Bangalore District Court
State Of Karnataka vs Sisee Kariya @ Raja on 27 June, 2016
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-70)
Present: Sri T.P.Ramalinge Gowda,
LXIX Additional City Civil and
Sessions Judge,
Bengaluru.
Dated this the 27th day of June, 2016
SESSIONS CASE No.374/2012
Complainant : State of Karnataka
By Audugodi P.S.
(By Learned Public Prosecutor )
-V/S-
Accused : Sisee Kariya @ Raja
S/o Late Yesudas,
30 years,
r/o No.7, 1st Cross, 1st Main,
L.R. Nagar, Koramangala
Bangalore.
1 Date of commission of offence 26/10/2011
2 Date of report of occurrence 26/10/2011
3 Date of commencement of evidence 18/10/2012
4 Date of closing of evidence 11/03/2016
5 Name of the complainant Sri Chiranjeevi
6 Offence complained of U/s.302 & 201 of
IPC
2 SC No. 374/2012
7 Opinion of the Judge Charges not proved.
: JUDGMENT :
1. The P.I. of Audugodi P.S. Bengaluru has submitted the charge-sheet, against the accused for the offences punishable U/Sec.302, 201 of Indian Penal Code.
2. The case of the prosecution in brief is as follows:-
It is the case of the prosecution that on 26/10/2011 at about 10-00 p.m. at 1st Cross, L.R. Nagara of Koramangala within the jurisdiction of Audugodi police station, the accused made quarrel with deceased Arun and thereafter at about 10-30 p.m. when deceased Arun was sleeping in the newly constructing building situated before the house No.7, of CW.5 at 1st Cross of L.R. Nagar, the accused having ill will against the deceased due to said quarrel and with an intention to cause death of said Arun thrown cement concrete hallo block stone on his head and chest of the deceased and caused his death. Thereafter with an intention to destroy the evidence of causing murder, the accused drown the dead body in a water tank and hidden the blood stained cement hallo block stone and bed sheet of the deceased at N.D.R.I. Compound and thereby he has committed an offences punishable U/Secs.302, 201 of Indian Penal Code.
PW.1, brother of the deceased has lodged the complaint. The police have conducted spot, inquest and seizure panchanamas in the presence of the pancha witnesses. The police had recorded 3 SC No. 374/2012 statements of pancha witnesses and other witnesses. During investigation the police have collected the PM and Inquest report and other records and adopted in the charge-sheet. The police have filed the charge-sheet after detailed investigation against the accused.
3. The committal court after taking cognizance of the charge-sheet registered in C.C. No.4766/2012 and committed the case for trial under Sec. 209 of Code of Criminal Procedure, after complying the provision of Sec. 207 of Code of Criminal Procedure to Session court. Accused is remanded to JC. In pursuant to the committal order, on committal of the case, present case has been made over to this Court for trial in accordance with law. The accused is secured before this Court from judicial custody. After hearing the prosecution and accused, my predecessor has framed the charge. The charge is framed, read over and explained to him. The accused has pleaded not guilty and claims to be tried.
4. The Prosecution in all examined 20 witnesses as PW.1 to 20 and got marked 23 documents exhibited as Ex.P1 and P 23 and also got marked 4 MOs as MO.1 to MO.4. After the completion of prosecution side evidence, the statement of the accused is recorded U/Sec. 313 of Cr.P.C. Accused denied the incriminating evidence as false and he has not chosen to lead 4 SC No. 374/2012 defence evidence. Total denial of prosecution case is his defence.
5. This Court has heard the arguments of both sides and perused records carefully.
6. In the light of above materials and allegation of prosecution, following points arises for my consideration:-
1. Whether the prosecution proves beyond all reasonable doubt that on 26/10/2011 at about 10.30 p.m. at L.R. Nagar 1st Cross, Koramangala within the jurisdiction of Audugodi police station the accused with an intention did commit murder by intentionally (or knowing) causing the death of Arun with cement hallow block on his head and chest, thereby committed an offence punishable u/sec. 302 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place knowing (or having reason to believe) that certain offence, murder of Arun has been committed, did cause certain evidence of the said offence to disappear, the accused drown the dead body in the water tank, and hidden the hollow block, bed sheet near N.D.R.I. Compound with an intention of screening deceased Arun from legal punishment, thereby committed offence punishable u/sec. 201 of IPC?
3. What order?
7. My findings to the above points are as follows:-
5 SC No. 374/2012Point No.1 and 2:- In negative Point No.3 : - As per final order, for the following:-
: REASONS :
8. POINT NO.1 & 2:- The points no. 1 and 2 are taken up for common discussion. The prosecution has examined 20 witnesses out of 33 witnesses. PW.1 is the brother of deceased and complainant. PW.2 is the person who first identified the dead body and gave information to police and also statement on which UDR is registered. PW.3 is the eye witness, PW.4 and 5 are the husband and wife of the house wherein the murder is committed and the dead body is found. PW.6 is the circumstantial witness. PW.7 is the father of the deceased. PW.8 is the witness to the inquest mahazar. PW.9 is the spot mahazar witness. PW.10 is the recovery mahazar witness, PW.11 is another mahazar witness, PW.13 is the doctor who conducted PM examination, PW.14 is the FSL Officer, PW.12, 15 to 20 are police staff's and officials involved in the investigation. Some of witnesses charge sheeted are given up by the prosecution and others are dropped by this Court, as against the prayer of the prosecution, as they were not secured even after providing of sufficient opportunities.
9. It is specifically argued by the learned prosecutor that, complainant and eyewitnesses have supported the case of the prosecution coupled with the medical opinion and the IO has recovered the incriminating materials at the instance of the 6 SC No. 374/2012 voluntary statement made by the accused and accused has not given any explanation while recording his statement U/sec.313 of Cr.P.C. Further there may be omissions and minor contradictions in the evidence of the prosecution witnesses which do not affect the route of the prosecution case. There is sufficient evidence to convict the accused, as the prosecution proved the guilt of the accused beyond reasonable doubt. The learned Prosecutor has drawn my attention to the oral and documentary evidence produced in support of his contention. Hence it is rayed that accused should be convicted in accordance with law.
10. It is specifically argued by the counsel for the accused that, accused is totally innocent of the offences alleged, he as falsely fabricated and he has no parents and is a poor fellow, no iota of evidence is adduced by the prosecution. All the material witnesses are turned hostile to the prosecution case and even the alleged eye witness to the prosecution is also turned hostile and hence prays for acquittal of the accused by extending the benefit of doubt arised and in this regard defence counsel drawn the attention of this Court to the oral and documentary evidence in support of his contention.
11. The prosecution case is mainly depends upon the circumstantial evidence. Only one eye witness is PW.3 Roopa and all others are proved by way of indirect evidence. Therefore it is necessary to prove each circumstance and all the links without any missing. In order to bring home the charges leveled 7 SC No. 374/2012 against the accused, prosecution relied upon the evidence of PW.1 to 20.
12. PW.1 Chiranjeevi is the brother of the deceased Arun. He deposed in his examination-in-chief that at about one year back his brother was murdered, he know the accused, he is the friend of his deceased brother. He further deposed that one week earlier to murder of deceased, there was a quarrel between the deceased and accused near L.R. Circle, and he was advised that why quarrel is made to both of them and on 341/10/2011 he came to know that somebody was died in the water tank in a house situated in L.R.Nagara. An at about 7.30- 8 a.m. he went to there and police was also came there, wherein he saw the dead body of his brother Arun and the said house is belongs to PW.4 and PW.5 and the said house is a newly constructing building. Then he came to know that, PW.2 and others were identified the dead body as they smelt badly near water tank while they removing the centring provided to the roof of RCC. He further deposed that, police have conducted inquest mahazar and after inquest, he received the dead body and then the family members are performed the funeral ceremony of the dead body and at that time, he does not know who as committed the murder of his brother. It is again deposed by PW.1 that, he learnt from the talking's of the people in the locality that, due to the ill will aroused on the incident of the quarrel made by the deceased with the accused on 26/10/2011, accused has committed the murder of deceased, and as he has committed murder he was absconded 8 SC No. 374/2012 from the locality. Then he filed a complaint to the police suspecting the accused and seeking the enquiry of the accused by suspecting him, as per Ex.P.1. Though he supports the case of the prosecution in his chief-examination, his admissions during the cross-examination goes against the root of the prosecution case. "I cannot read and write in Kannada language. I do not know the contents of Ex.P.1. It is true to suggest that police have enquired and obtained the statement at only once on the date of tracing the dead body and not any other day. I do no disclose regarding the quarrel between the accused and deceased to the police and for the first time I deposed before this Court." Anyhow he denied the suggestion that accused is no way related to death of his deceased brother. By this way, case of the prosecution starts derailed and remaining independent witnesses are also followed PW1.
13.PW.2 Xavier, Centering Worker deposed that, about one year back he is working for the construction of the house of PW.4 and 5. When he was working along with his two assistants in removing of centering provided to the roof of RCC, he smelt badly near water tank and on verification he saw the hand of the dead body inside the water tank and flies are surrounded them, and then he informed to the police. Thereafter police came to the spot and took out the dead body from the water tank and he identified the dead body as he was the brother of his friend PW.1 and he does not know how he was died and he also deposed that he has given the complaint to the police. Due to the non-
9 SC No. 374/2012availability of his original statement, his further chief examination is deferred, but the prosecution has never again called him for further chief-examination and consequently he is not available for cross-examination by the accused. Thereby evidence of PW.2 cannot be consider and hence discarded. However, the said complaint is nothing but the statement of PW.2 is marked as Ex.P.19 through IO upon which police registered a UDR case and conducted the investigation.
14.PW.3 Roopa is the only eye witness as per the prosecution to the alleged murder of the deceased committed by the accused. She deposed that, she is acquainted with the accused and deceased. They resided near her house. Arun was died a year back in a water tank situated in the newly constructing house. The said deceased and accused are having the company. It is her evidence that she had not seen the quarrel made by them, she had visited the spot by hearing the talking's of the people in the locality and she deposed that she had not seen the committing of the murder of deceased by the accused and she had not gave statement to the police. Prosecution cross-examined her by treating her as hostile with the permission of the Court, she denied all the suggestions put by the prosecution as false, except the suggestion that "on 26/10/2011 at about 10-00 p.m. again they have made quarrel, my mother advised and send them" is as true and her statement is recorded as Ex.P.2 and she also not identified the MO.1 cement hollow block. "Further she denied the specific suggestion of 10 SC No. 374/2012 the prosecution that at about 10.30 p.m. when deceased was sleeping, accused took the cement hallow block laying there and put it on the head of the deceased due to the malice and when she rushed there by hearing the scream of the deceased and saw that accused again took the same cement block and put on his chest and he was become unconscious. When she questioned the same, the accused threatened her too with dire consequences if she told the same to anybody is false". In her cross-examination by the defence, she admitted the suggestion that "the said two are not made any quarrel and her mother has not advised and send them is true". Hence the evidence of PW.3 is no way helps to the prosecution, regarding the suggestion admitted by her in cross-examination, and in order to substantiate the same, prosecution has not examined her mother as witness. In the absence of corroboration by the other witnesses, her admission remained as grey sentence and do not require to give much importance to that admission. Rather it leads to a very significant missing link in connecting the accused to the crime. As the case alleged against the accused is one of the grievous forms and severe punishment is prescribed, corroboration and cogency is required.
15. Again PW.4 and 5 are the husband and wife, and owners of the newly constructing house, have deposed that they know the deceased but not acquainted with the accused. It is their evidence that they doesn't know how he was died, a year back a dead body was found in the water tank of their 11 SC No. 374/2012 newly constructing house, and same was informed by the PW.2, on seeing they came to know that it is the dead body of Arun. PW.2 gave complaint to police and police took the body from the water tank and they do not know anything else and they were also not given any statement to the police. Then the prosecution got marked their statements as Ex.P.3 and Ex.P.4 on treating them as hostile and nothing has been elicited by the prosecution to disbelieve the version of PW.4 and 5. Nothing is whispered by these two witnesses regarding the commission of offence by the accused.
16. PW.6, Mohammed Ghouse, owner of a tea stall is examined by the prosecution in order to establish the relationship of the accused and deceased and their attitude, malice, etc., but he deposed that "Arun died a year back by drowning into the water tank. He knows accused and deceased as they were coming to his tea stall often and often and he does not know how he fell down into the water and died. He further deposed that he does not know about their quarreling and their place of sleeping and what they were doing and also deposed that he has not given statement to police". Prosecution marked his statement as Ex.P.5 after treating him as hostile. In this way there is one more missing link to the prosecution to establish the relationship between the accused and deceased.
17. PW.7 Ravi is the father of the deceased and complaint, deposed that, deceased is his son, he does not saw the accused 12 SC No. 374/2012 earlier to this incident, dead body of his son was took out from the water tank, and he does not know who has committed the murder of his son and he heard the people's talks regarding the assembly of his son and accused, that often and often they were quarreling each other and they were also slept in the RCC of the said constructing house and after the police told regarding this he went to the spot and identifying his son's dead body. And he further deposed that, he has performed the funeral ceremony after receiving the dead body from the police, and police have also told him that accused has committed the murder of his son and shown the accused to him in the station and he also identified the accused before the Court and police recorded his statement in this regard. In his cross examination PW.7 admits that his son was heavy drunker and he used to left the house in the morning return to the house in the evening. No doubt the evidence of PW.7 being hearsay, is not believable and suffers from trustworthiness.
18. PW.8 Mahalingam is a pancha witness to the inquest mahazar Ex.P7. He deposed that at about 3 years back he went to the Kempegowda Hospital due to his ill health, police called him to show the dead body, as the same was smelt heavily bad smell, he came outside and thereafter police obtained his two signatures and he deposed that he does not know the contents of the documents. The said two documents are notice and inquest mahazar and marked as Ex.P.6 and Ex.P.7. He further deposed that, police did not called him near the house bearing No.7, 13 SC No. 374/2012 1st Cross of L.R. Nagar and police have not conducted the inquest mahazar at that place. In his cross-examination on treating him as hostile, he denied the suggestion put by the prosecution regarding conducting of inquest mahazar at the spot and obtained his signature after read over to him and he also denied he deposed falsely. One more important witness of the prosecution in establishing its case is also deposed contrary.
19. PW.9 Ranga, is the witness to the spot and recovery mahazar Ex.P.8 conducted at the place where the dead body is found, but he deposed that, in his presence no mahazar is conducted, and when he is near the tea stall police have obtained his signature on a written mahazar and police have not recorded his statement. On his cross-examination by the prosecution he has not identified any material objects MO.2 and MO.3 and also denied the affixing of labels after obtaining his signature, and his statement is marked as Ex.P.9.
20. PW.10 is one more prime witness to the prosecution in order to establish the link between the accused and the commission of murder of the deceased by way of recovering of incriminating materials like bloodstained cement hallo block and bed sheet at the instance of the voluntary statement Ex.P.21 from the accused by the police. But he also turned hostile to the prosecution case by deposing that, "he know the accused, no mahazar was conducted and no material objects were recovered in his presence at the instance of the accused. At about 2½ years back police have obtained his signature on a 14 SC No. 374/2012 written mahazar, which is marked as Ex.P.10 and police have not obtained his statement." On treating the PW.10 as hostile prosecution marked his statement as Ex.P.11 and he denied all the suggestions put to him by the prosecution. He also not identified the recovered MO.1 cement hallow block and MO.4 bed sheet.
21. PW.11 is another material witness prosecution wants to rely upon regarding the conducting of spot mahazar at the pace where the murder is committed and hidden the dead body of deceased by drowning it in the water tank at the instance of accused as per Ex.P.12. But this witness also turned hostile by deposing that, "2 years back, at about 9-00 a.m. police have obtained his signature on a written mahazar and at that time he does not saw the accused". He further deposed that police have not conducted any mahazar in his presence at the instance of accused". Nothing is elicited by the prosecution in his cross-examination except marking of his statement as Ex.P.13 to disbelieve his version. In his cross-examination by the accused counsel, he deposed that "he does not know for what matter police obtained signature and on which document they obtained".
22. PW.13 Doctor Anand, who has conducted the post mortem examination on the dead body of the deceased. He has deposed that on external examination of the body he found the body is 170 cms in length. Body is distended, bluish black in colour, marbling of veins present over many areas of body, skin 15 SC No. 374/2012 over many parts of the body peeled off. Face distended, eye balls coming out, tongue protruded. Scalp hairs loose and can be easily peeled off. Scrotum of penis distended with gas. Designed Tattoo marks over right arm. Blood stained fluid coming out of nostrils. Left elbow contracted due to old burns scar. No external injury. He further deposed on internal examination of cranium and spinal canal, scalp- right temporal is muscle contused. Skull fissured # over right side of frontal bone extending on to right side of anterior cranial fosse measuring 8 cms. Brain is liquefied and slightly reddish in colour. He further deposed that chest wall decomposition changes described. Ribs intact. Sternum fractured in lower part. Both lungs are adherent to chest wall. Discoloured c/s - oozes small quantity of frothy fluid.
Opinion regarding cause of death is death was due to "Head Injury" sustained. He further deposed that, he had given the report as per Ex.P.16, about the verification of MO.1 and opined that the injuries sustained by the deceased might have been caused if assaulted by a material object MO.1. In his cross- examination witness specifically denied that, the said injuries might have been caused if fell down from the house and nothing has been elicited by the defence counsel to disbelieve the evidence of PW.13. From the evidence of PW.13, it can be held that death is homicidal and not a suicidal one. Based on the opinion of the Doctor this Court comes to the conclusion that, 16 SC No. 374/2012 death of the deceased is a culpable homicide amounting to murder.
23. PW.14 V.G. Nayak, Officer of FSL, Madivala deposed that, on 10/11/2011 as per request of PI of Audugodi P.S. in respect of UDR No.54/11 he has received 6 objects for chemical examination as per Ex.P.17 such as (1) Stomach and its contents; portion of small intestine and its contents, (2) Portion of Liver and Kidney, (3) Blood, (4) Preservative - saturated solution of Sodium Chloride, (5) One cloth packet said to contain Kores Diluter and (6) One cloth packet said to contain one pipe. After examination he opined that:
1. Colour tests and Gas chromatographic methods have responded for the presence of Ethyl alcohol in exhibit Nos.1, 2 and 3.
2.Gas chromatographic method has responded for the presence of Toluene in exhibit NO.5 3.No poison was detected in exhibit Nos.4 and 6
4.Quantum of Ethyl alcohol = 110.26mg/100ml of blood.
Though, his evidence is believable as an act performed by the Government official in routine work, but it does not help to convict the accused and as this portion of evidence is in no way connected the accused with the charge leveled against him.
17 SC No. 374/201224. PW.12, 15 to 20 are the police staffs and officials, all are deposed regarding their part of work assisted in the process of investigation. PW.12 is the Police Constable, who deposed that on 11/11/2011 he has received the FIR Ex.P.14 and as per the direction of PI at about 1-00 p.m. and handed over to the jurisdictional Magistrate at about 2-00 p.m. This part of evidence is not cross-examined by the accused. This part of evidence shows prompt filing of FIR.
25. PW.15 Sathish PC, deposed that on 31/10/2011 as per the direction of SHO he shifted the dead body to Kempegowda Hospital for conducting post mortem, and after conducting the inquest mahazar, arranged for doing P.M. and after post mortem he handed over the dead body to the PW.1 brother of deceased. Cross examination this witness is taken as nil.
26. PW16 Police constable Ravi deposed that on 9.11.2011 at about 8-00 pm he reported his duty and SHO has directed him to collect viscera from Kempegowda Hospital in UDR No. 54/11. As such he collect the viscera and same is produced before the SHO three in 3 bottles and on the very next day as per direction of SHO he again took the same and produced before the FSL for examination and received the acknowledgement. He further deposed that again on 21.01.2012 when he reported to the duty, PI directed him for took the MO1 for the purpose of examination by the PW13 and to obtain the report. He further deposed that he also received the report from the Doctor after examination and which is marked as Ex.P.16. In 18 SC No. 374/2012 the cross examination, the defence counsel has nothing been elicited to disbelieve the evidence of this witnesses and he denies the suggestions put by defence counsel he has not taken the MO and obtained information from the Doctor.
27. PW17 is another constable he deposed that PI deputed him along with CW30 to trace the accused and as per the information of the informant they traced the accused and on an enquiry they confirmed that he is required person and then produce before the IO along with report as per Ex.P.18 and he further identified the accused person before the court. In this cross examination he deposed that he do not remember the colours of the clothes he wear and he admits that he has not conducted any mahazar at this spot and he has not conduct the personal test. He denied the suggestion that he has deposed false. No doubt this part of evidence though believable in no way it connects the accused to the crime.
28. PW18 S.N.Subhas Chandra is the PSI of Adugodi Police Station he deposed that he has received information on 31.10.2011 and visit the spot along with his staff. On verification he found dead body in the water tank situated in front of the newly constructed house. It was smelt badly and flies were surrounded and as he saw the dead body he suspected the cause of death then enquired and he recorded the statement of one Xavier- PW2 and then he informed PW19 for registering UDR case under section 174/C of Cr.P.C. Later he secured panchas and informed the same and conducted the spot mahazar 19 SC No. 374/2012 Ex.P.8 in their presence. He further deposed that the said water tank is 4ft in length and 4ft width and 5ft depth and dead body was floated in the water and whitener bottle and pipe laid down near water tank and he has seized those articles and packed in a white cloth and then sealed as per Ex.P.8 in the presence of panchas and recorded the statement of panchas. Then he reported same to the court. Thereafter, he has issued a notice as per Ex.P.6 to CW15, 17 and PW.8 for conducting of inquest mahazar and in their presence he drew the inquest mahazar as per Ex.P.7. Thereafter, he shifted the dead body for conducting Post mortem in KIMS and thereafter he handed over the dead body to the PW1 and PW7. He further deposed that on 1.11.2011 he has received PM report as per Ex.P.15 through his staff and adopted the to the case file, and in that report Doctor opined that deceased has succumbed to death due to injury sustained to his head. On 9.11.2011 he received the Viscera bottles packed and sent through PW27 to the FSL. On 11.11.2011 he recorded the further statement of PW1 as per Ex.P.1 in UDR case and then registered the case in Crime No. 288/11 under section 302, 201 of IPC and then he sent the FIR as per Ex.P.14 to the court and higher officials and then he handed over the further investigation to CW.32. In his cross examination he denied the suggestions that PW1 has not given any further statement and himself prepared in the station and he denied suggestions that the accused is no way connected to the murder of the deceased and accused has been falsely implicated and also he denied other suggestions put by the defense counsel.
20 SC No. 374/201229. As per the evidence of PW15 inquest on the dead body was conducted at the hospital. Whereas the recitals of the inquest mahazar Ex.P.7 and evidence of PW18 shows it was conducted at the spot where the dead body was found. However the evidence of PW15 is corroborated with the evidence of PW8. In his evidence he deposed that at about 3 years back he went to the Kempegowda Hospital due to his ill health, police called him to show the dead body, as the same was smelt badly, he came outside and thereafter police obtained his two signatures and he deposed that he does not know the contents of the documents. He further deposed that, police did not called him near the house bearing No.7, 1st Cross of L.R. Nagar and police have not conducted the inquest mahazar at that place. Even though PW8 turned hostile, prosecution did not chose to examine other inquest mahazar witnesses CW 15 and
17. By this a serious doubt is arise in the mind of this court regarding the genuineness of inquest mahazar itself.
30. PW.19 ASI deposed that as per the direction PW18, he has recorded UDR Case as per Ex.20 based on the statementEx.P19 of PW2. He has not been cross examined by the accused.
31. PW.20 PI Manjunath deposed that on 11/11/2001 has received the case file from P.W.18 and verified the investigation done so far. On the same day, he deputed the staff to arrest the accused and on the same day evening P.W17 and C.W.30 produced the accused before him along with a report as per 21 SC No. 374/2012 Ex.P.18. Then he arrested the accused and recorded his voluntary statement as per Ex.P.21 and also the statement of P.W.12, 17 and C.W.3. On 12/11/2011 he has drawn the spot mahazar as per Ex.P.12 at the instance of accused in the presence of P.W1 and C.W.20. Thereafter he recovered and seized the blood stained cement hollow block M.O-1 and blood stained bed sheet-MO.4 at the instance of the accused, as per his disclosure statement in the presence of PW.10 and C.W.23 and drew mahazar as per Ex.P.10 and then remanded the accused to the Court. Further, he identified the rough sketch drawn at the spot as per Ex.P.22. Thereafter he reported the same to the Court. He further deposed that he has recorded the statement of PW.3 to 6 as per Ex.P.2 to 5, PW.8 to 10 as per Ex.P.6 to 11.
32. He again deposed that on 15/01/2012 he has received the FSL report as per Ex.P.17. On 16/1/2012 he has sent the M.O.1 and 4 to the FSL for chemical examination and again he received back the same. Along with opinion and he identified the acknowledgement as per Ex.P.23 and again on 21/1/2012 he has received the opinion of doctor as per Ex.P.16 and adopted all these to the case files. Finally after completion of investigation he has filed the charge sheet against the accused. In the cross examination he denied all the suggestions put by the defense counsel. Hence nothing has been elicited to disbelieve the evidence of this witness.
22 SC No. 374/201233. Though the evidence given by the official witness is believable, as it is their routine work performed by them in their official capacity. But there are serious lacunas in the investigation. Firstly, inquest is not conducted by the Executive Magistrate, nor even intimated to the Executive Magistrate by the police. Further regarding the place of conducting inquest mahazar also doubt arises as stated supra.
34. Secondly, Investigating Officer though deposed that he has not sent the M.O.1 and 4 to the FSL for conducting the serological test there is nothing on record regarding whether blood stains found on M.O.1 and 4 are one and the same and belongs to the blood group of deceased, is not explained. If the prosecution establish about the blood stains on M.O.1 and 4 is belongs to the blood group of deceased, then it definitely links the accused to the offence committed by the accused. The evidence of PW.20 is so specific that, he has recovered the blood stained M.O.1 and 4, but he never obtained the opinion from the FSL authority as to whether the said stains are caused out of the blood stains of deceased while he was murdered by the accused through the said cement hollow block and due to the said had injury blood oozed out to the bed sheet of the deceased. Further PW.20 has also not showed the said bed sheet to the complainant and his father P.W1 and 7 regarding its identification, whether it belongs to the deceased or not. Hence these two major links have not been established by the prosecution.
23 SC No. 374/201235. Thirdly, the remaining charge sheeted witnesses are not secured and examined, even after providing sufficient opportunity. No doubt, the oral evidence of doctor coupled with the documentary evidence as per the post mortem report and opinion regarding cause of death assigned are able to establish the fact that, death of deceased is homicidal amounting to murder. But, the witnesses examined have turned hostile. In the absence of cogent and convincing evidence from the prosecution side, serious doubts arise in the mind of this Court regarding the commission of the offence alleged as well as the charges leveled against the accused. The basic principles of criminal justice system are that, accused should be treated as innocent until the guilt is proved beyond all reasonable doubts and benefit of doubts, if any should be extended to the accused.
36. In the light of these principles this Court safely holds that, the prosecution has failed to establish the charges leveled against the accused. The investigation and prosecution utterly failed in establishing the fact that the murder of deceased is committed by the accused. Non examination of the blood stains on the cement block (M.O.1) and the bed sheet (M.O.4) is one of the prime set backs to the prosecution coupled with the hostility of the witnesses examined. Thus, there are serious doubts arising regarding the commission of murder by the accused and also commission of an offence to cause disappearance of evidence about the commission of murder of the deceased. Hence benefit of doubt is extended to the accused 24 SC No. 374/2012 as he deserves for it. Accordingly, for the discussions made supra the point No.1 and 2 are answered in the Negative.
38. POINT NO.3:- In the light of finding on above points no.1 and 2, accused no.1 is to be acquitted for the offences U/Sec.302 and 201 of Indian Penal Code. Accordingly, this court proceeds to pass the following:
ORDER In exercise of power vested with this court U/Sec.235 (1) of Criminal Procedure Code, it is ordered that accused No.1-Sisee Kariya @ Raja is acquitted for the offences punishable U/Sec. 302, 201 of IPC f IPC.
The Accused No.1 is set at liberty of the said offences.
Material objects No.1 to 4 being worthless shall be destroyed after the appeal period is over.
Bail bonds and surety bonds stands cancelled. Issue release order.
Jail authority is directed to release the accused if he is not required in any other case.
(Dictated to the Judgment writer, transcript thereof is corrected and then pronounced by me in the open court on this the 27th day of June, 2016.) (T.P.Ramalinge Gowda) LXIX Addl.C.C. & Sessions Judge, Bengaluru.
25 SC No. 374/2012ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW. 1 Chiranjeevi
PW. 2 Xavier
PW. 3 Smt. Roopa
PW. 4 Mariyamma
PW. 5 Thoppian
PW. 6 Mohammed Ghouse
PW. 7 Ravi
PW. 8 Mahalingam
PW. 9 Ranga
PW. 10 Saravana
PW. 11 Barnabas
PW. 12 Manjunath
PW. 13 Dr. K. Ananda
PW. 14 V.G. Nayak
PW. 15 L.G. Sathish
PW. 16 Ravi D.
PW. 17 Nanjunda Swamy
PW. 18 S.N. Subashchandra
PW 19 H.Narayanappa
PW 20 R. Manjunath
LIST OF DOCUMENTS EXHIBITED FOR
PROSECUTION:
Ex.P.1 Complaint
Ex.P.2. Statement of PW.3
Ex.P.3 Statement of PW.4
Ex.P.4 Statement of PW.5
Ex.P.5 Statement of PW.6
Ex.P.6 UDR notice
Ex.P.7 Inquest report
26 SC No. 374/2012
Ex.P.8 Spot mahazar
Ex.P.9 Statement of PW.9
Ex.P.10 Recovery panchanama
Ex.P 11 Statement of PW.10
Ex.P.12 Mahazar
Ex.P.13 Statement of PW 11
Ex.P.14 FIR
Ex.P15 Post mortem report
Ex.P.16 Report of doctor
Ex.P.17 FSL report
Ex.P.18 Report of PW.17
Ex.P19 UDR complaint
Ex.P.20 FIR
Ex.P.21 Voluntary statement of accused
Ex.P.22 Rough sketch
Ex.P23 Acknowledgement
LIST OF MATERIAL OBJECTS MARKED FOR
PROSECUTION:
M.O.1
Hallow brick
M.O.2
Bottle
M.O.3
Pipe
M.O.4
Bed sheet
LIST OF WITNESSES EXAMINED & DOCUMENTS
EXHIBITED FOR ACCUSED : Nil
(T.P.Ramalinge Gowda)
LXIX Addl.C.C. & Sessions Judge,
Bengaluru.
27 SC No. 374/2012
Judgment pronounced in open court vide
separate order.
ORDER
In exercise of power vested with this court U/Sec.235 (1) of Criminal Procedure Code, it is ordered that accused No.1-Sisee Kariya @ Raja is acquitted for the offences punishable U/Sec. 302, 201 of IPC f IPC.
The Accused No.1 is set at liberty of the said offences.
Material objects No.1 to 4 being worthless shall be destroyed after the appeal period is over.
Bail bonds and surety bonds stands cancelled. Issue release order.
Jail authority is directed to release the accused if he is not required in any other case.
(T.P.Ramalinge Gowda) LXIX Addl.C.C. & Sessions Judge, Bengaluru.