Bangalore District Court
Rajarajeshwari Nagara P.S vs R. Arun Kumar Aruna Thyape on 12 December, 2024
KABC010044752016
IN THE COURT OF THE LXX ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND SPECIAL
JUDGE, AT BENGALURU (CCH. No.71)
Dated this the 12th day of December,
2024.
Present;
Sri. Rajesh Karnam.K, B.Sc., LL.B., LL.M.,
LXIX Addl. City Civil and Sessions Judge
and Special Judge, Bengaluru.
S.C.No.212/2016
COMPLAINANT: The State
Represented by
Rajarajeshwari Police Station,
Bengaluru.
(By Special Public Prosecutor).
-V/s-
ACCUSED: 1.R.Arun Kumar @ Arun @ Thyape,
S/o late Ramegowda,
Aged about 35 years,
R/at Neeluvagilu village,
Besagaranahalli Hobli,
Maddur Taluk,
Mandya Dkistrict.
2.Jayaram.H.S. @ Handi Jayaram,
S/o.Shivalingegowda,
Aged about 35 years,
R/at No.7, C/o.Ganesha Building,
Nayandahalli,
Bengaluru.
2 S.C.212/2016
3.Vijay Kumar @ Diyoputa,
S/o.Ranganathakumar,
Aged about 31 uears.
R/at No.108, Byrappa House,
Ist Cross, in front of Sunil Garage,
Vinayaka Layout,
Nayandahalli,
Bengaluru.
4.Avinash M.S. @ Abhi,
S/o.Late Somanna,
Aged about 31 years,
R/at Okkaligere,
Petebeedi, infront of Rama Mandira,
Malavalli Town,
Mandya.
5.Naveengowda @ Musanje,
S/o.Ramanna,
Aged about 34 years,
R/at No.79(A),
Janatha Colony,
Nayandahalli,
Mysore road,
Bengaluru.
6.Srinivas @ Pagal Seena,
S/o.Cheluvaraju,
Aged about 26 years,
R/at C/o.Polisappa Building,
Ist cross, In front of Canara bank
ATM, Vinayaka Layout,
Bengaluru.
(Rep.By Sri.AM., Advocate for A1)
(Rep.By Sri.SAN., Advocate for A2,4,6)
(Rep.By Sri.HP., Advocate for A3)
(Rep.By Sri.NTN., Advocate for A5)
1. Date of commission of : 19-11-2015
offence
3 S.C.212/2016
2. Date of report of Offence : 19-11-2015
3. Name of the Complainant : Rajeshwari Belagod.H.S.
4. Date of commencement : 16-08-2018
of recording of evidence
5. Date of closing of : 22-11-2024
evidence
6. Offences Complained : Under
are Sections143,144,147,148,341,
302 r/w 149 of IPC and Section
3(2)(v) of SC/ST(POA) Act.
7. Opinion of the Judge : Accused No.1 found guilty for
the offences punishable under
Sections 341, 302 of IPC and
sec.3(2)(v) of Scheduled
Castes and Scheduled
Tribes(Prevention of Atrocities
Act), 1989.
Accused No.2 to 6 are
acquitted for the offences
punishable under Sections
143, 144, 147, 148, 341, 302
R/w 149 of IPC and sec.3(2)(v)
of Scheduled Castes and
Scheduled Tribes(Prevention
of Atrocities Act), 1989.
JUDGMENT
This case is registered as per the charge
sheet submitted by ACP, Kengeri Gate Sub-
Division, Bengaluru against the accused
persons for the offences punishable under
Section U/s. 143, 144, 147, 148, 341, 302 R/w
4 S.C.212/2016
149 of IPC and sec.3(2)(v) of Scheduled Castes
and Scheduled Tribes(Prevention of Atrocities
Act), 1989.
2. The case of the prosecution case is that the
accused No.1 as a follower of C.W.1
Smt.Rajeshwari Belagodu who got elected as a
councilor in the year 2010 to the Nayandahalli
Reserved Constituency, Ward No.131 as a BJP
Candidate. The accused No.1 did campaign for
C.W.1 election, in the Constituency. The
accused No.1 was involved in Crl.No.175/2015
of Byatarayanapura police station for the
offence punishable u/s.399, 402 of IPC, then
accused Nos.2 to 5 went to the victim and
asked his help to get bail for accused No.1. The
victim had answered that he is not having any
money for them and abused them and sent
them back.
The accused No.1 any how got bail. The
accused No.1 was very much disturbed due to
the neglect made by the victim as accused No.1
5 S.C.212/2016
was a star campaigner for the election of C.W.1,
as such he got decided to done with the life of
victim after his release.
The victim on 19.11.2015 as it was the birthday
of C.W.1 was busy, however the victim was
followed by accused persons and in the club of
C.W.29 as the victim had gone there as usual
and while returning from the club to his house
at about 8.45 p.m as the victim took his car
bearing No.KA05-MK-5716 Swift car and was
moving alongwith C.W.2 who was driver, at
9.00 p.m in Rajarajeshwari Nagar, Ideal Layout,
23rd cross, Chord Street, near vacant site
No.814 as they were moving the accused No.1
and others came in ETIOS Car bearing No.KA-
11-A-9753 and stopped the car of the victim
and then dragged the victim out of the Swift car
and assaulted the victim as they have already
brought weapons of offence in a bag and
assaulted the victim with long, machu, dagger,
victim suffered bleeding injuries and fell down.
6 S.C.212/2016
At that time, on the head of the victim a brick
has been thrown, as such he suffered fatal
injuries and succumbed.
3. The investigation has been taken up by the
jurisdictional police by registering
Cr.No.224/2015 on the requisition of
Investigating Officer the matter came to be
charge sheeted against the accused for the
above alleged offences.
4. After filing of charge sheet my predecessor in
office took cognizance of the offences and
charge sheet copies was furnished to the
accused persons as contemplated under
Section 207 of Cr.P.C. Heard before the charge.
As there was sufficient materials available,
charge framed for the afore said offences, read
over and explained to the accused persons in
vernacular language and they pleaded not
guilty and claim to be tried.
5. At trial, the prosecution got examined PW-1 to
25 and got exhibited Ex.P.1 to 65 and identified
7 S.C.212/2016
MOs.1 to 26. Acting u/s.313 of Cr.P.C. Section
313 of CRPC, statement recorded of accused
who denied incriminating evidence appeared
against them and they did not choose to lead
defence evidence.
6. Heard the arguments of learned Special Public
Prosecutor and Learned counsel for the accused
and matter is preserved for judgment.
7. The points for consideration are as follows;
POINTS
1) Whether the prosecution proves
beyond all reasonable doubt that on
19.11.2015 at 8.35 p.m in front road
of vacant site No.814, 23rd cross, Idial
Layout, within the limits of
Rajarajeshwari Nagar police station,
accused persons in furtherance of
their common object of committing
offence formed unlawful assembly
and thereby committed the offence
punishable U/s 143 r/w 149 of IPC?
2) Whether the prosecution proves
beyond all reasonable doubt that on
the aforesaid date, time and place, in
furtherance of their common object of
8 S.C.212/2016
committing offence, gathered there
and thereby committed the offence
punishable U/s 144 r/w 149 of IPC?
3) Whether the prosecution proves
beyond all reasonable doubt that on
the aforesaid date, time and place, in
furtherance of their common object of
committing offence, rioted there and
thereby committed the offence
punishable U/s 147 r/w 149 of IPC?
4) Whether the prosecution proves
beyond all reasonable doubt that on
the aforesaid date, in furtherance of
their common object, accused persons
came armed with deadly weapons and
rioted and thereby have committed
offence punishable u/s 148 R/w 149 of
IPC?
5) Whether the prosecution proves
beyond all reasonable doubt that on
the aforesaid date, time and place, in
furtherance of their common object,
accused persons came in car bearing
No.KA-11-A-9753 and when deceased
came from Club and proceeded in his
Swift car bearing No.KA-05-M-K-5716
at 23rd cross, Ideal Layout accused
persons have wrongfully restrained
deceased from moving further and
thereby committed offences
punishable u/s.341 r/w 149 of IPC?
6) Whether the prosecution proves
beyond all reasonable doubt that on
9 S.C.212/2016
the aforesaid date, time and place, in
furtherance of their common object,
accused persons came in car bearing
No.KA-11-A-9753, when deceased
came from the club and went in his
Swift car bearing No.KA-05-M-K-5716,
at 23rd cross, Ideal Layout, accused
persons restrained the car, accused
No.1 with long, accused No.3 with
long, accused No.4 with Machu,
accused No.6 with dagger assaulted
the deceased on the head and other
parts of the body, accused No.2 took
the brick and thrown on the head and
back of the deceased and committed
his murder and thereby they
committed the offence punishable
u/s.302 r/w.149 of IPC?
7) Whether the prosecution proves
beyond all reasonable doubt that on
aforesaid date, time and place, in
furtherance of their common object
the accused persons not being the
members of SC/ST have committed
murder of the deceased victim, who
belongs to Adi Karnataka scheduled
caste and thereby they committed
offence which is punishable with 10
years or imprisonment for life and
thereby committed offences
punishable under section 3(2)(v) of
the SC and ST(Prevention of
Atrocities) Act?
8) What order?
10 S.C.212/2016
8. My findings to the above points are as follows;
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : In the Negative
Point No.4 : In the Negative
Point No.5 : In the Affirmative
against accused No.1 and in the
Negative against accused Nos.2 to 4.
Point No.6 :In the Affirmative against
accused No.1 and in the Negative
against accused Nos.2 to 4
Point No.7 : In the Affirmative
against accused No.1 and in the
Negative against accused Nos.2 to 4;
Point No.8 : As per final order for the
following;
REASONS
9. The learned SPP argues the accused persons
have committed the alleged offences
punishable u/s.143, 144, 147, 148, 341, 302
R/w 149 of IPC and sec.3(2)(v) of Scheduled
Castes and Scheduled Tribes(Prevention of
Atrocities Act), 1989. Except PWs.7, 10, 11, 12
who have turned hostile, all other witnesses
11 S.C.212/2016
have deposed about the incident in support of
the prosecution. The PWs.1 to 25 examined,
among them P.W.1 is the wife of the victim,
P.W.1 in page-2 cross examination has deposed
about the incident, in page-4 this witness has
deposed about the injuries sustained by the
victim and in page-5 deposed about giving
complaint and M.Os being placed on record
being identified by this witness. The PWs.2 and
3 are the inquest panch witnesses, P.W.4 is the
daughter of the victim, P.W.5 is spot Mahazar
witness, the PWs.5 and 6 have turned hostile in
part, P.W.7 is a relative of accused No.1, P.W.7
has voluntarily disclosed. The P.W.9 has
supported the prosecution and similarly PWs.10
to 13 and 19 and 20 have deposed about the
incident. The P.W.23 is the expert witness who
has deposed about conducting part of
investigation, P.W.23 is the expert opinion, the
P.W.25 is the person who is the C.W.2, so called
eye witness to the incident who pin-pointedly
12 S.C.212/2016
shown the accused. P.W.25 in his 164
statement has deposed about the incident and
also in his further statement given before the
Investigating Officer. Therefore, there is specific
evidence placed on record. The prosecution is
able to place that there are incriminating
evidence, as such accused Nos.2 to 5 are
against the victim as further charge sheet,
there is mens-rea for the accused persons.
Accordingly seeks to convict the accused.
10. In the case on hand, the learned counsel
for the accused submits that there are six
accused persons have been charged for the
offence punishable u/s.143, 144, 147, 148, 341,
302 R/w 149 of IPC and sec.3(2)(v) of
Scheduled Castes and Scheduled
Tribes(Prevention of Atrocities Act), 1989.
However the motive for commission of alleged
offence, accused No.1 was arrested in the
offence punishable u/s.399, 402 of IPC of
13 S.C.212/2016
Byatarayanapura police station wherein
accused No.1 is in judicial custody, as such the
husband of the victim namely complainant has
been asked for help to get the accused No.1 out
of the prison. On refusal by the husband of the
victim namely deceased the accused No.1 has
hatched a plan to kill him is the allegation. The
facts and circumstances of the case discloses
the car was about 200 metres away from the
house of the victim. The deceased was dragged
out of car and assaulted with long machu, knife
and so on. In fact deceased as per the crime
registered is assaulted by unknown persons
even during the inquest it has been mentioned
as unknown persons and later Arun Kumar
accused No.1 has been considered as
suspected. Only on 22.11.2015 police were
having specific information about the accused
persons travelling in KSRTC bus and when they
alighted in Kengeri they were all arrested. The
case of the prosecution is not definite.
14 S.C.212/2016
Moreover the motive has not been specifically
alleged against the other accused persons. The
other accused persons have been involved on
the voluntary statement of accused no.1. In fact
C.W.2 was aware of the incident who was the
sole so called eye witnesses who had seen the
murder. However he has not been examined. In
the evidence of P.W.1 in page-10 she had
specifically explained about the same. The fact
that how the incident had happened. The
measures taken by these family members in
getting medical attention to the victim. The
recovery of the weapon has not been proved
since the Mahazar has not been finding,
substantial material so as to link the accused to
the incident. The factum of murder has not
been established by placing sufficient
corroborative evidence. The recovery of the
M.Os have not been proved. In fact in the
evidence of material witnesses they have
deposed about seizure of the material objects
15 S.C.212/2016
namely weapon in police station and as per the
Evidence Act 26 and 27 the property recovery
has not been proved in this regard brings to the
court notice 1991 AIR SC 1460 voluntary
statement of accused cannot be based for.
11. The learned counsel for the accused
submits there are no any eye witnesses to the
incident and the recovery of articles may be
considered only as a corroborative evidence but
it is not a substantial evidence. Therefore, this
will not prove the commission of offence.
12. The learned counsel for the accused
brings to the court notice AIR.1977 SC 1753
Narsinbhai Haribhai V/s. Chatrasin and others.
Further submits suspicion against accused
cannot be considered as proof of fact of
commission off offence. Therefore especially
accused No.1 is to be acquitted for the offence.
16 S.C.212/2016
13. The learned counsel for the accused No.5
NTN argues further accused is not at all
involved in the alleged offence. He has been
implicated in the offence. In fact the admission
of P.W.20 in cross examination at page-8 and 9
and even the cross of the P.W.4 that there is
dispute with regard to the land, prosecution has
not at all brought about the same on record.
Further Sri.SAN Learned Counsel for accused
Nos.2, 4, 6 submits there is no proper
identification parade conducted. It has been
conducted belatedly. The accused Nos.2, 4, 6
have been falsely implicated.
14. Sri.AVM for accused No.1 submits the
P.W.1 has given complaint at about 11.00 p.m
has specifically mentioned that the accused
persons are unknown persons. In fact the
accused persons are known to the complainant
as they have assisted her in her BBMP election
as supporters. Therefore the present accused
persons are not at all responsible for the
17 S.C.212/2016
incident why have been falsely implicated just
to harass them and they have no any link to the
accused and C.W.2 has not at all informed the
complainant C.W.1 that the present accused
persons did assaulted the victim as he is a so
called eye witness. Under such circumstances
involvement of the accused itself is doubtful.
But prosecution has proceeded to implicate the
accused. Therefore there is no specific link
between the victim and the accused other than
the CW.2 so called eye witness. The accused
No.1 is in J.C since 9 years, as such the same
may be considered as he has served most of
the period of sentence without committed the
alleged offence.
15. The learned counsel for the accused No.3
submits even after examining P.W.25 who is so
called eye witness he specifically mentioned
that police have detained him in police custody
for a period of 15 days, they have shown the
18 S.C.212/2016
accused persons in the police station. The Pw-
25 has admitted in his cross examination.
Therefore the identity of the accused persons
as per the test identification parade conducted
by central prison is abuse of process of law. The
series of admissions made by the P.W.25
actually goes against the prosecution case. If
the TIP is taken there is no any evidence so as
to link the accused into the alleged incident. In
fact the other witness who is also mentioned,
as eye witness C.W.3 has not been secured by
the prosecution. As such, the accused
participation in the alleged crime has not been
proved. Therefore the investigation itself is
tainted as they have implicated the accused in
the crime. Therefore the evidence of P.W.25 is
not reliable. Accordingly, seeks acquittal.
16. The learned SPP has relied on the following
citations:
19 S.C.212/2016
1. (2020)2 SCC (Cri.)200 in case of Surendra
Singh and another V/s. State of Uttarkhand
wherein it is held that:
First the motive. This was held proved by the
two courts below with the aid ofocular evidence
of PWs 3, 4, 10 and 11 by the prosecution.
These witnesses stated that Rameshwar
Singh(A-1) had a grudge against the deceased
because much prior to the date of incident, it
was seen and heard by them that the deceased
used to object Rameshwar Singh (A1) for his
having close association with one
Rakshanand, who was involved in carrying
illegal business in the village. These witnesses
stated that due to the deceased objecting to
Rameshwar Singh,he had threatened the
deceased to kill him one day.
35. In our view, there is no reason to disbelieve the
evidence of these four prosecution witnesses on
this issue. Firstly, no evidence was adduced by
the defense; Secondly, no explanation was
given by the accused under Section 313 Cr.P.C.
proceedings; Thirdly, all the four witnesses
knew each other including the accused persons
and Rakshanand because all were theresidents
of one village and of nearby area.
36. We, therefore, find no good reason to discard
their evidence which, in our opinion, was
rightly believed by the two Courts below for
recording the finding of fact on the question of
motive against the appellants.
37. The second circumstance is of “appellants last
seen”. This was held proved by the two Courts
below with the aid of ocular evidence of PWs 3,
11 and 13. It was proved that Ram Singh (A3)
was the driver of Maruti Van which was owned
by Anup. This Maruti Van was seen moving prior
to commission of the offence in the area in
20 S.C.212/2016
question carrying the appellants.This Van was
recovered at the instance of Ram Singh.
38. In our view, there is again no reason to
disbelieve the evidence of these three
witnesseson this issue. First, no evidence was
adduced by the defense; Second, no
explanation was given by the accused under
Section 313 Cr.P.C. proceedings and lastly, this
was one of the relevant circumstances to prove
the chain of events which led to commission of
the crime.
39. The third circumstance is of “recovery of stolen
articles at the instance of accused persons”.
This was held proved with the aid of evidence
of PWs 3, 8, and 14.
40. This was also one of the relevant circumstances
to prove the chain of event, which led to
commission of crime. The reason was that
the deceased was sleeping in his shop where
he was found dead and several articles kept in
his shop for sale which were found missing
were later recovered at the instance of the
accused persons.
41. Neither any evidence nor any explanation was
given by the accused on this
issue.We,therefore,find no reason to find fault
in this circumstance for reversing the finding on
this issue.
42. The fourth circumstance is of “identification of
stolen articles”.This was held proved with the
aid of evidence of PWs 3 and 8. It was proved
that the items recovered at the instance of the
appellants were got tallied with the stolen items
with the aid of these two witnesses.
43. As there was neither any defense evidence and
nor any explanation given by the appellants
under Section 313 Cr.P.C. proceedings, the
21 S.C.212/2016
two Courts below were justified in holding the
fourth circumstance as proved. It was
undoubtedly one of the relevant circumstances
to prove the chain of the event in proving the
commission of crime by the appellants.
44. The fifth circumstance is of discovery of weapon
of crime at the instance of Ram Singh(A3). This
was held proved with the aid of evidence of PW
10. It was one of the important circumstances to
prove the chain of event in commission of
offence.
45. Ext. Ka 20 is the weapon “wheelpana” that was
used for assaulting deceased on his head.The
doctor, who performed the post mortem,
also confirmed that the injuries sustained by
the deceased on his head could be caused with
the use of wheelpana.
46. We find no reason to disbelieve this evidence
and nor there is any material to discard this
evidence at the instance of the appellants.
47. The sixth circumstance is of “recovery of
clothes containing human blood”.The clothes
were recovered at the instance of the
appellants and it was held duly proved in
evidence.
48. This equally is one of the relevant
circumstances in proving the chain of event,
which led to commission of the crime and we
find no ground to hold thisfact as not proved for
want of any challenge at the instance of
appellants.
49. The seventh circumstance is of “discovery of lock
and key of shop of the deceased”. This was
recovered at the instance of A1 and was held
proved with the aid of evidence of PWs12 & 14.
22 S.C.212/2016
50. In our considered opinion,the aforementioned
are the circumstances, which were proved by
the prosecution with the aid of oral evidence
beyond all reasonable doubt, which led to
commission of the crime. All the
circumstances, in our view, point the finger of
guilt towards the appellants and their
complicity in commission of the crime. It is
established by the prosecution that none else
other than the appellants who were the persons
involved in the commission of offence in
question and that they conspired to eliminate
the deceased. It is proved that with such idea
in mind they entered in the shop on the
intervening night of 21-22 nd and brutally
assaulted the deceased with the aid of
wheepana on his head, looted his shop and
took away the stolen articles with them and
threw away the body of the deceased near the
downside of the road outside the shop at a
distance.
51. We are unable to notice many kind of
mperversity or arbitrariness or illegality in
the reasoning and conclusion arrived at by the
two Courts below when it was held that it is the
appellants whocommitted the crime in
question.
52. In view of the foregoing discussion, we find no
merit in the appeal. It thus fails and is
accordingly dismissed.
2) 2009AIR SC 2171 in case of Raju Vs state by
Inspector of Police.
“It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of
guilt is to be drawn should be in the first
instance be fully established and all the facts so
established should be consistent only with the
23 S.C.212/2016hypothesis of the guilt of the accused. Again,
the circumstances should be of a conclusive
nature and tendency and they should be such
as to exclude every hypothesis but the one
proposed to be proved. In other words, there
must be a chain of evidence so far complete as
not to leave any reasonable ground for a
conclusion consistent with the innocence of the
accused and it must be such as to show that
within all human probability the act must have
been done by the accused.”
14. A reference may be made to a later decision in
Sharad Birdhichand Sarda v. State of Maharashtra,
(AIR 1984 SC 1622). Therein, while dealing with
circumstantial evidence, it has been held that onus
was on the prosecution to prove that the chain is
complete and the infirmity of lacuna in prosecution
cannot be cured by false defence or plea. The
conditions precedent in the words of this Court,
before conviction could be based on circumstantial
evidence, must be fully established. They are:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established. The circumstances
concerned `must’ or `should’ and not `may
be’ established;
(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty;
(3) the circumstances should be of a
conclusive nature and tendency;
(4) they should exclude every possible
hypothesis except the one to be proved; and
(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with
24 S.C.212/2016the innocence of the accused and must
show that in all human probability the act
must have been done by the accused.
15. These aspects were highlighted in State of
Rajasthan v. Raja Ram (2023 (8) SCC 180), State of
Haryana v. Jagbir Singh and Anr. (2003 (11) SCC
261), Kusuma Ankama Rao v State of A.P. (Criminal
Appeal No.185/2005 disposed of on 7.7.2008) and
Manivel and Ors. v. State of Tami Nadu (Criminal
Appeal No.473 of 2001 disposed of on 8.8.2008).
16. PW-7’s evidence is clear and cogent. His
presence at the spot has been est
ablished. He used to have business transactions with
the deceased. He stated about the present appellant
holding a handle of soil cutter. Though the deceased
and the present appellant were engaged in exchange
of hot words, that could not have given an
impression to PW-7 that accused would take the life
of the deceased. Therefore, the fact that he left the
place on being told by the deceased to do so cannot
be a ground to dis-believe his evidence. According to
him he had seen the deceased and the accused
engaged in wordy tussle around 9.00 p.m. The wife
of the deceased PW-1 found his dead body at about
9.30 p.m. The time gap when the deceased was last
seen alive in the company of the accused and when
his dead body was seen is not very large. Admittedly,
the bone of contention between the deceased and
the accused was non payment of the commission on
account of which they were quarreling. The trial
Court and the High Court have rightly held the
appellant to be the author of the crime. We find no
infirmity in the conclusion of the High Court to
warrant interference.
17. The appeal is accordingly dismissed.
25 S.C.212/2016
3) 2014 AIR SC 6230 Nand Kumar Vs. State pf
Chhattisgrh wherein it is held that:
31. Yet another submission of learned counsel that
due to discrepancies in the evidence of PWs 1
and 3 and in their statements recorded under
Section 161, should not be relied on and
deserves to be rejected in the light of the law
laid down by this Court in Munshi Prasad and
Ors. vs. State of Bihar, (2002) 1 SCC 351, which
reads as under:
“Incidentally, be it noted that while
appreciating the evidence of a witness,
minor discrepancies on trivial matters
without affecting the core of the prosecution
case, ought not to prompt the court to reject
evidence in its entirety. If the general tenor
of the evidence given by the witness and the
trial court upon appreciation of evidence
forms opinion about the credibility thereof,
in the normal circumstances the appellate
court would not be justified to review it once
again without justifiable reasons. It is the
totality of the situation, which has to be
taken note of, and we do not see any
justification to pass a contra-note, as well,
on perusal of the evidence on record.”
32. As mentioned above, we have not been
able to notice any major discrepancies in
their statements and whatever
discrepancies, which were relied on by the
learned counsel, were so minor and
insignificant that they do not, in any way,
dilute their version.
33. In our considered view, when several
people participate in commission of an
offence with deadly weapons and attack one
or more persons with an intention to kill
them then the witnesses who are closely
related to the victim(s) are not expected to
26 S.C.212/2016
describe the incident in graphic detail and
with such precision that which member and
in what manner he participated in the
commission of offence. Their evidence is
required to be appreciated in its totality.
34. In the case on hand, PWs-1 and 3
elaborately narrated the entire incident by
taking the names of every accused whom
they knew to be the residents of the same
area. We, therefore, find no merit in the
submission of the learned counsel and
accordingly reject it.
35. We are also not impressed by the
arguments of the learned counsel appearing
for the appellants when he contended that
one eye-
witness, Kariya was not examined and hence it has
weakened the case of the prosecution.
36. The law does not say that the prosecution must
examine all the eye-witnesses cited by the
prosecution. When the evidence of two eye-
witnesses, PWs 1 and 3 was found worthy of
acceptance to prove the case then it was not
necessary for the prosecution to examine any more
eye-witnesses. It is for the prosecution to decide as
to how many and who should be examined as their
witnesses for proving their case. Therefore, we find
no merit in this submission.
37. In the light of the foregoing discussion, we find
no merit in the appeals, which fail and are
accordingly dismissed. As a result, the conviction and
sentence awarded to the appellants by the courts
below are upheld.
4) 2019 AIR SC 519 Jafel Biswas Vs. State of West
Bengal wherein it is held that:
38. The learned counsel for the appellant has also
contended that prosecution failed to prove any
27 S.C.212/2016
motive of committing the murder. The trial
court has elaborately dealt with this
submission. Relying on the judgment of this
Court reported in State of Haryana vs. Sher
Singh and Others, 1981 (2) SCC 300, it was held
that absence of motive does not disperse a
prosecution case if the prosecution succeed in
proving the same. The motive is always in the
mind of person authoring the incident. Motive
not being apparent or not being proved only
requires deeper scruitiny of the evidence by the
courts while coming to a conclusion. When
there are definite evidence proving an incident
and eye-witness account prove the role of
accused, absence in proving of the motive by
prosecution does not affect the prosecution
case. In paragraph 10 of State of Haryana case
(supra) following was laid down:
“10. The prosecution is not bound to prove
motive of any offence in a criminal case,
inasmuch as motive is known only to the
perpetrator of the crime and may not be
known to others. If the motive is proved by
prosecution, the court has to consider it and
see whether it is adequate. In the instant
case the motive proved was apparently
inadequate, although it might be possible.”
39. The trial court has marshalled the eye-witnesses
evidence and has rightly convicted the
accused/appellants.
40. The High Court has also considered the evidence
and has satisfied itself about the correctness of the
findings recorded by the trial court and has not
committed any error in affirming the judgment of
conviction of the trial court.
41. In view of the foregoing discussion, we do not
find any error in the judgment of the High Court.
42. The appeal is, accordingly, dismissed. The
appellants are on bail, the bail bonds stand canceled.
28 S.C.212/2016
The appellants shall be immediately taken into
custody.
5) 2024 INSC 655 Nitya Vs. Stae of U.P and another
wherein it is held that:
30.1. Thus, this Court held that Section 149 IPC
creates a constructive or vicarious liability of
the members of the unlawful assembly for the
unlawful acts committed pursuant to the
common object by any other member of that
assembly. By application of this principle, every
member of an unlawful assembly is roped in to
be held guilty of the offence committed by any
member of that assembly in prosecution of the
common object of that assembly. The factum of
causing injury or not causing injury would not
be relevant when an accused is roped in with
the aid of Section 149 IPC. The question which
is relevant and which is required to be
answered by the court is whether the accused
was a member of an unlawful assembly and not
whether he actually took part in the crime or
not.
31. As a matter of fact, this Court in Vinubhai
Ranchhodbhai Patel Vs. Rajivbhai Dudabhai
Patel2 has reiterated the position that Section
149 IPC does not create a separate offence but
only declares vicarious liability of all members
of the unlawful assembly for acts done in
common object. This Court has held:
20. In cases where a large number of
accused constituting an “unlawful assembly”
are alleged to have attacked and killed one
or more persons, it is not necessary that
29 S.C.212/2016
each of the accused should inflict fatal
injuries or any injury at all. Invocation of
Section 149 is essential in such cases for
punishing the members of such unlawful
assemblies on the ground of vicarious
liability even though they are not accused of
having inflicted fatal injuries in appropriate
cases if the evidence on record justifies. The
mere presence of an accused in such an
“unlawful assembly” is sufficient to render
him vicariously liable under Section 149 IPC
for causing the death of the victim of the
attack provided that the accused are told
(2018) 7 SCC 743 that they have to face a
charge rendering them vicariously liable
under Section 149 IPC for the offence
punishable under Section 302 IPC.
Failure to appropriately invoke and apply
Section 149 enables large number of offenders
to get away with the crime.
22. When a large number of people gather together
(assemble) and commit an offence, it is possible that
only some of the members of the assembly commit
the crucial act which renders the transaction an
offence and the remaining members do not take part
in that “crucial act” — for example in a case of
murder, the infliction of the fatal injury. It is in those
situations, the legislature thought it fit as a matter of
legislative policy to press into service the concept of
vicarious liability for the crime. Section 149 IPC is one
such provision. It is a provision conceived in the
larger public interest to maintain the tranquility of
the society and prevent wrongdoers (who actively
collaborate or assist the commission of offences)
claiming impunity on the ground that their activity as
members of the unlawful assembly is limited.
34. For mulcting liability on the members of an
unlawful assembly under Section 149, it is not
necessary that every member of the unlawful
assembly should commit the offence in prosecution
30 S.C.212/2016
of the common object of the assembly. Mere
knowledge of the likelihood of commission of such an
offence by the members of the assembly is sufficient.
For example, if five or more members carrying AK 47
rifles collectively attack a victim and cause his death
by gunshot injuries, the fact that one or two of the
members of the assembly did not in fact fire their
weapons does not mean that they did not have the
knowledge of the fact that the offence of murder is
likely to be committed.
32. It is true that there are certain lacunae in the
prosecution. The scribe Kuldeep was not examined.
Similarly, the younger brother Laxmi Narain was not
examined though it has come on record that Laxmi
Narain was killed in the year 1993 and in that case
one of the accused is the appellant himself. It is also
true that neither any country-made pistol was
recovered nor any cartridge, empty or otherwise,
recovered. However, the appellant has been roped in
with the aid of Section 149 IPC. Therefore, as held by
this Court in Yunis alias Kariya Vs. State of M.P.3, no
overt act is required to be imputed to a particular
person when the charge is under Section 149 IPC; the
presence of the accused as (2003) 1 SCC 425 part of
the unlawful assembly is sufficient for conviction. It is
clear from the evidence of PW-1 and PW-2 that the
appellant was part of the unlawful assembly which
committed the murder. Though they were
extensively cross-examined, their testimony in this
regard could not be shaken.
33. In view of what we have discussed above, we
have no doubt in our mind that the trial court had
rightly convicted the appellant under Section 148 IPC
read with Section 302/149 IPC and that the High
Court was justified in confirming the same. The
question framed in paragraph 15 above is therefore
answered in the affirmative.
34. Thus, we see no merit in the appeal which is
accordingly dismissed.
31 S.C.212/2016
6) Cr. Revision N.1118/2022 Bholu singh @ Kumar
singh @ Bholu Kumar singh others VS State of
Jharkhand wherein it is held that:
19. Further, identification in TIP during investigation
is part of the investigation and it is not substantive
piece of evidence. Any irregularity committed during
investigation cannot be said to be the sole ground to
discard the prosecution case in its entirety if it is
otherwise proved by other cogent and reliable
evidence. It has been held in Matru Vs state of UP
1971(2)SCC75 identifications tests do not constitute
substantive piece of evidence. They are primarily an
assurance to the investigating agency that their
investigation is progressing in the right line. The
identifications can only be used as corroborative
evidence. In Ramnath Mahto Vs State of Bihar,
1996(8)SCC 630When the witness had identified the accused in TIP
but out of fear did not identify him in the dock, this
was not held to be fatal to the prosecution.
20. It has been deposed by Investigating Officer (PW-
10) in Para 2 that accused Bholu Singh was
apprehended on spot. Since Bholu Singh was
arrested by this witness therefore I.O he becomes
direct eye witness. When an accused is apprehended
on spot and is named, there is no purpose of putting
him on TIP.
21. Having considered the evidence on record, I do
not find any illegality in the impugned Judgment of
conviction. Considering the nature of offence
interference in the Sentences imposed will be
unwarranted.
32 S.C.212/2016
Criminal Revision petition stands dismissed.
7) AIR 2003 SC 4664 in case of Raj Kishor Jha V/S
State of Bihar wherein it is held that:
Mere non-examination of Investigating
Officer does not in every case cause
prejudice to the accused or affects the
creditability of the prosecution version.
In Ram Dev and Anr. v. State of U.P.,
[1995] Supp. 1 SCC 547, it was noted
that non-examination of the
Investigating Officer does not in any
way create any dent in the prosecution
case much less affect the credibility of
otherwise trustworthy testimony of the
eye witnesses. It was, however,
indicated that it is always desirable for
the prosecution to examine the
Investigating Officer. In the present case
after examination- in-chief and partial
cross-examination, the Investigating
Officer had died. Therefore, this cannot
be a case which can be stated to have
caused any prejudice to the accused on
account of Investigating Officer’s non-
examination. The prosecution cannot be
attributed with any lapse or ulterior
motives in such circumstances. In
Behari Prasad and Ors. v. State of Bihar,
[1996] 2 SCC 317, it was held that case
of prejudice likely to be suffered mostly
depends upon facts of each case and no
universal straight Jacket formula should
be laid down that non-examination of
Investigating Officer per se vitiates the
criminal trial. The said view has been
found echoed in Ambika Prasad and Am.
v. State (Delhi administration, [2000] 2
SCC 646, Bahadur Naik v. State of Bihar,
[2000] 9 SCC 153 and, Ram Gulam
33 S.C.212/2016Chaudhury and Ors. v. State of Bihar, JT
(2001) 8 SC 110.
17. The learned counsel for accused No.3 did
based the arguments and drawing the support
from the citations namely:
1. 2023 (1) SCC Page-180 in case of Gireesan
Nair and others V/s. State of Kerala wherein it is
held that:
“32.If identification in the TIP has taken place
after the accused is shown to the witnesses,
then not only is the evidence of TIP
inadmissible, even an identification in a court
during trial is meaningless (Shaikh Umar
Ahmed Shaikh and Anr. v. State of Maharashtra
29). Even a TIP conducted in the presence of a
police officer is inadmissible in light of Section
162 of the Code of Criminal Procedure, 1973
(Chunthuram v. State of Chhattisgarh 30 and
Ramkishan Mithanlal Sharma v. State of
Bombay31).
2. 1998(4) SCC Page 494 in case of Mohd. Iqbal
M.Shaik V/s. State of Maharashtra wherein it is
held that:
“Evidence act,1872-S.9-TI Parade-When
necessary-When accused is known to the
witness by face only and not by name then
evidence of TI parade can corroborate the
substantive evidence of identification in court-
Where accused is shown to the witness during
investigation, then the so-called identification
parade loses its value and identification in court
also becomes inconsequential.
If the witness knew the accused persons either
by name or by face, the question of the police
showing him the accused persons becomes
irrelevant. If the witness did not know the
accused persons by name but could only
34 S.C.212/2016identify from their appearance, then a test
identification parade was necessary, so that,
the substantive evidence in court about the
identification, which is held after a fairly long
period, could get corroboration from the
identification parade. But in this case the
prosecution did not take any steps in that
regard and no test identification parade had
been held. Then again if the police shows the
accused persons in the police lock-up to the
identifying witness then the so-called
identification loses its value, inasmuch as it is
only because of the police showing the persons
the witness is being able to identify the alleged
accused. If the accused has been shown to him
in the course of investigation then the so-called
identification in court is of no consequence and
cannot form the basis of conviction. Therefore if
the witness was called to the police station
while the accused persons were in police lock-
up and the witness had been given the
opportunity of seeing those persons in the
police lock-up then the so-called identification
made by the witness in court is of no
significance.”
3. 2023(10)SCC 451 in case of Khema @ Khem
Chandra and others V/s. State of Uttar Pradesh
wherein it is held that:
“Though, Inder (PW-2) is an injured eye witness,
there are serious discrepancies and
inconsistencies with regard to time of the
injuries sustained and time at which he was
medically examined – PW6 (doctor), in his
evidence, has changed his stance on several
occasions-His testimony is totally contrary to
that of PWs 1 and 2- It will not be safe to base
conviction on sole testimony of PW2 though he
is injured witness.”
35 S.C.212/2016
4. Crl.A.1685 of 2017 c/w. 1526 of 2015 in case
of Raghavendra @ Piya V/s. Chandra Layout
police station
5. 1993 Supp(3) SCC 449 in case of Bhimappa
Jinnappa Naganur V/s. State of Karnataka
wherein it is held that:
“Mere recovery of weapon without any
evidence regarding disclosure statement, held,
inconsequential-Criminal Trial-Recovery of
crime weapon”
In the absence of any disclosure statement the
recovery of axe itself becomes meaningless.
The Trial court had rejected the evidence in
relation to extrajudicial confession as
unreliable.”
Accordingly seek acquittal of accused.
18. POINT NO.5: In the case on hand, the
prosecution in proof of the alleged offence
punishable u/s.341 of IPC relies on the
complaint Ex.P.1 wherein the
victim/complainant has made a report before
the jurisdictional police as per Ex.P.1, that on
19.11.2015 the victim was residing with the
complaint and their two girl children aged about
19 years and 9 years in Rajarajeshwari Nagar,
Church Road, Ideal Homes, 23rd cross, House
36 S.C.212/2016
No.7. The complainant has given pre-history
that she was member of the BBMP ward No.131
of Nayandahalli for the year 2010 to 2015
which was over by the date of incident. The
complainant was supported by the accused
persons being residents of Vinayakanagar, on
the previous election period. The deceased
Umesh Belagod was working in BHEL but he
resigned from the job and stood as a candidate
for assembly elections from Sakaleshpura
Constituency of Hassan District representing
KJP Party. However Umesh Belagod, lost the
elections and from there on he was doing only
real estate business.
19. The complainant further elaborates on
19.11.2015 at about 12.30 p.m the deceased
had went in his Maruthi Swift Car KA-05-MK-
5716 on his work later at about 8.45 p.m he
telephoned the driver namely C.W.2 to come as
per his instructions. The C.W.2 informed the
37 S.C.212/2016
same to the complainant and he went away
within few minutes at about 9.00 p.m he came
running and informed the complainant that
someone has assaulted the victim by stopping
the car with dangerous weapons and brick on
the head of the victim, as victim fell down with
bleeding injuries, the C.W.2 came shouting and
running towards house. The complainant and
her children on hearing the shout came out of
the house and they accompanied the C.W.2 to
spot where they saw the Umesh Belagod was
in a pool of blood. Immediately took the injuried
victim in the Swift car rear seat and C.W.2 to
drive the car to the Uttarahalli Kengeri Main
road, BGS Hospital, at about 10.20 p.m the
doctors reported the victim had succumbed to
the injuries. Accordingly complainant lodged
complaint against unknown persons with
unknown motive in causing death of her
husband.
38 S.C.212/2016
20. On the basis of the complaint, the IO PSI
of Rajarajeshwari Nagar registered the crime
and proceeded with the investigation. The
inquest mahazar has been conducted on
20.11.2015 at about 6.00 a.m another weapon
which has bee used by the accused person
where victim was assaulted bleeding at the
spot ina car Etios used to flee from spot have
been seized near the Rajarajeshwari Arch on
20.1.2015 wherein the forensic expert has been
called to inspect the same which has been kept
in the car. And also the swift car KA-04-MK-
5716 in which the victim has been shifted from
the spot to the hospital has been seized at
about 12.30 a.m to 1.30 a.m on 20.11.215.
Further the I.O reportedly seized the car Etios
Toyota bearing No.KA-11-A-9753 which has
been used for fleeing by the accused persons at
about 8.00 a.m to 9.00 am from Rajarajeshwari
Arch in the Mysore road.
39 S.C.212/2016
21. In support of the ingredients of offence
punishable u/s.341 r/w.149 of IPC, the
prosecution basically relies on evidence of
P.W.1 Rajeshwari who has specifically deposed
about knowing the accused persons even
before the incident. This witness deposed on
16.8.2008 before this court in page-2 that on
19.11.2015 it was her birthday and lot of
friends have came to her house to see her at
about 12.30 p.m her husband has taken the
Swift car bearing No.KA-05-M-5716 and went to
somewhere and C.W.2 the driver of the victim
was inside the house only, when at about 1.00
p.m as the complainant came out of the house
she saw Arun Kumar accused No.1 in front of
her house who went away in a car. When the
C.W.1 questioned him what is the matter he
saw her but when asking he nodded his head
and went away. The complainant has given the
sequence in page-4 of her examination chief,
that at about 8.45 to 9.00 p.m C.W2 came
40 S.C.212/2016
running to the house and reported her husband
have been assaulted with long, dagger, brick,
immediately the victim alongwith driver and her
children ran towards the spot at the time they
reached there, they say some persons sat in a
car and moved away, however the complainant
husband was seen in a pool of blood, he has
been assaulted on the head, rear portion of left
ear, abdomen and he has been assaulted with
brick on the head, immediately two children of
the complainant and driver shifted the victim to
BGS Hospital, Kengeri, in the same car. The car
in which they moved was parked in the spot
itself. When they reached BGS Global hospital,
they were informed by the police who came
there that victim had succumbed to the injuries.
The complainant deposes further she informed
six unknown persons have assaulted her
husband and she gave complaint subsequently.
Immediately she had lodged complaint as per
Ex.P.2. The witness deposes on the next day,
41 S.C.212/2016
police visited the spot and seized one long, one
dagger, one brick, brown chappal, black colour
chappal and a plastic bag and also sample
blood stained soil from the spot and seized
them under mahazar Ex.P.2. Therefore
identifies articles which are got marked at
M.Os.1 to 8. Similarly in her examination at
page-2 has specified that on 19.11.218 at about
8.00 to 8.30 p.m C.W.2 was telephoned by her
father who went away and he came at about
9.0 to 9.15 p.m weeping and running and
mentioned “ಉಮೇಶ್ ರವರಿಗೆ ಯಾರೊ ಹೊಡೆದಿದ್ದಾರೆ”.
Even this P.W.4 along with complainant and
C.W.7 and the driver they ran towards the spot.
There she found victim was in pool of blood and
she observed that the accused persons have
brought Etios car, was moving away from the
spot. This witness deposes in the spot she
found long, dagger, machu, ittige and her
father had suffered injuries to his head, neck.
This witness deposes she also found one stone
42 S.C.212/2016
near the spot. This witness deposes about
shifting her father in Swift car to BGS hospital.
22. In the case on hand, the P.W.25 the so
called sole witness has been examined by the
prosecution. In his examination-in-chief he
deposed in page-3 at about 9.0 p.m he was
driving towards the house in Rajarajeshwari
Nagar, Church road, he was driving the Swift
car at that time one Etios silver colour came
against the swift car then the victim Umesh
Belagod mentioned to CW2 that let the car
pass, however the car which was opposite side
and from the car 5 to 6 persons came down,
they have thrown a bag from the car outside
and the 5-6 persons picked from the bag one
dagger, machu, long and assault has been
made on Umesh Belagod on the head, leg,
hand, face with machu and long. One person
assaulted with hallow block on the head of the
victim. By that time, this C.W.2 was terrified
and he ran towards the house and informed the
43 S.C.212/2016
complainant who also came there. This witness
deposes he could not identify all the persons
but he can identify one person among them.
This witness deposes they shifted the victim to
BGS Hospital and after this he was very terrified
and became unconscious. Later informed the
police all the facts by way of his statement. This
witness deposes he has been taken to the
Central Prison where he identifies accused
persons among others.
23. In the cross-examination P.W.1 has
deposed that on 19.11.2015 the CW.2 had
came running towards the house and he
informed some person have assaulted with
long, dagger, brick and this witness deposes
after that she along with her children had run to
the spot where they found her husband was
injured. Immediately they shifted the injured to
BGS hospital, where doctors on examination
declared brought dead. This witness admits
44 S.C.212/2016
police enquired what happened and they have
taken her complaint. This witness admits she
was not at all knowing who actually assaulted
her husband when she had given complaint.
This witness specifically admits C.W.2
Chandrashekar driver did not mentioned who
are they, name of any of the person. This
witness admits accused were shown in the
police station, The Pw8, witness replies accused
were shown to on 23.11.2015 in CCB. The
accused Nos.1, 2, 4, 5 were present. The Pw-2,
witness specifically admits all these persons
had co-operated with her during her election
campaign and this witness admits till police
have shown these persons she was not knowing
who actually committed the murder of her
husband. In fact in cross-examination of the
P.W.4, this witness deposes by admitting she
does not know who actually assaulted her
father. This witness admits she has given
statement before the police that six unknown
45 S.C.212/2016
persons went in Etios car. This witness
specifically admits that she was not at all aware
when she gave statement before the police that
who assaulted her father. This witness admits
in further cross-examination she did not
mention before the police that there was
dispute between the accused No.1 and her
father concerning Real Estate.
24. In the case on hand, on going through the
evidence of material witnesses the ingredients
of offence punishable u/s.341 of IPC that victim
has been wrongfully restrained by any person
shall be punished for a term which may extend
to one month or with fine or with both. In the
case on hand, the sole eye witness who can
give the account of the wrongful restrain made
from the entire material on record in the
evidence of P.W.25 sole eye witness to the
alleged incident. In fact the P.W.25 in his
examination-in-chief as discussed supra
46 S.C.212/2016
specifically mentioned that the car came from
opposite side at about 9.00 p.m as they were
moving towards the house of the victim, then
victim mentioned to give way to the oncoming
car. As such the car has been moved towards
left side of the road, then 5-6 persons came out
from the car. However in the evidence of
P.W.25 in page-3 he specifically mentioned that
among the 5 persons he identified the accused
No.1 in the spot. Therefore from the material on
record, the accused No.1 was observed by the
victim and Pw-25, in spot is evident.
25. In the case on hand, as per the arguments
made by the learned counsel for the accused it
has been got elicited in the cross examination
of P.W.25 dated:21.11.2024 he specifically
admits that the persons who are in the car who
came against his car were not known persons
to him, he deposed ‘yes’. Further volunteers he
has observed them, among them he observed
47 S.C.212/2016
accused No.1. This witness admits he was not
having acquaintance of the persons in the car.
26. Further witness admits when he went to
the house and informed C.W.1 he did not
informed who assaulted the victim is admitted.
This witness specifically deposed as soon as the
victim was dragged from the car and when they
were assaulting he tried to interfere and stop
the same, But the Pw-25, was very much
terrified he shouted and ran from the spot. This
witness deposes whether he can identify the
assailants in the spot, he deposed he could not
identify them, but he had seen them. This
witness deposes he has been picked up by the
police from the hospital on the same day. This
witness admits he was in the police station the
whole night. This witness admits the whole
night he was enquired by the police and he
admits he had mentioned the persons, the
assailants were unknown persons. This witness
deposes whether the police have recorded the
48 S.C.212/2016
statement on the same day, he admits they did
recorded his statement and got the signature
on the same. This witness deposes when he
was released from the police station only after
15 days. This Pw-25 witness deposes after
enquiry is over all the police have gone, he
replies he has been made to sit in the police
station simply. This witness deposes whether
he had told anybody about seeing the
assailants witness replies he had reported only
to the police. This witness deposes he has
mentioned before the police that 5 to 6 persons
have assaulted and they were unknown
persons is mentioned witness replies ‘yes’. This
witness deposes he does not know whether any
other person similarly questioned by the police,
he pleads ignorance. This witness admits he
has been shown the arrested persons in the
police station. This witness deposes to the
specific question when he was in police station
whether he came to know about the name of
49 S.C.212/2016
the accused persons, he pleads she does not
know the name of the accused persons. This
witness admits he did not mention the name of
the assailants before the Magistrate. This
witness in para-7 specifically admits as shown
in the police station he identified the accused in
the Central Prison. This witness admits when he
became unconscious in hospital and regained
his conscious, later he was not at all sure who
were the assailants is admitted. It is specific
question that he did not saw the accused No.1
on the night of the incident but he later
mentioned that he can identify the accused
No.1 is specifically admitted by this witness.
This witness has denied suggestion that he can
identify the accused No.1 is specifically
admitted by this witness. This witness has
denied suggestion that he was unconscious and
he was unable to identify the accused persons.
Once again when he was questioned in cross
examination, he identifies M.Os.3, 4, 5, 23 and
50 S.C.212/2016
Ex.P.60 and 65 being seen by him. He has not
been allowed to be cross examined, this
witness denies suggestion that he had not
specified about identifying the machu, long and
brick before the police. In the case on hand, the
prosecution relies on the test identification
parade the accused persons who are involved
in the alleged crime. However, the sole witness
P.W.25 has been examined so as to identify the
accused persons. The C.W.3 has not been able
to be secured to keep him for evidencing as per
the prosecution case. In the evidence of
P.W.25, though he deposed in examination in
chief about the identifying the accused, in cross
examination there is specific answers to the
incident with regard to identifying all the
accused persons answer is other than accused
No.1, it was not possible. Under such
circumstances the accused Nos.2 to 6 were
involved in the alleged offence punishable
51 S.C.212/2016
u/s.341 r/w.149 of IPC cannot be inferred is my
firm view.
27. In the case on hand, with regard to the
stopping of vehicle and identification of the
accused No.1 the PW.25 though deposed in
examination in chief that he can identify
accused No.1 being in spot. In his cross
examination the explanations offered by the
P.W.25 with regard to identifying the accused
No.1 specific admission of P.W.25 in his cross
examination he had seen the assailants in the
spot but he could not identify goes against the
case of prosecution. However on further
questioning in his cross examination by the
learned counsel for the accused with regard to
accused No.1 the witness has specifically
deposed in page-7 of his cross examination
page-7 ” ಪೋಲೀಸರು ಕರೆದುಕೊಂಡು ಬಂದ ವ್ಯ ಕ್ತಿಗಳನ್ನು ನೋಡಿ
ಗುರುತಿಸಬೇಕು ಎಂದು ಹೇಳಿದಂತೆ ನಾನು ಹೇಳಿಕೆ ಕೊಟ್ಟಿದ್ದೇನೆ
ಎಂದರೆ ಇಲ್ಲ . ನನಗೆ ಅಂದು ಜ್ಞಾನ ಇಲ್ಲ ದಿರುವಂತೆ ಇಂದೂ ಸಹ
ಗುರುತು ಹಿಡಿಯಲು ಸಾದ್ಯ ವಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ “.
52 S.C.212/2016
28. In the case on hand, the accused No.1 has
been arrested on 22.11.2015 by jurisdictional
police and he has been subjected to give
voluntary statement. This witness has deposed
in page-2 of his statement before the
jurisdictional police that victim used to take this
accused No.1 along with him, with regard to
land disputes, this accused used to terrify the
other opposite parties and whatever the
amount received by the victim he never used to
pay him appropriately. In consonance with the
voluntary statement recorded by the
Investigating Officer, the Investigating Officer
has not collected documents whatever the
accused No.1 has taken the car near
Bannerghatta toll and so on has not been
tracked. The statement of the C.W.3 before
jurisdictional Magistrate u/s.164 only on
03.12.2015 the neighbour of the C.W.3 had got
introduced one Arun who took him to
53 S.C.212/2016
Manganapalya bar along with 5 persons. On
that day at about 12.00 p.m Etios car bearing
No.KA-11-A-9753 was taken to Mandya to his
aunt’s house and later they returned to
Bengaluru at about 3.30 to 4.00 p.m and he
came to his room. His car has been taken away.
He informed the Kiran his neighbour that
accused No.1 has taken his car away. This
witness has given statement on 19.11.2015 has
been informed to come near Mekhri Circle at
about 10.00 a.m thereafter they informed him
to come to Upparpet circle and one Avinash had
given his vehicle to D.L and they returned the
car by evening. On 20.11.2015 at about 2.00 to
2.30 a.m he came to know about the murder
and also involvement of his car. He went to the
Rajarajeshwari Nagar police station, there car
was seized.
29. The learned SPP similarly brings to the
court notice Ex.P.59 the statement of C.W.2
54 S.C.212/2016
before the jurisdictional Magistrate. It has been
submitted by learned SPP that the accused
persons were not known to C.W.2 before the
incident. However he has seen them especially
the accused No.1 has been observed by the
C.W.2 before the incident as he was coming
and going near the house of the complainant,
as such the identification made by the C.W.2
before this court with regard to accused No.1 is
specifically proved. The discrepancy appearing
in the evidence of the P.W.25 with regard to
identification of other accused may not been
specified. However the identification of the
accused No.1 is proved by the prosecution.
30. The learned counsel for the accused
submits the identification made by C.W.2 is not
specific, since as he admitted in his cross
examination the discrepancies definitely goes
against the prosecution case as the admissions
noted by this court makes clear that none of
55 S.C.212/2016
the accused have been identified by the C.W.2
before the court.
31. This court on going through the entire
materials on record, with regard to
identification of the accused persons by C.W.2
before the test identification parade the
arguments of learned counsel that accused
Nos.2 to 6 were not known to the C.W.2 and
she has not seen them is evident from the cross
examination of P.W.25. However with regard to
identification of accused No.1, it is pertinent to
note that name of any of the accused persons
were not known to C.W.2 as he has specified in
his statement and even before the 164
statement and in his evidence. In the case on
hand, during the course of cross examination
that he came to the driving only after the
election being over. Therefore the C.W.2 is not
acquainted with the names of the persons is
evident from the record. In the cases on hand,
56 S.C.212/2016
it is pertinent to note that the complainant has
specifically deposed in her examination in chief
that she observed accused No.1 on 19.11.2015
near her house as deposed in page-3 of her
examination in chief finds corroboration with
the evidence of C.W.2 is my firm view.
Accordingly, this court on going through the
entire materials on record, is specified that the
accomplice of accused No.1 had stopped the
car in which victim was moving his established.
Accordingly, Point No.5 is answered in the
Affirmative.
32. POINT NOS.1, 2 AND 3: The prosecution
to prove the incident with regard to unlawful
assembly the offence punishable u/s.143, 144,
147 r/w.149 of IPC the identification of the
accused persons is a basic thing so as to
consider that accused were involved in the
alleged offence. In fact the investigation is
conducted by the police Inspector C.W.42 is
57 S.C.212/2016
reported. The link to the accused persons
involved in the alleged offence punishable
u/s.143, 144, 147 r/w.149 of IPC, none of the
material eye witness including P.W.25 has not
supported the prosecution case with regard to
identification of the other accused persons.
Under such circumstances this court by placing
reliance only on test identification parade got
conducted by the Investigating Officer and the
Tahasildar, is on 16.1.2016 at about 11.00 p.m.
Therefore whether the accused persons were
shown to the material witnesses namely C.W.2
and 3 at 11.00 p.m actually contradicts with the
statement of C.W.2 since he has been called to
the Central Prison in the morning. Therefore the
mention made in Ex.P.60 to 65 contradicts with
the prosecution case.
33. The learned counsel for the accused
submits the test identification parade cannot be
relied so as to link the accused to the alleged
58 S.C.212/2016
offence since alleged incident has been
committed on 19.11.2015. Further as per the
prosecution case only the accused No.1 has
been arrested on 22.11.2015, even the accused
Nos.2, 3, 4, 6 were arrested on 22.11.2015
itself. Therefore the test identification parade
being conducted only in the month of January
2016 is after a period of more than 30 days. In
fact as per the evidence of P.W.25 he has
specifically mentioned accused No.3 shown to
him in prison within 15 days from the date of he
being detained in the police station and he has
specifically given admission in page-6 he has
been detained for a period of 15 days in police
station, only after his statement before the
Magistrate, he has been released. In fact as per
the 164 statement of the P.W.25 he has
specifically deposed that Ex.P.59 has been
recorded on 3.12.2015 itself. Therefore before
164 statement of the C.W.2 being recorded
police have not at all conducted test
59 S.C.212/2016
identification parade though the accused
persons were within their custody. Therefore
due procedure has not been followed by the
Investigating Officer citation 2023 (1) SCC 180
in case of Gireesan Nair and others V/s. State of
Kerala wherein it is held that:
“Indian Evidence Act, 1872; Section 9 – Test
Identification parade (TIP) -Witnesses having
ample opportunity to see the accused before
holding TIP -Effect of Not only witnesses
themselves deposed having seen the suspects
before the TIP, but the accused also from the
very beginning claiming that suspects were all
photographed, videographed and were shown
to the witnesses-Resultantly, the TIP held, a
mere formality having no legal value and
therefore in abssence of any other
incriminatory material, conviction, held, not
sustainable and set aside-Prevention of
Damage to Public Property Act,1984–S.3(2)(e)–
Penal Code, 1860″.
wherein the TIP being conducted as formality
cannot be accepted as proved. Moreover when
the accused persons were shown to the
witnesses before the TIP being held, goes
against the prosecution case seems reasonable.
Under such circumstances the citations led by
the learned counsel for the accused specifically
brings to the court notice that the investigation
60 S.C.212/2016
conducted by the Investigating Officer is not
proper and it is not as per the police manual is
evident from record.
34. The learned SPP has based arguments on
the citation wherein with regard to test
identification parade with regard to the motive
and identification of the accused by the victim,
the recent citation relied by the defence is on
the point involved in the present case. As such,
to prove the ingredients of alleged offence
punishable u/s.143, 144, 147 r/w.149 of IPC the
prosecution materials are insufficient is my firm
view. According, accused are acquitted of the
alleged offences. Accordingly, the above Point
Nos.1, 2 and 3 are answered in the Negative.
35. POINT NO.6: The prosecution to prove
the ingredients of offence punishable u/s.302 of
IPC police placed reliance on the complaint
Ex.P.1 wherein in the complaint it has been
61 S.C.212/2016
mentioned that on 19.11.2015 at about 9.00
p.m in Church road, Ideal Homes, 23rd cross,
Rajarajeshwari Nagar, Bengaluru. The victim
alongwith C.W2 were moving in the Swift car
bearing No.KA-05-MK-5716, at that time
another car Toyota Etios came from opposte
side and as the vehicle of the victim was
stopped, six persons got down from the vehicle
and one of them threw a bag full of weapon of
offence one by one picked the same, the victim
has been dragged out of the car and he was
assaulted on the head behind the year and over
the head stabbed all over the body and
assaulted with a brick on the head. C.W.2 on
seeing the same ran in panic towards the
house of the victim and informed the
complainant, all of them rushed to the spot and
by that time the car Etios and the persons
assaulting ran in the car towards Rajarajeshwari
Nagar. Immediately victim was taken in the
same Swift Car to BGS hospital on Kengeri
62 S.C.212/2016
where doctors on examining declare victim
brought dead. Accordingly, the complainant did
lodged complaint that some unknown persons
with ulterior motive did assaulted with weapon
of offence causing fatal injuries. Accordingly,
Investigating Officer has taken up investigation.
The spot Mahazar was conducted on
20.11.2015 at about 6.00 a.m and articles have
been seized in the presence of complainant and
the panch witnesses. However at that time, no
any person was tracked down, however on the
same day Etios car was traced near the
Rarajajeshwari Nagar Arch as abandoned by the
persons the same was seized by the police as
per Ex.P.9 at about 8.00 a.m to 9.00 a.m by
police wherein blood stains were all observed in
the car and the same was subjected for
inspection by the forensic personnel namely
C.W.30/P.W.20. The prosecution to prove the
death of the victim has got examined PW.3 the
inquest Mahazar witness who had deposed
63 S.C.212/2016
signing Ex.P.8 inquest Mahazar. In the case on
hand, the P.W.2 has been cross examined by
the counsel for accused No.1 wherein it has
been suggested none has been allowed to
Victoria hospital Mortuary is admitted. This
witness denies the suggestion made by the
learned counsel for the accused. P.W.3 has
been did preferred not to be cross examined by
any of the witnesses. However the inquest has
been conducted is denied. In the case on hand,
the death of the victim is proved by the
prosecution by examining PWs.2 and 3 and also
by placing Ex.P.8 the inquest Mahazar drawn by
the Investigating Officer.
36. In the case on hand, to prove the offence
being committed by the accused persons
prosecution basically relies on the evidence of
P.W.1 Rajarajeshwari wife of the victim P.W.4
Swathi daughter of the complainant and
P.W.25/C.W.2 the so called eye witness driver
64 S.C.212/2016
Chandrashekar. The other material witnesses
P.Ws.5 to 7, 10 to 12 have turned hostile. The
P.W.5 has partly turned hostile to the
prosecution case with regard to the prosecution
case with regard to the seizure of the articles
under Ex.P.2 this witness has supported that
from the spot police have seized material
objects which are identified as M.Os.1,3 to 8.
However this witness further supports the
prosecution case about seizure of the sample of
the soil from the spot as per M.O.2 and brown
chappal as per M.O.7.
37. The P.W.5 in cross examination made by
learned counsel for the accused No.1, 2, 4 to 6
deposes victim is not a relative of him and he
has signed the document in police station on
20.11.2015. He has not visited any spot is
specifically denied. Further M.Os.1, 8 are not
seized in his presence is specifically denied. In
the cross made by counsel for accused No.3
65 S.C.212/2016
this witness deposes he never dictated Mahazar
as per Ex.P.2 and he does not know the
contents of Ex.P.2 is denied. This witness
admits he has been given bt the police on this
day before giving evidence. As such he got
prepared and is giving evidence based on the
root of the file. This witness admits he never
gave any statement before the police. This
witness denies he has given false evidence and
M.O1 to 8 are not seized in his presence has
been denied.
38. The P.W.5 admits specifically he is not
aware of the contents of Ex.P.2 and he has not
dictated the same and before the court has
filed as given by police has deposed. This
witness deposes he did not give any statement
before the police. This witness deposes on
M.Os.1 to 8 no any specific mark has been
made in his presence. The PWs.6, 7 the so
called seizure Mahazar witnesses to Ex.P.9 have
66 S.C.212/2016
turned hostile. Further the P.W.7 Jeevan
deposed accused N.1 is his relative, but police
never brought him and recorded his statement,
even after cross examining nothing has been
elicited so as to incriminate the accused. PWs.8
and 9 are so called Mahazar witnesses to
Ex.P.13 and 14. These witnesses admits about
Ex.P.18 to 28, but they deposed about seizure
of the phone numbers written by the accused
No.1 in Mandya, however this witness deposes
about accused No.1 has shown the M.O seized
under Ex.P.13 in Rajarajeshwari Ideal Home,
Church Street, 23rd cross. This witness admits
the suggestion made by the learned counsel for
the accused No.1 as on 31.7.2024 when they
have recalled for further cross examination by
submitting they does not know the contents of
Ex.P.13 or 14.
39. The P.W.10 Jayaram has turned hostile,
similarly PWs.11, 12 have turned hostile.
67 S.C.212/2016
40. The P.W.14 is the Tahsildar who issued
caste report, P.W.15 is the AEE who conducted
spot inspection as per Ex.P.38 and 39 making
report to the jurisdictional police ACP. P.W.16 is
the Transport Department Commissioner who
had issued Ex.P.40 and 41. P.W.17 is the
Bescom Engineer who issued Ex.P.42 about
power cut whether was don on 19.11.2015 in
between 8.00 p.m to 10.00 p.m in
Rajarajeshwari Nagar. P.W.18 Cheluvaraju is
the BBMP Contractor who is supposed to be the
author of Ex.P.1 who deposed he had signed on
Ex.P.1. P.W.19 is Imtiyaz Patel Police Inspector
who arrested the accused persons Nos.2 to 6 as
per the directions of the Investigating Officer.
This witness identifies accused No.1 being
arrested by them in Cr.No.224/2015. This
witness deposes he does not remember the
address of the accused persons. This witness
admits there is no written order given by the
68 S.C.212/2016
Investigating Officer to search the accused. This
witness deposes they did not obtain any help
from Bidadi police. This witness admits they
have conducted any Mahazar while arresting
the accused persons. The P.W.20 is the
Dr.Kumudarani.M is the forensic expert who
deposes on 20.11.2015 assisting the Police
Inspector near Rajarajeshwari Arch, she
separated blood sample from Etios car bearing
No.KA-11-A-9753. This witness deposed about
seizure of the certain articles in the car. This
witness deposes further she examined swift car
bearing No.KA-05-MK-5716 and also blood
stain in the rear seat of the car. This witness
deposes as per Ex.P.45 she has made a report
and also identifies M.Os.1 to 26 being subjected
for inspection. This witness denies by the
suggestion of the learned counsel that she has
not conducted any proper inspection or
collection of materials. The police constable has
visited the Victoria hospital and handed M.Os.9
69 S.C.212/2016
to 12 is examined as P.W.21. The ASI tried to
stop Etios car bearing No.KA-11-A-9753 on
19.11.2015 when they stopped the vehicle all
the inmates ran away by stopping the vehicle,
he identifies Ex.P.11. P.W.23 PSI who registered
crime and filed charge sheet. This witness
deposes on the next day he visited the spot
conducted spot Mahazar.
41. He deposes about conducting seizure of
the vehicle bearing No.KA-11-A-9753 under
Ex.P.10 and also KA-05-MK-5716 under Ex.P.9.
This witness deposes about seizing of the
articles under P.F. This witness identifies the
signature of the Investigating Officer who
conducted part of investigation namely
A.Yalagaiah C.W.42 and S.N.Kuduru ACP who
conducted part of investigation and filed charge
sheet. This witness deposes about 164
statement being recorded.
70 S.C.212/2016
42. The P.W.24 is the Police Inspector who
conducted part of investigation. He had issued
Request letter as per Ex.P.57. This witness
deposes about conducting part of investigation
and identifies Ex.P.18 to 28 and drawing
Mahazar and recording statement of witnesses.
This witness denies suggestion made in the
cross examination.
43. The P.W.25 is the so called eye witness
who has deposed in his examination about
observing the accused No.1 in the spot on the
date of incident. Further this witness fails to
identify other accused persons shown in the V.C
and who shown before the court other than the
accused No.1. This witness deposes about
conducting TIP in his presence by the police in
jail. In the cross examination this witness
admits specific suggestion made by the learned
counsel for the accused No.3 with regard to not
knowing about the identity of the accused
71 S.C.212/2016
persons. This witness deposes by admitting
suggestions. This witness admits he cannot
identify the machu, long, brick before the court.
This witness admits he has been shown the
accused persons even before his test
identification parade.
44. The learned counsel for the accused No.3
submits the TIP has been conducted only on
16.1.2016 which is not as per the provisions of
law, in this regard relies on citation 2023 (1)
SCC Page-180 in case of Gireesan Nair and
others V/s. State of Kerala wherein it is held
that:
“32.If identification in the TIP has taken place
after the accused is shown to the witnesses,
then not only is the evidence of TIP
inadmissible, even an identification in a court
during trial is meaningless (Shaikh Umar
Ahmed Shaikh and Anr. v. State of Maharashtra
29). Even a TIP conducted in the presence of a
police officer is inadmissible in light of Section
162 of the Code of Criminal Procedure, 1973
(Chunthuram v. State of Chhattisgarh 30 and
Ramkishan Mithanlal Sharma v. State of
Bombay31).
72 S.C.212/2016
2. 1998(4) SCC Page 494 in case of Mohd. Iqbal
M.Shaik V/s. State of Maharashtra wherein it is
held that:
“Evidence act,1872-S.9-TI Parade-When
necessary-When accused is known to the
witness by face only and not by name then
evidence of TI parade can corroborate the
substantive evidence of identification in court-
Where accused is shown to the witness during
investigation, then the so-called identification
parade loses its value and identification in court
also becomes inconsequential.
If the witness knew the accused persons either
by name or by face, the question of the police
showing him the accused persons becomes
irrelevant. If the witness did not know the
accused persons by name but could only
identify from their appearance, then a test
identification parade was necessary, so that,
the substantive evidence in court about the
identification, which is held after a fairly long
period, could get corroboration from the
identification parade. But in this case the
prosecution did not take any steps in that
regard and no test identification parade had
been held. Then again if the police shows the
accused persons in the police lock-up to the
identifying witness then the so-called
identification loses its value, inasmuch as it is
only because of the police showing the persons
the witness is being able to identify the alleged
accused. If the accused has been shown to him
in the course of investigation then the so-called
identification in court is of no consequence and
cannot form the basis of conviction. Therefore if
the witness was called to the police station
while the accused persons were in police lock-
up and the witness had been given the
opportunity of seeing those persons in the
police lock-up then the so-called identification
made by the witness in court is of no
significance.”
73 S.C.212/2016
3. 2023(10)SCC 451 in case of Khema @ Khem
Chandra and others V/s. State of Uttar Pradesh
wherein it is held that:
“Though, Inder (PW-2) is an injured eye witness,
there are serious discrepancies and
inconsistencies with regard to time of the
injuries sustained and time at which he was
medically examined – PW6 (doctor), in his
evidence, has changed his stance on several
occasions-His testimony is totally contrary to
that of PWs 1 and 2- It will not be safe to base
conviction on sole testimony of PW2 though he
is injured witness.”
4. Crl.A.1685 of 2017 c/w. 1526 of 2015 in case
of Raghavendra @ Piya V/s. Chandra Layout
police station
5. 1993 Supp(3) SCC 449 in case of Bhimappa
Jinnappa Naganur V/s. State of Karnataka
wherein it is held that:
“Mere recovery of weapon without any
evidence regarding disclosure statement, held,
inconsequential-Criminal Trial-Recovery of
crime weapon”
In the absence of any disclosure statement the
recovery of axe itself becomes meaningless.
The Trial court had rejected the evidence in
relation to extrajudicial confession as
unreliable.”
45. In the case on hand, admittedly the C.W.2
statement has been taken on 20.11.2015 itself
at that time the accused who are all involved
74 S.C.212/2016
names have not been cited by this witnesses.
However this witness has deposed he did
observed the persons who committed the
offence in his examination in chief and he
identifies before the court the accused No.1
particularly. In the case on hand, the
Investigating Officer ACP has conducted spot
inspection and as shown by the accused No.1
has seized the M.O.1 on 24.11.2015 under
Ex.P.13. The witness PWs.8 and 9 have
consistently deposed about seizure of the
weapon of offence used by the accused persons
namely long which has been hidden by the
accused No.1 who had shown the same in their
presence before the police. Though there is
minor discrepancies in the evidence of these
witnesses P.W.8 and 9 with regard to seizure of
article in presence by the ACP has been
established even though running panchanama
has been conducted in presence of these
witnesses further on 26.11.2015 they have not
75 S.C.212/2016
supported completely but they have specifically
deposed about making inspection by the police
in their presence. However in the cross
examination the admission of PWs.8 and 9
while cross of PWs.8 and 9 by counsel for
accused No.3 that they did conducted the
panchanama and as deposed by P.W.8 that he
read the documents before giving evidence
does not contravene any provision of law so as
to disbelieve the evidence of P.W.8 with regard
to seizure of material object as shown by the
accused No.1 on 24.11.2015 seems reasonable.
It is pertinent to note that the PWs.8 and 9 have
failed to support the prosecution case with
regard to drawing of Mahazar Ex.P.14, 15, 18 to
28 though admitted in the cross examination
they have specifically admitted defence
suggestions which contradicts the prosecution
case. In fact running panchanama drawn by
P.W.24 in presence of PWs.8 and 9 gets
contradicted seems a reasonable prayer. The
76 S.C.212/2016
prayer of learned SPP that under Ex.P.3 the
weapon of offence seized at the instance of
accused No.1 who was arrested by the ACP is to
be accepted seems reasonable. Further the
P.W.25 has admitted about identifying the
accused No.1 before the court and also before
the Investigating Officer is to be accepted is the
prayer of learned SPP.
46. The Learned counsel for the accused
submits that identification of accused No.2 to 6
have not been made by the P.W.25 who is so
called eye witness. Moreover he has specifically
given explanation in his cross examination that
accused were shown in the police station and
even before the TIP being conducted on
16.1.2016. The 164 statement of P.W.25 and
C.W.3 are being recorded on 3.12.2024 i.e after
showing the accused persons being arrested as
on 22.11.2015. the 164 statement requisition
has been sent on 25.11.2024, however the
77 S.C.212/2016
Investigating Officer made the witness available
before the Magistrate only on 3.12.2015 which
is after lapse of more than a week. The DCP has
passed orders on 23.11.2015 to take up
investigation even after this, the ACP for further
investigation of conducting running Mahazar as
per Ex.P.14 to 15 by P.W.24 and even the
Mahazar conducted by P.W.24 as per Ex.P.10
on 26.11.2024 which is not as per the
provisions of SC/ST (POA) Rules 9 seems
reasonable as argued by learned counsel for
the accused. The TIP conducted by the
Tahsildar on 16.1.2016 has no evidentiary value
as per the citation relied by the learned counsel
for the defence seems reasonable as after
showing the accused to the witnesses and
recording their statement of witness
subsequently conducting the test identification
parade vitiates the procedure enumerated
under law as held by the Hon’ble Supreme
Court of India in (2023)1 SCC 180 is sequently
78 S.C.212/2016
applicable in the facts involved in the case on
hand. The accused Nos.2 to 6 were being
arrested on 22.11.2015 itself, however based
on the voluntary statement of the accused
Nos.2 to 6, and accused No.5 has been arrested
only on 25.12.2015 who had voluntarily
surrendered before the court on 19.12.2015,
after that the Investigating Officer has taken
him to custody only on 25.12.2015 and
recorded his voluntary statement. Therefore
based on the voluntary statement of the
accused alone, the accused Nos.2 to 6 cannot
be linked to the alleged offence as argued by
the learned counsel for the accused seems
reasonable. In the case on hand, the
investigation conducted with regard to the
arrest of accused No.1 by the Investigating
Officer and weapon of offence being seized as
shown by the accused No.1 finds corroboration
though there are minor discrepancies. In the
evidence of prosecution witnesses, the
79 S.C.212/2016
prosecution bringing to the court notice (2020)2
SCC Crime 200 in case of Surendra Singh and
another V/s. State of Uttarkhand the
observation of the Hon’ble Apex Court that
circumstantial evidence, last seen evidence
established and recovery of stolen article being
recovered, recovery of blood stained cloth and
weapon recovered, motive of the murder is
present and established circumstances held
point the finger of guilt towards the accused
persons. Under such circumstances no
perversity or arbitrariness or illegality cannot
be attributed towards conclusion arrived so as
to convict the accused. In this regard learned
SPP brings to the court notice para-26 to 43 and
submits in the case on hand the evidence of
P.W.8 and 9 with regard to seizure of weapon
of ofence under panchanama in presence of
P.W.8 and 9 is established. The caste report of
these witnesses only after a period of 5 years
and their answers being adverse to the
80 S.C.212/2016
prosecution cannot be accepted since they
have been cross examined at the first instance
in the year 2019 itself wherein they have
denied the specific suggestions that in the said
panchanama being drawn by the Investigating
Officer is denied. Moreover, the entire
panchanama Ex.P.13 implicates only accused
No.1 at this stage. In the panchanama itself it
has been noted there the involvement of other
accused persons have been mentioned therein
based on the voluntary statement of the
accused No.1 and among them the accused
No.1 has taken the panch witnesses along with
Investigating Officer to the spot where he has
hidden the material object which has been
seized at the instance of accused No.1 in a
drain. Therefore, it directly implicates the
accused No.1 seems reasonable. In this regard,
the prosecution has brought to the court notice
2014 AIR SCW 6230 in case of Nanda Kumar
V/s. State of Chattisgarh where in the Hon’ble
81 S.C.212/2016
Supreme Court of India has considered the
offence punishable u/s.141, 142, 147, 148, 149,
302 wherein there are eye witnesses who had
seen the accused committing offence inspite of
request accused did not heard the same as
they were pre-determined, the motive to kill the
victim is evident. As such the court not able to
notice any major discrepancies in their
statement. As such by relying on the same,
though there are minor, insignificant
contradictions and the evidence of the material
witnesses finds support to the prosecution case
namely eye witnesses, then prosecution has to
rely is the prayer. In the case on hand, this
court on going through the entire material on
record and evidence of material witnesses the
material placed on record specifically discloses
the involvement of accused No.1, however as
discussed supra to link other accused to the
alleged offence this court cannot draw
presumption or as the missing links are
82 S.C.212/2016
available in the material placed on record, even
by relying on the citation 2024 INSC 655 in case
of Nityanand V/s. State of UP and another, this
court based on the circumstances cannot hold
liable the other accused persons Nos.2 to 6 in
the absence of direct evidence. Further more,
the above evidence of P.W.25 who has deposed
before this court that accused were shown to
him while he was detained in the police custody
for a period of 15 days definitely goes against
the case of prosecution so as to link accused
Nos.2 to 6 being participated in the alleged
offences. Accordingly, this court is of the firm
opinion that though principles laid down by the
Hon’ble Apex Court in Raj Kishore Jha V/s. State
of Bihar and Ors AIR 2003 SCC 4664 can be
considered but in the absence of corroboration
with regard to involvement of the other
accused persons being established by placing
cogent corroborative material evidence, is my
firm view. Further more as per the citations
83 S.C.212/2016
relied by the learned counsel for the accused
No.3 2023(10)SCC 451 in case of Khema V/s.
State of UP and citation 1998(4) SCC Page 494
Mohd.Iqbal M.Shaik V/s. State of Maharashtra
will definitely come to the aid of the other
accused persons as observed by the Hon’ble
Apex Court in para-11, 13 and 15 of the
citation. Under such circumstances this court is
of the firm opinion that the prosecution did able
to link the accused No.1 to the alleged offence
consistently with the motive of the accused
No.1, to link other accused having participated
in the crime, there is no any corroborative
substantial material evidence. Moreover, the
C.W.3 the so called person who has given his
vehicle to the accused persons being not
examined, the benefit of doubt to the accused
No.2 to 6 is to be given as prayed by the
defence counsel seems reasonable.
47. However in the case on hand, as per
the evidence of PWs.1 and 2, they have
84 S.C.212/2016
specifically deposed about accused No.1 being
seen on the date of alleged incident with a car
in the morning also. In this regard, in the cross
examination of PWs.1 and 4, though denial has
been made explanation offered by the P.W.1 in
her cross examination made for PW.3 that the
victim was not knowing about who assaulted
her husband on the date of incident and when
her husband succumbed, however her driver
had also not mentioned the name of the
accused persons cannot be considered so as to
draw, an adverse inference to be drawn against
the PW.1 or P.W.25 since the P.W.25 during
course of his evidence has mentioned that the
persons who assisted the victim and the
complainant in her election as a councilor to the
BBMP ward for a period from 2010 to 2015. It is
natural as argued by learned SPP that
identification with name of the accused persons
being not known to P.W.25 as he joined only 6
months prior to the date of incident seems
85 S.C.212/2016
reasonable explanation. However the P.W.25
identifying the accused No.1 before the court
and as deposed by him he had seen all the
accused persons but he cannot recollect other
than the accused No.1 before the court is also
reasonable explanations since the date of
incident more than 9 years as lapsed. In fact
not just the evidence of P.W.25 the evidence of
P.Ws.1 and 4 clearly points towards accused
No.1 who had been seen on the date of alleged
incident even in the morning who was moving
near the house of the victim complainant.
Under such circumstances this court is of the
firm opinion that the evidence placed by the
prosecution though loose link by placing
evidence of P.Ws.1, 4 and 25, 8 and 9 with
regard to seizure of the article from the spot at
the instance of accused No.1 clearly goes
against the accused No.1 is my firm opinion.
Accordingly, this court comes to the conclusion
that accused No.1 is guilty of alleged offence
86 S.C.212/2016
punishable u/s.302 of IPC. However at the same
time, to link the accused Nos.2 to 6 to the
alleged offence and even by relying on the
citations mentioned by learned SPP the
presumption cannot be drawn that accused
Nos.2 to 6 are actively involved as of accused
No.1 since the investigation itself is not proper
and as per the provisions of SC/ST (POA) Act
1989 is deficit in investigation which cannot be
agreed as argued by defence seems
reasonable. Further the answers given by the
P.W.8 and 9 with regard to running Mahazar
drawn by P.W.24 at public place and also the
other material witnesses examined PWs.10 to
12 does failed to link the accused Nos.2 to 6 to
the alleged offence. In the case on hand, PWs.1
and 4 though are specific in giving particulars
with regard to involvement of accused No.1
after they were informed about the involvement
of the accused, however they are not specific
about the involvement of the accused Nos.2 to
87 S.C.212/2016
6 in the alleged offence. Therefore in the
absence of specific chain, link to connect the
accused Nos.2 to 6 the material placed on
record, as such fails to bring home the guilt of
the accused Nos.2 to 6 being involved in the
alleged offence are also involved by relying on
the citation brought before the court by learned
SPP namely in case Nand Kumar V/s. State of
Chhattisgarh in (2014)AIR (SCW)6230 and in
case of Jafel Biswas V/s. State of West Bengal in
(2019)AIR(SC)519, in case of Nitya Nand V/s.
State of UP, the accused Nos.2 to 6 cannot be
considered as part of alleged crime. Under such
circumstances this court is of the firm opinion
that the accused Nos.2 to 6 being involved in
the alleged offence has not been established by
the prosecution. Accordingly, Point No.6 against
accused Nos.2 to 6 is answered in the Negative
and Point No.6 against accused No.1 is
answered in the Affirmative.
88 S.C.212/2016
48. POINT NO.4: In the case on hand, in
proof of sec.148 r/w.149 of IPC the prosecution
as per the complaint Ex.P.1 the evidence of
material witnesses PWs.1, 4 who rushed
alongwith PW.25 to the spot immediately for
observation that the material objects namely
weapon of offence were found with the persons
who actually ran away in the Etios car as PWs.1
and 4 rushed to the spot alongwith P.W.25.
However they were not able to identify the
persons and at the same time the P.W.25 had
no action to know the name of accused Nos.2 to
6 as he has joined service of driving few
months before the incident, however the
accused Nos.1 to 6 who assisted the C.W.1
P.W.1 in the elections of P.W.1 in the year 2010
to 2015 by campaigning in her favour. Under
such circumstances as deposed by P.W.1 also
she does not know who are involved in the
alelged offence but she came to know later that
accused No.1 was involved in the alleged
89 S.C.212/2016
offence alongwith other accused persons.
However there is no any direct link to link the
accused Nos.2 to 6 along with accused No.1 to
the alleged offence punishable u/s.148 r/w.149
of IPC and this court is satisfied to answer this
Point No.4 in the Affirmative.
49. POINT NO.7: The prosecution to link the
accused persons to the alleged offence though
failed to link accused Nos.2 to 6 to the alleged
offence, admittedly the accused Nos.1 to 6 are
upper caste people, moreover the deceased
and victim, C.W.1 and C.W.6 are belonging to
schedule caste is an undisputed fact since the
prosecution has got examined P.W.14 who has
deposed about issuing caste report concerning
the victim and accused persons. As such, the
caste of the accused persons as per report of
the Tahsildar is undisputed. Under such
circumstances the prosecution is able to show
the victim is belonging to schedule caste. In the
case on hand, to bring home the guilt of the
90 S.C.212/2016
accused persons with regard to offence
punishable u/s.3(2)(v) of SC/ST (POA) Act 1989
of accused Nos.2 to 6, the accused Nos.2 to 6
are not found guilty with regard to the alleged
offence punishable u/s.302 of Ipc. Under such
circumstances the provisions of sec.3(2)(v) of
SC/ST (POA) Act 1989 cannot be fastened on
the accused Nos.2 to 6 is my firm opinion.
Accordingly, accused Nos.2 to 6 are not liable
to answer the alleged crime u/s.3(2)(v) of SC/ST
(POA) Act 1989.
50. In the case on hand, as the accused No.1 is
found guilty for the offence punishable u/s.341
of IPC and sec.302 of IPC the ingredients of
offence punishable u/s.3(2)(v) of SC/ST (POA)
Act 1989 got attributed against accused No.1.
Accordingly, this court answer Point No.6 in the
affirmative against accused No.1 and Point No.6
in the Negative against accused Nos.2 to 6.
51. POINT NO.7: Tin view of my foregoing reason,
I proceed to pass the following:
91 S.C.212/2016
ORDER
Acting under Section 235(2)
of Cr.P.C, the accused No.1 is
hereby convicted for the
offences punishable under
Sections 341, 302 of IPC. Further
found guilty of offence
punishable u/s. sec.3(2)(v) of
Scheduled Castes and
Scheduled Tribes(Prevention of
Atrocities Act), 1989.
Acting under Section 235(1)
of Cr.P.C, the accused No.2 to 6
are hereby acquitted for the
offences punishable under
Sections 143, 144, 147, 148,
341, 302 R/w 149 of IPC and
sec.3(2)(v) of Scheduled Castes
and Scheduled Tribes(Prevention
of Atrocities Act), 1989.
Acting under Section 235(1)
of Cr.P.C, the accused No.1
hereby acquitted for the
offences punishable under
Sections 143, 144, 147, 148
r/w.149 of IPC.
92 S.C.212/2016
The bail bond of accused
Nos.2, 3, 5 stands cancelled.
The accused Nos.4 and 6
found not guilty. Accordingly
office to issue intimation to jail
authority informing about the
acquittal of accused Nos.4 and 6
of the above alleged offence.
Accused No.1 found guilty of
the alleged offence. Call on to
hear on sentence by
16.12.2024.
I.O directed to keep the
accused No.1 present before the
court.
Issue intimation to IO, Notice
to complainant.
(Dictated to the Stenographer Grade-I, transcript thereof is corrected, signed
and then pronounced in open court on this the 12th day of December, 2024).
(Rajesh Karnam.K)
LXX Addl. City Civil & Sessions
Judge & Special Judge,
Bangalore.
93 S.C.212/2016
Heard on sentence .
ORDER ON SENTENCE
The learned SPP for prosecution submits
as per the provisions of sec.302 of IPC the
court has no much discretion either to impose
sentence of imprisonment for life or death
penalty.
In the case on hand, the court has to
observe that victim is belongs to schedule
caste, as such the provisions of sec.3(2)(v) of
SC/ST (POA) Act 1989 is also to be considered
while imposing sentence. The victim’s family
are having 2 minor children at the time of
incident, as such the court has to consider
passing compensation payable to the victim
family, as such court has to consider passing
compensation payable to the victim family. As
such maximum sentence is to be imposed.
The learned counsel for the accused No.1
submits Memo alongwith copy of the death
94 S.C.212/2016certificate of wife of accused No.1 who has
died on 15.5.2021 while accused No.1 was in
J.C during course of trial.
The accused No.1 is in J.C. since the date
of arrest and he is having son who is now aged
about 18 years and now without any care of
his parents his upbringing has become as a
social problem and also as a mental agony to
the family of the accused. As such minimum
sentence may be imposed.
As per the provisions of sec.302 of IPC,
this court definitely has no any discretion, as
such accused sentenced to undergo
imprisonment for life.
The accused No.1 with regard to the
commission of gruesome murder he is
sentenced to pay fine of Rs.50,000/- out of
which Rs.40,000/- is to be paid as
compensation as per Sec.357(1) of Cr.PC to
95 S.C.212/2016the kith and kin of the victim. In addition
to the victim compensation Act provisions, so
as to provide compensation to the family of
the victim as provided under law.
The accused No.1 is found guilty of
offence punishable u/s.341 of IPC and to pay
fine of Rs.1,000/-.
This court on going through the
provisions of sec.3(2)(v) of SC/ST (POA) Act
1989, wherein it has been provided this court
has no discretion other than the sentence
provided in sec.3(2)(v) to impose sentence of
imprisonment for life and with fine.
Accordingly, this court imposes imprisonment
for life and accused is further sentenced to pay
fine of Rs.20,000/-.
The accused shall pay fine of Rs.50,000/-
plus Rs.20,000/- by hard labour as per the
provisions of Jail Manual.
96 S.C.212/2016
The accused is in J.C from 24.11.2015
and the period of imprisonment is to be given
set off as per the provisions of Cr.P.C.
Office to provide free copy of the
judgment to the accused.
M.Os.1 to 26 being worthless are
ordered to be destroyed after appeal period is
over.
(Dictated to the Stenographer Grade-I in open court, transcript thereof is
corrected, signed and then pronounced in open court on this the 16th day of
December, 2024).
(Rajesh Karnam.K)
LXX Addl. City Civil & Sessions
Judge & Special Judge,
Bangalore.
ANNEXURE
1. WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 Rajeshwari
P.W.2 Mahesh
P.W.3 Shivanna
P.W.4 Swathi
P.W.5 Ramesh
P.W.6 Ashok
P.W.7 Jeevan
P.W.8 Vasudev Rao
97 S.C.212/2016
P.W.9 Arun Kumar
P.W.10 Jayaram
P.W.11 Ravish
P.W.13 R.Naveen Kumar
P.W.12 As on 7.10.2021, P.W.12 has not been
examined by my Predecessor in office.
Accordingly, office to correct the index
by considering the further examination
of witnesses as P.W.12 to 24.
P.W.14 Shivashankar P.W.15 V.B.Klakeri P.W.16 Manohar P.W.17 K.Eshwarappa P.W.18 Cheluvaraju P.W.19 Imtiyaz Patel P.W.20 Dr.Kumuda Rani P.W.21 :Parashuram Hechanatti P.W.22 S.K.Suresh P.W.23 Naresh Nayak P.W.24 Venkatesh.K P.W.25 Chandrashekar.K.
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 :Complaint
Ex.P.1(a),(b),(c) :Signature of Pws.1, 18,23
98 S.C.212/2016
Ex.P.2 :Spot panchanama
Ex.P.2(a),(b) :Signature of Pws.1, 5
Ex.P.3 to 7 :photos
Ex.P.8 :Body panchanama
Ex.P.8(a) :Signature of PW2
Ex.P.9 & 10 :panchanama
Ex.P.10(a),(b) :Signature of Pws.6, 10
Ex.P.11 :photos
Ex.P.12 :Statement of PW7
Ex.P.13 :panchanama
Ex.P.13(a),(b) :Signature of PWs.8,9
Ex.P.14 : panchanama
Ex.P.14(a),(b),(c),(d), :Signature of PWs.8, 9
(e),(f)
Ex.P.15 :Medical bill
Ex.P.16 :Phone number chit
Ex.P.17 :Cover (brown colour)
Ex.P.17(a),(b) :Signature of PWs.8,9
Ex.P.18 to 32 :Photos
Ex.P33 Statement of P.W.10
Ex.P.34 :Statement of P.W.10
Ex.P.35 :Statement of P.W.11
Ex.P.36 :Statement of P.W.13
99 S.C.212/2016
Ex.P.37 :Caste report of A2, 4 (letter)
Ex.P.37(a) :Signature of PW.14
Ex.P.38 :Letter of AEE
Ex.P.38(a) :Signature of PW.15
Ex.P.39 :rough sketch
Ex.P.39(a) :Signature of PW.15
Ex.P.40 :letter
Ex.P.41 :B extract
Ex.P.42 :Request letter
Ex.P.42(a) :Signature of PW.16
Ex.P.43 :Caste report of A2,3,6
Ex.P.44 :Caste report of A1
Ex.P.45 :Crime scene visit report
Ex.P.45(a) :Signature of PW.20
Ex.P.46 :CC of ID
Ex.P.47 :Back copy of ID
Ex.P.48 :CC of ID
Ex.P.49 :Back copy of ID
Ex.P.50 :Report
Ex.P.50(a) :Signature
Ex.P.51 :FIR
Ex.P.51(a) :Signature of PW.23
Ex.P.52 :PF No.77/2015
100 S.C.212/2016
Ex.P.52(a) :Signature of PW.23
Ex.P.53 :P.F.No.78/15
Ex.P.53(a) :Signature of PW.23
Ex.P.54 :P.F.No.79/2015
Ex.P.54(a) :Signature of PW.23
Ex.P.55 :Report of P.W.23
Ex.P.55(a) :Signature of PW.23
Ex.P.56 :P.F.No.80/2015
Ex.P.56(a) :Signature of PW.23
Ex.P.57 :Reminder
Ex.P.57(a) :Signature of PW.24
Ex.P.58 :Report
Ex.P.59 :Statement u/s. 164 of Cr.PC
Ex.P.59(a) :Signature of PW.25
Ex.P.60 :T.I of A1
Ex.P.60(a) :Signature of PW.25
Ex.P.61 :TI of A2
Ex.P.61(a) :Signature
Ex.P.62 T.I. of A3
Ex.P.62(a) :Signature
Ex.P.63 T.I. of A4
Ex.P.63(a) :Signature of P.W.25
Ex.P.64 T.I. of A6
101 S.C.212/2016
Ex.P.64(a) :Signature of PW.25
Ex.P.65 T.I. of A5
Ex.P.65(a) :Signature of P.W.25
3. WITNESSES EXAMINED FOR THE DEFENCE:
Nil
4. DOCUMENTS MARKED FOR THE DEFENCE:
Nil
5. LIST OF MATERIAL OBJECTS:
M.O.1 :Blood stained soil
M.O.2 :Sample mud
M.O.3 :Iron long
M.O.4 :Iron dagger
M.O.5 :Brick piece
M.O.6 :Black colour two chappals
M.O.7 :Brown colour one chappal
M.O.8 :While colour plastic bag
M.O.9 :Shirt
M.O.10 :Banian
M.O.11 :Pant
M.O.12 :Underwear
M.O.13 : Swab
102 S.C.212/2016
M.O.14 : Swab
M.O.15 : Swab
M.O.16 : Chappal (brown colour)
M.O.17 : Jeans pant, T.shirt, underwear(in one bag)
M.O.18 : Empty plastic bottle (4)
M.O.19 : Mc Dowells Plastic bottle
M.O.20 : One pair hawai chappal
M.O.21 : One Thumpsup plastic bottle
M.O22 : Control weed
M.O.23 : Blood stained machu
M.O.24 : Rear seat blood stain cuttings
M.O.25 : Control seat cuttings
M.O.26 : Swab
(Rajesh Karnam.K)
LXX Addl. City
Civil and Sessions Judge
and Special Judge,
Bengaluru.