Venu @ Venugopal vs The State Of Karnataka
2021 Latest Caselaw 19 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 4TH DAY OF JANUARY, 2021

                          PRESENT

            THE HON'BLE MR. JUSTICE B. VEERAPPA

                            AND

       THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

                CRIMINAL APPEAL NO.296/2015

BETWEEN:

VENU @ VENUGOPAL
S/O SHYAMANNA
AGED ABOUT 23 YEARS
AGRICULTURIST
R/AT PURADAGADDE VILLAGE
DIBBUR POST, MANCHENABELE HOBLI
CHIKKABALLAPURA TALUK AND DISTRICT-562 105.
                                                  ...APPELLANT

(BY SRI MADHAV KASHYAP, ADVOCATE FOR
    SRI P. PRASANNA KUMAR, ADVOCATE)

AND:

THE STATE OF KARNATAKA
SIDLAGHATTA RURAL POLICE STATION,
BY SPECIAL PUBLIC PROSECUTOR
CHIKKABALLAPURA TALUK AND DISTRICT-562 105.
                                              ...RESPONDENT

(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
                                   2




     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 11.02.2015, PASSED BY THE II
FAST TRACK COURT AT CHINTAMANI, IN S.C.NO.62/2012 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE   UNDER    SECTION    302  OF   IPC  AND   THE
APPELLANT/ACCUSED     IS     SENTENCED     TO    UNDERGO
IMPRISIONMENT FOR LIFE AND TO PAY FINE OF Rs.50,000/, IN
DEFAULT OF PAYMENT OF FINE, SHALL UNDERGO S.I. FOR THE
PERIOD OF 6 MONTHS, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC.

     THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B. VEERAPPA, J., DELIVERED THE FOLLOWING:

                             JUDGMENT

The Appellant-accused filed the present Criminal Appeal

against the impugned judgment of conviction and order of

sentence dated 11.02.2015 passed in Sessions Case

No.62/2012 on the file of the Fast Track Court-II, Chintamani

convicting the appellant accused for the offences punishable

under Section 302 of IPC and sentenced him to undergo

imprisonment for life and pay fine of Rs.50,000/-

2. It is the case of the prosecution, that, on

22.11.2011, at about 12.45 noon, the deceased Krishnappa

came to the SLN tiles shop of Munikrishna at Chikkaballapura

on a Pulsar Motor Cycle bearing registration No.KA 05 HD

1664 along with a pillion rider Venu, who is his relativeand

spoke with P.W.2- Munikrishna and also with one Santhosh

who was in the shop. After some time, the deceased

Krishnappa and Venu went near the shop of one Jagadeesh

and after collecting Rs.10,000/- returned to the SLN tiles

shop. In the shop, after having discussed with Venu to go to

Kolar to purchase sent Venu to fill petrol to the vehicle. The

accused purchased a sickle on the footpath to snatch money

from the deceased Krishnappa and kept sickle in the back

pocket of his pant and returned to the S.L.N. tiles shop and

from there, the deceased Krishnappa proceeded on the motor

cycle with Venu as a pillion rider to go to Kolar between 2.15

to 2.30 p.m. On the way, the deceased Krishnappa stopped

the vehicle little away from Anoor gate to attend the nature

call. At that time, the accused thinking that it is the right

time, tried to stab the deceased Krishnappa from behind and

while Krishnappa tried to escape, he slipped and fell down. At

that time, the accused fisted on the face of the deceased

Krishnappa three to four times and due to which, he lost his

conscious. Then the accused dropped stone thrice on the

head of the deceased Krishnappa and after confirming about

his death, the accused took Rs.10,000/- which was in the

purse of the deceased Krishnappa and fled away along with

the motor cycle. Thereby the accused committed the offence

punishable under section 302 of IPC.

3. On the basis of the complaint lodged by PW-1, the

Jurisdictional Police investigated the case and filed the charge

sheet for the offence committed by the accused. After

submitting the charge sheet to the Court of Sessions, the

learned Sessions Judge framed the charges and read over the

same to the accused, but the accused pleaded not guilty and

claimed to be tried.

4. In order to prove the case, the prosecution in all

examined 28 witnesses as PWs.1 to PW.28 and got marked

documents at Exs.P.1 to P.16 and material objects as M.Os.1

to M.O.23. After completion of the evidence of the

prosecution witnesses, the learned Sessions Judge recorded

the statement of the accused as contemplated under Section

313 of Code of Criminal Procedure, 1973 ( for short, Cr.P.C.).

The accused denied all the incriminating evidence adduced

against him and did not choose to adduce any defence

evidence. The accused got marked the portion of the

statement of C.W.5 as Exs.D1 and Ex.D2 through P.W.26, who

is the Investigating Officer.

5. The learned Sessions Judge upon considering the

evidence on record, formulated the following two points for

consideration:

"1. Whether the prosecution proves that on 22.11.2011 about 2.15 pm to 2.30 pm near Anoor gate of Sidlaghatta taluk to snatch money from Krishnappa the accused tried to stab him with knife and when he slipped and fell down while escaping fisted him and by dropping stone twice on his head

and murdered him and there by committed the offence punishable under section 302 of IPC?

2. To what order ?"

6. After considering the oral and the documentary

evidence, the learned Sessions Judge recorded a finding that

the prosecution has proved the guilt of the accused beyond all

reasonable doubt, that, on 22.11.2011, between 2.15 p.m. to

2.30 p.m., the accused, with an intention to snatch money

from the deceased Krishnappa tried to stab him with the Knife

and when the deceased Krishnappa slipped and fell down while

try to escape , the accused dropped the stone on the head of

deceased Krishnappa and murdered him and thereby

committed the offence punishable under the provisions of

Section 302 of I.P.C.

7. Accordingly, the learned Sessions Judge by

impugned judgment of conviction and order convicted the

accused and sentenced him to undergo imprisonment of life

with a fine of Rs.50,000/- for the offence punishable under

Section 302 of I.P.C. and in default of payment of fine, to

undergo simple imprisonment for a period of 6 months.

Hence, the present appeal is filed.

8. We have heard the learned counsel for the parties.

9. Sri Madhav Kashyap, learned counsel for the

appellant mainly contended that the impugned judgment of

conviction and order of sentence passed by the Trial Court,

convicting the accused for the offence punishable under

Section 302 of IPC is erroneous and there were no materials to

show the involvement of the accused in the alleged offence.

He would further submit that there are no eyewitnesses to the

alleged offence on the spot. P.Ws.12 and 13 who were near

the vicinity of the area where the incident occurred have not

supported the case of the prosecution. He would further

submit that the accused has not committed the alleged

offence and the Police have registered a false case against

him. P.W.1, who lodged the complaint is a stranger and there

is no last seen theory of the deceased and the accused being

together. The alleged recovery at the instance of the accused

is not proved. Recovery of MO.9 T-shirt was also not proved.

10. He would further contend that, the learned

Sessions Judge, proceeded to convict the accused mainly on

the basis of the voluntary statement of the accused and the

recovery of M.O.9 T-shirt and the blood stains on the T-shirt

which does not match with the blood group of the deceased.

Absolutely, there are no materials against the accused and the

accused has been falsely implicated in the homicidal death of

the deceased. Therefore, he sought to allow the appeal.

11. In support of his contention, the learned counsel

relied upon the dictum of the Hon'ble Supreme Court in the

case of Sonvir alias Somvir vs. State of (NCT of Delhi)

reported in (2018) 8 SCC 24 para 26.3.

12. Per contra, Sri Vijaykumar Majage, learned Addl.

S.P.P. while justifying the judgment of conviction and order of

sentence contended that P.Ws.12 and P.W.13 are the

eyewitnesses who supported the case of the prosecution.

Ex.P.11, FSL report and the statement of P.W.24, who is the

FSL Officer clearly depicts that the blood samples taken from

item Nos.2,4 & 9 are of human blood and is a type 'B' group.

Therefore, prosecution has proved the offence committed by

the accused beyond all reasonable doubt and the involvement

of the accused in the homicidal death of the deceased

Krishnappa. He would further contend that P.W.2 panch

witness also supported the case of the prosecution including

P.W.26, the Investigating officer and P.W.5 mother-in-law of

the deceased Krishanppa. The learned Sessions Judge after

considering both the oral and the documentary evidence,

came to the conclusion that the accused is involved in the

homicidal death of the deceased Krishnappa. Therefore, he

sought to dismiss appeal.

13. In view of aforesaid rival contentions urged by both

the learned counsel for the parties, the point that arises for

our consideration in this appeal is that:

"Whether, the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence convicting the accused for imprisonment of life with a fine of Rs.50,000/- for the offence punishable under section 302 of IPC in the facts and circumstances of the present case.?

14. We have given our anxious consideration to the

arguments advanced by the learned counsel appearing for the

parties and perused the entire material including original

records carefully.

15. This Court being the Appellate Court, in order to

re-appreciate the entire material on record, it is relevant to

consider the evidence of the prosecution witnesses and also

material documents relied upon, which are as under:

(i) P.W-1 Narayanaswamy, the complainant, has

reiterated the averments made in the complaint and stated

that he was informed by P.W.12 about the incident and he has

given written complaint to the police. P.W.12- Suma identified

the accused before the Tahsildar and supported the case of

the prosecution.

(ii) P.W-2 Munikrishna (friend of deceased Krishnappa)

deposed that he is the friend of deceased Krishnappa and also

stated that he owns tiles shop at Chikkaballapura. He further

deposed that the deceased alone had come to his shop.

Thereafter, seven to eight workers of the deceased came

along with him and ultimately this witness was treated as

hostile.

(iii) P.W.3- Suresh also deposed that he cannot identify,

the accused or the deceased was treated hostile.

(iv) P.W.4-Naveen, the relative of both accused and

deceased deposed that he heard the people discussing that

the accused had done away with the life of the deceased

Krishnappa and thereafter he went to see the body of the

deceased Krishnappa at Shidlaghatta Government Hospital

and however he was not allowed to see the dead body. Police

seized the clothes of the deceased Krishnappa as per Ex.P.4

Mahazar and his signature is marked as Ex.P.4(a). Jerkin of

deceased Krishnappa was shown but, however, the witness

could not identify other clothes and he supported the case of

the prosecution.

(v) P.W.5 Lakshmamma (mother-in-law of the

deceased Krishnappa) deposed that she knows the accused

and the deceased Krishanppa, according to her, the accused

visited the house of her daughter with her son-in-law i.e., the

deceased Krishnappa. Despite the wife of the deceased

Krishnappa saying over phone that not to bring the accused

home, the deceased Krishnappa had brought the accused to

her daughter's house.

(vi) P.W.6 - Nagaraj turned hostile.

(vii) P.W.7 - Jagadish deposed that he does not know

the accused and further deposed that he was informed by

P.W.11 that the deceased Krishnappa would come to his shop

and he was instructed to pay a sum of Rs.10,000/- to

deceased Krishanappa and one more person had come along

with the deceased Krishnappa. P.W.7 gave Rs.10,000/- to the

deceased Krishnappa. He further deposed that he was not in

a position to identify the person, who had come along with the

deceased Krishanappa was the accused or not and he

supported the case of the prosecution.

(viii) P.W.8-Naveen a paan vendor deposed that he was

enquired by the Police whether the accused had come to buy

Heera Packet from his shop and he told that he was not aware

of the same and he denied the suggestion made in the cross

examination and he was also treated as hostile.

(ix) P.W.9-Babu who deposed that he knew the accused

and the deceased Krishnappa and further deposed that about

2 years ago, at 7 p.m. he came to know that someone had

killed the Krishnappa and he was treated as hostile.

(x) P.W.10 Prathap deposed that he had identified the

accused and accused had borrowed Rs.20,000/- from him and

the accused made the false promise that he would repay the

amount, but till date he had not paid the amount. He further

deposed that he had identified the accused in the Police

Station and supported the case of the prosecution.

(xi) P.W.11 - D.V. Narayanaswamy who deposed that

he knew the deceased Krishnappa as he was his customer and

deceased Krishnappa had supplied tiles to him in the year

2011 for renovation of his house, and total bill was

Rs.3,50,000/- and he had paid Rs.3,20,000/- and he was due

to pay Rs.30,000/- to deceased Krishnappa and further

deposed that he was informed by P.W.7 that the deceased

Krishnappa would come to his shop to pay Rs.10,000/- and

supported the case of the prosecution.

(xii) P.W.12 Suma who is the prosecution witness has

deposed that she does not know the accused and further

deposed about 2 years at about 3 p.m., her husband and

herself have seen the murder deposing they heard sound of

stone falling and they went near the spot and saw one person

lying on the floor and another standing near the motor cycle

and the person standing fleeing away from the scene on a

bike. She further deposed that other person was dead and he

was killed by a stone and there was blood on his mouth and

ears. She partly supported the case of the prosecution.

(xiii) P.W.13-Narasimhappa who is the husband of the

P.W.12 deposed that the rider who fled away from the scene

of occurrence was wearing a Red T-shirt and an orange

coloured full-shirt and partly supported the case of the

prosecution.

(xiv) P.W.14- Rajesh who is the Mahazar witness to

Ex.P.2 admitted that he is not aware of the contents of Ex.P.2

bur denied the suggestion that the mahazar was signed at

the Police Station and supported the case of the prosecution.

(xv) P.W.15 -Narayanaswamy is also the mahazar

witness to Ex.P.2 and M.Os.8 and 9, deposed that many

people were there and he does not know what the Police

seized and also he is not aware as to who are the other

signatories to the Mahazar. He further deposed that he has

not seen the Police seizing the stone as many people were

there near the spot.

(xvi) P.W.16- Narashimhamurthy, the inquest mahazar

witness to Ex.P.5 deposed that he has not seen the body of

the deceased and he was treated as hostile.

(xvii) P.W.17- B.N. Nagesh deposed that he knows the

accused and the deceased Krishnappa and he is the brother of

the deceased Krishnappa. He further deposed that he has not

given any statement to the Police and ultimately he was

treated as hostile.

(viii) P.W.-18 Srinivasaiah, Junior Executive Engineer

and who had prepared the sketch as per Ex.P.6 supported the

case of the prosecution.

(xix) P.W.19 Vishwanath who is witness for recovery

mahazar to Ex.P.7 and M.O.10 deposed that T-shirt was

recovered from the house of the accused and there was

cheetah picture on the left side of the T-Shirt, but when it was

shown to him he has deposed that the mark is on the back

side of the T-Shirt. He denies the suggestions that he was not

present at the time of the mahazar and that the recovery was

not at all made.

(xx) P.W.20- Manjunath who is Inquest Mahazar witness

deposed that he was not aware who else had signed the

Mahazar.

(xxi) P.W.21- Doddamunishamappa brother of father-in-

law of the deceased Krishanppa deposed that he knew both

accused and the deceased Krishnappa and further deposed

that the wife of the deceased committed suicide after 65 days

from the date of death of the deceased Krishnappa.

(xxii) P.W.22- B. Rajanna who is the mahazar witness to

Ex.P.7 and M.O.Nos 2,10,11,12 & 13 deposed that the accused

had informed the Police as to where he had thrown the purse

of the deceased Krishnappa and based on the said statement,

he was taken along as witness and he supported the case of

the prosecution.

(xxiii) P.W.23-B.R.Jagadish who was working as PSI of

Sidlaghatta Police Station between 23.07.2010 to 09.09.2012

deposed that on 22.11.2011, P.W.1 lodged a complaint as per

Ex.P.1 and FIR was registered as per Ex.P.10 and he further

deposed that Seizure mahazar Ex.P.8 was drawn and

recovered as M.Os.11 and 12. In the cross-examination he

deposed that a case was registered against unknown accused

person and P.W.1 gave written complaint to him.

(xxiv) P.W.24- Sahnaz Fathima who is FSL Officer

(Expert) gave a report of items sent and the report was

marked was as Ex.P.11. In the report she states that the

blood stains on the item Nos. 1,2, 4 and 9 are human blood

stains with type 'B' group and she supported the case of the

prosecution.

(xxv) P.W.25- Satish who is mahazar witness to Ex.P.14

identified the M.Os.8, 14, 15, and 16 and he was partly

treated as hostile.

(xxvi) P.W.26-N.Krishanappa, the Investigating Officer

who conducted the entire investigation and filed the report,

supported the case of the prosecution.

(xxvii) P.W.27- Dr. Thimmegowda who conducted the

post mortem of the deceased submitted the post mortem

report at Ex.P.15. In the cross-examination, he admitted that

the death could also be caused by road accident and in re-

examination also he has deposed that the death could also be

caused by Road accident.

16. On the basis of the aforesaid materials placed on

record, the Learned Sessions Judge proceeded to convict the

accused for the offences made out in the charge memo.

17. On a meticulous reading of Ex.P.1, the complaint

lodged by P.W.1 dated 22.11.2011 clearly depicts that he is

the resident of Japthihosahalli Village, Shidlagatta Taluk. On

22.11.2011 when he was at his house at about 3.45 p.m.

Narayanappa called him over phone and informed him that

about 3.00 p.m. when Narasimhappa P.W.13 of the same

village, went to fetch the grass, two persons came from

Sidlaghatta town and stopped two wheeler and the rider of

two wheeler chased the pillion rider and hit him and when

pillion rider fell down between eucalyptus trees, he dropped

the stone on his head and murdered him and thereafter he

took the two wheeler and fled away towards Shidlagatta town.

Immediately, P.W.1 went to the spot along with Murthy,

Narayanaswamy and thereafter they lodged a complaint and

further deposed that the accused might be aged about 32 to

35 years and accordingly, the jurisdictional Police have

registered a case against the unknown persons.

18. After investigation, on the basis of the voluntary

statement made by the accused on 26.11.2011, the

Investigating Officer recovered M.O.9 T-Shirt, M.O.11 purse,

M.O.12 two ATM cards, Pan Card, M.O.13 broken mobile and 2

SIM cards. It is also not in dispute that there are no

eyewitnesses to the incident. It is relevant to consider the

evidence of P.Ws.12 and 13 were present near the vicinity of

the place where the incident occurred. P.W.12- Suma, the

wife of P.W.13 who deposed that, she is not aware of the

accused and she is doing coolie for livelihood and she owns

cows. About 2 years back at about 3.00 p.m., when she and

her husband went to fetch grass for the cows, they both

heard the sound of stone dropped on the ground and when

they both went to the spot, at that time, one person was

standing and another lying on the ground and thereafter the

accused fled on a bike and the other person was dead on the

spot and there was assault on his head. She further deposed

that the T-shirt shown to her before the Court was of that

person who went on the bike and at that time '7' number was

written on the T-shirt but, today, that number '7' is not

existing on the T-Shirt. The deceased was wearing Jerkin i.e.

M.O.8 and she has identified M.O.10 the stone.

19. In the cross-examination, she deposed that she has

seen the accused for the first time before the Court and she

has not seen the accused before the Police Station and she

has seen the incident from a far distance. Therefore, she is

not able to identify the accused. She further stated that she

cannot identify the face of the accused, but she has seen the

T-shirt worn by the person who was standing and further in

the cross-examination, she has deposed that she has not seen

the person who killed the deceased and she cannot say as to

whether the person who was standing there was thin or fat

and his complexion was dark or fair.

20. P.W.13 the husband of P.W.12 has also stated on

par with P.W.13. He has deposed that the person who went

on the bike was wearing T-shirt ie. M.O.9. and he further

stated that whatever he deposed in his examination-in-chief

was stated before the Police. He further deposed that they

were at the distance of 15 meters and they could not identify

the person who was standing and they were under the

impression that the person who was sleeping might be a lady

and the spot where the person was lying is a place where

number of eucalyptus trees were grown are standing about 2

to 4 feet in height. When they went near the spot, the person

who was standing fled away on the bike. P.W.12 and P.W.13

have not supported the case of the prosecution and they have

not identified the accused who assaulted the deceased on the

date of the incident. P.W.2, according to the prosecution, who

sale the deceased last, turned hostile. The said material has

not been considered by the learned Sessions Judge while

passing the impugned judgment of conviction and order of

sentence.

21. P.W.1, the complainant, in the examination-in-

chief, has deposed about the information given by P.W.12-

Suma that she identified the accused in the presence of 15

people before the Tahsildar on his instructions . He further

deposed that he cannot say as to what is written in Ex.P.1

and also she could not say who informed Tabaraganahalli

Narayanappa about the incident and he had seen the accused

for the first time before the Court. He further deposed that he

is not aware of what is written in Ex.P.2, Spot Mahazar and

what was seized by the Police. He further deposed that there

is a fence between the road and place of incident and told

that he has not stated before the Police that he has seen the

accused on the next day of the incident and he has not

enquired as to who killed the deceased Krishanppa and who

are they. He has not seen Narashimappa who went to the

spot and the Police seized the knife on the spot which was

fallen on the road and further he is not aware as to what are

the articles seized by the Police from the spot where the

incident took place. He further deposed that the photo of the

accused which was shown to him by the Police was not

matching with the face of the accused and he is not aware as

to who else the Police enquired about the incident. He further

deposed that he has not seen P.W-12,Suma identifying the

accused and telling him that the accused killed the deceased

Krishnappa. He has not stated the same before the Police, but

he stated the same for the first time before the Court.

22. The evidence of P.W.1 is an improvement and

contradictory to the complaint. In the complaint has not

stated anything about P.W.12 Suma. There are

contradictions, omissions and improvements and the same

have not been considered by the learned Sessions Judge while

convicting the accused for the said offence.

23. P.W.2 has specifically stated that he does not know

the accused. The deceased Krishnappa owns tiles shop and

somebody might have killed him about 2 years back.

Krishnappa was his friend. On the date of death of

Krishnappa, he alone had come to his shop and there were 8

workers along with him. The deceased Krishnappa came to his

shop on the motor cycle. He has not seen the accused along

with deceased Krishnappa on the day of the incident and he

served tea to him and the deceased Krishnappa was not there

in his shop when he came back from the hotel after finishing

his lunch. Thereafter, on the next day, in the morning around

5.30 to 6.00 a.m., he came to know from his brother over

phone that somebody had killed Krishnappa and he was

invited for his funeral and he does not know as to who killed

Krishnappa and he has not given any statement before the

Police. The said witness ultimately turned hostile. P.W.3 has

also stated that he is not aware of the accused as well as

deceased Krishnappa and he turned hostile.P.W.5, mother-in-

law of the deceased has stated that she knew the accused and

the deceased Krishanappa, who is her son-in-law. She further

deposed that about 3 years back, the accused killed

Krishnappa. She further deposed that his son-in-law took

Rs.4 lakhs from his house and Rs.1 Lakh from the Bank at

Chikkaballapura. She further deposed when her daughter

called her son-in-law i.e. deceased Krishnappa over phone, he

informed that he is going along with one Venu to Kolar and

again when her daughter called her son-in-law over the

phone, his mobile was switched off. She further stated that

on next day, she came to know that the accused had killed her

son-in-law. Admittedly, the mother-in-law has not lodged any

complaint.

24. The Investigating Officer has recorded the

statement of the deceased Shilpa on 26.11.2011, the wife of

the deceased Krishnappa. She stated that one week back her

husband went to Kolar telling that someone has to give

money to him and he wants to purchase a car. On

22.11.2011, when her husband went to Chikkaballapura along

with his relative Ravi, at that time Venu-accused also

accompanied him and whenever the accused came to their

house he was demanding Rs.30,000/- to 40,000/- and Shilpa

suspected that the deceased might have killed her husband.

Admittedly, the wife of the deceased Krishnappa were not

examined by the prosecution and unfortunately, the wife of

the deceased Krishnappa also died after 65 days after the

death of Krishanppa, during the pendency of the proceedings

before the Court. P.Ws.6 and P.W.7, the friends of deceased

Krishanppa have turned hostile. P.W.17 the mahazar witness

to Ex.P.2 has deposed in the cross-examination that he is not

aware what is written in Ex.P.2 and also that his brother

Narayanaswamy signed the Spot Mahazar-Ex.P.2. P.W.15

Narayanaswamy, the mahazar witness to Ex.P.2 identified

M.Os. 8 & 9 and deposed that about one year back at

Dabaraganahalli near Eucalyptus tree plantation there was a

dead body found and he had signed Spot Mahazar at Ex.P.2

and the Police have seized the Stone and M.O.8 Jerkin worn by

the deceased Krishnappa and he further stated that he is not

aware as to who else signed the Mahazar. In the Cross

examination, he deposed that he has seen stone next to the

dead body of the deceased Krishnappa and there were no

other stones and he is not aware of what is written in Ex.P.2.

25. P.W.16, the Inquest Mahazar witness to Ex.P.5 has

stated that he has not seen the dead body of deceased

Krishnappa. P.W.17, the brother of the deceased-Krishnappa

turned hostile. P.W.21, the brother of father-in-law of the

deceased has deposed that the accused killed some other

person. In that case, the deceased Krishnappa was witness.

Therefore, the accused killed Krishnappa. P.W.22, Mahazar

witness to Exs.P.7 & 8 has stated that he knew the accused

and stated that he has singed the Spot Mahazar when the

Police seized the T-shirt from the house of the accused and

they have also seized M.Os.2, 11, 12 and 13. The evidence of

P.W.21 and P.W.22 does not support the case of the

prosecution. P.W.24, FSL Scientific Officer has stated that

jurisdictional Police on 30.01.2011 sent 9 items to FSL and

after examination of the item Nos. 1, 2, 4 and 9 he found

blood stains on the items which are human blood and it is type

'B' group.

26. It is not the case of prosecution that the blood

stains found on item Nos.1,2,4 and 9 are the blood stains of

the deceased or the accused, but blood stain found on item

No. 9, T-shirt worn by the accused match with the blood stains

on item Nos. 1, 2 and 4. The investigating Officer- P.W.26,

in his evidence has stated that on 13.1.2012, when he went to

the house of the accused, and on enquiry, the accused has

admitted that he had killed the deceased krishnappa and on

the basis of the voluntary statement of the accused as per

Ex.P.14, recovered M.O.11 purse, M.O.12 two ATM cards, Pan

Card and other items. In the cross-examination, he has

admitted that the place of the incident is in the vicinity of

Sidlaghatta H.Cross Main Road and on that road there were

plenty of vehicles plying and dead body of Krishnappa was

found on the left side road between the canal and the

Eucalyptus trees plantation. He has admitted that he has not

sent any items to the Forensic Laboratory for examination. He

further admitted that accused used different mobiles and he

did not collect the call details of those mobile numbers used by

the accused and states that though he made an application to

collect the call details, but later on he did not find it necessary.

Hence, he did not obtain the same.

27. P.W.26 further deposed that M.O. 23 Mobile

belongs to accused and he has not produced any document to

prove the same. He further deposed he is not aware that the

accused his mother tried to commit suicide since he used to

call the accused frequently. He further admitted that Crime

No.441/2011 was registered against the accused and his

mother under Section 309 of I.P.C. He also further admitted

in the cross examination that till 13.1.2012, he did not call

P.W.12 Suma and Muniyappa to the Police Station to identify

the accused in order to the conclude the case and he does not

know whether any other person has committed the crime and

he admitted that he was the Investigating officer to the case.

He further stated that one Amaresh has not stated that he had

seen deceased Krishnappa with the accused but Amaresh has

seen deceased Krishnappa for the last time and the same is

mentioned in Ex.P.5. He also admitted that in the case of

heinous crime they take the dog squads to the place of the

incident. He further stated that P.W.12 Suma has stated

before him that two persons came on motor cycle and they

saw one person lying on the ground and other person

standing and she has not stated about the accused, or the

deceased. He further stated that, P.W.5 Lakshmamma has

not stated before him that about 3 years back the accused

killed the deceased and taken the money.

28. P.W.27 Dr. Thimmegowda, has identified the

injuries sustained by the deceased. In the cross examination,

he has stated that as per the post mortem report Ex.P.15,

there were 3 to 4 external injuries were found on the head of

the deceased. He further admitted that injuries 2 to 6 may

occur because of stabbing and the injuries sustained by the

deceased may also occur in a road accident. Further, in the

cross examination, he has admitted that when a person goes

on a two-wheeler at high speed and accidentally hits the

stone there are chances of sustaining these types of injuries.

All these materials have not at all been considered by the

learned Sessions Judge and he has proceeded to convict the

accused mainly on the basis of the voluntary statement made

by the accused as per Ex.P.14 and the recovery which was

made on the basis of the voluntary statement made by the

accused.

29. Though the learned Sessions Judge considered that

the blood stained T-shirt of the accused would tally with the

blood stains on the deceased, but there is no medical evidence

produced before the Court to prove the same. The learned

Sessions Judge proceeded to convict the accused mainly on

the basis of the voluntary statement of the accused, but it is

well settled law that on the basis of the voluntary statement of

the accused, the learned Sessions Judge cannot convict the

accused, and the voluntary statement of the accused can be

used for recovery of the material objects in the commission of

the offence. Material objects recovered is without any

corroboration and the accused cannot be convicted only on the

basis of the recovery based on the voluntary statement.

30. Insofar as contention of the Addl. State Public

Prosecutor that blood stains of the deceased in M.O.1, 2, 4

would tally with the blood stains on the T-shirt M.O.9 cannot

be accepted. There is no medical or scientific evidence that

the blood stains on M.Os.2, 4 and 9 would match with the

blood group of the deceased i.e. 'B' group. Merely on the

basis of the voluntary statement and on voluntary recovery,

the accused cannot be convicted.

31. On a meticulous and careful reading of the

statement of the prosecution witnesses and the material

documents clearly depicts that the prosecution has failed to

prove beyond all reasonable doubt the involvement of the

accused in the commission of the homicidal death of the

deceased Krishnappa.

32. The averments made in the complaint are

inconsistent to the evidence given by P.W.1. It was averred

by the Complainant that information was given by P.W.13 but

in evidence he has deposed that information was given by

P.W.12, there are inconsistencies, improvements and

omissions in the evidence of the prosecution witnesses, and

the entire fabric of the prosecution case appears to be ridden

with gaping holes. It is true that due to passage of time,

witnesses do deviate from their police statements as their

memory fades to some extent. Reasonable allowance can be

made for such discrepancies. But when such discrepancies

make the foundation of the prosecution case shaky, the Court

has to take strict note thereof. On thorough reading of the

aforesaid evidences of the prosecution witnesses, the

discrepancies are located and the witnesses have discredited

themselves. It is well settled that there is no embargo on the

Appellate Court reviewing the evidence upon which an order of

conviction is based. The golden thread which runs through the

web of administration of justice in criminal cases is that if two

views are possible on the evidence adduced in the case, one

pointing to the guilt of the accused and the other to his

innocence, the view which is favourable to the accused should

be adopted. The paramount consideration of the Court is to

ensure that miscarriage of justice is prevented. A miscarriage

of justice which may arise from acquittal of the guilty is no

less than from the conviction of an innocent."

33. Our view is fortified by the dictum of the Hon'ble

Supreme Court in the case Sonvir alias Somvir Vs. State

(NCT of Delhi) reported in (2018) 8 Supreme Court Cases

24 at paragraphs 26.3.1 to 26.3.6 has held as under:

26.3. Alleged recovery of bloodstained shirt

26.3.1. As per the prosecution, a bloodstained shirt was recovered at the instance of Sonvir alias Somvir (Appellant-

Accused No.2) from his room in the house of Teja Chaudhary, at the time of his arrest. The bloodstained shirt was sent for analysis to the FSL. As per the FSL report (Ext. PW 33/A), the shirt allegedly recovered from Sonvir alias Somvir (Appellant- Accused 2) was found to be stained with human blood of "B" group, which was the same "blood group" as that of the deceased.

26.3.2. In para 20, the High Court held the recovery of the bloodstained shirt from Sonvir alias Somvir (Appellant- Accused 2) to be incriminating against him, since the blood samples taken from the bedsheet at the scene of crime, were also found to be of the same blood group.

26.3.3. It is relevant to note that as per the FSL report (Ext. PW 33/A), both the bloodstained shirt allegedly recovered from Sonvir alias Somvir (Appellant-Accused 2) and the blood samples taken from the bedsheet at the scene of crime were found to be stained with human blood of "B" group.

26.3.4. The mere matching of the blood-group of the blood samples taken from the bedsheet at the scene of crime, and the bloodstained shirt recovered from Sonvir alias Somvir (Appellant-Accused 2) cannot lead to the conclusion that the appellant had been involved in the commission of the crime.

26.3.5. On this issue, reliance can be placed on two decisions of this Court in Prakash v. State of Karnataka, paras 41 and 45 and Debapriya Pal v. State of W.B., para 8 wherein this Court while deciding cases based on circumstantial

evidence had held that mere matching of the blood group cannot lead to the conclusion of the culpability of the accused, in the absence of a detailed serological comparison, since millions of people would have the same blood group.

26.3.6. In the present case, the proved that the room from where the bloodstained knife and bloodstained shirt were allegedly recovered, was in the exclusive possession of the appellant. The prosecution case is that the said room was in the house owned by one Teja Chaudhary. The prosecution did not examine the said Teja Chaudhary to prove that the said room was rented to Sonvir alias Somvir and/or was in the exclusive custody of the appellant."

34. Our view is also fortified by the dictum of the

Hon'ble Supreme Court in the caseBalwan Singh Vs. State of

Chhattisgarh and another reported in (2019) 7 SCC 781 at

paragraphs 22, 23 and 24 has held as under:.

"22. The cases discussed above highlight the burden that the prosecution would ordinarily have to discharge, depending on the other facts and circumstances of the case, for the evidence relating to recovery to be considered against the accused. At the same time, as mentioned above, we are conscious of the fact that it may not always be possible to inextricably link the bloodstains on the items seized in recovery to the blood of the deceased, due to the possibility of disintegration of bloodstains

on account of the timelapse in carrying out the recovery. For this reason, in Prabhu Dayal v. State of Rajasthan, where one of us (Mohan M.

Shantanagoudar J.) had the occasion to author the judgment, this Court, relying on Teja Ram, had held that the failure to determine the blood group of the bloodstains collected from the scene of offence would not prove fatal to the case of the prosecution. In Prabhu Dayal case, although the FSL report could not determine the blood group of the bloodstains on account of disintegration, the report clearly disclosed that the bloodstains were of human origin, and the chain of circumstantial evidence was completed by the testimonies of the other witnesses as well as the reports submitted by the Ballistic Expert and the Forensic Science Laboratory regarding the weapon used to commit murder.

23. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The Court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match.

24. In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of PWs 9 and 16, the prosecution has

tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, and such recovery does not help the case of the prosecution.

35. Admittedly, in the present case, as already stated

supra, allegations made in the complaint are entirely

different from the evidence adduced by P.W.1 and the

evidence of P.Ws.12 and P.W.13 who are the prosecution

witnesses, do not support the case of the prosecution.

Admittedly, it is also not in dispute that the wife of the

deceased Krishnappa, Shilpa has not lodged any complaint

immediately after the incident nor by P.W.5, mother-in-law of

the deceased Krishnappa. The compliant is lodged by P.W.1

on the basis of the information given by P.W.13 through

phone. P.W.1 is a stranger and resident of another village.

There are no eyewitnesses to the incident and the evidence

given by P.W.1 is contrary to the allegations made in the

complaint. Therefore, the very complaint lodged by P.W.1 is

doubtful.

36. P.W.26, the Investigating Officer has proceeded to

recover the material objects on the basis of the voluntary

statement. Blood stains on the material objects relied upon by

the prosecution do not tally with the blood stains on the T-

shirt alleged to have been worn by the accused at the time of

commission of the offence. There are no eyewitness to the

incident, P.Ws.12 and P.13 have stated that they have seen

the incident from a far distance, but they could not identify the

accused and the deceased Krishnappa. It is not safe to rely

upon by the evidence of prosecution witnesses who have

given the evidence in a haphazard manner and in the absence

of any corroborative evidence, it is not safe to rely upon the

prosecution witnesses and the material documents produced.

The said material evidence has not been considered by the

learned Sessions Judge. As already stated supra, the learned

Sessions Judge proceeded to convict the accused mainly on

the basis of the voluntary statement which is impermissible.

37. In view of the above, the point raised in the present

appeal is answered in the affirmative holding that the accused

have made out sufficient grounds to interfere with the

impugned judgment of conviction and the order on sentence

passed by the learned Sessions Judge for the offence

punishable under Section 302 of the IPC and the same is liable

to be set aside.

38. For the reasons stated above, we pass the following:

ORDER

(i) The Criminal Appeal filed by the appellant-

accused is allowed;

 (ii)       The impugned judgment of conviction and order
            on   sentence    dated     11.02.2015   made     in
            Sessions Case No.62 of 2012 by the II Fast

Track Court at Chintamani, convicting the

accused for the offence under Section 302 of IPC is hereby set aside;

(iii) The accused is acquitted for the offence punishable under Section 302 of I.P.C.

Sd/-

JUDGE

Sd/-

JUDGE

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