Bangalore District Court
State By vs Thilak on 16 April, 2021
IN THE COURT OF THE LXX ADDITIONAL CITY CIVIL
& SESSIONS JUDGE & SPECIAL JUDGE,
AT BENGALURU (CCH71)
PRESENT
SRI. SUBHASH SANKAD
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
C/c LXX Additional City Civil and Sessions Judge and
Special Judge, Bengaluru.
Dated this the 16th day of April, 2021
S.C.No.1465/2017
COMPLAINANT: STATE BY
Police Inspector,
Kamakshipalya Police Station,
Bengaluru.
(Rep. by Special Public Prosecutor)
V/s.
ACCUSED: 1. THILAK
s/o Bandi Kempegowda,
Aged about 36 years,
R/at No.405, 11th Main Road,
4th Cross, Srinivasanagar,
Sunkadakatte, Bengaluru - 91.
[Accused No.1]
2. PRADEEP @ BULLI,
s/o Thimmegowda,
Aged about 25 years,
R/at 2nd Cross, Opp. Mohan Talkies,
2 S.C.No.1465/2017
Lakshman Nagar, Sunkadakatte,
Bengaluru - 91.
[Accused No.2]
3. MAHESH KUMAR @ APPI
@ VANDRE,
s/o Manjunatha,
Aged about 24 years,
R/at Behind Apolo School,
Beside Ragi Mission,
Srigandada Nagar,
Sunkadakatte, Bengaluru.
[Accused No.3]
4. ABHILASH GOWDA @ ADHI
s/o Rajashekar,
Aged about 21 years,
R/at Behind Omshankthi Temple,
Sanjeevini Nagar,
Sunkadakatte,
Hegganahalli Road,
Bengaluru - 91.
[Accused No.7]
(A1 by Sri. SC., Advocate)
(A2 to 4 by Sri. MD., Advocate)
Date of Commencement of 15.08.2017
offences
Date of report of offences 16.08.2017
Name of complainant Smt. S. Mamatha
Date of recording of 02.03.2018
evidence
Date of closing of evidence 25.01.2021
3 S.C.No.1465/2017
Offence complained of U/s.302, 201, 120(B) of IPC &
U/s.3(2)(v) of Scheduled Caste
& Scheduled Tribes
(Prevention of Atrocities) Act.
Opinion of the judge Acquittal
JUDGMENT
This charge sheet is submitted by ACP., Vijayanagar Sub Division, Bengaluru against the accused for the offences punishable under Sections 302, 201, 120(B) r/w Section 34 IPC and under Section 3(2)(5) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.
2. The prosecution case is that complainant Smt.Mamatha, wife of deceased Muniyappa lodged complaint on 16.08.2017. It is alleged in the complaint that on 15.08.2017 since it was holiday her husband was at home. He received a phone call from one Tilak and left the house at 3.30 pm., saying that he is going to meet his friend Tilak. At about 6.30 to 7.00 hours the husband of the complainant told her over phone that he will come late and asked her not to wait for him. The deceased did not come to home even after late night. Many times she tried to contact her husband through phone. Though the phone was ringing her husband was not receiving the call. At about 12.30 to 1.00 pm., she went to R.T. Nagar police station to lodge complaint. The SHO insisted her to lodge the complaint on the next morning.
4 S.C.No.1465/20173. It is further stated that on 06.08.2017 morning at about 9.00 am., she went to police station. Police told her that they are in urgent work and insisted her to search for her husband in Bank where he is working. They went to bank and enquired the bank staff about her husband. Bank staff told her that her husband has not come and told her to search for her husband at Amruthahalli branch. When she went to Amruthahalli branch the bank staff told her that her husband has not come to the bank. Thereafter, she sent her son and his uncle Dayanand to Tilak's home to enquire about her husband. Inspite of searching at several places she could not trace her husband.
4. It is further stated that at 12.00 pm., she received information that her husband's car is parked near Malagala underpass. Her relatives have informed the police about the same and further informed that dead body of her husband was lying in a supine position in back seat. It is alleged that her husband was having monetary transaction with many people. He used to speak during night hours and he was forcing them to repay the loan. The names of these persons are Tilak, Hanumanthegowda, Krishnappa Anekal and Mohan. It is further alleged that her husband had told her that he is going to meet Tilak. It is Tilak and others who have murdered her husband. With regard to this incident the Station House Officer received complaint as per Ex.P1 and registered Crime No.355/2017 for the offences punishable under Section 302 5 S.C.No.1465/2017 IPC. Subsequently, the investigation is held and charge sheet is submitted.
5. Earlier the crime was registered for the offence punishable under Section 302 IPC. Subsequently, since the deceased was belonging to Scheduled Caste the provisions of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, were inserted and the case has been transferred to this court. The investigation in this matter is held and charge sheet is submitted. My predecessor has taken cognizance of the offences punishable under Sections 302, 201, 120(B) IPC and under Section 3(2)(v) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, and the copies of charge sheet were furnished to accused in compliance of Section 207 Cr.P.C.
6. The accused are in judicial custody and they have engaged counsel of their choice. The accused and their respective counsels were heard at the stage of hearing before the charge. Since there was prima facie material against the accused benefit of Section 227 Cr.P.C., was not given to the accused. Thereafter, charges for the offences punishable under Sections 302, 201, 120(B) IPC and under Section 3(2)(v) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, were framed and read over and explained to the accused. The accused have denied the charges levelled against them and claimed to be tried. Thereafter, the case was posted for trial.
6 S.C.No.1465/20177. The prosecution in all has examined 39 witnesses as P.W.1 to P.W.39. Exhibited documents at Ex.P1 to Ex.P129. M.O.1 to 31 are identified. After examining these witnesses the prosecution has closed its side. The statement of accused under Section 313 Cr.P.C., was recorded. The accused denied the incriminating circumstances appearing against them and they have not chosen to lead defense evidence.
8. I have heard the argument of learned Special Public Prosecutor and learned defense counsel.
9. In view of the Section 15 & 15A of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, the notice was issued to the complainant. The complainant was personally present and submitted that she adopts the argument addressed by the learned Special Public Prosecutor. Further, the complainant orally prayed to convict the accused.
10. Now the points that arise for my consideration are.
1. Is the death of deceased Muniyappa is a homicidal?
2. Whether the prosecution proves beyond reasonable doubt that the accused No.1 to 4 in furtherance of their common intention hatched conspiracy to murder deceased Muniyappa thereby committed an offence punishable under Section 120(B) r/w Section 34 IPC?
7 S.C.No.1465/20173. Whether the prosecution proves beyond reasonable doubt that on 16.08.2017 the accused No.1 to 4 in furtherance of their common intention have murdered deceased Muniyappa thereby committed an offence punishable under Section 302 r/w Section 34 IPC?
4. Whether the prosecution proves beyond reasonable doubt that the accused No.1 to 4 in furtherance of their common intention after murdering deceased Muniyappa have placed the dead body and the car near Malagala underpass and tried to cause disappearance of evidence screening themselves thereby committed an offence punishable under Section 201 r/w Section 34 IPC?
5. Whether the prosecution proves beyond reasonable doubt that the accused No.1 to 4 have committed an offence of murder knowing that the deceased belongs to Scheduled Caste which is punishable with death or for life imprisonment thereby committed an offence punishable under Section 3(2)(v) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act?
6. What Order?
11. My answer to the above points are: Point No.1: In the Negative Point No.2: In the Negative Point No.3: In the Negative Point No.4: In the Negative 8 S.C.No.1465/2017 Point No.5: In the Negative Point No.6: As per the final order for the following REASONS
12. Point No.1: The specific case of the prosecution is that deceased Muniyappa was working as Manager in M/s. Sudha Cooperative Bank. Accused No.1 had certain business transaction with the deceased Muniyappa and accused No.1 used to bring customers to the deceased. The deceased used to lend money to such persons on monthly interest basis and the accused No.1 used to get his share on percentage basis. However, due to default in making payment by the borrowers introduced by accused No.1, the deceased started approaching the accused No.1 to repay the said loan amount or to give him any disputed property document for the purpose of security, with an assurance that after getting the loan on the said property he would give 50% share to accused No.1. Accused No.1 had given papers but the deceased failed to give him share to accused No.1 as promised. In turn the deceased was forcing him to clear the loan amount. Due to this reason and in order to escape from the financial liability accused No.1 hatched a plan along with accused Nos.2 to 4 to kill the deceased.
13. It is further case of the prosecution that in execution of this plan accused Nos.1 & 2 purchased M.O.7 poison bottle from the shop of P.W.6 and kept it in farm house of accused No.1 and hatched a plan to kill the deceased at the farm house of accused 9 S.C.No.1465/2017 No.1. On 14.08.2017 the deceased had told accused No.1 to purchase a site for him. Accused No.1 had asked the deceased to come to Nagadevanahalli at Ring road to see the site. Accordingly on 15.08.2017 evening at about 4.00 pm., the deceased went to Amma Arch near Nice Road in his Maruthi car bearing Reg. No.KA04/MJ9846. At that time accused Nos.1 & 2 came there in their Innova car bearing No.KA02/MB1893. Accused No.1 insisted the deceased to go with accused Nos.2 to 4. Accused No.2 assured deceased to show the site. Thereafter accused Nos.2 to 4 took the deceased to Guest house of accused No.1 at Kaggalipura through Nice Road. After reaching the guest house accused Nos.2 to 4 made the deceased sit on the sofa. Immediately accused No.3 gripped the deceased from backside, accused No.4 gripped both the legs of deceased, the accused No.2 injected the poison into the deceased's mouth with M.O.12syringe. Since deceased did not die immediately accused No.3 strangulated the deceased with M.O.19. Thereafter, accused Nos.2 to 5 placed the dead body in the backseat of the car belonging to deceased bearing No.KA04/MJ9846. Accused No.4 drove the car, accused No.3 was sitting besides the driver seat. Accused No.2 led the car driven by accused No.4 in his motorbike. All the accused persons parked the car near Sumanahalli by placing the poison bottle on the right hand and mobile phone on the left hand thereby created a scene so as to make it to believe that the deceased himself has committed suicide by consuming poison. The case of the defense is one of complete denial.
10 S.C.No.1465/201714. The learned Special Public Prosecutor has argued that the prosecution has placed sufficient material to prove its case. There was a monetary transaction between the accused and the deceased Muniyappa. The Muniyappa was forcing the accused to repay the money. To dupe the money accused Nos.1 to 4 have hatched conspiracy to murder deceased Muniyappa and secured deceased Muniyappa on 15.08.2017 and with common intention to murder deceased Muniyappa and thereby created scene that deceased himself committed suicide. During the investigation the police were able to seize the incriminating articles at the disclosure made by the accused. She has further argued that though there are minor contradictions in the evidence of witnesses the same will not go to the core of the prosecution's case. With these argument she has prayed to convict the accused. Further, Special Public Prosecutor has relied on the following judgments.
1. 2004 (2) SCR 938
2. 2004 (4) KCCR SN 405 (DB)
3. 2015 (3) Crimes 152 (SC)
15. Per contra, the learned defense counsel argued that there are no eye witnesses to the case and the case solely rests on circumstantial evidence. The prosecution was required to form a chain of circumstances by linking the chain of events. The prosecution has neither examined a single witness nor have they established any circumstance to either show or infer that the accused had any sort of financial transaction with the deceased and 11 S.C.No.1465/2017 that the deceased was last seen alive in the company of the accused. It is further argued that the prosecution has also not able to establish that the accused No.1 conspired with accused Nos.2 to 4 to kill the deceased. Viewed from any angle, the prosecution has failed to prove the case against the accused with regard to any of the offences alleged to have been committed by the accused. The accused deserves to be acquitted. With this argument both the counsel have prayed to acquit the accused.
16. Going by the argument of the learned Special Public Prosecutor it is considered that the case is depending on the circumstantial evidence. Before appreciating the evidence placed on record, it is necessary to bear in mind the principles governing the appreciation of circumstantial evidence laid down by the Hon'ble Apex Court time and again.
i) The circumstance from which an inference of guilt is sought to be drawn must be cogently and firmly established.
ii) Those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused.
iii) The circumstances taken cumulatively should form a chain so complete that, there is no escape from the conclusion that,within all human probability the crime was committed by the accused and none else and;
iv) The circumstantial evidence in order to sustain conviction must be complete and 12 S.C.No.1465/2017 incapable of explanation on any other hypothesis than that of the guilt of the accused and such an evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
17. Bearing in mind the above principles, let me now consider as to what are the circumstances relied on by the prosecution and the evidence lead to prove the same.
18. On considering the entire material on record, it appears that the prosecution relies on the following 7 major circumstance to bring home the guilt of the accused.
i Homicidal death
ii. Motive. The accused were having
financial transaction with the deceased. The deceased was frequently asking for return of money. In order to escape from the financial liability the accused hatched conspiracy to eliminate deceased which constitutes to motive.
iii. Preparation. The accused purchased
M.O.7 poison bottle from the shop of
Puttahanumappa i.e., M/s. Ganesh
Fertilizers, M.O.12 injection syringe, M.O.13 and M.O.14 two pairs of hand gloves from the shop of P.W.7Rohit M/s.
Balaji Medicals, M.O.20 to M.O.22 three pairs of socks from M/s. Rohini Footwear shop of P.W.14 Ganaram which constitutes preparation.
13 S.C.No.1465/2017iv. Deceased going out from home at 3.00 P.M, on receiving phone call from accused No.1.
v. Deceased and accused were together from the time when the deceased left the home till his body was dumped in the place where it was found.
vi. Accused No.2 to 4 took the deceased to the guest house of accused No.1 at Kaggalipura through Nice Road.
vii. Recovery of incriminating articles on the disclosure made by the accused.
HOMICIDAL DEATH.
19. Since the defense has disputed the death of Muniyappa as homicidal, it is necessary to consider this circumstance first in order to answer point No.1. Further, the proof of homicidal death is an harbinger to prove the prosecution's case against the accused. Unless the homicidal death is proved by the prosecution, the Court is not in a position to ascertain who has committed such homicidal death of the deceased. It is settled principle of law that, whether the homicidal death is sought to be proved there must be clinching evidence leading to an inference that, the victim met with a homicidal death. However, the circumstances shall be considered with all human probabilities with reference to the homicidal death. Homicidal death itself presupposes hat the death is by means of killing and it is different from other types of death like natural death or accidental death or suicide death and other types of 14 S.C.No.1465/2017 unnatural death. If it is shown to the Court by means of materials on record that the deceased did not die any other types of death and there are probabilities to show that the deceased died a homicidal death that would suffice. Keeping this principle in mind, I will proceed to consider the evidence placed on record with regard to homicidal death.
20. Ex.P22 is the postmortem report of deceased Muniyappa. The prosecution examined P.W.13 Medical Officer namely Dr. Venkata Raghava, Professor & Unit Head, Department of Forensic Medicine Victoria hospital, Bengaluru, to prove Ex.P22 the postmortem report.
21. P.W.13 has issued Ex.P22 stating that there were as many as 11 injuries on various parts of the body. The injuries that are mentioned in Ex.P22 are.
1. Abrasion measuring 2cm X 0.1cm present over left side of forehead.
2. Abrasion measuring 0.5cm X 0.1cm present over inner aspect of right upper lip.
3. Abrasion measuring 1cm X 0.1cm present over inner aspect of right side of lower lip.
4. Abrasion measuring 1cm X 0.1cm present over inner aspect of left side of lower lip.
5. Abrasions 3 in number, curvilinear in shape, each measuring 0.2cm X 0.2cm present over right side of chin below the lower lip.
15 S.C.No.1465/20176. Abrasion measuring 2cm X 0.3cm present over right side of chin.
7. Abrasion measuring 0.1cm X 0.1cm present 3cm below the left ear lobule.
8. Abrasion measuring 1.2cm X 0.1cm present over front of right side of neck.
9. Abrasion measuring 0.5cm X 0.5cm present over top of right shoulder.
10. Abrasions, 2 in number, each measuring 0.5cm X 0.5cm present over inner aspect of lower third of right forearm.
11. Abrasion measuring 1cm X 1cm present over middle third of left leg.
22. P.W.13 has further stated that a transverse, incomplete ligature mark was present around the neck, below the level of thyroid cartilage, measuring 23cm X 0.5 cm. It was situated 7cms from the left ear lobule, 6.5cm from the chin and 7cm from the right ear lobule. Another transverse and incomplete ligature mark was present around the neck, 0.5cm front the first below the ligature mark measuring 35cm X 0.5cm. It was situated 8cm below the left ear lobule, 7cms below the chin, 8cm below the right ear lobule and 16cm from the occipital protuberance. The two ligature marks overlop to from a single ligature marks, 7cms below the left ear lobule and it is continuous from a length of 10cm toward the back of the neck. Both ligature marks were deficient on the right side of neck. The skin over the ligature mark is dry, dark, hard and parchmentised. On thorough examination of the body he has 16 S.C.No.1465/2017 stated that the death was due to "asphyxia as a result of ligature strangulation".
23. The defense tried to elicit that the death of deceased is an accidental death or suicidal death by putting a suggestion that generally asphyxia by stimulation could be homicidal or accidental or suicidal. P.W.13 says that it is mostly homicidal rarely occurs accidental but very rarely occurs suicidal. P.W.13 has denied the suggestion that in case of homicidal strangulation the genitalia will be swollen. P.W.13 has further denied the suggestion that the injuries found on the dead body are self inflicted. Further, the defense has crossexamined P.W.13 with regard to procedural aspects adopted while conducting the postmortem over the dead body of Muniyappa. The answers elicited from P.W.13 do give a clear picture that the homicidal death is not disputed seriously. All that has been elicited from P.W.13 is with regard to nature of injuries. After careful appreciation of evidence of P.W.13, it can be said that the external injuries found on the dead body give a clear picture that it is highly impossible that all these injuries can be self inflected. Further, the position of the dead body and how it was lying clearly indicate that unless there is a human intervention such situation would not arise. Further more, P.W.13 has categorically stated that the death was due to asphyxia as a result of manual strangulation. The word strangulation used by the doctors itself shows that it is not a suicidal death or accidental death. Human intervention is absolutely required for the purpose 17 S.C.No.1465/2017 of causing death by strangulation. With this it can be concluded that the death of Muniyappa is nothing but homicidal death.
24. Point Nos.2 to 5: Since these three points are interconnected with each other, for the sake of convenience, I have taken these points together for discussion and answer.
25. Before appreciating the evidence it is necessary to have a glimpse of the evidence given by all witnesses.
26. P.W.1 Mamatha is the complainant. She has stated in her evidence that on 15.08.2017 her husband left the house at 3.30 P.M., after receiving a call from accused No.1 saying that he is going to meet his friend Tilak at 3.00 P.M., in his car bearing No.KA04/MJ9846. At 6.30 P.M., her husband told her over phone that he is with accused No.1, both himself and accused No.1 going to meet another person and asked her not to wait for him. She has further stated that her husband did not return to home even after late night. She tried to make a call to her husband's phone from her phone. Though her husband's phone was ringing he did not receive the phone call. Thereafter, they intimated the said fact to their relatives and lodged the complaint before the R.T. Nagar police. She has further stated about visiting the bank of her husband and also enquiring his friends along with relatives about her husband. She has received the information that the dead body and car was found near Malagala underpass. She has further deposed that her husband was having monetary transaction with 18 S.C.No.1465/2017 the accused persons and she has a doubt on them it is the accused they have murdered her husband due to money borrowed by her husband.
27. P.W.2 Chethan, son of deceased Muniyappa has deposed that his mother told him that his father borrowed loan from Anekal Krishnappa and he has lent loan to accused Thilak, Muna, Hanumanthegowda. On 15.08.2017 his father left the house at 3.00 P.M., after receiving a phone call saying that he is going to meet one Thilak. On the same day by at about 5.11 pm., his father told his mother over phone that he is with Thilak and he will come late he insisted not to wait for him. Thereafter several times they tried to contact his father, his father did not receive a phone call and they searched mobile number of Krishnappa and the diary and dialed mobile of Krishnappa at 11.00 pm., Even Krishnappa did not receive the phone call, his mother told her brother about the incident, immediately his brotherinlaw Mahesh came to home. Himself and Mahesh went to R.T. Nagar police station, R.T. Nagar police insisted him to come in the next day. On 16.08.2017 they went to R.T. Nagar police station. P.W.2 has further stated about the searching of his father on various places including the Sudha Cooperative Bank at Amurthahalli branch. While they searching for his father they saw his father's car parked near Malagala Service Road. When they went near the car they saw that his father dead body was lying in a supine position in the back seat of the car with a poison bottle on the right hand and mobile phone at 19 S.C.No.1465/2017 his left hand. He has further stated that some one informed the police and Kamakshipalya police took the car along with dead body to Kamakshipalya police station.
28. P.W.3 Vijaya Kumar, brother of P.W.1 speaks about receiving a phone call from his sister and immediately he came to the house of the complainant along with his nephew. He searched for his brotherinlaw Muniyappa. On 16.08.2017 afternoon at about 12.30 hours he came to know that deceased Muniyappa is dead and he had gone along with P.W.1 to police station to lodge complaint. He has seen the dead body at Victoria hospital and he has given statement before the police and he came to know that his brotherinlaw deceased Muniyappa was having monetary transaction with Thilak, Anekal Krishnappa, Hanumanthegowda and Manu @ Mohan.
29. P.W.4 Manjunath, cousin brother of deceased Muniyappa states that after receiving a phone call he went to the house of the deceased at about 1.30 pm. Muniyappa and Parameshwara were there in the house. At the request of Muniyappa and Parameshwara, along with Parameshwara he went to Amruthahalli branch and he did not find Muniyappa there. On 16.08.2017 morning at about 8.30 am., he went along with Dayananda to search deceased Muniyappa and they searched for him for various places. While searching when they coming towards Sumanahalli they saw one Alto car. Chethan identified the said car as his father's car. When they went near the car they saw that 20 S.C.No.1465/2017 Muniyappa was lying dead on the back seat of the car with a poison bottle on the right hand and mobile phone on the left hand.
30. P.W.5 Udaykumar, known person to deceased has stated about searching for Muniyappa at various places at the request of P.W.1Mamatha. On the same day P.W.4 Manjunath told him over phone about the car parked near Malagala underpass. When he went to the place he saw that the police were already there and dead body of deceased Muniyappa was lying on the back seat of the car with poison bottle and mobile phone in his hands. He has further stated that in his presence the police drew panchanama as per Ex.P3 and recovered poison bottle and mobile phone as per M.O.7, M.O.8.
31. P.W.6 Putta Honnappa, owner of the fertilizer shop. He has not supported the case of the prosecution. He has states that about a year back the police had brought four persons along with him and showed him one poison bottle. After seeing that poison bottle he told that he sells these kind of poison bottle, and the same bottle available for everywhere he has not sold that poison bottle to any one. He has further stated that the accused in this case was not brought by the police on that day.
32. P.W.7 Rohith, according to the prosecution has sold M.O.12syringe and M.O.13 & M.O.14 hand gloves to accused. P.W.8 Hemanth, the employee of Balaji Medical Store has turned hostile to the prosecution. P.W.9 Junedh, owner of the Pedal 21 S.C.No.1465/2017 World Cycle Shop has turned hostile to the prosecution. However this witness has identified his signature at Ex.P2. He admits in his crossexamination that M.O.12syringe and M.O.13 & M.O.14 hand gloves are new one and they are unused.
33. P.W.10 Manjunatha, pancha witness to three mahazars drawn as Ex.P13, Ex.P14 and Ex.Ps15 has turned hostile to the prosecution. P.W.11 Arun. S, pancha witness to Ex.P12 has also turned hostile to the prosecution.
34. P.W.12 Mahadevaiah, PSI., Kamakshipalya police station has deposed about the receiving Ex.P1 the complaint and registering the FIR as per Ex.P17. He has further deposed about the going to the spot where the car and dead body of the deceased was found. He further states about the position in which the dead body was lying and articles that were present along with dead body in the car. He has seized M.O.7 to M.O.11, poison bottle, Sumsung mobile and two SIM cards and slipper under panchanama as per Ex.P3. He has further stated that he secured Ambulance to the place and sent the dead body to the Victoria hospital in the Ambulance. He has further stated about the recording statement of C.W.7 and C.W.8 and also prepared inquest mahazar on 17.08.2017 at Victoria hospital as per Ex.P20 in presence of pancha witness and he has handed over the case file to C.W.30 for further investigation.
22 S.C.No.1465/201735. P.W.14 Ganaram, owner of Rohini Footwear shop says that Kamakshipalya police had brought four accused persons in his shop and asked whether the accused had purchased socks from his shop and he has stated that the some had purchased M.O.20 and M.O.21 socks from his shop. However, he has not identified the accused persons.
36. P.W.15 Krishnappa has turned hostile to the prosecution. P.W.16 S.G. Prasanna Kumar, Election Superintendent, Yelahanka, speaks about issuing the caste verification of P.W.1 as per Ex.P25 certifying that P.W.1 belong to Adhi Dravida community which is Scheduled Caste. P.W.17 Hitendra Kumar R.H., speaks about apprehending accused Abilash Gowda and producing him before I.O. along with H.C. Kumar. P.W.18 Kiran Kumar, P.C7469, Kamakshipalya police station has stated about apprehending the accused Mahesh Kumar and Pradeep and producing them before I.O. along with H.C. Bettaswamy gowda and P.C. Vasanthkumar.
37. P.W.19Rajanna, H.C.7625, Kamakshipalya police station has deposed about forwarding the dead body to P.W.13 Dr.Venkata Raghava and after conducting the postmortem he has handed over the dead body to his relatives and received the acknowledgement and collected the postmortem report from the doctor along with sealed cover containing clothes, viscera bottle, nails clipping of deceased with sealed cover.
23 S.C.No.1465/201738. P.W.20 Carnal S.T. Reddy, General Manager, Nice Company, Toll operation. This witness has supported the prosecution case stating that after receiving the requisition from P.W.25 he has issued Ex.P29 photograph to show that car bearing No.KA04/MJ9846 from the toll. P.W.21 Dinesh B.V., P.C.11512, R.M.C. Yard police has deposed that as per the direction issued by P.W.25 and received four sealed articles from P.W.30 and gave it to FSL, Madivala and received the acknowledgment and submitted a report as per Ex.P35 and Ex.P36.
39. P.W.22 Harish Kumar, H.C.7697. His evidence is to the effect that as per the direction of P.W.25 he along with P.C. 15464 has given 21 sealed articles to FSL, Madivala and received the acknowledgment and submitted report as per Ex.P38 and Ex.P39. P.W.23 Parameshwar Hegde, Dy. S.P. He is an Investigating Officer, conducted the part of the investigation. He has stated that on 10.11.2017 he has received the caste certification report from Tahasildar, Bengaluru as per Ex.P41 and Ex.P42 and also received caste verification report of the complainant as per Ex.P25 and he has submitted the charge sheet against the accused.
40. P.W.24 Kiran.V, PSI, this witness has assisted P.W.25 in the process of investigation. He has stated that on 28.08.2017 as per the direction of P.W.25 he apprehended the accused Nos.2 & 3 and produced them before P.W.25 and submitted report as per Ex.P43. P.W.25 Venu Gopal, Investigating Officer in this case has deposed about conducting the major portion of the investigation. He 24 S.C.No.1465/2017 has deposed about arresting the accused persons and recording their voluntary statement and recovered the incriminating articles at the disclosure made by the accused under panchanama as per Ex.P39 dated 27.08.2017, Ex.P48 spot mahazar, Ex.P15 recovery panchanama dated 28.08.2017, Ex.P16 recovery panchanama dated 28.08.2017, Ex.P68 recovery panchanama dated 02.09.2017.
41. P.W.26Chandru, pancha witness to Ex.P48 and P.W.27 Jagadeesh, pancha witness to Ex.P39 have turned hostile to the prosecution.
42. P.W.28 Stanly, Nodel Officer, Bharathi Airtel. This witness has supported the prosecution case stating that he has issued call details and customer application form pertaining to mobile Nos.9686848262, 9591677270, 9900991072 and 8749006846 from 01.08.2017 to 16.08.2017 as per Ex.P74, Ex.P75, Ex.P76, Ex.P77 and Ex.P78 and also issued a certificate as per 65(b) of the Information Technology Act as per Ex.P80.
43. P.W.29 Dr. Gundamma Patil, Senior Scientific Officer, Toxicology Section, FSL Madivala, Bengaluru has deposed about subjecting the viscera to chemical examination and issued certificate as per Ex.P81. P.W.30 Savitha. S, Senior Scientific Officer has deposed about subjecting M.O.1 to 7, 12, 13, 14, 17, 18, 20, 22, 29, 30, 31 to chemical examination and issued certificate as per Ex.P82.
25 S.C.No.1465/201744. P.W.31 Chethan, pancha witness to Ex.P12, P.W.32 Shiva Kumar and P.W.33 Manjunath, pancha witnesses to Ex.P68, the seizure mahazar under which M.O.12, M.O.21, M.O.29, M.O.31 are stated to have been recovered, have turned hostile to the prosecution.
45. P.W.34 Ravi Narona, Nodel Officer, Tata Tele Services Ltd., Bengaluru states that at the request of the Investigating Officer, he has issued call details from 01.08.2017 to 16.08.2017 and customer application form pertaining to mobile No.7411244418 and 8867685827 as per Ex.P98 to 104. P.W.35 K.R. Kumar, P.C. 6012 has deposed about apprehending the accused No.4 and produced him before the Investigating Officer and submitted the report before P.W.25. P.W.36M.R. Harish has deposed about conducting part of the investigation. P.W.37 Koushik Murugesh deposed about issuing call details, customer application form pertaining to mobile Nos.8217653788 and 8217763819 as per Ex.P119 to 123.
46. P.W.38 Prashanth, Nodel Officer, Vodafone Idea Ltd., has deposed about issuing customer application form and call details pertaining to mobile No.9916667288 as per Ex.P125 & Ex.P126 and issued certificate as per Section 65(b) of Indian Evidence Act, as per Ex.P127.
47. P.W.39 Narasimha Murthy, pancha witness to three mahazar Ex.P40, Ex.P50 and Ex.P60 has turned hostile to the prosecution.
26 S.C.No.1465/201748. On perusal of the above evidence, it is seen that the evidence of some of the witnesses only is available to the prosecution. The witnesses have turned hostile to the prosecution's case to certain circumstance are of no avail to the prosecution. Though the prosecution has crossexamined these witnesses nothing beneficial could be elicited from these witnesses. In this background, I will now proceed to discuss each and every circumstance in detail to ascertain whether the prosecution has succeeded in bringing home the guilt of the accused.
MOTIVE.
49. The motive alleged in this case as could be seen from the evidence led by the prosecution is that the deceased Muniyappa was working as Manager in Amruthahalli of M/s.Sudha Cooperative Bank. The accused No.1 had certain business transaction with the deceased Muniyappa and accused No.1 used to bring customers to the deceased and the deceased used to lend money to such persons on monthly interest basis and the accused No.1 used to get his share on percentage basis. However, due to default of payment by the borrowers introduced by the accused No.1, the deceased started approaching the accused No.1 to repay the said loan amount and the deceased approached the accused No.1 to give him any disputed property document for the purpose of security with an assurance that after getting the loan on the said property he would give 50% share to accused No.1. The accused No.1 had given papers but the deceased failed to give him share to 27 S.C.No.1465/2017 the accused No.1 as promised in turn the deceased was forcing him to clear the loan amount. Due to this reason and in order to escape from the financial liability the accused No.1 hatched a plan along with accused Nos.2 to 4 to kill the deceased.
50. So far as this circumstance is concerned, the prosecution relies on the evidence of P.W.1 and P.W.2. P.W.3 to P.W.5 are the hearsay witnesses. Their evidence is of no avail to the prosecution. P.W.1 has stated in her evidence that her husband was having financial transaction with many people. Frequently he was talking with those persons over phone. The accused are the persons who were having financial transaction with her husband. Her husband was demanding money from the accused No.1. Since accused No.1 did not pay the money, her husband forced him to give the money and also insisted him to clear the loan amount. In order to escape from the financial liability the accused have murdered her husband. P.W.2 son of P.W.1 has also supported the version of P.W.1.
51. In the crossexamination, P.W.1 has stated that she heard her husband talking with accused No.1 over phone to clear the loan. She has further stated that she does not know how much amount is owed by the accused to her husband, her husband was in a habit of writing the diary. In the said diary he has mentioned the names of the persons to whom he has lent the money and from whom he has to receive the loan. She has further stated that during the investigation the police have collected the diary of her husband.
28 S.C.No.1465/2017P.W.1 has admitted in her crossexamination that her husband has mentioned the names of the accused Nos.1 and 2 in his diary and she does not know whether the names of accused Nos.3 and 4 are mentioned in the diary. Her husband had mentioned the names of persons in the diary she has given the said diary to police. There was financial transaction between the accused and the deceased, to escape from the financial liability they have committed a murder of deceased. It is necessary that the prosecution should place materials in this regard. Except the evidence of P.W.1 and P.W.2 no other evidence is placed by the prosecution to prove the financial transaction between the accused and the deceased. P.W.1 has categorically stated in her evidence that her husband has mentioned the names of the accused Nos.1 and 2 in his diary. She has specifically stated that the police have collected the said diary during the course of the investigation. When it is so the diary is a material evidence to the prosecution case. Unfortunately, and it is astonishing that though P.W.1 has stated that during the course of investigation the police have collected the diary, the said diary is not produced before the court. The diary which is stated to have been maintained in the regular course of business by the deceased is relevant to prove the financial transaction between the deceased and accused Nos.1 to 4 as per Section 34 of Indian Evidence Act. There is no explanation by P.W.25 the I.O. in his crossexamination for not producing diary before the court. P.W.25 has given evasive answers in this regard.
29 S.C.No.1465/201752. Further, since P.W.1 has specifically stated that her husband was having financial transaction with the accused and he has mentioned the names of the accused Nos.1 and 3 in the diary and in her crossexamination she has stated that she does not know what is the amount borrowed by the accused Nos.1 and 2. She has further stated that her husband has mentioned several names in the diary and she does not know the names of those persons in the diary and she does remember the names of only accused Nos.1 and
2. Again in the absence of any corroborative evidence with regard to financial transaction it cannot be said that the prosecution has established motive factor. Therefore, I have no other go either to hold that the prosecution has failed to prove this circumstance.
PREPARATION.
53. It is the case of the prosecution that accused Nos.1 and 4 have hatched conspiracy to eliminate the deceased and they also decided to create a scene that deceased himself has committed a suicide by injecting the poison into his mouth through syringe. Accused Nos.1 and 2 have purchased M.O.7poison bottle from M/s. Ganesh Fertilizers, Jigani, M.O.12 injection syringe, M.O.13 & M.O.14 two pairs of hand gloves from Balaji Medicals, M.O.20 to M.O.22 three pairs of socks purchased from M/s. Rohini Footwear. The I.O., has stated in his evidence that on the disclosure made by the accused Nos.1 to 4 he has recovered M.O.7, M.O.12 to M.O.14, M.O.20 to M.O.22. He has further stated that the accused volunteered before him to lead him to the shops where they have 30 S.C.No.1465/2017 purchased the socks. According to him the accused led himself and his official and pancha witnesses to the place where these material objects are purchased and at their instance he drew panchanama as per Ex.P1 to Ex.P3, and recovered these material objects.
54. It is evidence of P.W.7, P.W.8, P.W.9 and P.W.14 which needs to be considered to prove the alleged preparation. P.W.6 Puttamallapa is the owner of Ganesh fertilizer shop from whose shop M.O.7poison bottle was purchased. According to the prosecution, P.W.6 is the star witness to prove the purchase of M.O.7poison bottle. P.W.6 has turned hostile to the prosecution. He has supported the prosecution to the extent that the police about a year back had brought four persons along with them and showed him one poison bottle. Only to this extent he has supported the prosecution. He has further stated in his evidence that after seeing M.O.7poison bottle he said that he sells such poison bottle, the same is available in all the shops and he has not sold this particular bottle to anybody. And he has not identified the accused. He has categorically stated that the persons who had brought by the police on that particular day are not the accused persons.
55. P.W.7Rohit, owner of Balaji Medicals, P.W.8 Hemanth, employee of Balaji Medicals are the witnesses to prove the purchase of M.O.12 and M.O.13 & M.O.14. As per the prosecution M.O.12 and M.O.13 & M.O.14 were purchased from the shop of Balaji Medicals by accused Nos.1 and 2. Both P.W.7 and P.W.8 have turned hostile to the prosecution. Though P.W.7 has 31 S.C.No.1465/2017 identified accused Nos.3 and 4 but he does not admit giving any hand gloves and syringe to accused Nos.3 and 4. P.W.8 has not identified the accused and he denies selling of M.O.12 to M.O.14 to accused Nos.3 and 4. Again the evidence of these witnesses is not available to the prosecution.
56. P.W.14 Ganaram, owner of M/s. Rohini Footwear, who according to the prosecution sold M.O.20 to M.O.P22 three pairs of socks to the accused, has also turned hostile to the prosecution. To some extent this witness has supported the prosecution. He has stated that four persons had purchased socks from his shop and he has sold M.O.20 to M.O.22 from his shop. However, he did not identify the accused and he has categorically stated that the persons who were brought to his shop on that day are not the accused persons.
57. The Special Public Prosecutor has crossexamined these witnesses at length however, nothing supportive to the prosecution case could be elicited from these witnesses. From a careful appreciation of the evidence of P.W.25 it is clear that it is evidence of P.W.6, P.W.7, P.W.8 and P.W.14 which is very much necessary to prove the preparation. None of these witnesses have supported the prosecution. Though prosecution has crossexamined these witnesses nothing supportive to the prosecution could be elicited from these witnesses. Under such circumstance, I hold that the evidence led on behalf of the prosecution regarding preparation 32 S.C.No.1465/2017 to commit the murder of deceased Muniyappa is unworthy of credence. The prosecution has failed to prove this circumstance.
The deceased going out from home at 3.00 pm., after receiving a phone call from accused No.1.
58. The case of the prosecution so far as this circumstance is concerned is that the deceased left the house on 15.08.2017 after receiving phone call from accused No.1. The prosecution has examined Service provider of the SIM cards used by the deceased and the accused No.1. The service providers have produced the call details used by the accused and the deceased. However, these call details do not depict conversion between the accused and deceased at the relevant point of time. Though the prosecution has produced the call details and the customer application form of SIM card same does not show the names of accused and there was a conversion between the accused and the deceased. With this it can be concluded that the prosecution has failed to prove that the deceased left the house only at the call of accused No.1.
The deceased and the accused Nos.2 to 4 were together from the time when the deceased left the home till his body along with car was dumped near Malagala underpass.
59. The prosecution relies on the evidence of I.O., and Ex.P120 to Ex.P122. As per the prosecution at the call of accused No.1 the deceased left the home and went to meet accused No.1 at 33 S.C.No.1465/2017 Nagadevanahalli at Amma Arch near Nice Road. From there accused No.1 sent the deceased with accused Nos.2 to 4. Accused Nos.2 to 4 took the deceased to the guest house of accused No.1 at Kaggalipura through Nice Road. In the guest house of accused No.1 accused Nos.2 to 4 murdered deceased Muniyappa and placed the dead body along with car near Malagala underpass. Admittedly, the prosecution case is completely rest on the circumstantial evidence. When it is so the prosecution ought to have produced the relevant material to prove this circumstance. The prosecution places relies on the call details of SIM card of accused No.1 and deceased. Absolutely there is no material such as tower location or any other material to show that the deceased and accused were together at the relevant point of time. Under such circumstance, I have no other go either to hold that the prosecution has failed to prove this circumstance also.
Accused No.2 to 4 took the deceased to the guest house of accused No.1 at Kaggalipura through Nice Road.
60. As regards this circumstance, the prosecution relies on the evidence of P.W.25 and P.W.20 S.T. Reddy, General Manager, Toll Operator, Nice Road and Ex.P32 CCTV footage printout of Nice road. P.W.20 has stated in his evidence that at the request of I.O., he has issued CCTV footage dated 15.08.2017. On 15.08.2017 a car bearing No. KA04/MJ9846 passed and he has produced snap shot photo as per Ex.P32 and he has identified the Nice toll receipt which was given at that point of time and xerox copy of the receipts 34 S.C.No.1465/2017 are produced as per Ex.P33 and Ex.P34 and photographs, screen shot of Nice toll photo produced at Ex.P31 and Ex.P32. He has further stated that the car bearing No.KA04/MJ9846 has passed through their toll plaza No.5/17 on 15.08.2017 evening at 4.20.10 seconds.
61. According to the prosecution the accused Nos.2 to 4 took the deceased to the guest house of accused No.1 through the Nice Toll Plaza. Ex.P31 and Ex.P32 are the photographs which go to show that car bearing No.KA04/MJ9846 has passed through this toll plaza. P.W.20 has been examined to prove Ex.P31 and Ex.P32. The prosecution got marked unclear toll receipt as Ex.P33 and photocopy of toll receipt as Ex.P34. It is necessary to mention here that Ex.P31 and Ex.P32 photographs were marked subject to the objection raised by the defense. The objection is with regard to nonfurnishing of certificate under Section 65B of the Indian Evidence Act. In this background I will proceed to discuss the evidence of P.W.20.
62. In the crossexamination P.W.20 has admitted that whenever they take a printout of a vehicle which passes through the toll gate date and time also appear on the said printout. He has further admitted that no date and time appear in Ex.P31 and Ex.P32. However, he states that they are having snap shot about the date and time. He has further admits that he cannot tel whether the car was entering the toll or exiting the toll and there is no mention about the same in Ex.P31 and Ex.P32. When it is 35 S.C.No.1465/2017 stated that the date and time appear on the photo taken at the toll plaza, the date and time was also ought to have appeared in Ex.P31 and Ex.P32. There is no explanation by P.W.20 as to why the date and time is not appearing on Ex.P31 and Ex.P32. P.W.20 further states that it is not mentioned in Ex.P31 and Ex.P32 whether the vehicle was entering the toll or exiting the toll. Though it can be believed that the car bearing No. KA04/MJ9846 has passed through Nice Toll plaza the same cannot be believed passing of the said car at the relevant point of time. These two aspects raise serious doubt on the prosecution's case with regard to this circumstance.
63. Further, P.W.20 has admitted that he has taken Ex.P31 and Ex.P32 from computer at toll plaza which is an electronic record. As per Section 65B of Indian Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer is deemed to be a document. However, the following conditions must be fulfilled Section 65B(2) of Indian Evidence Act.
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
36 S.C.No.1465/2017(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
64. In the case in hand except Ex.P31 and Ex.P32 no other requirement is furnished. Further, it is mandatory that the person must issue certificate in respect of the information which he has furnished as Ex.P31 and Ex.P32 are not obtained by original source. In the present case no such certificate is forth coming. Under such circumstances it cannot be said that the information i.e., Ex.P31 and Ex.P32 furnished by P.W.20. Ex.P31 and Ex.P32 are not in accordance with Section 65B of Indian Evidence Act and the same cannot be admissible. With this it can be held that the prosecution has failed to prove this circumstance also.
37 S.C.No.1465/2017RECOVERY.
65. The case of the prosecution so far as this circumstance is that the investigating officer has recovered incriminating articles on the disclosure made by the accused persons. Since various material objects are stated to have been recovered it is better to discuss recovery of those material objects at the instance of each of the accused.
i) Recovery of M.O.23 white colour TShirt, M.O.24 Full sleeves TShirt, M.O.25 Samsung Galaxy A7 mobile, M.O.17 and M.O.18 two pen drives, Innova car bearing No. KA02/MB1893 at the instance of accused No.1.
66. The prosecution's case with regard to this recovery is that accused No.1 voluntarily surrendered before the V Addl. Chief Metropolitan Magistrate Court, Bengaluru and he was remanded to judicial custody. Thereafter he was taken to police custody by P.W.36 from 23.08.2017 to 01.09.2017. Accused No.1 has given statement before P.W.36 as per Ex.P118 on 23.08.2017. Thereafter P.W.25 has taken over the investigation. P.W.25 secured the presence of P.W.10 and P.W.27. Thereafter, accused No.1 lead P.W.25 and his staff, P.W.10 and P.W.27 to Haneef Farm at Jigani Road. Accused No.1 himself opened the gate, he took P.W.25 and panchas to a room in the first floor and took M.O.23 and M.O.25 two shirts from the beuro gave it. P.W.25 saying that he had worn these shirts at the time of committing the offence. He also gave M.O.28Samsung Galaxy A7 mobile saying that the said phone was 38 S.C.No.1465/2017 used by him. There were two SIM cards in the said mobile, those SIM cards were used by him while talking deceased Muniyappa with him.
67. It is further case of the prosecution that accused No.1 lead P.W.25 the investigating officer and P.W.10 and P.W.27 to another room and said that that is the place where they murdered Muniyappa. Accused No.1 further told to P.W.25 the CCTVs are installed surrounding the building and gave it to P.W.25 a DVD. It is further stated that accused No.1 told P.W.25 that the CCTVs are still in working condition. At the instance of accused No.1 P.W.25 has copied the video clipping from 14.08.2017 8.00 AM to 15.08.2017 11.59.59 hours in a pen drive and P.W.25 seized the said pendrive at the instance of accused No.1 in presence of P.W.10 and P.W.27 under mahazar as per Ex.P13.
68. The prosecution relies on the evidence of P.W.25 - the investigating officer and the pancha witnesses P.W.10 and P.W.27 in this regard. Let me now consider the evidence of the Investigating Officer P.W.25 so far as this aspect is concerned.
69. During the course of crossexamination, P.W.25 has admitted that P.W.36 had taken accused No.1 to custody on 23.08.2017 and accused No.1 had given statement on 23.08.2017 before P.W.36. After taking accused No.1 to custody P.W.36 had taken accused No.1 to the said place and he had also conducted investigation in the said place. After conducting the investigation 39 S.C.No.1465/2017 the place was not kept under surveillance. P.W.25 has further admits that before accused No.1 lead him to the guest house he had visited the said guest house. At that time he had not gone with the accused No.1. He has further admits that he has not observed the presence of accused No.1 in the video at M.O.17 and M.O.18 pen drives and he has not given required certificate for the same.
70. It is necessary to mention here that to be an effective recovery the recovery must have been made at the instance of the accused. The disclosure and the recovery must be within the exclusive knowledge of the accused. In the instance case P.W.25 has admitted that before the accused No.1 lead him to the said place he had visited the place and at that time accused No.1 was not with him. With this it can be said that the place in which Ex.P13 recovery mahazar is drawn was already know to P.W.25. Further, it is necessary to mention here that as could be seen from the evidence of P.W.36 the statement of accused wherein the accused No.1 has given statement as per Ex.P18, was recorded on 23.08.2017 and the alleged recovery was effected on 27.08.2017. P.W.25 is not the officer who has recorded the statement of accused No.1. Before handing over the case file to P.W.25 for further investigation, P.W.36 had conducted investigation in the place where Ex.P13 is drawn and M.O.23, M.O.24 and M.O.25 are recovered. All these aspects creates a doubt in the case of the prosecution in respect of the recovery made on the disclosure made by the accused No.1. More so, P.W.10 and P.W.17 pancha 40 S.C.No.1465/2017 witnesses to the recovery mahazar have turned hostile to the prosecution. Both these witnesses have denied the recovery of these material objects in their presence. They further stated that they have put their signature to Ex.P13 in the police station. With this it can be held that the recovery on the disclosure made by the accused No.1 is not proved.
ii) Recovery of M.O.26 Lenovo mobile and Access Bike bearing Reg. No.KA05/JT859 on the disclosure made by accuse No.2. M.O.27Samsung mobile, M.O.28 Itel mobile, M.O.19 Plastic rope, M.O.13 and M.O.14 hand glove, M.O.20, M.O.21 and M.O.2 three pairs of socks, on the disclosure made by the accused Nos.2 and 3.
71. The case of the prosecution with regard to this circumstance is that Investigating Officer arrested accused Nos.2 and 3 on 28.08.2017. Accused Nos.2 and 3 have given voluntary statement before P.W.25 as per Ex.P46 and Ex.P47. He secured the presence of P.W.10 and P.W.39 Narasimhamurthy. Thereafter accused Nos.3 and 4 lead P.W.25 and P.W.10 and P.W.39 near Nayandahalli junction. Accused Nos.2 and 3 showed him a motor bike bearing Reg. No.KA05/JT859, P.W.25 seized the said bike under panchanama as per Ex.P16 in presence of P.W.10 and P.W.39. Accused No.2 was also present at that time produced a toll receipt and the photocopy of the receipt. P.W.25 recovered both the 41 S.C.No.1465/2017 receipts as per Ex.P33 and Ex.P34. Accused No.2 also produced bus pass as per Ex.P56.
72. The prosecution relies on the evidence of Investigating Officer. P.W.25 and P.W.10 and P.W.39. The defense of the accused in this regard is absolute denial. It is necessary to mention here that P.W.10 and P.W.39 pancha witnesses to recovery mahazar Ex.P16 have turned hostile to the prosecution. These two panchas have turned hostile to the prosecution. These two panchas have denied the recovery in their presence, and they have stated that they have signed the mahazar in the police station. Further, in the chief examination P.W.25 stated that accused No.2 has given disclosure statement before him as per Ex.P46 stating that he will produce Access motorbike Reg. No.KA05/JT859. However, it is stated by P.W.25 and as could be seen from the material that this Access motorbike is produced by accused No.3 and the receipt in all produced by accused No.2. When the disclosure statement is made by accused No.2 and the recovery is made at the instance of accused No.3 the recovery cannot be an effective recovery. More so, P.W.10 and P.W.39 who are pancha witnesses to this recovery have turned hostile to the prosecution. In their crossexamination they have denied the recovery in their presence and they have stated that they have signed Ex.P36 in the police station. With this it can be held that the prosecution has failed to prove the recovery at the instance of accused Nos.2 and 3.
42 S.C.No.1465/2017iii) Recovery of M.O.12Syringe, M.O.13 and M.O.14 two pair of hand gloves, M.O.20 to M.O.22 - socks, M.O.29pillow, M.O.30 - a pair of hand gloves and M.O.31mop set, at the instance of accused Nos.2 to 4.
73. The prosecution case in this regard is that accused Nos.2 to 5 have volunteered before the I.O. to lead them to the guest house and show the place and produce all the articles used to murder Muniyappa.
74. The prosecution relies upon the evidence of P.W.6, P.W.7, P.W.8, P.W.10, P.W.11, P.W.14, P.W.32, P.W.33 and P.W.39. P.W.25 states that as per their voluntary statement accused lead himself and pancha witnesses to the guest house and produced all the material objects, and he seized those objects under panchanama as per Ex.P14 to Ex.P16.
75. P.W.6 is the witness who sold M.O.7poison bottle to accused Nos.1 and 2. P.W.6 is the owner and P.W.7 is employee of Balaji Medicals. According to the prosecution he sold M.O.12 injection syringe and M.O.13 and M.O.14two pairs of hand gloves to the accused. P.W.14owner of M/s. Rohini Footwear from where shop three pairs of socks M.O.20 to M.O.22 are purchased, have turned hostile to the prosecution. P.W.6 and P.W.8 have denied the selling of M.O.12, M.O.13 and M.O.14 and they have not even identified the accused. Further, though P.W.14 admits the selling of three pairs of sock - M.O.20 to M.O.22, he has denied the selling 43 S.C.No.1465/2017 of those socks to the accused. Further more, P.W.6 and P.W.8 have stated that the persons whom the police had brought to their shops are not the accused. None of these witnesses have identified the accused. More so, P.W.10 and P.W.39 who are pancha witnesses to Ex.P13 to Ex.P16 have also turned hostile to the prosecution. These witnesses not only denies the recovery of these articles they also stated that they have put their signature to these documents in the police station. Though the learned Special Public Prosecutor has turned hostile to the prosecution nothing beneficial to the prosecution could be elicited from these witnesses. P.W.9, P.W.11, P.W.10 and P.W.39 have also denied the copying the videos in the pendrives in their presence and recovery of the pendrives as per M.O.16 to M.O.18.
76. Further, there is no proper evidence by the I.O. so far as at whose instance the particular article is recovered. The recovery is a joint recovery there is no specific evidence with regard to recovery of those articles. I.O. has given omnibus statement in this regard. Further, he has given evasive answers when he was asked to specify his evidence. There arise a serious doubt with regard to recovery of these articles. Further, P.W.7 admits in his evidence that M.O.12syringe and M.O.13 & M.O.14 hand glove are new one and they are unused. P.W.25 also admits the version of P.W.7. P.W.25 the I.O. who has recovered these material objects admits that these material objects are new one and unused. The version of the prosecution that these material objects were used 44 S.C.No.1465/2017 while commission of the offence by the accused and M.O.12 was containing poison. P.W.30 Smt. Savitha. S., also states in her evidence that injection syringe was responded to the presence of the poison in the chemical examination conducted by her. When it is so M.O.12 produced before the court is recovered by the I.O. is shown to be new one and the same cannot be considered as it is recovered by P.W.25 at the instance of the accused. With this it can be held that the prosecution has failed to prove the circumstance of recovery of incriminating materials on the disclosure made by the accused Nos.1 to 4.
77. It is necessary to mention here that Ex.P14, Ex.P15 and Ex.P48 are the seizure mahazar under which the material objects are recovered. All these mahazars are drawn on 28.08.2017. Ex.P14 was drawn near Kamakshipalya police station between 19.00 PM., to 20.00 P.M., hours. Ex.P15 was drawn at the first floor of the Basaveshwra Nagar police station between 19.30 P.M., to 20.30 P.M. Ex.P48 was prepared in front of Kamakshipalya police station between 20.00 P.M., to 20.40 P.M. As it is argued by the learned defense counsel there is no time gap in preparing these panchanamas. P.W.10 and P.W.39 are the pancha witnesses to all these three panchanamas. Both these witnesses have stated in their evidence that they have signed these documents in Kamakshipalya police station. They were engaged in the painting works on that day, at the instance of P.W.25 they have signed these panchanamas. When the I.O. was questioned about this during his 45 S.C.No.1465/2017 crossexamination he has given evasive answers. Looking into the evidence of P.W.10 and P.W.39 and the fact that the place and time of preparing these panchanama was overlapping there arise a doubt with regard preparing of these panchanama under which some incriminating materials are seized.
78. P.W.2 Chethan s/o Muniyappa has stated in his evidence that the police took his father's dead body to Kamakshipalya police station in his case itself. He states as 'ಪಪಲಪಸರರ ಬಬದರ ನನನ ತಬದದಯ ಶವ ಇದದ ಕಕರನಲಲಯಪ ಕಕಮಕಕಕಪಕಳಳ ಪಪಲಪಸಸ ಠಕಣದಗದ ತದಗದದರಕದಕಬಡರ ಹದಕಪದರರ'. P.W.4 Manjunath also states the same thing.
P.W.12 PSI, is the police officer who was present at the place where the dead body and the car was found, it is he who has prepared Ex.P3. He states that he secured the Ambulance to the place and sent the dead body to Victoria hospital. P.W.3 - Vijaykumar states that the police had taken the dead body to Victoria hospital. The contradiction in the evidence of these witnesses raises doubt with regard to presence of P.W.2 and P.W.3 in the scene of occurrence and the evidence of P.W.12.
79. Summing up the entire case of the prosecution as discussed herein above. Ex.P1 complaint is filed after due deliberation. It is also evident from the prosecution material that before the information about finding of dead body reached P.W.1 Mamatha the police had already there and the dead body was also taken to Victoria hospital. The motive factor, which I have discussed, is very feeble in this case as the I.O. has not placed any 46 S.C.No.1465/2017 material in this regard though he has collected it from P.W.1 during the course of investigation. Further, the recovery of incriminating article is also doubtful in this case as it is shown by the defense that P.W.25 and P.W.36 had already seen the place where the incriminating articles were seized. The prosecution has also failed to prove the preparation and other circumstances beyond reasonable doubt.
80. With this I hold that the prosecution has failed to establish the circumstance firmly and cogently. The circumstances on which the prosecution case rests are not of definite tendency. Out of seven major circumstance the prosecution could prove only first circumstance i.e., homicidal death. Rest of the circumstances were not proved and could not form a complete chain. The evidence led by the prosecution is not consistent with the guilt of the accused.
81. Let me now discuss the rulings relied upon by the learned Special Public Prosecutor.
1. Dhanaj Singh @ Shera & others Vs. State of Punjab, reported in 2004(2) SCR 938. The Hon'ble Apex Court observed that.
5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating 47 S.C.No.1465/2017 officer if the investigation is designedly defective.
8. The stand of the appellants relate essentially to acceptability of evidence. Even if the investigation is defective, in view of the legal principles set out above, that pales into insignificance when ocular testimony is found credible and cogent. Further effect of non examination of weapons of assault or the pellets etc. in the background of defective investigation have been considered in Amar Singh's case (supra). In the case at hand, no crack in the evidence of the vital witnesses can be noticed.
2. Yashwant Bhandary Vs. State of Karnataka, reported in 2004(9) KCCR SN 405 (DB). The Hon'ble Apex Court observed that. C. CRIMINAL TRIAL - Motive Motive is always hidden in the mind of the offenders of the crime and it is almost impossible for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.
F. CRIMINAL TRIAL - Defective Investigation -
It cannot be made a basis for acquitting the accused. More so, when the prosecution is able to make out the case against the accused.
3. Sanjeev Kumar Gupta Vs. State of U.P, reported in 2015(3) Crimes 152 (SC). The Hon'ble Apex Court observed that.
(b). Criminal trial Appreciation of evidence -
Testimonies of witnesses consistent or the 48 S.C.No.1465/2017 whole - Minor discrepancies in evidence - Do not weaken prosecution case.
(c). Criminal trial Faulty investigation - Non -
recovery of weapon - Recovery of blood stained clothes after six days - Prosecutor case cannot be thrown out merely on these grounds when other impeccable ocular and medical evidence support the prosecution case.
82. All these observations are not applicable to the prosecution case. Because, in the case in hand there is not only the question of defective investigation there are no cogent and convincing evidence to point out the guilt of the accused. The circumstances do not form a chain to show that homicidal death of Muniyappa is committed by accused Nos.1 to 4.
83. With this I hold that, the evidence lead on behalf of the prosecution is not worthy of evidence and well founded doubt arises about the genuineness of the case put forth by the prosecution. In the light of the foregoing discussion it can be held that the penal provisions of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot be pressed into service. Accordingly, I answer points No.1 to 5 in the 'Negative'.
84. Point No.6: All the doubts, which can be certainly called as reasonable, enure to the benefit of the accused persons. They are entitled for acquittal. In the result, I proceed to pass the following. 49 S.C.No.1465/2017 ORDER Acting under Section 235(1) of Cr.P.C., the accused Nos.1 to 4 are hereby acquitted of the offences punishable under Sections 302, 201, 120(B) of IPC and under Section 3(2)(v) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act.
Accused Nos.1 to 4 are in judicial custody. They shall be set at liberty if they are not required to be in judicial custody in connection with any other case.
Note: M.O.1 to 14 and M.O.16 to M.O.31 being worthless are ordered to be destroyed. The order relating to disposal of these properties shall be implemented after the appeal period is over.
No material object is identified as M.O.15 during the course of trial. Through oversight while identifying the material object Sl.No.15 is jumped.
Accused Nos.1 to 4 shall execute a personal bonds in a sum of Rs.2,00,000/ each with one surety for the likesum to the satisfaction of this court, undertaking to 50 S.C.No.1465/2017 appear before the higher court as and when such court issues notice in respect of any appeal or petition filed against this judgment. Such bail bonds and surety bonds shall be in force for a period of six months as mandated under Section 437A of Cr.P.C.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 16th day of April, 2021) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru. C/C LXX Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION:
P.W.1 : Mamatha
P.W.2 : Chetan
P.W.3 : Vijay Kumar
P.W.4 : Manjunath
P.W.5 : Uday Kumar
P.W.6 : Puttahonnaiah
P.W.7 : Rohit
P.W.8 : Hemanth
P.W.9 : Junedh
51 S.C.No.1465/2017
P.W.10 : Manjunatha
P.W.11 : Arun
P.W.12 : Mahadevaiah
P.W.13 : Dr. Venkata Raghava
P.W.14 : Ganaram
P.W.15 : Krishnappa
P.W.16 : Prasanna Kumar
P.W.17 : Hitendra Kumar
P.W.18 : Kiran Kumar
P.W.19 : Rajanna
P.W.20 : K.C. Reddy
P.W.21 : Dinesh B.V
P.W.22 : Harish Kumar
P.W.23 : Parameshwara Hegde
P.W.24 : Kiran. V
P.W.25 : M. Venugopal
P.W.26 : Chandra
P.W.27 : Jagadeesh
P.W.28 : Stanlee
P.W.29 : Dr. Gundamma Patil
P.W.30 : Dr. Saritha
P.W.31 : Chethan
P.W.32 : Shivakumar
P.W.33 : Manjunath
P.W.34 : Ravi
P.W.35 : K.R. Kumar
52 S.C.No.1465/2017
P.W.36 : M.R. Harish
P.W.37 : Koushik Murugesh
P.W.38 : Nagaraj
P.W.39 : Narasimhamurthy
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION:
Ex.P1 Complaint
Ex.P1(a), (b) Signature of P.W.1 & P.W.12
Ex.P2 Photo copy of car bearing No.
KA04/MJ9846
Ex.P2(a) Signature of P.W.12
Ex.P3 Spot mahazar
Ex.P3(a), (b) Signature of P.W.5 & P.W.12
Exs.P4 to 8 Photos
Ex.P9 Statement of P.W.6
Ex.P10 Statement of P.W.7
Ex.P11 Statement of P.W.8
Ex.P7 Seizure Mahazar
Ex.P12 Mahazar
Ex.P12(a), (b), (c) Signature of P.W.9, P.W.11, P.W.13
Ex.P13 Seizure mahazar
Ex.P13(a), (b), (c) Signature of P.W.10, P.W.25, P.W.27
Ex.P14 Seizure mahazar
Ex.P14(a), (b) Signature of P.W.10, P.W.39
Ex.P15 Seizure mahazar
Ex.P15(a), (b), (c) Signature of P.W.10, P.W.25, P.W.39
Ex.P16 Seizure mahazar
Ex.P16(a), (b), (c) Signature of P.W.10, P.W.25, P.W.39
Ex.P17 F.I.R
Ex.P17(a) Signature of P.W.12
Ex.P18 PF No.168/2017
Ex.P18(a) Signature of P.W.12
Ex.P19 Graph
Ex.P19(a) Signature of P.W.12
53 S.C.No.1465/2017
Ex.P20 Dead body investigation report
Ex.P20(a), (b) Signature of P.W.12
Ex.P21 Statement of P.W.12
Ex.P21(a) Signature of P.W.12
Ex.P22 Postmortem examination report
Ex.P22(a), (b), (c) Signature of P.W.13, P.W.25 Ex.P23 Statement of P.W.14 Ex.P24 Not marked Ex.P25 Caste report of complainant Ex.P25(a), (b) Signature of P.W16, P.W.23 Ex.P26 164 statement Ex.P26(a), (b), (c) Signature of P.W.15 Ex.P27 Statement of P.W.19 Ex.P27(a) Signature of P.W.19 Ex.P28 Report of P.W.19 Ex.P28(a) Signature of P.W.19 Ex.P29 Request letter Ex.P29(a) Signature of P.W.25 Ex.P30 Letter to ACP Ex.P30(a) Signature of P.W.20 Ex.P31 Photo Ex.P31(a), (b) Signature of P.W.20, P.W.25 Ex.P32 Photo Ex.P32(a) Signature of P.W.25 Ex.P33 Bill Ex.P34 Xerox of Ex.P33 Ex.P35 Acknowledgment Ex.P36 Statement of P.W.21 Ex.P36(a) Signature of P.W.21 Ex.P37 Passport Ex.P38 Acknowledgment Ex.P39 Statement of P.W.22 Ex.P39(a) Signature of P.W.22 Ex.P40 Passport Ex.P41 Caste report of A1 Ex.P41(a) Signature of P.W.23 Ex.P42 Caste report of A2 & A3 Ex.P42(a) Signature of P.W.23 Ex.P43 Statement of P.W.24 54 S.C.No.1465/2017 Ex.P43(a), (b) Signature of P.W.24, P.W.25 Ex.P44 PF No.167/2017 Ex.P44(a) Signature of P.W.25 Ex.P45 PF No.169/2017 Ex.P45(a), (b) Signature of P.W.25 Ex.P46 Statement of A2 Ex.P46(a), (b) Signature of A2, P.W.25 Ex.P47 Statement of A3 Ex.P47(a), (b) Signature of A3, P.W.25 Ex.P48 Seizure mahazar Ex.P48(a), (b) Signature of P.W.25, P.W.26 Ex.P49 PF No.168/2017 Ex.P49(a), (b) Signature of P.W.25 Ex.P50 Statement of A4 Ex.P50(a), (b) Signature of A4, P.W.25 Ex.P51 PF No.170/2017 Ex.P51(a), (b) Signature of P.W.25 Ex.P52 Statement of P.W.26 Ex.P53 Request letter to Tahasildar Ex.P53(a) Signature of P.W.25 Ex.P54 Request letter to Tahasildar Ex.P54(a) Signature of P.W.25 Ex.P55 PF No.171/2017 Ex.P55(a), (b) Signature of P.W.25 Ex.P56 Bus pass Ex.P57 Photo copy of Bike No.KA05/JT859 Ex.P58 PF No.172/2017 Ex.P58(a), (b) Signature of P.W.25 Ex.P59 Rental agreement Ex.P60 Acknowledgement Ex.P61 Annexure VIII (Form 'O) Ex.P62 Acknowledgment Ex.P63 Bill Ex.P64 License Ex.P65 Tax invoice Ex.P66 Tax invoice Ex.P67 Letter for renewal Ex.P68 Seizure mahazar 55 S.C.No.1465/2017 Ex.P69 Seizure mahazar Ex.P70 Statement of P.W.27 Ex.P71 Letter Ex.P72 Letter Ex.P73 CIF Ex.P74 Call register Ex.P74(a) Signature of P.W.28 Ex.P75 CIF Ex.P76 Call register Ex.P77 CIF Ex.P78 Call register Ex.P79 CIF Ex.P80 Certificate Ex.P81 FSL Ex.P82 Certificate of examination Ex.P82(a) Signature of P.W.30 Ex.P83 Statement of P.W.31 Exs.P84 to 94 Photographs Ex.P95 Statement of P.W.32 Ex.P96 Statement of P.W.33 Ex.P97 Statement of P.W.33 Ex.P98 Certificate regarding TATA Ex.P98(a) Signature of PW.34 Ex.P99 CIF Ex.P99(a) Signature of P.W.34 Ex.P100 True copy of voter identity card Ex.P100(a) Signature of P.W.34 Ex.P101 Call details Ex.P101(a) Signature of P.W.34 Ex.P102 Customer Application Form Ex.P102(a) Signature of P.W.34 Ex.P103 True copy of Motor driving Ex.P103(a) Signature of P.W.34 Ex.P104 Call details Ex.P104(a) Signature of P.W.34 56 S.C.No.1465/2017 Ex.P105 Photo Ex.P106 Photo Exs.P107 & 108 Photos Ex.P109 Compact Dick Ex.P110 PF No.175/2017 Ex.P110(a) Signature of P.W.25 Ex.P111 PF No.176/2017 Ex.P111(a) Signature of P.W.25 Ex.P112 PF No.164/2017 Ex.P112(a) Signature of P.W.36 Ex.P113 to 116 Photos Ex.P117 Requisition dated 18.08.2017 given to Executive Engineer, BBMP Ex.P117(a) Signature of P.W.36 Ex.P118 Portion of voluntary statement of A1 Ex.P119 65(B) certificate Ex.P119(a) Signature of P.W.37 Ex.P120 Call details Ex.P120(a) Signature of P.W.37 Ex.P121 Application Ex.P121(a) Signature of P.W.37 Ex.P122 Call details Ex.P122(a) Signature of P.W.37 Ex.P123 Application form Ex.P123(a) Signature of P.W.37 Ex.P124 Request letter Ex.P125 Call details Ex.P125(a) Signature of P.W.38 Ex.P126 Customer application form Ex.P126(a) Signature of P.W.38 Ex.P127 65(B) certificate Ex.P127(a) Signature of P.W.38 Ex.P128 to 130 Statement of P.W.39 57 S.C.No.1465/2017 LIST OF MATERIAL OBJECTS MARKED: MO.1 Shirt MO.2 Baniyan MO.3 Pant MO.4 Underwear MO.5 Belt MO.6 Kerchief MO.7 Poison bottle MO.8 Bottle cap MO.9 Sony Ericson mobile MO.10 Samsung mobile MO.11 Slipper MO.12 Syringe MO.13 & 14 Hand gloves MO.16 Pen drive MO.17 Pen drive 32 GB nail clippings MO.18 Pen drive 64 GB nail clipping MO.19 Plastic rope MO.20 to 22 Socks MO.23 Tshirt MO.24 Tshirt MO.25 Samsung Galaxy A7 MO.26 Lenovo mobile MO.27 Samsung mobile phone MO.28 Itel mobile MO.29 Pillow (Sofa) MO.30 1 pair hand gloves MO.31 Mop LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE: Nil (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru. C/C LXX Addl. City Civil & Sessions Judge, Bengaluru.