Bangalore District Court
State Of Karnataka vs Dilip @ Pattabi on 23 August, 2018
IN THE COURT OF THE LXII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY [CCH.63]
Dated: This the 23rd day of August, 2018
: Present :
Sri PARAMESHWARA PRASANNA B., B.A., L.L.B.,
LXII Additional City Civil & Sessions Judge,
Bengaluru City.
Sessions Case No.541/2016
Complainant : State of Karnataka
By Chamaraj Pet Police Station,
Bengaluru,
[By : Public Prosecutor]
Vs.
Accused : 1. Dilip @ Pattabi,
S/o Ravi,
Aged about 27 years,
2. R. Surya,
S/o Ravi,
Aged about 23 years,
Both are residing at 7th Main,
8th Cross, Kavika Layout,
Mysore Road, RPC Layout, Bengaluru.
Permanent address at No.326,
10th Cross, 10th Main,
Mangamma Market Road,
Anandapura, Mysore Road,
Bengaluru-560002.
3. M. Vinodkumar @ Vinod,
S/o Late Masilamani,
Aged about 25 years,
Residing at No.224,
2 S.C.No.541/2016
Mangamma Market Road,
Near Sulabha Shouchalaya,
Anandapura, Bengaluru-560002.
(A.3 is in judicial custody).
4. Suresh @ Adooru Suresh,
S/o Late Masilamani,
Aged about 31 years,
R/at Door No.428, 2nd Main Road,
Anandapuram, Mysore Road,
Bengaluru.
5. J. Sunil @ J.J.,
S/o Jhon,
Aged about 25 years,
R/at Door No.222,
3rd Main, 3rd Cross,
Near Chowdeshwari Temple,
Kurubarahalli, Bengaluru.
6. Purushothamm @ Bilal, (Split-up)
7. Suresh Kumar @ Shunti
@ Chinti @ Pradeepa, (Split-up)
8. N. Raghunandan @ Halu,
S/o Narayangowda,
Aged about 21 years,
R/at Door No.43, 13th Cross,
2nd Main, Kaveripura,
Kamakshipalya,
Bengaluru-560079.
9. Ayaz, (Split-up)
[A1, A2, A5 & A8-by Sri P.R. Bhat, Advocate,
A4-by Sri S. Munibyregowda, Advocate]
Date of commission of offence 18-11-2015
Date of report of offence 18-11-2015
3 S.C.No.541/2016
Arrest of the Accused Accused Nos.1 to 3, 5 and 8
arrested on 25.11.2015,
Accused No.4 arrested on
19.01.2016.
Name of the complainant Smt. Prema
Date of commencement of trial 25.09.2017
Date of closing of prosecution 23.06.2018
evidence
Offences complained of Under Sections 120(B), 143,
144, 148, 341, 302 read with
Section 149 and 114 of I.P.C.
Opinion of the Judge Accused Nos.1 to 5 and 8 are
acquitted under Section
235(1) of Cr.P.C.
JUDGMENT
The present case arise out of the charge sheet submitted by the Chamaraj Pet Police Station, against accused Nos.1 to 9 in Crime No.334/2015 for the offences under Sections 120(B), 143, 144, 148, 341, 302 read with Section 149 and 114 of I.P.C.
2. FIR registered in Crime No.334/2015 by Chamaraj Pet Police Station against accused 1 to 3 and others for the offences punishable under Section 143, 144, 302, 149 of I.P.C. based on the complaint lodged by Smt Prema, the relative of deceased Sanjay Kumar @ Chandala.
4 S.C.No.541/2016
3. In the complaint it is alleged that on 18.11.2015 at about 9.15 p.m., when the informant Smt Prema (CW.1), after finishing her dinner came out of her house, two unknown persons came and told her that her maternal uncle's son Sanjay Kumar @ Chandala was assaulted by some persons near Mysuru Road. On hearing the same, she along with her sister-in-law C.W.4-Smt.Shilpa, went to the place of incident. But by that time the injured Chandala was shifted to Victoria Hospital. When the informant and her sister-in-law reached Victoria Hospital at 9.30 p.m., they found that the injured Chandala was treated in the emergency ward. When she asked the deceased about the cause of injuries, the deceased told her that when he, along with his friend, was having tea near a hotel in Baba Line, Mysuru Road, the accused Nos.1 to 3 and others all of a sudden assaulted him with long, dragger and knife on his head, chest, legs and stomach. Later around 10.45 p.m. the said Chandala succumbed to the injuries, in the Victoria Hospital. In the said complaint, it is further stated that the deceased had bad antecedents, he was involved in various illegal activities and even as a juvenile he was tried before the Juvenile Court and on account of his bad antecedents the accused Nos.1 to 3 and 5 S.C.No.541/2016 others who were enimically disposed towards him have caused his death. Thereafter, on completion of investigation, Chamaraj Pet Police Station filed the charge sheet against the accused Nos.1 to 9 for the offences punishable under Section 120(B), 143, 144, 148, 341, 114, 302 read with Section 149 of I.P.C. and Section 419 and 420 of I.P.C.
4. The brief facts as culled out from the charge sheet is that on 15.11.2015 accused Nos.1 to 9 in Madana Kalyana Mantapa, Chamaraj Pet, in retaliation of previous enimity, hatched conspiracy to kill the deceased Sanjeev Kumar @ Chandala. That on 18.11.2015 at about 9.00 p.m., accused Nos.1 to 3 and 5 to 9, in auto rickshaw bearing KA-02-AD-3650, Honda Activa two wheeler bearing No.KA-05-JD-2261 and another Honda Deo motor cycle without any number plate, came below the fly over in front of Broiler Chikken Shop, Baba Line, Nijamuddin Mohalla, Mysuru Road and at the instigation of accused No.4, they formed themselves into an unlawful assembly with common object of causing death of the deceased Sanjay Kumar @ Chandala and in prosecution of the common object of unlawful assembly when accused No.5 unlawfully restrained the deceased by caughting hold of him, accused Nos.6 and 7 6 S.C.No.541/2016 assaulted the deceased by hand and when accused No.8 told the others to finish off the deceased, accused No.1 by dragger, stabbed on the chest and back of the deceased. Whereas, accused No.2 by dragger stabbed on the neck and abdomen of the deceased. Whereas, accused No.3 by long assaulted on the head, face beside ear, nose and legs of the deceased, by causing bleeding injuries and sped away from the spot. Later, the deceased was shifted to Victoria Hospital and due to the injuries sustained in the assault, he died at the hospital at 10.45 p.m. and thereby accused Nos.1 to 9 committed the offences punishable under Section 120(B), 143, 144, 148, 341, 114, 302 read with Section 149 of I.P.C.
5. On receipt of the charge sheet, the learned 24th A.C.M.M., Bengaluru, took cognizance of the offences against the accused Nos.1 to 9 for the offences punishable under Sections 120(B), 143, 144, 148, 341, 114, 302 read with Section 149 of I.P.C. Since, despite of coercive steps, accused Nos.6, 7 and 9 were not secured, the case against them came to be split up as per the Order of the learned 24th A.C.M.M. dated 10.03.2016. Since the offences are exclusively triable by the Court of Sessions, the learned 24th A.C.M.M., as per Order dated 7 S.C.No.541/2016 10.03.2016 committed the case against accused Nos.1 to 5 and 8 to the Hon'ble Principal City Civil and Sessions Judge, Bengaluru. That, on committal of the case to the Hon'ble Principal City Civil and Sessions Judge, case was registered in S.C.No.541/2016 and the same was made over to this Court for disposal in accordance with law.
6. That, after admitting of the case, accused Nos.1 to 5 and 8 were secured. On hearing of the Prosecution as well as learned defence counsel under Section 227 of Cr.P.C., this Court initially framed the charge against accused Nos.1 to 5 and 8 for the offence punishable under Section 120(B), 143, 144, 148, 341, 302 read with Section 149 of I.P.C. and charge was also framed against accused No.4 for the offence punishable under Section 114 of I.P.C. When the contents of charge were read over and explained to accused Nos.1 to 5 and 8 in Kannada a language known to them, the accused Nos.1 to 5 and 8 pleaded not guilty and claims to be tried.
7. That out of 59 witnesses cited in the charge sheet, the prosecution, in order to prove its case, initilly got examined 15 witnesses as PW.1 to PW.15 and got marked documents as 8 S.C.No.541/2016 Exs.P1 to P24. In this case, since the complainant and eye witnesses have been turned hostile and as there is direction by the Hon'ble High Court of Karnataka to dispose of this case expeditiously and as the prosecution has not secured CW.7, 12, 20, 29, 56 despite of sufficient opportunity, the prayer of the learned Public Prosecutor for re-issuing further process against the aforesaid witnesses was rejected and the prosecution evidence was taken as closed on 23.06.2018. Since initially there was no incriminating circumstance appearing in the evidence of the prosecution witnesses, the examination of accused Nos.1 to 5 and 8 under Section 313 of Cr.P.C., was dispensed and after hearing the arguments, earlier the case was posted for judgment to 03.07.2018. That on 03.07.2018 the learned Public Prosecutor has filed application under Section 193 of Cr.P.C., for taking cognizance of the offences punishable under Sections 419 and 420 of IPC against accused No.3 on the basis of the additional charge sheet filed by Chamaraj Pet Police Station directly before this Court on 03.04.2017. As per the additional charge sheet, in addition to other offences, the accused No.3 affixed his photograph on the copy of voter's I.D. of CW.34 and by giving the said voter's I.D. to Idea Company he obtained mobile SIM 9 S.C.No.541/2016 No.9091900755 and thereby the accused No.3 has committed the offences of impersonation and cheating punishable under Sections 419 and 420 of IPC. In support of the said allegations made against accused No.3, Chamaraj Pet Police along with supplemental charge sheet have produced the report of the Assistant Revenue Officer, BBMP and attested copy of voter's I.D. of CW.34. The said application filed under Section 193 of Cr.P.C., was resisted by the counsel for accused No.3 by filing objection and on hearing both the side, as per the order dated 13.07.2018, this Court allowed the application filed under Section 193 of Cr.P.C., and the cognizance was taken against accused No.3 for the offences punishable under Sections 419 and 420 of IPC. Since it was noticed that due to clerical mistake, there was some error in charge Nos.1 to 5 framed on 20.07.2017, charge Nos.1 to 5 framed earlier was altered on 13.07.2018 and the additional charge No.6 was framed against accused No.3 under Sections 419 and 420 of IPC. The altered charge Nos.1 to 4 for the offences punishable under Sections 120(B), 143, 144, 148, 341, 302 read with Section 149 of IPC was read over and explained to accused Nos.1 to 3, 5 and 8 and altered charge No.5 was framed against accused No.4 for the offence punishable 10 S.C.No.541/2016 under Section 109 read with Sections 143, 144, 148, 341, 302 read with Section 149 of IPC read over and explained to accused No.4 and the additional charge No.6 for the offences punishable under Sections 419 and 420 of IPC was read over and explained to accused No.3. The accused Nos.1 to 5 and 8 have pleaded not guilty and claims to be tried. Since the Court was of the opinion that the altered charge Nos.1 to 5 and additional charge No.6 will not prejudice the aforesaid accused persons in their defence or the learned Public Prosecutor in conduct of the case, the Court immediately proceeded with the trial. Thereafter, at the request of the prosecution, the process was issued for securing CW.56 to 59 and 34. The prosecution got examined CW.34 and 57 as PW.16 and 17 and got marked the additional documents as Ex.P25 to P27(a). Since despite of taking coercive steps, CW.55, 56, 58 and 59 were not secured by the concerned Police, the additional prosecution evidence was taken as closed on 06.08.2018. Since there are no incriminating circumstances appearing in the additional evidence led by the prosecution, the examination of accused Nos.1, 2, 5 and 8 under Section 313 of Cr.P.C., is dispensed and the statement of accused No.3 recorded under Section 313 of Cr.P.C. When the accused No.3 was 11 S.C.No.541/2016 examined under Section 313 of Cr.P.C., he denied the incriminating circumstances appearing in the evidence against him. The accused Nos.1 to 5 and 8 have not led any defence evidence on their behalf.
8. Heard arguments of both side. Perused the records.
9. Under the facts and circumstances of the case, the following Points arise for consideration of this Court:
1. Firstly, whether the prosecution proves beyond all reasonable doubt that the accused Nos.1 to 5 and 8 along with accused Nos.6, 7 and 9 on 15.11.2015 in Madana Kalyana Mantapa, Chamaraj Pet, on account of previous enmity, hatched conspiracy to kill the deceased Sanjay Kumar @ Chandala and beside the said conspiracy they did some acts in pursuance to commit the offence of murder, punishable with death or imprisonment for life and thereby the accused Nos.1 to 5 and 8 have committed the offence punishable under Section 120(B) of IPC?
2. Secondly, whether the prosecution proves beyond all reasonable doubt that, on the night of 18.11.2015 at about 9.00 p.m., the accused Nos.1 to 3, 5 and 8, along with accused Nos.6 and 7, at the instigation of accused No.4, formed themselves into an unlawful assembly below the Flyover, in front of M.M. Broiler Chicken Shop, Nizamuddin Mohalla, Baba Line, Mysuru Road, Bengaluru, with the common object of causing death of deceased Sanjay Kumar @ Chandala and in prosecution of the common object of unlawful assembly the accused Nos.1 and 2, being armed with deadly weapon of draggers and accused 12 S.C.No.541/2016 No.3, being armed with deadly weapon of long, used force and done rioting and thereby the accused Nos.1 to 3 and 5 and 8 have committed the offences punishable under Sections 143, 144 and 148 of IPC?
3. Thirdly, whether the prosecution proves beyond reasonable doubt that on the said date, time and place, in prosecution of the common object of unlawful assembly, accused No.5, wrongly restrained the deceased Sanjay Kumar @ Chandala and thereby accused Nos.1 to 3, 5 and 8 have committed offence punishable under Section 341 read with Section 149 of IPC?
4. Fourthly, whether the prosecution proves beyond all reasonable doubt that on the said date, time and place, in prosecution of the common object of unlawful assembly, the accused Nos.6 and 7 assaulted deceased Sanjay Kumar @ Chandala by hand and when accused No.8 told the other accused persons to kill the deceased, the accused No.1, locked the deceased through his left hand and stabbed on the chest and back of the deceased by dragger, and the accused No.2, by another dragger, stabbed on the neck and chest of the deceased and the accused No.3, by long, assaulted on the head, face, beside ear, nose and legs of the deceased and caused grievous injuries on the deceased, with the intention of causing his death and the deceased Sanjay Kumar @ Chandala succumbed to the injuries in Victoria Hospital at 10.45 p.m., on the said date and thereby, the accused Nos.1 to 3, 5 and 8 committed the offence of murder not amounting to culpable homicide, punishable under Section 302, read with Section 149 of IPC?
5. Fifthly, whether the prosecution proves beyond all reasonable doubt that on 15.11.2015 in Madana Kalayana Mantapa, Chamarajapet, abated accused Nos.1 to 3, 5 and 8 and accused Nos.6, 7 13 S.C.No.541/2016 and 9, to kill the deceased Sanjay Kumar @ Chandala and in pursuance of the said abatement, accused Nos.1 to 3, 5 and 8 and accused Nos.6 and 7 have committed the murder of the deceased Sanjay Kumar @ Chandala on 18.11.2015, by committing the offences punishable under Sections 143, 144, 148, 341, 302, read with Section 149 of IPC and thereby, the accused No.4 has committed the offence punishable under Section 109 read with Sections 143, 144, 148, 341, 302 read with Section 149 of IPC?
6. Sixthly, whether the prosecution proves beyond all reasonable doubt that accused No.3 affixed his photograph on the copy of the Voter's I.D. of C.W.34 - Mr. Sundar and by giving copy of said Voter's I.D. to Idea Company, the accused No.3 obtained Mobile SIM No.9071900755 and thereby the accused No.3 committed the offences of impersonation and cheating, punishable under Section 419 and 420 of IPC?
7. What Order?
10. My findings on the above points are as under:
Point Nos.1 to 5 : In the negative,
Point No.6 : As per final order,
for the following:
REASONS
11. Point Nos.1 to 5 :- Since the Points No.1 to 5
are inter-connected with each other, they are taken together for discussion for the sake of brevity and convenience. 14 S.C.No.541/2016
12. In order to prove the case of the prosecution, out of 59 witnesses cited in the charge sheet, the prosecution got examined 15 witnesses as PW.1 to PW.15 and got marked the documents as Exs.P1 to P24. PW.1, PW.3, P.W.4, PW.5, PW.14, are the alleged eye witnesses and PW.2 is the complainant. All the aforesaid 15 witnesses examined by the prosecution have turned hostile.
13. PW1-Mr.David, who is the alleged eye witness and the alleged witness to the spot mahazar dated 19.11.2015 deposed that, he does not know the deceased and he does not know the accused Nos.1 to 5 and 8 and he has not seen the alleged incident and he has not shown the spot to the police. Even though he admitted his signature in Ex.P1-Spot Mahazar dated 19.11.2015, he stated that, he is not aware about its contents and during cross-examination by the learned Public Prosecutor, he denied the causing of the death of the deceased by the accused and also the drawing of the mahazar at the spot by the police, as per Ex.P1 and he also denied to have given the statement to the police as per Ex.P2.
15 S.C.No.541/2016
14. PW.2-Smt Prema, complainant, deposed that the deceased Sanjay Kumar @ Chandala is the son of her maternal uncle. C.W.4-Smt.Shilpa is her sister-in-law, C.W.5-Smt.Rosalin Kumari is the mother of the deceased, C.W.6-Smt.Navyashri is the wife off the deceased. She stated that the deceased Chandala was residing in the area near to her house. She stated that about one year back, one day, when she was in house, some public informed her that Sanjay Kumar was assaulted by somebody and he was admitted to Victoria Hospital. So, she along with CW.4- Smt Shilpa went to the Victoria Hospital. When she went to Victoria Hospital, Sanjay Kumar @ Chandala was alive and he was undergoing the treatment in the emergency ward and within half an hour after they reaching the hospital, the deceased Sanjay Kumar @ Chandala died. Thereafter, since the police summoned her, she went to the Police Station and given the police complaint. She deposed that, she has not stated as to who caused the death of the deceased in the said complaint. She stated that she does not know the accused Nos.1 to 5 and 8. During the cross-examination by the Learned Public Prosecutor, she denied to have given the complaint as per Ex.P3 and she also denied of giving further statement to the police as per Ex.P4. 16 S.C.No.541/2016 During cross-examination by the counsel for accused No.5, she stated that Ex.P3 was typed in the Police Station and she has signed it, but she does not know its contents.
15. PW.3- Mr. Akmal, PW.4- Mr. Syed Altaf, PW.5-Mr. Abdul Rafiq, PW.14- Mr. Mohd.Shafi, who are the alleged eye witnesses to the alleged incident, deposed that they have not seen the incident and they are not acquainted with the accused and they are not aware of the murder of Sanjay Kumar @ Chandala and during the cross-examination by the learned Public Prosecutor, they denied to have given the statement to the police, as per as Exs.P5, P6, P7 and P23, respectively.
16. PW.6-Mr.Vasantkumar, who is the alleged witness to the search mahazar dated 25.11.2015 marked as Ex.P8 and the recovery mahazar dated 26.11.2015 marked as Ex.P9, deposed that he signed Exs.P8 and P9 about two years back in Chamaraj Pet Police Station and he does not know about the contents of Exs.P8 and P9 and he stated that at the time of taking his signature on Exs.P8 and P9, the police have not seized any articles and during cross-examination by the Learned Public Prosecutor, he denied the recovering of two mobile phones from 17 S.C.No.541/2016 accused No.8 by drawing the mahazar as per Ex.P8 and he also denied the seizing of the pant and T-shirt worn by accused No.5 during the incident from the house of accused No.5 at the instance of accused No.5, by drawing the mahazar, as per Ex.P9. He further denied the seizing of auto rickshaw alleged to have been used for the commission of crime, bearing No.KA-02-AD- 3650 in his presence by the police at the instance of accused No.5.
17. PW.7- Mr. Kumar, who is the alleged witness to the mahazar dated 21.01.2016 marked as Ex.P10, deposed that he signed on Ex.P10 about 7 to 8 months back in the Chamaraj Pet Police Station and he does not know about its contents and during the cross-examination by the Learned Public Prosecutor he denied that on 21.01.2016 the Chamaraj Pet police took him, accused No.4 and CW.25 to Madan Kalayana Mantapa, near Mysuru Circle. He also denied that accused No.4 shown them a room in the 2nd floor of said Madan Kalyana Mantapa, where they alleged to have hatched conspiracy to commit the murder of Chandala. Further he denied the drawing of the mahazar at the said place by the police as per Ex.P10 and he also denied of giving the statement to the police as per Ex.P11. 18 S.C.No.541/2016
18. PW.8-Mr. Uday Kumar deposed that till last six months he was working as a guard in the auto parking shed of one Mr. Mani, near Bengaluru Press. He stated that he does not know accused No.1, 5 and 8. He stated that police have not enquired him regarding the incident and he does not know about the incident and during the cross-examination by the Learned Public Prosecutor, he denied that on 26-11-2015 at the instance of accused No.5, the police seized the auto rickshaw in the auto shed where he was working. He also denied to have given the statement to the police as per Ex.P12.
19. PW.9 -Smt Kusuma deposed that she does not know about the incident and she does not know about the murder of Sanjay Kumar @ Chandala and during cross-examination she denied that her brother-in-law, accused No.3, took her mobile containing Airtel SIM No.7022155706 and she also denied that accused No.3 had used the said mobile on the date of incident and on the day prior to the incident. She denied to have given the statement to the police as per Ex.P13.
20. PW.10- Mr. Sanjay P. Jadhav deposed that he is the R.C. owner of the Honda Activa bearing registration No.KA-05-JD- 19 S.C.No.541/2016 2261. He stated that one year back he had given his motor cycle to his friend Mr. Prakash and said Mr. Prakash failed to return the said vehicle even after lapse of 4 days and when he made phone call said Mr. Prakash not received his phone call. Thereafter, Chamaraj Pet Police intimated through phone that they have secured his vehicle and they told him to come to the Police Station and when he went to Police Station, the police shown him his motor cycle and he got released the said vehicle to his interim custody by applying before the concerned Court. During cross- examination by the learned Public Prosecutor, he denied that accused No.1 on 18.11.2015 evening 5.30 p.m. took his Honda Activa motor cycle bearing KA-05-JD-2261. He also denied that the said vehicle was used for committing the murder of Chandala and he denied to have given statement to the police as per Ex.P14.
21. PW.11- Mr. Jagannath, who is the alleged witness to the spot mahazar-Ex.P1 dated 19.11.2015, Ex.P15-seizure mahazar dated 19.11.2015 and Ex.P9-seizure mahazar dated 26.11.2015 deposed that about 2 years back in Police Station he had put his signatures on Ex.P1, P9 and P15. He stated that he does not know the contents of Exs.P1, P9 and P15 and the police 20 S.C.No.541/2016 have not seized any articles in his presence. During cross- examination by the learned Public Prosecutor he has denied the drawing of the spot mahazar as per Ex.P1 and the seizure mahazar as per Exs.P9 and P15 and he denied to have given the statement to the police as per Ex.P16.
22. PW.12-Mr. Gagan, who is the alleged witness to Ex.P17-mahazar dated 19.11.2015, Ex.P19- seizure mahazar dated 27.11.2015 deposed that about 2 to 3 years back the police have obtained his signatures on Exs.P17 and P18 in the Chamaraj Pet Police Station. He stated that he does not know the contents of Exs.P17 and P18 and the police have not seized anything in his presence. During cross-examination by the Learned Public Prosecutor he denied that on 19.11.2015 the C.W.56-I.O. summoned him, C.W.3-Mr. Anil Kumar and C.W.18- Mr. Kamalesh and he denied that on showing of the place where the deceased's apparels were thrown by C.W.3, mahazar was drawn as per Ex.P17. He also denied the seizure of the Honda Activa Motor cycle bearing KA-05-JD-2261 alleged to have used for the crime by the I.O. by drawing the mahazar in his presence as per Ex.P18. He denied to have given the statement to the police as per Ex.P19.
21 S.C.No.541/2016
23. PW.13-Mr. Mubarak Khan the alleged witness to Ex.P20 -seizure mahazar dated 25.11.2015 deposed that about 2 years back when he went to Chamaraj Pet Police Station for lodging complaint regarding theft took place in his shop, the police obtained his signature on Ex.P20. He stated that he does not know the contents of Ex.P20 and the police have not read over the contents of Ex.P20 to him. During cross-examination by the Learned Public Prosecutor he denied the recovery of two draggers and one long used for the alleged crime and the blood stained cloths worn by accused 1 to 3 from the house of accused No.1 by drawing mahazar as per Ex.P20 and during cross- examination he also denied of having given the statement to the police as per Ex.P21.
24. P.W.15-Mr. Manjunath, the alleged pancha witness to the recovery mahazar dated 25.11.2015 marked as Ex.P20, stated that he had put his signature at Ex.P20 about 2½ hears back when Chamaraj Pet police came to the house of accused No.6 at Okalipuram. He stated that, he has not given any statement to the police regarding the alleged incident. During the cross-examination by the learned Public Prosecutor he denied the recovery of two draggers, one long and blood stained cloths at 22 S.C.No.541/2016 the instance of accused No.1 to 3 from the house of accused No.1, by drawing mahazar as per Ex.P20 and he denied of giving statement to the police as per Ex.P24.
25. It is pertinent to note that C.W.38- Smt Dr. C.N. Sumangala, Assistant Professor, B.M.C.R.I., who conducted the post mortem of the deceased, attended the Court on 14.03.2018 and on the said date learned Public Prosecutor submitted that he gives up C.W.38, subject to marking of the Post Mortem Examination Report, with the consent of counsel for accused 1 to 5 and 8 and with the consent of the respective counsels for accused 1 to 5 and 8 the Post Mortem Examination Report of the deceased is marked as Ex.P22. In view of the marking of the Post Mortem Report of the deceased, the death of the deceased due to the injuries stated in Ex.P22-Post Mortem Report is not in dispute. According to Ex.P22, the deceased has sustained total 14 external injuries mentioned therein and in Ex.P22 C.W.38 has opined that "Death is due to shock and hemorrhage, as a result of multiple chop and stab injuries sustained."
26. Now let me consider whether on the basis of the above evidence, the prosecution has proved that accused 1 to 5 23 S.C.No.541/2016 and 8 and others caused aforesaid injuries. It is pertinent to note that out of 15 witnesses examined by the prosecution, none of the witnesses have deposed that accused 1 to 5 and 8 and others inflected the aforesaid injuries and caused the death of the deceased.
27. According to the prosecution, I.O. drawn the mahazar at the spot of the incident from 7 a.m., to 8 p.m., on 19.11.2015 in the presence of the alleged eye witness-PW.1- Mr.David and pancha witness- PW.1- Mr. Jagannath and C.W.16- Mr. Ramesh on showing of the spot by the P.W.1. But, P.Ws.1 and 16 in their evidence have denied the drawing of the spot mahazar by the I.O. as per Ex.P1.
28. As per the Search Mahazar dated 25.11.2015 marked as Ex.P8, two mobiles were alleged to have recovered on personal search of accused No.8 and they were alleged to have seized in the presence of pancha witnesses- PW.6-Mr.Vasanth Kumar and CW.21- B.K. Naveen Kumar. But PW.6 in his evidence has categorically denied the drawing of the mahazar and the alleged seizure a per Ex.P8and C.W21 another pancha witness to Ex.P8 has not examined by prosecution.
24 S.C.No.541/2016
29. As per Ex.P9, the blood stained T-Shirt and blood stained pant, alleged to have worn by accused No.5 during incident, were recovered from the house of accused No.5 at the instance of accused No.5 and further the auto rickshaw alleged to have been used for the offence, was recovered at the instance of accused No.5 from Mani Auto Garage in Mysuru Road in the presence of the pancha witnesses-P.W.6-Mr. Vasanth Kumar and PW.11-Mr.Jagannath. But, both PW.6 and P.W.11 denied the alleged signature by drawing of the mahazar as per Ex.P9.
30. The prosecution claims that, as per Ex.P10 dated 21.01.2016, the I.O. drawn mahazar in a room in the 2nd floor of Madana Kalyana Mantapa in 9th Cross, I Main, Chamaraj Pet, where the accused No.1 to 9 alleged to have hatched conspiracy to commit the murder of the deceased and Ex.P10 alleged to have drawn in the presence of pancha witnesses PW.7-Mr.Kumar and C.W.25-Mr. Kanniappan. But, PW.7, in his evidence denied the drawing of the mahazar as per Ex.P10 and C.W25 has not been examined by the prosecution.
31. The prosecution claims that CW.3 - the brother of the deceased, has thrown the apparels worn by the deceased 25 S.C.No.541/2016 during the incident near the compound of emergency ward at Victoria Hospital. It is alleged by the prosecution that at the instance of C.W.3 the search was made for tracing out of said wearing apparels of the deceased in the said place, but said cloths were not traced out and at that time the I.O., in the presence of C.W.3 and pancha witnesses PW.12-Mr. Gagan and CW.18-Mr. Kamalesh drawn the mahazar dated 19.11.2015 as per Ex.P17, but, PW.12-Mr.Gagan in his evidence denied the drawing of the mahazar as per Ex.P17.
32. The prosecution further claims that, at the instance of accused No.1 and 8, in front of Police Station, the Honda Activa bearing registration No.KA-05-JD-2261 alleged to have used before the alleged crime, was seized by drawing the mahazar as per Ex.P18 on 27.11.2015 in the presence of PW.12- Mr.Gagan and C.W.18-Mr.Kamalesh. But, PW.12 has denied the drawing of the mahazar as per Ex.P18.
33. The prosecution further claims that as per Ex.P20- seizure mahazar dated 25.11.2015, two draggers, one long used for the commission of the alleged crime and the blood stained cloths alleged to have worn by accused No.1 to 3 during the 26 S.C.No.541/2016 incident, were recovered at the instance wearing apparels of accused No.1 to 3 in the house of accused No.1 in the presence of pancha witnesses PW.13-Mr.Vinodkumar and PW.15- Mr.Manjunath. But, both PW.13-Mr.Vinodkumar and PW.15- Mr.Manjunath have denied the seizure and drawing of the mahazar as per Ex.P20. In the instant case, the I.O. CW.56 has not been examined by the prosecution despite of sufficient opportunity. It is settled law that, if the independent pancha witnesses did not support the content of mahazar/panchanama, then it will be a mere piece of paper and it will not have any evidentiary value under the eye of law. Since the pancha witnesses have turned hostile and as the I.O. C.W.56 has not been examined, Mahazars marked as Exs.P1, P8, P9, P10, P15, P17, P18 and P20 have not proved by the prosecution. P.Ws.1 to 15, who have turned hostile, have not supported the prosecution to any extent and nothing favourable to the prosecution is elicited during their cross-examination by Learned Public Prosecutor.
34. In the instant case, none of the alleged seized articles were got marked by the prosecution. Since the pancha witnesses have turned hostile, the alleged recovery of weapons of the offence have not been proved by the prosecution. 27 S.C.No.541/2016
35. In Anil Shamrao Sute and another vs. State of Mysore, reported in 2013 Criminal Law Journal 2223 (SC) it was held that, "Section 27-Discovery of weapons-At the instance of accused-Prosecution could not rely on the evidence of discovery of weapons at the instance of the accused because panchas have turned hostile."
36. In the instant case, no evidence has been led in by the prosecution to show that the accused No.1 to 5 and 8 had motive to commit the murder of the deceased and there is no evidence to show that accused No.4 abated the other accused to commit the crime and he was present at the time of alleged crime. There is no evidence whatsoever to connect accused No.1 to 5 and 8 with the alleged crime. It is settled law that the burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It is settled principle of criminal jurisprudence that more serious the offences the stricter the degree of proof is required, since a higher degree of assurance is required to convict the accused. Though an offence may be gruesome and revolt the human conscience, accused can 28 S.C.No.541/2016 be convicted only on legal evidence and not on surmise and conjuncture.
37. The Hon'ble Supreme Court in Anil Sharma Sute and another vs. State of Mysore reported in 2013 Criminal Law Journal 2223 (SC) held that "Section 3 of the Indian Evidence Act-Appreciation of evidence-Proof of-Suspicion however strong cannot take the place of proof-Clear and unimpeachable evidence is necessary to convict a person."
38. In the instant case, there is no evidence whatsoever to connect the accused with the alleged crime. On careful scrutiny of entire evidence on record, it is seen that the essential ingredients of the offences punishable under Sections 120(B), 143, 144, 148, 341, 302 read with Section 149 and 109 of I.P.C. are not made out against accused 1 to 5 and 8. Hence, I am of the opinion that the prosecution has not proved the case against the accused 1 to 5 and 8 in respect of the aforesaid offences beyond reasonable doubt and as such, accused No.1 to 5 and 8 are entitled for benefit of doubt. Hence, I have answered Point Nos.1 to 5 in the negative.
29 S.C.No.541/2016
39. Point No.6 :- As per the additional charge sheet, in addition to other offences, the accused No.3 affixed his photograph on the copy of voter's ID of CW.34 and he by giving the said fabricated voter's ID to Idea Company obtained the mobile SIM No.9071900755 and thereby accused No.3 has committed the offence of impersonation and cheating punishable under Sections 419 and 420 of IPC.
40. In order to prove the said allegation against accused No.3, the prosecution has examined CW.34 as PW.16 and CW.57 as PW.17 and got marked the additional documents as Ex.P.25 to 27(a).
41. PW.16 in his evidence deposed that he does not know accused No.3. He stated that Ex.P25 is the extract of his voter's I.D. and Ex.P26 is the attested copy of his voter's I.D. He stated that about two years back Chamaraj Pet Police summoned him to the Police Station and informed him that accused No.3 by misusing his voter's I.D. details, had obtained the mobile SIM from Idea Company. During the cross-examination on behalf of accused No.3, he has stated that the Police have not shown to him copy of his voter's I.D. consisting of photograph of accused 30 S.C.No.541/2016 No.3. He has stated that Ex.P25 and P26 contains his photograph and he has not given his voter's I.D. to accused No.3. He stated that he has seen the accused No.3 for the first time before the Court through Video Conference. He stated that he has not given complaint against accused No.3 to the Police Station or to Idea Company regarding the alleged misuse of his voter's I.D.
42. PW.17 G. Linganna, the then Assistant Revenue Officer, BBMP, White Field Sub Division, Bengaluru has deposed that at the request of Chamaraj Pt Police Inspector, he had sent Ex.P25 i.e., extract of electoral role of PW.16 along with the letter marked as Ex.P27. During the cross-examination on behalf of accused No.3, he has stated that Ex.P.25 and P26 contains the photograph of PW.16.
43. According to the prosecution, accused No.3 affixed his photograph on the copy of the voter's I.D. of CW.34 and by giving the same to Idea Company obtained mobile SIM No.9071900755 and thereby he has committed the alleged offences punishable under Sections 419 and 420 of IPC. In this case, the prosecution has not produced the alleged fabricated 31 S.C.No.541/2016 voter's I.D. of CW.34 affixed with photograph of accused No.3. No documents issued by Idea Company has been produced to show that accused No.3 by fabricating the voter's I.D., of CW.34 has obtained the mobile SIM No.9071900755. Admittedly, no Police complaint has been given by PW.16 against accused No.3 regarding the alleged fabrication of his voter's I.D. There is no material before the Court to show that accused No.3 affixed his photograph on the copy of voter's I.D. of CW.34 and by giving the said fabricated document to Idea Company accused No.3 obtained the mobile SIM. On careful scrutiny of entire evidence on record, it is seen that the essential ingredients of the offences punishable under Sections 419 and 420 of IPC are not made out against the accused No.3. Hence, I am of the opinion that the prosecution has not proved the case against the accused No.3 for the alleged offences punishable under Sections 419 and 420 of IPC and as such, the accused No.3 is entitled for benefit of doubt in respect of the alleged offences punishable under Sections 419 and 420 of IPC. Hence, I have answered Point No.6 in the negative.
44. Point No.7 :- In view of the reasons discussed in Point Nos.1 to 6, I proceed to pass the following:- 32 S.C.No.541/2016
ORDER Acting under Section 235 (1) of Cr.P.C., the accused Nos.1 to 3, 5 and 8 are acquitted in respect of the offences punishable under Sections 120(B), 143, 144, 148, 341, 302 read with Section 149 of IPC and accused No.4 is acquitted in respect of the offence punishable under Section 109 read with Sections 143, 144, 148, 341, 302 read with Section 149 of IPC and accused No.3 is further acquitted in respect of the offences punishable under Sections 419 and 420 of IPC.
The articles shown in P.F.No.113/2015, 114/2015, 118/2015, 119/2015, 120/2015, 121/2015, 123/2015, 125/2015, and 4/2016 of Chamaraj Pet Police Station shall be preserved for the trial of split-up accused Nos. 7 and 9.
The accused Nos.1 to 5 and 8 shall execute personal bond for Rs.50,000/- each and furnish a surety for the likesum in compliance of Section 437(A) of Cr.P.C.
The Jail Authority is directed to release the accused No.3 after compliance of Section 437(A) of Cr.P.C., if he is not required in custody in any other case.
(Dictated to the Judgment Writer, transcribed and computerized printout taken thereof is corrected, signed and then pronounced by me in Open Court on this the 23rd day of August, 2018).
(PARAMESHWARA PRASANNA B.), LXII Addl. City Civil & Sessions Judge, Bengaluru City.
33 S.C.No.541/2016ANNEXURE List of witnesses examined on behalf of prosecution:-
P.W.1 David P.W.2 Smt.Prema P.W.3 Akmal P.W.4 Syed Altaf P.W.5 Abdul Rafiq P.W.6 Vasanthakumar P.W.7 Kumar P.W.8 Udaykumar P.W.9 Smt.Kalyani P.W.10 Sanjay P.Jadhav P.W.11 Jagannath P.W.12 Gagan P.W.13 Mubarak Khan P.W.14 Mohd. Shafi P.W.15 V. Manjunath
List of exhibits marked on behalf of prosecution :-
Ex.P1 Spot Mahazar dated:19-11-2015
Ex.P1(a) Signature of P.W.1
Ex.P1(b) Signature of P.W.11
Ex.P2 Statement of P.W.1
Ex.P3 Complaint by P.W.2
Ex.P4 Further statement of P.W.2
Ex.P5 Statement of P.W.3
Ex.P6 Statement of P.W.4
Ex.P7 Statement of P.W.5
Ex.P8 Search Mahazar dated:25-11-2015
Ex.P8(a) Signature of P.W.6
Ex.P9 Seizer Mahazar dated:26-11-2015
Ex.P9(a) Signature of P.W.6
Ex.P9(b) Signature of P.W.11
Ex.P10 Spot Mahazar dated:21-1-2016
Ex.P10(a) Signature of P.W.7
Ex.P11 Statement of P.W.7
Ex.P12 Statement of P.W.12
Ex.P13 Statement of P.W.9
Ex.P14 Statement of P.W.10
34 S.C.No.541/2016
Ex.P15 Cloth Seizer Mahazar dated:19-11-2015
Ex.P15(a) Signature of P.W.11
Ex.P16 Statement of P.W.11
Ex.P17 Spot Mahazar dated:19-11-2015
Ex.P17(a) Signature of P.W.12
Ex.P18 Weapon Seizer Mahazar dated:27-11-2015
Ex.P18(a) Signature of P.W.12
Ex.P19 Statement of P.W.12
Ex.P20 Seizer Mahazar dated:25-11-2015
Ex.P20(a) Signature of P.W.13
Ex.P20(b) Signature of P.W.15
Ex.P21 Statement of P.W.13
Ex.P22 Post Mortem Report dated: 19-11-2015
Ex.P23 Statement of P.W.14
Ex.P24 Statement of P.W.15
EX.P25 Copy of Voter's ID of PW.16
Ex.P25(a) Signature of PW.17
Ex.P.26 Copy of extract of Voter's ID of PW.16
Ex.P.27 Letter dated 22.11.2016 sent by PW.17 to IO
Ex.P.27 Signature of PW.17
List of material objects marked on behalf of prosecution:-
NIL List of witnesses examined on behalf of defence :-
NIL List of exhibits marked on behalf of defence :-
NIL List of material objects marked on behalf of defence :-
NIL (PARAMESHWARA PRASANNA B.), LXII Addl. City Civil & Sessions Judge, Bengaluru City.
*HRN/-