IN THE COURT OF THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU DATED THIS THE 7TH DAY OF APRIL, 2018 PRESENT : SRI [ENTITY], B.Com. LL.M., Principal City Civil and Sessions Judge, Bengaluru. [CASE NUMBER] COMPLAINANT : STATE OF KARNATAKA BY MICO LAYOUT POLICE STATION, BENGALURU. Vs. ACCUSED : ABDUL WAJEED S/O LATE BABA SAB AGED 63 YEARS R/AT No.6, 1ST CROSS, 1ST MAIN NEAR SRI AVALAMMA TEMPLE HALEGURAPPANAPALYA D.R.C. POST, B.G. ROAD BENGALURU. Date of offence 30.10.2013 Date of report of offence 30.10.2013 Date of arrest of accused 05.11.2013 Date of release on bail 16.06.2014 Total period of custody 07 Months 11 Days 2 [CASE NUMBER] Name of the complainant [ENTITY] Date of commencement of 18.10.2016 recording of evidence Date of closing of evidence 17.10.2017 Offence complained of [SECTION] of [ACT]. Opinion of the Judge Accused found not guilty State represented by Learned Public Prosecutor Accused defended by Sri.[ENTITY] Advocate JUDGMENT
This is a charge-sheet submitted by the Police Inspector of Mico Layout Police Station, Bengaluru City against the accused for the offence punishable under [SECTION] of [ACT].
2) The case of the prosecution in brief is as under:
The deceased and CW.2 [ENTITY] were residing at No.27, 2nd Main road, K.E.B. Layout, 1st Stage, BTM Layout, Bangalore, and the accused was doing real estate agent work. The accused and the deceased were on good terms and the husband of the deceased was residing at Saudi Arabia. The accused had helped the deceased in getting a tenant for her new house constructed on the first floor. The deceased had to pay to the accused the commission for getting a tenant for her house. In view of the above backdrop, on 27.10.2013, at about 5 p.m., the accused asked CW.2 and the deceased to make payment and there was quarrel between the accused and the deceased and the accused had threatened them with dire consequences. In view of the above backdrop, on 30.10.2013, at about 8.00 - 8.15 a.m. when the deceased Smt.[ENTITY] was alone in the house, the accused entered the house of the deceased and picked up quarrel with her in connection with payment of commission amount and committed her murder by slitting her neck with a knife. Thereafter, PW-1 lodged the complaint and a case came to be registered for the offence punishable under [SECTION] of [ACT]. Subsequently, the investigation was set into motion and after completion of the investigation the charge-sheet was filed against the accused for the above said offence.
3) The accused faced the trial and he was defended by the Counsel and after hearing, my learned predecessor has framed the charge for the offence punishable under [SECTION] of [ACT], wherein the accused pleaded not guilty and claimed to be tried and thereafter the prosecution has examined PWs.1 to 13 and one additional witness and has got marked Exs.P.1 to P.22 and also got marked material objects MO-1 to MO-10 and thereafter the statement u/[SECTION] of [ACT], was recorded wherein the accused denied the evidence appearing against him and he did not choose to lead any defence evidence.
4) Heard the arguments. 5) The points for my consideration are;
Point No.1: Whether the Prosecution has proved that the death of the deceased [ENTITY] is homicidal one?
Point No.2: Does the prosecution prove that on 27.10.2013 at about 5.00 p.m., at House No.27, 2nd Main road, K.E.B. Layout, BTM Layout I Phase, Bengaluru, the accused being a Real Estate Agent, picked up quarrel with CW2 - [ENTITY] with regard to payment of commission amount to be given to him for having leased out the house to a tenant and threatened him with dire consequences to his life and thereby committed an offence punishable under [SECTION] of [ACT], beyond all reasonable doubt?
Point No.3: Does the prosecution further prove that on 30.10.2013 between 8.00 a.m. and 8.15 a.m, the accused went to the house of Smt. [ENTITY], picked up quarrel with her with regard to payment of commission amount in respect of leasing out her house to a tenant and murdered the said Smt. [ENTITY] by assaulting her with knife by slitting her neck and thereby committed an offence punishable under [SECTION] of [ACT], beyond all reasonable doubt?
Point No.4: What Order?
6) My answer to the above points is;
Point No.1 : In the Affirmative.
Point No.2 : In the Negative.
Point No.3 : In the Negative.
Point No.4 : As per the final order, for the following;
REASONS
7) Point No.1: It is the case of the prosecution that on 30th October 2013 between 8.00 a.m. and 8.15 a.m., the accused went to the house of Smt.[ENTITY] and picked up quarrel with her with regard to payment of commission amount in respect of leasing out her house to a tenant and assaulted her with a knife by slitting her neck and killed her. PW.1 is the complainant and she has deposed that she was working as a maid servant in the house of the deceased [ENTITY] and about three years ago, when she went to the house of deceased at 8.30 a.m. for attending household work, at that time the windows as well as the doors were opened and she went inside the house and saw that the deceased had fallen in between the hall as well as the bathroom in her house. The bloodstains were scattered here and there. PW.8 is the pancha to the Inquest Mahazar Ex.P3. PW.8 has deposed that prior to the conducting post mortem on the dead body of the deceased [ENTITY], the police have conducted the mahazar as per Ex.P3. Ex.P3 is the Inquest Mahazar. In Column No.7, totally seven injuries are noted which are found over the dead body of the deceased and out of them, injury No.6 is the cut injury on the neck of the deceased. In Column No.11 of Ex.P3, the panchas have opined that some miscreants have cut the throat of the deceased and committed her murder. PW.9 is the Doctor, who conducted P.M. Examination over the dead body of the deceased [ENTITY]. Ex.P4 is the P.M. Report issued by PW.9. Totally fourteen injuries were noted in Ex.P4 P.M. Report which were found on the dead body of deceased [ENTITY]. PW.9 has deposed that on examination of the dead body of the deceased [ENTITY], he found the following external injuries:
(1) Contusion 8 cms X 6 cms present over right cheek. (2) Contusion 3 cms X 1 cm present over inner aspect of right upper lip.
(3) Contusion 2 cms X 1 cm present over left lower lip. (4) Superficial incised wound 11 cms X 0.5 cm X subcutaneous deep obliquely placed present over chin extended towards angle of right mandible which shows tailing.
(5) Contusion 3 cms X 2 cms present below the chin. (6) Deep incised wound 15 cms X 2 cms X bone deep.
Obliquely placed present over front of neck just below the chin extending up to below right ear lobule. On further exploration it is observed that weapon after cutting skin, has cut the underlying subcutaneous tissue, muscles, vessels between thyroid cartilage and hyoid bone through and through and has slit the underlying cervical vertebral (C2).
(7) Deep incised wound 19 cms X 2 cms X bone deep, obliquely placed present over front of neck situated 0.5 cm below the above injury no.6 extending from 2 cms below left ear lobule to 3 cms below right ear lobule. On further exploration it is observed that the weapon after cutting the skin has cut the underlying subcutaneous tissue, muscle, and vessels, through and through and has slit the underlying cervical vertebral and has cut the underlying trachea.
(8) Deep incised wound 22 cms X 2 cms X bone deep, obliquely placed present over front of neck and has merged with above injuries no.6 & 7 extending from 3.5 cms below the left ear lobule to 3 cms below the right ear lobule. On further exploration it is observed that the weapon after cutting the skin has cut the underlying subcutaneous tissue, muscle, and vessels, through and through and has slit the underlying cervical vertebral.
(9) Deep incised wound 23 cms X 1.5 cms X bone deep, obliquely placed present over front and back of neck and has merged with the above injuries no.6, 7 & 8 extending from left nape of neck, 3 cms below left ear lobule to 3 cms below right ear lobule. On further exploration it is observed that the weapon after cutting the skin has cut the underlying subcutaneous tissue, muscle, and vessels, through and through and has slit the underlying cervical vertebral.
(10) Superficial incised wound 4 in number, obliquely and parallely placed present over left side of neck extending from lower margin of the above injury no.9 each measuring 2 cms X 0.5 cm X subcutaneous deep, 3 cms X 0.5 cm X subcutaneous deep, 1 cm X 0.5 cm X subcutaneous deep, 3.5 Cm X 0.5 Cm. X subcutaneous deep respectively situated 0.2 to 0.3 cm apart.
(11) Deep incised wound 16 cms X 1 cm X trachea deep, obliquely placed present over front of neck situated 4 cms above suprasternal notch.
(12) Superficial incised wound 5 cms X 0.5 cm X subcutaneous deep, obliquely placed present over front of neck situated 1 cm below the above injury no.11. (13) Deep incised wound 12 cms X 0.6 cm X bone deep, obliquely placed present over right palm extending from back of right thumb at its root back of right index finger at its middle, front of middle finger and front of ring finger at its tip.
(14) Deep incised wound 9 cms X 0.7 cm X bone deep, obliquely placed present over left palm at its middle extending from base of index finger to outer aspect of little finger.
8) PW.9 has further deposed that he has opined that the death is due to deep cut throat injuries sustained by the deceased. The death of the deceased is homicidal has not been disputed by the accused. The learned counsel appearing for the accused has submitted that he has not disputed that the death is homicidal, but he disputes the date and time of death of the deceased. Therefore, the evidence of PW.9 clearly establishes that death of deceased [ENTITY] is homicidal. Accordingly, I answer point No.1 in the Affirmative.
9) Point Nos.2 and 3: There are no eyewitnesses to the incident. The case of the prosecution rests on the circumstantial evidence. The learned Public Prosecutor has placed his reliance on the following decisions in the cases where the prosecution case is based on circumstantial evidence.
i) [PRECEDENT] Wherein, in paragraph 6, it is held as under:
"It is often said that witnesses may lie but the circumstances cannot. To convict a person on the basis of circumstantial evidence all the circumstances relied upon by the prosecution must be clearly established. The proved circumstances must be such as would reasonably exclude the possibility of innocence of the accused. The circumstantial evidence should be consistent with the guilt of the accused and inconsistent with his innocence. The chain of circumstances, furnished by the prosecution, should be so complete as not to lead any reasonable ground for conclusion consistent with the innocence of the accused. Medical evidence in such a case may be an important circumstance giving assurance to the existence of the other circumstances alleged against the culprit. This Court has consistently held that when the evidence against the accused, particularly when he is charged with grave offence like murder consists of only circumstances, it must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty; not fantastic possibilities nor freak inferences but rational deductions which reasonable minds make from the probative force of facts and circumstances." (Para 6)
ii) [PRECEDENT] Criminal Trial - Case based upon circumstantial evidence - Inference of guilt could be justified only when all incriminating facts and circumstances were found duly proved and established and were found incompatible with innocence of accused or guilt of any other person.
(iii) Criminal Trial - Case based on circumstantial evidence - Last seen theory - Where time gap between the point of time when accused and deceased were seen last alive and when the deceased was found dead is so small that possibility of any person other than accused being author of the crime becomes impossible, theory comes into play."
10) The learned Advocate appearing for the accused has placed his reliance on the following decisions:
i) [PRECEDENT] Wherein in paragraph 14 it is held as under:
"14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (1984)
4 SCC 116 : (AIR 1984 SC 1622.). Therein, while dealing with circumstantial evidence, it has been held that the 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 (SCC pp.185, para 153) :
(i) 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;
(ii) 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.
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
(ii) 2009 (3) Crimes 140 (SC) (Subramaniam vs. State of Tamil Nadu) Wherein in paragraph 19 it is held as under:\ "19. In [PRECEDENT] This Court has laid down the parameters for arriving at a opinion in regard to proof of a prosecution case on the basis of the circumstantial evidence, stating:
'153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in [PRECEDENT] where the following observations were made: (SCC para 19, p.807: SCC (Cri) p.1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(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 the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.' It was furthermore held:
163. We then pass on to another important point which seems to have been completely missed by the High Court.
It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh [(1973) 2 SCC 808], this Court made the following observations:
'Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence."
11) I have placed reliance on a decision of the Hon'ble Supreme Court in the matter regarding circumstantial evidence and it is reported in [PRECEDENT] between (1). [ENTITY] (In [CASE NUMBER]) and (2) [ENTITY] (In [PRECEDENT] (In both the appeals), wherein in paragraph 18 it is held as under:
"18. There is another point of law which must be considered before dealing with the evidence in this case. The prosecution case against accused No.1 rests on circumstantial evidence. The main charge of conspiracy under [SECTION] is sought to be established by the alleged conduct of the conspirators and so far as accused No.1 is concerned, that rests on circumstantial evidence alone. It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. It is in the light of this legal position that the evidence in the present case has to be appreciated."
12) In the light of the above legal position, the evidence in the present case has to be appreciated. The circumstances in the present case are (i) the deceased was last seen with the accused; (ii) recovery of offence weapon at the instance of the accused; (iii) there was a quarrel between the accused with the deceased and her son on 27.10.2013 with regard to payment of commission (iv) Motive.
13) Circumstance No.(i): PW.3 is the son of the deceased [ENTITY]. PW.3 has deposed that he and his mother were residing in their house and he used to go to work at 6.30 a.m. and return to the house at 7.00 p.m. He has further deposed that on 30th October 2013 as usual he went to his work at 6.30 a.m. Therefore, the person who last seen the deceased alive is PW.3 at 6.30 a.m. on 30.10.2013 when he left the house to his work. PW.1 is the maid servant working in the house of the deceased [ENTITY]. PW.1 is also the complainant, who has filed her complaint as per Ex.P1. PW.1 is the person first who saw the dead body of the deceased in her house. PW.1 has deposed that at about three years back when she went to the house of the deceased at 8.30 a.m. for attending the household work, at that time the windows as well as the doors were opened and therefore she went inside the house and saw that the deceased had fallen in between the hall as well as bathroom in her house, wherein the deceased was lying in her house and the bloodstains was scattered here and there and the body was on the ground facing the ground in her house. She has further deposed that she was perturbed and gave information to [ENTITY] residing in a rented house. The said [ENTITY] has given phone message about the incident to the police. Therefore, the material is who entered the house of the deceased after 6.30 a.m. and before 8.30 a.m. on 30.10.2013.
14) PW.5 is one [ENTITY]. He has deposed that he knew the deceased Smt.[ENTITY]. He has further deposed that he was earlier residing in BTM Layout, Bangalore and his residence was at a walking distance from the house of PW.3. He has further deposed that on 30.10.2013 at about 8.15 a.m. and 8.30 a.m. he was going to shop to fetch milk. At that time [ENTITY] (the accused) was going in a speed from the house of PW.3 [ENTITY]. He has further deposed that he just asked him as to what was the problem, but he did not say anything and thereafter he went away. He has further deposed that the said accused was hiding something and going. He has further deposed that after half an hour to one hour he came to know that Smt.[ENTITY] being murdered. As per this PW.5 he saw the accused going in a speed from the house of PW.3 i.e., son of deceased at 8.15 and 8.30 a.m. on 30.10.2013. PW.5 has stated in his cross-examination that he cannot say the direction of the house of PW.3. He has further deposed that the distance between his house and the house of PW.3 is about 100 feet approximately. He has further deposed that he was going to Bakery to get milk on that day which is at a distance of 300 Meters from his house and he do not know the name of the said bakery as it is in Kannada. PW.5, in the cross-examination has stated that the accused [ENTITY] is not known person to him. When the accused is not known to PW.5, the question arises how he can talk with a person, who is not known. PW.5 has stated in his chief-examination that he just asked the accused as to what was the problem, but he did not say anything and went away. PW.5 has stated in his cross-examination that he cannot specifically say as to what dress the accused was wearing. PW.5 has further stated in his cross-examination that he did not tell the family members of Smt.[ENTITY] or the police on the next day for having seen the accused near the house of PW.3. The police have recorded his statement after three four days. Therefore, PW.5 is a chance witness and his testimony appears to be not trustworthy. The house in which the deceased was residing where the incident has taken place is surrounded by other houses as it is a residential locality. There is no other evidence apart from PW.5 regarding who all have made entry inside the house of the deceased from 6.30 a.m. to 8.30 a.m. PW.1 has stated in her cross-examination that when she went to the house of the deceased Smt.[ENTITY], the painting work was also carried in her house and she do not know the labourers those who were doing the painting work in the house of the deceased. She has further deposed that the house of the deceased was situated by the side of the residential house and if a person shouts in the house of the deceased it might be heard by the neighbouring residents. PW.3 has stated in his cross- examination that at that point of time painting work was going in their house.
15) PW.13 is the Police Inspector, who is the I.O. in this case has stated in his cross-examination that on his enquiry, it was unrolled that two persons having completed painting works on the previous day went away. PW.1 and 3 have not stated that the painters completed their work on the previous day and went away. The I.O. has not examined the said painters. Therefore, it is doubtful that who all have visited the house of the deceased between 6.30 a.m. and 8.30 a.m. on 30.10.2013. Therefore, the prosecution has not established that the deceased was last seen with the accused.
16) Circumstances No.(ii) PW.11 has deposed that on 5.11.2013 the Police Inspector directed him and another to trace out the accused and they came to know through the informant about the accused being seen near Shivajinagar Masjid and they apprehended and produced him before the Police Inspector at 9.50 a.m. on 5.11.2013. PW.13 is the Police Inspector. PW.13 has deposed that on 5.11.2013 at 9.50 a.m. PW.11 and CW.22 produced accused before him and he interrogated the accused and recorded his voluntary statement. The admissible portion in the voluntary statement of accused is marked at Ex.P16. In Ex.P16 it is stated that if he is taken he will show the house and place where he threw the knife and he will produce his clothes. PW.13 has further deposed that he secured PW.10 and CW.12 to act as panchas and accused led them near the house of deceasd and he removed a knife from the bush in a vacant site and produced the same before them and he seized the knife, which is at MO.6 and took photographs inthat place and prepared mahazar as per Ex.P6. Ex.P7 to 10 are photos taken at the time of preparing Ex.P6 mahazar. PW.10 is the Pancha to Ex.P6 Seizure mahaar and Ex.P11, Seizure mahazar under which the clothes of the accused MO-9 and 10 have been seized. PW.10 has deposed that on 5.11.2013 the police called him to the police station and he went there and the accused was present there. He has further deposed that the accused led the police near a vacant site and he took out a knife from bush and handed over to the police. The police seized the said knife under mahazar Ex.P6 and took photographs which are at Ex.P7 to 10. PW.10 in his cross-examination has admitted the suggestion that he was a government servant and he has not applied any leave to the office on 5.11.2013. The said mahazar has been drawn between 12.00 noon and 1.00 p.m. on 5.11.2013. PW.10 in his cross-examination has admitted that 5.11.2013 was a working day. PW.10 further stated in his cross-examination that after parking the Jeep, Inspector called him to a place and after that the accused was called to the said place and asked to stand there and the police stated that they are going to take out the knife and they are drawing mahazar and take photos and hence they should stand there. Therefore, the said aspect itself gives some doubt with regard to seizure of MO.6 Knife at the instance of the accused. Ex.P6 is the mahazar wherein it is stated that the accused took out knife, which is in a vacant place of bush area. Ex.P7 is the photographs taken at the time of accused producing knife to the Police Insepctor. On seeing the same, it is clear that the said place is a vacant site and there are no bushes and only there are small plants here and there and it is situated by the side of a house. The said place is accessible to public. The said recovery of MO.6 knife is after six days of the incident. The said place is open to sun and air and accessible to the public. Therefore, recovery of MO.6 at the instance of accused is also doubtful. Ex.P11 is the seizure mahazar of shirt and pant of accused, which he was wearing on 5.11.2013 stating that he was wearing the same shirt and pant at the time of incident. PW.10 has deposed regarding seizure of MO.9 Shirt and MO.10 Pant, which the accused was wearing on that day in the police station under Mahazar Ex.P11. The incident said to have taken place on 30.10.2013, the accused stated to have been wearing the same clothes even on the seventh day of the incident. Therefore it also appears to be not natural, because the said clothes are stated to be bloodstained clothes. Ex.P.12 to 14 are the photographs taken at the time of seizure of shirt and pant of the accused. On seeing the said photographs, no bloodstains appears to be on them and they appears to be new clothes. The said MO.1 to 10 are stated to be bloodstained with 'O' group blood as per FSL Report Ex.P21 and the same has been deposed by PW.14, the Scientific Officer. What is the blood group of the deceased has not been put forth in any of the documents of prosecution or not deposed by any of the prosecution witnesses. Therefore, the prosecution has not established the recovery of offence weapon at the instance of the accused.
17) Circumstances No.(iii): It is the case of the prosecution that there was a quarrel between the accused with deceased and her son on 27.10.2013 with regard to payment of commission. PW.2, 3, 4 and PW.7 are the eyewitnesses, whose evidence is relevant with regard to the said aspect. PW.2 has deposed that two days prior to the death of [ENTITY] there was an altercation took in between the accused and the deceased [ENTITY] relating to the construction of the house. PW.2 in the cross-examination has stated that he do not know personally regarding the altercation took place in between the deceased [ENTITY] and the accused relating to the construction of the house. PW.3 is the son of the deceased. He has deposed that three days prior to the incident i.e., on 27.10.2013 at about 6.00 p.m. he was watching T.V. in his house. The accused came to his residence as he had brought a tenant to the first floor of his house and at that time he had paid brokerage amount to the accused, but still he was demanding double the brokerage amount and for that purpose they had a fight with the accused and accused told that he will do something so that they will regret the whole of their life. It is the case of the prosecution that on 27.10.2013 in the quarrel, the accused gave life threat to PW.3 and his mother, but looking to the deposition of PW.3 there is no such aspect deposed by him. PW.3 has stated in the cross-examination that he has no document to show the amount of brokerage being paid to the accused. He has further deposed that usually no broker will ask double the brokerage amount. He further deposed that he do not have any document to show that he has lodged a complaint in respect of the earlier incident. PW.4 has deposed that 3 - 4 days prior to Smt.[ENTITY] being killed there was a galata between the accused and [ENTITY]. The said galata had taken place near the house of PW.3. The galata had taken place at about 4.00 to 4.30 p.m. When he was passing from his house the said galata has taken place. He has further deposed that Smt.[ENTITY] and accused were having galata in respect of money matter and during the said galata the accused was threatening [ENTITY] and her son. PW.4 in his cross-examination has stated that the incident had taken place in October 2013, but he do not remember the date and week of the incident. PW.3 has deposed that the said quarrel took place at about 6.00 p.m. on 27.10.2013. PW.4 has deposed that the said galata took place at about 4.00 to 4.30 p.m. There is a material contradiction with regard to the time of the said incident. PW.7 has deposed that on 27.10.2013 when he came near the house of Smt.[ENTITY] to park his vehicle there was a galata going on between the accused and PW.3 [ENTITY] and it was in respect of commission payable to the accused. He has further deposed that in the galata, PW.3 had told the accused not to come near the house and at that time the accused had told [ENTITY] and his mother that he will look after them and he pacified the galata along with the neighbours of [ENTITY]. PW.3 has stated that the said incident has taken place at about 6.00 p.m. PW.4 has stated that the said incident has taken place at about 4.00 to 4.30 p.m. PW.7 has not stated any timing about the said incident took place on 27.10.2013. Therefore, there is a material contradiction with regard to the time and therefore the testimony of PWs. 3, 4 and 7 with regard to the incident dated 27.10.2013 that the accused quarreled with the deceased and her son and gave life threat cannot be believed.
18) Circumstance No.(iv): In all the cases of prosecution which are based on circumstantial evidence, it is must that the prosecution has to prove motive for the offence. As per the case of the prosecution, the motive for the offence is non-payment of brokerage / commission to the accused by the deceased. PW.3 has stated that he has paid brokerage / commission, but he has stated that the accused was demanding double the brokerage amount. PW.2 has deposed that the said altercation took place between the accused and the deceased [ENTITY] relating to the construction of the house. PW.3 has deposed that the said galata took place with regard to payment of commission / brokerage. PW.4 has deposed that Smt.[ENTITY] and accused were having galata in respect of money matter. PW.7 has deposed that the galata was in respect of commission payable to the accused. PW.13 the Police Inspector has deposed that it was unearthed during his investigation that the accused had illicit relationship with the deceased and the son of the deceased after having grown up started raising his objection for the movement of the accused to the house of the deceased. He has further deposed that it was unraveled during his investigation that the accused started demanding the deceased to part with money and this is found to be a motive behind the murder. With regard to illicit relationship of deceased with the accused, there is no evidence and none of the witnesses examined by the prosecution have deposed regarding the same. It is only PW.13 who has deposed with regard to the said aspect. The said aspect has found place in the voluntary statement of accused recorded by PW.13. The said statement amounts to confession before police and therefore it is inadmissible. Therefore, the prosecution has failed to establish clearly the motive for the commission of the offence. The chain of circumstances has not been duly established by the prosecution. Therefore, the prosecution has failed to prove beyond reasonable doubt that the accused has committed offence punishable under [SECTION] and [SECTION] of [ACT]. Therefore, the benefit of doubt has to be extended to the accused. Accordingly, I answer point Nos.2 and 3 in the Negative.
19) Point No.4: For the aforesaid reasons, I pass the following;
ORDER The accused is hereby acquitted under [SECTION] of [ACT], for the offences punishable under [SECTION] and [SECTION] of [ACT].
His bail bonds shall stand cancelled.
MO.1 to 10 are worthless and ordered to be destroyed after the appeal period is over and if the appeal is filed after disposal of the appeal.
(Dictated to the Judgment Writer, transcribed and computerized by him, the same is corrected, signed and then pronounced by me in the Open Court on this the 7th day of April, 2018.) ([ENTITY]) Principal City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
PW.1 : Smt. [ENTITY] PW.2 : [ENTITY] PW.3 : [ENTITY] PW.4 : [ENTITY] PW.5 : [ENTITY] PW.6 : [ENTITY] PW.7 : [ENTITY] PW.8 : [ENTITY] PW.9 : Dr. [ENTITY] .K.B. PW.10 : [ENTITY] PW.11 : [ENTITY] PW.12 : [ENTITY] PW.13 : [ENTITY] PW.14 : Smt. [ENTITY]
LIST OF WITNESSES EXAMINED FOR THE DEFENCE:
NIL LIST OF DOCUMENTS EXHIBITTED FOR THE PROSECUTION:
Ex.P1 : Complaint Ex.P1(a): Signature of PW.1 on Ex.P1 Ex.P1(b): Endorsement of PW.12 on Ex.P1 Ex.P1(c): Signature of PW.13 Ex.P2: Spot Mahazar Ex.P2(a): Signature of PW.1 Ex.P2(b): Signature of PW.6 Ex.P2(c): Signature of PW.13 Ex.P3: Inquest Mahazar Ex.P3(a): Signature of PW.8 Ex.P3(b): Signature of PW.13 Ex.P4: P.M. Report Ex.P4(a) - (c): Signature of PW.9 Ex.P5: Opinion of PW.9 Ex.P5(a): Signature of PW.9 Ex.P5(b): Sample Seal Ex.P6: Seizure mahazar of knife Ex.P7 to 10: Photographs Ex.P11: Seizure Mahazar Ex.P11(a): Signature of PW.10 Ex.P11(b): Signature of PW.13 Ex.P12-14: Photographs Ex.P15: FIR Ex.P16: Voluntary statement of accused. Ex.P17: Rough Sketch Ex.P18: Xerox copy of Application for obtaining Cell Number of accused from Reliance Ex.P19: Call Details Register of accused Ex.P20: Call Details Register of deceased Ex.P21: F S L Report Ex.P21(a): Signature of PW.14 Ex.P22: Sample Seal Ex.P22(a): Signature of PW.14
LIST OF DOCUMENTS EXHIBITTED ON BEHALF OF DEFENCE:
NIL LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION:
MO-1: One bloodstained Baniyan.
MO-2: One plastic container of blood sample.
MO-3: One red and white mixed Chudidar pant.
MO-4: One black and white Chudidar top.
MO-5: One Bra.
MO-6: One Knife.
MO-7: Two sealed bottles.
MO-8: Nail clip.
MO-9: One Blue & White shirt.
MO-10: One black & white pant.
Principal City Civil & Sessions Judge, Bengaluru.
*sk SHIVASHANKAR BASAPPA BASAPPA COURT OF AMARANNAVAR KARNATAKA,o=GOVERNME NT OF KARNATAKA,st=Karnataka,c= IN Date: 2018.04.09 11:37:06 IST