Karnataka High Court
Halappa Laxman Adinavar vs The State Of Karnataka on 13 December, 2021
Bench: Suraj Govindaraj, J.M.Khazi
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL No.100006/2017
BETWEEN:
1 . HALAPPA LAXMAN ADINAVAR,
AGE: 45 YEARS,
OCC: AGRICULTURE,
R/O: MANNAPUR,
TAL: GOKAK,
DIST: BELAGAVI.
2 . UMESH SIDDAPPA PUTANI,
AGE: 24 YEARS,
OCC: AGRICULTURE,
R/O: NIMBAL,
TQ: INDI,
DIST: VIJAYAPURA.
3 . DHAREPPA SAIBANNA BIRADAR,
AGE: 30 YEARS,
OCC: AGRICULTURE,
R/O: NIMBAL,
TQ: INDI,
DIST: VIJAYAPURA.
4 . APPASAB SIDDAPPA SALIGAON,
AGE: 30 YEARS,
OCC: AGRICULTURE,
R/O: NIMBAL,
TQ: INDI,
DIST: VIJAYAPURA.
... APPELLANTS
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(BY SHRI.M.B.GUNDAWADE AND
SHRI A.M.GUNDAWADE, ADVOCATES FOR A2 AND A4,
APPEAL AGAINST A1 IS ABATED VIDE ORDER
DATED 24.09.2021)
AND:
1. THE STATE OF KARNATAKA,
THROUGH CIRCLE POLICE INSPECTOR,
MUDALAGI,
DIST: BELAGAVI,
THROUGH STATE PUBLIC PROSECUTOR,
DHARWAD.
... RESPONDENT
(BY SHRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
OF CR.P.C., PRAYING TO THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE PASSED BY THE II ADDITIONAL SESSIONS
JUDGE, BELAGAVI, IN SESSIONS CASE NO. 202 OF 2011 ON
03.11.2016 AND THEREBY CONVICTING THE APPELLANTS FOR THE
OFFENCE UNDER SECTION 302 READ WITH 34 OF IPC AND
SENTENCING THEM TO UNDERGO IMPRISONMENT FOR LIFE AND
TO PAY FINE OF RS.50,000/- EACH AND IN DEFAULT TO UNDERGO
RIGOROUS IMPRISONMENT FOR ONE YEAR. FURTHER PUNISHMENT
OF SENTENCING THE APPELLANT TO UNDERGO IMPRISONMENT
FOR LIFE AND EACH SHALL PAY RS. 25,000/- AND IN DEFAULT OF
PAYMENT OF FINE TO UNDERGO RIGOROUS IMPRISONMENT FOR A
PERIOD OF SIX MONTHS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 307 READ WITH SECTION 34 OF IPC. FURTHER
PUNISHMENT OF SENTENCING THE APPELLANTS TO UNDERGO
RIGOROUS IMPRISONMENT FOR 10 YEARS AND EACH SHALL PAY
FINE OF RS.5,000/- AND IN DEFAULT OF PAYMENT OF FINE THEY
SHALL FURTHER UNDERGO RIGOROUS IMPRISONMENT FOR THREE
MONTHS FOR THE OFFENCE UNDER SECTION 34 IPC., BE SET
ASIDE AND THE ACCUSED/APPELLANTS KINDLY BE ACQUITTED.
THIS APPEAL COMING ON FOR FINAL HEARING ON
17.11.2021 AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGEMENT, THIS DAY, SURAJ
GOVINDARAJ J., DELIVERED THE FOLLOWING:
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JUDGMENT
1. The appellants are before this Court challenging the
judgment of conviction and order of sentence
passed by the II Additional Sessions Judge,
Belagavi, in S.C.No.202 of 2011 on 03.11.2016 and
thereby convicting the appellants for the offence
under Section 302 read with Section 34 of IPC and
sentencing them to undergo imprisonment for life
and to pay fine of Rs.50,000/- each and in default
to undergo rigorous imprisonment for one year.
Further punishment of sentencing the appellant to
undergo imprisonment for life and each shall pay
Rs.25,000/- and in default of payment of fine to
undergo rigorous imprisonment for a period of six
months for the offence punishable under Section
307 read with Section 34 of IPC and further
punishment of sentencing the appellants to undergo
rigorous imprisonment for 10 years and each shall
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pay fine of Rs.5,000/- and in default of payment of
fine they shall further undergo rigorous
imprisonment for three months for the offence
under Section 34 IPC., be set aside and the
accused/appellants kindly be acquitted.
2. S.C.No.202/2011 was initiated on account of the
Circle Inspector of Police, Mudalagi, having charge-
sheeted the accused who are appellants herein and
certain others for the offences punishable under
Sections 143, 147, 148, 120-B, 302, 212 and
307 read with Section 149 of IPC. In the said
incident Yallappa and Lakshman were murdered and
there was an attempt to murder PW-2 -
Nabisab Junglesab Mulla.
3. By way of the impugned judgment dated
03.11.2016, Accused No.2 to 4, 6 to 10, 12, 15 and
17 are found not guilty for the offences punishable
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under Section 143, 147, 148, 120(B), 302, 307 and
212 read with Section 149 of IPC. Acting under
Section. 235(1) of Cr.P.C accused No.2 to 4, 6 to
10, 12, 15 and 17 are acquitted for the offences
punishable under Section 143, 147, 148, 12(B),
302, 307 and 212 read with Section 149 of IPC.
4. Accused No.1, 11, 13 and 14 were found guilty for
the offences punishable under Section. 120(B), 302
and 307 read with Section 34 of IPC. Acting under
Section 235(2) of Cr.P.C accused No.1, 11, 13 and
14 are convicted for the offences punishable under
Section. 120(B), 302, 307 read with Section 34 of
IPC.
5. After hearing the convicted accused on 07.11.2016,
the following order of sentence was passed:
Accused No.1, 11, 13 & 14 sentenced to undergo
imprisonment for life and each shall pay a fine of
Rs.50,000/- and in default of payment of fine, each shall
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further undergo rigorous imprisonment for a period of 1
year for the offence punishable u/sec 302 R/w 34 of IPC.
Accused No.1, 11, 13 & 14 each are sentenced to undergo
imprisonment for life and each shall pay a fine of
Rs.25,000/- and in default of payment of fine, they shall
further undergo rigorous imprisonment for a period of 6
months for the offence punishable u/sec 307 R/w 34 of
IPC.
Accused No.1, 11, 13 & 14 each are sentenced to undergo
rigorous imprisonment for a period of 10 years and each
shall pay a fine of Rs.5,000/- and in default of payment of
fine, they shall further undergo rigorous imprisonment for
a period of 3 months for the offence punishable u/sec 120
(B) R/w 34 of IPC.
The substantial sentence of imprisonment shall run
concurrently.
Accused No.1, 11, 13 & 14 are entitled for set off under
section 428 of Cr.P.C. during the period when they are in
judicial custody.
Out of the fine amount the legal heirs of deceased Yallappa
are entitled for Rs.1,50,000/- and legal heirs of Laxman
are entitled for Rs.1,50,000/- as compensation under
section 357 of Cr.P.C.
6. The case of the prosecution is that accused No.1
and deceased Yallappa were not in good terms due
to various issues. In this background, accused Nos.1
to 16 had hatched a plan and conspiracy to murder
Yallappa in such a way that it should not appear to
be a murder, they had finalized on a plan to kill
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Yallappa by way of a road accident. In furtherance
of the said conspiracy on 23.09.2010 the accused
dashed Trax vehicle against the two wheeler and
when they fell down assaulted and caused the death
of Yallappa and Lakshman as also grievous injuries
to PW-2 Nabisab with an intention to cause his
death. The wife of Yallappa had lodged a complaint
which was registered as Cr.No.150/110 at 4:00pm
on 23.09.2010 at Kulgod Police Station.
7. On investigation being completed a charge-sheet
was laid on 22.12.2010 in the Court of JMFC,
Gokak, against the accused for the offences
punishable under Sections 143, 147, 148, 302, 307,
120B and 212 read with Section 149 of the IPC.
8. The JMFC, Gokak, took cognizance and registered a
case in CC No.2025/2010. Thereafter, committed
the case to the Court of Sessions after splitting up
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the case against accused No.16 since accused No.16
was absconding. The split-up charge sheet was
registered against accused No.16 as C.C.No.
1167/2011 in JMFC Court at Gokak.
9. Upon committal, it came to be registered as
S.C.202/2011 and made over to the Court of II
Additional District and Sessions Judge, Belagavi.
10. Initially, the charges were framed on 02.12.2011 by
inadvertence there being an error in the charges
framed, a fresh set of charges came to be framed
on 17.08.2012. The charges framed read as under:
"Firstly, that you all, two months prior to the death of
deceased Yallappa Pujeri were parties to a criminal
conspiracy to commit murder of Yallappa Pujeri in front of
the house of you accused No.1 Halappa Adinavar, at
Mannapur Village, within the limits of Kulgod Police
Station and thereby committed offence punishable U/s.
120B of Indian Penal Code and within the cognizance of
the Court of Sessions.
Secondly, that you all on 23.9.2010 at Mannapur Village
formed an unlawful assembly with a common object to
commit murder of deceased Yallappa Pujeri and thereby
committed the offence punishable U/s.143 of Indian
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Penal Code and within the cognizance of the Court of
Sessions.
Thirdly, that you all, on the above said date, being
members of above said unlawful assembly used violence
on deceased Yallappa Pujari and CW.25 Nabisab Mulla
and thereby committed the offence punishable U/s.147 of
Indian Penal Code and within the cognizance of the Court
of Sessions.
Fourthly that you on all on the above said date time and
place, in the course of same transaction, being members
of above said unlawful assembly used Tempo Trax
Vehicle bearing No.KA-23-M-4122 and Iron Rods, while
using the violence on deceased Yallappa Pujeri and
CW.25 Nabisab Mulla and thereby committed the offence
punishable U/s.148 of Indian Penal Code and within the
cognizance of the Court of Sessions.
Fifthly that you all, on the above said, date, time and
place, at 11.50 a.m, in the course of same transaction
and in the prosecution of your common object, near the
land of Chapati Lakshemeshwar on Kulgod-Mannapur
road, at a distance of 2 to 3 KMs away from Kulgod,
intentionally caused death of deceased Yallappa Pujari,
when he was proceeding on the Motor Cycle of CW.25
Nabisab Mulia, by dashing your Tempo Trax vehicle
bearing No.KA-23-M-4122 and after Yallappa Pujari fell
down from the Motor Cycle, by assaulting him with Iron
Rods causing his spot death and thereby committed the
offence punishable U/s. 302 R/W.Sec.149 of Indian Penal
Code and within the cognizance of the Court of Sessions.
Sixthly, that you all, on the above said date, time and
place, in the course of same transaction and in
prosecution of your common object, assaulted CW.25
Nabisab Mulla with Iron Rods and caused grievous
injuries to him, with such intention and under such
circumstances that, if by that act, you had caused the
death of CW.25 Nabisab Mulla, you all would have been
guilty of murder and thereby committed the offence
punishable U/s.307 R/W. Sec.149 of Indian Penal Code
and within the cognizance of the Court of Sessions.
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Lastly, that, you accused No.10 Appasi Pujari and
Accused No.17 Malappa Pujeri on the above said date,
harboured or concealed the other accused persons of this
case, at P.M. Budni Village in your farm house knowingly
that all of them had committed murder of deceased
Yallappa Pujeri and had attempted to commit murder of
CW.25 Nabisab Mulla, with an intention of screening them
from legal punishment and thereby committed offence
punishable U/s. 212 of Indian Penal Code and within the
cognizance of the Court of Sessions.
And I hereby direct that you be tried by this Court on the
above said charges."
11. On the charges being read over to the Accused they
pleaded not guilty and claimed to be tried.
12. Prosecution in order to prove its case examined 86
witnesses as PWs-1 to 86, 216, 216 documents
were marked as Ex.P.1 to 216 and 48 properties
were marked as material objects M.Os.1 to 48.
13. There being an error in M.O.Nos.42 and 43 being
marked twice, was rectified by the trial Court. The
Station House Diary was summoned at the instance
of the accused and marked as Ex.C.1. Though
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several other documents had been summoned, they
were not marked.
14. After the closure of evidence of the
were examined under Section 313 of the Cr.P.C and
their answers recorded. The accused did not lead
any evidence and filed written submissions.
15. After hearing Arguments the aforesaid order of
conviction and sentence was passed.
16. Shri Gundawade, learned counsel for the
appellants has submitted that:
16.1. The complaint of PW - 1 is typed and
not written. The Station House Officer ought to
have written down the complaint himself
instead of delegating it. The typing of the
complaint gives rise to a doubt that the same
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was prepared earlier and not in the words of
the complainant.
16.2. The Police were at the scene of the crime and
making enquiries even before a complaint was
lodged, hence investigation having been
commenced even prior to the lodging of the
complaint is bad in Law.
16.3. Even assuming but not conceding the story of
the prosecution to be true there is no motive
and 14, who are strangers.
16.4. Initially PW - 1 had complained against 10
persons whereas chargesheet had been filed
against 17 hence the additional seven persons
have been falsely roped into the matter.
16.5. There are 16 mahazars that had been
conducted between 23.09.2010 and
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18.10.2010 have been witnessed by only two
witnesses namely PW -52 and PW -53 who
are stock witnesses and who have not
supported the case of the prosecution.
16.6. All the voluntary statements of the accused
are also in violation of Sections 26 and 27 of
the Indian Evidence Act and inasmuch as the
voluntary statements are in detail recording
the commission of the offence and as such,
only portions of the voluntary statements have
been permitted to be marked by the Sessions
Court. He submits that the portions marked do
not in any manner establish the complicity of
the accused in the crime.
16.7. There is no evidence that is placed on record
to establish that the accused after the accident
of the Tempo Trax went on foot. He further
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submits that the testimony of PW - 2 cannot
be accepted since PW -2 is an interested
witness and there is no other independent
witnesses examined who have spoken of the
accused having committed the offence there is
no proof of the said offence having been
committed.
16.8. The circumstantial evidence needs to be fully
established to result in a conviction. He
submits that in criminal matters, more
particularly where offences alleged are under
Section 302 of IPC for murder, the said
offence has to be proved beyond reasonable
doubt and if there are two views possible, then
the beneficial view has to be taken in favour of
the accused. In this regard, he relies upon the
decision of the Apex Court in the case of
BASHEERA BEGAM VS. MOHAMMED
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IBRAHIM AND OTHERS reported in 2020
AIAR (CRIMINAL) 818, more particularly,
paragraphs 189, 193 and 195 thereof which
are reproduced hereunder for easy reference:
189. It is well settled that under the criminal
jurisprudence prevalent in this country an accused is
presumed innocent, unless proved guilty beyond all
reasonable doubt. As held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [1973 (2)
SCC 793], "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." For
conviction on the basis of circumstantial evidence,
the circumstances from which the conclusion of guilt
is to be drawn should fully be established. The
circumstances should be conclusive. The
circumstances established should definitely point to
the guilt of the accused, and not be explainable on
any other hypothesis. The circumstances should
exclude any other possible hypothesis except the
one to be proved.
193. At the cost of repetition, it is reiterated that the
burden of proving an accused guilty beyond all
reasonable doubt lies on the prosecution. If upon
analysis of evidence two views are possible, one
which points to the guilt of the accused and the
other which is inconsistent with the guilt of the
accused, the latter must be preferred. Reversal of a
judgment and order of conviction and acquittal of
the accused should not ordinarily be interfered with
unless such reversal/acquittal is vitiated by
perversity. In other words, the Court might reverse
an order of acquittal if the Court finds that no person
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properly instructed in law could have upon analysis
of the evidence on record found the accused to be
'not guilty'. When there is circumstantial evidence
pointing to the guilt of the accused, it is necessary to
prove a motive for the crime. However, motive need
not be proved where there is direct evidence. In this
case, there is no direct evidence of the crime.
195. Before a case against an accused can be said
can be said to be fully established on circumstantial
evidence, the circumstances from which the
conclusion of guilt is to be drawn must fully be
established and the facts so established should be
consistent only with the hypothesis of the guilt of
the accused. There has to be a chain of evidence so
complete as not to leave any reasonable doubt for
any 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."
16.9. The evidence of various witnesses are
contradictory in nature and when there is such
contradiction, the benefit of doubt has to be
extended to an accused. In this regard, he
relies upon the decision of the Apex Court in
the case of IMRAT SINGH AND OTHERS VS.
STATE OF MADHYA PRADESH reported in
[2020 AIAR (CRIMINAL) 168], more
particularly, paragraph 18 thereof which is
reproduced hereunder for easy reference:
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"18. The villagers who were first told about this
incident by Lakhan Singh (PW-10) and Ram Singh
(PW-11) have not been examined. The Head
Constable who is alleged to have not recorded the
FIR and said that he would wait for the SDOP has
not been examined. The SDOP/Deputy
Superintendent of Police has not been examined.
The FIR has been recorded admittedly after visiting
the spot by the police and, therefore, there is a
possibility that the story could have been concocted
after seeing the site and conferring with all the
villagers. It has come on record that Gajraj Singh
was not a very popular man. He had a lot of
enemies. It has also come in evidence that almost
all the witnesses have some criminal antecedents
and some cases are pending against them. It may
be true that there was enmity between the two
sides. Enmity, as is often said is a double edged
sword. It can be the motive but it can also be a
reason to falsely implicate the other side. In the
present case, keeping in view the various
contradictions pointed out above and the fact that in
view of the contradictions it is difficult to rely upon
the statements of Lakhan Singh (PW-10) and Ram
Singh (PW-11) as well as Somati (PW-6) and
Raghubir (PW- 7), we are of the view that a doubt
has been cast and the benefit of doubt has to be
given to the accused."
16.10. PW - 2 could not see or depose on the actual
injuries caused on the deceased and that the
statement made by PW - 2 is contradictory to
the postmortem reports.
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16.11. The deposition of single eyewitness PW - 2 is
completely unreliable and cannot be
considered by this Court by relying upon the
decision of the Apex Court in the case of
AMAR SINGH VS. THE STATE (NCT OF
DELHI) reported in 2021 AIAR (CRIMINAL)
51, more particularly, paragraphs 17, 24 and
32 thereof which are reproduced hereunder for
easy reference:
"17. This case primarily hinges on the testimony of
sole eye witness, Parminder Singh PW-1, brother of
the deceased. As already discussed above conviction
can be based on the testimony of a single eye
witness so long he is found to be wholly reliable. In
the light of the settled legal principles we proceed to
examine the testimony of Parminder Singh PW-1 and
also his conduct at the time of the incident.
24. This in itself casts serious doubts of shadow on
the prosecution story that two brothers of the
deceased, namely, Parminder Singh PW-1 and Amar
Singh PW-11 were present on the spot and
accompanied the injured in PCR Van to AIIMS. Had it
been so, naturally, they would have given the name
of the deceased and their own names which would
have been recorded in the MLC Ex. PW-17/A at the
first instance. Doctor Romesh Lal PW-17/A who
prepared the MLC stated in his evidence that one
dead body was brought in the casualty of AIIMS by
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Head Constable Dharam Singh having multiple sharp
deep injuries all over the body and he prepared the
MLC PW- 17/A.
32. The conviction of the appellants rests on the oral
testimony of PW-1 who was produced as eye witness
of the murder of the deceased. Both the Learned
Sessions Judge, as well as High Court have placed
reliance on the evidence of PW-1 and ordinarily this
Court could be reluctant to disturb the concurrent
view but since there are inherent improbabilities in
the prosecution story and the conduct of eye witness
is inconsistent with ordinary course of human nature
we do not think it would be safe to convict the
appellants upon the in corroborated testimony of the
sole eye witness. Similar view has been taken by a
Three Judge Bench of this Court in the case of
Selvaraj V/s The State of Tamil Nadu [1976 (4) SCC
343]. Wherein on an appreciation of evidence the
prosecution story was found highly improbable and
inconsistent of ordinary course of human nature
concurrent findings of guilt recorded by the two
Courts below was set aside."
16.12. On all the above basis, he submits that the
appeal filed by accused Nos.11, 13 and 14 is
required to be allowed and the conviction and
sentence be set aside.
17. Shri Banakar, learned Addl. SPP appearing for the
respondent/State would submit that
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17.1. The police can visit any site where an offence
has been committed even prior to a complaint
being lodged, more so when the offence is a
cognizable one by relying upon the decision of
the Apex Court in the case of ANIMIREDDY
VENKATA RAMANA AND OTHERS VS.
PUBLIC PROSECUTOR, H.C. OF A.P.
reported in 2008 (2) Crimes 63 (SC), more
particularly Paragraph 10 thereof which is
reproduced hereunder for easy reference:
"10. The dead body of the deceased was brought
down from the bus and taken to the house. The
conductor of the bus sent an information to the
Depot Manager of the State Road Transport
Corporation at Tuni. The investigating officer was
also informed. A report to that effect might have
been noted in the general diary but the same could
not have been treated to be an FIR. When an
information is received by an officer incharge of a
police station, he in terms of the provisions of the
Code was expected to reach the place of occurrence
as early as possible. It was not necessary for him to
take that step only on the basis of a First
Information Report. An information received in
regard to commission of a cognizable offence is not
required to be preceded by a First Information
Report. Duty of the State to protect the life of an
injured as also an endeavour on the part of the
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responsible police officer to reach the place of
occurrence in a situation of this nature is his implicit
duty and responsibility. If some incident had taken
place in a bus, the officers of the Road Transport
Corporation also could not ignore the same. They
reached the place of occurrence in another bus at
about 1 a.m. The deceased and the injured were,
only then, shifted to the Tuni hospital."
17.2. In answer to the contention of Shri
Gundawade, learned counsel for the
appellants, that there is no motive established
on the part of accused Nos.11, 13 and 14, Shri
Banakar, learned Addl. SPP submits that once
there is an eyewitness testimony as regards
the commission of the offence, motive
becomes irrelevant by relying upon the
decision of the Apex Court in the case of
SUBODH NATH VS. STATE OF TRIPURA
reported in AIR 2013 SC 3726, more
particularly, paragraph 13 thereof which is
reproduced hereunder for easy reference:
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"13. Once we find that the eye witness account of
PW-13 is corroborated by material particulars and is
reliable, we cannot discard his evidence only on the
ground that there are some discrepancies in the
evidence of PW-1, PW- 2, PW-13 and PW-19. As has
been held by this Court in State of Rajasthan v. Smt.
Kalki and Another [(1981) 2 SCC 752], in the
deposition of witnesses there are always normal
discrepancies due to normal errors of observation,
loss of memory, mental disposition of the witnesses
and the like. Unless, therefore, the discrepancies are
"material discrepancies" so as to create a reasonable
doubt about the credibility of the witnesses, the
Court will not discard the evidence of the witnesses.
Learned counsel for the appellants is right that the
prosecution has not been able to establish the
motive of the appellant no.1 to kill the deceased but
as there is direct evidence of the accused having
committed the offence, motive becomes irrelevant.
Motive becomes relevant as an additional
circumstance in a case where prosecution seeks to
prove the guilt by circumstantial evidence only."
17.3. In this regard, he also relies on the decision in
the case of YASHWANTH BHANDARY VS.
STATE OF KARNATAKA reported in ILR
2004 KAR 3785, more particularly paragraph
20 which is reproduced hereunder for easy
reference.
"20. The aspect of motive is amply deposed to by
P.Ws 2 & 3. They deposed in specific terms that the
accused used to tease the deceased frequently and
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the same was complained to by the deceased to her
aunt P.W.3, who in turn had warned and abused the
accused. Being enraged by such reprimand, the
accused has committed the murder of the deceased.
On the contrary, the case of the defence is that the
accused and deceased were loving each other and
wanted to marry. Thus there is no occasion for the
accused to commit the murder of the deceased. That
the Jamath Committee members who were enraged
by such love affair wanted to eliminate the said
affair between the accused with the deceased. As
such, the Jamath Committee people took away the
deceased in a car to an unknown place and
murdered her and thereafter thrown the dead body
on the present scene of offence. We do not find any
force in the aforesaid defence and the same is not
supported by any material on record. Be that as it
may, the material on record discloses that the
accused had got some inclination towards the
deceased. The defence version as spoken to by
D.Ws. 1 & 2 discloses that there was opposition from
Jamath Committee people & relatives of deceased in
the love affair. Therefore, the deceased might not
have reacted positively in favour of the accused,
which might have enraged the accused to commit
the offence in frustration. If the material available on
record is considered in its entirety, it can be safely
said that the prosecution is able to show that there
was some ire on the part of the accused against the
deceased for committing the murder. The motive is
always hidden in the mind of the offenders of the
crime and it is almost impossible for the prosecution
to unravel the full dimension of the mental
disposition of an offender towards the person whom
he offended. A reference can be had in this
connection to the Judgment of the Apex Court
in STATE OF HIMACHAL PRADESH v. JEET SINGH,
1999 SC (Crl) 539 wherein it is observed thus:
"When the prosecution succeeded in showing the
possibility of some ire for the accused towards the
victim, the inability to further put on record the
manner in which such ire would have swelled up in
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the mind of the offender to such a degree as to
impel him to commit the offence cannot be
construed as a fatal weakness of the prosecution. It
is almost an impossibility for the prosecution to
unravel the full dimension of the mental disposition
of an offender towards the person whom he
offended."
Taking the clue from the observations and the
principles laid down by the Apex Court in the
aforesaid pronouncement, in our view, the possibility
of some ire on the part of the accused being enraged
towards the conduct of the deceased and her family
members is apparent. There is every possibility of he
being angered of such negative attitude of the
deceased and the abuses by P.W.3."
17.4. In answer to the contention of Shri
Gundawade, learned counsel, that initially PW
- 1 had complained against 10 persons
whereas chargesheet had been filed against
17. He submits that it is upon investigation
that the charge-sheet came to be filed against
17 accused persons because they were
involved in the incident. CW - 2 in his
statement having imputed allegations against
certain other accused than that named by PW
- 1 they have also been made as accused. He
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further submits that a First Information Report
cannot be an encyclopedia of all facts. It is
upon competition of the investigation that the
complicity of various accused can be verified
and identified. The same having been done by
the Investigating Officer, no fault can be found
by addition of additional accused nor can the
accused derive any benefit from the same.
17.5. By relying on the medical evidence on record,
he submits that all the injuries which have
caused the death of Yallappa and Lakshman
have resulted from the use of iron rods as
could be seen from Ex.P.114 being
postmortem report of Yallappa, Ex.P.127 being
the postmortem report of Lakshman and
Ex.P.138 being the wound certificate of PW - 2
Nabisab.
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17.6. Relying upon the Apex Court decision in the
case of BALESHWAR MAHTO VS. STATE OF
BIHAR reported in (2017) 3 SCC 152,
more particularly, paragraph 12 thereof he
submits that when an eyewitness is also an
injured person due credence to his version
needs to be accorded.
"12. Here, PW-7 is also an injured witness. When the
eye-witness is also an injured person, due credence
to his version needs to be accorded. On this aspect,
we may refer to the following observations in Abdul
Sayeed vs. State of Madhya Pradesh2:
"28. The question of the weight to be attached to
the evidence of a witness that was himself injured in
the course of the occurrence has been extensively
discussed by this Court. Where a witness to the
occurrence has himself been injured in the incident,
the testimony of such a witness is generally
considered to be very reliable, as he is a witness
that comes with a built-in guarantee of his presence
at the scene of the crime and is unlikely to spare his
actual assailant(s) in order to falsely implicate
someone. "Convincing evidence is required to
discredit an injured witness." [Vide Ramlagan Singh
v. State of Bihar [(1973) 3 SCC 881], Malkhan Singh
v. State of U.P. [(1975) 3 SCC 311], Machhi Singh v.
State of Punjab [(1983) 3 SCC 470], Appabhai v.
State of Gujarat [1988 Supp SCC 241], Bonkya v.
State of Maharashtra [(1995) 6 SCC 447], Bhag
Singh [(1997) 7 SCC 712], Mohar v. State of U.P.
[(2002) 7 SCC 606] (SCC p. 606b-c), Dinesh Kumar
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v. State of Rajasthan [(2008) 8 SCC 270], Vishnu v.
State of Rajasthan [(2009) 10 SCC 477], Annareddy
Sambasiva Reddy v. State of A.P. [(2009) 12 SCC
546] and Balraje v. State of Maharashtra [(2010) 6
SCC 673].
29. While deciding this issue, a similar view was
taken in Jarnail Singh v. State of Punjab [(2009) 9
SCC 719] , where this Court reiterated the special
evidentiary status accorded to the testimony of an
injured accused and relying on its earlier judgments
held as under: (SCC pp. 726-27, paras 28-29)
"28. Darshan Singh (PW 4) was an injured witness.
He had been examined by the doctor. His testimony
could not be brushed aside lightly. He had given full
details of the incident as he was present at the time
when the assailants reached the tubewell. In
Shivalingappa Kallayanappa v. State of
Karnataka [1994 Supp (3) SCC 235] this Court has
held that the deposition of the injured witness
should be relied upon unless there are strong
grounds for rejection of his evidence on the basis of
major contradictions and discrepancies, for the
reason that his presence on the scene stands
established in case it is proved that he suffered the
injury during the said incident.
29. In State of U.P. v. Kishan Chand [(2004) 7 SCC
629] a similar view has been reiterated observing
that the testimony of a stamped witness has its own
relevance and efficacy. The fact that the witness
sustained injuries at the time and place of
occurrence, lends support to his testimony that he
was present during the occurrence. In case the
injured witness is subjected to lengthy cross-
examination and nothing can be elicited to discard
his testimony, it should be relied upon (vide Krishan
v. State of Haryana [(2006) 12 SCC 459]. Thus, we
are of the considered opinion that evidence of
Darshan Singh (PW 4) has rightly been relied upon
by the courts below."
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30. The law on the point can be summarised to the
effect that the testimony of the injured witness is
accorded a special status in law. This is as a
consequence of the fact that the injury to the
witness is an inbuilt guarantee of his presence at the
scene of the crime and because the witness will not
want to let his actual assailant go unpunished
merely to falsely implicate a third party for the
commission of the offence. Thus, the deposition of
the injured witness should be relied upon unless
there are strong grounds for rejection of his
evidence on the basis of major contradictions and
discrepancies therein."
17.7. He relies on the decision of the Apex Court in
the case of PADMANABAN VS. STATE
reported in (2009) 15 SCC 108 more
particularly paragraph 23 thereof which is
reproduced hereunder for easy reference.
"23. No doubt lodging of a First Information Report
at the earliest possible opportunity is desirable. But,
the courts cannot also ignore the ground realities
that the relatives of the deceased would give priority
to the treatment of a severely injured person. All
attempts would first be made to save his life. The
action on the part of the prosecution witnesses, in
our considered opinion, in giving priority to the
treatment to the injured was wholly justifiable."
17.8. Merely because certain of the witnesses have
turned hostile, the same would not negate the
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act of commission of offence by the accused in
as much as PW - 2 being the eyewitness, has
specifically deposed as regards the complicity
of the accused, that not being controverted
and being corroborated by other
circumstances, merely because certain other
witnesses have turned hostile, no benefit of
doubt could be extended to the accused, in
this connection he relies upon the decision of
the Apex Court in the case of KARTIK
MALHAR VS. STATE OF BIHAR reported in
(1996) 1 SCC 614, more particularly
paragraphs 2, 3, 11 and 21 thereof which are
reproduced hereunder.
"2. The well-known maxim that "Evidence has
to be weighed and not counted" has been given
statutory placement in section 134 of the
Evidence Act which provides us under :
"134. No particular number of witness shall
in any case be required for the proof of any fact."
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3. This section marks a departure from the
English law where a number of statutes still
prohibit convictions for certain categories of
offences on the testimony of a single witness.
This-difference was noticed by the Privy Council
in Mahamed Sugal Esa Mamasah Rer Alalah v.
The King, [A.I.R. (1946) P.C, 3] wherein it was
laid down as under :
"It was also submitted on behalf of the
appellant that assuming the unsworned evidence
was admissible the court could not act upon it
unless it was corroborated. In England, where
provision has been made for the reception of
unsworned evidence from a child, it has always
been provided that the evidence must be
corroborated in some material particularly
implicating the accused. But in the Indian
Act there is no such provision and the evidence is
made admissible whether corroborated or not.
Once there is admissible evidence a court can act
upon it; corroboration unless required by statute
goes only to the weight and value of the
evidence. It is a sound rule in practice not to act
on the uncorroborated evidence of a child,
whether sworn or unsworned but, this is a rule of
prudence and not of law."
17.9. He submits that merely because the recovery
witness has turned hostile would not negate
the recovery of any item and in that regard
the statement of the Investigating Officer
could be relied upon to prove recovery. In
support thereof, he relies upon the decision of
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the Apex Court in the case of MALLIKARJUN
VS. STATE OF KARNATAKA reported in
2019 (5) KCCR 338 (SC) more particularly
paragraph 23 thereof which is reproduced
hereunder for easy reference:
"23. As pointed out earlier, based on the disclosure
statement of accused No.1, MO-1-dagger which was
kept hidden in the haystack of fodder in the loft of
the cattle shed behind the house of accused No.1
had been seized under Ex.-P9- Panchnama in the
presence of panch witnesses PW-8- Chandrappa and
PW-9-Mahadevappa Needgera. The said panch
witnesses have not supported the prosecution case
and turned hostile. MO-2-dagger and MO-3-handle
of the axe were recovered from the scene of
occurrence under Ex.-P7-spot panchnama. On behalf
of the accused, learned senior counsel contended
that the evidence of PW-17-PSI as to the recovery of
MO-1-dagger at the behest of accused No.1 is
doubtful and when PWs 8 and 9 have turned hostile,
no weight could be attached to the alleged recovery
of MO-1-dagger. There is no merit in the contention
that merely because the panch witnesses turned
hostile, the recovery of the weapon would stand
vitiated. It is fairly well settled that the evidence of
the Investigating Officer can be relied upon to prove
the recovery even when the panch witnesses turned
hostile. In Rameshbhai Mohanbhai Koli v. State of
Gujarat and others (2011) 11 SCC 111, it was held
as under:-
"33. In Modan Singh v. State of Rajasthan (1978) 4
SCC 435 it was observed (at SCC p. 438, para 9)
that where the evidence of the investigating officer
who recovered the material objects is convincing,
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the evidence as to recovery need not be rejected on
the ground that seizure witnesses did not support
the prosecution version. Similar view was expressed
in Mohd. Aslam v. State of Maharashtra (2001) 9
SCC 362.
34. In Anter Singh v. State of Rajasthan (2004) 10
SCC 657, it was further held that: (SCC p. 661, para
10) "10. ... even if panch witnesses turn hostile,
which happens very often in criminal cases, the
evidence of the person who effected the recovery
would not stand vitiated."
35. This Court has held in a large number of cases
that merely because the panch witnesses have
turned hostile is no ground to reject the evidence if
the same is based on the testimony of the
investigating officer alone. In the instant case, it is
not the case of defence that the testimony of the
investigating officer suffers from any infirmity or
doubt. (Vide Modan Singh case, Krishna Gopal case
and Anter Singh case.)" PW-17-PSI has clearly
spoken about the recovery of MO-1- dagger at the
behest of accused No.1 and MO-2-dagger and MO-3-
handle of the axe from the scene of occurrence and
his evidence cannot be discarded merely because
panch witnesses have turned hostile."
17.10. Once an eye witness has given his testimony
and the same is corroborated by facts, the
same cannot be discarded only on the ground
that there are some other discrepancies in the
evidence of some other witnesses.
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17.11. It is not necessary for the prosecution to prove
motive in all cases, if the prosecution were to
establish that there is a possibility of a
particular reason being in existence for the
commission of the offence, the same would
suffice.
17.12. Based on all the above, Shri Banakar learned
Additional SPP submits that the judgment of
the trial Court is proper and does not require
any interference.
18. Since the above is a criminal appeal, the evidence
on record would have to be re-appreciated in order
to ascertain if the order of conviction passed by the
trial Court is proper and correct.
19. PW-1-Rukmavva Yallappa Pujari, who is the wife of
the deceased Yallappa and the complainant has
stated that she knows other deceased Lakshman
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and injured PW-2 Nabisab. She states that there
were several disputes between her husband and
accused Nos.1 to 12 namely political enmity as her
husband's group and the group of accused No.1
supported different political parties/candidates.
20. It is further alleged that the younger brother of
accused No.1 by name Mallappa Adinavar had been
murdered in the year 2009, accused No.1 and
members of his family believed that deceased
Yallappa had a hand in the murder of Mallappa
Adinavar and as such, accused No.1 wanted to take
revenge against the said deceased Yallappa.
21. Accused No.13's elder sister was married to the
deceased Mallappa Adinavar who had been
murdered by Jadappa and others, accused
No.13 also believed that deceased Yallappa had a
hand in the murder of Mallappa Adinavar. Accused
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No.13 was residing with his sister in Mannapura and
had promised his sister that within one year of the
death of Mallappa Adinavar, he would kill Yallappa.
22. Accused Nos.4 and 12 are stated to own land
abutting the land of deceased Yallappa. In this
regard, there was a boundary dispute between them
as regards which complaints and counter complaints
had been registered against each other. On this
basis, accused Nos.4 and 12 had also developed
enmity towards the deceased Yallappa.
23. Accused No.1, accused Nos.4, 12 and 13 had
various reasons to be enemical to deceased
Yallappa and had a motive to cause his murder.
24. She has spoken of how injured Nabisab had come to
the house of the deceased, informed about his
purchase of the new vehicle and request made by
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him to the deceased Yallappa and Laxman to
accompany him for registration.
25. She has stated about how at around 10 to 12 o'
clock her brother-in-law, Yamanappa (PW-66),
brother of deceased Yallappa had been informed by
Bheemappa Yallappa Ajjanakatti-PW 10 about the
incident that had occurred and the death of her
husband Yallappa and injuries caused to Laxman
and Nabisab, PW66 informed her about the same
and both went to the spot at 12:30 p.m., on the
way they saw the Tempo Trax toppled with iron rod
in it.
26. When they came to the spot a crowd had gathered.
Yallappa was lying dead with wounds on his chest
and forehead, Lakshman had wounds on his head
and right portion of his chest, Nabisab had injuries
on his head, chest and leg, she has also stated
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about one iron rod lying near deceased Yallappa's
body and the other near the bike. She has stated
about the ambulance which had been called for by
PW-10 having arrived and taken Lakshman and
Nabisab to Gokak. At 3:30 p.m. she came to know
about Laxman having expired.
27. She states that thereafter she came to the police
station to give a complaint at 4 o'clock.
28. She recognized the clothes of her husband which
were marked as M.Os.1 to 5, the iron rods lying
near her husband and bike was marked as M.O.6,
the Tempo Trax was marked as M.O.9.
29. All the suggestions which were made by counsel for
accused during the course of cross-examination
have been denied by her. It was suggested to
her that accused No.1's brother was murdered two
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to three years back which she denied by stating
that it is one year back.
30. She has denied that she has given a false
complaint, there were further allegations made that
her husband was carrying on an illicit affair and it
may be possible that his paramour's family could
have murdered her husband, in that she has denied
both the illicit affair and the possibility of murder
from them.
31. She has denied that the complaint was initiated at
the behest of another locally
powerful politician Bheemappa Nadagouda. In
essence, she has supported the complaint and has
withstood the test of cross-examination.
32. PW-2, the injured Nabisab who is the eye witness
has stated about how he had requested the
deceased Yallappa and Lakshman to accompany him
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for registration of the vehicle and supports the
statements made by PW-1. In addition, he states
that accused No.13 who was driving the Tempo Trax
dashed against the motorcycle at high speed in
order to cause the death of all three persons on the
bike. On such dashing, all of them fell down to the
ground. He states that at that time, accused No.13
stepped out of the Trax, pointed out to Yallappa and
directed accused No.14, who was also in the Trax,
to assault and kill him, pursuant thereto, accused
Nos.14 and 16 assaulted Yallappa with iron rods and
thereafter assaulted Lakshman and PW-2 Nabisab
so as to get rid of the witnesses to the crime.
33. PW-2 has also withstood the test of cross-
examination and has clearly identified accused
Nos.11 to 14 and 16. He states that he identified
accused Nos.13 and 14 at the station. He has also
stated about the enmity between deceased Yallappa
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and the family of accused No.1. He reiterates the
statements made by PW-1 in respect thereto. He
denies that he has been tutored by Nadagouda to
depose falsely.
34. PW-3-Bheemappa Siddappa Dhavaleshwar and PW-
4 Paravva Bheemappa Dhavaleshwar are also stated
to be the eye-witnesses who had deposed that they
were cultivating the land belonging to one Chapati
and saw Yallappa riding the bike along with
Lakshman and Nabisab when a Tempo Trax crashed
into the bike, they have not identified the accused.
Hence, they were treated as hostile and cross-
examined by the Public Prosecutor,
but nothing supporting the case of the prosecution
was elicited from them during the course of cross-
examination.
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35. PW-5-Venkappa Uddappa Reddaratti and PW-6-
Kareppa Yallappa Redaratti have also stated that
they have witnessed the Tempo Trax toppling while
working in their fields but have denied seeing any of
the accused getting out of the said vehicle. They
were also treated as hostile and cross-examined by
the Public Prosecutor but nothing supporting the
case of the prosecution was elicited from them
during the course of cross-examination.
36. PW-7-Adiveppa Ningappa Balalavadar stated that he
does not know anything about the matter. He was
also treated as hostile and cross-examined by the
Public Prosecutor but nothing supporting the case of
the prosecution was elicited from him during the
course of cross-examination.
37. PW-8-Shrishail Ramappa Patil denied that he
had overheard accused No.1 and the other accused
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conspiring to murder Yallappa. He was also treated
as hostile and cross-examined by the Public
Prosecutor but nothing supporting the case of the
prosecution was elicited from him during the course
of cross-examination.
38. PW-9-Bhimashi Siddappa Dhavaleshwar is the
grandson of deceased Lakshman. He has stated
about his visiting the spot, he identified the toppled
Tempo Trax and that when he came to the spot
Yallappa was dead, Lakshman and Nabisab were
shifted to a hospital. In the cross-examination,
however, he denied any enmity between accused
and Lakshman. He has denied the intervention of
Nadagouda in the matter.
39. PW-10-Bheemappa Yallappa Ajjanakatti has
deposed that while travelling in a lorry, he saw a
crowd near Chapati's land and when he came to the
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spot, Yallappa was dead, Nabisab and Lakshman
had sustained injuries. He immediately called PW-
66-Yamanappa and informed him about the incident
and the death. He has further stated that accused
No.1 and Yallappa had enmity and accused No.1
had got Yallappa murdered. PW-10 withstood the
test of cross-examination.
40. PW-11-Singadeepa Mudukapa Pujari has deposed
that deceased Yallappa had informed him about
going to Gokak to get the bike registered. He came
to know about the incident at 12:30 p.m. and when
he went to the spot he saw toppled Tempo Trax,
Lakshman and Nabisab were injured and Yallappa
was dead. He also saw the iron rods laying around.
He has also stated that accused No.1 had got
Yallappa murdered since there was political
differences. He has withstood the test of cross-
examination.
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41. PWs- 12, 13, 14, 16, 17 and 18 are stated to be
witnesses who heard the conversation of the
accused at various points of time conspiring to
murder Yallappa. But, they have turned hostile and
nothing could be elicited from them during the
course of cross-examination to support the case of
the prosecution.
42. PW-15 - Mahadev Rangappa Ouradi had deposed
that on the day of the incident at about 9:30 a.m.
he overheard the conversation of accused speaking
about the whereabouts of Yallappa and were
keeping track of Yallappa's movements. He has
supported the case of the prosecution and he has
withstood the test of cross-examination.
43. PW-19 - Shivanand Shankar Hottiholi denied that
the Tempo Trax belonged to his mother and/or that
it was sold to PW-22. He was also treated as hostile
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and cross-examined by the Public Prosecutor but
nothing supporting the case of the prosecution was
elicited from him during the course of cross-
examination.
44. PW-20 -Bheemsheppa Hanamantha Hadimani
denied that he had accompanied the accused on
08.09.2010 when he purchased the Trax along with
PW-22. He was also treated as hostile and cross-
examined by the Public Prosecutor but
nothing supporting the case of the prosecution was
elicited from him during the course of cross-
examination.
45. PW-21 -Siddappa Mahantappa Bisaguppi had
deposed that he saw a bike which had fallen down
in the middle of the road. He called an ambulance at
the request of the crowd who had gathered there.
He was also treated as hostile. During the course of
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cross-examination, he has admitted that the bike
was lying in the middle of the road, one person was
dead and two had been injured. He denied having
seen the Tempo Trax.
46. PW-22 denied having purchased the Tempo Trax.
He was also treated as hostile and cross-examined
by the Public Prosecutor but nothing supporting the
case of the prosecution was elicited from him during
the course of cross-examination.
47. PW-23 -Shanur Murasab Mulla denied that he had
accompanied Nabisab in the ambulance. He was
also treated as hostile and cross-examined by the
Public Prosecutor but nothing supporting the case of
the prosecution was elicited from him during the
course of cross-examination.
48. PW-24 - Rudrayya Channamallayya Hiremath
denied having performed pooja of the Tempo Trax
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at the house of accused No.13 at the time of
purchase. He was also treated as hostile and cross-
examined by the Public Prosecutor but
nothing supporting the case of the prosecution was
elicited from him during the course of cross-
examination.
49. PW-25 -Basappa Yallappa Malamani denied that
accused No.13 had come to his house with a limp
and some injuries. He also denied taking him to the
hospital. He was also treated as hostile and cross-
examined by the Public Prosecutor but
nothing supporting the case of the prosecution was
elicited from him during the course of cross-
examination.
50. PW-26 - Anand Babu denied that accused Nos.1 to
9 were staying at accused No.10's house. He was
also treated as hostile and cross-examined by the
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Public Prosecutor but nothing supporting the case of
the prosecution was elicited from him during the
course of cross-examination.
51. PW-27 - Adiveppa Shankarappa Gidageri was also a
hostile witness and nothing was elicited during
cross-examintion.
52. PW-28 - Yamanappa Tippanna Patil has deposed
that there was a political enmity between the
deceased and accused No.1. He has stated that he
saw Yallappa, Lakshman and Nabisab on a bike at
around 10:30 a.m. going towards Gokak. Later,
when he came to the spot, he saw Yallappa dead
and Laxman and Nabisab injured, iron rods laying
near Yallappa and the bike. He has also stated that
he accompanied Lakshman in the ambulance to the
KLE Hospital at Belagavi after being shifted from
Dr.Umrani's Hospital. He has supported the case of
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the prosecution and has withstood the test of cross-
examination.
53. PW-29 - Mahadevi Shankar Hottiholi denied that the
Tempo Trax belonged to her. She was also treated
as hostile and cross-examined by the Public
Prosecutor but nothing supporting the case of the
prosecution was elicited from her during the course
of cross-examination.
54. PW-30 - Appasiri Hanamanthappa Ajjanakatti
denied that he had lent an amount of Rs.1 lakh to
accused No.1. He was also treated as hostile and
cross-examined by the Public Prosecutor but
nothing supporting the case of the prosecution was
elicited from him during the course of cross-
examination.
55. PW-31 - Dundappa Gurappa Madiwalar denied that
he had transported accused Nos.11, 12, 13 and 16
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after the incident. He was also treated as hostile
and cross-examined by the Public Prosecutor but
nothing supporting the case of the prosecution was
elicited from him during the course of cross-
examination.
56. PW-32 - Dundappa Satteppa Kuri denied
having filled up diesel in the vehicle in which PW-31,
accused Nos.11, 12, 13 and 16 were traveling. He
was also treated as hostile and cross-examined by
the Public Prosecutor but nothing supporting the
case of the prosecution was elicited from him during
the course of cross-examination.
57. PW-33 - Rashid Umarsab Pendal denied that
accused No.1 paid the repair charges. He was also
treated as hostile and cross-examined by the Public
Prosecutor during the course of cross-examination
he admitted that he had repaired the vehicle and
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that accused No.1 had got the Tempo Trax for
repairs thereby linking the Tempo Trax to
accused No.1.
58. PW-34 - Veerappa Maleppa Kambar denied that he
had prepared four iron rods and gave it to accused
No.1. He was also treated as hostile and cross-
examined by the Public Prosecutor but
nothing supporting the case of the prosecution was
elicited from him during the course of cross-
examination.
59. PW- 35 - Eashwar Shattaji Magamode denied
having sold two iron rods to the accused. He was
also treated as hostile and cross-examined by the
Public Prosecutor but nothing supporting the case of
the prosecution was elicited from him during the
course of cross-examination.
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60. PW - 36 - Hussainsab Jangansab Mulla is the
brother of injured PW-2. Though he turned
hostile, during the course of cross-examination, he
admitted that accused No.1 is his neighbor and that
PW- 36 was in regular contact with accused No.9.
He further identified the mobile number of accused
No.9.
61. PW-37 - Venkappa Gulappa Karagod
denied knowing the mobile number of accused No.6.
He was also treated as hostile and cross-examined
by the Public Prosecutor but nothing supporting the
case of the prosecution was elicited from him during
the course of cross-examination.
62. PW-38 - Laxman Shankarappa Kanti denied having
provided the SIM card in his grandmother's name to
accused No.12. He was also treated as hostile and
cross-examined by the Public Prosecutor but
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nothing supporting the case of the prosecution was
elicited from him during the course of cross-
examination.
63. PW - 39 - Sanjiv Kumar, the Manager of Karnataka
Bank had produced the bank statement of accused
No.15 marked as Ex.P.-40 which disclosed the
withdrawal of a sum of Rs.2,50,000/-
64. PW- 40 - Hanamantha Bheemappa Kuppad being
the Secretary of the Dhavaleshwar village
panchayat from 2006 to 2011 has deposed
that accused No.15 was a member of the panchayat
till the year 2005 and subsequent thereto, his wife
became the elected member. Ex.P.41 to Ex.P.44 in
this regard have been marked.
65. PW - 41 - Narashima Sheturam Joshi admits to be
the owner of the Tempo Trax bearing registration
No.KA-16/M-1271 which was used by his driver PW
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- 31 but denies having knowledge about the
purpose for which the said vehicle was used.
66. PW - 42 - Venkavva Ramappa Patil was also
treated as hostile witness. However, in her cross-
examination, she has admitted that she knows few
of the accused and that she contested the elections
a few years back against the wife of accused No.15.
But, however, denied that she gave a statement
before the police as per Ex.P.45.
67. PW - 43 - Paigambar Makadum Gubbar was
treated as hostile and he denied the statement
given to the police as per Ex.P.46. Similar is the
case with PW - 44 - Lalsab Nadim Mulla.
68. PW - 45 - Shivaji Tukaram More who is working as
Superintendent at the ARTO office has deposed that
he had received a letter requesting the information
on the owner of the Tempo Trax at M.O.9
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which relates to the Tempo Trax vehicle that had
been transferred from PW-29 to PW-22 with effect
from 21.09.2010.
69. PW - 46 - N.Ravish who is stated to be working at
Indian Cane Power, Mudhol, has identified the
signature in Ex.P.51 being a check for a sum of
Rs.2,50,000/- which had been handed over to
accused No.15, which has been drawn by accused
No.15.
70. PW - 47 - Vithal Yallappa Dhavaleshwar is a
witness of Yallappa's inquest who has supported the
case of the prosecution.
71. PW - 48 - Jatteppa Chandrashekar Tadasaligi was
treated as hostile. He has denied having given any
statement before the police.
72. PW - 49 - Lakkappa Laxman Ouradi and PW - 50 -
Raju Hanumantha Uppar being the witnesses to the
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inquest have also turned hostile. They have denied
all suggestions during the course of cross-
examination.
73. PW -51 - Shrimant Hanuman Neelappagol has
denied that he was a panch witness for the clothes
seizure panchanama of the deceased Yallappa.
74. PW - 52 - Siddarai Bheemappa Rabakavi and PW -
53 - Lakkappa Yallappa Ajjanakatti were Panch
witness who has turned hostile, they have denied
that they were present when the panchnama was
conducted. They were also treated as hostile and
cross-examined by the Public Prosecutor but
nothing supporting the case of the prosecution was
elicited from them during the course of cross-
examination.
75. PW - 54 - Prakash Sigadeppa Pujeri was also a
Panch witness who has turned hostile but however
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during the course of cross-examination, he admitted
to drawing of Ex.P.83 to Ex.P.86.
76. PW - 55 - Raghavendra Laxman Jambagi and PW -
56 - Mallappa Guruppa Adavi, other Panch
witnesses have turned hostile.
77. PW - 57 - Basappa Pandappa Butannavar was
another Panch witness who turned hostile and was
cross-examined wherein he admitted the knowledge
of and his signatures on the panchanamas.
78. PW - 58 - Ramappa Krishnappa Nadagatti, another
Panch witness turned hostile and nothing was
elicited from him during cross-examination.
79. PW - 59 -Imamsab Meersab Ansari deposed that he
has taken a photograph upon the request of the
police, which had been marked as Ex.P.94 to
Ex.P.102.
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80. PW - 60 to PW - 65, the other 5 witnesses have
been treated as hostile.
81. PW - 66 who is the brother of deceased Yallappa
has deposed that there was enmity between
accused No.1. and Yallappa. Accused No.1 was
under the impression that his brother was murdered
by deceased Yallappa. Accused No.13 is Mallappa's
son-in-law. He has also stated that accused Nos.4
and 12 had land disputes with deceased Yallappa.
PW-66 had seen Yallappa, Lakshman and PW-2 -
Nabisab going to Nadagouda's house at 10 a.m. and
thereafter going to Gokak for registration of the
bike. PW - 66 and PW -1 went to the incident spot
and on the way saw the Tempo Trax with iron rods
in it. At the spot of incident he saw Yallappa's dead
body, Lakshman and PW-2 injured. He described the
kind of injuries on deceased and PW-2. He has
identified the bike as M.O.6, iron rods lying next
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to Yallappa as M.O.8 and M.O.14 and the and the
Tempo Trax as M.O.9. PW - 66 has supported the
case of the prosecution and nothing much was
elicited from him during the course of cross-
examination.
82. PW - 67 - Ismail Kutubuddin Danka has taken
photographs at Ex.P.111 and Ex.P.112 at the
request of the police as also at Gokak Government
Hospital at around 3 p.m. In the cross-examination
though he states that the photos do not show the
date and time, he admitted that the Circle Police
Inspector and Panch witnesses were present at that
time.
83. PW - 68 - Dr.Santosh Ganiger conducted the
postmortem of Yallappa on 23.09.2010. He has
deposed that injury Nos.1 to 3 on Yallappa could
have been caused if a person is assaulted with iron
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rods such as M.Os.7, 8, 13, 14 and 33. PW - 68 has
stood the test of cross-examination and supported
the case of the prosecution.
84. PW - 69 - P.C.Pattara is an engineer in PWD, has
prepared the sketch of the incident spot, has
identified as Ex.P.122.
85. PW - 70 -Dr.M.H.Patil has deposed that accused
No.13 was treated in B.M.Patil Medical College,
Bijapur, from 24.09.2010 to 31.09.2010 as an out-
patient.
86. PW - 71 -Dr.Mangala Maruthi Sanadi has conducted
post mortem on deceased Lakshman and submitted
a report stating that he had expired on account of
hemorrhage and shock. She has stated that such
injuries could occur on account of the assault from
the iron rods marked in the matter. She further
states that any assault by the iron rods could have
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resulted in fatal injuries. PW - 71 has supported the
case of the prosecution and nothing much was
elicited during the course of cross-examination.
87. PW - 72 - Dr.Maheshkumar G.Umrani is the doctor
who had examined Lakshman and PW-2 initially and
had opined that Lakshman has to be taken to the
KLE Hospital for further treatment. He has
stated that Lakshman was alive at that time.
88. PW - 73 - P.M.Yadavannavar, a Village Accountant
has given the certified copies of sketch of
Sy.No.82/2 on which the house was located. He has
supported the case of the prosecution and nothing
is elicited from him during the course of cross-
examination.
89. PW - 74 - S.N.Halacheri is the Head Constable who
has taken the body of Yallappa for Post Mortem. He
has supported the case of the prosecution but
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nothing was elicited during the course of cross-
examination.
90. PW - 75 - Santosh Ramachandra Bevinakatti being
the scribe of the complaint has stated that the
complaint was typed out on the basis of the
statement made by PW-1 which was read over to
PW-1 and her LTM affixed.
91. PW - 76 -D.B.Shinde is a technician working in the
office of the Superintendent of Police, Belagavi. He
has obtained and provided the call records and
details of 14 members which were marked as
Ex.P.146 to Ex.P.159.
92. PW - 77 - Keshav Yallappa Kadleppagol, is the
Assistant Sub Inspector of Kulgod Police Station
who had arrested accused No.13 and presented him
before the Magistrate on 11.11.2010.
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93. PW - 78 - Basanagouda Eranagouda Patil carried
the 18 sealed properties to Regional Forensic
Science Laboratory.
94. PW - 79 - L.P.Hampiholi, delivered the blood
stained soil, which was collected from the spot of
incident, to the FSL, Bengaluru.
95. PW - 80 - Ramesh Krishnagouda Somanagoudar
had handed over the FIR and the report to the
Magistrate on 23.09.2010.
96. PW - 81 - Balappa Shrimantha Channikuppi was
tasked with finding the accused No.16 who was not
found and declared an absconder.
97. PW - 82 - Muttanna Saravagola had collected the
iron rods and sent it to the medical opinion of the
FSL.
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98. PW-83 S.R.Kattimani, Circle Inspector of Police,
Gokak, has deposed that he took up further
investigation, inquest of the body of Lakshman was
conducted in the presence of witnesses as per
Ex.P,56 and was sent to the Government Hospital at
Gokak for post-mortem. The post-mortem report is
as per Ex. P127. PW-83 went to the hospital where
PW-2 had been hospitalized, enquired with the
Medical Officer about the fitness of PW-2 and on
being informed that a statement could be recorded,
he recorded the statement of PW-2.
99. PW-83 seized the clothes found on the dead body of
Yallappa by conducting a mahazar as per Ex.P.67,
clothes found on the dead body of Lakshman under
a mahazar at Ex.P.68. Thereafter, the bodies of the
deceased were handed over to their respective
relatives.
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100. PW-83 recorded the statement of witnesses and
various other persons. As per his instructions,
repeated follow up of accused yielded in arrest of all
the accused, except accused No.16 who was
absconding. PW-83 recorded confession statement
of all the arrested accused, seized their
mobile phones after conducting a mahazar, he
collected the CDRs of the mobile phones from the
service provider as per Ex.P.146 to 149, the post-
mortem report of Yallappa at Ex.P.114, Lakshman
at Ex.P.127 and wound certificate of PW-2 at Ex P
138 and 140. PW-83 came to know that accused
Nos.11, 13, 14 and 16 had also sustained injuries
when the Tempo Trax toppled and that they had
taken treatment at BLDC Hospital in Bijapur. Hence,
he visited the said hospital and collected the wound
certificates of the said accused from the said
hospital and handed over the file to PW-82 for
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further investigation. PW-83 collected all the
documents from the experts including FSL and
thereafter handed over the investigation to PW-85.
101. PW - 85 - Kareppa Shivappa Hatti had collected the
report from the FSL and RFSL and submitted them
to the Court, he has deposed that he completed the
investigation and submitted a charge-sheet on
22.12.2010 in the Court of JMFC, Gokak, against
the accused for the offences punishable under
Sections 143, 147, 148, 302, 307, 120B and 212
read with Section 149 of the IPC.
102. PW - 86 - Smt.Sahinaz Fatima is the Scientific
Officer of the FSL who has deposed that the blood
found on the iron rods is that of a human.
103. The trial Court has acquitted all other accused since
the prosecution was unable to prove conspiracy,
which has not been challenged. What we are
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concerned in this appeal is only as regards the
conviction of accused Nos.1, 11, 13 and 14.
104. Thus, from the perusal of the evidence recorded, it
is seen that PW-1 and PW-66 have clearly and
categorically stated about the enmity between the
deceased Yallappa and Accused No.1 and what they
found at the spot of crime.
105. PW-2 Nabisab who is the injured eye-witness to the
incident has deposed about the enmity between
Yallappa and accused No.1 and also enmity with the
other accused. He has also categorically stated
about how accused Nos.11, 13, 14 and 16 got down
from the Tempo Trax which was driven by accused
No.13. Accused No.13 instructed the other accused
to assault and kill Yallappa and thereafter to kill
Lakshman and PW-2. He has identified accused
Nos.11, 13, 14 and 16. His evidence being as an
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injured eye-witness evidence is the best evidence
on record, as has been taken into consideration by
the trial Court at the time of convicting the accused.
The enmity is only attributed with Yallappa and
there is no personal enmity between PW-2 and
accused No.1 or other accused. The accused who
had committed the overt acts has been identified by
PW-2 who being an eye witness has deposed of
their acts and this testimony has not been
shaken during the course of cross- examination. In
that he has stood the test of cross-examination and
nothing was elicited from him by the accused.
106. PWs-1, 2,10,28 and 66 have deposed as regards the
enmity between Yallappa and accused No.1 on the
one hand and enmity with accused No.4, 12, and
accused No.15 on the other hand.
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107. As aforesaid, the deposition of PW-2- Nabisab is
clear and categorical as regards the involvement of
accused Nos.1, 11, 13 and 14, accused
No.16 having absconded. The said Tempo Trax
M.O.9 was also found at the spot. Neither PW -29
nor her son PW - 19 were able to explain the
presence of Tempo Trax there. However, PW -2 has
deposed about Accused 11, 13, 14 and 16 having
travelled in the said Tempo Trax.
108. The Station House Dairy and certain other
documents were summoned at the instance of the
accused. However, they had only marked the
Station House Diary dated 23.09.2010 as per Ex.P1.
109. The trial Court has considered the FIR and charge-
sheets produced by the police in as much as FIR in
Cr.No.143/2008 registered by the Kulgod Police
Station and under Section 107 of the Cr.P.C. against
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Bheemappa Siddappa Dhavaleshwar and 12 others.
The said complaint having been filed by deceased
Yallappa alleging that there was a boundary dispute
between him and the accused.
110. FIR in Cr.No.144/2008 registered with the Kulgod
Police Station under Section 107 of
Cr.P.C against deceased Yellappa and 8 others by
Siddappa Bheemappa Dhavaleshwar wherein it is
alleged that Siddappa Bheemappa Dhavaleshwar
and deceased Yallappa had fought with each
other and filed cases and counter cases.
Cr.No.153/2009 was registered against Jadappa
Siddappa Davaleshwar and two others for
murdering Mallappa Laxmappa Adinavar on
24.09.2009.
111. FIR in Cr.No.126/2008 was registered by the Kulgod
Police Station against Bheemappa Siddappa
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Davaleshwar and Siddappa Bheemappa
Davaleshwar and 6 others wherein they are said to
have fought with Rukmavva, wife of deceased
Yallappa and assaulted her with deadly weapons
and when Lakshman sought to rescue her, he also
sustained injuries. A complaint came to be
registered for offences punishable under Sections
143, 147, 148, 323, 324, 504 and 506 read with
Section 149 of IPC. Accused Nos.4 to 12 herein
were also accused in that case. After completion of
investigation, charge-sheet had been filed and
Yallappa and Lakshman were shown as witnesses to
the said cases.
112. FIR in Cr.No.127/2008 registered by Kulgod Police
Station against deceased Yallappa, deceased
Lakshman and 7 others at the instance of Siddappa
Dhavaleshwar for the offences punishable under
Sections 143, 147, 148, 323, 324, 504 and 506
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read with Section 149 of IPC. As regards the very
same event FIR in Cr.No.126/2008 had been
registered.
113. This being the complaints and the counter
complaints, the evidence of PW-1 including cross-
examination as also the unmarked exhibits in terms
of FIRs in various crime numbers having been
produced, the evidence of PW-1 is believable, she
having stood the test of cross-examination and the
unsuccessful attempts by the accused to confuse
her. In that there were suggestions made to PW-
1 that Mallappa had been murdered two to three
years prior to the incident. However, PW-1 has
categorically stated that it was one year prior to the
incident which could be seen in
Cr.No.153/2009 which states that Mallappa was
murdered on 24.09.2009. They also sought to
confuse her by making suggestions that there were
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no disputes between deceased Yallappa and accused
No.1, which was denied by her. She has stuck by
her complaint and the evidence that her deceased
husband and accused No.1 were supporting
opposing parties and there was rivalry between
them during election times. Suggestion was also put
across as if to contend that the lands of the
deceased Yallappa and that of accused Nos.4 and 12
were not next to each other which has also been
denied by PW-1. Suggestion was also put across to
her that complaint was prepared at the instance of
one Nadagouda who was a local politician in whose
group Yallappa was, and that Nadagouda had
enmity with another group headed by one Mr.Desai
in whose group accused No.1 was and as such, it
was suggested the complaint was malafide at the
instance of Nadagouda and there are no offences
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made out against the accused which has also been
made out.
114. As regards the complaint given by PW-1 having
been typed and not written. PW-75 who has typed
out the complaint in the computer has categorically
stated that the said typing has been made as per
the information supplied by PW-1. Hence, we are of
the considered opinion that the typing of the
complaint by using of a computer does not take
away the veracity of the complaint as such.
115. PW-2 Nabisab is the material eye-witness to the
incident. He has spoken about the purchase of
his new motorcycle on 22.09.2010, he wanted to
register the motorcycle in RTO office at Gokak and
requested Yallappa and Lakshman to accompany
him for the same and the presence of accused No.3
with these aspects had been discussed. He has
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stated about how at 10 a.m. he went to the house
of Yallappa where Lakshman was also present.
Thereafter, all the 3 went to the house of
Nadagouda. Lakshman and Yallappa had gone inside
and had some discussion with Nadagouda.
Thereafter, all the 3 returned to Yallappa's house,
had lunch and thereafter left to go to Gokak on the
new motorcycle which was ridden by Yallappa.
Lakshman was sitting in the middle and PW-2 -
Nabisab was sitting in the last. He has also deposed
of how a Tempo Trax came at a high speed and
though Yallappa tried to avoid the Tempo Trax, it
dashed against them which resulted in certain
injuries being caused to them, the driver of the
Tempo Trax being accused No.13 came out of
Tempo Trax followed by accused Nos.11, 12 and 16
holding iron rods, accused Nos. 11 and 13 pointed
to Yallappa and asked accused No.14 and 16 to kill
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him and that they assaulted Yallappa with iron rods.
PW-2 has also deposed that after killing Yallappa,
they attacked Lakshman and PW-2 and thinking that
all the three were dead they left the spot. He has
stated that thereafter the villagers came to the
spot, lifted Lakshman and himself into an
ambulance and took him to the hospital of
Dr.Umrani. He later on came to know of Yallappa
having died at the spot and Lakshman having died
on the way to KLE Hospital. He has spoken about
the fracture of his right leg, injuries on his head
etc., PW-2 has identified accused No.11, 13 and 14.
He has also referred to and spoken of the dispute
between Yallappa and accused No.1 as regards the
elections and certain other matters including the
boundary disputes. Though, in the cross-
examination several suggestions were put across,
he has denied all of them and stood the test of
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cross- examination. One of the suggestions which
had been put across is that the complaint was filed
at the instance of Nadagouda and he was deposing
at the instance of Nadagouda which has been
denied. One of the aspects which gives credence to
the deposition of PW-2 is that he has only deposed
about the enmity of the accused with deceased
Yallappa. He has not stated about any enmity of the
accused with himself. Further more, he has only
deposed insofar as accused Nos.1, 11, 13, 14 and
16 and not against the other accused i.e., to say
that he has only deposed against the persons who
are stated to have carried out overt acts in the
crime.
116. PW-3 being another eye-witness has deposed that
at 10 a.m. when he was cultivating his land with his
wife, he saw a Tempo Trax coming from Kulgod side
and colliding with the motorcycle coming from
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Mannapur side ridden by Yallappa. However, since
he did not say anything further he was treated as
hostile witness and cross-examined. Similar is the
deposition of PW-4, wife of PW-3. We are in
agreement with the conclusion drawn by the trial
Court that PWs- 3 and 4 have deposed falsely
inasmuch as though they have contended that they
saw the accident, they had not gone forward to help
Lakshman who was the uncle of PW-3 and had
identified him before the accident had occurred. It
cannot be believed that PW-3 would not have gone
to assist his uncle who was involved in a serious
accident like the one which he has stated to have
occurred resulting in his death. Though PWs- 3 and
4 have denied having given the statements at
Ex.P.3 to 5, in view of the above discussion, we are
of the considered opinion that they had indeed
given their statement to PW - 83 who had recorded
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the statement which is more believable than the
denial made by PWs- 3 and 4. There being several
disputes between the parties which has resulted in
violence, we are of the considered opinion that
probably PWs- 3 and 4 wanted to avoid any further
violent crime being committed against them and
therefore, they have turned hostile.
117. This has been the allegation in so far as accused
Nos.1, 11, 13, 14 and 16 as regards their overt acts
of committing the murder of Yallappa and Lakshman
and attempting to murder PW-2 - Nabisab, the
allegation made against each of the accused as
regards the conspiracy. The conspiracy is attributed
to the very same reasons as regards the
enmity regarding boundary dispute etc., as alleged
against accused Nos.1, 11, 13, 14 and 16. The
witnesses who have been examined to establish this
conspiracy are PWs-5, 6, 7, 8 and 9 who have
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turned hostile. PW-10 has supported the case of the
prosecution. PWs- 19 and 29 owners of the tempo
tax have turned hostile.PW - 22 though has turned
hostile, he has made an application for release of
the Tempo Trax in his favour. In his deposition, PW
- 22 has stated that the Tempo Trax had met with
an accident on 22.09.2010 in the evening and the
vehicle was abandoned there. PW - 22 had not
made any complaint to the jurisdictional police as
regards the accident nor was any claim lodged for
compensation. The application for release of the
vehicle was made only after the charge sheet was
filed without arraying PW-22 as an accused which
improbableises the story of PW - 22.
118. PW - 21 who is said to have come to the spot of the
accident and seen the injured has not supported the
case of the prosecution entirely and hence he was
treated as hostile and cross examined. During the
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course of cross-examination, he has admitted that
he had telephoned for the ambulance on
23.09.2010 at 11.50 a.m. He was going towards
Mahalingapur on Kulgod Mannapur road when he
saw a motorcycle fallen, a dead body near it and
two other persons having sustained grievous
injuries. This deposition of PW - 21 clearly and
categorically establishes the time of the accident to
be around 11.50 a.m. and not 10:00 a.m as
suggested during the course of cross-
examination by the accused.
119. PW - 28 has supported the case of the prosecution.
He has deposed as regards the enmity between the
accused and deceased Yallappa. He is neither an
eyewitness nor he has spoken about the incident
except to identify the spot of the incident.
120. From the above, the following facts are established:
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120.1. That there was enmity between accused No.1
and deceased Yallappa which arose on account
of the elections to the Mannapur Gram
Panchayat since the candidate of accused No.1
was defeated by the work carried out by
Yallappa and his group. This being evidenced
by the testimony of PWs - 1, 2 and 66 as
also by un-exhibited documents namely the
FIR in Cr.Nos.126/2008 and 127/2008.
120.2. PW - 42 - Venkavva Ramappa Patil has
admitted that she knows few of the accused
and that she contested the elections a few
years back against the wife of accused No.15.
and the deceased Yallappa and his group had
supported PW 42 and had defeated the
candidate supported by Accused No.1 who was
his relative.
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120.3. The boundary dispute has been established by
the deposition of PWs -1, 2, 66 and by
the unmarked documents in Cr.Nos.143/2008
and 144/2008.
120.4. The probable suspicion on the part of accused
No.1 thinking that the deceased Yallappa was
behind the murder of his brother Mallappa
Laxman Adinavar is also established by the
testimony of PWs - 1, 2 and 66 and the
unexhibited documents in Cr.No.153/2009
which was registered against Jadappa
Siddappa Dhavaleshwar and 2 others for
murdering Mallappa on 24.09.2009 which was
within one year of the murder of Yallappa. The
and 12 is clear from those FIRs filed.
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120.5. PW - 83 being the Investigating Officer has
seized the weapons and incriminating articles
on the basis of the confessions of the accused.
He has stated about recording the confession
of the accused, seizure of weapons, blood-
stained clothes, drawing the mahazar of
different places where the Tempo Trax was
found etc.,
120.6. The seizure made by PW - 83 of various items
including bloodstained clothes, chappals, iron
rod, confession made in the presence of PWs -
52 and 53. The witnesses who have turned
hostile, in the cross-examination by the Public
Prosecutor have admitted the seizure of
clothes and the iron rods which has not been
displaced in the cross- examination conducted
by the accused i.e., the seizure of the blood-
stained clothes and the iron rods is
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established. Though several witnesses have
turned hostile, the main witnesses have
deposed in favour of the prosecution and have
withstood the test of cross-examination.
120.7. Yallappa and Lakshman having expired on
account of the assault made on them, PW - 2 -
Nabisab being the eyewitness has categorically
stated that accused No.13 was driving the
Tempo Trax accompanied by accused Nos.11
and 12 who came out of their Tempo Trax and
on a specific instruction given by accused
No.13, all of them assaulted Yallappa with an
intention to kill him and consequently, to leave
no evidence assaulted Lakshman and PW -2
Nabisab with an intention to kill them. The
best evidence is that of the eyewitness more
so an injured eye witness who has suffered the
crime. PW -2 having been grievously
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injured and the injuries caused to him were
threatening his life, there is no reason for us
to doubt the testimony of PW - 2 more so as
he having suffered such an assault would not
impute the responsibility on a person other
than those who had committed the assault. He
has also deposed as regards the enmity
between accused No.1 and deceased
Yallappa which had resulted in the
said assault and murder.
120.8. The post mortem report as per Ex.P.114
conducted by PW - 68 is also clear and
categorical, in that the cause of death is stated
to be haemorrhage which has been caused by
fracture of the skull bone which in turn has
been caused by usage of the iron rods seized
at M.Os.7, 8, 13, 14 and 33. The doctor
conducting the post-mortem has also opined
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that the injuries which have been caused to
the deceased Yallappa might have been
caused by the said iron rods at M.Os.7, 8, 13,
14 and 33.
120.9. The post mortem report at Ex.P.127 issued by
PW - 71 as regards the deceased Lakshman
has also opined that the cause of death is
hemorrhagic shock which has been caused on
account of the various external injuries which
have in turn been caused by usage of the iron
rods as per the information of PW - 71.
Medical opinions have stated that the use of
the iron rods could have caused the injuries
which ultimately resulted in the death of
Lakshman, the case of the prosecution is also
corroborated by the expert evidence of PW -
68 and PW - 71 which have not been
Crl. A No.100006/2017
displaced during the course of the cross-
examination by the accused.
121. In view of the above, the guilt of accused Nos.1, 11,
13 and 14 has been proved beyond reasonable
doubt. All the circumstantial evidence adduced
support the evidence of the injured eye witness -
PW -2, the test and requirements as laid down by
the Apex Court in BASHEERA BEGAM's case is
satisfied.
122. On an examination of the evidence, it is clear that
there is no contradiction as such which goes to the
root of the matter affecting the guilt of accused
Nos.1, 11, 13 and 14. The sole eye witness who is
the injured eye-witness - PW -2 Nabisab has
categorically stated events as they are said to have
occurred, he has stood the test of cross-
examination. There is nothing on record to imply
Crl. A No.100006/2017
that his testimony is unreliable. If not anything, his
testimony is most reliable in the present case.
123. The contention of Shri Gundawade, learned counsel
that investigation had been commenced even before
the complaint was lodged is completely
misconceived. The police had come to the spot on
receiving information of an accident as also the
death of certain persons. It is only subsequently
that PW -1 lodged the complaint on which basis the
crime was registered and investigation commenced.
The mere presence of the police at the scene of
crime prior to lodging of the complaint would not
amount to commencement of investigation as held
by the Hon'ble Apex Court in ANIMIREDDY
VENTAKA RAMANA's case.
124. The prosecution has also established the motive for
the occurrence of the crime which has stood the test
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of cross-examination of all the witnesses. The said
motive is also borne out by the unexhibited
documents as aforestated. Thus, in view of the
above, applying the rule of the Hon'ble Apex Court
in BALESHWAR MAHTO's case, PW-2 being the
injured eye witness due credence to his testimony
has to be afforded as held by the Hon'ble Apex
court. The injury to the witness is an inbuilt
guarantee both of his presence at the scene as also
that he would not falsely implicate any third party
for his injuries.
125. Thus, from the above discussion, it is clear that the
learned Sessions Judge after discussing the oral and
documentary evidence placed on record and having
considered the same in detail has come to the
correct conclusion that the charges levelled against
the accused are proved beyond reasonable doubt.
Our analysis and re-appreciation of the evidence
Crl. A No.100006/2017
also indicate and supports the said finding. Hence,
we pass the following:
ORDER
The appeal as filed is dismissed.
(Sd/-)
JUDGE
(Sd/-)
JUDGE
Jm/-
