Bangalore District Court
The State Of Karnataka vs Subramani @ Mani on 29 December, 2015
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 29th day of December 2015
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
S.C.No. 1233/2013
Complainant : The State of Karnataka,
Represented by it's
The Police Inspector,
Mahadevapura Police Station,
Bengaluru.
(By Public Prosecutor)
Vs.
Accused : Subramani @ Mani,
S/o. Sansum Naidu,
Aged about 21 years,
R/a. 18th Cross,
Kaggadasapura,
Bengaluru - 560 098.
Native place: Chikkur Village,
Mulabagilu Taluk,
Kolar District.
(By Sri Rajagopala Naidu,
Advocate)
2 SC No.1233/2013
1 Date of commission of offence 18.02.2013 to
19.02.2013
2 Date of report of offence 19.02.2012
3 Date of arrest of the accused 09.03.2013
4 Date of release of accused on 11.10.2013
bail
5 Date of commencement of 19.03.2014
evidence
6 Date of closing of evidence 06.02.2015
7 Name of the complainant S. Kumar
8 Offences complained of Sections 302 & 379
IPC
9 Opinion of the Judge Guilt of the accused,
is proved
10 Order of Sentence As per final order
JUDGMENT
This is a charge-sheet filed by the Police Inspector of Mahadevapura Police Station, Bengaluru City, leveling the charges against the above said accused for the commission of the offences punishable U/Secs.302 & 379 of I.P.C. in the committal X ACMM Court, Bengaluru, in it's CC No.50398/2013 in connection with the Mahadevapura P.S. Cr.No.134/2013.
2. The epitomized facts of the allegations that are leveled against the above said accused in the charge- 3 SC No.1233/2013 sheet inconsonance with the complaint, FIR and etc., run thus:
On 18.02.2013, at about 6.00 p.m., in the evening, in front of Manjunath Bar & Restaurant, situated besides Site No.18, PWD Main Road, Aakash Nagar, A. Narayanapura, within the limits of Mahadevapura police station in Bengaluru City, the accused raised the scramble with the deceased Anwar Pasha demanding to repay the loan-amount of Rs.5,500/- when the deceased expressed his inability to repay the same and went near the shop of the complainant by name Kumar and sat in front of the same, by parking his auto-rickshaw bearing No.KA-05-AC-3151; and thereafter, at about 11.15 p.m., again the accused raised the scramble with the deceased Anwar Pasha demanding the money and assaulted with his hands, due to which, the deceased fell-down and at that time, the accused lifting the size-stone put on the head of the deceased Anwar Pasha, intentionally and committed the murder of the said Anwar Pasha and also 4 SC No.1233/2013 thereafter, in the same course of transaction after committing the murder, the accused committed the theft of the auto-rickshaw bearing No.KA-05-AC-3151 belonging to the deceased, by taking-away from the said place and thereby, the accused committed the offences punishable U/Secs.302 & 379 of I.P.C.
3. After filing the charge-sheet, cognizance of the offences punishable U/Secs.302 & 379 of I.P.C. was taken by X ACMM Court, Bengaluru City.
The accused being in judicial custody, he was secured from judicial custody by the X ACMM Court, Bengaluru City.
Copies of the charge-sheet and other documents referred to U/Sec.173 of Cr.P.C. were supplied to the accused by the X ACMM Court, Bengaluru City, in contemplation with the provisions U/Sec.207 of Cr.P.C. and thereafter committed the case to the instant court in contemplation with the provisions U/Sec.209 of Cr.P.C. 5 SC No.1233/2013
After committing the case to the instant court by the X ACMM Court, Bengaluru City, the accused being in judicial custody, he has been released on bail, as per the vide order dated 18.09.2013 in Crl.Misc.No.25988/2013 by the then Fast Track Court - III, Bengaluru City.
After hearing both sides, charges for the offences punishable U/Secs.302 & 379 of I.P.C. were framed, and the same were read-over, and explained to the accused in the vernacular best-known to him.
The accused has denied the same and pleaded not guilty and further claimed to be tried.
4. In order to prove the guilt against the accused, the prosecution has adduced the evidence of the witnesses, in all as PWs.1 to 22, and placed it's reliance on the documents marked at Exs.P.1 to P.24 in which Exs.P.1 & P.2 are the two photos of the auto-rickshaw, Ex.P.3 is the mahazar, Ex.P.3(a) is the signature of the P.W.2, Exs.P.3(b) & P.3(c) are the signatures of the P.W.4, Ex.P.3(d) is the signature of the P.W.20, Ex.P.4 is the 6 SC No.1233/2013 mahazar, Exs.P.4(a) & P.4(b) are the signatures of the P.W.3, Ex.P.4(c) is the signature of the P.W.20, Ex.P.5 is the inquest mahazar, Ex.P.5(a) is the signature of the P.W.4, Exs.P.5(b) & P.5(c) are the signatures of the P.W.17, Ex.P.6 is the complaint, Ex.P.6(a) is the signature of the P.W.6, Ex.P.6(b) is the signature of the P.W.17, Ex.P.7 is the spot mahazar, Ex.P.7(a) is the signature of the P.W.6, Ex.P.7(b) is the signature of the P.W.12, Ex.P.8 is the sketch, Ex.P.8(a) is the signature of the P.W.10, Ex.P.9 is the covering-letter, Ex.P.9(a) is the signature of the P.W.10, Ex.P.9(b) is the signature of the P.W.20, Ex.P.10 is the report, Ex.P.10(a) is the signature of the P.W.11, Ex.P.10(b) is the signature of the P.W.17, Exs.P.11 to P.14 are the four photos, Ex.P.15 is the report, Ex.P.15(a) is the signature of the P.W.14, Ex.P.15(b) is the signature of the P.W.20, Ex.P.16 is the report, Ex.P.16(a) is the signature of the P.W.16, Ex.P.16(b) is the signature of the P.W.20, Ex.P.17 is the First Information Report, Ex.P.17(a) is the signature of 7 SC No.1233/2013 the P.W.17, Ex.P.18 is the relevant portion of the statement of the accused, Ex.P.18(a) is the signature of the P.W.20, Ex.P.19 is the post-mortem report, Exs.P.19(a) & P.19(d) are the signatures of the P.W.20, Exs.P.19(b) & (e) are the signatures of the P.W.21, Ex.P.19(c) is the portion of the opinion of the doctor, Ex.P.20 is the 'B' Register Extract, Ex.P.20(a) is the signature of the P.W.20, Ex.P.21 is the requisition sent to FSL, Ex.P.21(a) is the signature of the P.W.20, Ex.P.22 is the acknowledgement issued by FSL, Ex.P.22(a) is the signature of the P.W.20, Ex.P.23 is the FSL report and Ex.P.24 is the sample-seal and the material objects marked on behalf of the prosecution are at MO No's.1 to 10 in which MO.1 is the shirt, MO.2 is the pant, MO.3 is the T-shirt, MO.4 is the underwear (kaacha), MO.5 is the size-stone, MO.6 is the mat, MO.7 is the pillow, MO.8 is the mosquito-net, MO.9 is the bed-sheet and MO.10 is the preserved-blood in a box.
8 SC No.1233/2013
5. After the prosecution's evidence was closed, since the incriminating circumstances were arising-out of the evidence of the prosecution witnesses, the statements of the accused under the provisions U/Sec.313 of Cr.P.C., were recorded.
6. I have heard the arguments advanced by both the learned Public Prosecutor for the State as-well-as the learned counsel for the accused.
7. Now, the points that arise for my consideration are:
(1) Whether the prosecution proves beyond the shadow of all the reasonable doubts that, on 18.02.2013, at about 6.00 p.m., in the evening, in front of Manjunath Bar & Restaurant, situated besides Site No.18, PWD Main Road, Aakash Nagar, A. Narayanapura, within the limits of Mahadevapura police station in Bengaluru City, the accused raised the scramble with the deceased Anwar Pasha demanding to repay the loan-amount of Rs.5,500/- when the deceased expressed his inability to repay the same and went near the 9 SC No.1233/2013 shop of the complainant by name Kumar and sat in front of the same, by parking his auto-
rickshaw bearing No.KA-05-AC-3151; and thereafter, at about 11.15 p.m., again the accused raised the scramble with the deceased Anwar Pasha demanding the money and assaulted with his hands, due to which, the deceased fell-down and at that time, the accused lifting the size-stone put on the head of the deceased Anwar Pasha, intentionally and committed the murder of the said Anwar Pasha and thereby, the accused committed the offence of murder punishable U/Sec.302 of I.P.C.?
(2) Whether the prosecution proves beyond the shadow of all the reasonable doubts that, thereafter, in the same course of transaction after committing the murder, the accused committed the theft of the auto-rickshaw bearing No.KA-05-AC-3151 belonging to the deceased, by taking-away from the said place and thereby, the accused committed the offence of murder punishable U/Sec.379 of I.P.C.?
10 SC No.1233/2013
(3) What order?
8. My findings on the above said points are as under:
Point No.1 .. In the Affirmative.
Point No.2 .. In the Affirmative.
Point No.3 .. As per the final order,
for the following:
REASONS
9. Point No's.1 & 2:- To avoid reiteration of material available in hand and to appreciate the evidence in better position, I hereby take-up Point No's.1 & 2 together admixingly for discussion.
10. It is the specific tale of the prosecution that, on 18.02.2013, at about 6.00 p.m., in the evening, in front of Manjunath Bar & Restaurant, situated besides Site No.18, PWD Main Road, Aakash Nagar, A. Narayanapura, within the limits of Mahadevapura police station in Bengaluru City, the accused raised the scramble with the deceased Anwar Pasha demanding to repay the loan- amount of Rs.5,500/- when the deceased expressed his 11 SC No.1233/2013 inability to repay the same and went near the shop of the complainant by name Kumar and sat in front of the same, by parking his auto-rickshaw bearing No.KA-05- AC-3151; and thereafter, at about 11.15 p.m., again the accused raised the scramble with the deceased Anwar Pasha demanding the money and assaulted with his hands, due to which, the deceased fell-down and at that time, the accused lifting the size-stone put on the head of the deceased Anwar Pasha, intentionally and committed the murder of the said Anwar Pasha and also thereafter, in the same course of transaction after committing the murder, the accused committed the theft of the auto- rickshaw bearing No.KA-05-AC-3151 belonging to the deceased, by taking-away from the said place and thereby, the accused committed the offences punishable U/Secs.302 & 379 of I.P.C.
11. On meticulous perusal of the entire evidence of the prosecution in consideration with the documentations and evidence available on record, the 12 SC No.1233/2013 absolute burden of proving the alleged imputations against the accused person is casted-upon the prosecution alone in pursuance with the provisions under the Indian Evidence Act, 1872.
12. To substantiate it's case, the prosecution has got examined in all the witnesses as PWs.1 to 22, in which CW.4 is examined as P.W.1, who is the wife of the deceased as-well-as the circumstantial witness; C.W.13 is examined as P.W.2, who is the brother-in-law of the deceased, circumstantial witness as-well-as the seizure of auto mahazar witness; CW.11 is examined as P.W.3, who is the seizure of stone mahazar witness; CW.14 is examined as P.W.4, who is the inquest mahazar as-well- as the seizure of auto mahazar witness; CW.21 is examined as P.W.5, who is the PC No.12492 having carried the seized-stone to the Forensic Science Department in Bowring Hospital and brought the opinion as-well-as the circumstantial witness; CW.1 is examined as P.W.6, who is the complainant as-well-as the 13 SC No.1233/2013 circumstantial witness; CW.5 is examined as P.W.7, who is the son of the deceased as-well-as the circumstantial witness; CW.6 is examined as P.W.8, who is the sister-in- law of the deceased as-well-as the circumstantial witness; CW.7 is examined as P.W.9, who is the neighbor of the deceased as-well-as the circumstantial witness; CW.18 is examined as P.W.10, who is the Asst. Engineer of KPTCL having prepared the sketch of the scene of offence as-well-as the circumstantial witness; CW.20 is examined as P.W.11, who is the PC No.10350 having handed-over the dead-body of the deceased to the CW.13 under an acknowledgement and produced the clothes of the dead-body before the investigating officer as-well-as the circumstantial witness; CW.10 is examined as P.W.12, who is the seizure of MO No's.6 to 10 mahazar witness; CW.8 is examined as P.W.13, who is the owner of the spot of the alleged incident as-well-as the circumstantial witness; CWs.24 & 25 are examined as PWs.14 & 15, who are the HC No.3661 & HC No.937, 14 SC No.1233/2013 respectively, having produced the accused before the investigating officer as-well-as the circumstantial witnesses; CW.19 is examined as P.W.16, who is the Asst. Engineer of KPTCL as-well-as the circumstantial witness; CW.28 is examined as P.W.17, who is the prefixive partial investigating officer; CW.27 is examined as P.W.18, who is the HC No.1340 having carried material objects to the FSL as-well-as the circumstantial witness; CW.26 is examined as P.W.19, who is the HC No.1672 having carried the original First Information Report and complaint to the court as-well-as the circumstantial witness; CW.29 is examined as P.W.20, who is the suffixive partial investigating officer; CW.17 is examined as P.W.21, who is the Medical Officer having conducted the post-mortem of the deceased Anwar Pasha, and CW.2 is examined as P.W.22, who is the eyewitness; and thereby, the prosecution has placed it's reliance on the documentations marked at Exs.P.1 to P.24, in which Exs.P.1 & P.2 are the two photos of the 15 SC No.1233/2013 auto-rickshaw, Ex.P.3 is the mahazar, Ex.P.3(a) is the signature of the P.W.2, Exs.P.3(b) & P.3(c) are the signatures of the P.W.4, Ex.P.3(d) is the signature of the P.W.20, Ex.P.4 is the mahazar, Exs.P.4(a) & P.4(b) are the signatures of the P.W.3, Ex.P.4(c) is the signature of the P.W.20, Ex.P.5 is the inquest mahazar, Ex.P.5(a) is the signature of the P.W.4, Exs.P.5(b) & P.5(c) are the signatures of the P.W.17, Ex.P.6 is the complaint, Ex.P.6(a) is the signature of the P.W.6, Ex.P.6(b) is the signature of the P.W.17, Ex.P.7 is the spot mahazar, Ex.P.7(a) is the signature of the P.W.6, Ex.P.7(b) is the signature of the P.W.12, Ex.P.8 is the sketch, Ex.P.8(a) is the signature of the P.W.10, Ex.P.9 is the covering-letter, Ex.P.9(a) is the signature of the P.W.10, Ex.P.9(b) is the signature of the P.W.20, Ex.P.10 is the report, Ex.P.10(a) is the signature of the P.W.11, Ex.P.10(b) is the signature of the P.W.17, Exs.P.11 to P.14 are the four photos, Ex.P.15 is the report, Ex.P.15(a) is the signature of the P.W.14, Ex.P.15(b) is the signature of the P.W.20, 16 SC No.1233/2013 Ex.P.16 is the report, Ex.P.16(a) is the signature of the P.W.16, Ex.P.16(b) is the signature of the P.W.20, Ex.P.17 is the First Information Report, Ex.P.17(a) is the signature of the P.W.17, Ex.P.18 is the relevant portion of the statement of the accused, Ex.P.18(a) is the signature of the P.W.20, Ex.P.19 is the post-mortem report, Exs.P.19(a) & P.19(d) are the signatures of the P.W.20, Exs.P.19(b) & (e) are the signatures of the P.W.21, Ex.P.19(c) is the portion of the opinion of the doctor, Ex.P.20 is the 'B' Register Extract, Ex.P.20(a) is the signature of the P.W.20, Ex.P.21 is the requisition sent to FSL, Ex.P.21(a) is the signature of the P.W.20, Ex.P.22 is the acknowledgement issued by FSL, Ex.P.22(a) is the signature of the P.W.20, Ex.P.23 is the FSL report and Ex.P.24 is the sample-seal; and the material objects marked on behalf of the prosecution are at MOs.1 to 10, in which MO.1 is the shirt, MO.2 is the pant, MO.3 is the T-shirt, MO.4 is the underwear (kaacha), MO.5 is the size-stone, MO.6 is the mat, MO.7 is the pillow, MO.8 is 17 SC No.1233/2013 the mosquito-net, MO.9 is the bed-sheet and MO.10 is the preserved-blood in a box.
13. On meticulous perusal of the entire depositions of the PWs.1 to 22, it is crystal clear that, the P.W.6 being the complainant as-well-as the circumstantial witness, has endeavored to depose in favour of the prosecution in his chief examination to the effect that, he is running the sand and jelly business in the Site No.18 situated at A. Narayanapura in Bengaluru City, by putting a small-shed there-at, to which there is no any door and the same was being under the process of vacating at the instance of it's owner-Anandareddy (CW.8/P.W.13) and the residuary sand and jelly was still there. It is further stated by the P.W.6 that, on 19.02.2013, at about 8.00 a.m., in the morning, when he had been to visit the said Site No.18, he saw the dead- body of the male person in the said shed and the said dead-body was sustaining the head injury and it was on 18 SC No.1233/2013 a mat, whereby he noticed that, somebody has murdered him and by virtue of the khaki-colour apparels on the said dead-body, he appeared to be as a driver of the vehicle and therefore, immediately he rushed to the Mahadevapura police station and lodged a complaint as per Ex.P.6, on which his signature is as per Ex.P.6(a). It is further stated by the P.W.6 that, after lodging the complaint, the police visited the spot and seized the blood fallen on the spot, the mat, bed-sheet and the pillow under the spot mahazar marked at Ex.P.7 by drawing the same and his signature thereon, is as per Ex.P.7(a) and the said mat, pillow, mosquito-net, bed-sheet and the blood collected in a tin are being identified by him as per MO No's.6 to 10. It is further stated by the P.W.6 that, on 11.03.2013, again the police called him and shown the accused, where-at he came to know the name of the said accused as Subramani and also he came to know that, the said accused himself had murdered the deceased in connection with the money transaction and 19 SC No.1233/2013 the name of the said deceased was Anwar Pasha, who was an auto-driver and thereafter, he was shown an auto in the police station, by which came to know that, it was belonging to the said deceased Anwar Pasha and the same has been seized from the said accused and further he has identified the said auto in the photographs marked at Exs.P.1 & P.2, respectively.
14. But, in the cross-examination by the learned counsel for the accused, the P.W.6 has clearly stated to the effect that, the said shed has been constructed by himself but neither himself nor anybody-else was sleeping there-at. It is pertinent to note that, merely having stated by the P.W.6 that, himself or any other persons were not sleeping there-at, it does-not mean that there should not be availability of MO No's.6 to 10 there- at because, during the night hours, there are every possibilities of sleeping by somebody-else or using the said shed, which aspect has been rightly pointed-out by 20 SC No.1233/2013 the learned Public Prosecutor. Apart from the same, nothing has been questioned by the learned counsel for the accused to the said P.W.6 that, whether the said MO No's.6 to 10 were kept by himself or anybody-else or otherwise. Therefore, under the circumstances prevailing herein, the said versions of the P.W.6 does-not create any disparity and infirmity to overlook the prosecution's case. It is further stated by the P.W.6 in the cross-examination that, the police had come to the spot at about 8.45 a.m., in the morning, during which time, in addition to Umesh and the police persons, himself, CW.10 (P.W.12) and CW.8 (P.W.13) were there. It is further clearly stated by the P.W.6 that, the police have written in the said spot mahazar marked at Ex.P.7 regarding whatever has happened on the spot with respect to the murder of the deceased and also in respect of the stone used for the said murder. But, unfortunately, the P.W.6 has admitted the suggestion made by the learned counsel for the 21 SC No.1233/2013 accused that, he has signed on the said spot mahazar in the police station.
15. It is significant to note that, even if it is taken into consideration for the time being that, the said version of the P.W.6 by way of admission that, he has signed on the said spot mahazar in the police station, the P.W.17 being the prefixive partial investigating officer, who has endeavored to depose in favour of the prosecution in his chief-examination in respect of having registered the case and drawn the spot mahazar as per Ex.P.7, has clearly stated that, he secured one Chandrashekar i.e., CW.10 (P.W.12) and another mahazar witness by name Umesh and then drew the spot mahazar at the show of the instant P.W.6 (complainant) and seized the MO No's.6 to 10 and the said spot mahazar is as per Ex.P.7 and his signature thereon, is as per Ex.P.6(c).
22 SC No.1233/2013
16. Apart from the same, the said P.W.12 being the spot mahazar witness, has also clearly stated in his chief-examination itself that, the police visited the spot in presence of him and drew the spot mahazar from 11.00 a.m., to 12.00 in the afternoon on 19.02.2013 and seized the MO No's.6 to 10 in presence of him and also in presence of the complainant (P.W.6) at his show and his signature thereon, is as per Ex.P.7(b). Therefore, by virtue of the said versions of the PWs.13 & 17, the said admission given by the P.W.6 does-not carry any much importance to dismantle the very crux of the prosecution's tale with respect to the drawing of the spot mahazar at the show of P.W.6, by the P.W.17 in presence of the P.W.12 as per Exs.P.7 and seizing of the MO No's.6 to 10, thereon. Therefore, to put-into simple terms, the said admission given by the P.W.6 stands in the fashion of minor discrepancy, without adhering with any kind of serious and major discrepancy. Therefore, under these circumstances, the entire deposition of P.W.6 cannot be 23 SC No.1233/2013 disbelieved, whereas, it is absolutely emanating in corroboration with the very case of the prosecution's tale.
17. Further, the P.W.1 being the wife of the deceased Anwar Pasha as-well-as the circumstantial witness, has endeavored to depose in favour of the prosecution in her chief-examination itself to the effect that, the deceased Anwar Pasha was her husband, running an auto bearing No.KA-05-AC-3151 and he had surrendered to the alcoholism and she has 3 children, out of whom, 2 are male by name Salman Pasha and Rizwan Pasha and a daughter. It is further stated by the P.W.1 that, sometimes her husband use to leave the house for 8 to 15 days by taking the auto and use to stay somewhere at temple and etc., and similarly on 22.01.2013, at 8.00 a.m., in the morning, when the deceased Anwar Pasha left the house, along-with the said auto, he did not return-back to the house; Wherefore, she being under the impression that, similar to the 24 SC No.1233/2013 earlier instances of leaving the house by him, he might have left the house on that day also and despite of having called him to his mobile-phone No.9738082444, she came to know that his mobile-phone was switched-off and thereafter, in-spite of having searched for him, he was not able to be traced-out. But, on 19.02.2013, Mahadevapura police came to her house and asked her to visit the police station; Wherefore, herself, her elder- sister and the neighbor by name Ramamani had been to the police station, where-at the police have stated that, a dead-body was found and therefore, in view of the same, they went to the Bowring Hospital and saw the dead- body, which was of her husband-Anwar Pasha and it was sustaining the head injury and his ear was torn. It is further stated by the P.W.1 that, later-on, the police had called her to the police station and shown the accused and when the police inquired the said accused, he has admitted that, he had murdered the husband of the P.W.1 in connection with the deceased Anwar Pasha 25 SC No.1233/2013 having not returned the amount, which was taken by him from the said accused and further she came to know that, the name of the said accused as Subramani and even she saw the auto belonging to her husband in the police station, in respect of which, it came to her notice that, the said auto was taken-away by the accused and she has identified the said auto in the said two photographs marked at Exs.P.1 & P.2 and even she has identified the shirt, pant, T-shirt and one underwear (khacha) of her husband, as per MO No's.1 to 4.
18. In the cross-examination by the learned counsel for the accused, she has clearly stated to the effect that, since last 11 years, her husband-Anwar Pasha was in the habit of leaving the house at times, often once or twice in a year for about 8 to 15 days period and around 10 to 15 times he had left the house, accordingly, and on 22.01.2013, the phone of the said Anwar Pasha was switched-off and on the same day, they had been to the 26 SC No.1233/2013 police station; But, the police suggested her that, similar to the earlier habit of her husband-Anwar Pasha, he might have left the house and on 22.1.2013 thereafter, herself, her elder-sister and neighbor-Ramamani (P.W.9) had been, but they were not able to trace-out the said Anwar Pasha. It is further stated by the P.W.1 in the cross-examination that, on 19.02.2013, at about 2.30 p.m., in the afternoon, the police had come to their house to call them, during which time, her elder-sister and Babu were also present; But, she cannot say the specific time as to when they reached the police station, during which time, the accused was not present in the police station and also she does-not remember at what time, they had left the police station towards Bowring Hospital and also she has forgotten the specific date as to when the police had called subsequent to 19.02.2013. It is pertinent to note that, the ignorance depicted by the P.W.13 and also pleaded her non-remembrance of certain aspects with regard to the date and time, but they do-not 27 SC No.1233/2013 come in the way of the prosecution's case since they are merely appearing in the fashion of superficial minor discrepancies; Wherefore, the entire deposition of the P.W.1 is absolutely emanating in the fashion of corroborating the entire case of the prosecution; Wherefore, there is no any reason to disbelieve the very deposition of the P.W.1.
19. Further, the P.W.7 being the son of the deceased as-well-as the circumstantial witness, has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, the CW.4 is his mother and his father-Anwar Pasha was the auto driver of his auto-rickshaw bearing No.KA-05-AC-3151, and he had surrendered to the bad-vices, such as, alcoholism and smoking, in respect of which, his mother use to advise him and also his father was in the habit of leaving the house for 2 to 3 days. It is further stated by the P.W.7 that, on 22.01.2013, his father having taken the 28 SC No.1233/2013 auto left the house, but he did-not return; Wherefore, they waited for 3 days under the impression that he would come back since he might have gone as he use to go by leaving the house in the routine-course often, but since his father did-not come, they started searching and on 19.02.2013, the Mahadevapura police came to the house and called them, stating that, a dead-body is found and therefore, himself, his mother, P.W.2 (CW.13), P.W.8 (CW.6), the neighbor by name Ramamani (P.W.9/CW.7) went and saw the dead-body in the Bowring Hospital, which was of his own-father/Anwar Pasha having sustained the injury on the backside of his head and also the ear was cut, due to which, they felt that, somebody has murdered him; But, in respect of the auto-rickshaw of the deceased, nothing came to their notice. It is further stated by the P.W.7 that, on 11.03.2013, again the police called him to the police station, during which time also his mother, PWs.8 & 9 had also come to the police station, where-at the police 29 SC No.1233/2013 shown the accused by name Subramani and he came to know that, the murder of the deceased Anwar Pasha was made by the said accused in connection with the money- transaction and thereafter, the police shown the said auto-rickshaw of the deceased Anwar Pasha, whereby, they came to know that, the accused himself had taken- away the said auto-rickshaw and further the P.W.7 had identified the said auto-rickshaw appearing him the two colour photos marked at Exs.P.1 & P.2, respectively, and also identified the apparels of the deceased Anwar Pasha, which are marked as per MO No's.1 to 4.
20. But, in the cross-examination by the learned counsel for the accused, P.W.7 has stated that, he is working as an Assistant in Ghousia ITI since August 2012 and his duty timings will be from 10.00 a.m., to 5.00 p.m. In the later portion of his cross-examination, P.W.7 has clearly stated that, on 19.02.2013, when he was in the ITI College, he was phoned by his father-in- 30 SC No.1233/2013 law at about 2 to 2.30 p.m., in the afternoon, stating that the dead-body of his father was found by the police and they have called for the purpose of identifying the said dead-body; Wherefore, immediately he (P.W.7) went to the police station from the said college. Therefore, the said earlier version of the P.W.7 regarding his duty hours from 10.00 a.m., to 5.00 p.m., will not be of any help to the accused, against the very crux of the prosecution's tale. Apart from the same, the P.W.7 has stated in the cross-examination that, his father-Anwar Pasha use to leave the house once in 6 months for about 3 to 4 days; Wherefore, in view of his father being in the habit of leaving the house for a particular length of period often, they never use to lodge the police complaint and even the mobile-phone was possessed by his father since last only one-year. It is further stated by the P.W.7 in the cross- examination that, on 22.01.2013, when his father had left the house, his mother and younger-sister had attempted to search him and on phoning him, his 31 SC No.1233/2013 mobile-phone was reported to be switched-off, but he cannot say the specific date of the phone of his father being switched-off. It is further stated by the P.W.7 in the cross-examination that, orally the complaint was being endeavored to lodge before the police, but not in writing and even the written complaint was not lodged only with a view that in case if his father is traced-out, the police would harass him, stating that often he leaves the house and create the nuisance to them. It is further stated by the P.W.7 in the cross-examination that, he does-not remember the exact timing when they had been to the police station on 19.02.2013, since the two years time has been elapsed for the said incident, but the timing may be around between 3.00 p.m., and 4.00 p.m. Even, he has stated that, he cannot say the specific time regarding their visit to the Bowring Hospital. On meticulous consideration of all these versions of the P.W.7 in the cross-examination, it is crystal clear that, the depiction of no knowledge or non-remembrance of 32 SC No.1233/2013 certain minor things are merely emanating in the fashion of minor discrepancies. But, in overall, the entire deposition of the P.W.7 is absolutely emanating in corroboration with the very case of the prosecution, with the clarifications; Wherefore, the said deposition of the P.W.7 is absolutely reliable and believable, without ignoring and overriding the same.
21. Further, the P.W.8 being the sister-in-law of the deceased as-well-as the circumstantial witness, has also endeavored to depose in favour of the prosecution in her chief-examination to the effect that, the deceased Anwar Pasha being the husband of her own younger-sister, had surrendered himself for the alcoholism and on 22.01.2013, he had left the house with his auto- rickshaw, but he did-not return-back, in respect of which, they having searched him, he was not able to be traced-out. It is further stated by the P.W.8 that, on 19.02.2013, the Mahadevapura police came to their 33 SC No.1233/2013 house and called to the police station, stating that they have found a dead-body and when they had been to the police station, a photograph of the dead-body was shown by the police and thereafter, they visited the Bowring Hospital, where-at, the dead-body of the deceased Anwar Pasha was lying by sustaining the injury to his backside of the head, due to which, they were able to notice that somebody had murdered him, but they did-not come to know anything regarding the auto-rickshaw of the deceased Anwar Pasha. It is further stated by the P.W.8 that, on 11.03.2013, again she was called to the police station by the police and shown the accused by name Subramani, who had murdered the said Anwar Pasha and also shown the auto-rickshaw, whereby she came to know that the said auto-rickshaw was taken-away by the said accused and she has identified the said auto- rickshaw, through the colour photos marked at Exs.P.1 & P.2.
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22. But, in the cross-examination by the learned counsel for the accused, she has clearly stated that, the said auto-rickshaw was bearing No.KA-05-AC-3151 pertaining to the said deceased Anwar Pasha and on 22.01.2013, he had left the house. It is further stated by the P.W.8 in the cross-examination that, on 19.02.2013, when they visited the Bowring Hospital, it was at about 5.00 p.m., in the evening and when they had been to the Mahadevapura police station, it may be about 3.30 p.m., in the afternoon, but she does-not remember the timings specifically, and on 11.03.2013, when the police had called her, her younger-sister/P.W.1, P.W.2 & P.W.9 were also been to the said police station. All these versions of the P.W.8 in her cross-examination, are absolutely emanating in support and corroboration of her own-chief- examination; Wherefore, nothing contrary has been elicited through the mouth of the P.W.8 by the learned counsel for the accused and hence the entire deposition of the P.W.8 certainly stands as the substantial evidence 35 SC No.1233/2013 though it is of a circumstantial witness, in favour of the prosecution's case, which ultimately deserves to be believed and relied-upon.
23. Further, the P.W.9 being the neighbor of the deceased as-well-as the circumstantial witness has also endeavored to depose in favour of the prosecution in her chief-examination to the effect that, the P.W.1 (CW.4) being her neighbor, the deceased Anwar Pasha being the husband of the P.W.1 was doing the auto driving work and on 22.01.2013, he having left the house, did-not return-back at-all, in respect of which, she came to know and after 2 days, they searched for him, but on 19.02.2013, the Mahadevapura police called them to the police station and thereafter, they went to the Bowring Hospital, where-at, the dead-body of Anwar Pasha was found with an injury near the ear. It is further stated by the P.W.9 that, on 11.03.2013, the police called them to the police station again and shown the accused by name 36 SC No.1233/2013 Subramani and when the police inquired the said accused in presence of them, the accused stated that, he has murdered the said Anwar Pasha in connection with the money-transaction of Rs.5,500/-, which was due by the deceased to him and even the police have shown the auto-rickshaw of the deceased Anwar Pasha and they came to know that, it was taken-away by the said accused and further identified the said auto-rickshaw through the colour photos marked at Exs.P.1 & P.2.
24. But, in the cross-examination by the learned counsel for the accused, P.W.9 has stated that, she was knowing the fact that the deceased Anwar Pasha use to leave the house and also he had surrendered to the bad- vices like alcoholism, since they were neighbors to her, since last 18 years and the deceased use to leave the house about 15 days. It is significant to note that the learned counsel for the accused has suggested the P.W.9 that, since the said accused was having another house, 37 SC No.1233/2013 he use to leave the house of P.W.1 for 15 days. The said suggestion having been denied by the P.W.9, has also clarified that, Anwar Pasha had no any second house setup. But, it is significant to note that, making of such suggestion by the learned counsel for the accused to the P.W.9 clearly indicates that, the accused is in agreement by way of implication regarding the fact that the deceased Anwar Pasha use to leave the house of the P.W.1 for a particular length of period of about 15 days. Therefore, it is crystal clear that, it is a well established aspect by way of admission from the accused's side also that, the said deceased Anwar Pasha was in the habit of leaving the house of the P.W.1, often. In addition to the same, even it has been clearly suggested by the learned counsel for the accused to the P.W.1 in the cross-examination itself that, the police were knowing regarding her husband- Anwar Pasha leaving her house often, which suggestion has been clearly admitted by the P.W.1. The said suggestion also clearly goes to indicate that, the deceased 38 SC No.1233/2013 Anwar Pasha is in agreement of the factum of leaving the house often. It is further stated by the P.W.9 that, when they had been to the police station after searching the deceased, the police assured that, to wait and see a day or two, since the said Anwar Pasha use to go by leaving his house often at times, earlier. It is further stated by the P.W.9 in the cross-examination that, after 19.02.2013, a week later, the police had called her again to the police station and shown the accused by name Subramani. On overall consideration of these versions of the P.W.9 in her cross-examination, they are emanating in a better position to convince and clarify in a better-way with regard to the developments in the case with reference to the said incident of murdering the deceased Anwar Pasha by the instant accused by name Subramani; Wherefore, the very deposition of the P.W.9 is absolutely emanating in the fashion of corroborative material in favour of the prosecution's tale; Wherefore, it certainly deserves to be relied-upon and believable. 39 SC No.1233/2013
25. Further, the P.W.13 being the owner of the spot of the incident as-well-as the circumstantial witness, has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, the Sy.No.18 besides PWD Road at Narayanapura, belongs to him inclusive of a site and a shop, which was given on lease to the P.W.6 (CW.1/complainant), where-at, the P.W.6 was running the business of soil, stones and jelly etc., by putting a small-shed, there-at. It is further stated by the P.W.13 that, on 19.02.2013, at about 8.00 a.m., in the morning, the P.W.6/complainant called him on phone, stating that, an unknown dead-body is found in the said shed; Wherefore, immediately he rushed to the said spot and saw the dead-body of a male person, aged of 40 to 45 years was lying by sustaining an injury to his head, whereby, he came to know that he was murdered by somebody-else by putting a size-stone and there were pillow, mosquito-net, bed-sheet near the said dead-body wet with the blood, in respect of which, the P.W.6 has 40 SC No.1233/2013 lodged the complaint. It is further stated by the P.W.13 that, later-on, he came to know that the said dead-body was of Muslim person. It is further stated by the P.W.13 that, again the police had called him and P.W.6 and shown the accused, who is present in the open-court and it came to the notice that the said murder has been committed by the accused himself in connection with the money-transaction and also the police shown the auto- rickshaw belonging to the deceased bearing No.3151, which was concealed and hidden by the accused in his native-place.
26. But, in the cross-examination by the learned counsel for the accused, P.W.13 has stated to the effect that, as-soon-as the P.W.6 had phoned him regarding the dead-body lying in the shed, he advised the P.W.6 to lodge the complaint immediately. It is further stated by the P.W.13 in the cross-examination that, on the same day of the alleged incident, it was not known to him 41 SC No.1233/2013 regarding the private-part of the dead-body on the date of the incident, but it came to his notice when he had been to the police station for the second-time. It is pertinent to note that, in the chief-examination, P.W.13 has clearly stated that, later-on, he has come to know regarding the private-part of the deceased Anwar Pasha.
27. It is no doubt, the learned counsel for the accused has pressed-into service with all the vehemence at his command in the statement of the P.W.13 before the police U/Sec.161 of Cr.P.C., the said factum is absolutely different in a contradictory manner to his versions as stated in his chief as-well-as cross- examination. Without admitting, if it is assumed for a while that there is a contradiction, that certainly does- not do-away the entire deposition of the P.W.13, along- with the very crux of the prosecution's tale, whereas, the other aspect whispered by the P.W.13 in his chief and cross-examination certainly stand in the position of mere 42 SC No.1233/2013 minor discrepancy without any harm to the prosecution's substantial tale. In addition to the same, the P.W.13 has further stated in the cross-examination that, when they had been to the police station on that day, himself, P.W.6, accused and the police were present, but he does- not remember as to what time they had been to the police station and the police have told them regarding the money-transaction between the accused and the deceased Anwar Pasha. The said versions of the P.W.13 in the cross-examination do-not take-away or evade the very entire deposition of the P.W.13, whereas the entire deposition of the P.W.13 is still remaining in the position of corroborative substantial evidence; Wherefore, it does- not deserve to be overlooked and ignored, whereas, it certainly deserves to be relied-upon and believable, since nothing contrary to the prosecution has been elicited through the mouth of the P.W.13 except a meager amount of the minor discrepancy without causing any harm to the very crux of the prosecution's tale. 43 SC No.1233/2013
28. Further, the P.W.12 being the seizure of MO No's.6 to 10 mahazar witness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 19.02.2013, the police visited the spot in the open-site of P.W.13 (CW.8), situated besides PWD Main Road at A. Narayanapura in presence of him and drawn the spot mahazar there-at from 11.00 a.m., to 12.00 Noon, as per Ex.P.7, on which his signature is as per Ex.P.7(b) and seized the said MO No's.6 to 10, which are being identified by him, and also taken the colour photos of the dead-body on the spot, which are marked as per Exs.P.11 to P.14, during which time, the P.W.6 was also present.
29. But, in the cross-examination by the learned counsel for the accused, P.W.12 has clearly stated that, except MO No's.6 to 10 and the dead-body, nothing was there. The entire deposition of the P.W.12 is absolutely emanating in corroboration with the very case of the 44 SC No.1233/2013 prosecution's tale, since nothing contrary has been elicited by the learned counsel for the accused through the mouth of the P.W.12; Wherefore, the said deposition of the P.W.12 is certainly in favour of the prosecution's tale.
30. Further, the P.W.3 being the seizure of a stone mahazar witness has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 09.03.2013, himself and his friend Kaviraj were called by the police at Mahadevapura police station and shown the accused by name Subramani, whereby, the said accused lead them to the spot of the incident in Aakash Nagar besides PWD Road, through the Government police jeep and the accused shown a size- stone fallen besides a canal near the shed, stating that the said stone was used by him to kill the deceased Anwar Pasha and the said stone was bloodstained completely and the said stone was seized by the police in 45 SC No.1233/2013 a white cloth and sealed the same by drawing the seizure mahazar as per Ex.P.4, on which his signatures are marked as per Exs.P.4(a) & P.4(b) and also he has identified the said stone in the open-court, along-with the accused and also his signature on the slip pasted on the said sealed stone and the said stone is identified and marked at MO No.5.
31. But, in the cross-examination by the learned counsel for the accused, he has stated that, when he had been to the police station, it was about 9.30 a.m., in the morning, but he cannot say the number of Government police jeep; But, however, they had left the police station at about 10.00 a.m., in the morning and reached the spot by 10.30 a.m., in the morning, which is at about 2 to 2½ kilometers there-from and he has signed on the said mahazar as per Ex.P.4 on the spot itself; But, he cannot say the specific boundaries of the said spot, where the 46 SC No.1233/2013 said stone at MO No.5 was found; and it required about 45 minutes to draw the said mahazar.
32. On meticulous perusal of the entire deposition of the P.W.3, nothing contrary to the prosecution has been elicited through the mouth of the P.W.3 in his cross-examination by the learned counsel for the accused, whereas, the entire deposition of the P.W.3 is absolutely discrepancy-proof, which certainly stands as a corroborative material in favour of the prosecution's case; Wherefore, it certainly deserves to be relied-upon and believable.
33. Further, the P.W.2 being the brother-in-law of the deceased Anwar Pasha as-well-as the circumstantial witness and the seizure of the auto mahazar witness, has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, the deceased Anwar Pasha being the auto driver was the husband of his elder-sister and the said Anwar Pasha having 47 SC No.1233/2013 surrendered to the bad-vices, such as, alcoholism, he was in the habit of leaving the house for a length of period often and in the month of January 2013, similarly he had left the house, along-with the auto-rickshaw, but he did not return, in respect of which, himself and his elder-sister, along-with others though searched for the said Anwar Pasha, they did-not find him; But after about one-month, the Mahadevapura police had come to the house of his elder-sister and asked them to come to the police station, stating that they have found the dead- body and therefore, they went to the police station and thereafter to the Bowring Hospital, where-at, the dead- body having seen by them, was of her (P.W.1) husband by name Anwar Pasha and apparently it was sustaining the head injury and also the ear was torn and the apparels of the said dead-body were full of blood. It is further stated by the P.W.2 in his chief-examination that, on 10.03.2013, again he was called to the Mahadevapura police station and shown the accused by name 48 SC No.1233/2013 Subramani and took him to the bushes near Chikkur village at Kolar, and shown the said auto-rickshaw of the deceased Anwar Pasha, which was kept hiding/concealing the same bearing No.KA-05-AC-3151, by the accused and the same was seized by the police under the seizure mahazar as per Ex.P.3, on which his signature is as per Ex.P.3(a) and the same has been identified by him in two colour photos marked as Exs.P.1 & P.2, respectively, and he has also identified the said accused Subramani in the open-court and thereafter, he came to know that the accused himself has killed the said Anwar Pasha and also identified the MO No's.1 to 4.
34. But, the P.W.2 has stated in the cross-
examination by the learned counsel for the accused that, after the said Anwar Pasha missing, the P.W.1 had given the complaint before the police. According to the version of the P.W.1, though she had attempted to lodge the complaint before the police, they have not accepted; 49 SC No.1233/2013 whereas, they had just stated that, in the similar manner of earlier habit of her husband-Anwar Pasha, he might have left the house. Even, the P.W.2 has stated in the cross-examination that, the BTM police having not registered the complaint, assured that they would search Anwar Pasha and also the P.W.2 has further stated that, they were under impression that the said Anwar Pasha would return-back as in the earlier instances and also the P.W.2 has further stated that, there was no any second house to the said Anwar Pasha. Therefore, by virtue of the said versions of the PWs.1 & 2 together clearly goes to indicate that, though they had attempted to lodge the complaint before the police and also to search the said Anwar Pasha, the police have neither registered the case, assuring that they would search and trace the said Anwar Pasha, nor the said Anwar Pasha had any second house setup. It is further stated by the P.W.2 in the cross-examination that, on 10.03.2013, the Mahadevapura police had secured him to the police 50 SC No.1233/2013 station by phoning him, but specific time is unable to say by him and when he had been to the police station, his friend-Mujaid Pasha was also with him and when they left the police station on that day, it was 12.00 Noon in the afternoon and when they reached the said Chikkur, it was at about 4 to 4.30 p.m., in the evening and the seizure mahazar in respect of seizing of the auto- rickshaw, was completed within 30 minutes to one-hour. As per Ex.P.13 drawing the said seizure mahazar is depicted as 4.00 p.m., to 5.00 p.m., which is also in the fashion of synchronizing the very version of the P.W.2, who has stated the approximate time. On meticulous consideration of these versions of the P.W.2, except minor discrepancies superficially, which do-not do-away very crux of the prosecution's tale, the entire deposition of the P.W.2 is absolutely reliable and believable in favour of the prosecution's tale.
51 SC No.1233/2013
35. Further, the P.W.4 being the inquest as-well-as the seizure of the auto mahazar witness, has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 19.02.2013, he having called by the police to the Bowring Hospital, he has seen the dead-body of the deceased Anwar Pasha by sustaining the injury on the backside of his head and also the ear was torn, in respect of which, the police have drawn the inquest mahazar as per Ex.P.5 and his signature thereon, is as per Ex.P.5(a) and he has signed accordingly only on reading-over the contents of the said inquest mahazar by the police to him, during which time, his friend by name Jameer and another by name Sardar, out of whom, Sardar is no-more now, were present. It is further stated by the P.W.4 that, on 10.03.2013, on receiving the phone from the police station, himself and Allaha Baksh i.e., the instant P.W.2 (CW.13) both had been to the police station, where-at the accused was shown by the police, stating that the accused himself had 52 SC No.1233/2013 killed the deceased Anwar Pasha by assaulting with a stone and thereafter, the accused stated in presence of them that, he has hided the auto-rickshaw of the deceased Anwar Pasha, in Chikkur village after Kolar; Wherefore, the Police Inspector took them to the village of the accused and there-from the accused took them to the agricultural land situated at Chikkur village, where-at a green colour auto-rickshaw was hidden, which was seized by the police in presence of them on producing the same by the accused, by drawing the seizure mahazar pertaining to the said auto-rickshaw as per Ex.P.3, on which his signatures are marked as per Exs.P.3(b) & P.3(c), respectively, and he has also identified the said auto-rickshaw, through the two colour photos marked as per Exs.P.1 & P.2, respectively.
36. But, in the cross-examination by the learned counsel for the accused, P.W.4 has stated to the effect that, at about 12.20 p.m., in the afternoon, himself and 53 SC No.1233/2013 P.W.2/Allaha Baksh had been to the police station and they were about one-hour in the said hospital. Now, it is pertinent to note that, according to Ex.P.5, it has been drawn from 3.00 p.m., to 5.00 p.m., in the afternoon. It has been pressed-into service by the learned counsel for the accused that, there is a discrepancy between the versions of the P.W.4 and the timings mentioned in Ex.P.5. It is significant to note that, the said timings which are being stated by the P.W.4 are approximate and no specific timing can be expected through any witness because, the said incident having taken place about 2 years prior to the trial, it cannot be expected the exact and specific timings through the mouths of the witnesses and similarly it has been clearly stated by the P.W.4 that, they were present in the hospital for about one-hour, which clearly goes to indicate that, one-hour period is a mere approximate period stated by him, in respect of which, the learned Public Prosecutor has endeavored to interpret which prevails with some force and bearing, 54 SC No.1233/2013 wherefore, under the circumstances prevailing, the said timings stated by the P.W.4 does-not tantamount to be a grave discrepancy and fatal to the prosecution's case, but it is emanating only in the fashion of a minor discrepancy, which does-not evade or vitiate the entire Ex.P.5 and the evidence of P.W.4. Apart from the same, the P.W.4 has further stated that, on 10.03.2013, they had been to the police station at about 11.00 to 11.30 a.m., in the morning and the Police Inspector inquired the accused in presence of them, where-at, the accused has clearly stated that, he had put a stone on the head of the deceased when the deceased fallen-down in a scramble between himself and deceased. It is further stated by the P.W.4 that, at about 1 to 1.30 p.m., in the afternoon, they had left the police station towards Chikkur village and reached by 4.00 p.m., in the evening and there were no any house-properties near the spot, where the said auto-rickshaw was parked/hidden. It is further stated that, the said mahazar was written by 55 SC No.1233/2013 sitting in the police jeep, which was on the spot where the said auto-rickshaw was hidden and after drawing the said panchanama, they have signed thereon after reading-over the contents of the same by the police to them; But, now he cannot say the contents of the said panchanama. Even, it is stated by the P.W.4 in the cross-examination that, on 10.03.2013, the stone and the apparels of the dead-body were shown to them, but now he does-not remember as to which stone.
37. On meticulous consideration of these versions of the P.W.4 in his cross-examination, except the minor discrepancies, all his versions are absolutely emanating in the fashion of corroborating in his own entire deposition, which ultimately has remained as a corroborative material in favour of the prosecution's case, since nothing contradictory and adversarial version has been elicited and extracted through the mouth of the 56 SC No.1233/2013 P.W.4 and therefore, the said deposition of the P.W.4 is absolutely acceptable and reliable-one.
38. It is significant to note that, the learned counsel for the accused has pressed-into service with all the vehemence at his command that, the said alleged inquest mahazar as per Ex.P.5 has been drawn in the Bowring Hospital, which is absolutely not reliable and believable- one, since it is barred under the provisions of Section 174(1) of Cr.P.C. In connection with the same, he has placed his reliance on a well-settled principle of precedent law, reported in AIR 1975 SC 1925 (B) in a case between Kodali Puranchandra Rao & another Vs. The Public Prosecutor, Andhra Pradesh, in which their Lordships have held that, as per the terminologies in Section 174(1) of Cr.P.C., it is mandatory to draw the inquest panchanama of a dead-body on the spot where it is found, but Sub-section (3) of the said Section 174 of Cr.P.C., further requires the Police Officer holding the 57 SC No.1233/2013 inquest to forward the body with a view to its being examined by the Government Medical Officer, if the state of the weather and the distance admit of it's being so forwarded without risk of such putrefaction on the road as would render such examination useless.
39. On the contrary, the learned Public Prosecutor has pressed-into service forcefully drawing the attention of this court towards the deposition of the P.W.17, who is none-other than the prefixive partial investigating officer, who has clearly stated in his chief-examination itself that, since the relatives/heirs of the deceased were to be traced-out, the said dead-body was shifted to the mortuary of the Bowring Hospital. The very intrinsic connotation of the said version of the P.W.17 clearly goes to indicate that, until the heirs of the deceased were traced-out, there would be no any safety as-well-as no possibilities of the dead-body in the same position without any natural changes therein, in respect of which, 58 SC No.1233/2013 the learned Public Prosecutor has endeavored to interpret rightly before this court. That apart, the P.W.17 has further stated that, on 19.02.2013, later-on, the P.W.1being the wife of the deceased having identified the said dead-body, he has secured the 3 panchas and drawn the inquest mahazar there-at. It is well-settled law that, the very object of the inquest mahazar is to ascertain whether a person had died under the circumstances, which were doubtful or an unnatural death and if so, what is the cause of death and the contents of the inquest report cannot be treated as evidence, but they can be looked-in to test the veracity of the witness. Therefore, within the scope of the provisions of Section 174(3) of Cr.P.C., the interpretation put-forth by the learned Public Prosecutor stands good under the peculiar circumstances prevailing herein, in view of the prefixive partial investigating officer i.e., P.W.17 having taken the precautionary measures. Apart from the same, even nothing has been cross-examined by the learned 59 SC No.1233/2013 counsel for the accused either to the PW.4 to the inquest mahazar or to the P.W.17 to make-out that, there was no any justifiable reason to shift the dead-body by the P.W.17 to the Bowring Hospital, without drawing the inquest mahazar on the spot itself. Apart from the same, the P.W.17 being the prefixive partial investigating officer, having got confirmed that, the said dead-body found with the unnatural death under the suspicious circumstances, he has shifted the dead-body of Anwar Pasha to the Bowring Hospital, in respect of which, the learned Public Prosecutor has rightly endeavored to put- forth before this court at the time of addressing his arguments. As stated herein before supra, even the learned counsel for the accused has not elicited and extracted any kind of contrary versions through the mouth of the P.W.4 in respect of the said Ex.P.5/inquest mahazar; Wherefore, the said entire deposition of the P.W.5, along-with Ex.P.5 cannot be neglected or ignored or disbelieved; Wherefore, under the peculiar 60 SC No.1233/2013 circumstances prevailing herein, the accused does-not deserve for invoking the aid of the said citation endeavored to rely-upon at this belated stage, as in respect of which, nothing has been questioned by the learned counsel for the accused either to the P.W.4 or to the P.W.17, as stated herein before supra.
40. To put-into simple terms, the entire deposition of the P.W.4 coupled-with Ex.P.5, which is with the specific object to ascertain as to whether there was a cause of death with any suspicious cause of death, they are absolutely reliable and acceptable-one.
41. Further, the P.W.21 being the Medical Officer working as Assistant Professor in Forensic Department of Bengaluru Medical College attached to the Bowring Hospital, having conducted the post-mortem, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 20.02.2013, on receiving the requisition of Mahadevapura police station 61 SC No.1233/2013 for conducting the post-mortem of the dead-body of one Anwar Pasha, he has conducted the same and prior to it, he found the apparels on the dead-body, such as, (1) Khaki coloured full-sleeve shirt - bloodstained; (2) Khaki coloured pant - bloodstained; (3) Yellow coloured full- sleeve shirt; and (4) Light-mustered coloured underwear. It is further stated by the P.W.21 that, he has handed- over the apparels of the dead-body to the PC No.10350 and further he found that the said dead-body was aged of about 44 years with 160 cms length with a normal physical built-up with the post-mortem strains and the entire body was with the rigor-mortis and also there were dried bloodstains on the nostrils as-well-as the face and right-elbow. It is further stated by the P.W.21 that, on examining the said dead-body, he found the following injuries:
- JqÀV«AiÀÄ ªÀÄzÀsåzÀ°è 2 ¸ÉA«Äà EAlÄ 0.5 ¸ÉA«Äà EAlÄ 1 ¸ÉA«Äà C¼ÀvÉAiÀÄ MAzÀÄ PÉÆAiÀÄÝUÁAiÀÄ E¢ÝvÀÄ.62 SC No.1233/2013
- JqÀV«AiÀÄ »A¨sÁUÀz° À è (Mastoid Process) JgÀqÀÄ ¸ÉA«Äà EAlÄ MAzÀÄ ¸ÉA«Äà EAlÄ ªÀÄƼÉAiÀĪÀgÉV£À D¼ÀzÀµÀÄÖ PÉÆAiÀÄÝ UÁAiÀÄ«vÀÄÛ.
- vÀ¯ÉAiÀÄ ZÀªÀÄðªÀ£ÀÄß PÀÄAiÀÄÄÝ £ÉÆÃrzÁUÀ JqÀ Mastoid ¥ÀæzÉñÀzÀ°è 4 EAlÄ 2 ¸ÉA«Äà C¼ÀvÉAiÀÄ°è gÀPÀۺɥÀÅàUÀnÖzÀÄÝ PÀAqÀÄ §AvÀÄ ºÁUÀÆ mÉA¥ÀgÀ¯ï ªÀĸÀ¯ï£À°è 3 EAlÄ 2 ¸ÉA«Äà £ÀµÀÄÖ gÀPÀÛ ºÉ¥ÀÅàUn À ÖvÀÄÛ.
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- ªÉÄzÀĽ£À ªÉÄðgÀĪÀ ¥ÉÇgÉ ºÀj¢vÀÄÛ. ªÉÄzÀĽ£À ªÉÄÃ¯É ºÁUÀÆ M¼À¥ÉÇgÉAiÀÄ PɼÀUÉ gÀPÀÛ ºÉ¥ÀÅUà ÀnÖvÀÄÛ.
- JzÉUÉÆqÀÄUÀ¼ÀÄ, ¥ÀPÉ̮ħÄUÀ¼ÀÄ, ±Áé¸ÀPÉÆñÀzÀ DªÀgÀt, ±Áé¸À£Á¼À, ±Áé¸ÀPÉÆñÀ ºÁUÀÆ ºÀÈzÀAiÀÄ ¸ÀĹÜwAiÀÄ°èzÀݪÀÅ.
- GzÀgÀzÀ UÉÆqÉ, ¥ÀjªÉõÀÖ£À ¥ÉÇgÉ, ¨Á¬Ä, UÀAl®Ä, PÀĺÀgÀ, C£ÀߣÁ¼À, zÉÆqÀØ ªÀÄvÀÄÛ ¸ÀtÚ PÀgÀļÀÄ, ¦vÀd Û £ÀPÁAUÀ, UÀÄ®ä ¸ÀĹÜwAiÀÄ°èzÀª Ý À Å.
- ºÉÆmÉÖAiÀÄ°è CzÀsð fÃtðªÁzÀ ¸ÀĪÀiÁgÀÄ 150 JAJ¯ï£ÀµÀÄÖ C£Àß ºÁUÀÆ lªÉÆmÉÆÃzÀ vÀÄAqÀÄUÀ½zÀݪÀÅ. ¸ÀzÀj ¥ÀæzÉñÀzÀ°è C¸ÀªÀiÁ£Àå ªÁ¸À£É K£ÀÆ EgÀ°®è.
- ªÀiÆvÀæ¦AqÀUÀ¼ÀÄ, ªÀÄÆvÀæ PÉÆñÀ ºÁUÀÆ ºÉÆgÀV£À ºÁUÀÆ M¼ÀV£À ¸ÀAvÁ£À©ª ü ÀÈ¢Þ CAUÀUÀ¼ÀÄ ¸ÀĹÜwAiÀÄ°èzÀݪÀÅ,
- ªÉÄîÌAqÀ UÁAiÀÄUÀ¼ÀÄ ªÀÄgÀt¥ÀǪÀðzÁÝVzÀÄÝ vÁeÁ DVzÀݪÀÅ. It is further stated by the P.W.21 that, the death of the said Anwar Pasha was due to coma, as a result of the head injury and in respect of the post-mortem conducted by him, he has issued the post-mortem report as per Ex.P.19, on which his signature is as per Ex.P.19(b). 63 SC No.1233/2013 Further, the P.W.21 has stated that, on 30.04.2013, he received a requisition from the Police Inspector of Mahadevapura police station, in connection with the Cr.No.134/2013 requesting him to examine the stone sent in a sealed-cover to him and give his opinion and accordingly, on examining the said stone, it was sealed and it was in a proper condition with respect to it's FSL seal and thereafter, on opening the same, he found a size-stone weighing 14 kgs, with irregular shape with a flat surface on one-side and irregular surface at the bottom-side and the top-side, it was protruding to the extent of 18 X 10 cms and the said stone was with red- brown colour stain and the measurement of the bottom of the said stone on one-side was 9 cms and on the other side, it was 23 cms, whereas it's height was 22 cms and it's protruding portion was of about 6.5 cms and accordingly, on 13.05.2013, he having examined the said stone, he has issued his opinion to the effect that, if the assault is made from a particular height on the head with 64 SC No.1233/2013 the said stone which he has examined, the injury No's.1 & 2 on the body of the said dead-body and the injury sustained to the middle cranial fossa of the skull, which split into 2 parts are likely to cause. Apart from the same, he has sealed the said stone by affixing a label to it and prepared a sample-seal and handed-over the same to the police under an acknowledgement and in respect of the same, he has given his opinion on the last page of the post-mortem report as per Ex.P.19(c) and his signature is as per Ex.P.19(e) and he has identified the said stone in the open-court as per MO No.5 and further he has stated that, there are every chances of occurring the head injury and the injuries to the brain of the deceased, if MO No.5/size-stone is put on the head.
42. But, in the cross-examination by the learned counsel for the accused, P.W.21 has stated to the effect that, he cannot say specifically as to about to what extent of time prior to conducting of post-mortem, the death had 65 SC No.1233/2013 occurred, since it was kept-in mortuary. But, this particular incapability of saying by the P.W.21 does-not fatal to the very crux of the prosecution's tale because, already as stated herein before supra, the said dead-body was shifted to the investigating officer/P.W.17 as a precautionary measure, in respect of which, the learned Public Prosecutor has convincingly clarified before this court, as against which, nothing has been put-forth by the learned counsel for the accused. It has been further suggested by the learned counsel for the accused to the P.W.21 that, if an assault is made with a sharp-weapon, there are every chances of sustaining the injuries in the middle and the backside of the left-ear of the deceased, which suggestion has been clearly admitted by the P.W.21. The said making of suggestion itself further sturdifies the case of the prosecution that, it does-not come to the aid of the accused. Apart from the same, the P.W.21 has clarified furthermore in the cross- examination that, suggesting of the injuries to the head 66 SC No.1233/2013 depends on the portion of the stone, which comes in contact with the head and he cannot say in the instant case as to which portion of the said stone had come in contact with the head of the deceased Anwar Pasha. It is pertinent to note that, the said versions of the P.W.21 ultimately go to the aid of the prosecution in the fashion of clarifying the minuteness, but the same does-not come to the aid of the accused to escape from the clutches of his liability of the alleged commission of the offence. It is further stated by the P.W.21 that, there are every chances of occurring such injuries even if the stone is put from the height of 2 to 3 feet also and it is further clarified by the P.W.21 that, the meaning of two split parts of the surface of middle cranial fossa of the skull is the middle cranial fossa bone fracture and if the stone like MO No.5 is simply left from the height 2 to 3 feet, there are every chances of sustaining such middle cranial fossa bone fracture and further stated that, due to any 67 SC No.1233/2013 portion of the said MO No.5, the injuries to the ear and backside of the ear are likely to cause.
43. On meticulous consideration of all these versions of the P.W.21 in his cross-examination, they are absolutely emanating in support of Ex.P.l9 in favour of the prosecution, whereas, nothing contrary has been elicited and extracted through the mouth of the P.W.21 by the learned counsel for the accused; Wherefore, the entire deposition of the P.W.21 certainly stands as a corroborative material, which cannot be overlooked or ignored under any circumstances.
44. Further, the P.W.10 being the Asst. Engineer of KEB/BESCOM having prepared the sketch of the scene of offence as-well-as the circumstantial witness has clearly endeavored to depose in favour of the prosecution in his chief-examination to the effect that, he having received a requisition from Mahadevapura police station in the month of March 2013 to the BBMP HAL sub- 68 SC No.1233/2013 section, and accordingly, he along-with the ASI-Rajanna went to the spot as per the show of the same and drew the sketch of the spot of the incident as per Ex.P.8, on which his signature is as per Ex.P.8(a) and thereafter sent the same to the police, along-with the covering-letter as per Ex.P.9, on which his signature is as per Ex.P.9(a).
45. But, in the cross-examination, it has been clearly admitted by the P.W.10 that, he has not measured the shed existing there-at and also he has not mentioned the boundaries of the open-site. But, on meticulous perusal of the said Ex.P.8, it discloses the pictorial- scenario of the spot of the incident and merely having not mentioned either the boundaries of the open-site or the measurement of the shed in the said Ex.P.8, it does-not mean that there is no any existence of either the shed there-at or the open-space because, on record through the cross-examinations by the learned counsel for the accused, to the other witnesses, it is admitted fact by the 69 SC No.1233/2013 accused either regarding the existence of the said shed and also the open-site there-at; in respect of which, it has been already discussed at much-length herein before supra; Wherefore, the said versions of the P.W.10 in his cross-examination, do-not stand as a fatal to the prosecution's case to extend the benefit of the same to the accused, whereas, the entire deposition of the P.W.10 in overall stands as a corroborative material in favour of the prosecution, much-less.
46. Further, the P.W.16 being the Asst. Engineer of KEB/BESCOM as-well-as the circumstantial witness, has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, when he was working as Asst. Engineer in BESCOM of Benniganahalli in the year 2013 in view of requisition sent by the Police Department on 18.02.2013 with respect to the timings of the load-shedding on the PWD Road, he has issued a detailed report mentioning that, on 18.02.2013 from 4.07 70 SC No.1233/2013 p.m., to 6.00 p.m., in the evening and also from 7.27 p.m., to 7.40 p.m., there was a load-shedding without power supply and accordingly, he has issued the said report as per Ex.P.16, on which his signature is as per Ex.P.16(a).
47. But, in the cross-examination by the learned counsel for the accused, the P.W.16 has stated to the effect that, they have maintained the log-book in the office, which will be written manually; But, the copy of the said log-book has not been sent, along-with his report and to produce the same, he has no objections or any hurdles. But, thereafter, the P.W.16 has clearly stated voluntarily to the effect that, if it is required in the instant case, he is ready to produce the same. But, unfortunately, the learned counsel for the accused has not at-all taken any steps to call-for the said log-book, if really it was quint-essential for him to take best use of the said log-book; Wherefore, it clearly indicates that, the 71 SC No.1233/2013 said log-book was of no helpful to the accused and therefore, the accused has not endeavored to call-for the said log-book from the office of the BESCOM at Benniganahalli; Wherefore, the said versions of the P.W.16 in the cross-examination in respect of having not sent the copy of the log-book maintained in his office to the police does-not come to the aid of the accused, whereas, the entire deposition of the P.W.16 is absolutely emanating in favour of the prosecution without there being any kind of adverse and contrary aspects elicited through the mouth of the P.W.16, whereas, it is crystal clear that, there-from in between 4.07 p.m., to 6.00 p.m., and 7.27 p.m., to 7.40 p.m., there was no current or power-supply in the area of the said spot of the incident, whereas, during the remaining time, there was electric power-supply from BESCOM. Therefore, the entire deposition of the P.W.16 is absolutely believable and reliable-one.
72 SC No.1233/2013
48. Further, the P.W.11 being the PC No.10350 of Mahadevapura police station as-well-as the circumstantial witness, has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, he having handed-over the dead-body to the CW.13 under an acknowledgement and produced the apparels of the dead-body before the investigating officer, accordingly, he has given a report as per Ex.P.10, on which his signature is as per Ex.P.10(a).
49. But, in the cross-examination by the learned counsel for the accused, P.W.11 has stated to the effect that, on 19.02.2013, at about 8.00 a.m., in the morning, he had been to the police station for his duty and immediately he was deputed for watching the dead-body and at that time, the dead-body had come in the Ambulance near the police station. In respect of all these particular versions of the P.W.11, the learned counsel for the accused has vehemently submitted that, how was it 73 SC No.1233/2013 possible for him to go early itself. It is no doubt, the said versions of the P.W.11 are emanating in the fashion of the discrepancies, but they absolutely do-not evade and vitiate the entire deposition of the P.W.11 in view of his nature of the work done by him in respect of he having handed-over the dead-body to the CW.13 after post- mortem under an acknowledgement and also he having produced the apparels of the dead-body before the investigating officer by bringing the same from the Medical Officer, because in view of the same, except denial suggestion made by the learned counsel for the accused, nothing contrary to the prosecution is forthcoming, on record.
50. Further, the P.W.5 being the PC No.12492 of Mahadevapura police station as-well-as the circumstantial witness, has also endeavored to depose in favour of the prosecution in his chief-examination to the effect that, he having carried the seized size-stone to the 74 SC No.1233/2013 Bowring Hospital, Forensic Science Department under an acknowledgement for the purpose of obtaining the opinion of the Medical Officer and thereafter having brought the post-mortem report from the Medial Officer and produced the same before the investigating officer. In addition to the same, he has clearly identified the said seized stone which he had carried to the Bowring hospital, as MO No.5 and also he has identified the post- mortem report as per Ex.P.19 and also the opinion of the Medical Officer is as per Ex.P.19(c), thereon.
51. But, in the cross-examination by the learned counsel for the accused, nothing contrary has been elicited through the mouth of the P.W.5 except making the denial of the suggestions; Wherefore, the entire deposition of the P.W.5 has remained absolutely in favour of the prosecution in the position of a corroborative material itself which certainly deserves to be relied-upon and believable.
75 SC No.1233/2013
52. Further, the P.W.14 being the HC No.3661 and P.W.15 being the HC No.937 have also endeavored to depose in favour of the prosecution in their respective chief-examinations to the effect that, on 08.03.2013, they having been deputed by the investigating officer for tracing-out the accused and to produce before him, in respect of which, they having received the credible information that the accused was in his house situated at Chikkur village in Mulabagilu Taluk of Kolar District, they went there-at and after getting confirmed that the said accused himself as Subramani, they produced him before the Police Inspector at about 9.30 p.m., in the night in respect of P.W.14 having given the report as per Ex.P.15, on which the signature of P.W.14 is as per Ex.P.15(a) and also they have identified the said accused in the open-court during the evidence.
53. But, in the cross-examination by the learned counsel for the accused, the P.W.14 has clearly stated 76 SC No.1233/2013 that, there will be a station-house diary kept in the police station by narrating as to which police staff is entrusted with which duty and in respect of they having been deputed for tracing and producing the said accused before the investigating officer, it has been mentioned therein. But, the P.W.15 has stated in the cross- examination that, he has given the statement before the investigating officer in respect of he also having been to trace-out the accused and produced him before the investigating officer and in the said statement, it has been mentioned as recorded on 19.02.2013, which portion is marked as per Ex.D.1. It is pertinent to note that, the learned Public Prosecutor has endeavored to interpret the same that, in view of the normal course of doing the copy-paste of the formats in a skeleton manner, the earlier date as 19.02.2013 has been not changed through oversight and inadvertently; Wherefore, it does-not amount to a major discrepancy. But, however, on the other hand, the learned counsel for the 77 SC No.1233/2013 accused has sturdily pressed-into service resisting and counter-blasting the said interpretation putting-forth by the learned Public Prosecutor. Under the circumstances prevailing herein, even otherwise if the said deposition of the P.W.15 is left-out, the entire deposition of the P.W.14 is absolutely emanating in support of the prosecution as a corroborative material, since nothing contrary has been elicited through the mouth of the P.W.14 against the prosecution's case; Wherefore, the very deposition of the P.W.14 absolutely stands in favour of the prosecution.
54. Further, the P.W.19 being the HC No.1672 being a circumstantial witness, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, he having carried the First Information Report to the X ACMM Court on 19.02.2013, at about 4.00 p.m., in the afternoon, in respect of which, he has given the statement before the investigating officer and the said 78 SC No.1233/2013 First Information Report has been identified by him, which is marked as per Ex.P.17.
55. But, in the cross-examination, though the learned counsel for the accused has endeavored to tackle him, nothing contrary to the prosecution has been elicited through his mouth; Wherefore, the entire deposition of the P.W.19 is absolutely forthcoming on record in favour of the prosecution as a corroborative material.
56. Further, the P.W.18 being the HC No.1340 as- well-as the circumstantial witness has also endeavored to depose in favour of the prosecution in his chief- examination to the effect that, on 26.03.2013, he had carried the material objects seized in the instant case from the police station to the FSL, and after examining and analyzing the said material objects, again he has brought-back and produced the same before the investigating officer, along-with his report. 79 SC No.1233/2013
57. But, in the cross-examination by the learned counsel for the accused, nothing contrary has been elicited through the mouth of the P.W.18; Wherefore, the entire deposition of the P.W.18 is absolutely forthcoming on record in favour of the prosecution's case as a corroborative material.
58. Further, the P.W.17 being the prefixive partial investigating officer, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 19.02.2013, at about 10.30 a.m., in the morning, while he was on duty in the police station, the complainant (CW.1/P.W.6) appeared before him and lodged a written complaint as per Ex.P.6, on which his (P.W.17) signature is as per Ex.P.6(b) and basing on the same, he has registered the case at Cr.No.134/2013 for the offence punishable U/Sec.302 of I.P.C. and after preparing the First Information Report as per Ex.P.17, on which his signature is as per Ex.P.17(a), he has sent the 80 SC No.1233/2013 original complaint and First Information Report to the court and thereafter, he having been to the spot of the incident, along-with the police staff, he found the dead- body of a male-person, aged of 40 to 45 years, lying in the oozing-blood on the mat, but appeared to be a auto- rickshaw driver and therefore, he secured two spot mahazar witnesses, such as, CW.9/S.Umesh and CW.10- P.W.12/Chandrashekar and drew the spot mahazar, under which he has seized the bloodstained plastic-mat, bloodstained pillow, bloodstained mosquito-net and bloodstained bed-sheet in presence of them and the said mahazar is as per Ex.P.7, on which his signature is as per Ex.P.7(c) and even he has seized the sample blood fallen on the spot in a plastic tin-box and sealed all the material objects seized and put the seal with letters MDP and thereafter since the heirs of the deceased dead-body were to be traced-out, the dead-body was shifted to the mortuary of the Bowring Hospital. It is further stated by the P.W.17 that, on 19.02.2013, when the wife of the 81 SC No.1233/2013 deceased, i.e., P.W.1 having identified the dead-body of Anwar Pasha as the husband of herself, he drew the inquest mahazar in the presence of 3 panchas and the said inquest mahazar is as per Ex.P.5, on which his signatures are marked as per Exs.P.5(b) & P.5(c) and thereafter, the apparels of the dead-body, such as, khaki shirt and pant, T-shirt and underwear (khacha) having received through PC-Yasin Pasha (CW.20/P.W.11), the same are being converted into property-form and the report given by the P.W.11 is as per Ex.P.10, on which his (P.W.17) signature is as per Ex.P.10(b) and thereafter, he has recorded the statements of the CWs.4, 9, 10, 15 & 16 and thereafter, he has handed-over the case-file to the Police Inspector i.e., CW.29 (P.W.20), for further investigation and also he has identified the MO No's.1 to 4 & 6 to 10 in the open-court.
59. But, in the cross-examination by the learned counsel for the accused, he has clearly stated that, he 82 SC No.1233/2013 has got snapped the photos of the dead-body on the spot when he visited and also further stated that, since he did-not feel that the chapels and a bag were essential for his investigation, he did-not seize the same from the spot and further stated that, in view of already the photos taken of the dead-body on the spot, no hand-sketch was prepared before shifting the said dead-body there-from. It is no doubt, at one-point of interval, though the P.W.17 has endeavored to state that on the next day of registering the case, the heirs of the deceased had come to the police station, but at later stage, again he has clarified voluntarily that, on the date of the incident itself, more-particularly, on 19th date in the afternoon, the wife of the deceased herself having come to the police station and was taken to the hospital, who has clearly identified the dead-body as of her own-husband Anwar Pasha, on the same day. Therefore, by virtue of the said explanation and clarity made by the P.W.17, his earlier version does-not hold any value in favour of the accused 83 SC No.1233/2013 dismantling the very crux of the prosecution's tale. Therefore, in overall the entire deposition of the P.W.17 clearly implies that, after lodging the complaint by the P.W.6, he immediately went to the spot, after registering the case, and drawn the spot mahazar there-at and seized the MO No's.6 to 10 there-at in presence of the spot mahazar witnesses and thereafter, he has shifted the dead-body to the mortuary of the Bowring Hospital and later-on, he has drawn the inquest mahazar also after securing the heirs of the dead-body and then on receiving the MO No's.1 to 4, he has handed-over the entire case-file to the P.W.20 for further investigation; Wherefore, the said deposition of the P.W.17 certainly stands in favour of the prosecution as a corroborative material.
60. Further, the P.W.20 being the suffixive partial investigating officer, has endeavored to depose in favour of the prosecution in his chief-examination in respect of he having conducted the investigation to the effect that, 84 SC No.1233/2013 on 20.02.2013, he having received the entire case-file for further investigation from the CW.28, he has recorded the statements of the P.W.2 (CW.13), P.W.9 (CW.7), P.W.7 (CW.5), P.W.8 (CW.6) and on 21.02.2013, he has recorded the statements of the CWs.2 & 3 and deputed his police staff i.e., CW.40 and others for searching the accused and on 08.03.2013, at about 9.30 p.m., in the night, the said CWs.38 to 41 produced the accused by name Subramani @ Mani before him, in respect of which, CW.40 has given his report as per Ex.P.15, on which his signature is as per Ex.P.15(b) and on inquiring the said accused, he has arrested him by following the arrest rules and thereafter, he has recorded the voluntary statements of the accused to the effect that, he has committed the murder of the deceased and he has put the said size-stone used for murdering the deceased, has kept the said stone by him besides the drainage (mori) and also the auto-rickshaw of the deceased is being hidden by him and he would show both the said stone 85 SC No.1233/2013 as-well-as auto-rickshaw if he is followed and the said portion of his voluntary statement has been marked as per Ex.P.18, on which he has put his LTM and his (P.W.20) signature thereon, is as per Ex.P.18(a). Further, the P.W.20 has stated that, on 09.03.2013 in the morning, basing on the voluntary statement of the accused, he secured the mahazar witnesses i.e., the instant CW.11 (P.W.3) and CW.13 by name Kaviraj and followed the accused to the spot of the incident near the open-space of Anand Reddy (CW.8/P.W.13) situated near PWD Road of Aakash Nagar, and on seeing the size-stone by the accused, stated that it was used by him for murdering the accused, he (P.W.20) drew the seizure mahazar as per Ex.P.4 from 10.00 a.m., to 10.45 a.m., in presence of the CWs.11 & 12, on which his signature is as per Ex.P.4(c) and thereafter, he has got converted the said seized size-stone under PF No.32/2013 and the said stone having been marked as MO.No.5 has been identified by him, along-with the accused. Further, the 86 SC No.1233/2013 P.W.20 has stated that, thereafter, he has produced the accused before the court and taken him to the police custody under the court order and thereafter, he has recorded the statements of the CWs.11 & 12. Further, the P.W.20 has stated that, on 10.03.2013, as per the voluntary statement of the accused, he followed the accused, along-with panchas i.e., the instant CWs.13 & 14 who have been examined as PWs.2 & 4, respectively, to a place at about 50 meters away from the house of the accused and shown the auto-rickshaw in Chikkur village, bearing No.KA-05-AC-3151 belonging to the deceased Anwar Pasha, in respect of which he (P.W.20) has drawn the seizure mahazar of the said auto-rickshaw from 4.00 p.m., to 5.00 p.m., in the evening, in the presence of the said CWs.13 & 14 and seized the same and the said seizure mahazar is marked as per Ex.P.3, on which his signature is as per Ex.P.3(d) and thereafter, he has got converted the seized auto-rickshaw under PF No.34/2013 and also identified the said auto-rickshaw 87 SC No.1233/2013 through the photos marked as per Exs.P.1 & P.2 and thereafter, on the same day, he has recorded the statements of the CWs.13 & 14. It is further stated by the P.W.20 that, on 11.03.2013, he has produced the accused under remand application and also identified the accused in the open-court and also on the same day i.e., on 11.03.2013, he has recorded the additional statements of the CW.11/complainant, CWs.4 to 7 in respect of they having identified the said seized auto- rickshaw. It is further stated by the P.W.20 that, on 12.03.2013, he having requested the BBMP Engineer to visit the spot of the incident and prepared the sketch of the scene of offence; Wherefore, on 22.05.2013, he has received the sketch of the scene of offence prepared by the CW.18 (P.W.10), as per Ex.P.8 and a covering-letter of the same is as per Ex.P.9, on which his signature is as per Ex.P.9(b) and on 24.02.2013, he has received the post-mortem report as per Ex.P.19 from the Medical Officer i.e., CW.17 (P.W.21) and his signature thereon, is 88 SC No.1233/2013 as per Ex.P.19(a). It is further stated by the P.W.20 that, on 26.03.2013, he had sent the seized properties at Sl.No's.1 to 10 to the FSL for the examination purpose through PC- Venkatesh (CW.43) and on 30.04.2013, he had requested the Medical Officer i.e., the P.W.21 (CW.17) to verify and examine the said seized stone used for murdering the deceased by the accused, to know as to whether a death can be caused by such stone and in respect of the same, it was sent-for the opinion of the P.W.21, in respect of which, the P.W.21 has given his opinion on the post-mortem report marked at Ex.P.19 and his opinion is marked as per Ex.P.19(c) and his (P.W.20) signature thereon, is as per Ex.P.19(d) and on 22.05.2013, he has obtained the report from the Asst. Executive Engineer of BESCOM i.e., CW.19 (P.W.16) in respect of the timings of the load-shedding made by way of power-cut on 19.02.2013 and the said report of the P.W.16 is as per Ex.P.16, on which his signature is as per Ex.P.16(b). It is further stated by the P.W.20 that, on 89 SC No.1233/2013 27.05.2013, he has obtained the 'B' register extract pertaining to the said seized auto-rickshaw from the RTO, as per Ex.P.20, on which his signature is as per Ex.P.20(a). It is further stated by the P.W.20 that, on 19.03.2013, he has recorded the statements of his police staff i.e., CWs.38, 39 & 41 and on 26.03.2013, he has recorded the statement of the CW.43 and on 18.05.2013, he has recorded the statement of the CW.37 and thereafter, on completion of the entire investigation, he having found the sufficient material against the accused for having committed the murder of the deceased Anwar Pasha, has submitted the charge-sheet before the court for the offences punishable U/Secs.302 & 379 of I.P.C. It is further stated by the P.W.20 that, the requisition letter sent by him to the FSL, along-with the material objects for examination, is as per Ex.P.21, on which his signature is as per Ex.P.21(a) and the acknowledgement issued by the FSL is as per Ex.P.22 and his signature thereon, is as per Ex.P.22(a).
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61. But, in the cross-examination by the learned counsel for the accused, though he has endeavored to disclose his non-remembrance regarding certain unwarranted specific queries endeavored to make by the learned counsel for the accused, they do-not go against the very crux of the prosecution's tale. It is no doubt, the P.W.20 has stated in the cross-examination that, the seized mat, pillow, bed-sheet and mosquito-net, were belonging to the deceased Anwar Pasha. But, in respect of the same, he has clearly admitted that, it has not been noticed either through the charge-sheet or through any statements of the witnesses.
62. It is significant to note that, though the learned counsel for the accused has endeavored to emphasize much-more on this particular aspect, it is crystal clear that, on overall consideration of the material placed on record, more-particularly, the photographs placed on record as per Exs.P.11 to P.14, which have been well- established through the mouths of the other prosecution 91 SC No.1233/2013 witnesses, clearly go to establish that the said material objects were belonging to the deceased Anwar Pasha himself, wherefore, the question of non-availability of the same on the spot would have never arised at-all. Even, the learned counsel for the accused has endeavored to ask the P.W.20 regarding the log-book maintained by the BESCOM Engineer having not obtained and produced. But, it is significant to note that, if really that was having any such very significant role in the view of the learned counsel for the accused, there was no bar for him to summon the same though the P.W.16 has clearly stated that, if it is required, he is ready to produce the same. But, no efforts have been put-in by the accused side in respect of calling-for any log-book available in BESCOM office. But, to the prosecution, it having appeared to be not so dogmatic and important document to establish the guilt against the accused, the same has been not called- for and produced before this court, in respect of which, the learned Public Prosecutor has endeavored to analyze 92 SC No.1233/2013 and convince this court with some force and bearing, which interpretation does-not deserve for overlooking and overriding, under the circumstances prevailing herein. Therefore, in overall, it is crystal clear that, the entire deposition of the P.W.20 is also absolutely emanating in favour of the prosecution, without any such fatal versions through his mouth, contrary to the prosecution's case; Wherefore, the said deposition of the P.W.20 certainly stands as a corroborative material in favour of the prosecution's tale.
63. Further, the P.W.22 being the only eyewitness having examined on behalf of the prosecution, has clearly stated in his chief-examination to the effect that, he is doing the water-can supply work with one Sudhakar and he was knowing the deceased Anwar Pasha, who was an auto-rickshaw driver and also similarly, he knows the accused by name Subramani, who is in the open-court and the said deceased use to come along-with the accused Subramani and along-with them inclusive of 93 SC No.1233/2013 himself, one Chandru and Sudhakar were also use to be together. It is further stated by the P.W.22 in the chief- examination that, the accused Subramani had given Rs.5,500/- to the deceased Anwar Pasha, who has demised about one-year back and prior to the demise of the said Anwar Pasha about 10 days earlier, the accused had lent the hand-loan of Rs.5,500/- and there was often scramble between the accused and the said Anwar Pasha in respect of the said repayment of the hand-loan amount and in respect of the said Anwar Pasha having not repaid the hand-loan amount to the accused, the accused had told before him (P.W.22), for which he had suggested the accused to provide sometime to the said Anwar Pasha. It is further stated by the P.W.22 that, on the date of the incident i.e., on 18th date in the evening near Manjunatha Bar, himself, Chandru, the accused by name Subramani and Anwar Pasha had gathered, where-at the said accused demanded the loan-amount to repay, for which the said Anwar Pasha stated that he would give, in 94 SC No.1233/2013 respect of which, there was again a scramble taken place between the accused and Anwar Pasha, during which time, Anwar Pasha had stated that, his friend would come and give the amount; Wherefore, they stayed till 11.00 p.m., in the night there-itself, but the accused started quarreling with Anwar Pasha furthermore; Wherefore, the said Anwar Pasha slapped on the cheek of the accused, which the accused also assaulted the Anwar Pasha with his hands and consequent-upon the same, the deceased Anwar Pasha took a small-stone and assaulted the accused Subramani; Wherefore, the accused Subramani took a size-stone fallen there-at, and put the same on the head of the said Anwar Pasha, who had fallen inside the said shed in the said scramble, during which time, he (P.W.22) having got feared, he returned-back to his room. It is further stated by the P.W.22 in the chief-examination that, on the next day morning when he went to the spot of the incident, he found the said Anwar Pasha was lying dead by oozing the 95 SC No.1233/2013 blood through his head, due to which the bed-sheet, mosquito-net and mat were absolutely wet with bloodstains. It is further stated by the P.W.22 that, the said accused having met him near Manjunath Bar, he informed him questioning that, what he has done to Anwar Pasha since Anwar Pasha is dead?; for which he asked him to go and see; Wherefore, the said accused went near the said shed and saw the dead-body of Anwar Pasha and went-away. It is further stated by the P.W.22 that, after about 4 to 5 days, the police had called him to the police station and inquired him, in respect of which, he has stated before the police regarding the same. It is further stated that, at the time of the incident, the auto- rickshaw which was parked near the said Manjunath Bar, was missing on the very next day and further he has identified the accused Subramani in the open-court also and also he has identified the size-stone used by the accused for putting on the head of the deceased Anwar Pasha and killing him, as per MO.5.
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64. But, in the cross-examination by the learned counsel for the accused, P.W.22 has stated that, he has not seen the mobile-phone of the deceased Anwar Pasha and the said deceased Anwar Pasha was familiar to him since about 5 to 6 days prior to his demise, whereas, the accused Subramani was knowing himself for about one- month prior to the demise of the said Anwar Pasha. It is further stated by the P.W.22 in the cross-examination that, he was knowing one Chandru since last 5 months prior to the demise of Anwar Pasha, through whom, he came to know the accused Subramani was doing the painting work, about 10 days prior to demise of the said Anwar Pasha and about 5-10 days prior to the demise of Anwar Pasha, one-day in the morning at about 9.00 a.m., the accused had met him on the PWD Road, who was introduced by his friend Chandru. It is further stated by the P.W.22 that, the accused had met him about 5 to 6 times in the evening itself, during which time, his friend Chandru use to accompany the accused near bakery and 97 SC No.1233/2013 they use to be together till about 7 to 9 p.m., in the night and though they consumed the alcohol sometimes, he has not consumed the alcohol with the accused since from his friendship. It is further stated by the P.W.22 that, the accused was knowing Hindi language to some extent; Wherefore, he use to speak with him to a meager extent and not more. It is further stated by the P.W.22 that, he never use to speak more with Anwar Pasha also. These versions of the P.W.22 clearly go to indicate that, he is not an interested person in either the deceased or any other relatives of the deceased. It is further stated by the P.W.22 in the cross-examination that, where Anwar Pasha was residing. It is further stated by the P.W.22 that, he use to supply the water-cans in the areas of Udaya Nagar, Mahadevapura, Kaggadasapura and etc., Tata Ace vehicle, in which Chandru and Sudhakar also use to come along-with him for supply of the water-cans and he use to go for supplying the said water-cans from 7.00 a.m., in the morning till 7.00 to 8.00 p.m., in the 98 SC No.1233/2013 evening, and everyday he goes to his room and sleeps by 8 to 9 p.m., in the night. But, it has been clearly stated by the P.W.22 in an unequivocal terms that, on the date of the said incident, he went to his room at 11.00 p.m., in the night and on the very next day in the early-morning at about 5.30 to 6.00 a.m., he woke-up and met the accused when the said accused was sleeping near the hotel nearby Manjunath Bar and he had not consumed any alcohol on 18th date i.e., on the date of the incident, whereas, he was there at the spot of the incident since from 7.00 to 8.00 p.m., till 11.00 p.m., in the night. It is further stated by the P.W.22 that, when Anwar Pasha hit with a small-stone to the accused, he was standing besides him and also he was on the spot itself when the accused hit with a big size-stone on the back of the head of the Anwar Pasha and the said scramble had taken place near the said shed in the night at 11.00 p.m., which had started at 8.00 p.m., in the night. It is further stated by the P.W.22 that, there was no door to the said 99 SC No.1233/2013 shed, in which no persons use to sleep; But, there was a bed-sheet, mosquito-net and the mat near the dead-body of Anwar Pasha. It is pertinent to note that, the learned counsel for the accused has suggested the P.W.22 that, he has not informed the death of Anwar Pasha to the accused; which suggestion has been flatly denied by the P.W.22, which implies that he had brought to the notice of the accused regarding the death of Anwar Pasha. In another angle, it is clear from making of such suggestion to the P.W.22 by the learned counsel for the accused that, the accused is in agreement with regard to the demise of Anwar Pasha, meaning-thereby, there is no any dispute in so far as the demise of Anwar Pasha. Apart from the same, the P.W.22 has made it very clear in an unequivocal terms in his cross-examination that, only after he having brought to the notice of the accused, the accused came nearby the said dead-body of Anwar Pasha and after seeing the same, he went-away. In addition to the same, even the P.W.22 has also clearly stated that, 100 SC No.1233/2013 sometimes the accused also use to come and sit in Tata Ace vehicle, in which he use to supply the water-cans and the said Tata Ace vehicle was belonging to Sudhakar.
65. On meticulous perusal of all these versions of the P.W.22, it is crystal clear that, though the accused was introduced by his friend Chandru about 15 to 30 days earlier to the incident, and also though the deceased Anwar Pasha was known to him hardly for about a week or two i.e., for a very short-span of time, they use to gather near Manjunath Bar everyday in the evening around at 7.00 p.m., till they disburse. But, however, on that particular date of the incident i.e., on 18.02.2013, the said P.W.22 was present at the spot from 8-9.00 p.m., to 9.00 p.m. to 11.00 p.m., in the night, when the scramble between the accused and the Anwar Pasha was going-on in connection with the amount of Rs.5,500/- having been given as the hand-loan by the accused Subramani to Anwar Pasha about a week or so back prior to the said incident, in respect of which, the 101 SC No.1233/2013 P.W.22 has clearly stated in his unequivocal terms that the accused had told him. It is also clear from the very versions of the P.W.22 that, there was a scramble between the accused and Anwar Pasha, in which Anwar Pasha first of all, slapped on the cheek of the accused, in response to which the accused assaulted with his hands on the said Anwar Pasha, whereby, the said Anwar Pasha took a small-stone and assaulted the said accused, in response to which in the scramble when the said Anwar Pasha fell-down inside the shed, the accused Subramani lifted a size-stone and put on the back of the head of the said Anwar Pasha, which incident having been seen by the P.W.22, he went-away there-from. On the very next day, the said P.W.22 having seen the said Anwar Pasha lying dead with oozing blood from his back-side of his head, he brought to the notice of the accused regarding the same; Wherefore, the accused visited the spot and saw the dead-body of the Anwar Pasha and went-away 102 SC No.1233/2013 there-from. These particular aspects are very clean and clear from the very versions of the P.W.22.
66. During the time of the trial, the learned Public Prosecutor has voluntarily given-up CW.9, who is the seizure of MO No's5 to 10 mahazar witness, CW.12 who is the seizure of a stone mahazar witness, CWs.22 & 23 who are the police constables. Despite of having issued sufficient process to the CW.3, who is the eyewitness, and CWs.15 & 16 who are the inquest mahazar witnesses, have not at-all turned-up before this court; Wherefore, the then learned Presiding Officer of this court was inclined to reject the prayer of the learned Public Prosecutor and closed the prosecution's side as per the order-sheet dated 04.02.2015.
67. Now, it is incumbent-upon this court to look- into as to whether there is a nexus between putting of a stone on the back of the head of the said Anwar Pasha by the accused and the cause of death of the said Anwar Pasha.
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68. In view of that matter, on meticulous consideration of the entire depositions of the PWs.1 to 22 coupled-with Exs.P.1 to P.24, it is crystal clear that, from the very depositions of the P.W.1 who is the wife of the deceased, P.W.7 who is the son of the deceased, P.W.8 who is the sister-in-law of the deceased, P.W.9 who is the neighbor of the deceased and the P.W.2 being a near- relative of the deceased, they, undoubtedly, are circumstantial witnesses. But, however, it is a clear fact emanating through their depositions that, the said deceased Anwar Pasha was in the habit of leaving the house with his auto-rickshaw for a particular length of time or period at times often, in respect of which, they use to search for him and keep mum. But, it is also clear that, the PWs.1 & 7 had approached the police, but the fact of leaving the house by the deceased Anwar Pasha in the month of January 2013, along-with the auto- rickshaw was not taken so seriously in view of earlier habit of leaving the house. According to the very 104 SC No.1233/2013 deposition of the P.W.6, who is none-other than the complainant as-well-as the circumstantial witness, who had put-up a shed there-at open-space belonging to the P.W.13 for the purpose of running the stones and sand business, having visited there-at, he found the dead-body of the said Anwar Pasha; Wherefore, he has lodged the complaint as per Ex.P.6 before the P.W.17 who is the prefixive partial investigating officer and the Cr.No.134/2013 of Mahadevapura police station, came to be registered. As per the depositions of the PWs.6 & 17 coupled-with the deposition of the P.W.12, the spot mahazar as per Ex.P.7 was drawn by visiting to the spot in presence of the spot mahazar witnesses by the P.W.17 and seized the MO No's.6 to 10, which have been clearly identified by the PWs.1, 6, 7 to 9, 12, 17 & 20. Even, the P.W.17 being the prefixive partial investigating officer, has got identified the dead-body of the deceased Anwar Pasha through the PWs.1, 7, 8 & 9, along-with the P.W.2 and even their depositions clearly go to disclose that the 105 SC No.1233/2013 dead-body was sustaining the injury to the backside of the head of the deceased, along-with an injury to the ear also. Similarly, the inquest mahazar has been established by the prosecution through the mouth of the P.W.4. It is no doubt, the learned counsel for the accused has endeavored to place his reliance on a settled law regarding the inquest having not drawn on the spot available itself. But in respect of this particular aspect, it has been clearly discussed at much-length herein before supra and under the peculiar circumstances prevailing herein with reference to the interpretation put-forth by the learned Public Prosecutor, the prefixive partial investigating officer i.e., P.W.17 has shifted the dead- body to the mortuary of the Bowring Hospital, whereas, the inquest mahazar as per Ex.P.5 has been drawn. In addition to the same, even the prosecution has established the seizure of the stone marked as per MO No.5, which has been clearly identified by the P.W.6, who is the direct eyewitness, stating that the said size-stone 106 SC No.1233/2013 was used by the accused Subramani to put on the back of the head of the said Anwar Pasha, the very deposition of the P.W.3 has remained absolutely without any contradictions or infirmities and discrepancies; Wherefore, it is crystal clear that, the prosecution has established Ex.P.4 through the mouth of the PWs.3 & 20 beyond the shadow of all the reasonable doubts. Even, the seizure of the auto-rickshaw belonging to the deceased Anwar Pasha having been taken-away by the accused has been established by the prosecution through the mouths of the PWs.4 & 20 at the lead and instance of the accused himself; Wherefore, the said Ex.P.3 itself has stood as well-established by the prosecution beyond the shadow of all the reasonable doubts. Even, the P.W.21 being the Medical Officer having conducted the post- mortem of the dead-body of Anwar Pasha, he has issued the post-mortem report as per Ex.P.19 and he has given a specific opinion as per Ex.P.19(c) regarding the likeliness of sustaining the injuries to the head as 107 SC No.1233/2013 mentioned in the post-mortem report as per Ex.P.19 in case if the said MO No.5 is used for assaulting the same, by examining the said MO No.5 which was taken by the P.W.5/police constable to the P.W.21 and even the opinion as to the cause of death mentioned in Ex.P.19 is very clear to the effect that, the death of the deceased Anwar Pasha was due to coma, as a result of head injury sustained. Therefore, by virtue of the versions of the P.W.22, who is the eyewitness directly seeing the accused Subramani putting the said size-stone marked as per MO No.5, putting on the back portion of the head of the deceased Anwar Pasha and the post-mortem report as per Ex.P.19 of the deceased Anwar Pasha disclosing the ultimate cause of death due to coma, as a result of head injury coupled-with the opinion given by the P.W.21 as per Ex.P.19(c), it is crystal clear that there is an un- detachable nexus between the accused putting the size- stone (MO No.5) on the backside of the head of the deceased Anwar Pasha and the cause of death of the said 108 SC No.1233/2013 Anwar Pasha. Apart from the same, it is also clear from the very deposition of the P.W.16 coupled with the report issued by him as per Ex.P.16 in respect of the aspect that there was no any kind of parking in view of non-load- shedding during the said period of scramble between 8.00 p.m., and 9.00 p.m., in the night, which is the time, during which there was a continuous scramble between the accused and the deceased Anwar Pasha, which ultimately ended by about 11.00 p.m., as per the very versions of the P.W.6; Wherefore, the deposition of the P.W.16 and Ex.P.16 are absolutely emanating in favour of the prosecution's case, substantially.
69. That apart, the accused has been produced by the P.W.14 and other co-police officials before the investigating officer, in respect of which, the very depositions of the PWs.14 & 20 are substantially corroborative material. In addition to the same, the very deposition of the P.W.18, who is the HC No.1340, has made it clear to the effect that, he having carried the 109 SC No.1233/2013 material objects to the Forensic Science Laboratory and after analysis of the same, he has produced before the investigating officer.
70. In respect of all these particular events of the entire incident and the case, the P.W.17 being the prefixive partial investigating officer and the P.W.20 being the suffixive partial investigating officer, have endeavored to depose in favour of the prosecution, substantially. It is no doubt, the PWs.17 & 20 have stated in the cross- examination that, there is an existence of the door to the shed, which is absolutely contrary to the very case of the prosecution inclusive of the version in the original complaint marked as per Ex.P.6. But, however, in respect of such versions, in overall consideration of their own testimonies, they have made it clear that already the incident having taken place about two aspects, they have disclosed regarding certain things having been forgotten and they do-not remember the same. In view of this particular angle, the said versions of the PWs.17 & 20 110 SC No.1233/2013 do-not stand absolutely fatal to the prosecution's case vitiating the entire case of the prosecution, since the fact as such regarding the demise of the deceased Anwar Pasha is admittedly remains as it is, in respect of which, it has been discussed herein before supra, at much- length. The only nexus between the death of the said deceased Anwar Pasha and the act of the accused putting the size-stone marked as per MO No.5 on the back of the head of the deceased in the shed, needs to be looked- into, under the peculiar circumstances prevailing herein. In respect of the same as discussed herein before supra, the nexus is absolutely emanating on the face of the record itself in an un-detachable way; Wherefore, it is crystal clear that the death of the deceased Anwar Pasha is caused due to the coma, as a result of the head injury sustained by virtue of the actus reaus of the accused by putting the said MO No.5/size-stone on the back of the head of the said Anwar Pasha in the said shed. Therefore, it is crystal clear that the prosecution has 111 SC No.1233/2013 absolutely established beyond all the reasonable doubts, the first subtratic ingredient i.e., actus reaus of the accused in the commission of the murder of the deceased Anwar Pasha.
71. Now, the second main ingredient, which is quint-essential as per the criminal jurisprudence to constitute a crime is mens rea, which is also basically one of the ingredients of the commission of the offence of the murder. In view of the same, it is significant to note that, as per the very clear and unequivocal terms of the testimony of the P.W.22, who is only the eyewitness having got examined by the prosecution, it is clear that, often there was a continuous scramble/quarrel between the accused and the deceased Anwar Pasha in connection with the loan-amount of Rs.5,500/-, which was taken by the deceased Anwar Pasha from the accused and even it is also clear that there was a continuous quarrel between them from 8.00 p.m., onwards till 11.00 p.m., on 18.02.2013, in respect of 112 SC No.1233/2013 which, though the deceased Anwar Pasha had assured that his friend would come and repay his loan-amount; But, again the accused himself had raised the scramble intentionally with the deceased Anwar Pasha, which clearly goes to indicate that there was an otherwise intention with an extremity with the accused.
72. Apart from the same, it is also quint-essential to take note-of that, the said auto-rickshaw admittedly being pertaining to the deceased Anwar Pasha, which was parked near the said Manjunatha Bar, has been well-established by the prosecution that the same was taken-away by the accused himself and the same has been seized near the house at a some distance from the house of the accused in Chikkur village of Mulabagilu Taluk, Kolar District, at the lead of the accused himself in presence of the P.W.4 under the seizure mahazar marked as per Ex.P.3, in respect of which, the very testimonies of PWs.4 & 20 are clear on record. Taking- away the said auto-rickshaw and hiding the same by the 113 SC No.1233/2013 accused himself in his native-place Chikkur, clearly indicates the further intention of the accused to conceal his act of having killed the deceased Anwar Pasha by putting the size-stone marked as per MO No.5 on the back of the head of the deceased Anwar Pasha at 11.00 p.m., in the night on 18.02.2013 in a shed belonging to the P.W.6. Even otherwise, if really the accused had no any such otherwise intention and motive and also if really he had not committed any such murder, then the question of his abscondence there-from to his native- village, after seeing the dead-body of the deceased Anwar Pasha on the very next day morning on coming to his notice through the P.W.22, regarding the death of Anwar Pasha being caused, would have not arised at-all. On meticulous consideration of all these acts and approaches of the said accused, in overall, it constitutes that he had an ulterior motive and intention to kill the said Anwar Pasha invariably. Therefore, under these circumstances, it is crystal clear that, the prosecution 114 SC No.1233/2013 has established even the mens rea with the accused to commit the offence of the murder of the deceased Anwar Pasha.
73. To sum-up, it is crystal clear that the entire testimonial depositions of the PWs.1 to 10, 12 to 14 & 16 to 22, are absolutely emanating in corroboration with the very case of the prosecution substantially, and though except the P.W.22, the other witnesses are substantial witnesses, the testimony of the P.W.22 is absolutely emanating with a vital key role of way-bridge connecting all the testimonies of the other witnesses with the commission of the murder by the accused, in view of which, in overall the entire case of the prosecution has stood as well-established beyond the shadow of all the reasonable doubts by interlinking the each and every minute chain of events of the incident, though there are minor and trivial infirmities and discrepancies, which do- not vitiate the entire case of the prosecution with respect to it's very crux. Therefore, the material placed on record 115 SC No.1233/2013 certainly stands in favour of the prosecution overriding the very defence of the accused, since no substantial adversarial and contrary material has been elicited and extracted through the mouths of the said prosecution witnesses, in favour of the accused dismantling the very crux of the prosecution's tale; Wherefore, to put-into simple terms, it is crystal clear that, in view of the substantial chunk of the material prevailing in favour of the very crux of the prosecution's tale, to the effect that the accused has committed the murder of the deceased Anwar Pasha, intentionally in the night at about 11.00 p.m., in the said shed on 18.02.2013, ultimately the accused deserves for the conviction in respect of the offence of the murder.
74. Apart from the same, without the knowledge of anybody, the said auto-rickshaw of the deceased Anwar Pasha having been taken-away by the accused himself, in respect of which, the prosecution has established beyond all the reasonable doubts, as stated herein before supra, 116 SC No.1233/2013 it is nothing but commission of theft of the said auto- rickshaw of the deceased Anwar Pasha bearing No.KA- 05-AC-3151.
75. In view of all these reasons, I am inclined to hold that, the accused has committed the offence of the murder as-well-as the offence of the theft, punishable U/Secs.302 & 379 of I.P.C., respectively. Hence, I am inclined to answer the Point No's.1 & 2 in the 'Affirmative'.
76. Point No.3:- For the reasons discussed at much-length while answering the Point No's.1 & 2 in the Affirmative, herein before supra, I am inclined to proceed to pass the following:
ORDER The prosecution has succeeded in proving the guilt against the instant accused and therefore, the accused is found guilty for having committed the offences punishable U/Sections 302 & 379 of I.P.C.117 SC No.1233/2013
In exercise of the powers conferred-upon me U/Sec.235(2) of Cr.P.C., I hereby convict the instant accused by name Subramani @ Mani, S/o. Sansum Naidu, aged about 21 years, residing at 18th Cross, Kaggadasapura, Bengaluru - 560 098; Native place: Chikkur Village, Mulabagilu Taluk, Kolar District.
The accused is taken to judicial custody.
To hear on sentencing the accused by 3.00 p.m. (Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 29th day of December, 2015) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.
Accused is produced by
Mahadevapura P.S. HC
No.4871 at 3.02 p.m., in the
open-court.
Issued produced memo
Sri KVR. K Advocate filed
a memo seeking for posting the
case for hearing on sentencing
on 04.01.2015. Copy seen.
Heard. Perused and to meet
118 SC No.1233/2013
the ends of justice, this is
posted by 04.01.2016 for
hearing on sentencing at the
instance of accused and his
counsel.
Till then accused is
remanded to JC.
(G.D.Mahavarkar)
LI Addl. City Civil & Sessions Judge,
Bengaluru City.
04.01.2016:- Accused is produced from
State by PP Jail by the concerned police.
Accused in JC (convicted)
To hear regarding sentence Heard on both the sides
on sentencing. For orders by
next round.
(G.D.Mahavarkar)
LI Addl. City Civil & Sessions Judge,
Bengaluru City.
Accused is produced by
the concerned police at 1.15
p.m.
Orders on having heard on sentence
The learned counsel for the accused has submitted that, the accused being innocent without any 119 SC No.1233/2013 antecedents and enmity with the deceased and he has the dependents, such as, old-aged parents, who need the shelter of the said accused as they are absolutely depending-upon him and moreover, the said accused being a youngster, aged of 23 years, he has a good future in the long-run and he has the opportunity to get reformed himself and therefore, a lenient view may kindly be taken-into consideration while imposing the sentence.
On the contrary, the learned Public Prosecutor has vehemently submitted that, the instant court having already convicted the accused for the offences punishable U/Secs.302 & 379 of I.P.C., basing on the sufficient direct, circumstantial and cogent material on record, in respect of which, the prosecution has already succeeded in establishing the guilt against the accused, the accused has committed the murder of a poor auto-rickshaw driver barbarously and also committed the theft of the auto- rickshaw of the said deceased Anwar Pasha, in a heinous manner mercilessly, by putting the stone on the backside 120 SC No.1233/2013 of the head of the deceased; Wherefore, the said accused having a hardened criminal-mind, he does-not deserve for any leniency, whereas, he deserves for the ultimate punishment of death-sentence and accordingly, he may be sentenced.
On meticulous consideration of the rival submissions of both the sides, under the peculiar circumstances prevailing herein, the prosecution having established the case of the murder having committed by the accused himself, in-fact he does-not deserve for any leniency. But, however, as per the minimum imprisonment provided under the I.P.C. for the offence punishable U/Sec.302, is the life-imprisonment below which this court cannot impose any sentence upon him; But, however, in so-far-as the theft committed by the accused is concerned, the punishment prescribed is 3 years with fine as provided under I.P.C; Wherefore, under these circumstances, I am inclined to pass the following: 121 SC No.1233/2013
SENTENCE In exercise of the powers conferred-upon me U/Sec.235(2) of Cr.P.C., I having convicted the accused by name Subramani @ Mani, S/o. Sansum Naidu, aged about 21 years, residing at 18th Cross, Kaggadasapura, Bengaluru - 560 098; Native place: Chikkur Village, Mulabagilu Taluk, Kolar District, it is hereby ordered that, the accused shall undergo the sentence of rigorous- imprisonment for life and shall pay a fine of Rs.25,000/-, and in default of the payment of the said fine-amount, he shall undergo 2 years of rigorous-imprisonment, for the offence punishable U/Sec.302 of I.P.C.
Further, the accused shall undergo the sentence of rigorous-imprisonment for 3 years and shall pay a fine of Rs.5,000/-, and in default of payment of the said fine- amount, he shall undergo 9 months of rigorous- imprisonment, for the offence punishable U/Sec.379 of I.P.C.
The substantive corporal punishments shall run concurrently.
On paying the said fine-amount of Rs.30,000/-, Rs.25,000/- shall be paid to the nearest-relatives of the deceased Anwar Pasha i.e., the instant CW.4 Smt. Tahsin W/o. Anwar Pasha & CW.5 Sri. Salman Pasha, S/o. Anwar Pasha, who are the wife and the son of the 122 SC No.1233/2013 deceased Anwar Pasha, respectively, as the victim compensation under the provisions of Section 357 of Cr.P.C., and the remaining Rs.5,000/- shall be remitted to the Exchequer of the Government of Karnataka, whereas, the accused does-not deserve for any benefit under the provisions of Section 360 of Cr.P.C., in view of the gravity of the offences of the murder and theft punishable U/Secs.302 & 379 of I.P.C.
The seized properties marked at MO No's.1 to 10 being worthless, one shirt, one pant, one T-shirt, one underwear (kaacha), one size-stone, one mat, one pillow, one mosquito-net, one bed-sheet and one plastic tin in which the blood is preserved, respectively, are hereby ordered to be destroyed after the efflux of the appeal period.
The office is hereby directed to supply a copy of the instant judgment, immediately to the accused free of cost, in compliance with the provisions of Section 363 of Cr.P.C.
Issue conviction warrant accordingly, against the instant accused, immediately.
(G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.123 SC No.1233/2013
APPENDIX List of the witnesses examined for the prosecution side:
P.W.1 Smt. Thasina P.W.2 Allah Baksh P.W.3 Gurumurthy P.W.4 Mujaid Pasha P.W.5 Srinivas P.W.6 S. Kumar P.W.7 Salman Pasha P.W.8 Smt. Mousina P.W.9 Smt. Ramamani P.W.10 Ramakrishna Reddy P.W.11 Yasin Pasha P.W.12 S. Chandrashekar P.W.13 Ananda Reddy P.W.14 Amruthesh P.W.15 Siddanagowda P.W.16 Manjunath P.W.17 Hariyappa P.W.18 Venkatesh P.W.19 L. Narayanasingh P.W.20 K.S. Nagaraj P.W.21 Dr. Bhimappa Havanoor P.W.22 Suresh
List of documents exhibited for the prosecution side:
Exs.P.1 & P.2 Two photos of auto-rickshaw.
Ex.P.3 Mahazar. Ex.P.3(a) Signature of P.W.2. Ex.P.3(b) & (c) Signatures of P.W.4. Ex.P.3(d) Signature of P.W.20. Ex.P.4 Mahazar. Exs.P.4(a) & (b) Signatures of P.W.3. Ex.P.4(c) Signature of P.W.20. Ex.P.5 Inquest mahazar. 124 SC No.1233/2013 Ex.P.5(a) Signature of P.W.4. Exs.P.5(b) & (c) Signatures of P.W.17. Ex.P.6 Complaint. Ex.P.6(a) Signature of P.W.6. Ex.P.6(b) Signature of P.W.17. Ex.P.7 Spot mahazar. Ex.P.7(a) Signature of P.W.6. Ex.P.7(b) Signature of P.W.12. Ex.P.8 Sketch. Ex.P.8(a) Signature of P.W.10. Ex.P.9 Covering-letter. Ex.P.9(a) Signature of P.W.10. Ex.P.9(b) Signature of P.W.20. Ex.P.10 Report. Ex.P.10(a) Signature of P.W.11. Ex.P.10(b) Signature of P.W.17. Exs.P.11 to P.14 Four photos. Ex.P.15 Report. Ex.P.15(a) Signature of P.W.14. Ex.P.15(b) Signature of P.W.20. Ex.P.16 Report. Ex.P.16(a) Signature of P.W.16. Ex.P.16(b) Signature of P.W.20. Ex.P.17 First Information Report. Ex.P.17(a) Signature of P.W.17. Ex.P.18 Relevant portion of the statement of the accused. Ex.P.18(a) Signature of P.W.20. Ex.P.19 Post-mortem report. Exs.P.19(a) & (d) Signatures of P.W.20. Exs.P.19(b) & (e) Signatures of P.W.21. Ex.P.19(c) Portion of opinion of the Doctor. Ex.P.20 'B' Register Extract. Ex.P.20(a) Signature of P.W.20. Ex.P.21 Requisition sent to FSL. Ex.P.21(a) Signature of P.W.20. Ex.P.22 Acknowledgement issued by FSL. 125 SC No.1233/2013 Ex.P.22(a) Signature of P.W.20. Ex.P.23 FSL report. Ex.P.24 Sample-seal.
List of material objects marked for the prosecution side:
MO.1 Shirt. MO.2 Pant. MO.3 T-shirt. MO.4 Underwear (Kaacha). MO.5 Size-stone. MO.6 Mat. MO.7 Pillow. MO.8 Mosquito-net. MO.9 Bed-sheet. MO.10 Preserved-blood in a box.
List of witnesses examined for the defence side:
- NIL -
List of documents exhibited for the defence side:
- NIL -
LI Addl. City Civil & Sessions Judge, Bengaluru City.126 SC No.1233/2013
(Judgment pronounced in the open court. Operative portion of the same is extracted as under) ORDER The prosecution has succeeded in proving the guilt against the instant accused and therefore, the accused is found guilty for having committed the offences punishable U/Sections 302 & 379 of I.P.C.
In exercise of the powers conferred-upon me U/Sec.235(2) of Cr.P.C., I hereby convict the instant accused by name Subramani @ Mani, S/o. Sansum Naidu, aged about 21 years, residing at 18th Cross, Kaggadasapura, Bengaluru - 560 098; Native place: Chikkur Village, Mulabagilu Taluk, Kolar District.
The accused is taken to judicial custody.
To hear on sentencing the
accused by 3.00 p.m.
LI Addl. City Civil & Sessions Judge,
Bengaluru City.
127 SC No.1233/2013