State By Mico Layout Police Bangalore City vs Mohammed Thoseef

N. Ananda, J.—The respondent (hereinafter referred as ''accused No. 3'') was tried and acquitted of an offence punishable under section 302 IPC. Accused 1 & 2 were juveniles in conflict with law. Therefore, the case against them was separated.

It is the case of prosecution that on 12.03.2009 at about 9 p.m., accused No. 3 along with accused 1 & 2 committed the murder of deceased Mubarak in BDA vacant land situate between Corporation Park and XV and XVI main road of Tavarakere Road. It is alleged that there was previous enmity between deceased Mubarak and accused 1 to 3. Accused 1 to 3 were frequently riding their motorcycles in front of chicken shop owned by PW1, wherein deceased was an employee, PW1 and deceased had taken strong objections for the conduct of the accused. There were frequent quarrels between them. On 12.03.2009 at about 9 p.m., accused 1 to 3, PW1 and deceased Mubarak had gone near BDA Park. There was a quarrel. Accused 1 to 3 assaulted deceased Mubarak with knives and caused his death.

The learned Sessions Judge on appreciation of evidence adduced by prosecution has held that prosecution has failed to prove that accused No. 3 had shared common intention with accused 1 & 2 and assaulted the deceased and committed his murder.

We have heard Sri Vijayakumar Majage, learned HCGP for State and Sri Mohan Bhat, learned counsel for accused No. 3.

As could be seen from medical evidence of PW15-Dr. Verghese, Professor and Head of the Department of Forensic Science at St. John''s Medical College Hospital, deceased Mubarak had suffered multiple injuries, which were as many as five in number and the death was due to shock and haemorrhage. The homicidal death of Mubarak has not been controverted by accused.

It is the case of prosecution that there was previous enmity between accused 1 to 3 on one side and deceased Mubarak and PW1 on the other side. The accused were frequently riding motorcycles in front of chicken shop of PW1, of which deceased Mubarak was an employee. Both PW1 and deceased Mubarak had taken exception for the conduct of accused. On that account, there was a quarrel between accused 1 to 3 on one side and PW1 and deceased Mubarak on the other side.

The prosecution has examined the mother of deceased Mubarak (PW3-Dilshad) and the elder sister of deceased Mubarak (PW4-Riyana). PW3 & PW4 have deposed that they had learned about quarrel between accused and deceased Mubarak.

PW8-Shakeela is the elder sister of deceased Mubarak. PW8 has deposed; about 4 or 5 months prior to the date of incident, she had learnt that accused were staring at deceased Mubarak and they were inimical to deceased. The incident of murder had taken place on the intervening night of 11/12.03.2009. In the circumstances, the evidence of PW8 that deceased Mubarak had informed her about enmity between accused and deceased about 4 or 5 months prior to the date of incident cannot be accepted. Even otherwise, the prosecution has relied on direct evidence. Therefore, motive alleged against accused No. 3 does not gain importance.

The prosecution has relied on direct evidence of PW5-Naga and PW7-Fayaz. Though the prosecution has cited CW6-Bilal and CW19-Shakeela as eye-witnesses, they had not given correct addresses and they were not available for examination before trial court.

As per the evidence of PW5, on 12.03.2009 at about 7.30 p.m., accused No. 1 called PW5 over phone and informed that deceased Mubarak had come to assault him; PW5 came to chicken shop where deceased Mubarak was working; CW13, CW14, CW15, PW1 and accused 1 & 2 were present; PW5 pacified quarrel between accused and deceased Mubarak; thereafter, PW1, accused 1 & 2 came near BTM Park; deceased Mubarak and CW13 to CW15 followed them; again, there was a quarrel in park; accused No. 1 stabbed on the abdomen of deceased Mubarak with a knife; accused No. 2 assaulted on shoulder of deceased Mubarak with a knife; thereafter accused 1 & 2 ran away from the place of incident; accused No. 3, CW13 to CW15 shifted the deceased to St. John''s Medical College Hospital at Bangalore. The deceased succumbed to injuries.

PW7-Fayaz has given an improvised version that accused No. 3 had assaulted on the back of deceased with an iron rod.

From cross-examination of PW7, we find that PW7 had given such a version for the first time before court. The post-mortem examination report of deceased Mubarak does not reveal that deceased Mubarak had suffered injuries on his back. Above all, accused No. 3 had accompanied PW5 and PW7 to shift deceased Mubarak from the place of incident to St. John''s Medical College Hospital at Bangalore. If accused No. 3 had participated in the incident of murder, he would not have accompanied PW5, PW7 and others when they shifted deceased Mubarak from the place of incident to St. John''s Medical College Hospital at Bangalore.

The prosecution has relied on bloodstains found on clothes of accused No. 3 (M.O. 9 to M.O. 12).

As already stated, accused No. 3 had helped PW5, PW7 and others to shift the deceased from the place of incident to St. John''s Medical College Hospital at Bangalore. In that process, clothes of accused No. 3 might have stained with blood of deceased Mubarak. This circumstance would go in favour of accused No. 3 and not in favour of the prosecution.

The learned Sessions Judge on proper appreciation of evidence has held that prosecution has failed to prove that accused No. 3 had shared common intention with accused 1 & 2 to assault and committed the murder of deceased Mubarak at the time and place suggested by the prosecution. We do not find any reasons to interfere with the impugned judgment of acquittal.

In the result, we pass the following:-

ORDER

The appeal is dismissed.