Dr.K.S.Pradeep, has deposed that he was
worked as Associate Professor of Department of Forensic
Medicine in M.S.Ramaiah Hospital. He states that on
27.08.2013 as per requisition of Police Inspector of
Nandini Layout Police station he had conducted post-
mortem examination of the deceased Padmamma at
S.C. No.1348/2013
38
M.S.Ramaiah Hospital mortuary between 3-10 p.m. and 4-
10 p.m. On examination the following external injuries
were found:-
"1. Sutured wound with sutures insitu,
measuring 4 c.m. in length place obliquely
situated over back of head over external occipital
protuberance. On removal of sutures the injury is
bone deep.
2. Sutured wound with sutures insitu,
measuring 3 c.m. in length horizontally place,
situated 5 c.m. below to the injury number 1 over
back of head over occiput. On removal of sutures
it is bone deep.
3. Abrasion 4 c.m. x 3 c.m. present over
outer aspect of right knee."
He has deposed that following internal injuries were
found:
S.C. No.1348/2013
39
"1. On reflection shows extravasation over
occipital region. Skull: skull shows depressed
fractures over an are of 1x1 c.m. and 3x3 c.m.,
corresponding to the external injuries number 1
and 2 respectively.
Brain and Meninges etc: Brain edematous
and covered with subdural and sub arachnoid
haemorrhage over left Pareto occipital region and
in inter hemispherical space."
33. PW.17 further deposed that after post-mortem
examination, he has handover MO.3 to 7 clothes found on
the body of the deceased to the police in the sealed
manner. He has also collected MO.8 blood in bottle and
handed over to the police in sealed manner along with
sample seal. PW.17 has deposed that time since death is
4 to 6 hours prior autopsy. He has given his opinion the
regarding the cause of death as "death is due to Head
S.C. No.1348/2013
40
injury sustained." He has issued Ex.P.24 post-mortem
report.
During the course of the cross-examination of PW.17
he has admitted the suggestion that the injury No.1 and 2
mentioned in Ex.P.24 is also possible if the deceased by
loosing the balance fell on the stone edge of the footpath.
He has deposed that he is not able to say how many hours
back of the death of the deceased she has consumed the
food. He can not say after how many hours later she
sustained injuries the treatment to the deceased was
started.
34. PW.18/S.Shrikanth PSI has deposed that on
25.08.2013 at about 11-00 p.m., he has received Ex.P.9
statement of the Padmamma from ASI and on the basis of
the same he registered the case in Crime No.203/2013 for
the offences punishable u/Ss. 324, 506 r/w 34 of IPC and
sent Ex.P.25 FIR to the Court. PW.18 further deposed that
S.C. No.1348/2013
41
on 26.08.2013 he visited to the house of Padmamma and
recorded her further statement as per Ex.P.26. On the
same day he visited to the place of incident and conducted
Ex.P.8 panchanama in the presence of panchas Narayan
and Kumar @ Manja as the place of incident was shown by
Smt.Padmamma injured. He has identified the left thumb
impression of Padmamma on Ex.P.26 and Ex.P.8 which
are marked at Ex.P.26(a) and P.8(b) respectively. He has
deposed that at the time of conducting panchanama he
had seized MO.1 stick as shown by Smt.Padmamma and
packed and sealed the same and subjected the same to PF.
No.109/2013 i.e., Ex.P.27. He has deposed that he has
also collected the blood in the placed of incident by using
the cotton. He has identified MO.1 wooden stick and MO.2
blood swab. He has deposed that as Padmamma died on
27.08.2013 and in this case Section 302 r/w 34 of IPC and
Section 3(2)(v), 3(2)(x) and 3(2)(xii) were added on the basis
of complaint lodged by complainant to CW.33, he has
S.C. No.1348/2013
42
hand over the case file to CW.33 for further investigation.
During the course his cross-examination by the learned
counsel for the accused PW.18 has denied the suggestion
that in this case first FIR was sent to the court on
27.08.2013. He has denied the suggestion that after the
death of Padmamma they have created Ex.P.26 alleged
further statement of Padmamma and Ex.P.8 alleged
panchanama. He has denied the suggestion that no such
material object MO.1 stick was seized by conducting
Ex.P.8 panchanama. He has denied all the suggestions
made to him.
35. PW.19/Mallikarjun is the seizure mahazar
witness turned hostile to the case of the prosecution.
PW.19 has deposed that on 27.08.2013 Nandini layout
police summoned him to the police station and told him
that they have seized a motor-cycle and took his signature
on Ex.P.5. He has states that the police have not shown
S.C. No.1348/2013
43
the motor-cycle to him. He do not know the contents of
Ex.P.5. Having turned hostile to the case of the
prosecution learned Spl.P.P. cross-examined him in detail.
During the course his cross-examination by the learned
Spl.P.P. PW.19 has denied the entire contents of the
document Ex.P.5. He has denied the suggestion that he
was seen the accused in the police station and in his
presence Bajaj Super bike was seized by the police.
36. PW.20/Dr.Malla Bhaskara Rao, Nuro Surgeon,
NIMHANS, Bengaluru has deposed that he came to know
through the hospital records that the patient by name
Mrs. Padmamma treated in NIMHANS Hospital by
Dr.Raghavendra. He has identified the document Ex.P.28
medical report. He has deposed that he received a letter of
requisition sent by ACP, Malleshwaram on 24.10.2013 in
order to examine the wooden stick and to give his opinion.
The said letter was addressed to Medical Superintendent
S.C. No.1348/2013
44
Dr.Satish. Dr.Satish entrusted him to examine the wooden
stick sent by ACP and to give his opinion. On 08.11.2013
he and Medical Superintendent Dr.Satish both examined
the wooden stick MO.1. He has gone through the copy of
PM report and also gone through the NIMHANS case
records and CT Scan records of Mrs.Padmamma. PW.20
has deposed that after examination of the wooden stick
and after perusal of PM report, NIMHANS case record, CT
Scan report and images, he has given his opinion that the
head injuries sustained by Smt.Padmamma could have
been sustained by the assault made with the wooden stick
which is examined by him. After examination of MO.1
wooden stick he has repacked in the cloth cover and the
sealed the same with NIMHANS Hospital seal and handed
over the sealed wooden stick with the sample seal to the
PC.No.2417, Cheluvegowda. He has given his opinion
report as per Ex.P.19. He has identified MO.1 which
S.C. No.1348/2013
45
containing the cloth cover used by them to repack the
same.
During the course of the cross-examination by the
learned counsel for the accused PW.20 has deposed that
he has not personally given treatment to Smt.Padmamma.
But the admission of Padmamma was done under his care
and supervision and the team of two doctors by name
Dr.Raghavendra, Dr.Mehul Modi, treated Padmamma. He
has admitted the suggestion that he has not conducted
the post-mortem of the deceased Padmamma, He has
deposed that he personally do not know who was
accompanied with the injured. But as per Ex.P.28 records
one Bipulnath was accompanied with the patient. He has
admitted the suggestion that Bipunath is hear say
witness. He has deposed that Padmamma was treated in
his hospital and as she was stable they discharged her.
Padmamma was not discharged against medical advise. He
has deposed that they advised her to take treatment in
S.C. No.1348/2013
46
local hospital in order to removal of the stitches. He has
admitted the suggestion that Ex.P.19 is not signed by
Dr.Satish. He has admitted the suggestion that the
medical superintendent is not authorized him to deposed
on behalf of Dr.Raghavendra. He has denied all other
suggestions made to him.
37. Based on the above evidence, it is to be examined
whether the prosecution has been successful in bringing
home the guilt of the accused beyond all reasonable doubt.
38. It is first to be examined if the prosecution has
established that the death of the deceased was homicidal
in nature. PW.17 Dr. K.S. Pradeep is the Medical Officer
who has conducted the PM Examination of the deceased
on 27.8.2013 between 3.10 PM and 4.10 PM. He has
noticed following external and internal injuries.
S.C. No.1348/2013
47
External injuries
"1. Sutured wound with sutures insitu,
measuring 4 c.m. in length place obliquely
situated over back of head over external occipital
protuberance. On removal of sutures the injury is
bone deep.
2. Sutured wound with sutures insitu,
measuring 3 c.m. in length horizontally place,
situated 5 c.m. below to the injury number 1 over
back of head over occiput. On removal of sutures
it is bone deep.
3. Abrasion 4 c.m. x 3 c.m. present over
outer aspect of right knee."
Internal injuries
Scalp.
"1. On reflection shows extra vasationover
occipital region. Skull: skull shows depressed
fractures over an are of 1x1 c.m. and 3x3 c.m.,
corresponding to the external injuries number 1
and 2 respectively.
Brain and Meninges etc: Brain edematous
and covered with subdural and sub arachnoid
S.C. No.1348/2013
48
haemorrhage over left Pareto occipital region and
in inter hemisperical space."
He has further opined that all the injuries were
antemortom in nature. He has given opinion that "Death
is due to Head injury sustained". His report is marked at
Ex.P24. No doubt PW.17 admitted the suggestion that
injury No.1 and 2 mentioned in Ex.P24 is also possible if
the deceased by loosing the balance fell on the stone edge
of the foot path. PW.20 Dr. Malla Bhaskara Rao, Neuro
Surgeon of NIMHANS has deposed that Ex.P28 medical
records is issued by the NIMHANS Hospital. PW.20 in his
cross-examination by the defence admitted the suggestion
that he has not personally given treatment to the Smt.
Padmamma on 25.8.2013 but the admission of
Padmamma was done under his care and supervision and
the team of two doctors by name Dr. Raghavendra and Dr.
Mehul Modi treated Smt. Padmamma. The oral evidence
of PW.20 that deceased Padmamma was taken the
S.C. No.1348/2013
49
treatment in the NIMHANS Hospital for head injuries
sustained by her cannot be doubted. PW.20 has given his
opinion report as per Ex.P19 after examination of the
M.O.1 stick.
39. In this case PW.8 has deposed that 25.8.2013 at
about 8 PM PSI Srikanth deputed him to record the
statement of Smt. Padmamma who was taking treatment
in NIMHANS Hospital and hence he visited to the hospital
and recorded the first information statement given by the
Padmamma as per Ex.P9. During the course of the cross-
examination of PW.8 nothing is elicited from his mouth to
discard his version. In his cross-examination accused
persons have not seriously disputed about the contents of
the document Ex.P9. During the course of cross-
examination of PW.1, the question by way of suggestion
put to her that her mother told her that some unknown
persons assaulted her mother. This suggestion is denied
S.C. No.1348/2013
50
by PW.1. During the course of cross-examination fo PW.2
also suggestion is made to him that unknown persons
assaulted his mother-in-law. This suggestion is also
denied by PW.2. The very suggestion made to PW.1 and 2
in their cross-examination and the accused not seriously
disputed document Ex.P9 itself indicates that accused
persons have not seriously disputed the fact that Smt.
Padmamma has sustained head injuries due to assault.
No doubt, it is the defence of the accused that they have
not assaulted Smt. Padmamma. PW.17 is the doctor who
has conducted the Postmortem examination of the dead
body of the deceased the best person to say about the
reason for death of the deceased has opined that the cause
of death as "Death is due to head injury sustained." PW.1,
PW.2, PW.10 even though are not the eye witnesses but
they have deposed that due to assault Smt. Padmamma
sustained head injuries. PW.2 is Dr. Malla Bhaskara Rao,
Neuro Surgeon of NIMHANS Hospital has deposed
S.C. No.1348/2013
51
regarding the document Ex.P28 medical report and stated
that Ex.P28 is the Medical Report issued by their hospital.
No doubt PW.20 has deposed that he was not given
treatment to Smt. Padmamma but he has given his
opinion that the death of Padmamma could have caused
due to head injuries sustained by her. On perusal of
Ex.P28 medical report in the medical report also it is
mentioned that history of assault by someone. The oral
evidence of PW.1, PW.2, PW.4, PW.8, PW.10 which is
supported by the evidence of PW.17 and PW.20 doctors are
sufficient to hold that the cause of death of the deceased is
due to head injury sustained by her due to assault.
Hence, in my opinion the prosecution has proved beyond
all reasonable doubt that the death of the deceased Smt.
Padmamma was homicidal in nature.
40. Now the question is whether the prosecution
proves beyond all reasonable doubt that on 25.8.2013 at
S.C. No.1348/2013
52
about 4 PM the accused persons quarrelled with the
deceased Smt. Padmamma near House No.31 situated at
Jarakabande Kaval village, 4th Cross, 5th Main, Shankar
Nagar and in furtherance of their common intention
accused No.1 assaulted Smt. Padmamma with stick on her
head and accused No.2 assaulted her with the same stick
on her shoulder, right hand knee, hands and as a result of
which she sustained injuries and thereby she died on
27.8.2013 to be seen. According to the case of the
prosecution PW.3 is the eye witness. According to the case
of the prosecution CW.9 to CW.11 are all eye witnesses. In
this case, despite of sufficient opportunity given to the
prosecution the prosecution has not examined CW.9 to
CW.11. PW.3 who has examined as eye witness has
completely turned hostile to the case of the prosecution.
PW.3 has deposed that when she was working as Maid
Servant and came out from the house she found Smt.
Padmamma lying near her house. She states that by
S.C. No.1348/2013
53
seeing Padmamma lying near her house she informed
PW.1 over phone by stating that her mother was fallen
near the house. Except this, she do not know anything
about the incident. PW.3 in her examination-in-chief itself
has deposed that she has not seen the accused near that
place. PW.3 has completely turned hostile to the case of
the prosecution. There is no other eye witnesses in this
case. The entire case of the prosecution is based on
circumstantial evidence. In this case, the prosecution has
mainly relied upon the evidence of PW.1, PW.2, PW.4 and
PW.10. Admittedly these witnesses PW.1, PW.2, PW.4,
PW.10 are not the eye witnesses to the alleged incident.
PW.1 and PW.2 have deposed that they came to know
about the incident through Jayalakshmi i.e., PW.3. Since
PW.3 herself turned hostile to the case of the prosecution,
there is no other eye witnesses. Hence, we have to look
into the documents produced by the prosecution. The
prosecution has produced the document Ex.P9 first
S.C. No.1348/2013
54
information statement given by Smt. Padmamma on
25.8.2013 while taking treatment in the hospital. In
Ex.P9 first information statement she stated that on
25.8.2013 at about 4 PM after consuming alcohol, when
she was sitting in front of her house two unknown persons
came there quarrelled with her saying why she abusing by
consuming alcohol. By picking quarrel with her the
unknown persons assaulted her with wooden stick and
went away. Thereafter her sister's daughter Nethra
brought her to the NIMHANS Hospital for treatment. On
perusal of Ex.P9 there is no whisper regarding the
presence of the accused in the alleged place of incident. In
Ex.P9 it has mentioned that some two unknown persons
all of a sudden came and abused her and assaulted her
with club on her body and caused bleeding injuries. In
Ex.P9 the doctor has made an endorsement that patient is
conscious oriented and obeying and moving all four limbs.
PW.8 who has recorded this statement as per Ex.P9 also
S.C. No.1348/2013
55
deposed that after ascertaining from the doctor that Smt.
Padmamma was capable of giving statement he has
recorded the statement of Smt. Padmamma. It is the case
of the prosecution is that after giving treatment to Smt.
Padmamma, NIMHANS Hospital doctor discharged her on
the same day. In Ex.P28 in the case records of the
NIMHANS Hospital, the history of assault is mentioned
assault by someone details not known. It is also
mentioned in Ex.P28 that the condition of the injured
stable, moving all four limbs. The time of discharge is
mentioned as 25.8.2013 at 11.05 PM. It is the case of the
prosecution is that after discharge from NIMHANS
Hospital when Smt. Padmamma was in her house, PW.18
S. Srikanth, PSI visited to the house of Padmamma and
recorded her further statement as per Ex.P26 and also he
conducted the spot mahazar Ex.P8 and seized M.O.1 stick
and M.O.2 blood swabs in the place of incident as the
place of incident was shown by Smt. Padmamma.
S.C. No.1348/2013
56
According to the case of prosecution, Ex.P26 is the further
statement of Padmamma has to be considered as dying
declaration.
41. It is important to note some decisions of Hon'ble
Supreme Court and Hon'ble High Court. The Hon'ble
Supreme Court in the case of Satish Amman Banashetty
vs. State of Maharashtra reported in 2009 (2) Crimes 19
(SC) has held that dying declaration can be made the basis
of conviction, even if there is no corroboration if the court
is satisfied after careful scrutiny that it is true and free
from any other to induce the deceased to make a false
statement and coherent and consistent. Further, in the
case of Krishna Vs. State of Haryana reported in (2013)3
SCC 280, it is held that a dying declaration can be the sole
basis for conviction without corroboration when it is
voluntary true reliable free from suspicious circumstances
and recorded in accordance with established practice of
S.C. No.1348/2013
57
principles. The Hon'ble Supreme Court in the case of
Anjanappa vs. State of Karnataka reported in 2013 (4)
Crimes 552 (SC) has held that when treating doctor has
stated that the deceased was in a free mental condition to
give dying declaration, the said dying declaration was
admissible. The Hon'ble Supreme Court in the case of
Guljari Lal vs. State of Haryana reported in 2016 (1)
Crimes 593 (SC) has held that a valid dying declaration
may be made without obtaining a certificate of fitness of
the declarant by a Medical Officer. Further, the Hon'ble
Supreme Court in the case of Surendra Kumar vs. State of
Haryana reported in (2011) 10 SCC 173 has held as
under: -
Though there is neither rule of law nor of
prudence that dying declaration cannot
be acted upon without corroboration.
But the court must be satisfied that the
dying declaration is true and voluntary
and in that event there is no impediment
in passing of conviction on it without
corroboration. It is the duty of the court
to scrutinise the dying declaration
S.C. No.1348/2013
58
carefully and must ensure that the
declaration is not the result of tutoring
properly or imagination where a dying
declaration is suspicious it should not be
acted upon without corroborating
evidence likewise where the deceased was
unconscious and could never make any
declaration the evidence with regard to it
is rejected. The dying declaration which
suffers from infirmity cannot from the
basis of conviction.
Further the Hon'ble Supreme Court in the case of C.
Magesh vs. State of Karnataka reported in (2010) 5 SCC
645 has held as under: -
It is not in dispute that it was their
statement recorded u/s 161 of Cr.P.C., in
the hospital by I.O., he was not need at
that time to have obtained their
signatures on the same as it is prohibited
by Sec. 162 of Cr.P.C., doctors have
certified that they were in a fit state of
health to have their statement is recorded
only at the end of recording entire
statement. No such certificate has been
issued by the Doctor at the time of their
statement by consent to be recorded. It
is not in question and answer form.
Para-34
The incident having taken place as far
aback as on 25.3.1999 in a Metropolitan
S.C. No.1348/2013
59
City like Bengaluru where several
Magistrates were available prosecution
never though of getting their dying
declaration in the presence of a
Magistrate. There is nothing on record
even to suggest that from 25.3.1999 to
11.4.1999 when siniza finally succumbed
to the injuries and between 25.3.1999 to
22.4.1999 when Nagarathna succumbed
to the injuries Magistrate was not
available even if prosecution would be
put forth such a ground it had only to
discard at this threshold as the same is
unconceivable.
Our Hon'ble High Court in a case of Haladappa vs. State
of Karnataka reported in ILR 2016 Karnataka 709 has
held as under: -
para-14
The concept of dying declaration is of the
English origin. The principles of English
dying declaration is uncorroborated in
Sec. 32(1) of our Indian Evidence Act,
1872 which states that if any person
makes a statement as to the cause of his
death or as to any of the circumstances of
the transaction in which death resulted
then it is relevant piece of evidence and it
could be relied upon.
Para-15
Basis for the dying declaration are that
they are the declarations made at the
S.C. No.1348/2013
60
point of extreme and when the declarant
losses all his hopes worldly affairs and
motive to falsehood completely silent and
when the matter is introduced by most
powerful consideration to full truth. So
solemnity is based for dying declaration.
Why the law was made clear that if the
dying declaration is satisfactorily
established then it can be sole basis for
conviction and which does not require
any other corroborating evidence from the
other course.
Para-16
When this is the legal position in so far as
the dying declaration is concerned let us
verify the materials placed on record.
Looking to the dying declaration Ex.P17
and recording the first contention of the
learned counsel appearing for the
appellant that at the beginning of the
dying declaration there is no certification
by the doctor to show that she was in a
conscious state and in a fit mental
condition to give such a statement is
concerned where clear of the opinion that
the certification of the doctor about these
things is not a mandatory of law and it is
rule of caution. The question as to
whether the person who recorded the
dying declaration is to be believed by the
court or not and whether the person who
recorded the dying declaration was
satisfied about the mental condition of
the person giving dying declaration are
the points to be appreciated by the court.
S.C. No.1348/2013
61
In this regard we are referring to the decision of the
Hon'ble Supreme Court in the case of Lakshman vs.
State of Maharashtra [(2002) 6 SCC 710)] wherein their
Lordships have laid down the preposition as under: -
"Dying declaration - recorded - Absence
of Certification of Doctor as to fitness of
mind of declarant - would not render
dying declaration not explained -
essentially required is that person who
records it must be satisfied that deceased
was in fit state of mind - certification by
doctor is rule of caution - thus, voluntary
truthfulness nature of declaration can be
established otherwise.
Para-17
Therefore the contention of the learned
counsel for the appellant that as there is
no certification at the beginning of the
dying declaration it is not of valid dying
declaration cannot be accepted at all.
Now coming to the proof of this dying
declaration by the prosecution that with
the help of the other material concerned
we have carefully gone through the
evidence of the prosecution witnesses and
during the course of the trial through the
evidence of PW.10, the mother of the
deceased in her evidence who clearly
deposed before the court on oath that
herself and her husband PW.4 were
S.C. No.1348/2013
62
present when the Tahasildar recorded the
dying declaration of the deceased. This
clearly goes to show that the parents of
the deceased were along with the
deceased when the dying declaration
under Ex.P17 was recorded. Whereas the
evidence of the Taluka Executive
Magistrate as well as the police witness
goes to show that except them none
others were present. Therefore, there is
no consistency in the evidence of the
prosecution witnesses and the defence by
proving on record through the mouth of
PW.10 which is established that the
father and mother were present while
recording the dying declaration. Looking
to the evidence of the doctor as well as
the Tahasildar it shows that request was
made by the police to the Taluka
Executive Magistrate to come on record
the dying declaration of the deceased
Devamma and it was on 20.12.2010 the
evidence of Taluka Executive Magistrate
shows that on 20.12.2010 he came to
record the dying declaration but the
doctor informed that Devamma was not
in a position to give her statement.
Therefore, he will inform whenever she
will be in a position to give her statement.
We have also perused the Postmortem Report, the doctor
who conducted the Postmortem over the dead body of the
deceased clearly opined that the percentage of burn
S.C. No.1348/2013
63
injuries were 90% to 95%. The evidence of the doctor
PW.16 is the condition that Devamma deteriorated day by
day the evidence of the parents show that she was
speaking in a low voice it has come on record through the
evidence of prosecution witnesses that her entire body
including fingers were burnt. Whereas it is the case of
the prosecution that Devamma put her thumb
impression on Ex.P17 the dying declaration....."
42. The evidence on record with regard to the Ex.P9
first information statement of the deceased Smt.
Padmamma and the document Ex.P26 alleged further
statement of the deceased is required to be scrutinised
keeping in mind the above principles laid down by the
Hon'ble Supreme Court, and our Hon'ble High Court.
Admittedly, at the first instance the deceased has given
the statement as per Ex.P9 against unknown persons.
Based on the same, the case in Crime No.203/2013
S.C. No.1348/2013
64
registered against unknown persons and Ex.P25 FIR sent
to the court. The learned counsel for the accused
submitted that the oral evidence of PW.2 and PW.10
would go to show that Smt. Padmamma was unconscious
state on 26.8.2013. Hence there was no chance to give
any such further statement before the police as per
Ex.P26. I have gone through the evidence of PW.2 and
PW.10. It is the evidence of PW.2 is that on Sunday he
went to the Anekal and on that day one lady informed
him over phone that the accused persons assaulted Smt.
Padmamma. He has deposed that on that day he could
not returned from Anekal as it was night. Hence, on the
following day he came to the house of his mother-in-law
Smt. Padmamma and found that Padmamma was lying
on the bed and she was unconscious and not in a
position to talk. During the course of his cross-
examination by the defence, PW.2 has deposed that he
came to the house of Smt. Padmamma at 9.30 AM on
S.C. No.1348/2013
65
Monday. According to the case of the prosecution, the
alleged incident was occurred on 25.8.2013 on Sunday.
We can see in Ex.P25 FIR regarding the alleged date of
incident, time of incident and day of incident. In Ex.P25
FIR it is mentioned that the incident was occurred on
25.8.2013 at 4 PM i.e., on Sunday. According to PW.2 he
was returned from Anekal on Monday i.e., on 26.8.2013
and came to the house of Padmamma at 9.30 AM and
found that his mother-in-law Padmamma was
unconscious state. PW.2 has deposed that as Smt.
Padmamma was unconscious he came to know about the
incident through his wife PW.1 and one maid servant by
name Jayalakshmi (PW.3). The oral evidence of PW.2 is
to the effect that when he was came to the house of Smt.
Padmamma on 26.8.2013 at 9.30 AM Padmamma was
not in a position to talk. It is not the evidence of PW.2 is
that Smt.Padmamma herself told him regarding the
incident.
S.C. No.1348/2013
66
43. Now coming to the oral evidence of PW.10 who
in his examination-in-chief itself has deposed that on
25.8.2013 at 7 PM PW.2/CW.4 Raju informed him over
phone that the accused persons assaulted to Smt.
Padmamma with stick. Hence she was admitted to the
hospital. PW.10 has deposed that on that day on
25.8.2013 he could not visit to the hospital. Hence, on
26.8.2013 he came to the house of Smt. Padmamma in
order to see her. When he came to her house he found
Padmamma lying on the bed and she was unconscious
state and not in a position to talk. PW.10 in his cross-
examination has denied of giving any such statement
before the police as per Ex.D1 (portion of his statement).
PW.10 has deposed that when he went to the house of
Padmamma CW.4/PW.2 was also there. That means
according to PW.2 as well as PW.10 when they went to
the house of Smt. Padmamma in order to see her in the
morning hours Smt. Padmamma was not in a position to
S.C. No.1348/2013
67
talk and she was in unconscious state. When PW.2 and
PW.10 themselves have stated in their deposition that
Smt. Padmamma was in unconscious state on 26.8.2013
how can she gives further statement before the PW.18 is
not explained. PW.18 has deposed that on 26.8.2013 he
has visited to the house of Smt. Padmamma and
recorded her further statement as per Ex.P26. PW.18
further deposed that on 26.8.2013 he has conducted the
panchanama as per Ex.P8 in the place of incident as
Smt. Padmamma was shown the place of incident.
PW.18 has not deposed anything about the timing of the
recording of statement of Smt. Padmamma as per Ex.P26
and also not deposed about the timing of the
panchanama conducted as per Ex.P8. On perusal of the
Ex.P8 there is mention in Ex.P8 that it was conducted
between 5 PM and 5.45 PM on 26.8.2013. PW.7
independent pancha to Ex.P8 mahazar has completely
turned hostile to the case of the prosecution. PW.7 has
S.C. No.1348/2013
68
deposed that in his presence the police have not
conducted panchanama as per Ex.P8. He states that the
police took his signature on Ex.P8 in his shop. Except
PW.18 PSI no other witnesses who signed on Ex.P8
supported the case of the prosecution. PW.2 and PW.10
have clearly deposed that on 26.8.2013 Smt. Padmamma
was not in a position to talk and she was unconscious
state. Under such circumstances it is very difficult to
believe the oral evidence of PW.18 that he has recorded
the further statement of Smt. Padmamma as per Ex.P26
and conducted the panchanama as per Ex.P8 in the
presence of Smt. Padmamma. PW.1 in her examination-
in-chief has stated that her mother has given two
statements before the police once in the Ambulance and
another statement in the hospital. No doubt PW.1 has
deposed that during both the times she was not present.
PW.1 has not deposed anything about her mother giving
statement before the police in the house as per Ex.P26.
S.C. No.1348/2013
69
According to PW.1 her mother had given two statements
one in the Ambulance and another in the hospital. PW.1
has not deposed anything about whether her mother had
given statement before police in her house. If at all Smt.
Padmamma was conscious oriented on 26.8.2013 and
capable to give her further statement, what prevented
PW.18 to take her statement before the Magistrate or
before doctor is not explained by the prosecution. PW.18
has not deposed anything about at what time he has
recorded the further statement of Padmamma as per
Ex.P26. When the oral evidence of PW.2 and PW.10 are
taken into consideration it is very clear that the deceased
was unconscious on 26.8.2013 and was not in a position
to talk. Under such circumstances it is very difficult to
believe the oral evidence of PW.18 and document Ex.P26.
In Ex.P1 complaint lodged by PW.1 it is mentioned that
on 26.8.2013 she went to the house of her mother at 1
PM and at that time her mother told about this incident.
S.C. No.1348/2013
70
Thereafter she returned from her mother's house at 3
PM. In the oral evidence of PW.1 she has not stated
anything about what happened between discharge of her
mother from the hospital till her death. PW.1 in her
examination-in-chief simply deposed that her mother was
discharged from the hospital and she expired on
27.2.2014 at 11.30 AM. What transpires in between the
discharge and till the death of her mother has not
explained by the PW.1. PW.1 has deposed that her
mother told her that accused No.1 and 2 have beat her
mercilessly and she may not survive and her mother also
told accused No.1 and 2 have insulted them in the name
of caste. In Ex.P1 complaint there is no such mention
that her mother told her that the accused persons have
insulted her in the name of caste. PW.1 in her deposition
has not stated anything about on which date her mother
told her that accused No.1 and 2 beat her mercilessly.
There is no cogent evidence on the side of the
S.C. No.1348/2013
71
prosecution to show who has took the injured Smt.
Padmamma to the hospital and who was got discharged
and brought back to her house. No doubt in Ex.P28,
hospital record it is mentioned that the injured was
stable and her all four limbs were moving, hence, she
was discharged from the hospital. There is no evidence
on the side of the prosecution to show who was brought
the deceased from the NIMHANS Hospital to her house.
There is no cogent evidence to show when she was
brought from the hospital to the house. PW.4 Inquest
Mahazar witness in her examination-in-chief has deposed
that coming to know that the dead body of the deceased
Padmamma brought from the hospital to the house, she
went to the house of Smt. Padmamma in order to see
Padmamma. In her chief-examination itself PW.4 has
deposed that coming to know that the dead body of the
deceased Padmamma brought from the hospital to her
house she went to the house of Smt. Padmamma in order
S.C. No.1348/2013
72
to see Padmamma. None of the witnesses PW.2, PW.4,
PW.10 have deposed that Smt. Padmamma was oriented
and in a position to talk. Under such circumstances, the
oral evidence of PW.18 and the documents Ex.P8 and
P.26 creates doubt about the oral evidence of PW.8 and
documents Ex.P8 and P26. There is absolutely no clear
evidence to show that on 26.8.2013 Smt. Padmamma
was conscious and in a position to give her statement on
26.8.2013. The oral evidence of PW.18, who has deposed
that he has recorded the statement of deceased
Padmamma as per Ex.P26 and conducted mahazar as
per Ex.P8 in the place of incident is not believable.
44. PW.1 is the daughter of the deceased and PW.2
is the husband of PW.1 and son-in-law of the deceased.
Since PW.1 and 2 are the close relatives of the deceased
their evidence is required to be scrutinised closely and
carefully. The Hon'ble Supreme Court in the case of
S.C. No.1348/2013
73
Mahaveer Singh Vs. State of Madhya Pradesh reported in
2017 SAR (Criminal) 8 has held that the testimony of an
interested witness needs to be scrutinised with utmost
care and it can only be relied upon if the evidence as a
ring of truth to it, is cogent, credible and trustworthy.
Contradictory testimony of interested witnesses cannot
be usually treated as conclusive. It is further held that
when there is contradiction between medical evidence
and the ocular evidence the ocular evidence of a witness
has greater evidentiary value vice-a-visa medical
evidence, but however when the medical evidence goes
for that is completely reduces possibility of the ocular
evidence being true, the ocular evidence may be
disbelieved. It is further held that the Investigation
Officer dealing with murder case is expected to be
diligent, truthful and fair in his approach and his
performance, always to be in confirmity with the police
manual and default, breach of duty may prove fatal to
S.C. No.1348/2013
74
the prosecution case. Thus, the said versions given by
PW.1 and 2 is required to be corroborated with other
evidence on record in order to make it reliable and
trustworthy and to arrive at a findings based upon such
evidence. The oral evidence of PW.1 and PW.2 is that one
Jayalakshmi told them that accused No.1 Krishna and
accused No.2 Jagadish were assaulted Smt. Padmamma.
PW.1 as well as PW.2 have deposed that Smt.
Jayalakshmi informed them over phone that the accused
persons were assaulted Smt. Padmamma. It is pertinent
to note that PW.3 who is stated to be eye witness has
completely turned hostile to the case of the prosecution
by stating that she was not seen the accused persons
near the house of Smt. Padmamma. PW.3 has just
deposed that when she saw the Padmamma, Padmamma
was fallen down on the ground. Hence, she informed the
same to PW.1 over the phone. When PW.3 Jayalakshmi
herself has deposed that she was not seen the accused
S.C. No.1348/2013
75
near the house of Smt. Padmamma the oral evidence of
PW.1 and PW.2 who have deposed that they came to
know about this incident through PW.3 Jayalakshmi
looses its importance. Admittedly the PW.1 and PW.2
were not seen the alleged incident to say who was
assaulted Smt. Padmamma. PW.1 in her examination-in-
chief has deposed that coming to know about this
incident through Smt. Padmamma at about 6 PM then
she went near the house of her mother and reached at 8
PM by that time her mother was already taken to the
hospital. If that is so why PW.1 was not went to the
hospital is not explained. PW.1 in her entire oral
evidence has not stated at what time she was met her
mother after this incident and in which place her mother
stated before her that it was the accused No.1 and 2 beat
her mercilessly. If at all any such incident was occurred
and accused No.1 and 2 were beaten Smt. Padmamma
mercilessly PW.1 would have went to the hospital
S.C. No.1348/2013
76
immediately and lodge the complaint to the police against
the accused. As already observed that the criminal law
set into motion on the basis of Ex.P9 alleged statement of
deceased dated 25.8.2013. In Ex.P9 it is stated that two
unknown persons assaulted Smt. Padmamma. It is not
the case of the prosecution is that the accused No.1 and
2 were unknown persons to Padmamma. Admittedly the
civil dispute was pending between the accused No.1 and
Smt. Padmamma in respect of the house property. Since
Padmamma was knows about the accused there was no
occasion for her to refer the accused in her first
information statement as strangers. In Ex.P9 it is
mentioned that when Smt. Padmamma was sitting in
front of her house after consuming the alcohol at that
time 2 unknown persons who came there quarrelled with
her and assaulted her with club and fled away. In Ex.P9
it is not mentioned that assailants were came in
motorcycle. PW.18 PSI who has stated to be drawn Ex.P8
S.C. No.1348/2013
77
mahazar on the road. In Ex.P9 first information
statement it is not mentioned that the alleged incident
was occurred on the road. In Ex.P9 it is mentioned that
when Smt. Padmamma was sitting in front of her house
at that time some unknown persons assaulted her.
According to PW.18 Padmamma herself shown the place
of incident to him. I have already noted that the very
version of PW.18 that he has conducted the panchanama
as per Ex.P8 itself doubtful. The oral evidence of PW.2,
PW.4 and PW.10 would go to show that Smt. Padmamma
was unconscious state on 26.8.2013. Under such
circumstances the very version of PW.18 that he has
conducted spot mahazar as per Ex.p8 on 26.8.2013 is
doubtful. It is very doubtful that Ex.P8 was conducted
between 5 PM to 5.45 PM on 26.8.2013. PW.6 S.P.
Gangadhar, Asst. Engineer who has deposed that he has
prepared the sketch as per Ex.P7 on 9.10.2013 as the
place of incident was shown to him by the Police
S.C. No.1348/2013
78
constable Harish H.R., PC No.10388. It is not the case of
the prosecution is that said Police Constable No.10388
Harish H.R., was the eye witness to this incident. Since
PW.6 as well as Harish HR, PC No. 10388 were not the
eye witnesses, no evidentiary value can be attached to
the document Ex.P7 sketch. On perusal of the document
Ex.P8 mahazar and Ex.P7 sketch it would go to show
that the alleged place of incident was changed. In Ex.P9
first information statement given by Smt. Padmamma it
is clearly mentioned that when she was sitting in front of
her house 2 unknown persons assaulted her. But Ex.P8
mahazar was drawn on the road near the House No.31.
That itself indicates that there is change of place of
incident.
45. In this case, the seizure of the Bajaj Motorcycle
was also not proved by the prosecution by giving cogent
evidence. The Investigation Officer has not produced the
S.C. No.1348/2013
79
photos of the motor-cycle. PW.5 seizure mahazar witness
even though has deposed that the police have shown the
Bajaj bike bearing No. 7891 while taking his signature in
the premises of Nandini Layout Police Station but he has
clearly deposed that he has not seen the accused persons
in the police station. Even though learned Special Public
Prosecutor cross-examined PW.5 in detail nothing is
elicited from the mouth of PW.5 to suggest that Bajaj
Motorcycle was seized from the possession of the accused
No.1. PW.19 mahazar witness has completely turned
hostile to the case of the prosecution. Except PW.13
Venkatesh and PW.16 S.N. Gangadhar, ACP none other
witnesses have deposed regarding seizure of Bajaj
Motorcycle. It is pertinent to note that none of the
witnesses have deposed regarding the user of Bajaj bike
by the accused for commission of the offences. Mere
seizure of the Bajaj Scooter by PW.16 is not sufficient to
hold that the said Bajaj Scooter bearing No. CKM 7891
S.C. No.1348/2013
80
was used for commission of the offences. None of the
witnesses had deposed regarding the user of the Bajaj
Scooter bearing No. CKM 7891 for commission of the
offences. Under such circumstances mere seizure of the
scooter is not sufficient to hold that it was used for
commission of the offences. The recovery of the Bajaj
Scooter bearing No. CKM 7891 is also not established by
the prosecution with cogent evidence. Admittedly, PW.13
was not conducted any mahazar at the place where he
was apprehended accused No.1 and 2. The oral evidence
of PW.13 that he was apprehended accused No.1 near
Malleshwaram Market and brought the accused No.1
along with Bajaj Scooter is not believable. If at all PW.13
was apprehended accused No.1 in Malleshwaram Market
along with Bajaj Scooter what prevented him to draw the
mahazar in that place is not explained by PW.13. PW.6,
PW.8, PW.9, PW.11, PW.12, PW.13, PW.14, PW.15,
PW.16, PW.18 are all official witnesses who have spoken
S.C. No.1348/2013
81
about various acts done by them during the course of
investigation. They are not the eye witnesses. It is the
case of the prosecution is that accused persons had
enimity with the deceased Padmamma. Hence, in order
to vacate her from the house they have assaulted
Padmamma with wooden stick. It is well settled principle
of law is that the motive is double edged weapon. Merely
because there was civil dispute pending between the
accused persons deceased Padmamma it cannot be held
that the accused No.1 and 2 were assaulted Smt.
Padmamma and caused her head injuries. There is no
evidence on the side of the prosecution to show that
anybody have seen the accused persons near the house
of Smt. Padmamma on 25.8.2013. Since there is no
cogent evidence on the side of the prosecution to show
that on 25.8.2013 at 4 PM the accused persons went
near the house of Padmamma it cannot be held that the
accused persons were assaulted Smt. Padmamma with
S.C. No.1348/2013
82
wooden stick. The evidence of PW.1, PW.2 who are none
other than the daughter and son-in-law of the deceased
is not consistent, cogent and reliable to rely upon the
same for convicting the accused. PW.4, PW.10 are also
not eye witnesses. It is not in dispute that accused
persons were not belongs to Scheduled Caste or
Scheduled Tribe. PW.1 has clearly deposed that she
belongs to Scheduled Caste. Mere proof of the caste of
PW.1 is not sufficient to hold that the accused persons
made caste based attack on the deceased. PW.1 had
improved her version by deposing that the accused No.1
and 2 have insulted them in the name of caste. In Ex.P1,
there is no such mention that the accused persons have
insulted PW.1 and her mother in the name of caste. The
improved version of PW.1 creates doubt about her
version. As discussed above, the evidence of PW.1, PW.2,
PW.4, PW.10 and evidence of other official witnesses are
not sufficient to hold that the accused persons have
S.C. No.1348/2013
83
committed the offences punishable u/s 302 r/w 34 of
IPC and u/s 3(2)(v) of SC/ST (POA) Act. On appreciation
of the entire evidence on record, I am of the opinion that
the prosecution has not proved beyond all reasonable
doubt that the accused persons have committed the
offences punishable u/s 302 r/w 34 of IPC and u/s 3(2)
(v) of SC/ST (POA) Act. The prosecution has not
established the scene of occurrence with cogent and
reliable evidence that on 25.8.2013 at about 4 PM the
accused persons assaulted the deceased with M.O.1 on
her head, legs, hands, back and caused her injuries. In
Ex.P28 also it is mentioned that history of assault by
some one detail not known. On an appreciation of the
entire evidence on record I am of the opinion that the
prosecution has not proved the charges levelled against
the accused for the offences punishable u/s 302 r/w 34
of IPC and u/s 3(2)(v) of SC/ST (Prevention of Atrocities)
Act beyond all reasonable doubt. In the absence of
S.C. No.1348/2013
84
cogent, reliable and corroborative evidence to prove the
charges, the accused are liable to be given benefit of
doubt and acquitted of the charges. Accordingly, I
answered Point No.1 and 2 in the Negative.
46. POINT NO.3: - In view of my findings on Point
No.1 and 2 and for the reasons stated I proceed to pass
the following
ORDER
Acting under Section 235(1) of Cr.P.C., the Accused No.1 M. Krishna and accused No.2 K.L. Jagadish are hereby acquitted for the offences punishable under Sec. 302 r/w 34 of IPC., and u/s 3(2)(v) of The Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act.
The bail bonds of the accused No.1 and 2and their sureties executed in this case shall stand cancelled. However the surety given in S.C. No.1348/2013 85 compliance of Sec. 437A of Cr.P.C., shall be in force till statutory period.
The properties seized in this case M.O.1 to M.O.8 are being worthless are ordered to be destroyed after completion of appeal period. The unclaimed Bajaj Scooter bearing No. CKM 7891 shall be confiscated to State. (Dictated to the Judgment Writer, transcribed by him, transcript corrected, signed and then pronounced by me in the open court on this the 5th day of September 2019.) (MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bengaluru.
A N NE X U R E
1.WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 : Varalakshmi
P.W.2 : Raju
P.W.3 : Jayalaxmi
P.W.4 : Uma
P.W.5 : Ismail
P.W.6 : S.P. Gangadhar
P.W.7 : Manjunatha Prasanna
P.W.8 : Nanjappa
P.W.9 : H.R. Shivamma
P.W.10 : Nagaraju
P.W.11 : D.D. Devakumar
P.W.12 : S.N. Gaonkar
P.W.13 : Venkatesh
P.W.14 : Sara Fathima
S.C. No.1348/2013
86
P.W.15 : Vijay Hadagali
P.W.16 : S.N. Gangadhar
P.W.17 : Dr. K.S. Pradeep
P.W.18 : S. Srikanth
P.W.19 : Mallikarjuna
P.W.20 : Dr. Malla Bhaskara Rao
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint lodged by PW.1 Ex.P1(a) : Signature of P.W.1 Ex.P.2 : Statement given by PW.3 Ex.P3 : Further Statement of PW.3 Ex.P.4 : Inquest Panchanama Ex.P4(a) : Signature of PW.4 Ex.P.5 : Seizure Panchanama Ex.P.5(a) : Signature of PW.5 Ex.P5(b) : Signature of PW.16 Ex.P5(c) : Signature of PW.19 Ex.P.6 : Covering Letter of AEE Ex.P.7 : Sketch Ex.P.7(a) : Signature of PW.6 Ex.P.8 : Mahazar Ex.P.8(a) : Signature of PW.7 Ex.P8(b) : LTM of Padmamma Ex.P8(c) : Signature of PW.18 Ex.P.9 : First Information Statement given by deceased Smt. Padmamma. Ex.P.9(a) : LTM of Padmamma Ex.P9(b) : Signature of PW.18 Ex.P.10 : Report given by PW.9 Ex.P.10(a) : Signature of PW.9 Ex.P.11 : Report given by PW.9 Ex.P.11(a) : Signature of PW.11 Ex.P12 : FSL Report Ex.P12(a) : Signature of PW.12 Ex.P12(b) : Signature of PW.14 Ex.P.13 : Sample Seal S.C. No.1348/2013 87 Ex.P.14 : Report of PW.13 Ex.P.14(a) : Signature of PW.13 Ex.P.15 : Report of PW.3 Ex.P.15(a) : Signature of PW.13 Ex.P.16 : Seizure Report Ex.P.16(a) : Signature of PW.14 Ex.P.17 : Village Accountant Report Ex.P.18 : Revenue Inspector Report Ex.P.19 : Opinion Report issued by PW.20 Ex.P19(a) : Signature of PW.14 Ex.P19(b) : Signature of PW.20 Ex.P.20 : Sample Seal Ex.P20(a) : Signature of PW.20 Ex.P.21 : FIR Ex.P21(a) : Signature of PW.15 Ex.P.22 : Requisition given by PSI to VII ACMM Ex.P.23 : PF Ex.P.23(a)(b) : Signature of PW.16 Ex.P.24 : P.M. Report Ex.P.24(a) : Signature of PW.16 Ex.P24(b) : Signature of PW.17 Ex.P.25 : PF NO. 120/2012 Ex.P.25(a)(b) : Signatures of PW.16 Ex.P.25 : FIR Ex.P25(a) : Signature of PW.18 Ex.P.26 : Further Statement of the deceased Padmamma Ex.P.26(a) : LTM of Padmamma Ex.P.26(b) : Signature of PW.18 Ex.P.27 : PF Ex.P.27(a) : Signature of PW.18 Ex.P.27(b) : Signature of PW.18 Ex.P.28 : Medical Record of NIMHANS Ex.P.28(a) : Signature of Dr. Raghavendra
3. WITNESSES EXAMINED FOR THE DEFENCE:
NIL S.C. No.1348/2013 88
4. DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D1 : Portion of Statement given by PW.10
5. DOCUMENTS MARKED FOR THE DEFENCE:
Nil
6. LIST OF MATERIAL OBJECTS:
M.O.1 : Stick
M.O.2 : Blood Swab
M.O.3 : Sweater
M.O.4 : Blouse
M.O.5 : Saree
M.O.6 : Petty coat
M.O.7 : Petty Coat
M.O.8 : Blood
(MOHAN PRABHU)
LXX Addl. City Civil & Sessions Judge & Special Judge, Bengaluru.
S.C. No.1348/2013 89 Judgment pronounced in the open court vide separate judgment.
ORDER Acting under Section 235(1) of Cr.P.C., the Accused No.1 M. Krishna and accused No.2 K.L. Jagadish are hereby acquitted for the offences punishable under Sec. 302 r/w 34 of IPC., and u/s 3(2)(v) of The Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act.
The bail bonds of the accused No.1 and 2 and their sureties executed in this case shall stand cancelled. However the surety given in compliance of Sec. 437A of Cr.P.C., shall be in force till statutory period.
The properties seized in this case M.O.1 to M.O.8 are being worthless are ordered to be destroyed after completion of appeal period.
(MOHAN PRABHU) LXX Addl. C.C & Sessions Judge & Spl. Judge, Bengaluru.