Mahammad Arif S/O Mahammad Yusuf ... vs The State Of Karnataka
2021 Latest Caselaw 2333 Kant

                                              Crl.A.No.100130/2018

                                1



        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

     DATED THIS THE 23RD DAY OF JUNE, 2021
                          PRESENT
        THE HON'BLE MR. JUSTICE R.DEVDAS
                             AND
        THE HON'BLE MS. JUSTICE J.M.KHAZI

         CRIMINAL APPEAL NO.100130/2018

BETWEEN:

1.     Mahammad Arif S/o Mahammad Yusuf Shaikh
       Age: 21 years, Occ: Machanic,
       R/o: Near APMC Gate, Malapur, Dharwad.

2.     Imran S/o Aslam Shivamogga
       Age: 21 years, Occ: Fruit Business,
       R/o: Khadari Lane, Malapur, Dharwad.

3.     Suleman s/o Ibrahim Mummigatti
       Age: 23 years, Occ: Painter,
       R/o: Halbavi Lane, Malapur, Dharwad.
                                                    ...Appellants
(By Sri.K. M. Shiralli, Advocate)

AND:

The State Of Karnataka
By Dharwad Sub-Urban P.S.,
R/By State Public Prosecutor,
High Court Of Karnataka,
Dharwad Bench, Dharwad.
                                                   ...Respondent
(By Sri. S. M. Banakar, Addl. SPP)
                                                 Crl.A.No.100130/2018

                                    2


       This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., seeking to set aside the judgment and order of
conviction dated 16.02.2018 passed in S.C.No.53/2017 by the
Prl.District and Sessions Judge Dharwad, for the offences
punishable under Sections 302, 120-B, 449 read with Section
34 of IPC, and to acquit the appellants of the offences with
which they have been convicted and sentenced.

     This appeal having been heard and reserved for
judgment on 07.06.2021, coming on for pronouncement of
judgment this day, J.M. Khazi J., delivered the following:

                             JUDGMENT

Accused Nos. 1 to 3 have filed this appeal under Section

374(2) of the Code of Criminal Procedure challenging the

judgment and order of conviction dated 16.02.2018, in

Sessions Case No.53/2017, on the file of the Principal District

and Sessions Judge, Dharwad, by which they are convicted for

the offences punishable under sections 302, 120B and 449

read with Section 34 of IPC.

2. Vide the impugned judgment and order, accused

Nos. 1 to 3 are sentenced to undergo life imprisonment and to

pay fine of `5,000/- each for the offence punishable under

Section 302 read with Section 34 of the IPC, in default of

payment of fine, to undergo simple imprisonment for one

year. They are further sentenced undergo rigorous

imprisonment for a period of 3 years and to pay fine of Crl.A.No.100130/2018

`5,000/- each for the offence punishable under Section 120B

read with Section 34 of IPC, in default of payment of fine, they

are directed to undergo simple imprisonment for two months.

Further accused Nos. 1 to 3 are sentenced to undergo rigorous

imprisonment for five years and to pay fine of `5,000/- each

for the offence punishable under Section 449 read with

Section 34 of IPC and in default of payment of fine, they are

further directed to undergo simple imprisonment for one year.

All the sentences are ordered to run concurrently.

3. For the sake of convenience, the parties are

referred to their ranks before the trial Court.

4. The allegations made against the accused are that,

accused No.1- Mohammad Arif Shaikh and deceased Zuber

Ahmad were friends and deceased Zuber Ahmad was also a

close friend of one Manjunath, in respect of whose murder the

accused persons are implicated in Crime No.175/2016. It is

alleged that, about two months prior to the date of incident,

deceased Manjunath borrowed a sum of `1,50,000/- from

accused No.1 - Mohammad Arif Shaikh for the purpose of

purchasing a plot and in spite of repeated request and Crl.A.No.100130/2018

demand, he failed to repay the loan and two days prior to the

date of incident when accused No.1 demanded deceased

Manjunath to repay the amount, he picked up quarrel and

slapped him on his cheek and in this regard, on the same day

at around 10.30 am, deceased Zuber Ahmad confronted

accused No.1 as to why he is demanding back the money from

Manjunath and gave threat to his life. It is alleged that, in this

background, accused No.1 conspired with accused Nos. 2 and

3 to do away with the life of deceased Zuber Ahmad. On

09.08.2016, in between 1.00 to 1.30 pm, when deceased

Zuber Ahmad went inside an unoccupied quarter (old canteen)

situated in the APMC, accused No.1 with a chopper and

accused Nos. 2 and 3 each with koytas assaulted Zuber

Ahmad on his head, neck, face and hands etc., and caused his

death and thereby committed the above said offences.

5. Alleging that, after committing the murder of

committed the murder of Manjunath at around 8.30 pm, one

more charge sheet is filed against them in S.C.No.52/2016.

Crl.A.No.100130/2018

6. During the course of investigation, accused Nos. 1

to 3 were apprehended and the common weapons used for

commission of the murder of Zuber Ahmad as well as

Manjunath were recovered at the instance of accused persons.

After conducting detailed investigation, the Investigating

Officer filed separate charge sheets against accused Nos. 1 to

3 in both crime numbers.

7. In support of the prosecution case, in all 36

witnesses are examined and documents at Exs.P1 to P65 and

M.Os. 1 to 25 are marked.

8. During the course of their statements under

Section 313 Cr.P.C., accused denied the incriminating

materials against them. They have not chosen to lead

evidence on their behalf. After hearing arguments on both

sides, vide the impugned judgment and order, accused No.1

to 3 are convicted and sentenced as detailed above.

9. We have heard the learned counsel representing

the accused persons as well as the learned Addl. Special Public

Prosecutor for the State.

Crl.A.No.100130/2018

10. During the course of argument, learned counsel

representing the accused persons submitted that the

impugned judgment and order of conviction and sentence

rendered by the trial Court is contrary to law, evidence, facts

and probabilities of the case. He further submitted that the

learned Sessions Judge gravely erred in convicting the

accused persons for the offences punishable under Sections

302, 120B and 449 read with Section 34 of the IPC, based on

the testimony of prosecution witnesses which are

contradictory, unreliable and artificial. He further submitted

that, on perusal of the entire material placed on record by the

prosecution, there is no iota of evidence to connect the

accused persons with the crime.

11. On the other hand, learned Addl. State Public

Prosecutor supported the impugned judgment and order and

submitted that there is no perversity in the impugned

judgment and order, justifying interference and sought for

dismissal of the appeal.

12. At the outset, it is relevant to note that, there are

no eyewitnesses to the incident and the entire case of the Crl.A.No.100130/2018

prosecution is based on the circumstantial evidence. In fact,

even according to the prosecution, the accused had no direct

motive to kill the deceased. On the other hand, according to

the prosecution, it was one Manjunath, in respect of whose

death Crime No.175/2016 was registered against accused

persons, who had borrowed a sum of `1,50,000/- from

accused No.1, and when he did not return the said money and

on insistence by accused No.1, he quarreled with him and

even slapped him giving threat and at that time, deceased

Zuber supported Manjunath and gave threat that, if he

insisted upon returning the money, he will do away with his

life and that was the motive to eliminate Manjunath as well as

deceased Zuber Ahmad.

13. Therefore, in order to prove the motive, the

prosecution has relied upon the evidence of the wife of

deceased Manjunath as well as some of the eyewitnesses who

had allegedly seen the accused assaulting Manjunath. Of

course, the complainant, who is examined as PW1 as well as

his family members have also spoken to about the motive. It

is to be examined as to whether their evidence is legal and Crl.A.No.100130/2018

admissible and whether based on such evidence, the

prosecution has proved the motive.

14. PWs.1, 17 to 27 are examined to prove the

motive. PWs. 15 and 16 are examined to prove that they

have seen the deceased and accused No.1 to 3 entering the

unoccupied quarter (old canteen) inside the APMC immediately

prior to the incident. PW.1 is the complainant and he and

PW2 are witnesses to the inquest mahazer. PWs. 13 and 14

are witnesses to the seizure of blood stained clothes of the

deceased. PWs.1, 3 and 4 are spot mahazer witnesses. PWs.

11 and 12 are witnesses to the spot mahazer drawn as

pointed out by the accused persons. PWs. 5 to 8 and 31 are

witnesses to the recovery of weapon of offence at the instance

of accused persons. PW9 is witness to the recovery of blood

stained clothes of the accused persons. PW34 has conducted

the post-mortem examination. PW35 has given the FSL

report. PW32 has assisted the Investigating Officer in the

investigation. PW36 has conducted the investigation and filed

the charge sheet.

Crl.A.No.100130/2018

15. PW1 - Mohammad Gouse is the father, PW17 -

Dadapeer @ Abul Khader is the brother, PW18 - Fathima is

the mother, PW19 - Minuddin Mulla is the maternal uncle,

PW20 - Arif Mohammad Sigadi and PW24- Naveed Ahmad are

the brothers of the deceased. PW27 - Savita is the wife of the

other deceased i.e., Manjunath. All these witnesses are

examined to prove the motive. Except PW27, the other

witnesses have spoken to about the alleged monetary

transaction between accused No.1 and deceased Manjunath

and the deceased Zuber being a friend of Manjunath was

supporting him. However, the evidence of these witnesses is

hearsay insofar as alleged monetary transaction between

accused No.1 and deceased Manjunath. PW27 - Savita, the

wife of Manjunath, has totally turned hostile to the prosecution

and even she has given a go bye to the fact that her husband

had borrowed `1,50,000/- and that was the reason for

accused No.1 to grind axe against Manjunath and that was

also a reason for eliminating the deceased Zuber. In the light

of their testimony, the prosecution has miserably failed to

establish the motive for the accused persons to do away with

the life of deceased Zuber.

Crl.A.No.100130/2018

16. It is the definite case of the prosecution that, prior

to the incident, a quarrel has taken place between deceased

Manjunath and accused No.1 when he demanded back the

money advanced by him and at that time Manjunath had

slapped accused No.1 and deceased Zuber demanded as to

why he is insisting upon returning money and if he continue to

do so, he is going to kill accused No.1. With regard to this

quarrel also, the Investigating Officer has not collected any

evidence. Moreover, according to the prosecution, deceased

Manjunath had borrowed a sum of `1,50,000/- in two

installments, i.e., first `50,000/- and thereafter `1,00,000/-

on the ground that he wanted to purchase a plot i.e., a site.

However, no material is placed on record to show as to

whether during the relevant period, Manjunath had purchased

any site or he had used the money allegedly borrowed from

accused No.1 for any purpose. On that aspect the

investigation is lacking.

17. As already noted, the prosecution has relied upon

the evidence of some of the alleged eyewitnesses with regard

to the murder of Manjunath, which is in Crime No.175/2016

and through their mouth, the prosecution is intending to prove Crl.A.No.100130/2018

motive for accused No.1 to eliminate Zuber. These witnesses

are PW21 Sydded Mohiuddin - Pan Shop owner, PW22 -

Maktum Hussen - owner of the milk shop, PW23 - Rizwan -

owner of the chicken shop, PW25 - Syed mohiddin - owner of

Kirani shop. According to the prosecution, these witnesses are

having their business in the place where deceased Manjunath

was killed and they have seen the said incident and they were

aware of the monetary transaction between Manjunath and

accused No.1 and the support given by deceased Zuber to

Manjunath. Even though these witnesses have admitted that

they are running business in the immediate vicinity of the

place, where Manjunath was killed, but they have not

supported prosecution case and in both SC No.52/2017 as well

as in this case, they have turned hostile to the prosecution

insofar as the complicity of accused No.1 in the death of

deceased Manjunath. Even though these witnesses were

treated as hostile and cross-examined at length by the

prosecution, their evidence is not of much help to improve the

case of the prosecution. Consequently, there is no other go,

but to hold that the prosecution has failed to prove the motive

for the accused persons to eliminate the deceased Zuber and Crl.A.No.100130/2018

thereby an important link in the circumstantial evidence

against the accused is broken.

18. The next chain of link which the prosecution is

trying to connect the accused persons to the death of

deceased Zuber is the evidence of PW15 - Ashok and PW16 -

Arjun. It is relevant to note that the murder of Zuber has

taken place in an old unoccupied quarter (old canteen)

situated in the APMC and these two witnesses are working as

security guard and security supervisor in the APMC yard. The

fact these two witnesses are working in security at APMC is

not disputed. According to the prosecution, immediately prior

to the incident, PW15 Ashok has seen the accused persons

entering the compound of the unoccupied quarter (old

canteen) in question and in fact he threatened them to go

away and even though they pretended going away, but again

they went towards the said quarters.

19. It is also the case of the prosecution that, after

committing the crime, when the accused persons hurriedly ran

away from the spot, then also PW15 - Ashok has seen them.

The evidence of this witness may establish the fact that, in the Crl.A.No.100130/2018

APMC there are several old quarters and after the APMC was

shifted, these quarters were unoccupied and one of the

quarters, where the murder of Zuber took place, was earlier

used as canteen and it was also not used any more and to the

said quarters, some young people having no work used to

come and smoke cigarette and ganja and accused Nos.1 to 3

as well as the deceased Zuber were among those persons,

who used to visit and while away their time and many a times,

he has spotted them and forced them to leave the place.

However, in the examination-in-chief, he has denied that, on

the date of incident he saw the accused persons roaming

around APMC.

20. He is treated as hostile and cross-examined by the

prosecution. During his cross-examination, at para 7, he has

admitted that, on the date of incident at around 11.30 pm, he

found accused Nos. 1 to 3 sitting inside the compound of the

said quarters and he along with PW16 - Arjun sent them

away. However, he has denied that, in spite of telling them to

leave the place, once again accused Nos. 1 to 3 went towards

the said quarters. He has also denied that, around 1.30 pm,

he saw the deceased Zuber going towards the quarter and Crl.A.No.100130/2018

accused No.1 to 3 followed him and that after some time, he

also saw accused No.1 hurriedly going away. Even though

PW16 - Arjun, who was working as security supervisor has

admitted the said fact, he has not supported the prosecution

case insofar as the incident dated 09.08.2016 as well as the

discovery of the dead body on 10.8.2016. With regard to that

aspect, he has stated that, on those days he has not worked

in old APMC.

21. The examination of the evidence of these

witnesses makes it evident that, accused Nos. 1 to 3 as well

as deceased Zuber used to go and while away their time in the

unused quarter(old canteen) situated in APMC, like other

young fellows having no work. However, their evidence is not

helpful to the prosecution insofar as accused persons being

seen in the place of occurrence immediately prior to the

incident.

22. It is the case of the prosecution that, after the

deceased Manjunath was killed in a public place in the

presence of so many people and after coming to know about

the said incident, the father of the deceased Zuber and his Crl.A.No.100130/2018

family members searched for him, but they could not find him

and on the next date i.e., on 10.08.2016, the complainant i.e.,

the father of the deceased went to old APMC and inside the

quarter he found the dead body of his son and in this regard,

he lodged the complaint.

23. During the course of investigation, the

Investigating Officer conducted spot mahazer in the presence

of PWs. 1, 3 and 4. After the accused were apprehended, he

has also conducted one more spot mahazer as per Ex.P17, on

pointing out the scene of occurrence by the accused persons.

Since the incident in question has taken place inside the

unoccupied quarter (old canteen) in the old APMC and the said

place was already discovered and the dead body was found,

the drawing up of mahazer at Ex.P17 at the instance of the

accused persons is not of much consequence to improve the

case of the prosecution. Consequently, not much importance

could be attached to it.

24. The next important link which the prosecution

wants to connect the accused persons with the crime in

question is the recovery of weapons at their instance. It is Crl.A.No.100130/2018

pertinent to note that, according to the prosecution, on

09.08.2016, the accused persons first committed the murder

of Zuber at around 1.00 to 1.30 pm inside the unoccupied

quarter (old canteen) of AMPC and concealed the weapons

used by them inside the compound and in the night at around

8.30 pm, with the same weapons, they committed murder of

Manjunath. Therefore, the recovery of these weapons of

offences at the instance of accused is common to both the

cases. In this case, they are marked as M.Os. 11 to 13.

M.O.11 is the machhu allegedly used by accused No.1, M.O.12

and 13 are koytas allegedly used by accused Nos. 2 and 3 for

committing both murders.

25. According to the prosecution, after accused

persons were apprehended, they gave their voluntary

statement and admitted that they have committed the murder

of both Zuber and Manjunath and that they have concealed

the weapons and led the Investigating Officer and the

witnesses to the place where they had concealed the weapons

and the weapons were discovered at their instance and

therefore that part of their evidence is admissible under

Section 27 of the Evidence Act.

Crl.A.No.100130/2018

26. Exs. P7, 10 and 15 are the Mahazars drawn during

the recovery of M.Os. 11 to 13 respectively. PWs. 5, 8 and 31

are the independent witnesses to the recovery, whereas PW32

- Ramesh, police constable has assisted the Investigating

Officer and PW36 is the Investigating Officer, who speaks

regarding the recovery of the weapons of offence at the

instance of accused persons.

27. PWs. 5 to 8 have not whole heartedly supported

the case of the prosecution. Only on the basis of the

photographs taken at the time of alleged seizure of the

weapons of offence at the instance of accused persons, they

have spoken to about their presence.

28. Even though PW31 - Basavaraj has partly

supported the prosecution case, saying that he was

summoned near Kelgeri pond and one of the accused

produced koyta and it was seized through Ex.P10. He

identified accused No.2 as the person, who produced the said

M.O.12. His cross-examination by the defence revealed that,

he was not summoned to the police station and he was not a

witness to the accused No.2 giving his voluntary statement Crl.A.No.100130/2018

and volunteering to produce the weapons of offence and

leading them to the place where the M.O.12 was allegedly

concealed. Therefore, his evidence is also not helpful to the

case of the prosecution.

29. It is the definite case of the prosecution that,

accused Nos.1 to 3 separately led the Investigating Officer and

the witnesses to Kelageri Pond and produced the concealed

weapons used by them and after each seizure, the said

accused was brought back to the police station and next the

accused has led them to the place in question. It is also

difficult to believe that the accused, who allegedly committed

the murder of Zuber at 1.00 to 1.30 in the afternoon remained

in the same dresses till evening and went with the blood

stained clothes in full public glare and committed the murder

of Manjunath at 8.00 to 8.30 in the night. Furthermore, the

accused persons were arrested on 10.08.2016, the next day at

about 3.30 pm. It is difficult to believe that the accused

persons were wearing the same clothes or that day they would

not have washed the blood stains on the clothes.

Crl.A.No.100130/2018

30. As already noted, PW22, the police constable

Ramesh is stated to have assisted the Investigating Officer.

During his cross-examination, he has deposed that he is

unable to state whether all the three accused persons were

taken together or they were separately brought to the place,

where the concealed weapons were discovered. In para 14,

he has stated, he does not know whether the Investigating

Officer has called the panch witnesses to the police station and

from there all of them came to the Kelageri pond. This piece

of evidence of PW32 corroborates with the evidence of PWs. 5

to 8 and 31, that they went directly to the spot where the

weapons of offence were allegedly recovered at the instance of

accused persons.

31. According to the prosecution, Exs.P8 and P9 are

the photographs taken when accused No.1 produced the

chopper and Exs. P11 and P12 are the photographs taken

when accused No.2 produced the koyta and Exs. P13 and P14

are the photographs while accused No.3 produced another

koyta i.e, M.Os. 11 to 13 and these discoveries are under

Section 27 of the Evidence Act. As already noted, it is the

definite case of the prosecution that, one after the other Crl.A.No.100130/2018

accused Nos. 1, 2 and 3 produced these weapons. Exs. P8

and P9 are the photographs taken when accused No.1

allegedly produced the chopper M.O.11. However, in Ex.P9,

accused No.3 is also seen. Similarly, Exs.P11 and P12 are the

photographs taken when accused No.2 produced the koyta.

However, in both Exs. P11 and P12, the presence of accused

No.1 is found. These very photographs relied upon by the

prosecution belies the case put forth by the Investigating

Officer that accused Nos. 1 to 3 led the Investigating Officer

and the witnesses separately and these weapons were

discovered. In fact the Investigating Officer, who is examined

as PW36 is cross-examined at length on this aspect.

However, he has blatantly denied that, in Ex.P9, the presence

of accused No.3 and in Ex.P11 and 12, the presence of

accused No.1 is also seen. In fact, the learned trial Judge has

made observation in the evidence of PW36 that he is wantonly

denying the truth.

32. Thus, the evidence regarding recovery of the

weapon of offence to connect the accused persons to the

alleged crime is not trustworthy and reliable and no reliance Crl.A.No.100130/2018

could be placed on it, thereby one more important link in the

circumstantial evidence is broken.

33. The prosecution has relied upon the seizure of

blood stained clothes of accused persons as per Ex.P16. PW9

- Mohammad Rafik is witness to this seizure. However, he

has not supported the prosecution case. Of course the

Investigating Officer had deposed regarding the seizure. It is

pertinent to note that the Investigating Officer has sent the

seized material objects i.e., weapons allegedly used by the

accused and the clothes which they were wearing at the time

of incident to RFSL for chemical examination. The report is at

Ex.P60. According to this, blood stains were found on these

material objects and they are of human origin. As per

Ex.P58, the doctor who conducted post mortem examination

has also preserved sample blood of the deceased for chemical

examination. Ex.P60 is the chemical report with regard to the

weapon of offence used by the accused persons as well as the

clothes which they were wearing at the time of incident. As

per Ex.P60, the articles in question were stained with human

blood of AB blood group. Ex.P65 is the chemical examination

report of the organs of the deceased preserved by the medical Crl.A.No.100130/2018

officer who conducted the post mortem examination including

the blood sample. As per this document, even though the

chemical analysis is made with regard to item No.1, 2 and 4

which are pieces of organs and a finding is given that,

Residues of volatile poisons, Pesticides, Barbiturates,

Benzodiazepine group of drugs, Toxic metal ions and anions

were not detected in all the articles, thereby indicating that it

is not a case of death by poison.

34. It is pertinent to note that as per Ex.P57, the

blood sample of the deceased is collected by the Medical

Officer who has conducted post-mortem examination for the

purpose of determining the blood group of the deceased, the

Investigating Officer has not produced any document to show

that his blood group was determined to ascertain whether it

matches with the blood stains found on the weapon of offence

allegedly used by the accused persons and the clothes which

they were wearing at the time of alleged incident. However,

during the course of the judgment, at para 80, while referring

to the evidence of additional witness i.e., PW35 -

Dr.Madeshwara Sway, who has carried out the chemical

analysis of 22 items sent through Ex.P60, the learned trial Crl.A.No.100130/2018

Judge has held that the blood group of the blood stains found

on these articles tally with the blood group of the deceased.

PW35 has deposed that, the blood found on these articles

belongs to blood group AB. However, the articles referred to

in Ex.P60 does not include the blood sample of the deceased.

No documents are produced to show that even though as per

Ex.P57, sample of blood of the deceased was preserved, the

blood group of the deceased was determined and it is AB

positive. Therefore the findings of the trial Judge on this

aspect is erroneous and without any basis.

35. It is pertinent to note that, according to the

prosecution, the same weapons of offence were used by the

accused persons to commit two separate murders at different

point of time and at the time of commission of both murders,

accused were wearing the same clothes. The blood group of

the deceased will be determined to connect the accused

persons with the crime through the clothes worn by them at

the time of commission of the offence and the blood stains

found on the weapons of offence used by them which are

recovered at their instance. Unfortunately for the prosecution

and fortunately for the accused persons, the blood group of Crl.A.No.100130/2018

both deceased is stated to be AB. Such being the case, it is

difficult to ascertain whether the blood stains found on the

clothes worn by the accused persons as well as the weapons

of offence used by them to commit the murders belongs to

one or both deceased persons. In the absence of cogent,

convincing and reliable evidence to connect the accused

persons to the crime in question, the evidence that the blood

stains found on the clothes worn by the accused persons and

on the weapons of offence used and that of the deceased are

of same group is not sufficient to connect the accused persons

to the crime in question. It is also difficult to believe that the

accused, who allegedly committed the murder of Zuber at

1.00 to 1.30 in the afternoon remained in the same dresses till

evening and went with the blood stained clothes in full public

glare and committed the murder of Manjunath at 8.00 to 8.30

in the night. Furthermore, the accused persons were arrested

on 10.08.2016, the next day at about 3.30 pm. It is difficult

to believe that the accused persons were wearing the same

clothes or that they would not have washed the blood stains

on the clothes.

Crl.A.No.100130/2018

36. PW34 - Dr. Ashok has conducted the post-mortem

examination on the dead body of Zuber and given the post-

mortem report as per Ex.P53. His evidence coupled with the

post-mortem report prove the fact that the injuries sustained

by the deceased were ante-mortem and the death was due to

the said injuries. However, the defence has disputed the time

of the death of Zuber and on this aspect, PW34 has been

cross-examined, wherein he has admitted that the injuries

found on the person of Zuber were red in colour. He has

admitted that, if the injuries are red in colour, in all

probabilities they were caused about 2-3 hours prior to the

post-mortem. Even though while giving the evidence he has

examined M.Os. 11 to 13 and given opinion that the injuries,

which were caused on the person of the deceased were caused

by such weapons, during his cross-examination he has

admitted that M.Os. 11 to 13 were not sent to him for his

opinion prior to him giving the evidence.

37. However, Ex.P54 is a letter dated 10.06.2017

given by PW34 - Dr. Ashok, who has conducted the post-

mortem examination, which indicates that the Investigating

Officer had produced M.Os. 11 to 13 before him, but he has Crl.A.No.100130/2018

stated that only the forensic medicine expert is able to give

opinion regarding the injuries sustained by the deceased with

regard to the weapons produced before him. This document

creates a doubt as to the capacity of PW34 to give opinion as

to whether the injuries sustained by the deceased were

caused by M.Os. 11 to 13.

38. Thus, from the above discussion, we hold that, in

the absence of direct evidence, the circumstantial evidence

placed on record by the prosecution is highly insufficient to

bring home the guilt to the accused. However, the trial Court

basing its judgment only on the evidence of the Investigating

Officer as well as unreliable testimony of some of the

witnesses to the recovery of weapons at the instance of the

accused persons has proceeded to convict the accused. We

find the evidence highly insufficient to point towards the guilt

of the accused and consequently we hold that it is a fit case to

interfere with the impugned judgment and order and

accordingly, we proceed to pass the following:

Crl.A.No.100130/2018

ORDER

The appeal filed by the appellants/accused Nos. 1 to 3

under Section 374(2) of the Code of Criminal Procedure is

hereby allowed.

The judgment and order of conviction dated 16.02.2018

passed in S.C.No.53/2017 on the file of the Principal District

and Sessions Judge, Dharwad is reversed and set aside.

The bail bonds of the accused and sureties stand

cancelled.

Sd/-

JUDGE

Sd/-

JUDGE gab