Bangalore District Court
The State Of Karnataka vs No.1 : S. Chidambaram @ Jeeva on 21 August, 2019
1
SC 1269-2013
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY.
(CCH 52)
Dated this the 21st day of August 2019
PRESENT:
Sri Venkatesh R.Hulgi, B.Com. LL.B(Spl.),
LI Addl. City Civil & Sessions Judge, Bengaluru City.
S.C.No. 1269/2013
Complainant : The State of Karnataka,
Represented by it's
The Police Inspector,
Kumaraswamy Layout Police
Station,
Bengaluru - 560 078.
(By Learned Public Prosecutor)
Vs.
Accused No.1 : S. Chidambaram @ Jeeva,
S/o. Late Subramani,
Aged 24 years,
R/a. No.151, 8th Main, 9th Cross,
Chandranagar,
Bengaluru City.
Accused No.2 : Venugopal,
S/o. Subramani,
Aged 26 years,
R/a. No.138, 9th Main,
Near Maramma Temple,
Chandranagar,
Bengaluru City.
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SC 1269-2013
Accused No.3 : M. Naveena,
S/o. Mani,
Aged 18 years,
R/a. No.140, 6th Cross, 9th Main,
Bhuvaneshwarinagar,
Near Post Office, Uttarahalli,
Bengaluru City.
Accused No.4 : Subramani J,
S/o. Late Jagadish,
Aged 20 years, R/a. No.146/A, 8th
Cross, 9th Main,
Near Karimarammana Temple,
Chandranagar,
Bengaluru City.
(in Judicial Custody)
Accused No.5 : Girish J,
S/o. Late Jagadish,
Aged 19 years, R/a. No.146/A,
8th Cross, 9th Main,
Near Karimarammana Temple,
Chandranagar,
Bengaluru City.
(By Sri K.B.K.Swamy, Advocate
for A-1)
(By Sri Harish Kumar H.C. Advocate
for A-2)
(By Smt S. Vijayalakshmi, Advocate
for A-3)
(By M/s. Parva Law Associates,
Advocates for A-4 & A-5)
1 Date of commission of offence 17.07.2012
2 Date of report of offence 18.07.2012
3 Date of arrest of the accused A-1 = 21.07.2012
A-2 = 19.07.2012
A-3 & A-4 = 21.07.2012
A-5 = 24.07.2012
4 Date of release of accused on bail A-1 = 02.04.2013
A-2 = 04.03.2013
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SC 1269-2013
A-3 = 19.04.2013
A-4 = Earlier on bail
dated: 05.03.2013 , Again
A4 is in J.C.
A-5 = 06.03.2013
5 Date of commencement of 23.06.2014
evidence
6 Date of closing of evidence 21.09.2017
7 Name of the complainant Rajesh
8 Offences complained of Sections 143, 147 & 302
r/w Section 149 of IPC.
9 Date of pronouncement of 21/08/2019
judgment
10 Opinion of the Judge Guilt of the accused-
persons is proved.
11 Order of Sentence As per final-order
JUDGMENT
The Kumaraswamy Layout Police have filed the present charge sheet against the accused No. 1 to 5 for the offences punishable U/Ss. 143, 147 & 302 of I.P.C. R/W Section 149 of I.P.C.
2. The facts of the present case in a nutshell is as follows:-
That,complainant Rajesh and deceased Anand @ Ullla are true brothers. That on 17/07/2012 after having the dinner both the brothers were standing infront of their home bearing No. 491, 69th Cross, Kumaraswamy layout, Bengaluru. At about 11.15 P.M. around 7-8 persons came 4 SC 1269-2013 near the house of the complainant and by standing on the street they started eve teasing by smoking cigarette. Hence, deceased Anand @ Ulla by warning them asked them to go away from the place. Immediately at about 11.20 P.M. all the accused by forming an unlawful assembly to commit the offences, like rioting, assault etc., armed with deadly weapons like wooden clubs came back near the house of the complainant and Accused No.1 Chidambaram started quarreling with Ananda @ Ulla. He abused Ananda with filthy language and by uttering that Ananda will not be spared with his life, accused No.1 has assaulted Ananda over his head with wooden club and caused grievous injury. In furtherance of common object of such assembly Accused No.2 Venugopal and Accused No.3 M.Naveena have assaulted Ananda with the wooden clubs over his head and caused bleeding injuries. Accused No.4 Subramani also assaulted Ananda with the wooden club on his chest. Similarly Accused No.5 Girish has assaulted Ananda on his hands with a wooden club etc., thereby caused grievous injuries. Consequently complainant and his parents and other relatives immediately shifted the injured Ananda @ Ulla to a nearby hospital, later injured Ananda was shifted to NIMHANS hospital for further treatment. Unfortunately on 18/07/2012 at about 10.30 P.M. 5 SC 1269-2013 Ananda @ Ulla succumbed to injuries in the hospital. Hence alleging that all the accused by forming an unlawful assembly to commit the murder of Ananda @ Ulla and in furtherance of common object of such unlawful assembly the accused armed with deadly weapons like wooden clubs have assaulted Ananda @ Ulla and thereby commmitted his murder, complainant Rajesh filed the complaint at Ex.P.1 before the Kumaraswamy Layout Police Station. Persuant to the said complaint a case was registered against all the accused in Cr. No. 308/2012 of the said police station and after conducting detail investigation I.O. has filed the present charge sheet before the Committal Court.
3. As the offence punishable under Section 302 of IPC is triable by the Court of Sessions, the case was committed to this court after completing the initial formalities as required Under Section 207 of Cr.P.C. for trial.
4. Initially all the accused were on bail, but subsequently Accused No.4 Subramani has jumped the bail. Therefore he secured under non-bailable-warrant and remanded to judicial custody. Thus Accused No.4 has been in J.C. since 03/02/2018.
5. After compliance of the preliminary formalities charge was framed against all the accused for the aforesaid offences, 6 SC 1269-2013 read over and explained to them. Accused pleaded not guilty to the charge leveled against them and claimed to be tried.
6. To prove its case, the prosecution has examined in all thirty one witnesses as P.W.1 to P.W.31 and got marked Ex.P.1 to P.27. M.O.1 to 9 are also marked for the prosecution during the course of evidence.
7. After the evidence of prosecution is closed, the statements of accused under Section 313(b) of Cr.P.C. is recorded. The accused have denied every incriminating statements appearing against them. However, they have not led any evidence in their defence. It appears that, total denial of the case of prosecution is the defence of the accused.
8. Heard the arguments of the learned Public Prosecutor and Learned Advocate representing the accused. Perused the materials placed on record.
9. The following points emerge for my consideration is:
(1) Whether the prosecution proves beyond all reasonable doubt that, on 17/07/2012 at about 11.15 P.M. at 69th Cross, Kumaraswamy Layout, Bengaluru accused 1 to 5 formed an unlawful assembly with common object of such assembly mainly to commit the murder of Ananda @ Ulla and thereby they have 7 SC 1269-2013 committed an offence punishable under Section 143 of I.P.C.
(2) Whether the prosecution further proves beyond all reasonable doubt that on the aforesaid date, time and place accused being the members of unlawful assembly with common object of such assembly mainly to commit the murder of Ananda @ Ulla armed with deadly weapons used force and committed rioting thereby committed the offence punishable under Section 147 of I.P.C.?
(3) Whether the prosecution further proves beyond all reasonable doubt that on the aforesaid date, time and place accused formed an unlawful assembly and in furtherance of common object of assembly mainly to commit the murder of Ananda @ Ulla by means of wooden clubs which offence they knew to be likely to be committed in prosecution of common object of said assembly and they being the members of such assembly at the time of committing of that offence have committed the offence punishable Under Section 149 of I.P.C.?8
SC 1269-2013 (4) Whether the prosecution further proves beyond all reasonable doubt that on the aforesaid date, time and place accused being the members of unlawful assembly have committed the murder of Ananda @ Ulla by intentionally or knowingly causing his death by means of wooden clubs thereby committed an offence punishable Under Section 302 of I.P.C. R/W. Section 149 of I.P.C.?
(5) What order?
10. My findings on the above points are as under:
Point No.1 .. In the Affirmative. Point No.2 .. In the Affirmative. Point No.3 .. In the Affirmative. Point No.4 .. In the Affirmative. Point No.5 .. As per the final-order, for the following:
REASONS
11. Points No.1 to 4: As these points are interconnected to each other, hence they have been taken together for common discussion to avoid repetition of facts and evidence on record and also for the sake of convenient discussion.
12. The case of the prosecution as unfolded from the evidence is that, complainant Rajesh is a vegetable vendor having a shop near by his house situated at 69th Cross, 9 SC 1269-2013 Kumarswamy Layout, Bengaluru. He had a brother by name Anand @ Ullla who was a cab driver working for a private firm.
According to the prosecution on the night of 17/07/2012 both complainant and his brother Anand @ Ulla were standing infront of their house bearing No. 491, 69th Cross, Kumaraswamy layout, Bengaluru. At about 11.15 P.M. around 7-8 persons came near the house of the complainant and by standing on the street they started eve teasing by smoking cigarette. Therefore, deceased Anand @ Ulla by warning them asked them to go away from the place. Hence, they went away. Immediately at about 11.20 P.M. all the accused by forming an unlawful assembly to commit the offences, like rioting assault etc., armed with deadly weapons and to commit the murder of Ananda @ Ulla came back near the house of the complainant and Accused No.1 Chidambaram picked up quarrel with Ananda @ Ulla. Accused No.1 has abused Ananda @ Ulla in filthy language and by uttering that he will not spare Ananda with life, accused No.1 has assaulted Ananda over his head with wooden club and thereby caused grievous injury. Immediately later Accused No.2 Venugopal and Accused No.3 M.Naveena have assaulted Ananda @ Ulla with the wooden clubs over his head and thereby caused grievous bleeding injuries. At the same time Accused No.4 10 SC 1269-2013 Subramani has assaulted Ananda with the wooden club over his chest. Similarly Accused No.5 Girish has assaulted Ananda on his hands with a wooden club and thereby caused grievous injuries. Consequently Ananda @ Ulla fell down on the ground unconscious. The accused ran away from the spot with weapons. Hearing the commotion parents of Ananda, complainant and other relatives immediately shifted the injured Ananda @ Ulla to Rajashekar hospital, situated at J.P.Nagar, Bengaluru. After the First Aid, they shifted Ananda to NIMHANS Hospital for further treatment. Unfortunately as there was no proper accommodation, Ananda @ Ulla was shifted to Pulse Multi Speciality Hospital situated at Girinagar, Bengaluru for further treatment. There he was operated. Inspite of treatment, the injured could not survive and he breathed his last at 10.30 P.M. on 19/07/2012. On receipt of death note from the hospital, the I.O. altered the offence to Section 302 of I.P.C. in place of Section 307 of I.P.C. After the inquest was held over the dead body, it was subjected to post- mortem examination. The Doctor who has conducted Post- Mortem on the dead body has opined that death was due to head injury sustained. After conducting detail investigation I.O. has submitted the charge sheet against accused for the above offences.
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SC 1269-2013
13. To prove its case prosecution has examined in all 31 witnesses as P.W. 1 to P.W.31. It is to be noted at this stage that the entire case of the prosecution is essentially based on the evidence of eye-witnesses. Most of the eye-witnesses are related interse and also related to the deceased. Some of the witnesses who are independent eye-witnesses have not supported the case of the prosecution. Therefore, it is argued on behalf of the accused that the evidence of the related witnesses which is interested in nature cannot be accepted as there is no sufficient corroboration to the evidence of related witnesses from the evidence of independent eye witnesses. In this behalf both the sides have referred to several reported decisions which I would consider at an appropriate stage.
14. As stated supra prosecution has examined two sets of eye-witnesses in the present case. One set of eye-witnesses are the close relatives of the deceased Ananda @ Ulla and the other set is independent eye-witnesses. P.W.1 is the complainant and the brother of deceased Ananda @ Ulla, P.W. 4 Smt. R.Mala is the mother of the deceased. P.W.5 Smt. Usha is the sister of the deceased whereas P.W.6 Seetharam is the father . P.W.7 Smt. Saritha is the wife of the deceased Ananda @ Ulla. P.W. 8 is the husband of P.W.5. These witnesses have spoken in support of the case of the 12 SC 1269-2013 prosecution. P.W. 2 Nagaraju, P.W.3 Raju and P.W.9 Smt. Lakshmamma are the independent eye witnesses to the case of prosecution. Unfortunately they have not supported to the case of prosecution.
15. Complainant Rajesh who has filed a complaint at Ex.P.1 on 18/07/2012 is examinedd as P.W.1. According to him he is doing vegetable vending business having a shop near by his house. Deceased Ananda @ Ulla is his elder brother. According to P.W.1 deceased Ananda @ Ulla was residing in the ground floor of the house along with his parents and family. P.W.1 is residing in the 1st floor of the said building. It is stated by P.W.1 that on 17/07/2012 at about 11.00 P.M. when he came after closing the shop he found some commotion infront of his house. When he saw around 6-7 persons were quarreling with his brother Ananda @ Ulla. Earlier to that there was an exchange of words between Ananda @ Ulla and aforesaid persons in the matter of smoking cigarette on the street. Thereafter at about 11.20 p.m. all the accused came near his house with wooden clubs and picked up quarrel with deceased Ananda. It is stated by P.W.1 that at that time accused No.1 Chidambaram by abusing Ananda in filthy language has assaulted him over his head with wooden club and caused injury. At the same time Accused No.2 Venu 13 SC 1269-2013 has assaulted Ananda with the wooden club on his chest. Accused Gopi who is a juvenile offender has assaulted Ananda with the wooden club on the stomach. Accused No.3 Naveen and Accused No.4 Subramani have also assaulted Ananda with wooden clubs on his back. Accused No.5 Girish has assaulted Ananda with the wooden club on his back. Consequently Ananda fell down unconscious. Therefore himself, his parents, sister Smt. Usha and her husband Dhananjaya rushed to the spot and tried to rescue Ananda from the hands of accused. As the passers by gathered on the spot by that time accused ran away from the spot, with the wooden clubs. It is specifically stated by P.W.1 that the persons who have assaulted his brother are the residents of upper sheds of pipe line.
16. According to P.W.1 immediately they shifted Ananda @ Ulla to Rajashekar Hospital in the Auto of his own. Later Ananda was shifted to NIMHANS Hospital for further treatment. It is specifically stated by P.W.1 that when he was in NIMHANS Hospital, by that time police came there and inquired him about the incident. Therefore by narrating the entire incident to the police he has given oral complaint as per Ex.P.1. P.W.1 has identified his signature on Ex.P.1. It is marked as Ex.P.1(a). It is further stated by P.W.1 that after 14 SC 1269-2013 that at about 12.00 P.M. police came to the spot and conducted spot mahazar in the presence of one Ningaraju and Chinnana. At that time they collected some of the wooden clubs, blood stained mud, Cement Stones, Pair of chappals, Blood stained shirt by drawing mahazar as per Ex.P.2. He has identified his signature on Ex.P.2 which is marked as Ex.P.2(a). P.W.1 has also identified the aforesaid articles which are marked as M.Os. 1 to 9 M.O.1 is blood stained mud, M.O.2 is sample mud, M.O.3 is blood stained sweater, M.O. 4 is pair of slippers, M.Os. 5 to 9 are the wooden clubs. It is the evidence of P.W.1 that as there was no enough accommodation in NIMHANS, hence his brother was shifted to Pulse Hospital. But unfortunately his brother died in the said hospital. Interestingly this witness has identified each of the accused 1 to 5 who were present before the Court. It is categorically stated by P.W.1 that Accused No.1 to 5 have assaulted his brother Ananda. This is all the evidence given by P.W.1 in the chief examination.
17. P.W.1 has been cross examined at length by the Learned Advocate for Accused No. 4 and 5. It is to be noted that there is no cross-examination of P.W.1 by remaining accused.
18. Cross examination of P.W.1 indicates that usually he 15 SC 1269-2013 close his vegetable shop between 9.45 P.M. to 10.00 P.M. every day. The said shop is situated just 200 feets away from the house. It is elicited from P.W.1 that on the day of incident his brother Ananda had come home at 10.30 P.M. After that there was a quarrel between his brother Ananda and some persons infront of the house regarding cigarette smoking.
19. In the cross examination it is elicited that soon after the incident Ananda was taken to Rajashekar Hospital of J.P.Nagar which is situated three K.M. away from the house. At that time there was a bleeding from the head of deceased Ananda. It is elicited in the cross examination of P.W.1 that Ananda was taken to the said hospital in the Auto belonging to this witness. Though in the Rajashekar Hospital he has narrated how the injury had occurred to Ananda, but he do not know whether Doctor had recorded the same or not. The cross examination of this witness indicates that Accused 1 to 5 are known to the complainant and his family members and earlier to the alleged incident no any incidents had taken place between Ananda and the accused. Therefore the previous enmity between the complainant party and the accused can be ruled out. Similarly false implication of the accused by the complainant and his relatives in the alleged crime is also to some extent can be ruled out from the cross examination of 16 SC 1269-2013 P.W.1. It is suggested that on the date of alleged incident this witness was not present on the spot and accused did not assault Ananda in the presence of this witness. These suggestions are denied as false by P.W.1. Some questions regarding previous criminal antecedent of deceased Ananda are put to the P.W.1 in the cross examination. But nothing is produced to indicate that Ananda had criminal background.
20. It is interesting to note that in the entire cross examination of P.W.1, the accused have not disputed their identity. Their presence on the spot on the date of alleged incident is also not seriously disputed in the cross examination. Thus except some suggestions in the form of denial nothing could be elicited in the cross examination of P.W.1 to discard the evidence of P.W.1. On the other hand I find that evidence of P.W.1 is fully corroborated by the contents of Ex.P.1 complaint and also Ex.P.2 the spot mahazar. Hence no serious grounds are made out to discard the evidence of P.W.1 which is otherwise cogent and trust worthy of acceptance.
21. As mentioned above it is the case of prosecution that the entire incident has occurred right infront of the house of deceased Ananda @ Ulla. It has come in the evidence of P.W.1 that family of Ananda was residing in the ground floor of the 17 SC 1269-2013 house along with his parents. P.W.1 is residing in the 1st floor of the said house whereas his sister Smt. Usha and her husband Dhananjaya are residing in the second floor of the same house with their children. Hence immediately after hearing the commotion all of them came down and saw the accused assaulting deceased Ananda @ Ulla with the wooden clubs. The same is the evidence given by P.W. 4 Smt. Mala, the mother of the deceased, P.W.5 Smt.Usha the sister of the deceased, P.W.6 Sitharam the father of the deceased, P.W.7 Smt. Saritha the wife of the deceased and P.W.8 Dhananjaya the brother-in-law of the deceased.
22. A perusal of the evidence of these witnesses in the chief examinations clearly indicate that they have consistently and categorically stated that on the night of 17th July 2012 at about 11.00 P.M. when deceased Ananda and P.W.1 were standing infront of the home by that time accused 1 to 5 came there and picked up quarrel with Ananda @ Ulla regarding an incident just before had occurred with some persons for having cigarette smoking on the main road.
23. According to the above witnesses at about 11.20 P.M. accused 1 to 5 and one Gopi who is a juvenile offender came near the house and picked up quarrel with Ananda @ Ulla about the previous incident. It is stated by the above 18 SC 1269-2013 witnesses that at that time Accused No.1 Chidambaram abused deceased Ananda in filthy language and has assaulted him with wooden club over his head thereby caused bleeding injury. Later Accused No.2 Venu has assaulted Ananda with wooden club on his stomach. Accused No.3 Naveen and Accused No.4 Subramani have assaulted Ananda with the wooden clubs on his head and caused injuries. Accused No.5 Girish has assaulted Ananda with the wooden club on his hands and thereby caused injuries. Consequently Ananda fell down unconscious. According to the above witnesses as the public came near the spot hearing the commotion, accused ran away from the spot with some of the wooden clubs. Thereafter they shifted Ananda to Rajashekar Hospital in the Auto. After First Aid, Ananda was shifted to NIMHANS hospital, Bengaluru. According to these witnesses as there was no proper accommodation, therefore they shifted Ananda to Pulse Multi Speciality Hospital on 19/07/2012 where he died during treatment. Thus according to above witnesses Ananda died due to injuries inflicted by Accused 1 to 5 with the wooden clubs. These witnesses have not only identified accused 1 to 5, they have also identified wooden clubs marked at M.Os. 5 to 9.
24. In her cross examination of P.W.4 Smt. Mala has re- 19
SC 1269-2013 iterated that she has seen Accused 1 to 5 even before the alleged incident. Therefore she denied a suggestion as false that she do not know the culprits who have assaulted her son on the date of incident. It is also denied as false by P.W.4 that she is giving false evidence only to harass the accused without witnessing the incident. This suggestion is denied as false by P.W.4.
25. Similarly, in her cross examination P.W.5 re-iterated that she has seen accused assaulting her brother with the wooden clubs and causing injury and later all the male members in the family have shifted Ananda to Rajashekar Hospital. She has spoken about shifting of Ananda by her father in his own auto. She has denied a suggestion as false that just 15 to 20 days before the alleged incident Ananda had sustained grievous injuries in a family fight with his wife. Except this no material worth the name is elicited in the cross examination of P.W.5 to indicate that she has stated false hood only to implicate the accused in the present case. No previous enmity between Ananda and accused is made out in the cross examination of P.W.5.
26. In the same way though P.W.6 has been cross examined at length by the learned advocate for accused, no material worth the name could be elicited from the mouth of 20 SC 1269-2013 this witness to indicate false implication of the accused in the instant case. No previous enmity either between the deceased Ananda or complainant with the accused is made out in the cross examination of P.W.6,. He has denied the suggestion that he was not present at the time of alleged incident. Interesting to note that prior to the alleged incident no any untoward incident had taken place between the deceased and accused for false implication. Thus evidence of P.W.6 fully corroborates the evidence of complainant, P.W.4 and P.W.5.
27. As noted above P.W.7 Smt. Saritha has supported the case of the prosecution in her chief examination. In her cross examination nothing material worth the name could be elicited indicating false implication of the accused. On the other hand her cross examination suggests that she has identified the accused before the court and also the material objects. Hence, the evidence of P.W.7 also corroborates the case of the prosecution and the evidence of other witnesses. Similarly, P.W.8 Dhananjaya the brother-in-law of the deceased Ananda has also supported the case of the prosecution. In his cross-examination he has denied a suggestion as false that he had never seen who had assaulted Ananda and he do not know anything about injuries sustained by the deceased. On the other hand even in the cross- 21
SC 1269-2013 examination this witness has re-iterated the facts of the case as narrated by the above witnesses. Thus the evidence of P.W.8 fully corroborate the evidence of remaining witnesses referred to above.
28. Thus from the above discussion, it becomes very clear that complainant, the parents of the deceased, sister, wife of the deceased and his brother-in-law have categorically and consistently spoken about the occurrence of the incident and the assault made by each accused. Their evidence is totally in support of the case of the prosecution is clear.
29. Now let me examine the evidence given by independent eye-witnesses to find out whether they corroborate the evidence given by the related witnesses.
30. PW.2 Nagaraju is the neighbor of the complainant. Being the neighbor obviously he must be knowing deceased Ananda, complainant, his parents, wife, sister and other family members. According to P.W.2 on 17/07/2012 at a bout 11.15 P.M. when he was standing infront of his house after having the dinner, by that time he noticed some quarrel between 7-8 persons with Ananda infront of Ananda's house. Therefore he went near the place of quarrel to pacify the same. It is stated by P.W.2 that the said quarrel ensued as those persons were eve teasing. It is further stated by P.W.2 that as 22 SC 1269-2013 he advised not to quarrel for trivial matter, therefore those persons went away. After five minutes again they came near the house of Ananda and at that time accused No.1 Chidambaram started abusing Ananda in filthy language. Immediately accused No.1 assaulted Ananda with the wooden club on his head. Accused No.2 Venu has assaulted Ananda with the wooden club on the stomach. Accused Gopi assaulted Ananda with the wooden club on his back. Other accused have also assaulted Ananda with the wooden clubs on the vital part of the body. Consequently Ananda fell-down unconscious. Hence all his family members and neighbors have shifted Ananda to Rajashekar Hospital. Earlier to that all the accused had ran away from the spot. It is further deposed by P.W.2 that after the Rajashekar Hospital Ananda was shifted to Pulse Hospital. He has identified Accused 1 to 5 before the Court saying that they are the very persons who had assaulted Ananda. It is also spoken by P.W.2 that three days after the incident Ananda died in the hospital.
31. It is further deposed by P.W.2 that on 19/07/2012 police took him near 77th Cross, Pipe Line Road and accused Venugopal had accompanied them. At that time one Rajesh was also present as pancha witness. As per the instructions given by accused Venugopal police have seized a wooden club 23 SC 1269-2013 from near by bush by conducting mahazar as per Ex.P.3. This witness has identified his signature which is marked as Ex.P.3(a). According to P.W.2 Ex.P2 mahazar was conducted in between 2.00 P.M. to 2.45 P.M. A categorical statement is made by P.W.2 that the said wooden club was stained with blood. He has identified the said wooden club which is marked at M.O. 6. Apart from that this witness even has identified other wooden clubs which are marked at M.Os. 5, 7, 8 & 9.
32. He was cross examined by Accused 1 & 2 on 23/06/2014. The cross examination of this witness indicates that he is doing chicken business having a shop about 150 feets away from the spot. Further croxx examination of lP.W.2 goes to show that the vegetable shop of P.W.1 is also situated in the nearby place and his house is also very near to the house of complainant. Unfortunately, in the cross examination he has stated that he has not given dictation to prepare Ex.P.3 mahazar. According to him he signed Ex. P.3 in the police station. Thus he has turned hostile to the case of prosecution. It is further deposed by P.W.2 in the cross examination that the alleged incident has not taken place in his presence and he did not see who has assaulted deceased Ananda with these weapons.
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SC 1269-2013
33. He was further summoned and cross-examined on 16/01/2015. In the said cross-examination also this witness has recitaled his evidence in his chief examination regarding the alleged incident.
34. For the above reasons P.W.2 is declared as hostile. In the cross-examination by Learned Public Prosecutor witness has fairly admitted that the evidence which he had given in the chief examination is the true account of the incident and not the evidence given by him in the cross examination. He admits in the cross-examination that he know the accused 1 to 5 and he also know the spot where mahazars were conducted.
35. It is pertinent to mention that P.W.2 was first examined in chief on 23/06/2014. The cross-examination was deferred at the request of advocate for the accused. Therefore he was once again summoned on 16/01/2015 i.e., after almost six months from the date of chief examination. At that stage he turns hostile to the case of prosecution. Again in the cross examination of Public Prosecutor this witness has fairly admitted that whatever he has stated in the chief examination is true account of the incident and not the evidence given in the cross examination of accused. This clearly indicates that taking undue advantage of sufficient 25 SC 1269-2013 time gap between the date of chief examination of P.W.2 and the date of his cross-examination, the accused must have made attempt to win over the witness. Very strangely when he was cross examined by Learned Public Prosecutor P.W.2 has admitted that whatever he has stated in the chief examination is the true account of the incident. He has identified all the accused before the court and admitted their presence at the time of recovery mahazars. Therefore, evidence of P.W. 2 cannot be brushed aside in totality. His evidence can be accepted in so far as the occurrence of the alleged incident and assault made by the accused on deceased Ananda @ Ulla.
36. P.W.3 Raju is having a shop near by the house of complainant. Hence he claimed that he know deceased Ananda and complainant from many years. According to P.W.3 on July 17th 2012, which was a Tuesday he was closing the door of his shop after cleaning. At about 11 to 11.15 P.M. when he was going towards his home, he saw some quarrel infront of the house of deceased Ananda. At that time 3 to 4 persons were quarrelling with Ananda. Hence he pacified the quarrel. Therefore, those persons went away from the spot. He also went to his home. After 10-15 minutes he received a phone call and consequently he came near house of 26 SC 1269-2013 deceased Ananda. But nobody were present on the spot. Ananda had fell down, hence his family members and neighbors were trying to shift him to hospital. At that time he noticed injuries on the head, shoulders and back of the deceased Ananda. Later he came to know that Ananda has suffered injuries due to assault made by the accused and he died in the hospital. However he has not witnessed the incident. Thus he has turned hostile to the case of prosecution.
37. During the cross examination by prosecution it is elicited from the mouth of P.W.3 that when he went near the house of Ananda he saw accused running away from the spot holding wooden clubs in their hands. He admits the presence of accused 1 to 5 on the spot on the date of incident. He has identified M.O.5 to 9 saying that they were the wooden clubs held by accused persons.
38. In the cross examination by accused he has admitted that he has not seen the alleged incident. However he denied the suggestion as false that there is no nexus between death of Ananda and accused persons. This is all the evidence given by P.W.3 regarding the alleged incident.
39. Though P.W.3 has turned hostile to the case of the prosecution, however his entire evidence cannot be simply 27 SC 1269-2013 brushed aside. In the cross examination this witness has stated that he noticed the presence of accused 1 to 5 with wooden clubs near the spot and he denied a suggestion as false that there is no nexus between the death of Ananda and accused. To this extent there is no further denial in the cross examination of P.W.3. Therefore the presence of the accused on the spot with the deadly weapons is proved by the prosecution by examining P.W.3.
40. P.W.9 Smt. Lakshmamma is one of the eye-witness to the incident. Her evidence goes to show that she is the neighbor of deceased Ananda. According to her Ananda died three years prior to her evidence. She has not seen any of the accused. She do not know for what reasons Ananda died. She denied having given statement before the police as per Ex.P.5. Thus this witness has totally turned hostile to the case of prosecution.
41. P.W.10 Vinay M. is one of the attesting witnesses to Ex.P.6 inquest mahazar. According to P.W.10 he saw the dead body of Ananda in Kempegowda Hospital, Bengaluru about three years back from the date of evidence. It is deposed by P.W.10 that he noticed injuries on the head and other parts of Ananda's dead body. In this behalf police have conducted inquest mahazar in his presence as per Ex.P.6 and he 28 SC 1269-2013 identified his signature as per Ex.P.6(a). Though he has been cross examined at length by the learned Advocate for accused, but no material worth the name is elicited in the evidence of P.W.10 to discard his evidence. He has denied a suggestion as false that he put his signature on Ex.P. 6 in Kumaraswamy Layout P.S. It is stated by P.W.10 that he signed on Ex.P.6 in Kempegowda Hospital. Thus the evidence of P.W.10 remained intact and not disturbed in the cross examination.
42. P.W.11 Sunil and P.W.12 Karthik are the attesting witnesses to Ex.P.7 mahazar. Though P.W.11 has not supported the case of prosecution however P.W.12 Karthik has spoken in support of the case of prosecution. He has sufficiently spoken about recovery of wooden club at M.O.No.6. As he did not give the correct date of mahazar, to that extent he has been declared as hostile and cross examined by Learned Public Prosecutor. In the cross-examination P.W.12 has admitted that Ex.P.7 was prepared on 22/07/2012 and accused No.4 Subramani was present and shown the spot where he had thrown wooden club. Hence at his instance M.O. 6 was seized by preparing mahazar as per Ex.P.7.
43. In the cross examination of P.W.12 it is elicited that he know the complainant Rajesh. He also know the family members of the complainant. It is suggested that Ex.P.7 was 29 SC 1269-2013 prepared in the police station and not on the spot. However this suggestion is denied as false by the P.W.12. The remaining suggestions are in the form of denial. Thus by examining P.W.12 prosecution has proved contents of Ex.P.7 and recovery of M.O. No.6.
44. P.W.13 Chinna is one of the attesting witness to Ex.P.2 spot mahazar and he has supported the case of prosecution by saying that as per instructions of P.W.1 police conducted mahazar on spot as per Ex.P.2 and obtained his signature as per Ex.P.2(b). It is further stated by P.W.13 that at the time of mahazar police have seized material objects at M.O. 1 to 4/ Though he has been cross examined by the Learned Advocate for accused, he withstood the test of cross examination without giving any admission. Therefore evidence of this witness regarding the spot mahazar and the seizure of M.Os. 1 to 4 remained unshaken. I do not find any reason to discard the evidence of P.W. 13. The prosecution by examining P.W.13 has proved Ex.P.2 and the recovery of M.Os. 1 to 4. Evidence of P.W.13 corroborates the evidence given by P.W.1 regarding the drawing up of spot mahazar.
45. P.W.14 L.Rajesh is an attesting witness to Ex.P.3. He has failed to support the case of prosecution. However by examining P.W.2 Nagaraju the prosecution has proved the 30 SC 1269-2013 contents of Ex.P.3. Therefore non-supporting of case of prosecution by P.W. 14 has no any consequences. Moreover, I.O. who is examined as P.W.31 has sufficiently spoken about this aspect of the matter.
46. P.W.15 is the Medical Officer working in KIMS hospital, Bengaluru. He has deposed about conducting postmortem on the dead body of deceased Ananda @ Ulla. According to this witness he conducted the postmortem on 20/07/2012 between 11.50 A.M. to 12.50 P.M. At that time he noticed following antemortem injuries.
"1. 'C ' shaped sutured wound extending from right temporoparietofrontal region of the scalp measuring 32 cms.
2. Bilateral Black eyes noted.
3. Contusion present over the middle of lower lip measuring 2X1 cms.
4. Contusion present over the left side of chest measuring 3X2 cms.
5. Contusion present over the right side of chest measuring3X2 cms present over the right side of chest.
6. Abrasion present over the front of chest in the 31 SC 1269-2013 midline measuring 5X2 cms.
7. Abrasion present over the outer aspect of right forearm measuring 4X1 cms.
8. Abrasion present over the left arm measuring 5X1 cms.
9. Abrasion present over the middle of back measuring 2X1 cms.
10. Two abrasions present over the right flank of abdomen each measuring 4X1 cms."
47. It is further stated by P.W.15 that when the body was descected he found the following injuries.
"Cranium and Spinal Canal :
Scalp - Contusion present over lower Right temporoparital region diffusely. Skull - Right temporoparietal bone is absent for 15x12 cms.
Fissure fracture extending from right occipital bone to left middle cranial fossa for 19cms. Fissure Fracture of size 3cms present in Middle cranial fossa.
Brain - Covered by Subdural and Subarachnoid. Haemorrhage over right half of the brain.
5. All other internal organs were intact. The 32 SC 1269-2013 deceased was initially treated by the Nimhans, Rajashekar Hospital, Pulse Multi-Speciality Hospital.
The case records of the said hospital revels and the deceased was operated for the head injury on 18.7.2012.
6. All the injuries were ante-mortem in nature. Contusions were blue. Abrasions were reddish brown in colour. "
48. In para 6 of the evidence this witness has deposed that all above injuries are antemortem in nature and cause of death was result of head injury sustained by the deceased. Therefore he has issued P.M. report as per Ex.P.8. He has identified his signature marked as Ex.P.8(a) to Ex.P.8(c).
49. It is further deposed by P.W.15 that on 29/11/2012 he received a requisition from the I.O. with six sealed packets for examination and for opinion. He found all the sealed packets were intact with proper seals. They contained six wooden clubs. After examining those wooden clubs he formed detailed opinion that the external injuries and the internal injury referred to above could have been caused by six wooden clubs which were examined. Accordingly he has given opinion as per Ex.P.9, his signatures are marked as per Ex.P.9(a) and P.9 (b). This witness has identified all the wooden clubs 33 SC 1269-2013 which are marked as M.Os. 5 to 9. This witness is very categorical in saying that if a person is assaulted with M.Os. 5 to 9 he is likely to sustain with the injuries mentioned in P.M.report (Ex.P.8) due to which the death is likely to cause.
50. He has been cross examined at length by the Learned Advocate for accused No. 4 & 5. Expect denying the fact that he did not conduct any post postmortem on the dead body of deceased Anand and he did not issued Ex.P.8 report, nothing material worth the name could be elicited from the mouth of this witness. The evidence of P.W. 15 is very cogent and trust worthy of acceptance to hold that Ananda died due to antemortem injuries which could have been caused by assaulting him with objects like M.Os. 5 to 9.
51. At this stage it is relevant to mention that the prosecution by examining attesting witness to inquest mahazar and by examining P.W.16 and also by examining the complainant and by producing Ex.P. 7 to P.9 has proved that death of Ananda is a homicidal death. The evidence of aforesaid witnesses coupled with the documents referred to above clearly discloses that without the intervention of others, the injuries could not have been caused on the deceased. Therefore in my opinion the prosecution has successfully established the homicidal death of the deceased. 34
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52. P.W. 16 Nandish is an attesting witness to Ex.P.10 seizure mahazar through which M.O. 5 wooden club is recovered at the instance of accused No.1. He has spoken about this aspect of the matter. He has identified his signature on Ex.P.10 which is marked at Ex.P.10(a). He has identified M.O. No.5 also before the Court. In the cross examination by the accused he has deposed that he signed the mahazar in the police station and he do not know where the police have seized the M.O. 5. Thus he failed to support the case of the prosecution.
53. P.W. 17 Dr. Suresh V. is the Medical Officer working in Pulse Multi Speciality Hospital, Bengaluru. It is the case of the prosecution that for want of proper accommodation deceased Ananda was shifted to his hospital from NIMHANS hospital. In this background P.W.17 has stated that at about 1.30 A.M. on 18/07/2012 Ananda was brought to his hospital for further treatment. When he examined Ananda clinically he found laceration over right occipital area of head sutured. He found the said injury is very grievous injury. Hence recording the same he has given wound certificate as per Ex.P.11. Ex.P.11(a) is his signature. According to this witness if a person is assaulted with wooden clubs with the gurta of 6- 8 inches, he may sustain injuries mentioned in Ex.P.11. Cross 35 SC 1269-2013 examination of this witness goes to show that before Ananda was brought to his hospital, somebody has stitched the wound and put the bandage. He has mentioned the history of the injuries sustained by Ananda as narrated by the complainant. Thus his evidence remained intact. regarding the injuries sustained by Ananda on his head.
54. P.W. 18 Siddaiah was the head constable working at Kumaraswamy Layout P.S. at the relevant time. According to him he took all the material objects kept in sealed packets for F.S.L. Examination and obtained acknowledgement from the concerned officials as per Ex.P.37 and produced the same before the I.O.
55. Though he has been cross examined however except some suggestion in the form of denial, nothing is elicited from the mouth of P.W.18 to disbelieve his evidence.
56. P.W.19 Dr. K.Ananda is the Medical Officer working in Rajashekar Hospital, Bengaluru. It is the case of the prosecution that soon after the incident, injured Ananda was taken to aforesaid hospital for First Aid. In this context P.W.19 has deposed to the effect that at about 12.00 A.M. on 18/07/2012 injured Ananda was brought to Hospital by his father Seetharam and others with the history of injuries in an assault. On a clinical examination he found lacerated wound 36 SC 1269-2013 measuring 4X4 inches into one inches on the occipital region and contusion over left in chest and other parts. So Ananda was admitted as inpatient and requested the relatives to have C.T. scan. As the father of the Ananda did not agree, therefore Ananda was shifted to NIMHANS. According to this witness by mentioning the above injuries he has given wound certificate as per Ex.P.12. His signature which is identified by the witness is marked as Ex.P.12(a). According to this witness injuries mentioned in the Ex.P.12 may be caused by assaulting a person from wooden clubs. He admits that except the head injuries remaining injuries are not fatal injuries. His evidence discloses that as the injured was not in a position to speak hence his evidence could not be recorded. Thus except this nothing is made out in the cross examination of P.W.19 to hold that he is deposing false hood before the court. On the other hand his evidence suggests that injured Ananda was brought to his hospital with fatal injuries as indicating in Ex.P.12.
57. P.W. 28 Dr. M.R. Go.. is the Medical Officer working in Pulse Multi Speciality Hospital. According to this witness on 19/07/2012 at about 10.30 P.M. injured Ananda died in the hospital. Therefore, he sent death note to Girinagar Police Station as per Ex.P.18. Ex.P.18(a) is his signature. He has not been cross-examined by any of the accused. Therefore his 37 SC 1269-2013 evidence with regard to death of Ananda in the hospital has remained intact. Evidence of P.W.28 goes to show that Ananda died in the above hospital on the night of 19/7/2012 while under treatment. Hence he sent a death note as per Ex.P.18 to the police based on which they submitted a requisition to the concerned Court to alter the offence from Section 307 of I.P.C. to Section 302 of I.P.C.
58. P.W.20 C.Ravikumar and P.W.21 Kempegowda are the police constables working in Kumaraswamy Layout Police Station at the relevant point of time. They have given evidence to the effect that as per the information given by the informants they apprehended accused No.3 Naveena, Accused No.4 Subramani and Juvenile offender Gopi on 21/07/2012 near lorry stand situated on the main road of Jaragana Halli, Kanakapura. It is stated by these witnesses that after they apprehended above accused they took the accused before P.W.31 R.C.Lokeshkumar the then P.I. Kumaraswamy Layout Police Station with report at Ex.P.13. P.W.21 has identified his signature on Ex.P.13 is marked as Ex.P. 13, P.1(a). These witnesses have been cross examined at length by the Learned Advocates for the above accused. Except general denials nothing is elicited from the mouth of these witnesses to indicate that they have given a false evidence before the Court 38 SC 1269-2013 at the instance of higher officials. These two witnesses have identified Accused No.3 Naveen and Accused No. 4 Subramani before the Court. The identity of the above accused is not disputed in the cross examination of these witnesses.
59. P.W. 22 Shashidhar is an attesting witness to Ex.P.15 seizure mahazar through which the police have seized one of the wooden club at the instance of Accused No.3 Naveen. Unfortunately this witness has failed to support the case of prosecution. Even in his cross examination learned Public Prosecutor has failed to elicit any material in support of the case of prosecution.
60. P.W.23 Karthik is one of the attesting witnesses to Ex.P. 16 seizure mahazar through which the police have seized one of the wooden club at the instance of A5 Girish. This witness has also turned hostile and not supported the case of prosecution. No material worth the name in support of the case of prosecution is brought out in the cross examination of this witness. In the same way P.W.24 Bharath who is the other attesting witness to Ex.P.16 has also failed to support the case of the prosecution. Similarly despite all efforts prosecution has failed to elicit any evidence in support of its case in the cross examination of this witness.
61. P.W.25 Vinod Kumar is said to be an attesting witness 39 SC 1269-2013 to Ex.P.15 through which one of the wooden clubs at the instance of accused No.3 Naveen was recovered.. This witness has failed to support the case of prosecution and turned hostile. In his cross examination nothing could be made out for the prosecution to indicate that he was present at the time of drawing up of the spot mahazar at Ex.P.15 and seizure of one of the wooden clubs.
62. P.W. 26 is the Head Constable working in Kumaraswamy Layout P.S. at the relevant point of time. According to this witness on 18/07/2012 he secured F.I.R. from P.W. 30, the then P.S.I. and submitted the same to V A.C.M.M. Court, Bengaluru. Further it is stated by this witness that on 20/07/2012 as per the instructions of P.W.31 he submitted a requisition to Jurisdictional Court for alteration of the offence U/S. 302 of I.P.C. As noted above there is no serious dispute that F.I.R. has reached jurisdictional Magistrate without any delay and similarly the requisition for alteration of Section was also sent to the Court without any delay. He has been cross examined by the Learned Advocate for the accused. Except some general denials nothing is made out in the evidence of P.W.26 that he is giving false evidence at the instance of higher officials.
63. P.W.27 Smt. Sree Vidhya is working as Assistant 40 SC 1269-2013 Director, F.S.L., Bengaluru. It is in the evidence of this witness that she has been working in F.S.L., Bengaluru for the last 14 years as a Scientific Officer. That on 10/10/2012 she received some objects for scientific examination from Kumarswamy Layout Police in connection with Cr. No. 308/2012. They are two concrete pieces and one among them is blood stained. After examination she has opined that those concrete pieces matches with each other. In this behalf she has given her report as per Ex.P.17. Ex.P.17(a) & (b) are her signatures. She has identified those concrete pieces before the Court which are marked as M.Os. 1 & 2.
64. In the cross examination she has fairly admitted that she cannot give the age of M.O. 1 & 2. But she denied a suggestion as false that she received those material objects without any sealed cover. According to her when she received M.Os. 1 & 2 they were kept intact in a cover with seal. Except that nothing could be made out in the cross examination of P.W.27 to indicate any falsehood. Her evidence clearly support the case of the prosecution that M.Os. 1 & 2 are matches with each other and M.O.1 had blood staines. It is the case of prosecution that M.O. 1 & 2 have been recovered from the spot where the incident has occurred. These material objects are even identified by the complainant, his parents and the 41 SC 1269-2013 near relatives by saying that they are the very concrete pieces recovered from the spot by the I.O.
65. P.W. 29 Smt. Shahanaj Fathima is a scientific Officer working in F.S.L., Bengaluru. Her evidence discloses that she has been working in F.S.L.Bengaluru since 2008. According to this witness on 10/10/2012 she received 9 sealed packets from Kumaraswamy Layout P.S. H.C.No.1116 for scientific examination and for giving opinion. When she received those articles she found that they were kept in a sealed cover intact. She opened those materials and saw two concrete pieces, one sweater and six wooden clubs. It is stated by P.W. 29 that she found M.O.1, M.Os. 3 to 9 stained with human blood. However she was unable to find out the group of the blood. She did not find any blood stain on one of the wooden clubs. Hence she has given Ex.P.29 with her opinion. Ex.P.29(a) is her signature. It is further deposed by P.W.29 that after the examination all the material objects were kept in a sealed cover with official seal and returned to the concerned police. From the evidence of this witness, it become very clear that M.Os. 1, 2, 3 to 9 are stained with human blood. They are recovered from the spot and also at the instance of accused. Interestingly P.W.29 has not at all cross examined by the Advocate for the accused. Therefore her evidence in the chief 42 SC 1269-2013 examination remained unchallenged. Evidence of P.W.29 fully support the case of prosecution.
66. P.W.30 Manjunath Pandith P.N. is the then P.S.I. of Kumaraswamy Layout P.S. It is stated by this witness that in the morning of 18/07/2012 he received a M.L.C. requisition from NIMHANS Hospital. Hence immediately he visited NIMHANS hospital and saw the injured Ananda. He recorded oral complaint of P.W.1 Rajesh in the hospital at about 9.30 A.M. and came back to Police Station at 11.00 A.M. and immediately registered the case against the accused in Cr. No. 308/2012 for the above offences. He has identified the complaint marked at Ex.P.1. Ex.P.2(b) is his signature. F.I.R. is marked as Ex.P.20, Ex.P.20(a) is the signature of this witness.
67. It is further stated by P.W.30 that on the same day he visited the spot and conducted mahazar in the presence of P.W.1 and other Panchas between 12.00 P.M. to 2.00 P.M. as per Ex.P.2. At the time of mahazar he seized blood stained concrete piece and sample concrete piece along with blood stained sweater of injured Ananda produced by complainant. He has also spoken about seizure of two pairs of Paragan chappals belonging to Accused persons from the spot. He has identified the above material objects which are marked as 43 SC 1269-2013 M.Os. 1 to 4.
68. It is stated by P.W.30 that the same day he recorded the statements of eye witnesses. All the eye witnessesin their statements have stated that accused before the Court have assaulted Ananda. On 19/07/2012 at about 1.15 P.M. Accused No.2 Venugopal was produced before him through C.Ws. 30 and 31. Hence he arrested him after following arrest procedure. He recorded voluntary statement of Accused No.2 as per Ex.P.21. Ex.P.21(a) is the signature of this witness. He has identified the signature of Accused No.2 marked at Ex.P21(b). This witness has identified the accused No.2 before the Court.
69. He has spoken about seizure of M.O.No.6 at the instance of Accused No.2 Venugopal. The said panchanama is marked as Ex.P.3. According to this witness latter he submitted that articles through P.F.No. 157/2012 and one P.F. No. 1568/2012. It is the evidence of this witness that as injured Ananda passed away on 19/07/2012, therefore he entrusted further investigation of the case to P.W.31 R.C.Lokesh.
70. He has been cross examined by the learned advocate for the accused. Except some general denial nothing could lbe elicited from the mouth of P.W.30 to indicate that only to 44 SC 1269-2013 support the complainant and his family members he has created all the documents. He has re-iterated in the cross examination that on 18/07/2012 he inquired doctors of NIMHANS regarding health condition of the injured. It is admitted that he did not insist the Doctor at NIMHANS to issue extract of M.L.C This may be a minor latches on the part of this witness. Therefore, I find the evidence of P.W.30 more cogent and trust worthy of acceptance. Hence the evidence of this witness cannot be brushed aside in toto.
71. P.W.31 is the investigating officer who has sufficiently spoken about the investigational aspect of the matter.
72. In his evidence P.W.31 has stated that on 20/07/2012 he received Ex.P.18 death note from the Pulse Multi-Speciality Hospital, Girinagar and the same day he received the case papers from P.W. 30 for further investigation. Immediately he proceeded for further investigation and he has spoken about inquest mahazar, postmortem, deputing his staff for tracing out the accused, seizure of material objects pursuant to voluntary statements given by accused as per Ex.P.3 & P.4, receiving of postmortem report, F.S.L. report etc., According to this witness as he found sufficient evidence to indicate the involvement of the accused in commission of the offences, hence he has laid down the charge sheet before the court. 45
SC 1269-2013
73. He has been cross examined by the learned advocates for the accused. In the cross examination it is elicited that he did not make any efforts to find out to whom M.O.No.4 Slippers are belonging to. In my opinion this is not a serious lacuna in the case of prosecution as there are eye witnesses who have seen accused assaulting deceased Ananda. Hence except some general denial nothing is made out in the cross examination of this witness to discard his evidence and to disbelieve him.
74. During the course of arguments much has been argued by the Learned Advocate for Accused that in the instant case investigation is not proper and it has many loopholes. The prosecution has failed to prove seizure of material objects at the instance of accused. Therefore the prosecution has failed to prove its case beyond all reasonable doubt. To support his arguments learned advocate for accused has relied upon decisions of Hon'ble Appex Court reported in (2012) Part 7 Supreme Court Cases 317 (Ashish Batham Vs/ State of M.P.), (2009) Part 7 Supreme Court Cases 454 (Motilal and another .vs. State of Rajasthan, (1974) Part III Supreme Court Cases 397 (Harchand Singh and another /vs/State of Haryana ), (2015) Part 11 Supreme Court Cases Page 242, (Golbar 46 SC 1269-2013 Hussain and Ors. Vs. State of Assam & another) , AIR 1983 Supreme Court Page 360 (Kora Ghasi/vs/ State of Orissa), 1973 Cri.L.J. 955(V 79 C 292) (State /vs/ Youssuf Dar and others, AIR 2003 SC 4076 (Saleem Aktar @ Mota /vs/ State of U.P.), 2018 Cri. L.J. 2814 (Navaneethakrishnan /vs/ State by Inspector of Police and 2018 Cri. L.J. Page 2329 (Ujeram Khuluram Rathiya /vs/ State of Chattisgarh.
75. I have gone through the material evidence on record in the light of the law laid down in the aforesaid decisions. In the instant case the prosecution has examined complainant, parents of the deceased, his wife, sister and her husband who are natural witnesses to the occurrence of the incident. As noted above, the alleged incident has occurred right infront of the house of the deceased during the night hours. It is obvious that all the family members would come out of the house after hearing the commotion and see the incident. They have also attempt to pacify the quarrel and to rescue the victim. In the instant case I find the evidence of aforesaid witnesses as quite natural. They have categorically and consistently stated about the incident occurred and they stated which accused has assaulted deceased Anand with which weapons. Each of the witnesses have not only identified 47 SC 1269-2013 all the accused but they identified the material objects also.
Their evidence is very consistent to the case of prosecution. As mentioned supra nothing material could be elicited from their mouths in the cross examination. Even independent eye witnesses have also supported the case of prosecution to some extent.
76. It is argued by learned Advocate for the accused that the evidence of the related witnesses cannot be accepted without sufficient corroboration by the independent eye witnesses.. In this context the counsel has referred to decision of the Hon'ble Appex Court in the case of Golbar Hussain and Ors. /vs/ State of Assam & another . In the said decision it is held that "there is no bar on admissibility of statement by related witnesses supporting prosecution case-But, it should stand test of being credible, reliable, trustworthy, admissible in accordance with law and corroborated by other witnesses or documentary evidence of prosecution."
77. Thus it is clear that there is no total bar to accept the evidence of related witnesses.
78. Learned Public Prosecutor by placing reliance on a decision of the Appex Court in the case of Ravi Kapur/vs/ State of Rajasthan (2012) Part 9 Supreme Court Cases 48 SC 1269-2013 Page 284 would submit that "while appreciating the evidence generally statements of witnesses to be read as a whole. Court cannot pick up a sentence in isolation from the entire statement and use it ignoring its proper reference and context. "
79. By placing reliance on decision of Hon'ble Appex Court in the case of Mritunjoy Biswas /vs/ Pranab alias Kuti Biswas and another (2013 CRI.L.J. Page 4212) Learned Public Prosecutor would submit that " minor contradictions and omissions in the evidence do not affect core of the prosecution case and cannot be taken as a ground to reject the prosecution evidence." 80 . To contend that merely because the eye witnesses are related to each other and related to the deceased, their testimony cannot be discarded and it is the duty of the Court to scrutinize the evidence carefully learned Public Prosecutor has relied upon the decision of Appex Court in the case of Razak Jinnesab Karjagi & Ors. /vs/ State of Karnataka 2009 Part (2) Crimes 59 (Supreme Court) . It is held in the said decision that "it is well settled that if eye witnesses is related to the deceased, his evidence has to be accepted if found to be believable and reliable because he would inter alia be interested in ensuring the real 49 SC 1269-2013 culprits are punished." In the context learned Public Prosecutor has also referred to the decision of Appex Court in the case of State of Himachal Pradesh /vs/ Mast Ram 2004 Part (4) Crimes 27 (Supreme Court). In the said decision it is held that "Mere because eye witnesses were close relative of deceased by itself would not be a ground to disbelieve their testimony if otherwise, inspire confidence".
81. As noted above, in the instant case this court find the evidence given by complainant and his close relatives is most consistent and corroborative to the case of prosecution. As explained above nothing could be elicited from their mouth to indicate that they are giving false evidence only to see that the accused should be punished. No previous enmity between the deceased and the accused is made out in the cross examination of these witnesses. Therefore, this court being fully guided by the decisions of the Appex Courts referred to supra accept the evidence of complainant, his parents, sister, brother-in-law and wife of the deceased. Above all P.W. 2 who is a independent witness has also supported the case of prosecution. Hence I do not find any merits in the arguments for Learned Advocates for accused persons.
82. In so far as seizure of material objects pursuant to the 50 SC 1269-2013 voluntary statements of the accused is concerned the prosecution has examined Investigating Officer to speak about the seizure of material objects. Even though some of the mahazar witnesses have not supported the case of prosecution, the Court can accept the evidence of I.O. in proof of seizure of material objects. To fortify my above observation I refer to a decision of our Hon'ble High Court reported in ILR 2001 Karnataka Page 4655 (State of Karnataka /vs/ Lokesh and others). In the said decision it is held that " if the panchas are not available or un reliable, the panchanama can be proved through the evidence of Investigating Officer." In the present case evidence of Investigating Officer is more reliable and trustworthy of acceptance. Hence I accept the evidence of I.O. in proof of seizure of the material objects. Merely because important eyewitnesses are related to each other their evidence cannot be discarded. In this context I refer to a decision of Hon'ble Appex Court in the case of Shyam Babu /vs/ State of U.P.(AIR 2012 S.C. Page 3311).
83. It is argued that prosecution has failed to prove the motive factor. Accused has no motive to murder the deceased Anand. Hence prosecution has failed to prove its case. But I am unable to accept this argument as the entire case of the 51 SC 1269-2013 prosecution is based on evidence of eyewitnesses. When there are eyewitnesses to the instant case, motive is not relevant is the settled position of law. Therefore, I am unable to appreciate the above line of arguments of learned advocate for accused.
84. Looked from any angle I find that prosecution by examining P.Ws. 1 to 31 and by producing the Exs.P 1 to P.27 documents and by producing M.Os. 1 to M.O.9 has ably proved its case against the accused beyond all reasonable doubt. This court has held that the prosecution has proved the death of Ananda @ Ulla is a homicidal death. Therefore, the prosecution has established that Accused 1 to 5 are guilty of the committing the offences punishable U/Ss. 143, 147 & 302 of I.P.C. R/W. Sec. 149 of I.P.C. Hence for the reasons and discussions made above I answer Point Nos. 1 to 4 in the Affirmative.
85. Point No.5:- In view of above reasons and discussion to Point Nos. 1 to 4, in the result I proceed to pass the following:
ORDER Acting U/Sec. 235(2) of Cr.P.C. Accused 1 to 5 are found guilty and hence convicted for the offences punishable U/Secs. 143, 147 and 302 of 52 SC 1269-2013 I.P.C. R/W. Section 149 of I.P.C.
The order regarding sentence would be passed after hearing the accused on sentence.
(Dictated to the Judgmentwriter, transcribed and typed by her and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 21st day of August, 2019) (Venkatesh R.Hulgi) LI Addl.City Civil & Sessions Judge, Bengaluru City ORDER ON SENTENCE The learned Advocates for the accused and Learned Public Prosecutor are present.
Heard the arguments of both the sides on the quantum of sentence and perused the materials placed on record.
Learned Advocates for the accused would submit that Accused 1 to 5 are very young at age and their average age is 25 years. All are bachelors having aged parents and siblings to look after. Accused are the only bread winners of their respective families. They are the first offenders having no any criminal antecedents. They have been falsely implicated in the 53 SC 1269-2013 present case by the police for some extraneous reasons.
Therefore, it is submitted that taking lenient view minimum punishment prescribed under the Law may be imposed.
Per contra learned Public Prosecutor would submit that prosecution has proved the guilt of the accused beyond all reasonable doubt by adducing cogent evidence. Accused have murdered victim Ananda @ Ulla who was hardly aged about 28 years having a wife and child. The parents of the deceased have lost their son who was the only bread earner. Hence it is submitted that considering the above facts maximum punishment prescribed under the Law may be imposed on the accused.
In the judgment I have discussed the evidence made available by the prosecution in the instant case in detail. The court found that the accused 1 to 5 have committed the offences alleged against them. The accused have been convicted even for the offence punishable U/S. 302 of I.P.C. I have taken into consideration the submissions made by Learned Advocates for accused and noticed the plight of the accused.
Section 302 of I.P.C. prescribes the death sentence or imprisonment of life and also prescribes imposition of fine. As the accused are found guilty for the offence punishable U/Sec. 54
SC 1269-2013 302 of I.P.C., this Court has no alternative but to impose either the death sentence or imprisonment for life.
The facts and circumstances of the instant case in my opinion suggests that the present case does not fall under the category of rarest of rare case. Hence I refrain from imposing death sentence on the accused. The next alternative only is to impose life imprisonment in the present case. I feel that if the accused are sentenced to undergo imprisonment for life, it would meet the ends of justice. Hence, for the foregoing reasons I proceed to pass the following:
SENTENCE ORDER The Accused 1 to 5 are hereby convicted for the offence punishable U/S. 143 of I.P.C. and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- each. In default they shall undergo simple imprisonment for one month each.
The Accused 1 to 5 are convicted for the offence punishable U/S. 147 of I.P.C. and sentenced to undergo simple imprisonment for one year each and to pay a fine of Rs. 1,000/- each. In default they shall undergo simple imprisonment for three months each.
The accused 1 to 5 are convicted for the offence 55 SC 1269-2013 punishable U/S. 302 of I.P.C. R/W. Section 149 of I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each. In default they shall undergo simple imprisonment for one year each.
All the sentences of imprisonment shall run concurrently. The fine amount if deposited by the accused out of the said fine amount Rs. 25,000/- shall to paid to P.W. 7 Smt.Saritha wife of deceased Ananda @ Ulla after proper identification. The seized properties marked at M.O. No's. 1 to 9 being worthless, are hereby ordered to be destroyed after the efflux of the appeal period.
The office is hereby directed to supply a copy of the judgment, immediately to the accused persons free of cost, in compliance with the Provisions of Section 363 of Cr.P.C. Issue conviction warrant accordingly.
(Venkatesh R.Hulgi) LI Addl.City Civil & Sessions Judge, Bengaluru City 56 SC 1269-2013 APPENDIX List of the witnesses examined for the prosecution-side:
PW.1 Rajesh PW.2 Nagaraju PW.3 Raju PW.4 Smt. R. Mala PW.5 Smt. Usha PW.6 Seetharam PW.7 Smt. Saritha PW.8 Dhananjaya PW.9 Smt. Lakshmamma PW.10 Vinay M PW.11 Sunil PW.12 Karthik PW.13 Chinna PW.14 L. Rajesh PW.15 Dr. S.R. Jagannath PW.16 Nandisha PW.17 Dr. Suresh V PW.18 Siddaiah PW.19 Dr. Anand K PW.20 C. Ravikumar PW.21 Kempegowda PW.22 Shashidhar PW.23 Karthik PW.24 Bharath PW.25 Vinod Kumar N PW.26 Lakshman Rathod PW.27 Smt. Shree Vidya PW.28 Dr. Guruprasad M.R. PW.29 Smt. Shahanaz Fathima PW.30 Manjunath Pandith P.N. PW.31 R.C. Lokeshkumar
List of documents exhibited for the prosecution-side:
Ex.P.1 Statement of the PW.1. Ex.P.1(a) Signature of the PW.1. Ex.P.1(b) Signature of the PW.30. Ex.P.2 Spot-mahazar. Ex.P.2(a) Signature of the PW.1. 57 SC 1269-2013 Ex.P.2(b) Signature of the PW.13. Ex.P.2(c) Signature of the PW.30. Ex.P.3 Mahazar. Ex.P.3(a) Signature of the PW.2. Ex.P.3(b) Signature of the PW.14. Px.P.3(c) Signature of the PW.30. Ex.P.4 Statement of the PW.3. Ex.P.5 Statement of the PW.9. Ex.P.6 Inquest-panchanama. Ex.P.6(a) Signature of the PW.10. Ex.P.6(b) Signature of the PW.31. Ex.P.7 Seizure-mahazar. Ex.P.7(a) Signature of the PW.11. Ex.P.7(b) Signature of the PW.12. Ex.P.7(c) Signature of the PW.31. Ex.P.8 Post-mortem-report. Exs.P.8(a) }{ Signatures of the PW.15. to P.8(c) }{ Ex.P.8(d) Signature of the PW.31. Ex.P.9 Opinion from KIMS Hospital & Research Centre. Exs.P.9(a) }{ Signatures of the PW.15. & P.9(b) }{ Ex.P.10 Seizure-panchanama. Ex.P.10(a) Signature of the PW.16. Ex.P.10(b) Signature of the PW.31. Ex.P.11 Wound-certificate. Ex.P.11(a) Signature of the PW.17. Ex.P.11(b) Signature of the PW.31. Ex.P.12 Wound-certificate. Ex.P.12(a) Signature of the PW.19. Ex.P.12(b) Signature of the PW.31. Ex.P.13 Report. Ex.P.13(a) Signature of the PW.21. Ex.P.13(b) Signature of the PW.31. Ex.P.14 Report. Ex.P.14(a) Signature of the PW.21. Ex.P.14(b) Signature of the PW.31. Ex.P.15 Seizure-panchanama. Ex.P.15(a) Signature of the PW.22. Ex.P.15(b) Signature of the PW.25. Ex.P.15(c) Signature of the PW.31. Ex.P.16 Seizure-panchanama. Ex.P.16(a) Signature of the PW.23. Ex.P.16(b) Signature of the PW.24. Ex.P.16(c) Signature of the PW.31. 58 SC 1269-2013 Ex.P.17 FSL-report. Ex.P.17(a) Signature of the PW.27. Ex.P.17(b) Signature of the Asst. Director. Ex.P.17(c) Signature of the Director. Ex.P.17(d) Signature of the PW.31. Ex.P.18 Death-intimation. Ex.P.18(a) Signature of the PW.28. Ex.P.18(b) Signature of the PW.31. Ex.P.19 FSL-report. Ex.P.19(a) Signature of the PW.29. Ex.P.19(b) Signature of the Asst. Director. Ex.P.19(c) Signature of the Director. Ex.P.19(d) Signature of the PW.31. Ex.P.20 First Information Report. Ex.P.20(a) Signature of the PW.30. Ex.P.21 Voluntary-statement of the accused No.2. Ex.P.21(a) Signature of the PW.30. Ex.P.21(b) Signature of the accused No.2. Ex.P.22 Requisition-letter addressed to the KIMS Hospital
for conducting the post-mortem of the deceased S. Anand @ Ulla.
Ex.P.22(a) Signature of the PW.31.
Exs.P.23 }{ Voluntary-statements of the accused No's.3 to 5.
to P.25 }{
Exs.P.23(a) }{ Signatures of the accused No's.3 to 5.
to P.25(c) }{
Exs.P.23(b) }{ Signatures of the PW.31.
to P.25(b) }{
Ex.P.26 Acknowledgement from FSL.
Ex.P.26(a) Signature of the PW.31.
Ex.P.27 Requisition-letter.
Ex.P.27(a) Signature of the PW.31.
List of material-objects marked for the prosecution-side:
MO No.1 Plastic-box containing bloodstained-cement-pieces. MO No.2 Plastic-box containing pieces of sample-cement.
MO No.3 Sweater. MO No.4 Two-pairs of chappals (total 4 chappals). MO No's.5 to 9 Five-wooden-clubs. MO No.6(a) Signature of the PW.30.
List of witnesses examined for the defence-side:
- NIL -59
SC 1269-2013 List of documents exhibited for the defence-side:
- NIL -
LI Addl. City Civil & Sessions Judge, Bengaluru City.
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