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IN THE FAST TRACK COURT-1, BENGALURU CITY

Dated this day the 27 th May, 2010

Present;- Sri.K.AMARANARAYANA., B.Com., LLB., Presiding Officer, FTC-1.

SESSIONS CASE. NO. 489/2004

Complainant

Accused

;

;

State by; Central Crime Branch, Bengaluru city. [Rep.By.Spl.Public Prosecutor]

--V/S--

1. Smt.Bharthi Urs Rani W/o Nagaraja Urs, Aged about 45 years, R/at.No.64/25, Parijatha Nilaya, Lalithamahal Main Road, M Y S O R E.

2. T.Madhukumar S/o Late D.Thukaram, Aged about 36 years,

R/at.No.J-20, 3 rd Cross, Srirampuram, B A N G A L O R E.

3. I.N.Chandrakanth, S/o N.R.Lakshmanarao, Aged about 31 years,

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S.C. NO. 489/2004

R/at. No.2146, 2 nd Stage, Rajajinagar, B A N G A L O R E – 560010. [A1 to A3 are in Judicial Custody] [Rep.By.Sri.C.V.Nagesh, Adv for A-1] [Rep.By.Sri.A.John Bosco,Adv for A2 &

A3]

J U D G M E N T

This case is received on committal of the case in

C.C.No.9015/2004 on the file of I ACMM, Bengaluru in

pursuance

Assistant

Commissioner of Police, Special Enquiries, Central Crime

Branch, N.T.Pet, Bangalore City against A1 to A3 for an

120

offences punishable

(B),302,201,420,404 of IPC.

of

the

charge

sheet

filed

by

the

under

sections

2. The case of the prosecution may be stated as

follows;-

The deceased Kum.Chitralekha was a practicing

advocate working for Amarchand Mangaldas law firm

situated at M.G.Road, Bangalore. She is the daughter of late

Mr.Justice Chandrakanth Raj Urs. She was using two

mobiles bearing Sim nos 56707687 and 9845008687. A1

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is the daughter of former Chief Minister of Karnataka late Devaraj Urs. A1 and the deceased are cousins. A1 stated to have used the mobile nos. 9845533300, 36904030. A1 borrowed a sum of Rs.25,00,000/- from the deceased. Apart from this A1 borrowed a sum of Rs.20,00,000/- from PW10 Rajesh Begur, Rs.1,00,000/- from CW7 Smt.Thernaz Begum, Rs.10,00,000/- from PW8 Dinesh Ravi, Rs.10,00,000/- from PW7 Parasthar Jal on the guarantee of deceased Chitralekha. A1 and her husband has executed promissory notes in favor of the deceased and above stated lenders. As a security A1 has also issued cheques. A1 failed to repay the principal nor interest to the deceased and others. A1 who was unable to repay the same, entered conspiracy with A2 and A3 to end the life of deceased to escape from the liability of repayment.

With

this

motive

on

19.1.2004

A1

invited

the

deceased to Palm Grove Nursery at 6.30PM for a discussion. The deceased went to Palm Grove Residency in her Hyundai Car bearing no.KA-04 MC-1206 at 6.30PM. A2 and A3 at the instigation of A1 killed the deceased by suffocation and

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strangulation at No.46, Palm Grove Nursery, Palace Road, Bangalore. After murdering A2 and A3 carried the dead body of the deceased in a Car bearing no.KA-03-MC-1206 belonging to deceased and throw the same to a valley in Shiradi Ghat, near Sakaleshpura, Hassan district to cause the disappearance of evidence. High Ground Police took up investigation on the missing complaint Ex.P1 lodged by the complainant Smt.Hema Mandanna on 19.1.2004 at 10.45PM. The High Ground Police did not get any clue about the deceased except tracing the Car bearing registration no.KA-03-MC-1206 on 22.1.2004 at Mangalore. The case was transferred to City Crime Branch for investigation. PW63 Abdul Azeem, ACP, CCB, Bengaluru took up further investigation and recorded the statement of Revathi Rao and collected small dairy and small slip as per Ex.P122, Ex.P123. On 13.2.2004 he visited the house of deceased pursuant to the call given by PW2 Nayanatara. PW2 Nayanatara produced a letter and cheques Ex.P33 and Ex.P34. On the same day he visited the house of PW1 and collected a letters Ex.P31(1), (2), (3), 6 promissory notes Ex.P25 to Ex.P30, 23 cheques Ex.P2 to Ex.P24 and

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Receipts Ex.P25(a), Ex.P30(a) along with a letter Ex.P32. On 14.2.2004 he enquired A2 and Ashok Fernandes and received details of SB A/c No.13650 of A1 from Abudhabi Commercial Bank. He also enquired A1 car driver Symon on 15.2.2004 and handed over the case file to ACP, CCB, B.K.Shivakumar PW68.

PW68 took up further investigation on 23.2.2004. On 8.3.2004 PW68 secured A2 and A3 through PW50 and CW69 at 11.45PM. On 9.3.2004 A2 and A3 based on the voluntary statements Ex.P160 and Ex.P161 led PW68, panchas and other staff to Shiradi Ghat, in between Sakaleshpura and Uppinangadi showed the spot at 8.30am saying that they threw the dead body to the valley (Kandaka). They get into the valley with the help of rope and saw the decomposed dead body of female. There was ear stead in right ear of the dead body. PW68 conducted mahazar in the spot where dead body was found in the presence of PW11 Shekar Shetty and CW24 as per Ex.P46. Due to non-availability of instruments to remove the dead body from the valley PW68 returned to Bengaluru by

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deputing PW65 Ramesh and CW82 Krishnamurthy to guard the dead body. On the way near Nelamangala PW68 examined PW17 Rudresh and CW25 Basavaraj to the effect that A2 and A3 filled petrol to Hyundai Car on 19.1.2004 night. On 10.3.2004 PW68 left Bengaluru along with panchas CW27 Kumar and CW18 Babu and his staff, videographer, photographer and on the way secured local panch witness PW12 Adharsh and conducted inquest mahazar on the dead body as per Ex.P47. PW38 Dr.Devadas and his team went to the spot and conducted postmortem on the dead body. PW5 who is the brother in law of deceased identified the dead body with the help of wearing apparels. PW68 seized ear stead, gold ring and leg finger ring MO.25 to MO.27. The inquest proceedings were video graphed by Syed Ameer and photographed by PW58.

On 11.3.2004 on the information of A2 and A3 searched for jewels and other belongings of the deceased but could not search the same. At about 2.15PM searched for the mobile of deceased near the bridge of kasargud on the voluntary information of A2 and A3 in the presence of

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PW18 and CW31 and conducted mahazar Ex.P53. A2 and A3 led to the place where car was abandoned and PW68 conducted mahazar Ex.P54 in the presence of PW19 and CW34. On the same day PW47 and CW63 identified A2 and A3. A2 gave further voluntary statement as per Ex.P163. On 13.3.2004 A2 and A3 led PW68, PW15 and CW36 and the staff to No.46, Palm Grove Nursery, Palace Road and showed the spot where they alleged to have killed the deceased Chitralekha. PW68 conducted mahazar as per Ex.P49 in the presence of PW15 and CW36. On 14.3.2004 PW68 seized MO.1 to MO.24 at the instance of A3 in the presence of panchas CW37 Muniyappa, PW13 Ramesh, PW14 Sunilkumar under the mahazar Ex.P48. On the same day he seized Two Mobile phones nos.9845515025, 9448174005 MO.33, MO.34 and Photos Ex.P98, 99 from A2 under the mahazar Ex.P97 in the presence of PW37. On 16.3.2004 on the voluntary information of A1 as per Ex.P166 seized two mobile phones nos. 9845533300-MO.31, 9880005999-MO.32, and prajavani news paper-Ex.P56 under the mahazar Ex.P55 in the presence of PW20. PW39 Dr.Ramfel Farambi Dentist gave

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opinion as per Ex.P107 and Ex.P108. On 16.3.2004 he has obtained the signatures of CW48 Nagaraj Urs and A1 on 6 sheets in the presence of PW20 and CW95 as per Ex.P63 to Ex.P68 and Ex.P57 to Ex.P62. On the same day PW68 visited Palm Grove Nursery and recorded the statements of PW23 Kum.Kavitha, PW24 Jayaram. On 29.3.2004 blood

sample of PW2 and PW3 was drawn in the presence of 1 st

ACMM, packed, sealed and sent it to CDFD Hyderabad for DNA test. Further received call details of mobile no.9845008687 as per Ex.P82 and Ex.P83, call details of mobile no.9845533300 of A1, as per Ex.P84 and Ex.P85, call details of mobile no.9845515025 as Ex.P86. Received call details of mobile phone no.9845008687 of deceased as per Ex.P179. PW68 after receiving PM report as per Ex.P100, FSL report Ex.P114, Opinion Ex.P102 from Forensic Science Medicine Department, Victoria Hospital as to cause of death and final opinion Ex.P103, CFSL report Ex.P157 submitted the charge sheet against the accused persons.

3.

After

hearing

9

the

S.C. NO. 489/2004

accused

this

court

found

grounds to frame charge against the accused persons, accordingly charges were framed against A1 to A3 for an offences punishable under sections 120(B), 302, 201 r/w 34 of IPC on 10.1.2007.

4. A1 to A3 pleaded not guilty, claimed to be tried.

5. The prosecution in order to bring home the guilt

of the accused persons have examined in all PW1 to PW68, got marked Ex.P1 to Ex.P179, and material objects MO.1 to

MO.45.

The defense side marked Ex.D1 to Ex.D15.

prosecution side.

Closed

6. A1 to A3 were examined under section 313 of

CR.PC. A1 to A3 denied the incriminating circumstances against them. Case of the accused is one of total denial. A1

to A3 have not placed any defense evidence. This court did not act under section 232 of CR.PC.

7. Arguments of learned Special Public Prosecutor

Sri.N.R.Ramakrishna appearing for the state and learned

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counsels Sri,C.V.Nagesh and Sri.A.John Bosco for A1 to A3

were heard. The learned counsel Sri.AJB appearing for A2

and A3 also submitted written arguments. The learned

Special Public Prosecutor appearing for the state has relied

upon the following decisions.

1. AIR 1960 SC 500.

2. AIR 2007 SC 2531.

3. 1992 Crl.LJ 1545.

4. ILR 2004 KAR 586.

5. 2001 (3) Crimes 24 (SC).

6. 2004 (2) Crimes 420 (SC).

7. 1991 Crl.LJ 2563.

8. AIR 1987 SC 1572.

9. 2003 (4) Crimes 358 (SC).

10. AIR 2009 SC 2797.

11. 1983 Crl.L.J 1285.

12. AIR 2008 SC 2110.

13. 2003 Crl.LJ 3731.

14. 2008 Crl.L.J 4451.

15. 2002 SCC (Cri) 269.

16. 2008 Crl.LJ. 1676 (Orissa).

17. 2003 Crl.L.J. 456 (Supreme Court).

The learned counsel Sri.C.V.Nagesh appearing for A1 has relied upon the following decisions.

1. AIR 1990 Supreme Court 79.

2. (2008) 3 SCC (Cri) 959.

3. (2008) 3 SCC (Cri) 546.

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4. (2008) 3 SCC (Cri) 246.

5. AIR 1981 SC 34.

6. 2006 (3) Supreme 175.

7. 1995 SCC (Cri) 215.

8. AIR 1999 S.C.1086.

9. AIR 1980 S.C.1382.

10. AIR 1987 S.C.955.

11. AIR 2004 S.C.3030.

12. AIR 1990 S.C.1709.

13. AIR 2006 S.C.35.

14. 2002 SCC (Cri) 1518.

15. AIR 1975 S.C. 179.

16. AIR 1963 S.C.1413.

17. AIR 1953 S.C.420.

18. AIR 2007 S.C.1876.

19. 2010 AIR SCW 877.

20. 1977 Crl.L.J.1144.

21. 2003 SCC (Cri) 655.

The learned counsel Sri.A.John Bosco appearing for A2 and A3 has relied upon the following decisions.

1. (2003) 3 SCC 353.

2. 2004 Crl.L.J 1720.

3. 2004 Crl.L.J 1723.

4. AIR 2002 Supreme Court 293.

5. AIR 1981 Supreme Court 1579.

6. 2002 Crl.L.J 582.

7. 1988 Crl.L.J. 1054.

8. AIR 2002 Supreme Court 3206.

9. 2001 AIR SCW 4209.

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8. Now the following points would arise for my

consideration are ;-

1. Whether it is established by the prosecution beyond all reasonable doubt that A1 on 19.1.2004 and immediately prior thereto with intent to avoid repayment of debt to the deceased had entered into agreement with A2 and A3 to cause the death of deceased Chitralekha and to cause disappearance of evidence of murder thereby committed the offence punishable under section 120(B) IPC?

2. Whether it is established by the prosecution beyond all reasonable doubt that on 19.1.2004 at about 6.45PM at No.46, Palm Grove Nursery, Palace road, Bengaluru A2 and A3 murdered the deceased Chitralekha by suffocation and strangulation at the instigation and aid of A1 and thereby committed an offence punishable under section 302 r/w 34 of IPC?

3. Whether

it

prosecution

is

established

all

the

reasonable

by

beyond

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doubt that on 19.1.2004 after committing murder A2 and A3 with an intention to screen themselves from punishment and cause disappearance of evidence took the dead body of deceased Chitralekha in the Hyundai Car belonging to the deceased and threw the same in a deep slope by the side of Shiradi Ghat near culvert stone No.246/8 about 25 kilometers from Sakaleshpur in bet-ween Sakaleshpur and Upinangady and thereby committed an offence punishable under section 201 of IPC?

9. My findings to the above points are as under

For the following.

Point No.1 ;

Negative.

Point No.2 ;

Negative.

Point No.3 ;

Negative.

R E A S O N S

10. The entire case of the prosecution rests on the

circumstantial evidence. None of the prosecution witnesses

have seen the accused persons while murdering the

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deceased by suffocation and strangulation. The accused

persons disputed the death of deceased by suffocation and

strangulation at No.46, Palm Grove Nursery, Palace Road,

Bangalore on the evening of 19.1.2004.

11. In order to connect the accused persons with the

charges leveled against them the prosecution has put forth

the following circumstances;

1. The decomposed dead body found on

9.3.2004 in a deep slope by the side of Shiradi Ghat near culvert stone

No.246/8 about 25kms from Sakaleshpura in between Sakaleshpura - Upinangady is of deceased Kum.Chitralekha.

2. The prosecution has to establish that

the death of Chitralekha on 19.1.2004 or earlier it was a homicide and not a

natural death.

3. The deceased and accused no.1 were

last seen together on 19.1.2004 at 6.30PM at No.46, Palm Grove Nursery, Palace Road, Bangalore and A2 and A3

were present there and were also found through out in the car in which Chitralekha's dead body was present.

4. The prosecution has to establish the

conspiracy among A1 to A3 to

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eliminate the deceased Chitralekha from the world for escaping from the liability of repayment of debt due by A1 to deceased Chitralekha. 5. The prosecution has to establish the conspiracy and the common intention of the accused and they committing the murder of Chitralekha on 19.1.2004 and thereafter caused disappearance of evidence by shifting the dead body.

12. Before adverting to the discussion of evidence it

is necessary to refer to certain decisions relied on by the

Special Public Prosecutor and learned counsels appearing

for the accused relating to the appreciation of evidence, in a

case, which rests upon circumstantial evidence. Firstly

decisions relied upon by the prosecution are referred herein.

In a decision reported in AIR 1960 Supreme Court 500 the

Hon'ble Apex Court has held that;

“Criminal Trial – Evidence – Conduct of accused – Relevancy. A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable

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explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material” “But where the case against the accused was entirely based on circumstantial evidence and there was no direct evidence that he administered a poison to the deceased and no poison has, in fact, been detected by the doctor who performed the postmortem examination, or by the Chemical Analyser, and the inference of guilt was drawn on an examination of a mass of evidence during which subsidiary findings were given by the two courts below” “The prosecution must establish in a case of poisoning; (a) that death took place by poisoning; (b) that the accused had the poison in his possession; and (c) that the accused had an opportunity to administer the poison to the deceased. Though these three propositions must be kept in ming always, the sufficiency of the evidence direct or circumstantial, to establish murder by poisoning will depend on the fact of each case.” “A case of murder by administration of poison is almost always one of society.

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The poisoner seldom takes another into his confidence, and his preparations for the commission of the offence are also secret. The greater his knowledge of poisons, the greater secrecy, and consequently the greater the difficulty of proving the case against him. What assistance a man of science can give he gives; but it is too much to say that the guilt of the accused must, in all cases, be demonstrated by the isolation of the poison, though in a case where there is nothing else, such a course would be incumbent upon the prosecution. There are various factors, which militate against a successful isolation of the poison and its recognition. The discovery of the poison can only take place either through a postmortem examination of the internal organ or by chemical analysis. Often enough, the diagnosis of a poison is aided by the information which may be furnished by relatives and friends to the symptoms found on the victim, if the course of poison has taken long and others have had an opportunity of watching its effect where, however, the poison is administered is secrecy and the victim is rendered unconscious effectively, there is nothing to show how the

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deterioration in the condition of the victim took place and if not poison but disease is suspected the diagnosis of poisoning may be rendered difficult” “Circumstantial evidence in this context means a combination of facts creating a net work through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt. To rely upon the findings of the medical man who conducted the postmortem and of the chemical analyser as decisive of the matter is to render the other evidence entirely fruitless. While the circumstances often speak with uttering certainty, the autopsy and the chemical analysis taken by themselves may be most misleading. No doubt, the due weight must be given to the negative findings at such examination. But bearing in mind the difficult task which the man of medicine performs and the limitations under which he works, his failure should not be taken as the end of the case, for on good and probative circumstances an irresistible inference of guilt be drawn” “Held that if the deceased died in circumstances which prima facie admit of either disease or

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homicide by poisoning, the court must look at the conduct of the accused(who was a medical man) who brought the deceased to the hospital, and consider to what conclusion that conduct unerringly points. If the accused as an honest medical man had taken the deceased to the hospital and she had died by reason of disease, his conduct would have been entirely different. He would not have taken her to the hospital bereft of property with which she started from home; he would not have given a wrong or misleading name to cover her identity; he would not have given a wrong age and wrong history of her ailment; he would not have written a letter suggesting that she had a brother in Calcutta, which brother did not exist; he would not have abandoned the corpse to be dealt with by the hospital as an unclaimed body” “The circumstances must be such hat no other conclusion than that the deceased died of poisoning and that the poison was administered by the accused, can reasonably be drawn. But the circumstances in the case were not such that from them the only reasonable conclusion to be drawn was that the deceased died of poisoning. If that

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conclusion could be drawn, there was no reason to disagree with the view of the courts below that it was the accused who had administered the poison. The design to appropriate the property of the deceased might provide motive for murder, but the murder, that is, in this case an unnatural death could not be proved by it. That design did not exclude the possibility that deceased died a natural death and the accused made full use of the opportunity there by provided to carry his design into effect”

In a decision reported in AIR 2007 Supreme Court 2531,Swamy Shraddananda vs State of Karnataka the Hon'ble Apex Court has held that.

“(A)

Evidence Act (1 of 1872) S.3 -

Circumstantial evidence – Unnatural death of wife-venue, bedroom shared by deceased and her husband-Husband has to offer explanation-Absence of any

explanation would lead to a circumstance against the accused.” “(B) Evidence Act (1 of 1872) S.27-Disclosure statement-Fact discovered-include place from which object is produced and knowledge of accused as to it – Murder case – Deceased buried in a big court

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yard-accused pinpointing exact place-Skeleton of deceased exhumed from marked place-This part of confessional statement before police is admissible” “(C) Penal Code (45 of 1860).S.300-Murder -Circumstantial evidence – Accused giving false information to them about whereabouts of deceased-on complaint of missing being filed by daughter of deceased accused obtaining anticipatory bail-False explanation as to whereabouts of deceased offered in bail application-statement made by accused leading to discovery of mortal remains of deceased from backyard of matrimonial house-circumstances points to guilt of the accused”

In the decision reported in 1992 CRI.LJ.1545, the Hon'ble Bombay High Court has held that.

“(A)

Evidence

Act

1872-S.3 –

Witness-Credibility – Murder case – Delay in recording statement of witness by police – Investigation not proceeding initially on desired lines – C.I.D. taking up investigation later – statement recorded thereafter – witness found truthful – His testimony could not be discarded on ground of long delay in recording his statement”

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In the decision reported in ILR 2004 KAR 586 the Hon'ble High Court of Karnataka has held that. “Indian Penal Code, 1860-Sections

302 and 203-Criminal Procedure

Code,1973(Central Act No.2/1974) – Section 313 – Evidence Act,1872 – Section 27 – Criminal Procedure Code 1973 – Section 313 – Examination of the accused under – The answers given during such examination have a practical utility for Criminal Courts – When the prosecution has established accused last seen with the deceased, it is for the accused to explain as to when and where he parted the company of the deceased either in his 313 statement or by any other evidence – If the accused fails to give any explanation, if the Explanation offered is found to be untrue, then the conduct of the accused provides an additional link in the chain of circumstances to make it complete”

In the decision reported in 2001 (3) Crimes 24 (Supreme Court) Hon'ble Supreme Court has held that. “ Indian Penal Code,1860 – Section 302 – Murder – Conviction of appellant based on circumstantial evidence of last seen in company of deceased –

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Recoveries under 27 of Evidence Act of blood stained clothes of deceased and accused – Weapon of murder – object of murder, gold chain, sold – Accused defence of simply total denial – Whether cumulative effect of all the circumstances undoubtedly indicate guilt of accused excluding any other hypothesis”

In the decision reported in 2004 (2) Crimes 420 (SC) Hon'ble Apex Court has held that; “Handkerchief, which was belonged to deceased, were recovered from his residential house – Fact of possession of those articles with appellants led to the most probable inference that they were responsible for death of deceased”

In the decision reported in 1991 Cri.LJ. 2653 Hon'ble Supreme Court has held that. “(A) Evidence Act (1872), S.3 – Hostile Witness – Evidentiary value – His evidence cannot be treated as effaced or washed off the record together – Part of his evidence which is otherwise acceptable can be acted upon”

In the decision reported in AIR 1987 Supreme Court 1572 Hon'ble Supreme Court has held that.

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“(B) Penal Code (45 of 1860) Ss.300, 34 – Murder - Circumstantial evidence

– Circumstances proved by

prosecution evidence lead to no other inference except that of guilt of

accused”

In the decision reported in 2003 (4) Crimes 358 (SC) Hon'ble Supreme Court has held that.

“(i) Indian Penal Code,1860 – No requirement of law that disclosure statement under section 27 of Evidence Act should always be made in presence of independent witnesses-Recoveries got effected by appellant were in presence of independent witnesses – Recoveries effected next day of making of statement would not affect prosecution case – appellant was seen in the locality where victim were residing in the night of incident and no explanation by appellant for that presence”

In the decision reported in AIR 2009 Supreme Court 2797 Hon'ble Supreme Court has held that. “(D) Evidence Act (1 of 1872) S.27 – Recoveries and discoveries – Criminal conspiracy and murder case – there had been recovery of material objects –

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Investigator was able to locate STD booth from where accused talked with others – This was discovered at instance of witness clearly proved recoveries and discoveries “(E) Penal Code (45 of 1860) Ss.300, 120-B - Criminal Conspiracy and murder-proof-appellant allegedly conspired and assaulted deceased by knife and aruval-Evidence of two independent eye witnesses was reliable-they had no enmity with appellants-Minor discrepancy will not corrode credibility of witness-delay in examination of witnesses had been properly explained. They had identified accused persons”

In the decision reported in 1983 CRI.L.J.1285 the Hon'ble Supreme Court has held that. “(A) Evidence Act (1 of 1872), S.3 – Prosecution witnesses turned hostile – Effect - Accused can nonetheless be held guilty. It is not quite strange that some witnesses do turn hostile by that by itself would not prevent a court from finding an accused guilty if there otherwise acceptable evidence in support of the prosecution.”

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In the decision reported in AIR 2008 SUPREME COURT 2110 the Hon'ble Supreme Court has held that. “(B) Penal Code (45 of 1860) S.300-Murder-Circumstantial evidence – Appellant accused and deceased - wife last seen together – Deceased was missing thereafter – No explanation given by accused – Dead body found after few days only upon disclosure made by accused – Identified to be that of deceased – Jewelery put on by deceased was produced by appellant – Medical evidence does not negate prosecution case – Extra Judicial Confession by accused found to be voluntary and truthful”

In the decision reported in 2003 CRI.L.J.3731 the Hon'ble Supreme Court has held that. “(A) Penal Code (45 of 1860) Ss.376,300-Evidence Act (1 of 1872). S.9 – Rape and Murder – Rape Victim – Identity of deceased-proof-Deposition of prosecution witness that photograph of deceased were sent by him for superimposition of the skeletal remains of the deceased conducted with reference to the photograph of the deceased-Doctor conducting postmortem of examination of skeletal remains gave age of deceased bet-ween

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15-16 years-said report corroborated by doctor of forensic lab who examined skeletal remains in court-identity of deceased well established” “(C) Evidence Act (1 of 1872). S.27-Penal Code (45 of 1860) Ss.376, 300-Rape – Conviction for, based on evidence relating to disclosure

statement

of

appellant-legality-Recovery of articles and skeletal remains of the deceased from well and dug out from the place pointed out by the accused-Recovery can be said to have been made on basis of the voluntary disclosure statement - Articles not recovered from place where public have free access-but found from inside well and being dug our/unearthed only after place was pointed out by the accused/appellant- There is no reasonable apprehension with the material exhibits being planted to rope in the appellant with the crime”

In the decision reported in 2008 CRI.L.J.4451 the Hon'ble High Court of Karnataka has held that. “(B) Evidence Act (1 of 1872). Ss.3 & 106- S.300 - Murder - Circumstantial evidence - Last seen together theory – Evidence proves that deceased was last seen in company of accused-Duty is

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cast upon accused to explain circumstances as provided under section 106 of Evidence Act – and has to explain in his statement under 313 of Cr.PC as to when he departed from the company of the deceased”

In the decision reported in 2002 Supreme Court Cases(Cri) 269 the Hon'ble Supreme Court has held that. “A. Criminal Procedure Code,1973 – Ss.154,156,173(2) & (8) and 211 – Till police completes investigation pursuant to an FIR and finally lays charge sheet against the accused persons, if during the course of the investigation it finds the FIR to be false, it can continue with the investigation and reach its final conclusion as regards the real culprits”

In the decision reported in 2009 CRI.L.J.1676 the Hon'ble Orissa High Court has held that.

“Evidence

Act

(1

of

1872),

Ss.27,

65-B-Discovery of articles – Statement of accused recorded by police in video cassettes regarding place of concealment of incriminating articles such statement is a piece of information which facilitates discovery of article and is admissible under section 27-In order to allow display of video cassettes, it is necessary for trial court to verify video cassettes to above extent

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only so that interest of accused can be safeguarded.”

13. The decisions relied upon by the learned counsel

Sri.C.V.Nagesh appearing for the A1 are; In the decisions reported in AIR 1990 Supreme Court 79, (2008) 3 SCC (Cri) 959, (2008) 3 SCC (Cri) 546 the Hon'ble Supreme Court has held that.

“Penal Code (1860), S.300 – Murder – Circumstantial evidence – the evidence

must satisfy the following tests. 1. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.

2. Those circumstances should be of a

definite tendency unerringly pointing towards guilt of the accused. 3. The Circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human

probability the crime was committed by the accused and none else;and.

4. The circumstantial evidence in order

to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the

guilt

of

the

30

S.C. NO. 489/2004

accused

but

should

be

inconsistent with his innocence.”

In the decision reported in (2008) 3 SCC (Cri) 246 the Hon'ble Supreme Court has held that. “B. Criminal Trial – Circumstantial evidence – Last seen together – Applicability of – Held, evidence of last seen by itself is not of much significance – It may, however, provide for a link in the chain – But unless the time gap bet-ween the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis”

In the decision reported in AIR 1981 S.C.34 the Hon'ble Supreme Court has held that.

“Evidence Act (1 of 1872) S.3 – Evidence – Appreciation of circumstantial evidence – Must definitely point to the guilt of the accused. It is well settled when a prosecution case rests on circumstantial evidence only, those circumstances should, in the first place, be firmly established and further, they should be a definite pointer towards the guilt of the accused”

31

S.C. NO. 489/2004

In the decision reported in 2006 (3) Supreme 175 the Hon'ble Supreme Court has held that. “It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances can not be on any other hypothesis. It is also well-settled that suspicion, however grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. The last seen theory, further more, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration”

In the decision reported in 1995 SCC (Cri) 215 the Hon'ble Supreme Court has held that.

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S.C. NO. 489/2004

“A.Penal Code 1860-Ss.120A and 120B – Criminal conspiracy Ingredients and proof of – Motive and preparation by themselves do not constitute conspiracy – Criminal conspiracy can be proved by direct of circumstantial evidence – Circumstances must establish that the offence was committed in pursuance of an agreement between parties to the alleged conspiracy – Such circumstances must be capable of any other explanation – Mere suspicion and surmises or inferences supported by cogent evidence not sufficient”

In the decision reported in AIR 1999 SUPREME COURT 1086 the Hon'ble Apex has held. “(B) Penal Code (45 of 1860) S.120B – Conspiracy – Is difficult to establish by direct evidence – However, there should be material showing connection between alleged conspiracy and act done pursuant to that conspiracy.”

In the decision reported in AIR 1980 SC 1382 the Hon'ble Apex Court has held. “(A) Penal Code 1860, Sec.120-B – Criminal conspiracy – Proof. In order to prove a criminal conspiracy which is punishable under section 120-B, there must be direct or

33

S.C. NO. 489/2004

circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. It is true that in most of the cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.”

In the decision reported in AIR 1987 S.C.955 the Hon'ble Apex Court has held. “If the prosecution relies upon circumstantial evidence a clear link has to be established and the chain has to be completed, otherwise it would indeed be hazardous to accept a part of the link as a complete one and on the basis of the such incomplete evidence, the allegation of conspiracy cannot be accepted”

In the decision reported in AIR 2004 Supreme Court 3030 the Hon'ble Apex Court has held that.

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S.C. NO. 489/2004

“(E)

Penal

Code

(45

of

1860)

S .

1

2

0

-

B

-

C

r

i

m

i

n a l

conspiracy-Proof-Privacy and secrecy are more characteristics of conspiracy, than of loud discussion in elevated

view-Direct

evidence in proof of conspiracy is seldom available.”

place

open

to

public

In the decision reported in AIR 1990 SUPREME COURT 1709 the Hon'ble Apex Court has held that.

“(A)

Penal

Code(1860),

Ss.300,109,120-B-Murder-Conspiracy-

Animosity between accused party and deceased party-Some of accused arrested and imprisoned for ticketless travel just few days before incident-Creates strong suspicion that they voluntarily got arrested to serve as plea of alibi-No evidence however that these accused persons talked amongst themselves to commit the offence-cannot be convicted for conspiracy to commit murder.”

In the decision reported in AIR 2006 SUPREME COURT 35 the Hon'ble Apex Court has held that.

“(A)

Penal

Code

(45

of

1860),

Ss.120-B-Misappropriation

of

gold

35

S.C. NO. 489/2004

while preparing gold ornament used in temple-Alleged conspiracy bet-ween Devaswom Officer and Assistant Commissioner of Devaswom Board-No evidence on record to show agreement between conspirators to misappropriate gold-Accused held not guilty of conspiracy.”

In the decision reported in 2002 Supreme Court Cases (Cri) 1518 the Hon'ble Apex Court has held that. “E. Penal Code 1860 – S.34-Common intention- Common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of the crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to on of others involved in the crime. The subjective element in common intention therefore should be proved by objective test. It is only then that one accused can be made vicariously liable for the acts and deeds of the other co-accused. Common intention can develop on the spur of the moment.”

36

S.C. NO. 489/2004

In the decisions reported in AIR 1975 SUPREME COURT

179, AIR 1963 SUPREME COURT 1413 the

Hon'ble

Apex

has held that. “(B) Penal Code (1860) Section 34 Common intention. The view that even the person not committing the particular crime could be held guilty of that crime with the aid of section 34 if the commission of the act was such as could be shown to be in furtherance of the common intention not necessarily

intended by every one of the participants, is not correct. The common intention must be to commit the particular crime, although the actual crime may be committed by any one sharing the common intention. Then only others can be held to be guilty.”

In the decision reported in AIR 1953 S.C.420 the Hon'ble Apex Court has held that. “(d) Penal Code 1860, Ss.34 and 120-B

and

conspiracy. Where there was no evidence whatsoever of any pre-meditation or of a pre-arranged plan by the assailants of murdering the deceased the mere fact that all the accused were seen at the spot at the time of firing, could not be held

Applicability

scope-Proof

of

37

S.C. NO. 489/2004

sufficient to prove or even to infer a common intention, because unless the possibility as to who amongst them fired the fatal shot has not been eliminated by any evidence on record none of them could be convicted of murder under section 302. Section 34 does not apply to such case. Further, the evidence as to conspiracy under section 120-B IPC, having been rejected, the same evidence cannot be used for finding a common intention under section 34.”

In the decision reported in 2010 AIR SCW 877 the Hon'ble Supreme Court has held that. “(A) Penal Code (45 of 1860), S.34 – Common intention – Existence of – Is a question of fact - Courts, in most cases, have to infer intention from act or conduct of accused or other relevant circumstances – However, criminal liability can arise only when such inference can be drawn with certain degree of assurance.”

In the decision reported in 1977 CRI.L.J.1144 the Hon'ble Supreme Court has held that. “Penal Code (1860), S.302 r/w 34 IPC – Evidence – Evidence of eye-witnesses found totally unacceptable – Held presence of motive and dharias with

38

S.C. NO. 489/2004

the accused were wholly insufficient for sustaining charge of murder.”

In the decision reported in 2003 Supreme Court Cases (Cri) 655 the Hon'ble Supreme Court has held that. “A. Criminal Trial – Circumstantial evidence – Motive – Basis of conviction prosecution though succeeded in proving the motive, failed to establish the necessary link in the circumstantial evidence – held, motive by itself not sufficient to base a conviction.”

14. The decisions relied upon by A2 and A3 are; In

the decision reported in (2003) 3 Supreme Court Cases 353

the Hon'ble Supreme Court has held that. “A. Penal Code 1860 – S.302 – Corpus delicti – Absence of – Effect – Held, even in the absence of corpus delicti it is possible to establish in an appropriate case the commission of murder on appropriate material being made available to the court.” “B. Evidence Act 1872 – S.27 – Discovery – Statement leading to – what if information already with police – Fact regarding discovery of bones of the deceased on the of the statement made by accused – Reliability of, when police already in possession of information about the said fact through another witness – Held on facts the said

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statement as stated to be made by the accused would not lead to any discovery in as much as the information was already in possession of the police.”

In the decision reported in 2004 CRI.L.J.1720 the Hon'ble High Court of Karnataka has held that. “Penal Code (45 of 1860), S.300 – Murder – Circumstantial evidence – Dead body of deceased was found buried in a field belonging to accused – Reasonable proximity between time when deceased was last seen in company of accused and time of death, not established-possibility of anybody else responsible for burying body in field cannot be ruled out since field being not a secluded area – Abscondence alone is not good enough as it could be possible that a person would abscond out of a sense of fear and not necessarily out of a sense of guilt – Alleged recovery of some gold ornaments which had been pledged by accused not having even remotest connection with offence since it belonged to his wife – Circumstances inadequate to constitute a chain and that links in chain are weak and inconclusive.”

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15. In the light of ratio laid down and observations

made in the decisions cited supra, now it is to be seen whether the prosecution has been able to establish beyond reasonable doubt all the circumstances put forth by the prosecution and that if the prosecution has proved each link in the chain of circumstances. It is also to be seen that the cumulative effect of the chain of circumstances placed by the prosecution is sufficient to draw an inference of the guilt of the accused. It is also to be seen that if all the circumstances placed by the prosecution is consistent with the guilt of the accused and they are inconsistent with the innocence of the accused.

16. According to prosecution the dead body was

recovered in a decomposed state in the intervening period of 9.3.2004 and 10.3.2004 in a deep slope valley near Shiradi ghat, in between Sakaleshpura and Upinangady. It is significant to note that A1 has not denied the identity of dead body. A2 and A3 disputed the identity of the dead body as seen from the cross examination of PW68 the investigating officer, PW39 Dr.Rafel Ferambi, PW66

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Dr.N.R.K.Rao the Scientific Officer in CFSL, PW67 D.S.Negi the Scientific Expert in DNA test.

17. It is incumbent upon the prosecution to prove

that the Corpus delicti is of Kum.Chitralekha. The prosecution to prove the identity of the dead body has relied upon the oral evidence of PW5, PW39, PW66 to PW68 and documentary evidence Ex.P100 PM Report, Ex.P105 letter of PW39, Ex.P101 FSL, Ex.P102 and Ex.P103 Opinion of the doctor, and corresponding correlation from the blood samples of PW2 sister Nayanatara and PW3 mother Smt.Sharadha Urs on DNA test Ex.P158 and superimposition examination report Ex.P158. The evidence of PW5 speaks that the gold ring, ear stead on right ear and leg finger ring found on the dead body is of Chitralekha. PW5 is the sister’s husband of deceased Chitralekha. PW5 who is the close relative of Chitralekha is a competent person to speak about the wearing apparels of Chitralekha. Nothing is brought out by A2 and A3 in the cross examination of PW5 to discredit his evidence. It is seen from the evidence of PW38 Dr.Devadas and PW68 the IO, the skull and the mandible

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were preserved for superimposition test. It is seen from the evidence of PW38 and Ex.P100 PM report right upper first premolar shows ceramic cap fixation prosthesis, Mandible shows ceramic cap fixation prosthesis of first molar on left side and temporary filling of caries of posterior ridge of first molar on right side. According to prosecution Kum.Chitralekha taken treatment with PW39 for teeth ailment. The evidence of PW39 specifically states that he has done Ceramic Crown to the teeths of Chitralekha. The evidence of PW39 is in conformity with Ex.P105 and the evidence of PW68. Ex.P157 is the superimposition test report issued by CFSL Hyderabad. The evidence of PW66 indicates that the skull, mandible and photos were examined by morphological and anatomical studies, anthropometry, manual as well as video superimposition techniques for determining sex and identity. The evidence of PW66 is in conformity with Ex.P157. It is evident from Ex.P157 the skull and mandible matches with the photos of deceased Chitralekha. Nothing is brought out by A2 and A3 in the cross examination of PW66 to discredit his evidence. Ex.P158 is the DNA test report issued by CDFD Hyderabad.

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It is in the evidence of PW38 and the postmortem report Ex.P100 the prosecution preserved piece of scalp with hairs, piece of muscle, whole of sternum, right humerus, ulna and radius. The evidence of PW2 and PW3 and PW68 indicates that the blood sample of PW2 and PW3 was taken on 29.3.2004 in the presence of Jurisdictional Magistrate for biological test. The evidence of PW68 indicates that the preserved sternum, scalp hairs and the blood sample of PW2 and PW3 was sent to CDFD Hyderabad through PW64. The evidence of PW68 is corroborated by the evidence of PW64. According to Ex.P158 sternum collected at the time of PM examination is Exhibit-C, Scalp skin with hair is Exhibit-D, the blood sample of PW3 Smt.Sharadha Urs is Exhibit-A and PW2 Nayanatara is Exhibit-E. The oral evidence of PW67 discloses that the positive opinion was given after conducting the test. Nothing is brought by A2 and A3 in the cross examination of PW67 to discard his evidence. Thus the evidence of PW67 proves the contents of Ex.P158. Thus it is clear from Ex.P158 and the oral evidence of PW2 and 3 and which is held to be sternum (Exhibit-C) is from the source of a female origin. The source

44

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Exhibit-C is from the biological spring of the source Exhibit-A and the source of Exhibit-A is the biological mother of the source of Exhibit-C and E. Thus the evidence of PW5, PW39, PW66 to PW68 and Ex.P105, 157 and Ex.P158 clearly proves that Corpus delicti recovered on 10.3.2004 at Shiradi ghat is of Kum.Chitralekha.

18. Ex.P47 is the inquest mahazar said to have been

conducted on 10.3.2004 on the dead body said to be Chitralekha. The substance of inquest mahazar is the description and examination of Corpus delicti said to be of Chitralekha aged 37 years. This document has to be read along with Ex.P100 which is autopsy report said to be conducted on 10.3.2004 from 15.50 to 16 hours to 17 hours. The postmortem report dated;10.3.2004 does not depict confirmed finding on the nature and cause of death. The examination of the said document shows that it is depending on the FSL report. Further in this connection Ex.P102 dated;5.5.2004 which is the letter addressed to ACP, CCB, Bengaluru by Dr.P.K.Devadas PW38 indicates that the said professor gave his opinion after perusing the FSL

45

S.C. NO. 489/2004

report which reads thus “ On perusal of PM Report, FSL Report and your letter stated above. Since the body was in a decomposed state, during postmortem examination no pathology to suggest any disease sufficient enough cause death was noted, there were no ante mortem fractures in any of the bones examined; FSL Chemical Analysis report of Viscera sent did not detect any poison, pesticides, barbiturates, benzodiazepines, Toxic metal ions, and onions with limited information available to me regarding manner of death. I am of the opinion that it is not possible to opine as the cause of death of Miss Chitralekha Urs”. Further in this connection Ex.P103 dated;7.5.2004 which is the letter addressed to ACP, CCB by PW38 Dr.P.K.Devadas indicates that the said professor gave final opinion pursuant to the letter of ACP as “I am of the finding that possibility of suffocation and strangulation leading on to the death cannot be ruled out in this case”. Thus Ex.P103 which is the final opinion of the doctor does not give confirmed finding regarding the cause of death. The contextual reading of the said documents reflects that the report is hesitant and not firm based on reasons. Ex.P157 which is the examination

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report issued by CFSL Hyderabad is regarding the conclusion that the skull and mandible could have belonged to person in photograph namely Chitralekha.

19. Admittedly in the context of the circumstances

the full pledged postmortem report nor the inquest report nor chemical examination report can provide materials to conclude that the death of Chitralekha dated;19.1.2004 was homicidal. However it requires the analysis of evidence of other witnesses. Hence finding to this effect is reserved to be given after the analysis of other materials on record.

20. The first chain of circumstance put forth by the

prosecution is that A1 to A3 last seen together in the company of deceased Chitralekha when the latter was alive on 19.1.2004 at No.46, Palm Grove Residency, Palace Road, Bangalore, and A2 and A3 were found through out in the car in which Chitralekha's dead body was present. The prosecution to prove the last seen together theory has relied upon the oral evidence of PW1 to PW6, PW22 to PW25, PW34 to PW36 and documentary evidence Ex.P82 to

47

S.C. NO. 489/2004

Ex.P89, Ex.P179 and Ex.P179(a). Ex.P82, Ex.P83 and Ex.P179 are the call details of Mobile No.9845008687 belongs to deceased Kum.Chitralekha. Ex.P84 and Ex.P85 are the call details of Mobile No.9845533300 stated to have used by A1. Ex.P86 and Ex.P87 are the call details of Mobile No,9845515025. Ex.P89 is the call details of Mobile No.56707911 of PW1. PW1 to PW3 do not whisper having seen the accused in the company of the deceased. They speak and refer more on telephonic conversation ought to have taken place. No conversation details are forthcoming with independent probative force. Likewise non of the prosecution witnesses have whispered having seen the accused no.1 and deceased Chitralekha together or Chitralekha going to the house of A1 or the designated place of A1. A1 said to be the daughter of former Chief Minister of Karnataka and the deceased is the daughter of former Judge, High Court of Karnataka. It is not the case of the prosecution that A1 asked the deceased to come to a no mans place or during mid night so as to escape the sight of others. Which theory also is not probable for the reason that if she was directed or asked her to do so, it could have

48

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generated doubt in her mind as she was said to be upcoming advocate working in a reputed firm Mrs.Amarchand Mangaldas legal practitioners. It is also the case of the prosecution that the deceased was asked by A1 on 19.1.2004 at 9.45am to come to house No.46, of Palm Grove Nursery. No further explanation is given as to what happened between 9.45am to 6.30pm on that day and what transpired between the parties. The complaint Ex.P1 does not indicate that the deceased was with A1 at Palm Grove Nursery at 6.47PM. According to Ex.P1 when PW1 called to the mobile of deceased she was told by the deceased that she was meeting hers cousin at Palm Grove Nursery. As per Ex.P1 the mobile phone of deceased was last used in the Rajajinagar area. There is no explanation offered by the prosecution as to who has used the mobile in Rajajinagar area. If the contention of the prosecution that deceased was in Palm Grove Nursery in the evening there will not be any chance in using the same in Rajajinagar area. This circumstance emanates doubt about the presence of deceased at Palm Grove Nursery.

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21. Ex.P83 call details of mobile phone 9845008687 and the oral evidence of PW6 indicate that the deceased spoke with PW6 at 6.50-16 for about 43 seconds. The evidence of PW6 indicates that the deceased was in Palm Grove Nursery at that time. It is pertinent to note that the call details Ex.P83 do not suggest the tower location of mobile no.9845008687 at 6.50-16PM on 19.1.2004. In the absence of tower location mere on the oral evidence of PW6 it cannot be held that the deceased was in Palm Grove Nursery. The material witnesses from the point of view of prosecution who stated to have seen the accused persons in the company of deceased at No.46, Palm Grove Nursery, Palace Road on 19.1.2004 at 6.30pm onwards are PW22 to PW25 and PW34 to PW36. It is significant to note that PW22 Shivanna, PW23 Smt.Kavitha, PW24 K.S.Jayaraman, PW25 Ningappa, PW34 Basavaraj, PW35 Gajendra Rao, PW36 Paramesh have turned hostile and not supported the case of the prosecution. Nothing has been established by the learned Public Prosecutor in the cross examination of PW22 to PW25, PW34 to PW36 to believe that they are telling false to help the accused. The

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learned Special Public Prosecutor contended that the statements of PW22 and PW25 have been video graphed and marked as Ex.P148 and sufficient to say that PW22 and PW25 are giving false evidence. The call details Ex.P82 to Ex.P89 and Ex.P179 relied upon by the prosecution does not connect any chain or link, and on the other hand, they fail to stand as circumstance. It is also necessary to point out that no version of the call details or what transpired between the parties is provided.

22. The statement of PW22 and PW25 recorded by

police as per Ex.P148 cannot carry up gradation or become proof by themselves just because that they are video graphed they cannot assume the status of proof. The statements recorded through video utmost said to be a pictorial statement recorded under section 161 of Cr.PC by the Investigating agency. Such statements are hit by the provisions of section 162 of Cr.PC and cannot be make use of by the accused or the prosecution except to contradict such witness by the prosecution with the permission of the court in the manner provided by section 145 of Evidence

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Act. It is laid down by the Hon'ble Orissa High Court in its decision reported in 2009 CRI.L.J.1676 that the statement of the accused recorded by police in video cassettes regarding place of concealment of incriminating articles such statement is a piece of information which facilitates discovery of article and is admissible under section 27-In order to allow display of video cassettes, it is necessary for trial court to verify video cassettes to above extent only so that interest of accused can be safeguarded. Looking to the aforesaid judgment rendered by Hon'ble Orissa High Court no credence be attached to the statement of witnesses video graphed under section 161 of Cr.PC. It is the established principles that the credibility is given to the dying declaration alone when it relates to cause of death that too it must be far away from discrepancy. Videography without being corroborated by a sworn testimony, more over when contradicted by the very person who has video graphed has no legal efficacy particularly when there is no corroboration. Therefore, no importance be attached to the pictorial statement Ex.P148 in the light of section 65-B of evidence Act. PW41 stated to be the car driver of A1 turned hostile

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and not supported the case of the prosecution. Nothing has been made out in the cross examination of PW41 to believe that he is telling false to help the accused. Thus the prosecution does not derive any assistance from the evidence of PW41 to connect the accused in the alleged crime. Absolutely there is no evidence to indicate that A1 to A3 were seen in the company of deceased at Palm Grove Nursery, Bangalore on 19.1.2004 at 6.30PM onwards. Thus the prosecution failed to prove the last seen together theory.

23. According to prosecution deceased went to Palm

Grove Nursery, in her car bearing no.KA-03-MC-1206 at 6.30PM and she was killed by A2 and A3 at the instigation of A1 by suffocation and strangulation. It is further the case of the prosecution that A2 and A3 left Palm Grove Nursery in a car bearing no.KA-03-MC-1206 along with the dead body of Chitralekha and was in the car through out. The material witnesses who could speak about this fact is PW22 and PW25. It is to be noted that PW22 and PW25 turned hostile and not supported the case of the prosecution. The

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video graphed statement Ex.P148 is only a pictorial statement recorded under section 161 of Cr.PC. No credence be attached to Ex.P148 in view of the evidence of PW22 and PW25. The prosecution also relied upon the oral evidence of PW17 and PW68. It is seen from the evidence of PW68 that A2 and A3 filled petrol to the car bearing no.KA-03-MC-1206 in Trinity Petrol Bunk near Nelamangala while moving towards Sakaleshpura. PW17 and CW25 stated to be the workers in petrol bunk who filled petrol to the car and have seen A2, A3 and the deceased in the car on the night of 19.1.2004. It is pertinent to note that PW17 turned hostile and not supported the case of the prosecution. Nothing has been made out in the cross examination of PW17 to believe that he is telling false to help the accused persons. Thus the prosecution does not derive any assistance from the evidence of PW17. The prosecution has not examined CW25 to corroborate the evidence of PW68. The prosecution further relied upon the beat/petrol book Ex.P116. Ex.P116(a) to (d) are the entries and signatures made by SHO of Manglore Rural Police Station on 19.1.2004 from 23hours to 6am on

54

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20.1.2004 except mentioning the name of the car no.KA-03-MC-1206 Hundai no further details are mentioned at Ex.P116(d), moreover the wordings at Ex.P116(d) does not appear to be credible in the light of mentioning car no.KA-04-MC-1206 in the complaint. However explanation is offered in the evidence by PW1 as KA-03-MC.1206 but the same is not convincing. Further on reading of Ex.P116(a) the signatory therein PW47 has mentioned various vehicle numbers and also has reported that he has checked all the vehicles mentioned therein and did not find anything special. This exactly goes against the last seen theory of prosecution and carrying of dead body of Chitralekha by the accused. Further direction of movement of the vehicle is not forthcoming. In various entries mentioned in Ex.P116 and different dates that surveillance is also made on suspicious persons in the vehicles, however, in Ex.P116(d) according to the entry it is mentioned as no abnormality was found. In Ex.P116 even the hand writing of the words KA-03-MC-1206 Hundai does not appear to be of the person who has written rest of the entries nor it bears the signature for correction. PW47 the beat constable who

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was on duty at Padeel Junction check post on 19.1.2004 has deposed that the car bearing no.KA-03-MC-1206 passed

the check post at 5.00am on 20.1.2004. Dinesh constable made entry in the book Ex.P116 and allowed the vehicle to pass through. PW47 stated that A2 and A3 were in the car.

It is stated by PW47 in the cross examination that there was

a clash bet-ween them and A2 and A3 as they were in hurry

to pass the check post. Due that he remembers A2 and A3. In this connection nothing is forthcoming any report regarding clash or the obstruction. Looking to the contents of Ex.P116 the version of PW47 that he remembers the accused due to clash appears to be an after thought and emanates doubt. Thus the evidence of PW22, PW25, PW17, and PW47 do not prove the fact that A2 and A3 left Palm Grove Nursery, Palace road, Bangalore along with the dead body of Chitralekha in a car bearing no.KA-03-MC-1206.

24. According to prosecution A1 was indebted to a

tune of Rs.70,00,000/- to the deceased Chitralekha. The

prosecution has produced cheques Ex.P2 to Ex.P24,

and

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S.C. NO. 489/2004

promissory notes Ex.P25 to Ex.P31. The prosecution claims that the financial transaction and to escape from the obligation of repayment generated motive in the accused. The prosecution also claims that there was conspiracy. It is necessary to note that the offence under section 120-B of IPC which relates to conspiracy places responsibility on the prosecution to establish the each stage, stage of plan, scheme and the activities of the accused with their proposal to commit the offence. The conduct of the accused prior to the date of commission of the offence, on the date of commission of offence and after the date of commission offence have to be established invariably. The evidence that relied upon by the prosecution is call details of mobile phones and the photos of A1 to A3 taken together Ex.P98, Ex.P99, prajavani paper cutting Ex.P56. Admittedly A1 is not the registered consumer of Mobile Phone no.9845533300. Ex.P84 the phone bill evident that PW40 who is no other than the daughter of A1 is the registered consumer of Mobile Phone No.9845533300. In this back ground it is for the prosecution to establish that PW40 authorized A1 to use her mobile phone. It is to be noted that

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PW40 turned hostile and not supported the case of the prosecution. More over in the circumstances when doubt arises regarding repayment and phones are made, recording the conversation has become a probable factor. No material is forthcoming regarding conversation. Nothing is brought out in the cross examination of PW40 by the prosecution to believe that she is telling false to help the accused no.1. It is seen from the cross examination of PW40 she does not deny the calls made to the Mobile Phone of deceased Chitralekha on 19.1.2004 in the morning and the same was picked by PW3. Admittedly A2 was not the registered consumer of mobile phone number-9845515025. According to prosecution itself one Lakshman Rao who is no other than the father of A3 is the registered consumer. There is nothing on record to indicate that A2 was authorized by said Lakshman Rao to use the said mobile. It is pertinent to note that the said Lakshman Rao not examined though cited as a witness. Therefore an adverse inference has to be drawn against the prosecution in respect of use of mobile phone of Lakshman Rao by A2. PW40 also admits having called to mobile of one Lakshman Rao on

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19.1.2004 who was the friend of her grand father and a landlord. PW42 denied having authorized A1 to use his mobile phone-9880005999 alleged to have seized as MO.32. According to prosecution MO.31 and MO.32 mobile phones and a Prajavani paper dated;17.1.2004 as per Ex.P56 seized from the possession of A1 under the mahazar Ex.P55 in the presence of PW20. On going through the cross examination of PW20 it is seen that he has acted as witness in the cases filed by the CCB on earlier occasion. PW20 admits the contents of Ex.D12 and stated that after he went to puttur he was called by the CCB Police, Bangalore to act as pancha. Looking to the admission made by PW20 the contention of the accused that he is a police stock witness and having interest in the proceedings appears to be probable. There is no reason as to why PW68 not collected the local panchas. It is not the case of the prosecution that the local people refused to act as panchas nor there was dearth for panchas in the local area. Looking to the evidence of PW20 and PW68, the evidence of PW42 that he and PW40 handed over the mobile phones to the police held to be probable. Therefore it shall have to be

59

S.C. NO. 489/2004

stated that the prosecution has failed to prove the seizure of MO.31 and MO32 from the possession of A1 on 16.3.2004 under Ex.P55. Ex.P56 is a daily news paper and the contents do not carry presumptive value. It is seen from Ex.P56 A1, A2 and PW16 Harikode participated in the inaugural function of 'Ursu Samyuktha Paksha'. Mere participating in a political party function A1 and A2 cannot be connected for conspiracy. Therefore Ex.P56 cannot be a circumstance to connect A1 in criminal conspiracy. The evidence of PW29 and PW30 disclose that the deceased Chitralekha was the registered consumer of Mobile No's 9845008687, 56707687 and PW1 Hema Mandanna is the registered consumer of Mobile no.5670911. It is significant to note that the accused have not disputed the ownership of these mobiles and call details.

25. It is contended by the prosecution that MO.33,

MO.34, Ex.P98 and Ex.P99 were seized at the instance of A2 under the mahazar Ex.97 in the presence of PW37. PW68 is the IO speaks about the seizure of MO.33, 34, Ex.P98 and Ex.P99 on the voluntary information of A2 under the

60

S.C. NO. 489/2004

mahazar in the presence of PW37. Let me scrutinize whether the evidence of PW37 is reliable and be acted upon. It is has come up in the cross examination of PW37 that he is running a canteen on footpath in front of Kapali Theatre, Subedar Chatram Road from 6am to 9pm. It is seen from the cross examination of PW37 that he has seen PW68 when he was working as a Inspector in Upparpet Police Station and acted as a witness in theft and robbery cases. Looking to the admission made in the cross examination of PW37 he appears to be a stock witness of the Police. Probably PW37 doing business on the footpath under the mercy of police. With this obligation PW37 supported the evidence of PW68 appears to be probable. There is no reason as to why PW68 not collected the local people to act as panchas as contemplated under law. Therefore it is not safe to act on the interested testimony of PW37. Thus the evidence of PW37 is discarded as unworthy of credit. Therefore mere on the evidence of PW68 it cannot be held that MO.33, MO.34, Ex.P98 and Ex.P99 were seized under the mahazar Ex.P97. Thus the prosecution failed to prove the seizure of Mobile Phone No.9845515025 from A2.

61

S.C. NO. 489/2004

Ex.P98 and Ex,P99 the photo graphs disclose that A1 to A3 participated in a political function. Participating in a political function would not amounts participation in a criminal conspiracy. Therefore Ex.P98 and Ex.P99 do not prove the conspiracy of A1 to A3.

26. The evidence of PW22 to PW25, PW34 to PW36 and PW41 are relevant to know the conduct of A1 at the time of relevant stage. It is significant to note that these witnesses turned hostile and not supported the case of the prosecution. The evidence of PW22 to PW25, PW34 to PW36 and PW41 do not indicate the presence of A1 nor A2 and A3 at Palm Grove Nursery, Palace road, Bangalore. The evidence of PW1 to PW3 disclose that A1 was all along with them on the night of 19.1.2004, and subsequently visiting their house and consoling PW3 about the missing of deceased Chithralekha. A1 to A3 were available to the investigating agency all along. It is seen that PW49, PW63 who investigated at the first instance have interrogated the accused persons and recorded their say. This would go to

62

S.C. NO. 489/2004

show that A1 to A3 were not absconding immediately after the commission of the offence. There is no evidence to indicate that A1 influenced the inmates of place of alleged incident from disclosing about the incident and hers presence at the relevant point of time along with the deceased. It is an admitted fact that A1 approached the Hon'ble High Court when polygraph test was ordered and got it quashed. A1 exercised hers right under the law and got the order directing her for polygraph test quashed. Approaching Hon'ble High Court under legal process by A1 cannot be find fault with and no inference be drawn on her conduct. There is total absence of evidence oral and documentary or circumstantial to establish the criminal conspiracy among the accused to murder Chitralekha, and the prosecution has failed to establish the different stages of conspiracy among the accused as contemplated in the meaning of criminal conspiracy as defined under section 120-B of IPC.

27. The prosecution has to establish the conspiracy,

chain of circumstances without any delink finally pointing at

63

S.C. NO. 489/2004

the guilt of the accused. More over the prosecution also claims common intention among the accused to murder Chitralekha by the accused and thereafter to cause the disappearance of the dead body. Mere recovery of dead body in a decomposed status and the interested testimony of the mother and sister of the deceased cannot be of any avail to the prosecution. The lengthy evidence of IO PW68 appears the completion of formality regarding the recovery of dead body and does not disclose incriminating circumstance against the accused. Here it is also to be noted that having seen the dead body on 9.3.2004 he decides to come on 10.3.2004 by arranging guarding. There was no impediment for him to conduct the inquest mahazar on the same day on 9.3.2004.

28. It is also worth mentioning about the further voluntary statement of A3 said to have been recorded as per Ex.P163 for recovery of certain jewelry worn by deceased Chitralekha. This approach of CW7 not enquiring at the first instance throws doubt and suspicious on the mode adopted by the investigating authority.

64

S.C. NO. 489/2004

29. CW35 and CW36 are cited as mahazar witnesses

for the accused no.2 and 3 showing the place of incident. CW36 is not examined. CW35 is examined as PW15. The evidence of PW15 does not provide sequence of events and the very version appears to be bold and vague. Therefore no credence be attached to the evidence of PW15. Thus the evidence of PW15 do not corroborates the evidence of

PW68.

30. The prosecution claims the existence of

debtor and creditor relationship between A1 and Chitralekha that too, to the tune of Rs.70,00,000/-. Thus the exchange of phone calls and even hot exchange of words cannot be ruled out. A1 does not dispute the issuance of cheques and promissory notes as per Ex.P2 to P24 and Ex.P25 to Ex,P31. A1 not disputed hers and her husbands’ signatures Ex.P57 to Ex.P68. Therefore it is unnecessary to discuss the evidence in respect of these aspects. But what is absent is failure on the part of prosecution to establish the same as motive.

65

S.C. NO. 489/2004

31. No doubt the negotiable instruments produced

by the prosecution said to have been executed by the accused no.1 may carry presumptive value but this court cannot give finding on the same, more over the PW2 and PW3 have not chosen to urge for the remedy before the proper form. PW7, PW8 and PW10 are the friends of deceased Chitralekha speaks that they lend money to A1 through the deceased. There is nothing on record to indicate that PW7, PW8 and PW10 have taken steps to recover the same under law. What is material to the case is whether the financial transaction has functioned as motive for the offence.

32. The circumstances in a case of given kind to be

in chain without any dealing or presence of the accused in the company of the deceased while the latter was alive, direct or circumstantial witnesses for the same, corroborating evidence to show the dead body, credible mahazar for the recovery of dead body and the ornaments worn by the deceased. The mahazars invariably have to be proved to show that the articles were seized from A3. The

66

S.C. NO. 489/2004

material witnesses who are cited for having seen the accused namely PW17, PW22 to PW25, PW35 to PW37 have turned hostile. Thus the prosecution cannot claim to have established circumstantial evidence in chain finally pointing to the guilt of the accused. Admittedly prosecution does not rely on the direct evidence nor the same is adduced. The prosecution also relied upon extra judicial confession said to have been made by A1 to PW16 Hari Kode and PW21 Ravishankar shetty. The evidence of PW16 and PW21 adduced to prove the extra judicial confession. It is pertinent to note that the evidence of PW16 and PW21 does not speak about the confession made to them by A1. It is to be noted that PW16 and P21 turned hostile and not supported the case of the prosecution. Nothing is brought out by the prosecution to believe that PW16 and PW21 are telling false to help the accused. Thus the prosecution does not derive any assistance from the evidence of PW16 and PW21. It is seen from the evidence of PW16 that A1 used to visit Palm Grove Nursery, where the office of 'Arasu Samyuktha Paksha' situated. But that may not be a ground to connect A1 in the alleged crime.

67

S.C. NO. 489/2004

33. By it is clear that the prosecution has failed to

establish the criminal conspiracy among the accused to eliminate Chitralekha from this world, the circumstantial evidence in a chain to murder the said Chitralekha by the accused in furtherance of common intention or to cause the disappearance of dead body.

34. The evidence of PW1 to PW3 appears to be

more on the basis of suspicious than on direct knowledge. The evidence of IO appears to be a combination of formality and exaggerations than substance. The entire analysis of other evidence placed by the prosecution does not supports the medical evidence to held that the death of deceased Chitralekha is homicidal. Therefore it shall have to be stated that the prosecution has failed to prove that the death of Chitralekha is homicidal.

35. In view of the foregoing discussion, I hold that

the prosecution has failed prove the circumstances put forth

by it and the evidence placed by the prosecution in proof of the above circumstances, is not reliable to hold that the

68

S.C. NO. 489/2004

circumstances established by are compatible with the

hypothesis of the guilt of the accused. Therefore i answer

above points accordingly holding that the prosecution has

failed to prove beyond reasonable doubt, the charges

framed against the accused. In the result, I proceed to pass

the following.

O R D E R

Acting under section 235(1) of Cr.PC A1 to A3 are hereby acquitted of the offences punishable under sections 120-B, 302, 201 R /w 34 of IPC. A1 to A3 are set at liberty forth with if they are not required in any

other cases.

The interim order passed in favour of PW3 in respect of MO.1 to MO.28 is made absolute.

MO.31 Nokia mobile hand set is ordered to be returned to PW40 Yashaswini after appeal period is over.

MO.32 Motorola Mobile hand set is ordered to be returned to PW42 Sooraj.M.N after appeal period is over.

69

S.C. NO. 489/2004

MO.34 Nokia Mobile hand set is ordered to be returned to A2 Madhukumar after appeal period is over.

MO.33 Motorola Mobile hand set is ordered to be confiscated to the state.

MO.29, MO.30, and MO.35 to MO.45 are ordered to be destroyed after appeal period is over.

[Prepared by me on the Lap-Top, Print out by me, corrected and then pronounced by me in open court dated this day

the 27 th May, 2010]

[K.AMARANARAYANA] Presiding Officer,FTC-1.

ANNEXURES;

No. of witnesses examined on behalf of the prosecution;

PW1

;

Smt.Hema Mandanna.

PW2

;

Nayanatara Urs.

PW3

;

Smt.Sharadha Urs.

PW4

;

Revathi Rao.

PW5

;

Ashok Mandanna.

PW6

;

Naval Nariyal Wala.

PW7

;

Parastar Jal.

PW8

;

Dinesh Ravi.

PW9

;

Usman.

PW10

;

Rajesh Begur.

70

S.C. NO. 489/2004

PW11

;

Shekar Shetty.

PW12

;

Adarsha.

PW13

;

S.Ramesh.

PW14

;

Sunil Kumar.

PW15

;

K.P.Sathyanarayana.

PW16

;

Hari Khoday.

PW17

;

V.Rudresh.

PW18

;

Suresh Shetty.

PW19

;

Suresh Shetty.

PW20

;

R.Ashok Chandra.

PW21

;

Ravishankar Shetty.

PW22

;

Shivanna.

PW23

;

Smt.Kavitha.

PW24

;

K.S.Jayaraman.

PW25

;

Ningappa.

PW26

;

K.A.Ganapathi.

PW27

;

T.R.Jayashankaran.

PW28

;

Narendra K.Guptha.

PW29

;

Stanley.

PW30

;

Srinivas.

PW31

;

B.Anantha.

PW32

;

Venkatesh.

PW33

;

K.V.Krishna.

PW34

;

Basavaraj.

PW35

;

Gajendra Rao.

PW36

;

T.B.Paramesh.

PW37

;

Jagannath.

PW38

;

Dr.P.K.Devadas.

PW39

;

Dr.Ramfel Fa Farambi.

PW40

;

Yashashvini.

PW41

;

Simon.

71

S.C. NO. 489/2004

PW42

;

M.N.Suraj.

PW43

;

Jayaprakash.

PW44

;

V.G.Naik.

PW45

;

Dhanaraja Char.

PW46

;

Gavankar.

PW47

;

Shivaprakash.

PW48

;

Sundarachar.

PW49

;

R.Ramachandran.

PW50

;

Gachinakatty.

PW51

;

Yogananda.

PW52

;

B.N.Narsegowda.

PW53

;

Veerappa Kumar.

PW54

;

Gurappa Reddy.

PW55

;

G.S.Raghu.

PW56

;

Ravikumar.

PW57

;

Nawaj Khan.

PW58

;

Gopal Shetty.

PW59

;

Syed Ameer.

PW60

;

Murali Mohan.

PW61

;

Syed Asgar Imam.

PW62

;

Jetendranath.

PW63

;

Abdul Azim.

PW64

;

G.N.Gopal Gowda.

PW65

;

K.B.Ramesh.

PW66

;

Dr.NRK Rao.

PW67

;

D.S.Negi.

PW68

;

B.K.Shivaram.

No. of Documents marked on behalf of the prosecution; Ex.P1 ; Complaint.

Ex.P2 to 24

;

Cheques.

72

S.C. NO. 489/2004

Ex.P25 to30

;

6 Promissory Notes.

Ex.P31

;

Three letters.

Ex.P32

;

Letter.

Ex.P33

;

Cheque.

Ex.P34

;

Letter.

Ex.P35

;

DNA Identification Form-2.

Ex.P36

;

Police Notification.

Ex.P37

;

Identification Form with photo of

PW3.

Ex.P38

;

Guarantee Card.

Ex.P39

;

Receipt.

Ex.P40 to 43;

Four Photos.

Ex.P44

;

Receipt issued by PW4.

Ex.P45

;

Cheque.

Ex.P46

;

Spot Mahazar.

Ex.P47

;

Inquest Mahazar.

Ex.P48

;

Recovery Mahazar.

Ex.P49

;

Mahazar.

Ex.P50

;

Statement of CW47.

Ex.P51

;

Statement of PW16.

Ex.P52

;

Statement of CW26.

Ex.P53

;

Mahazar.

Ex.P54

;

Mahazar.

Ex.P55

;

Mahazar.

Ex.P56

;

Prajavani News Paper.

Ex.P57 to 62;

Signature of A1.

Ex.P63 to 68;

Signatures of husband of A1.

Ex.P69

;

Statement of PW21.

Ex.P70

;

Statement of PW22.

Ex.P71

;

Statement of PW23.

Ex.P72

;

Statement of PW24.

73

S.C. NO. 489/2004

Ex.P73

;

Statement of PW25.

Ex.P74

;

SBI Bank Communication.

Ex.P75

;

Indian Bank Account.

Ex.P76

;

Letter dated;8.4.2004.

Ex.P77

;

Bank Challan.

Ex.P78

;

Statement of Abudhabi Bank.

Ex.P79

;

Form No.60.

Ex.P80

;

Account Opening Form.

Ex.P81

;

Specimen Signature Card.

Ex.P82

;

AIR tel Bill.

Ex.P83

;

Call details of mobile

no.9845008687.

Ex.P84

Ex.P85

;

;

Ex.P86

No.9845515025.

;

Mobile Bill. Out going call list of mobile

No.984553330.

Call details of Mobile

Ex.P87

;

Outgoing call details.

Ex.P88

;

Covering letter.

Ex.P89

;

Call details of Mobile

no.8056707911.

Ex.P90

;

Call details of Mobile No.5670687.

Ex.P91

;

Rough Sketch.

Ex.P92

;

Spot Sketch.

Ex.P93

;

Statement of PW33.

Ex.P94

;

Statement of PW34.

Ex.P95

;

Statement of PW35.

Ex.P96

;

Statement of PW36.

Ex.P97

;

Mahazar.

Ex.P98

;

Photo.

Ex.P99

;

Group Photo.

74

S.C. NO. 489/2004

Ex.P100

;

P.M.Report.

Ex.P111

;

FSL Report.

Ex.P102

;

Final opinion.

Ex.P1O3

;

Final opinion.

Ex.P104

;

Letter.

Ex.P105

;

Letter.

Ex.P106

;

Copy of letter.

Ex.P107

;

Letter.

Ex.P108

;

D.D.

Ex.P109

;

Statement of PW40.

Ex.P110

;

Statement of PW41.

Ex.P111

;

Statement of PW42.

Ex.P112

;

Mahazar.

Ex.P113

;

FSL Report.

Ex.P114

;

FSL Report.

Ex.P115

;

Sample Seal.

Ex.P116

;

Nakabandhi Book.

Ex.P117

;

FIR.

Ex.P118

;

Zerox Copy of W.P.NO.5445.

EX.P119

;

Report of PW49.

Ex.P120

;

Complaint of PW49

Ex.P121

;

Report of PW50,

Ex.P122

;

Chit.

Ex.P123

;

Small diary.

Ex.P124

;

Report of PW50.

Ex.P125

;

Report of PW51.

Ex.P126

;

Letter.

Ex.P127

;

Report of PW52.

Ex.P128

;

FIR of missing complainant.

Ex.P129

;

Report.

Ex.P130

75

S.C. NO. 489/2004

to

;

Photos.

Ex.P147

Ex.P148

;

Video Cassette.

Ex.P149

;

Telephone Number Letter.

Ex.P150

;

Handwriting Experts report.

Ex.P151

;

Sample Seal.

Ex.P152

;

Reasons.

Ex.P153

;

Memo dated;7.2.2004.

Ex.P154

;

PF.

Ex.P155

;

PF.

Ex.P156

;

Report.

Ex.P157

;

Examination Report.

Ex.P158

;

Report.

Ex.P159

;

Covering Letter.

Ex.P160

;

Voluntary statement of A2.

Ex.P161

;

Voluntary statement of A3.

Ex.P162

;

Report.

Ex.P163

;

Further Voluntary statement of A2.

Ex.P164

;

Rough Sketch.

Ex.P165

;

Rough Sketch.

Ex.P166

;

Further Voluntary St. of A1.

Ex.P167

;

Tax Paid receipts.

Ex.P168

;

Tax paid receipts.

Ex.P169

;

Report.

Ex.P170

;

SHD Extract dt;19.1.2004.

Ex.P171

;

Duty roaster.

Ex.P172

;

Covering letter.

Ex.P173

;

SHD Extract.

Ex.P174

;

Mahazar dated;9.6.2004.

Ex.P175

;

Typed letter.

Ex.P176

;

Cheque of Indian Bank.

76

S.C. NO. 489/2004

Ex.P177

;

Bank endorsement.

Ex.P178

;

Receipt of registration firms.

Ex.P179

;

Call details of Airtel of deceased

Material objects marked on behalf of prosecution;-

MO.1 to 3 ;

3 Gold Kadaga,

MO.4

;

Snake design Chain,

MO.5

;

Venkateshwara dollar.

MO.6

;

Heart design ring.

MO.7

;

Gold Ring.

MO.8

;

Gold Ring.

MO.9

;

Gold Ring with Elephant hairs.

MO.10

;

Jallery design Ring.

MO.11

;

Gold Plain Ring.

MO.12

;

Ring with Diamond.

MO.13

;

Ring with diamond.

MO.14

;

Gold Ring with diamond.

MO.15

;

Green stone ring.

MO.16

;

Ring with white stones.

MO.17

;

Gold Ring.

MO.18

;

Platinum like ring.

MO.19

;

Silver leg finger ring.

MO.20

;

Ladies watch.

MO.21

;

6 Stones.

MO.22

;

Srilanka 10 rupee note.

MO.23

;

Singapur dollar note.

MO.24

;

USA Dollar.

MO.25

;

Gold Ring.

MO.26

;

Gold leg finger ring.

MO.27

;

Gold ear steads.

77

S.C. NO. 489/2004

MO.28

;

Hyundai Car-KA-03 – MC 1206.

MO.29

;

Mud Bottle.

MO.30

;

Mud Bottle.

MO.31

;

Nokia Mobile.

MO.32

;

Motorola Mobile

MO.33

;

Black Motorola Mobile.

MO.34

;

Blue White Nokia Mobile.

MO.35

;

Skull and Mandible.

MO.36 to 41

;

Photos.

MO.42

;

Box.

MO.43

;

Bottle.

MO.44

;

Bottle.

MO.45

;

Bones.

No. of witnesses examined on behalf of the defense;

--Nil--

No. of documents marked on behalf of the defense;-

Ex.D1

to D6;

Portions of statement of PW9.

Ex.D7

;

Statement of PW7.

Ex.D8

;

Statement of PW8.

Ex.D9

;

Statement of PW4.

Ex.D10

;

Statement of PW4.

Ex.D11

;

Statement of PW3.

Ex.D12

;

Certified copy of PW20.

Ex.D13 & 14;

Statement of PW20.

Ex.D15

;

Portion of Ex.D36.

[K.AMARANARAYANA] Presiding Officer, FTC-1 Bengaluru.

78

S.C. NO. 489/2004

Judgment is pronounced in the open court. The operative portion of the judgment reads thus:

O R D E R

Acting under section 235(1) of Cr.P.C. A1 to A3 are hereby acquitted of the offences punishable under sections 120-B, 302, 201 r/w 34 of IPC. A1 to

79

S.C. NO. 489/2004

A3 are set at liberty forthwith if they are not required in any other cases.

The interim order passed in favour of PW3 in respect of MO.1 to MO.28 is made absolute.

MO.31

Nokia

Mobile

hand

set

is

ordered

to

be

returned

to

PW40

Yashaswini

after

appeal

period

is

over.

MO.32 Motorola mobile hand set is ordered to be returned to PW42 Sooraj. M.N. after appeal period is over.

MO.34 Nokia Mobile hand set is ordered to be returned to A2 Madhu after appeal period is over.

MO.33 Motorola Mobile hand set is ordered to be confiscated to the state.

80

S.C. NO. 489/2004

MO.29, MO.30 and MO.35 to MO.45

are ordered to be destroyed after

appeal period is over.

[K.AMARANARAYANA] Presiding Officer, FTC-1, Bengaluru.