Somashekara vs Vasanthakumar
2022 Latest Caselaw 1917 Kant

                            1
                                             R

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 8TH DAY OF FEBRUARY, 2022

                       PRESENT

       THE HON'BLE MR.JUSTICE K.SOMASHEKAR
                          AND
         THE HON'BLE MR. JUSTICE P.N.DESAI

         CRIMINAL APPEAL NO. 778 OF 2014
BETWEEN:
Somashekara
S/o Mastaiah
Aged about 40 years
R/o Basavanamathikere
Kunigal Taluk
Tumkur District - 5721030.
                                       ...Appellant
(By Sri. N. Dinesh Rao - Advocate)

AND:

1.     Vasanthakumar
       S/o. Lorry Chennaiah
       Aged about 33 years
       R/o. Basavanamathikere
       Yadiyuru Hobli, Kunigal Taluk
       Tumkur District - 572130.

2.     Nagaraju @ Autoraju
       S/o. Bettaswamy
       Aged about 41 years
       R/o. Basavanamathikerehalli
       Yadiyuru Hobli, Kunigal Taluk
       Tumkur District - 572130.
                           2


3.   Anil
     S/o. Krishnappa
     Aged about 29 years
     Autodriver
     R/o. Basavanamathikerehalli
     Yadiyuru Hobli, N/o Haridevarhalli
     Gubbi Taluk
     Tumkur District - 572216.

4.   Raghu
     S/o. Ganganna
     Aged about 33 years
     Autodriver
     R/o. Dobarahattihalli
     Yadiyuru Hobli, Kunigal Taluk
     Tumkur District - 572130.

5.   Santhosh
     S/o. Rajanna
     Aged about 25 years
     R/o. Basavanamathikerehalli
     Yadiyuru Hobli, Kunigal Taluk
     Tumkur District - 572130.

6.   Ravikumar @ Ravi @ Venkataramu
     S/o. Giriyappa
     Aged about 34 years
     R/o. Basavanamathikerehalli
     Yadiyuru Hobli, Kunigal Taluk
     Tumkur District - 572130.

7.   Bhoja
     S/o. Srinivasaiah
     Aged about 33 years
     R/o. Basavanamathikerehalli
     Yadiyuru Hobli, Kunigal Taluk
     Tumkur District - 572130.
                              3


8.   B.B. Padmaraju @ Papanna
     S/o. Bettaswamigowda
     Aged about 50 years
     R/o. Basavanamathikerehalli
     Yadiyuru Hobli, Kunigal Taluk
     Tumkur District - 572130.

9.   State of Karnataka
     By Amruthur Police Station
     Rep. by State Public Prosecutor
     High Court Building
     Bangalore - 560 001.
                                            ...Respondents

(By Sri. Shankarappa .S- Advocate for Respondents No.1, 3
 and 7;
Sri. R. Srinivas - Advocate for Respondents No.2, 4, 5 and 6;
Smt. M. Gayathri-Advocate for Respondent No.8;
Smt. K.P. Yashodha - HCGP for Respondent No.9)

     This Criminal Appeal filed under Sec.372 of
Criminal Procedure Code, by the Advocate for the
appellant praying to set aside the judgment and order of
acquittal dated 07.04.2014 passed in S.C.No.228/2009
on the file of the court of Fast Track, at Tumkur,
acquitting the accused for the offences punishable
under Sections 120(B), 143, 147, 148, 504, 506(B), 302,
114 r/w Sec.149 of IPC and convict the accused /
Respondents No.1 to 8 for the charges framed and pass
sentence.

     This criminal appeal coming on for dictating
judgment through video conference         this day,
K. Somashekar .J delivered the following:
                                 4


                      JUDGMENT

This appeal is preferred against the judgment of

acquittal rendered by the trial Court in

S.C.No.228/2009 dated 07.04.2014, whereby acquitting

the accused for the offences punishable under Sections

120-B, 143, 147, 148, 504, 506-B, 302, 114 read with

Section 149 of Indian Penal Code, 1860.

2. The State has preferred this appeal by

challenging the acquittal judgment by urging various

grounds and seeks for consideration of the grounds and

consequently, set aside the acquittal judgment rendered

by the trial Court and to convict the accused for the

offences leveled against them.

3. Heard learned counsel Sri.N Dinesh Rao for the

appellant / complainant who is present before the Court

physically and also learned counsel Sri.S.Shankarappa

for respondent Nos.1, 3 and 7 and so also,

Smt.M.Gayathri for respondent No.8. But counsel

Sri.S.Shankarappa for the aforesaid respondent accused

would take care of the counsel namely Sri.R.Srinivas for

respondent Nos.2, 4 to 6 who is on record.

4. Perused the impugned judgment of acquittal

rendered by the trial Court which is challenged under

this appeal consisting of evidence of PWs.1 to 34 and

several documents got marked at Exs.P1 to 42 and

inclusive of evidence of DWs.1 to 3 and contradictory

statements of Mastaiah as per Ex.D1, pocket calendar

of 2012 at Ex.D2, copy of inquest mahazar at Ex.D3

and copy of charge sheet at Ex.D4. These exhibits have

been got market on the part of prosecution and also

defence side, apart from MOs.1 to 15.

5. Factual Matrix of the appeal are as under:

It is transpired in the case of the prosecution that

one Shivaramaiah of Basavanamathikere village had

launched criminal prosecution by filing a complaint on

the ground that first accused namely Vasanthakumar,

S/o Lorry Channaiah and his associates had made

some altercation with him on 23.04.2009 in the night

hours after Lok Sabha election schedule and accused

persons thought that Ramesh, S/o Masthaiah had got

the complaint registered in order to cause some

harassment to them and further they sported grudge

against Ramesh as he did not support Congress in Lok

Sabha elections and in this background accused

persons hatched criminal conspiracy to do away with

Ramesh and to eliminate him and as such assembled in

the house of accused No.4 namely Raghu S/o

Ganganna and due to this criminal conspiracy hatched

among them they were armed with deadly weapons

such as sword, machete and longs and came to circle of

Basavanamathikere by using two auto-rickshaws

bearing Registration No.KA-06-B-5981 belonging to the

first accused namely Vasanthakumar and Registration

No.KA-06-B-5401 belonging to the second accused -

Nagaraju @ Autoraju. The aforesaid accused as

according to the criminal conspiracy hatched among

them came in auto-rickshaws at around 8.30 a.m.

6. It is further contended that first and second

accused had longs in their hands and accused No.3 -

Anil, S/o Krishnappa had machete and they got down

from the auto-rickshaw with common intention and

went to assault CW.1 who is arraigned as PW.10 namely

Somashekara S/o Mastaiah who is none other than the

brother of the deceased - Ramesh. PW.10 and deceased

- Ramesh were sitting in front of the shop of

Gangabairaiah and one accused alleged to have come

forward to attack, then CW.1 / PW.10 escaped from the

scene of crime and he took heel from there and accused

persons alleged to have chased his brother namely

Ramesh who was also about to took heel from there and

the first accused alleged to have assaulted deceased -

Ramesh with means of long on his right ankle part and

due to that aforesaid Ramesh fell down on the ground in

front of the house of Gousepeersab. It is further

transpired in the case of the prosecution that the first

accused alleged to have assaulted Ramesh on his head

and on left hand with means of long and severing the

left hand. The second accused alleged to have

assaulted with means of long on left hand of Ramesh

again and accused No.3 alleged to have assaulted

deceased with means of sword on the right hand and

also over the body. Accused No.4 alleged to have

assaulted Ramesh on both the legs and over the body

with means of machete. Accused No.8 namely

B.B.Padmaraju @ Papanna S/o Bettaswamigowda

present there and instigated other accused persons

alleged to have assaulted Ramesh and killed him.

Accused Nos.5, 6 and 7 alleged to have given fist blow

over Ramesh saying as to 'die' and after fatally

assaulting injured Ramesh, accused persons took heel

from there in their auto-rickshaws. CWs.1 to 4 and

CW.23 took injured Ramesh for treatment in

autorickshaw to Kunigal Hospital and got first aid

treatment to save his life but on the advice of the doctor

they shifted the injured to Victoria Hospital, Bengaluru

to provide better treatment to him and also admitted the

injured. But the injured did not respond to the

treatment provided in Victoria Hospital, Bengaluru and

he lost his breath at around 12.20 p.m. on the aforesaid

date.

7. In pursuance of the act of the accused and also

on filing of the complaint by PW.10 as per Ex.P11,

criminal law was set into motion by recording FIR as per

Ex.P28 for the offences punishable under Sections 120-

B, 143, 147, 148, 504, 506-B, 302, 114 read with

Section 149 of IPC, 1860 by the investigating agency

and thereafter the case has been taken up by the

investigating officer and during investigation the

investigating officer has recorded the statements of

witnesses and so also, drew mahazar in the presence of

panch witnesses and inclusive of securing post mortem

report at Ex.P40 and FSL report at Ex.P42 and secured

MOs.1 to 15. These material objects were seized in

respect of mahazar and so also drew spot mahazar at

Ex.P7 in the presence of PW.10 which bears their

signature.

8. Subsequent to completion of investigation by

PW.33 - B.K Shekar, he laid the charge sheet against

the accused before the committal Court in

C.C.No.588/2009. Subsequent to laying of charge sheet

by the investigating officer that the committal Court had

passed an order under Section 209 of Cr.P.C by

following provisions of Sections 207 and 208 and the

case was committed to the Court of sessions by passing

order dated 21.10.2009. Subsequently, the case in

S.C.No.228/2009 has been numbered and whereby

securing the accused to face trial by issue of process in

accordance with relevant provision of Cr.P.C. Accused

engaged the services of counsel respectively. After

hearing on the charges by the Public Prosecutor and the

defence counsel, the trial Court framed the charges

against the accused in respect of aforesaid offence and

whereby the accused did not pleaded guilty but claimed

to be tried. Accordingly, charges were framed against

the accused on 19.01.2010 and the plea of the accused

was recorded separately. Subsequent to framing of

charges against the accused that the prosecution let in

the evidence by subjecting to examination of PWs.1 to

34 and so also, got marked several documents as per

Exs.P1 to 42 and inclusive of several materials as per

MOs.1 to 15 and so also got marked Exs.D1 to 4. But

subsequent to recording incriminating statement of the

accused appeared against them as required under

Section 313 of Cr.P.C., that the accused were called

upon to enter into defence evidence as contemplated

under Section 233 of Cr.P.C. Accordingly, Exs.D1 to 3

were got examined on the part of defence side only.

9. Subsequent to closure of the evidence on the

part of prosecution witnesses as adduced and examined

the accused persons as required under Section 313 of

Cr.P.C to enable them to the evidence which has been

let in on the part of the prosecution and also appeared

against them. But the accused were denied the truth of

the evidence on the part of the prosecution adduced so

far. Accordingly, it was recorded separately.

Subsequent to recording the incriminating statement

appeared against the accused they were called upon the

accused adduced as contemplated under Section 233

Cr.P.C. Accordingly, on the part of the accused that

DWs.1 to 3 were got examined. Subsequent to the

closure of the evidence on the part of the prosecution in

entirety and also on the part of the defence side that the

trial Court heard the arguments advanced by the

learned public prosecutor and so also, arguments

advanced by the defence counsel and having convinced

by the evidence let in by the prosecution and even on

close scrutiny of the evidence as well as several

documents has been got it marked on the part of

prosecution and inclusive of evidence of Ex.D1 to 3 and

so also, close scrutiny of the material objects of MOs.1

to 15 which were got marked on the part of prosecution

and having convinced that the prosecution did not

facilitate the worthwhile evidence, consequently

rendered the acquittal judgment in S.C.No.228/2009

dated 07.04.2014 for the offences which were lugged

against the accused. It is this judgment which has been

challenged under this appeal by urging various

grounds.

10. Whereas, learned counsel Sri.N.Dinesh Rao for

appellant / complainant namely Somashekara who is

none other than brother of the deceased - Ramesh and

whereby he has preferred this appeal by urging various

grounds challenging the acquittal judgment on the

ground that the trial Court has ignored acceptable

evidence on record on the part of prosecution which are

sufficient to hold the guilt of the accused, but manifest

error has been committed by the trial Court by

rendering acquittal judgment which amounts to

substantial miscarriage of justice. Whereas the learned

counsel for the appellant has taken us through the

evidence of PW.10 who is the complainant and

gravamen of the incident narrated in his complaint at

Ex.P11 and more so, he is the brother of deceased -

Ramesh and he was also sitting along with his brother

in front of the shop of one Gangabairaiah. But accused

persons alleged to have assaulted deceased - Ramesh

with means of dangerous weapons like sword, machete

and long and on the instigation of accused No.8 but

PW.10 is eyewitnesses to the incident as narrated in his

complaint at Ex.P11 and so also, that theory of the

prosecution but the trial Court has committed grave

error by not accepting his evidence in entirety. But

reasons assigned in the acquittal judgment are not valid

reasons and also it is not acceptable reason and same is

required to be re-appreciated in this appeal even gone

through the evidence of PW.26 being Doctor who

initially treated the injured in Kunigal Government

Hospital on 28.04.2009 at around 9 a.m. but evidence

of panch witnesses namely PWs.19, 20 and 21 have

been subjected to examination on the part of

prosecution relating to seizure of weapons and seizure

of clothes and also two auto-rickshaws alleged to have

been used by the accused according to the criminal

conspiracy hatched to eliminate deceased - Ramesh in

the concept of that he was not supporting Congress

party in Lok Sabha election but he was supporting BJP.

But the fulcrum of Exs.P8, 16 and 17 relating to the

seizure mahazar of the said articles has been conducted

by the investigating agency and same has not been

considered by the trial Court and also their evidence

has not been ascertained by the trial Court in proper

perspective manner. Therefore, in this appeal it requires

for re-visiting of impugned judgment and consideration

of evidence of PW.10 who is the eyewitness and brother

of the deceased - Ramesh and his evidence has been

corroborated with the evidence of PW.17 - Mastaiah

who is none other than the father of the deceased and

their evidence finds corroborated with the evidence of

PWs.19, 20 and 21.

11. It is further contended that insofar as medical

evidence and also scientific evidence and both evidence

corroborates with the oral evidence on record which

further strengthens the case of the prosecution.

However, the trial Court has erroneously considered the

evidence in terms of rejection of the theory put forth by

the prosecution by assigning reasons in the impugned

judgment rendered by the trial Court. The reasons

assigned in the judgment of the trial Court rejecting the

FSL report at Ex.P42 and report issued by PW.34 is

improper. Therefore, grave error is committed by the

trial Court by rendering the acquittal judgment and

same can be seen in the impugned judgment and also

made observation by the trial Court in various paras of

the bulky judgment of acquittal rendered by the trial

Court. But according to the error committed by the trial

Court in stating that the evidence of PW.10 is

unbelievable as he is an interested witness on the part

of prosecution and his evidence is not corroborated by

any other evidence on the part of prosecution. On this

premises also learned counsel for appellant /

complainant emphatically submits that observation

made by the trial Court and also reasons assigned in

the trial Court by rendering the acquittal judgment is

exaggerated and if that acquittal judgment is confirmed,

certainly there shall be substantial miscarriage of

justice and accused hatched criminal conspiracy to

eliminate the deceased - Ramesh who is brother of

PW.10 / complainant and accused assaulted the

deceased mercilessly with means of dangerous weapons

like sword, machete and iron longs alleged to be used by

them and also incident had taken place on 28.04.2009

at around 8.30 a.m. in morning whereby PW.10 -

Somashekar and deceased - Ramesh were sitting in

front of the tea shop of Gangabariah by that time

accused were attacking injured Ramesh with means of

dangerous weapons held in their hands and execution

in accordance with criminal conspiracy hatched by the

accused persons. But the trial Court did not properly

appreciated the facts and manner in which incident

alleged to had taken place and erroneously came to the

conclusion even relating to the evidence of PW.1 and so

also facts at Ex.P1 do not tally with Ex.P7 and also

erred in accepting defence version that there are

possibility that the deceased might have been assaulted

at the garden and the place of incident as claimed bythe

prosecution is not proved on the part of the prosecution

by facilitating worthwhile evidence.

12. The learned Counsel for the appellant /

complainant by referring to the evidence of PW.17 and

PW.10 narrated in his complaint at Ex.P11. PW.17 even

he is not the eyewitness but he is a hearsay witness but

he also accompanied with PW.10 whereby deceased -

Ramesh was shifted from Kunigal Government Hospital

to Victoria Hospital to provide better treatment to save

his life. Therefore, evidence of PW.10 and 17 on the

part of the prosecution are required to be considered, if

not considered in this appeal, certainly there shall be

substantial miscarriage of justice.

13. Lastly, counsel for the appellant submits by

referring the acquittal judgment rendered by the trial

court that the trial Court was not justified in doubting

the evidence of PW.10 by pointing out to minor

discrepancies with regard to assault made by each of

the accused, place of assault, which discrepancies are

natural and ought to have occurred, when a witness is

examined after considerable lapse of time on the part of

prosecution to prove the guilt of the accused but trial

Court was not justify in doubting the evidence of PW.10

who is eyewitness who is brother of the deceased and

whereby on seeing the incident of attack made by each

one of the accuse holding deadly weapons that he was

took away from there to save his life itself is enough for

consideration of evidence on the part of prosecution and

more important evidence of PW.10. The trial Court has

erred in holding that PW.10 who is gravamen of the

incident he did not made any interference to rescue his

brother and therefore, his version appears to be

doubtful of the theory put in forth by the prosecution.

These views were also taken by the trial Court by PW.10

who is the eyewitness and also he has narrated in this

complaint at Ex.P11 and moreover, evidence of PW.10

inclusive of the averments made in the complaint at

Ex.P11 and also various mahazars has been conducted

by the investigating officer in the presence of panch

witnesses and inclusive of evidence of PW.33 -

B.K.Shekar who laid the charge sheet against the

accused and also fulcrum of mahazar at Ex.P7 that is

spot mahazar and mahazar at Ex.P8 and seizure

mahazar at Ex.P12 seizure mahazar at Ex.P16 seizure

mahazar at Ex.P17, 18 and 19 and these are all the

mahazars conducted by the investigating officers in the

presence of panch witnesses and fulcrum of mahazar is

not considered by the trial Court. Therefore, in this

appeal it requires for reconsideration of the evidence in

the entirety on the part of the prosecution and also

requires for re-visiting of impugned judgment of

acquittal rendered by the trial Court.

14. It is further contended that accused No.8 has

taken plea of alibi and he was subjected to examination

as DW.3 and documents as per Exs.D1 to D4 were got it

marked. That one - Lingaraju who is the relative of

accused No.8 was working as driver attached to his

vehicle and on the fateful day on 28.04.2009 that the

driver namely Lingaraju had died due to the accident.

Ex.D3 is the inquest mahazar held over the dead body

of the Lingaraju at Government Hospital Magadi and

whereby he was met with an accident and also got

marked charge sheet as per Ex.D4 but the trial Court

ought to have seen the plea of alibi taken by accused

No.8 namely B. Padmaraju by manipulating and also

getting documents after the incident narrated in Ex.P11

of the complaint which filed by PW.10 and also

erroneously held by the trial Court that plea of alibi of

accused No.8 is proved but same cause to the benefit of

other accused also but observation made by the trial

Court by rendering acquittal judgment. But

credentiality has been given to the evidence of PW.10

who is brother of the deceased and also eyewitness, but

entire approach made by the trial Court it is only

resulted in the acquittal of the judgment even for

heinous offences which has been lugged against the

accused. Therefore, in this appeal it requires for re-

visiting of impugned judgment of acquittal and also

requires for re-appreciation of the entire evidence let in

by the prosecution in a proper perspective manner and

consequently, seeks to set aside the acquittal judgment

rendered by the trial Court in S.C.No.228/2009 and

convict the accused for the offences punishable under

Sections 120-B, 143, 147, 148, 504, 506-B, 302, 114

read with Section 149 of IPC, 1860.

15. Learned counsel for the appellant has

submitted a synoptic note for consideration in this

appeal. It states that Ramesh is the brother of

complainant namely Somashekara, S/o Mastaiah and

the date of the incident is 25.04.2009 in front of the

shop of Gangabaraiah. The complaint has been lodged

by the complainant on 25.04.2009 at around 9.45 a.m.

before Amrutur Police Station and so also, referring the

spot mahazar as per Ex.P7 and inquest mahazar as per

Ex.P27 and Post mortem report as per Ex.P40. But in

the facts of the case i.e., the nutshell of the prosecution

theory that on 23.04.2009 elections were held to

Tumkur Loksabha Constituency but the accused were

said to be supporters of Congress party. Deceased

Ramesh and complainant PW.10 were said to be

supporters of BJP party. But according to the

prosecution the accused had assembled in the house of

accused No.4 on 24.04.2009 and hatched criminal

conspiracy to eliminate victim Ramesh and so also,

narrating the conspiracy hatching among the accused

in respect of deadly weapons of sword, machete and

longs and arrived at Basavanamattikere in two autos

bearing Nos.KA 05 B 5981 and KA 06 B 5401 as per

M.O.10 and 11 and belonging to accused Nos.1 and 2.

That first and second accused had longs in their hands.

Accused No.3 had sword and Accused No.4 had

machete while alighting from the auto and attacked

deceased Ramesh who was sitting in front of the shop of

Gangabairaiah with complainant PW.10 and attacked

deceased Ramesh. Accused No.1 assaulted victim with

means of long on right ankle as a result, the deceased

fell down on the road in front of house of

Ghousepeersab and thereafter the other accused were

also assaulted over his person and accused Nos, 5, 6

and 7 alleged to have kicked on the person of deceased

Ramesh saying as to 'die' . But this incident took place

due to the instigation made by accused No.8. These are

all the contentions has been made by the learned

counsel while submitting the synoptic notes and also

referring the witnesses and other documents. But the

trial Court has given more credentiality to the evidence

of PW.10 who is the complainant and also gravamen of

the incident narrated in the complaint at Ex.P11 and so

also, stated in the evidence of DW.1 - Suresh, DW.2 -

U.D.Krishnakumar, who is the police inspector in CID

unit and DW.3 - Padmaraju, brother of former MLA

Ramaswamy gowda. This synoptic note has been made

by the learned counsel for the appellant / complainant

in support of the prosecution theory and also case has

been put forth on the part of the prosecution against the

accused person and so also, in support of the grounds

as urged in this appeal for consideration for seeking

intervention of the acquittal judgment rendered by the

trial Court.

16. In support of his contention learned counsel

for appellant / complainant has placed the following

reliances for consideration in this appeal:

i) Shivaji Sahabrao Bobade and another vs.

State of Maharashtra (1973) 2 SCC 793

ii) State of Karnataka vs. Suvarnamma and

another (2015) 1 SCC 323

iii) Vijay Mohan Singh vs. State of Karnataka

(2019)5 SCC 436

17. The aforesaid reliances are aptly applicable to

the present case on hand the same may be considered

in addition to the grounds as urged in this appeal for

seeking intervention and so also, to set-aside the

acquittal judgment and consequently, convict the

accused for the offences which are leveled against them.

18. Learned counsel Sri S.Shankarappa for

Respondent Nos.1, 3 and 7 inclusive of Respondent

No.8 and whereby engaging the services of learned

counsel Sri R.Srinivas for Respondent Nos.2, 4 to 6 who

is on record and more so, counsel namely

Smt.M.Gayathri for respondent No.8. Learned counsel

Sri S.Shankarappa has taken us by referring the

evidence of PW.10 who is the gravamen of the incident

narrated in complaint at Ex.P11 and more so, criminal

law was set into motion by recording the FIR as per

Ex.P28. PW.31 - T.S.Radhakrishna who is the

investigating officer in part recorded the FIR based upon

the complaint at Ex.P11 and even though he has

narrated in the substance of FIR at Ex.P28. But Ex.P30

is the voluntary statement of accused No.5 whereby

bears his signature as per Ex.P30(a). Similarly,

voluntary statement of accused No.2 as per Ex.P.33 and

bears his signature at Ex.P33(a) and also signature of

PW.33 at Ex.P33(b) who is the investigating officer who

laid charge sheet against the accused. PW.33 has done

the entire investigation and laid the charge sheet

against the accused and he recorded the voluntary

statement of accused No.3 as per Ex.P34. PW.1 -

Gangadhara has given his statement before the

investigating officer during the course of investigation

and so also, PWs.2 to PW.6 and they did not withstood

the version of their statement in respect of Ex.P1, P2,

P3, P4, P5 and P6. PW.10 - Somashekar has

subscribed his signature at Ex.P7 spot mahazar said to

have been conducted by PW.30. This spot mahazar has

been conducted by him in the presence of PW.11 -

Lakshmana. But PW.11 did not support the case of the

prosecution relating to the fulcrum of Ex.P7 of the spot

mahazar. PWs.8 and 9 namely Chandra and Gururaju

were secured as panch witnesses relating to Ex.P8

seizure mahazar. This mahazar has been conducted by

PW.33 being the investigating officer and getting the

signature of PW.19 - Thimmegowda. PW.13 -

Madhugiraiah in respect of seizure mahazar at Ex.P16

and that mahazar was also drawn by PW.33 being the

investigating officer. PW.14 - Krishnappa who is also

mahazar witness at Ex.P16. But both these PWs.13

and 14 did not withstood the fulcrum of the said

mahazar conducted by the investigating officer in their

presence. The aforesaid witnesses even though were

subjected to examination on the part of the prosecution

but they did not withstood their versions of their

statements and their evidence runs contrary to the

evidence of PW.10 - Somashekaara who is the brother

of deceased - Ramesh and who was also present by

sitting in front of the shop of Gangabaraiah. But

strangely that Gangabaraiah and also Ghouse peersab

whereby in front of his house even the incident took

place it is on 25.04.2009 at around 8.30 a.m. in the

morning. But the said Gangabaraiah and also Ghouse

peersab were not examined on the part of the

prosecution and non-examination of these material

witnesses has created some clouds of doubt in the case

of prosecution as well as the prosecution did not come

forward to put forth worthwhile evidence to secure

conviction and the same has been considered by the

trial Court having gone through the evidence of PW.10 -

Somashekara who is the brother of the deceased -

Ramesh and took him from the scene of crime on seeing

the accused persons by assembling unlawfully as

according to the criminal conspiracy hatched by them to

eliminate deceased - Ramesh.

19. The trial court has considered the evidence of

PW.10 relating to examination-in-chief and so also,

cross-examination part in its entirety but his evidence is

not supported with any other independent witnesses

and even though he is an eye witness. PW.26 is

Dr.Mamatha who issued the MLC register extract as per

Ex.P22 in respect of injured Ramesh. But Ex.P40 is the

post mortem report which is got marked on the part of

the prosecution only through PW.33 being the

investigating officer and mere because he has secured

the PM report, but unless the Doctor who conducted the

autopsy over the dead body of the deceased is subjected

to examination on the part of the prosecution and so

also, cross examination on the part of the defence side,

and unless the opportunity has been availed to the

defence, even though deadly weapons of M.Os.1 and 2

iron longs, M.O.3 iron sword, M.O.4 - Machete alleged

to have been used by the accused as according to the

criminal conspiracy hatched among the accused

persons to eliminate deceased - Ramesh relating to the

corresponding injuries with means of M.O.1 to M.O.4

and so also, injuries indicates at Ex.P40 of the post

mortem report. Whereas the prosecution did not make

any endeavourance to secure the Doctor who conducted

the autopsy over the dead body of deceased Ramesh but

the post mortem report at Ex.P40 was only got marked

through PW.33 being the investigating officer who laid

the charge sheet. Similarly, Ex.P41 is the Doctor

opinion report and FSL report at Ex.P42 and these

reports were got it marked on the part of the

prosecution only through PW.33 being the investigating

officer. But mere because got it marked, it cannot be

said that the contents in the aforesaid exhibited

documents have been proved by the prosecution and it

is the domain vested with the prosecution and equally

the domain vested with the defence counsel for

subjected to cross-examination relating to the injuries

inflicted over the person of the deceased.

20. The evidence of PW.10 - Somashekara who is

the gravamen of the incident as narrated in the

complaint at Ex.P11 and so also, the evidence of PW.17

- Masthaiah, father of deceased as well as father of

complainant - PW.10. But their evidence has not been

corroborated by any independent witnesses on the part

of the prosecution. But the evidence of PW.28 who is

the police constable who apprehended accused Nos.5

and 7 and similarly, PW.29 - Huchamachigowda who

apprehended accused No.6 and mere because subjected

to examine those police official relating to apprehending

the accused and also produced before the investigating

agency to proceed in further and even subjected to

examine PW.31 for recording the FIR at Ex.P28. PW.32

- Gangaraju who is the police constable collected the

clothes of deceased - Ramesh which are marked at

M.O.9. They are the official witnesses on the part of the

prosecution that too be the police official witnesses and

merely because they are subjected to examination on

the part of the prosecution, it cannot be said that the

prosecution has proved the guilt of the accused by

facilitating the worthwhile evidence. Therefore, in this

appeal it does not arise for call for interference and so

also, does not arise for re-visiting the impugned

judgment in its entirety as sought for by learned

counsel for the appellant by urging various grounds and

even by facilitating the reliances in support of the

contention.

21. DW.1 - Suresh, DW.2 - Krishnakumar and

DW.3 - Padmaraju who is arraigned as accused No.8

and he was the panch witness relating to the inquest

held over the dead body of one Lingaraju who was the

driver working with Ramaswamygowda, the then MLA

and brother of accused No.8 as per Ex.D3 and this

accused No.8 has taken a plea of alibi and wherein he

was present on 25.04.2009 at Government Hospital,

Magadi. The said Lingaraju had died in an accident on

Bangalore-Mangalore road near Narayanapura of Kudur

Hobli, Magadi Taluk and accused No.8 being his brother

had went to the spot. But accused No.8 was not present

at the scene of crime. The allegation is that he has

instigated the other accused to eliminate deceased -

Ramesh as narrated in a theory of the prosecution and

it is only to implicate accused No.8 in the case and this

theory has been set up by the prosecution laying of

charge sheet against the accused to suit their purpose.

22. Learned counsel Sri Shankarappa for accused

and even counsel for Respondent No.8 - Smt.Gayathri

have taken us through the entire evidence of PW.10 -

Somashekara who has been subjected to examination

on the part of prosecution to prove the guilt of the

accused and so also, the averments made in his

complaint as per Ex.P11 and more so, he is the brother

of injured - Ramesh. He has made the complaint as per

Ex.P11 on 25.04.2009 but not subscribed his signature

nor examination relating to the contents proved by the

prosecution. On 25.04.2009 at around 9.45 a.m.,

P.W.31 being the PSI of Amrutur Police Station received

complaint as per Ex.P11 and based upon his complaint,

criminal law was set into motion by recording FIR at

Ex.P28 and the case in Cr.No.62/2009 came to be

registered. Accused Nos.1 to 4 alleged to have been

assaulted on the left hand elbow and left hand of

deceased - Ramesh found to be cut with means of

chopper and sustained injuries on his left hand, left

elbow part, head and both the legs. Accused No.8

alleged to have instigated the other accused to assault

the deceased. But PW.10 did not make any

endeavourance to rescue his brother from the clutches

of the accused persons or even made any efforts to hue

and cry in order to help his brother - Ramesh who was

assaulted mercilessly. PWs.1 to 3 came to the scene of

crime and after seeing them accused took heel from the

place and PWs.1 to 3 and 10 shifted the injured -

Ramesh to Government Hospital, Kunigal on

25.04.2009 at around 9.30 AM in order to provide

treatment to him and thereafter at the advise of the

Doctor, injured - Ramesh was referred to Victoria

Hospital for further treatment. Ex.P22 - MLC Register

extract relating to injured - Ramesh. But PW.26 being

the Doctor admitted the injured at around 9.00 AM but

the date of admission in Kunigal Government Hospital

is at around 9.00 AM brought by the relative of the

injured - Ramesh. But the date, time and dispatch of

Ex.P11 and based upon the complaint of PW.10, PW.31

PSI of Amrutur Police Station who recorded FIR as per

Ex.P28 but the date and time of dispatch of Ex.P11 and

P28 on 25.04.2009 at around 10.15 a.m. But the

injured - Ramesh was shifted from Government

Hospital, Kunigal to Victoria Hospital, Bengaluru to

provide further treatment to him. But the injured -

Ramesh lost his breath while he was being carried to

Victoria Hospital, Bengaluru on 25.04.2009 at around

12.20 p.m. But PW.31 being the PSI of Amrutur Police

Station and even after death of the injured, submitted a

report as per Ex.P29 to invoke the offence under Section

302 of IPC as initially FIR has been recorded by PW.31

by invoking the major offence under Section 307 of IPC

only after the death of injured - Ramesh that the offence

under Section 302 of IPC has been invoked by

submitting a report. But PW.30 - ASI of Amrutur Police

Station held inquest over the dead body of deceased -

Ramesh on 25.04.2009 in between 3 p.m. to 5.30 p.m.

in respect of the inquest report at Ex.P27. But Ex.P27

in respect of column Nos.3, 4, 6, 9 and 10. Whereas in

column No.3 indicates that on 25.04.2009 at 12.20

p.m., firstly seen the deceased - Ramesh by Doctor

Surendra at Victoria Hospital, Bengaluru. But in

column No.4 of the inquest mahazar at Ex.P27 i.e., last

seen life of the injured - Ramesh by Doctor Surendra in

Victoria Hospital on 25.04.2009 at around 12.20 p.m.

But column No.7 of the inquest report indicates injuries

1 to 7. But PW.7 who is the father of the deceased

indicates in column no.9 but Bettaswamy who is a hear

say witness is examined PW.16. In column No.10 of the

inquest report, PW.18 - Gangadharaiah and PW.27 -

Rangaswamy. But these are all the process that has

been taken in respect of injured - Ramesh who lost his

breath on 25.04.2009 at around 12.20 p.m. at Victoria

Hospital whereby he was shifted from Kunigal

Government Hospital as on the advise of the Doctor to

Victoria Hospital for further treatment. Even at a

cursory glance of evidence of PW.26 and so also,

contents at Ex.P11 of the complaint and more important

Ex.P28, FIR inclusive of contents of Ex.P27 - Inquest

mahazar which runs contrary to the evidence of PW.10

and whereby the criminal law was set into motion by

receipt of complaint at Ex.P11 and more so, he is an eye

witness on the part of the prosecution and so also, he

ran away from the scene of crime when the accused

alleged to have assaulted on his brother deceased -

Ramesh with means of deadly weapons like iron long,

swords, machete and chopper.

23. PW.10 - Somashekar has subscribed his

signature at Ex.P7 - spot Mahazar conducted by PW.31

being the PSI in the presence of PWs.10 and 11. As per

Ex.P7 that on 25.04.2009 in between 10.45 a.m. to

11.45 a.m. in front of house of Gousepeersab, blood

stains was found and also noticed in front of house of

Gousepersab near the place of occurrence as a distance

of 3 feet width surround ½ feet x 1 feet blood stains was

found from South of house of Gousepeersab traced the

western wall from 2 feet from the ground there was

blood stain splashes. Even though MOs.5 and 6 have

been got it marked on the part of the prosecution having

collected blood stained mud and unstained mud as well

as blood stained clothes of the deceased were seized.

But it is not specifically mentioned in Ex.P7 - spot

mahazar conducted by the investigating officer even in

the presence of PW.10 and so also in the presence of

panch witnesses and it was conducted in their presence

in front of house of Gousepeer sab. M.O.7 - blood

stained banian, M.O.8 - blood stained lungi of deceased

- Ramesh has been produced by PW.10 before the

investigating officer during the course of investigation.

But his evidence does not find corroborated with any

other independent witness on the part of the

prosecution as regards to the role of each one of the

accused and also direct overt act attributed against

each one of the accused to attack deceased - Ramesh

with means of deadly weapons.

24. PW.33 being the investigating officer recorded

the voluntary statements of accused Nos.1 to 4 as per

Ex.P32, 33, 34, 35 on 30.04.2009. But the voluntary

statement of accused No.5 was recorded on 28.04.2009

as per Ex.P30, the voluntary statement of accused No.6

was recorded on 15.05.2009 and voluntary statement of

accused No.7 was recorded on 06.05.2009. These are

all the voluntary statements of accused recorded by the

investigating officer which is hit under Section 27 of the

Indian Evidence Act, 1872 i.e., how much of information

has been secured from the accused relating to recovery

and discovery of the material objects. But the material

objects recovered at the instance of the accused and

voluntary statement of accused No.1 as per Ex.P32.

Ex.P8 is the recovery mahazar dated 30.04.2009 and

this mahazar has been conducted by the investigating

officer PW.33 in between 1.00 p.m. to 2.30 p.m. in the

presence of PWs.8, 9 and 19. But M.Os.1 to 4 such as

sword, machete, iron long and chopper were seized by

the investigating officer in the presence of panch

witnesses as at the instance of accused No.1 it is near

the Nagini River between Mantya and Singonahalli

village dambar road. It is taken out 5 ½ feet depth from

the river water by PW.8 and 9. Mere because recovery

of the objects by drawing the mahazar at Ex.P8 and

unless the evidence let in by the prosecution to prove

the guilt of the accused by facilitating evidence relating

to the scope of Section 27 of the Indian Evidence Act, it

cannot be given more credentiality to the mahazar

conducted by the investigating officer. Even the

mahazar at Ex.P16 in respect of M.Os.12, 13 - two

pants and M.Os.14 and 15 - shirts and under Ex.P36 -

recovery mahazar in respect of M.O.10 - Autorickshaw

bearing Regn.No.KA-06-B-5981 and M.O.11 -

Autorickshaw bearing regn.No.KA-06 B 5401 alleged to

be used by the accused as according to the criminal

conspiracy hatched among them to eliminate deceased -

Ramesha. But the criminal conspiracy took place in

front of accused No.1. Therefore, the mahazar at

Ex.P18 dated 25.04.2009 has been drawn at around

12.20 p.m. to 1.00 p.m. and similarly, mahazar at

Ex.P19 dated 28.04.2009 was drawn in between 1.15

p.m. to 1.45 p.m. in front of the house of Gousepeersab

which is shown by accused No.5. Though the

prosecution has let in evidence by examining several

witnesses, but PWs.1 to 6 have been subjected to

examination and they were treated as hostile and

thereafter they were not subjected to cross-examination

by the prosecution and nothing worthwhile has been

elicited in their statements which marked at Exs.P1 to

P6. Even their statement is hit under Section 161 of

Cr.P.C. and their evidence runs contrary to the evidence

of PW.10 who is the gravamen of the incident and he

has filed the complaint at Ex.P11 and more so, he is

none other than the brother of deceased - Ramesh and

so also, he is one of the witnesses for having subscribed

his signature at Ex.P7 - spot mahazar conducted by the

investigating officer in his presence. PW.13 -

Madhugiraiah has turned around his statement at

Ex.P13 and it is hit under Section 161 of Cr.P.C and

similarly, PW.14 - Krishnappa whereby he has given a

goby to his statement at Ex.P13. But their evidence

runs contrary to the evidence of PW.10 - Somashekar

and also to the evidence of PW.17 - Mastaiah who is

none other than the father of the deceased.

25. Further, it is contended that the spot mahazar

at Ex.P7 drawn by the investigating officer in the

presence of PW.10 being the brother of the deceased but

runs contrary to the map of scene of crime at Ex.P15

drawn by the Assistant Executive Engineer and it

creates the clouds of doubt in the prosecution theory to

prove the scene of crime and also sketch prepared. This

contention is also made by learned counsel for

respondent / accused. This material was also

considered by the trial Court even by close scrutiny of

PW.7 who is the complainant and he is no other than

brother of deceased and is the author of the complaint

as per Ex.P11.

26. PW.19 - Thimmegowda is the witness who has

been secured to draw the seizure mahazar as per Ex.P8

in respect of M.Os.1 to 4, Ex.P16 in respect of M.Os12

to 15. PW.20 - A.C.Chaluvaiah as at the instance of

accused No.1, Ex.P12 of the mahazar has been

conducted and having been seized auto rickshaw

M.O.11. However, the prosecution has let in evidence

by subjected to examination of several witnesses but

nothing worthwhile has been elicited to prove the guilt

of the accused, but it is the domain vested with the

prosecution to prove the guilt of the accused by

facilitating worthwhile evidence and also the domain

vested with the trial Court as under Section 3 of the

Indian Evidence Act for appreciation of evidence. But in

the instant case, the trial Court has considered the

evidence of PW.10 insofar as Ex.P11 of the complaint

and so also, Ex.P28 - FIR and so also, evidence of

PW.33 being the investigating officer who conducted the

entire investigation and laying of the charge sheet and

the charge sheet consisting several mahazar of the spot

mahazar as per Ex.P7 which conducted by PW.31 in the

presence of PW.10 for having seized M.Os.1 to 8. But

PW.22 - Rangaswamaiah was subjected to examination

on the part of the prosecution but he has not supported

the case of prosecution and it creates some doubt in the

mind of the Court. But PWs.1 to 9, 13, 14, 22 and 25

these witnesses have been subjected to examination on

the part of the prosecution and they have been turned

out and their statement has been got it marked at

Exs.P1 to P6 and Exs.P13, 14 and 21 and even PW.31

has been subjected to examination in respect of Ex.P7

of the spot mahazar. But these witnesses have been

given a goby to the versions of their statement which

runs contrary to the evidence of PW.10 who is a

gravamen of the incident and similarly, the substances

stated in Ex.P28 of the FIR. All this evidence which is

put forth by the prosecution has been appreciated by

the trial Court and therefore, it cannot arise for

revisiting the judgment of acquittal as contended by the

counsel for complainant/appellant by urging various

grounds and more so, it requires for re-visiting the

impugned judgment of acquittal but the appeal

preferred by the appellant / complainant is being devoid

of merits and deserves to be rejected. Accordingly,

learned counsel for respondent / accused respectively in

this matter vehemently contended and seeking for

dismissal of this appeal being devoid of merits.

27. It is in this context of the contention as taken

by learned counsel Sri N.Dinesh Rao for the appellant /

complainant and so also, counter arguments stoutly

addressed by learned counsel Sri S.Shankarappa for

Respondent Nos.1, 3 and 7 and inclusive of learned

counsel Smt.Gayathri for respondent No.8 and so also,

learned HCGP for State in respect of Respondent No.9.

The case of the prosecution has been revolving around

the evidence of PW.10 - Somashekara who is none other

than the brother of the deceased - Ramesh and so also,

son of PW.17 - Masthaiah who has been examined on

the part of the prosecution. But PW.17 is not the eye

witness. But he is only a hearsay witness on the part of

the prosecution and the entire theory of the prosecution

in the complaint as per Ex.P11 it is only briefed by

PW.10 who is none other than the brother of deceased -

Ramesh wherein he was present along with the

deceased near the shop of Gangabaraiah on 25.04.2009

at around 8.30 a.m. But for the criminal conspiracy

hatching among the accused persons with an intention

to eliminate deceased - Ramesh that the accused

persons holding deadly weapons of M.Os.1 to 4 such as

sword, iron long, chopper and machete. They made an

attempt to take away the life of deceased - Ramesh and

they attacked him as according to the allegations made

in the complaint at Ex.P11 and this complaint made by

PW.10 who is the eye witness on the part of the

prosecution and also he was present with his brother

injured - Ramesh on the fateful day that too be in the

morning at 8.30 a.m.

28. The theory of the prosecution reveals that

when accused Nos.1 to 7 alleged to have mercilessly

attacked deceased - Ramesh with means of M.Os.1 to 4

but on seeing the incident that PW.10 - Somashekara

who took heel from there and did not make any

endeavour to rescue his brother from the clutches of the

accused persons and even not made any effort atleast to

secure general public in that area even though it is a

residential area but the incident took place on

25.04.2009 at around 8.30 a.m. it was in front of the

tea shop of Gangabaraiah wherein deceased - Ramesh

and his brother PW.10 - Somashekara were sitting in

order to consume tea. But on seeing those persons that

accused Nos.1 to 7 inclusive of accused No.8 alleged to

have attacked deceased - Ramesh with means of lethal

weapons of M.Os. 1 to 4. But PW.33 being the

investigating officer who conducted the entire

investigation and laid the charge sheet against the

accused persons before the committal court having

jurisdiction and more so, PW.33 who recorded the

voluntary statement of accused No.5 as per Ex.P30,

Accused Nos.1 to 4 as per Exs.P32, 33, 34 and 35. But

PW.33 who recorded the voluntary statement of the

accused and also conducted the seizure mahazar as per

Ex.P36 for having seized certain material objects which

were subjected in P.F.No.34/2009, 35/2009 and

36/2009 as per Exs.P37, P38 and P39. PW.33

conducted investigation in its entirety and laid the

charge sheet. But Ex.P40 of the post mortem report it

is got marked on the part of the prosecution through

that investigating officer only but not secured the

Doctor who conducted autopsy over the dead body in

Victoria Hospital, Bengaluru on 25.04.2009 wherein

deceased - Ramesh lost his breath by sustaining

injuries which indicates at Ex.P40. Unless the Doctor

who conducted autopsy over the dead body of the

deceased is subjected to cross-examination by the

defence side, it cannot be arrived for conclusion relating

to the correspondence of injuries which were inflicted on

the person of deceased with means of M.O.1 to 4 and

also it is not proper even closely verifying the contents

of Ex.P40 of the P.M. report and having gone through

the evidence of PW.33 being the investigating officer and

even the P.M. report even got it marked on the part of

the prosecution through PW.33, but unless the Doctor

who conducted the autopsy over the dead body is

subjected to the cross-examination on the part of the

defence counsel, it is not safe for arrival of conclusion

that the injuries inflicted over the person of the

deceased as a corresponding injuries with M.Os.1 to 4.

However, the trial Court relying over the evidence of

PW.10 who is a star witness on the part of the

prosecution and more so, the eye witness and he has

given the written complaint as per Ex.P11 and based

upon his complaint criminal law was set into motion by

recording FIR as per Ex.P28 by Amrutur Police. But

PW.10 being the gravamen of the incident and he has

even stated relating to the incident alleged to have been

occurred on 25.04.2009 at around 8.30 a.m. in the

morning hours. PW.10 is the eye witness relating to the

incident narrated in the theory of the prosecution and

PWs.1, 2, 3 and 4 they came to the scene of crime it is

marked at Ex.P7 and even they have been eye witnesses

to the incident but turned hostile and their evidence it

would have been discussed even on the later part and

this observation has been made by the trial Court at

paragraph No.45 of the acquittal judgment and

admittedly, the alleged incident there were others also

at the place and the incident had taken place as alleged

by the prosecution and even on close scrutiny of the

evidence of PW.10 and even those others could have

been cited as witnesses in the charge sheet and even

examination before the trial Court relating to prove the

guilt of the accused. But in the cross-examination of

PW.10 who has stated in his evidence that the shop of

one Shivaramaiah is near the shop of Gangabairaiah

where the prosecution claims the incident started first.

He further states that the house of Gousepeersab is

about 80 feet away from the shop of Gangabairaiah and

there are houses neighbouring the house of

Gousepeersab and people are residing there itself. It

means to say it is a residential area and where the

incident alleged to have taken place and also narrated

the facts at Ex.P7 of the spot mahazar. Insofar as

evidence of PW.10, counsel for the appellant who has

stoutly addressed his arguments and also observation

made by the trial Court it is strange thing and beyond

stretch of imagination but nobody appears to have been

made any attempt to rescue the deceased nor have they

been made charge sheet witnesses and examined before

the Court in order to prove the guilt of the accused.

This observation is also made by the trial Court and it is

only exaggeration and no observation needs in the case

of the prosecution as where PW.10 who is the

complainant and so also, eye witness to the incident

and more so, the brother of the deceased. PW.10 also

stated that clothes of CW.2 - Ramesh, CW.5 -

Shivaramaiah and CW.3 - Gangadharaiah were blood

stained. PW.10 has given evidence that they have not

given the blood stained clothes to the police and this is

the evidence let in on the part of the prosecution even

though PW.10 has been subjected to examination to

prove the guilt of the accused and this observation

made by the trial Court on close scrutiny of the evidence

of PW.10 coupled with the evidence of PW.17 - Mastaiah

who is his father. This observation is also made and

also this reason has been assigned by the trial Court

and it is not proper and it has erroneously made an

observation, therefore, under this appeal it requires for

re-appreciation of the evidence and more so, revisiting

the acquittal judgment rendered by the trial Court.

29. Whereas it is vehemently contended by

counsel for the appellant by referring to the evidence of

PW.1 who is cited as CW.3 and he is said to be another

alleged eye witness to the incident and also the person

who is said to have shifted the injured in an

Autorickshaw to the hospital in the limits of Kunigal

along with PW.10 - Somashekara. But this observation

made by the trial Court is improper and erroneously

made an observation and the trial Court has not given

any credentiality to the evidence of PW.1 in its entirety

and even though he has briefed the incident to his

father - PW.17 and along with deceased brother

Ramesh on 25.04.2009 at around 8.30 A.M. and also

shifted injured - Ramesh to the Kunigal Hospital in

order to provide treatment and as per the advise of the

Doctor, injured was shifted to Victoria Hospital,

Bengaluru. But on 25.04.2009 at around 12.20 pm.

injured - Ramesha lost his breath as he sustained

injuries said to have been inflicted over his person.

30. PWs.2 and 4 are also alleged eye witnesses to

the incident and said to have taken the injured in an

auto to the hospital along with CW.1 but they did not

support the case of the prosecution. Mere because they

did not withstood the version of their statements, it

cannot come in the way of evidence of PW.10 and

inclusive of evidence of PW.17 - Mastaiah and more so,

PW.33 being the investigating officer who conducted the

entire investigation and laid the charge sheet against

the accused by conducting spot mahazar as per Ex.P7

and several mahazars have been conducted even

recording the voluntary statements of accused as per

Exs.P33 to 35 in respect of Accused Nos.1, 2, 3 and 4

on 30.04.2009. But the voluntary statement of accused

No.5 as per Ex.P30 and this voluntary statement was

recorded by the investigating officer who is examined as

PW.33 on 28.04.2009 at around 9.30 a.m. But the

voluntary statement of accused No.6 it was recorded on

15.05.2009 and voluntary statement of accused No.7

recorded on 06.05.2009 by PW.33. However, at the

instance of accused No.1 that material objects were

recovered by drawing mahazar as per Ex.P8 by PW.33 in

between 1.00 p.m. to 2.30 p.m. on 30.04.2009. It is

relevant at this stage to note that near Nagini river

situated in the limit of Tumkur District it is between

Mantya and Singonahalli village dambar road, PW.8 and

9 have been secured as panch witnesses and they

picked up choppers which were marked as M.Os.1 to 4

and it is to be termed as sword, machete, chopper and

iron longs. M.Os.1 to 4 were said to have been picked

with the assistance of PWs.8 and 9 from 5 ½ feet depth

of water at the instance of accused No.1. But recovery

mahazar as per Ex.P16 was conducted by the

investigating officer on 30.04.2009 between 2.40 p.m. to

3.40 p.m. In this regard, it is relevant to refer Section

27 of the Indian Evidence Act -

Section 27. How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

31. This issue has been extensively addressed by

the Hon'ble Supreme Court in a judgment reported in

AIR 2018 SC 2027. Insofar as application of Section 27

of the Indian Evidence Act, the statement must be split

into its components and to separate the admissible

portion. Only those components or portions which were

the immediate cause of the discovery would be legal

evidence and not the rest which must be exercised and

rejected. This issue was considered by the Hon'ble

Supreme Court in a decision reported in AIR 1976 SC

483 - Mohd.Inayatullah vs. State of Maharashtra.

32. In the instant case, at the instance of accused

No.1 and also voluntary statement at Ex.P32 that

M.Os.1 to 4 weapons i.e., sword, chopper, iron long and

machete said to have been used by the accused

respectively and the same were been seized by PW.33

being the investigating officer who conducted the

seizure mahazar and also recorded the voluntary

statements of the accused persons. But there is no

specific evidence on the part of the prosecution even at

a cursory glance of PW.10 and even on close scrutiny of

the evidence of PW.10 coupled with the evidence of

PW.33 that there is no consistent evidence relating to

seizure of M.Os.1 to 4 which were alleged to be used to

eliminate deceased - Ramesh. A fact discovered in an

information given by the accused in his disclosure

statement is relevant fact and that is only admissible in

evidence if something new is discovered or recovered

from the accused which was not within the knowledge

of the police before recording the disclosure statement

of the accused. This issue has been is extensively

addressed by the Hon'ble Supreme Court in Kamal

Kishore v. State (Delhi Administration), (1997) 2 Crimes

169 (Del).

33. But under Section 27 of the Indian Evidence

Act, 1872, it is not necessary that a disclosure

statement must be signed by maker of the same or that

thumb impression must be affixed to it. The said issue

has been addressed in a decision of K.M.Ibrahim alias

Bava v. State of Karnataka reported in 2000 Crl.LJ.197

(Karn).

34. However, in the totality of the scope and object

of Section 27 of the Indian Evidence Act, 1872, thereby,

there shall be some discovery and then only concept of

recover would arise. Mere because the material objects

have been recovered as at the instance of accused, it

cannot be said that the prosecution has proved the guilt

of the accused in its entirety and unless there shall be

independent evidence it should be corroborated with the

facts narrated in a complaint made by the gravamen of

the accused. But in the instant case, PW.10 who is the

gravamen of the incident and he has filed Ex.P11 and

based upon his complaint, criminal law was set into

motion by recording FIR as per Ex.P28 and even his

presence while drawing Ex.P7 of the spot mahazar said

to have been conducted by PW.31 who is an

investigating officer in part and who is the Station

House Officer who recorded FIR. But PW.10 has shown

the scene of crime and also subscribed his signature.

Mere subscribing his signature it cannot be said that he

has given evidence in entirety to prove the guilt of the

accused unless his evidence has to be corroborated in

each one of the ingredients of the offences which are

leveled against the accused persons.

35. Insofar as PW.10 who is the brother of the

deceased - Ramesh made accused nos.1 to 7 inclusive

of accused No.8 it appears his father PW.17 - Mastaiah

who is a hearsay witnesses on the part of the

prosecution and there is no direct awareness of the

incident in his knowledge. Therefore, it is relevant to

refer Section 3 of the Indian Evidence Act, 1872 as

regards the concept of fact is said to be proved. A fact is

said to be proved when, after considering the matters

before it, the Court either believes it to exist, or

considers its existence so probable that a prudent man

ought, under the circumstances of the particular case,

to act upon the supposition that it exists. But in the

instant case, PW.10 who is a gravamen of the incident

and he is the author of Ex.P11 but it is the domain

vested with the prosecution to prove the guilt of the

accused by facilitating worthwhile evidence then only

Section 3 of the Indian Evidence Act relating to the

concept of proof of fact is said to be proved would arise.

36. In the aforesaid provision the concept of

disproving a fact, states that, 'a fact is said to be

disproved when, after considering the matters before it,

the Court either believes that it does not exist, or

considers its non-existence so probable that a prudent

man ought, under the circumstances of the particular

case, to act upon the supposition that it does not exist.'

37. Further, Section 3 of the Indian Evidence Act,

1872 as regards the concept of a fact 'not proved', states

that, 'a fact is said not to be proved when it is neither

proved nor disproved.'

38. Therefore, even for minor discrepancy in a

testimony of the injured witness does not make

untrustworthy. But in the instant case, PW.10 who is

no other than brother of the deceased - Ramesh and he

is an eye witness and even his evidence runs contrary to

the evidence of PWs.2, 3 and 4 and they were also cited

as witnesses in the charge sheet and were subjected to

examination on the part of prosecution but they did not

withstood with full extent of version of their statement

on the part of the prosecution. Therefore, the evidence

of PW.10 runs contrary to the evidence of PWs.2, 3 and

4 and further contradictory to the evidence of PW.31

who is the investigating officer in part who received

Ex.P11 and recorded Ex.P28 FIR and more so the

criminal law was set into motion and thereafter, PW.33

who conducted the entire investigation and laid the

charge sheet against the accused by compliance of

Section 173(2) of Cr.P.C.

39. Further, it is relevant to refer to Section 134 of

the Indian Evidence Act, 1872 regarding number of

witnesses. No particular number of witnesses shall in

any case be required for the proof of any fact. The

number of witnesses it is to be in terms of Section 101

to 103 of the Indian Evidence Act. But it is well-known

principle of law that reliance can be based on the

solitary statement of a witness if the court comes to the

conclusion that the said statement is the true and

correct version of the case of the prosecution. This

issue has been extensively addressed by the Hon'ble

Supreme Court in Raja Vs. State (1997) 2 Crimes 175

(Del). In the criminal justice delivery system, it is only

the quality of evidence and not the quantity of evidence

which is required to be judged by the court to place

credence on the statements. This issue has been

extensively addressed by the Hon'ble Supreme Court in

State of Uttar Pradesh v. Kishanpal reported in 2008 (8)

JT 650.

40. The law of evidence does not require any

particular number of witnesses to be examined in proof

of a given fact. However, faced with the testimony of a

single witness, the court may classify the oral testimony

of a single witness, the court may classify the oral

testimony into three categories, namely,

i) wholly reliable,

ii) wholly unreliable and

iii) neither wholly reliable nor wholly unreliable.

41. In the first two categories, there may be no

difficulty in accepting or discarding the testimony of the

single witness. The difficulty arises in the third category

of cases. The court has to be circumspect and has to

look for corroboration in material particulars by reliable

testimony, direct or circumstantial, before acting upon

testimony of a single witness. This issue has been

addressed by the Hon'ble Supreme Court in Lallu

Manjhi v. State of Jharkhand reported in AIR 2003 SC

854. In the instant case even on a close scrutiny of

evidence of PW.10 who is the star witness and also an

eye witness and he is the gravamen of the incident

narrated in the complaint at Ex.P11 and merely because

he has narrated in Ex.P11 but unless his evidence finds

corroborated with the independent evidence let in by the

prosecution, it cannot be given more credentiality to the

evidence for arrival of conclusion by the trial Court for

securing the conviction by the prosecution. Mere let in

evidence by the prosecution by subjected to other

witnesses and mere because of several documents

inclusive of material objects got it marked, it cannot be

said that the prosecution has proved the guilt of the

accused beyond all reasonable doubt. But in the

instant case the prosecution has let in evidence by

examining several witnesses and also given more

credence to the evidence to PW.10 who is the gravamen

of the incident. But the accused is also gravamen of the

accusation which is narrated in the theory of the charge

sheet laid by the investigating officer and equally must

be appreciated the evidence on the part of the

prosecution and also on the part of the defence. But the

defence counsel has dismantled the evidence of PW.10

for having subjected to cross-examination and also

incisive cross examination done and the same has been

seen in his evidence. Merely there shall be evidence on

the part of the prosecution in respect of PW.10 who is

an eye witness, but unless his evidence is corroborated

with other independent witnesses, it cannot be given

any credentiality on the part of the prosecution that the

prosecution has proved the guilt of the accused beyond

all reasonable doubt.

42. Whereas accused No.8 has taken the plea of

alibi. In respect of plea of alibi is concerned that on the

part of the defence side DW.1 and 2 have been

subjected to examination and DW.3 who is arraigned as

accused No.8 and he has been subjected to examination

and got marked Exs.D1 to D4. But Ex.D1 it is the

portion of the statement of PW.17 Masthaiah who is

none other than the father of deceased - Ramesh and

PW.10. Ex.D2 is the pocket calendar of 2012. Ex.D3 is

the copy of inquest mahazar and this inquest mahazar

relating to deceased - Lingaraju was working as driver

under the then MLA Ramaswamygowda. The said

Lingaraju said to have died in an accident on Bangalore

- Mangalore road near Narayanapura of Kudur Hobli,

Magadi Taluku in the night of 24.04.2009 and the same

was intimated to MLA Ramaswamygowda and he is said

to have sent his brother, accused No.8 herein to the

place of incident. Accused No.8, uncle of the deceased,

Suresh and others said to have gone to the spot and

shifted the dead body to Magadi General Hospital and

stayed there in the night and on 25.04.2009, the CPI,

Magadi Circle had been to the hospital and inquest was

done and accused No.8 is said to have been present at

the inquest and signed the inquest mahazar and his

statement is also said to have been recorded at the time

of drawing of inquest mahazar. Thus, it is the

contention of accused No.8 that he was not in

Basavanamathikere from the evening of 24.04.2009 till

the evening of 25.4.2009. In this regard the accused

have adduced evidence and examined one Suresh as

DW.1 and he is none other than the uncle of deceased -

Lingaraju and he has stated in his evidence that on

24.04.2009 accused No.8 had been to the place of

incident and accused No.8 and others had shifted the

body to the hospital and remained in the hospital in the

night and the post mortem was conducted between 8.00

a.m. to 10.00 a.m. on 25.04.2009 and the statement of

accused No.8 was recorded by CPI, Magadi. The inquest

mahazar is marked at Ex.D3. It is seen that in between

the night of 24.04.2009 till after 3.00 p.m. on

25.04.2009, accused No.8 was not in

Bsavanamathikere. He is the witness to the inquest

mahazar in Cr.No.129/2009 of Kudur Police Station.

43. DW.2 - U.D.Krishna Kumar is the police

inspector in Magadi Circle in the limit of Kudur Police

Station. But in Cr.No.129/2009 the offence under was

Section 279 and 304-A of IPC, 1860 and this case was

investigated by him on 24.04.2009. He got information

about the accident and registered the case in

Cr.No.129/2009 on that day itself at around 9.00 p.m.

he visited the scene of crime and verified the dead body

of Lingaraju and conducted inquest over the dead body

in the autopsy of Magadi Government Hospital. It is in

the presence of panch witnesses namely Suresh,

Govinda and Muddulingaiah and they have subscribed

their signature at Ex.D3 and that Ex.D3 has been

produced on the part of the defence to prove the plea of

alibi.

44. DW.3 - Padmaraju is arraigned as accused

No.8 and he has been subjected to examination on the

part of the defence side and he has stated in his side

that his brother namely Ramaswamygowda was an MLA

and the said Lingaraju was working as his driver. The

said Lingaraju while driving motorbike had met with an

accident and he died on 24.04.2009. The said

Padmaraju was sitting near by temple of

Basavanamattikere village. At 8.40 p.m. he got a

information that said Lingaraju had died in a accident.

Therefore, DW.3 had rushed to the place with his friend

Lokesha and whereby the dead body of Lingaraju was

shifted to Magadi Government Hospital and whereby

CPI namely Krishna Kumar and other police were there.

The inquest over the dead body of deceased as per

Ex.D3 was conducted. This defence is taken by accused

No.8 with regard to plea of alibi.

45. Whereas relating to concept of plea of alibi it is

relevant to refer Section 11 of the Indian Evidence Act,

1872 -

When facts not otherwise relevant become

relevant - Facts not otherwise relevant are relevant -

(i) if they are inconsistent with any fact in

issue or relevant fact;

(ii) if by themselves or in connection with

other facts they make the existence of

non-existence of any fact in issue or

relevant fact highly probable or

improbable.

46. It is equally relevant to refer Section 103 of the

Indian Evidence Act, 1872

Burden of proof as to particular fact - The

burden of proof as to any particular fact lies on that

person who wishes the court to believe in its existence,

unless it is provided by any law that the proof of that

fact shall lie on any particular person. But the plea of

alibi as taken by the accused and it is he who has to

prove it and this was extensively addressed by the

Hon'ble Supreme Court in State of Haryana vs. Sher

Singh reported in AIR 1981 SC 1021. However, Section

103 and so also, Section 11 of the Indian Evidence Act,

1872 in respect of plea of alibi are said to be wherein

accused No.8 who was present during the course of

inquest held over the dead body of Lingaraju as on

25.04.2009 at Government Hospital, Magadi. In this

regard, it is relevant to refer judgment of the Hon'ble

Supreme Court in Sharad Birdhi Chand Sarda vs

State of Maharashtra reported in (1984) 4 SCC 116

wherein it is held as under:

"We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh,(l) this Court made the following observations:

"Another golden thread which runs through the web of the 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 This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."

47. But in the instant case, PW.10 - Somashekar

who is the gravamen of the incident narrated at Ex.P11

and more so, he is an eye witness on the part of the

prosecution. Even this witness has been subjected to

examination to prove the guilt of the accused persons.

But nothing worthwhile has been facilitated by the

prosecution to prove the guilt of the accused even the

link in the chain relating to each one of the accused

participated in the incident as according to the criminal

conspiracy hatched to eliminate deceased - Ramesh

with means of M.Os.1 to 4 and said to have assaulted

mercilessly on the person of deceased - Ramesh and

inflicted injuries over his person. But the prosecution

did not facilitate the worthwhile evidence to prove the

guilt of the accused persons. But at a cursory glance of

evidence of PW.10 even though cross-examination has

been incisively done. But there shall be some clouds of

doubts and there shall be some camouflage and it is to

be said that there shall be somersault of the evidence on

the part of the prosecution. Consequently, the clouds of

doubt would arise in the mind of the Court. When the

doubt arises, the benefit of such doubt should be

extended in favour of the accused alone. But in the

instant case, the trial Court had appreciated the

evidence on the part of prosecution and even on the

part of defence side for having subjected to examine and

thoroughly scrutinizing the evidence and analytically

made an observation even to the fulcrum of the

mahazar of spot mahazar at Ex.P7 and inclusive of

several mahazars conducted by PW.33 who is an

investigating officer. But PWs.2, 3 and 4 being the eye

witnesses and they did not support the case of the

prosecution and their evidence runs contrary to the

evidence of PW.10 as where the criminal law was set

into motion based upon his complaint as per Ex.P11

and registered the case by PW.31 of Amrutur Police

Station and recorded FIR as per Ex.P28.

48. Whereas the evidence of the eyewitness is

disbelieved, and it is found that the weapons recovered

at the instance of accused and there remains hardly any

circumstance against the accused to connect them

against the crime. But the evidence must be clinching

and clearly implicates the accused persons are causing

for infliction of injuries on the injured but the

eyewitness account should corroborate with the medical

evidence. The eyewitness sharply contradicted with

each other with regard to identity of the person and

even dealt with fatal blow on the part deceased with

deadly weapons that is M.Os. 1 to 4 but it was held by

the trial Court that there was vital discrepancy and that

discrepancy arise in the evidence of PW.10 coupled with

the evidence of PW.17, PW.31 and PW.33. Thus, the

trial Court has rightly come to the conclusion that the

prosecution did not facilitate worthwhile evidence to

prove the guilt of the accused by securing conviction.

Whereas in the instant case, we have gone through the

evidence on the part of the prosecution in its entirety

and even the evidence of PW.10 who is the gravamen of

the incident narrated in his complaint at Ex.P11 and

the substances stated in Ex.P28 of the FIR said to have

been recorded by PW.31, based upon which the criminal

law was set into motion. But the conduct of PW.10 is

also important in the case of the prosecution. When the

accused alleged to have assaulted the brother of PW.10

namely Ramesh, he did not made any endeavourance to

rescue his brother from the clutches of the accused

persons and the same can been seen in his evidence

and also seen in the evidence of other witnesses who

were subjected to examination on the part of the

prosecution. But the evidence of PW.10 creates clouds

of doubt in the mind of the Court and the trial Court

had rightly come to the conclusion that the prosecution

did not establish the guilt of the accused beyond

reasonable doubt. Consequently, rendered the acquittal

judgment by referring to several reliances facilitated on

the defence side. The trial Court had rightly come to

the conclusion by assigning sound reasons and also

justifiable reasons. Therefore, under this appeal, it does

not arise for call for interference as sought for by the

appellant / complainant by urging various grounds.

Even for revisiting the impugned judgment of acquittal

rendered by the trial Court and re-appreciation of the

entire evidence available on record but there is no

consequences that the trial Court misdirected and

misinterpreted the evidence of PW.10 and PW.17

inclusive of evidence of PWs.31 and 33. Therefore, in

this appeal, it does not arise for call for interference as

sought for by the appellant/complainant. The appeal

suffers, from devoid of merits and the same deserves to

be rejected. Accordingly, we are of the opinion that the

appeal does not survive for consideration and the same

deserves to be rejected. In view of the aforesaid reasons

and findings, we proceed to pass the following:

ORDER

The appeal preferred by the appellant /

complainant under Section 372 of Cr.P.C. is hereby

rejected. Consequently, the judgment of acquittal

rendered by the trial Court in S.C.No.228/2009 dated

07.04.2014 is hereby confirmed.

Bail bonds, if any, executed by the accused shall

stand cancelled.

Sd/-

JUDGE

Sd/-

JUDGE RJ/DKB