Louis @ Karthick vs State Of Karnataka
2022 Latest Caselaw 1166 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 27TH DAY OF JANUARY, 2022

                        PRESENT

           THE HON'BLE MR. JUSTICE B. VEERAPPA

                            AND

            THE HON'BLE Mrs. JUSTICE M.G. UMA

              CRIMINAL APPEAL No.2065/2016
                            C/W
       CRIMINAL APPEAL Nos.785/2018, 1388/2018,
                 399/2020 AND 362/2021

BETWEEN:

LOUIS @ KARTHICK,
FATHER NOT KNOWN,
AGED ABOUT 25 YEARS,
R/AT NEAR MARIYAMMA TEMPLE,
SUSAIPALYA, ANDERSONPET,
KGF - 500029.          ...APPELLANT IN CRL.A. No.2065/2016

(BY SRI DEVENDRA E.H., ADVOCATE FOR
SRI MOHANKUMARA D., ADVOCATE)


STALIN,
S/O LATE CHARLES,
AGED 23 YEARS,
R/O No.15, JANATA COLONY,
NEAR K.E.B., SSAIPALYA,
                               2




ANDERSON PET, K.G.F.,      ...APPELLANT IN CRL.A. No.785/2018

(BY SRI SHEELVANT, C.V., ADVOCATE)


MAGI @ MAGESH K.,
S/O LATE KANNAN,
AGED ABOUT 28 YEARS,
R/AT No.5,
TWO SAW MILL LANE,
MARIKUPPAM, KGF.         ...APPELLANT IN CRL.A. No.1388/2018

(BY SRI HASMATH PASHA, ADVOCATE)


SRI SHARATH
S/O MUNIYA,
AGED ABOUT 25 YEARS,
R/AT No.66, 2ND BLOCK,
ANDERSONPET,
KGF - 563113.             ...APPELLANT IN CRL.A. No.399/2020

(BY SRI NANJUNDAGOWDA M.R., ADVOCATE)

KARKA @ S. NARESH,
S/O SAMRAJ,
AGED ABOUT 23 YEARS,
R/AT No.176, TWO BLOCK,
2ND CROSS, ANDERSONPET,
KGF - 563113.           ...APPELLANT IN CRL.A. No.362/2021

(BY SRI DEVENDRA E.H., ADVOCATE FOR
SRI MOHANKUMARA D., ADVOCATE)

AND:

STATE OF KARNATAKA
BY CIRCLE INSPECTOR OF POLICE,
CHAMPION REEFS CIRCLE, K.G.F.,
                                   3




BANGARPET TALUK,
REPRESENTED BY,
STATE PUBLIC PROSECUTOR,
BANGALORE-560 001.                                 ...RESPONDENT
                                                  (COMMON IN ALL)

(BY SRI VIJAYKUMAR MAJAGE, ADDL. SPP )
                            ....

     THESE CRIMINAL APPEALS ARE FILED UNDER SECTION
374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION
DATED 26.08.2016 (AND SENTENCE DATED 29.05.2018 FOR MAGI
@ MAGESH K. AND DATED 7.12.2019 FOR SRI SHARATH) PASSED
BY THE LEARNED III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, KOLAR (SITTING AT K.G.F.) IN S.C.NO.175/2011 -
CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143,144,147,148, 302,307,201
READ WITH SECTION 149 OF IPC.

     THESE CRIMINAL APPEALS COMING ON FOR ORDERS THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:


                          JUDGMENT

(i) Criminal Appeal No.2065/2016 is filed by accused No.6, Louis @ Karthick;

(ii) Criminal Appeal No.785/2018 by accused No.1, Stalin;

(iii) Criminal Appeal No.1388/2018 is filed by accused No.2,Magi @ Magesh. K.;

(iv) Criminal Appeal No.399/2020 is filed by accused No.3-

Sharath;

(v) Criminal Appeal No.362 /2021 is filed by accused No.4, Karka @ S. Naresh

During the pendency of trial and proceedings, accused No.5-Suvin

@ Infant died. Hence, case against him stood abated.

2. All these criminal appeals are filed by the accused stated

supra against the impugned judgment of conviction and order of

sentence dated 26th August, 2016 made in S.C.No.175/2011 by the

learned III Additional District and Sessions Judge, Kolar District,

(Sitting at K.G.F.) convicting and sentencing the accused persons

for the offences punishable under Sections 143, 144, 147, 148,

120-B, 302, 307 and 301 r/w 149 of the Indian Penal Code (for

short, hereinafter referred to as 'the IPC').

3. The present criminal appeals are arising out of long

standing rivalry between two groups and it appears a Mini Gang

War.

4. It is the case of the prosecution that about several years

back, father of accused No.1 Stalin was murdered by one late Raja

and his Gang, who is the brother of P.W.2 Vijaya Babu alias Nayana

and deceased Arun Kumar. Due to the said fact, the accused

persons developed animosity against the deceased Arun Kumar,

P.W.2 and their family members and as such, accused persons used

to threaten the deceased and P.W.2 whenever they would see them

on the road and in this background, on the intervening night of

27/28.6.2011 at about 1.00 a.m. at Anandan Compound, Frank &

co., in Marikuppam Area, KGF, when the deceased Arun Kumar and

P.W.2 were sleeping in a room on the first floor of the building, all

the accused persons and the juvenile offender by name Moon Pillai

@ Rajesh formed an unlawful assembly and hatched a plan to

commit the murder of the deceased Arun Kumar and also P.W.2 -

Vijay Babu @ Nayana; and as such, armed with deadly weapons

like choppers, long choppers, gurka knife and size stones, went

upstairs to the room of the family of P.W.2 in the building and by

keeping accused No.6 - Louis @ Karthick as guard at the end of the

staircase and juvenile as guard at the top of the staircase;

remaining five accused persons went inside the room with size

stones where the deceased and P.W.2 were sleeping, accused No.2

dropped the size stone on the head of the deceased-Arun Kumar,

accused No.5 dropped the size stone on the head of P.W.2, accused

Nos.1, 3 and 5 assaulted on the face of P.W.2 with chopper and

accused No.4 assaulted forcibly with gurka chopper on the face of

the deceased Arun Kumar. Due to the said impact of assault, Arun

Kumar died and P.W.2 sustained grievous injuries. The accused

persons, with an intention to destroy the evidence, threw the size

stones in a water tank, situated far away from the spot and thereby

have committed the alleged offences.

5. On the basis of the complaint Ex.P.1 lodged by P.W.1 -

Dilip on 28.6.2011 at 6.00 a.m., the jurisdictional police registered

a case in Crime No.14/2011 for the offences punishable under

Sections 302 and 307 r/w 34 of Indian Penal Code (for short,

hereinafter referred to as 'the Act'). The Investigating Officer after

conducting investigation filed charge sheet against all the accused

persons for the offences punishable under Sections 143, 144, 147,

148, 120-B, 302, 307 and 201 r/w 149 of IPC. Since the offences

were triable by the Sessions Court, the jurisdictional Magistrate

after taking cognizance, committed the case in C.C.No.408/2011 to

the Sessions Court under the provisions of Section 209 of the Code

of Criminal Procedure which came to be registered as

S.C.No.175/2011. The Sessions Court after securing the presence

of all the accused persons, framed charges on 3.8.2012 against

them for the offences punishable under Sections 143, 147, 148,

120-B, 302, 307 and 201 r/w 149 of IPC., read over the charges to

the accused persons in the language known to them, who pleaded

not guilty and claimed to be tried.

6. Based on the aforesaid pleadings, the learned Sessions

Judge raised four points for consideration and after considering

both oral and documentary evidence on record, answered all the

points in the affirmative holding that the prosecution has proved

beyond all reasonable doubt that on the intervening night

27/28.6.2011 at about 1.00 a.m. at Anandan Compound, Frank and

Co., in Marikuppam Area, KGF., accused persons formed into an

unlawful assembly, armed with deadly weapons like choppers, long

choppers, gurka knife and size stones to assault and commit

murder of deceased Arun Kumar and P.W.2 Vijay Babu @ Nayana,

and by using criminal force assaulted the deceased and P.W.2.

Thereby committed offences punishable under Sections 143, 144,

147, 148 and 120-B r/w 149 of IPC; by brutally assaulting the

deceased Arun Kumar with choppers, long choppers, gurka knife

and dropping size stone on his head, have committed the offence

punishable under Section 302 r/w 149 of IPC; They attempted to

murder P.W.2 by brutally assaulting him with choppers and

dropping size stone on his head and thereby committed an offence

punishable under Section 307 r/w 149 of IPC; and tried to destroy

the evidence of crime by throwing the size stones used in the

commission of the offence into the water tank situated far away

from the spot, have committed an offence punishable under Section

201 r/w 149 of IPC. Accordingly, finding accused Nos.1 to 4 and 6

guilty of the said offences by the impugned judgment of conviction

and order of sentence convicted them for the offences punishable

under Sections 143, 144, 147, 148, 302, 307 and 201 of IPC., and

imposed proportionate sentences to the referred provisions of

Section with fine and default clauses. Hence, these present

criminal appeals are filed by accused Nos.1 to 4 and 6.

7. We have heard the learned Counsel for the parties.

8. Sri Hashmath Pasha, learned Senior Counsel for accused

No.2 in Criminal Appeal No.1388/2018 contended with vehemence

that the impugned judgment of conviction passed by the Sessions

Court against accused No.2 is erroneous and contrary to the

material on record and as such, it cannot be sustained. He would

further contend that the complaint lodged by P.W.1 -Dilip against

accused Nos.1 to 4 and 6 is on the basis of suspicion. The

conviction of accused No.2 is not just and proper since the inquest

report Ex.P.13 for having conducted the inquest on the dead body

of the deceased between 12 noon to 3 p.m. and the evidence of

P.W.3 -Vijay Kumar and P.W.5 Amala Mary clearly depict that the

crime has been registered against unknown persons for having

committed the offences. He would further contend that apart from

other accused, P.W.5 might have also been involved in the

aforesaid offence. Even from the earliest version given before the

doctor and the Investigating officer P.W.34 - Puttamadaiah, who

came to the hospital at 4.00 a.m. and till Ex.P.1-Complaint lodged

on 28.6.2011 at 6.00 a.m., the names of the assailants were not

known.

9. The learned Senior Counsel would further contend that

the evidence of P.W.2, who is the sole eye witness to the incident,

cannot be believed as he has deposed that there was no light when

he was sleeping with the deceased. His statement was recorded on

7.9.2011 after an inordinate delay of 70 days, when admittedly the

incident had occurred on 28.6.2011 and the said delay has not been

explained by the prosecution. Though P.W.2 regained conscious on

seventh or twelth day of the incident and was discharged from the

hospital on 21.7.2021, his earliest say or statement has been

suppressed and as such, the prosecution has suppressed the

genesis of the case and, therefore, adverse inference needs to be

drawn. The doctors who have treated PW2 - Vijay Babu, the eye

witness at NIMHANS and St.Johns Hospital have not been cross

examined. Thereby, it falsifies the case of prosecution. Learned

senior counsel further contended that the evidence of PW2 is

inconsistent with the medical evidence. PW2 was inimical against

the accused, therefore, his evidence cannot be relied upon. PW2

has admitted in his cross examination that he was also one of the

accused in the homicidal death of accused No.5 in the present case.

He would further contend that PW2 - the alleged eye witness has

not been given opportunity to identify the accused as the alleged

incident occurred while he was sleeping and there is no

corroboration of his evidence. Thereby, the learned Sessions Judge

is not justified in convicting accused No.2 and other accused

persons. He would further contend that the recovery at the

instance of accused is not proved. PWs.7 to 16 - the pancha

witnesses to Exs.P14 to 18 have turned hostile. The material

objects i.e., Mos.1, 2, 4, 5 and 6 are not at all used and planted

against the accused persons.

10. Learned senior counsel further contend that PW1 - Dilip

has stated in his evidence that at 4.00 a.m. when he went to the

first floor to get his shippers, where the deceased and PW2 were

sleeping and when he switched on the light, he saw PW2 and

deceased have sustained injuries. In the cross examination, he

admitted that he has not suspected anybody when enquired by the

doctor. He has further stated in the cross examination that he has

seen accused persons who came with knife and have committed the

offence. Thereby, he has improved his version without any basis.

He would further point out that PW2 - the eye witness has admitted

in his cross examination that since he was sleeping, he was unable

to identify as to who threw the stone on the deceased and PW2.

Learned senior counsel further contended that Ex.P28 - report

dated 05.07.2011 also depicts that this is based only on suspicion.

Therefore, absolutely there is no material against the accused

persons to implicate in the homicidal death of the deceased.

11. He would further contend that PW34 - the Investigating

Officer recorded the voluntary statements of the accused persons

as per Exs.P30 to 34 and 36 and no substantive evidence is proved

and mere voluntary statement of the accused would not amount to

proof of commission of the offence thereby, absolutely there is no

material against the accused. There are contradictions and

improvements. Thus the prosecution has not proved the guilt of

the accused beyond reasonable doubt.

12. He would further contend that if two views are possible,

the view which is in favour of the accused will have to be relied

upon. In support of his contention, learned senior counsel has

relied on various judgments and sought to allow the appeals, which

are as under:

(i) The decision of co-ordinate Bench of this Court in the

case of Vijayakumar Vs State1, wherein, at para 6 held as under:

ILR 1994 KAR 491

"6. Our attention was drawn by the Counsel for the appellant to the manner of recording evidence by the Sessions Court, particularly with regard to most material circumstance of the accused giving information under Section 27 of the Evidence Act leading to the discovery of fact. Our attention was particularly drawn to that part of the testimony recorded by the Trial Court which shows that practically no evidence was given in this behalf by the Investigating Officer. The learned Judge has recorded the evidence as follows:-

"The accused was present in the police station as produced by P.C. 3286 & 2004. I recorded the voluntary statement of the accused, as per Ex.P.17.1 arrested the accused and then seized the blood stained shirt and subjected it to P.F. No. 71/91 and under Mahazar Ex. P-3."

It was rightly urged on behalf of the appellant that taken by itself, Ex.P.17 cannot go in substantive evidence as Ex.P.17 would provide corroboration to the substantive evidence that should be given in Court by the witness speaking about this information. The Trial Court ought to have insisted on the prosecution to lead substantive evidence in this behalf before making use of Ex.P.17. Thus practically the Investigating Officer PW.22 did not state anything regarding the information

said to have been given to him by the accused. Section 27 says that so much of the information that distinctly leads to the discovery of a fact alone is admissible in evidence and it is exception to Sections 25 & 26 of the Evidence Act. Therefore so much of the information as leads to discovery of a fact must be proved like any other fact and recording in the deposition or the prosecution leading evidence of an Investigating Officer that he recorded a particular statement as per certain record made by him and exhibited cannot take place of substantive evidence. Similarly we have come across certain contradictions being recorded only by referring to exhibits without reproducing exactly what is the contradiction or omission stated by a particular witness or Investigating Officer. Likewise, unless facts incorporated in the mahazar are spoken to by a particular witness in order to marking of a mahazar it does not amount to substantive evidence. It is unfortunate that many of the Sessions Judges have not understood this distinction and it has become a practice to take down depositions in the manner stated above thus unnecessarily creating complications in the matter of acceptance or rejection of the evidence so given. It may also sometimes happen that even if a witness states what exactly was recorded in his own words, the Sessions Judges may find it a short cut to take down

only as stated as per certain exhibits without taking down what exactly was the information given by the accused which could fall under Section 27 of the Evidence Act. Such a practice is wholly deprecable as even evidence given by witnesses according to law might sometimes not be reduced to writing while taking depositions only as a matter of convenience. We impress upon Courts below that such a practice of not taking down in the evidence of material witnesses what they actually deposed to in such situations would come in the way of proper appreciation of evidence and even good cases may be seriously affected by such casual and perfunctory recording. Such practice should be discontinued. With these observations, we find that practically there was no evidence for the Trial Court to find accused guilty. Appeal has to be allowed and it is allowed. Judgment of conviction and sentence imposed by the Trial Court are set aside and the accused is acquitted of the charge under Section 302 IPC. He shall be set at liberty forthwith. A copy of this Judgment shall be forwarded to the learned Trial Judge wherever he is."

(ii) The judgment of the Privy Council in the case of

Pulukuri Kottaya and Others Vs Emperor2, wherein, at para 10

it is held as under:

"10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in Police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly, can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in Police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to

AIR (34) 1947 Privy Council 67

be connected with the crime of which the informant is accused. Mr.Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the Police, or by persons in Police custody.

That ban was presumably inspired by the fear of the Legislature that a person under Police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the Police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S.26, added by S.27, should not be held to nullify the substance of the section. In their Lordships' view, it is fallacious to treat the "fact discovered" within the

section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

(iii) The judgment of the Hon'ble Supreme Court in the case

of Bhimapa Chandappa Hosamani and Others Vs State of

Karnataka3, wherein, at paras 14 and 24 held as under:

"14. However, in the instant case we are left with the evidence of a sole eye witness and it therefore,

(2006) 11 SCC 323

becomes the duty of the Court to critically scrutinize her evidence with a view to assure itself that the witness is stating the truth and that her evidence is so convincing and appears to be so natural and truthful that it is not necessary to look for other evidence to record a conviction. Viewed from this angle, it is established that in the First Information Report, a false statement had been made by PW-1 as to the existence of motive.

24. We have undertaken a very close and critical scrutiny of the evidence of PW-1 and the other evidence on record only with a view to assess whether the evidence of PW-1 is of such quality that a conviction for the offence of murder can be safely rested on her sole testimony. This Court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in

recording a conviction solely on the basis of the testimony of a single witness."

(iv) The decision in the case of Parvath Singh and Others

Vs State of Madhya Pradesh4, wherein, at paras 12, 13.1, 13.2

held as under:

"12. At the outset, it is required to be noted that the appellants herein - original accused nos. 2 to 5 are convicted by the Learned Trial Court and the High Court solely relying upon the evidence/deposition of PW8 - Mullo Bai. It cannot be disputed that there can be a conviction relying upon the evidence/deposition of the sole witness. However, at the same time, the evidence/deposition of the sole witness can be relied upon, provided it is found to be trustworthy and reliable and there are no material contradictions and/or omissions and/or improvements in the case of the prosecution. Therefore, the question which is posed for consideration of this Court is whether in the facts and circumstances of the case, can the appellants herein - original accused nos. 2 to 5 be convicted relying upon the deposition of the sole witness - PW8 and whether PW8 is a reliable and trustworthy witness to convict the appellants herein- original accused nos. 2 to 5?

(2006) 11 SCC 323

13.1 It is required to be noted that it was a black night (Amavasya) at the time of incident. It was a dark night as the incident has happened between 4-5 a.m. PW8 in her statement recorded under Section 161 Cr.P.C. has stated that she has seen all the accused in the light of the torch. She has stated that Bal Kishan - original accused no.1 was having an axe and other four were armed with lathis. She had also stated in her statement under Section 161 Cr.P.C. that Bal Kishan - original accused no.1 gave the axe blow on the neck of the deceased due to the enmity and earlier dispute and other accused were telling to run away immediately and thereafter all the five accused ran away from behind the cattle shed/house. She stated that she had identified all the accused in the light of the torch and also by voice. According to her after she shouted, other persons came. However, there is material improvement in her deposition before the Court. In her deposition, she has stated that accused Santosh and Rakesh caught hold of Bal Kishan - deceased. In her deposition, she has also stated that there was a chimney light in the cattle shed. She has also stated in her deposition that the accused ran away from the nearby agricultural field of sugarcane. Therefore, the deposition of PW8 is full of material contradictions and improvements so far as original accused Nos. 2 to 5 is

concerned. It is required to be noted that no other independent witness even named by PW8 has supported the case of the prosecution. Though, according to PW8, she identified the accused in the light of the torch, there is no recovery of torch. There is material improvement so far as the chimney light is concerned. In her deposition, she has not stated anything that the appellants - original accused nos. 2 to 5 were having the lathis, though she has stated this in her statement under Section 161 Cr.P.C. The High Court has observed relying upon her statement recorded under Section 161 Cr.P.C. that the appellants herein - accused nos. 2 to 5 were having lathis. However, as per the settled preposition of law a statement recorded under Section 161 Cr.P.C. is inadmissible in evidence and cannot be relied upon or used to convict the accused. As per the settled proposition of law, the statement recorded under Section 161 Cr.P.C. can be used only to prove the contradictions and/or omissions. Therefore, as such, the High Court has erred in relying upon the statement of PW8 recorded under Section 161 Cr.P.C. while observing that the appellants were having the lathis.

13.2 As observed hereinabove in her statement under Section 161 Cr.P.C., she has never stated that accused Santosh and Rakesh caught hold of Bal Kishan,

but stated that the appellants herein told to run away as other persons have woken. In the facts and circumstances of the case, there are material contradictions, omissions and/or improvements so far as the appellants herein - original accused nos. 2 to 5 are concerned and therefore we are of the opinion that it is not safe to convict the appellants on the evidence of the sole witness of PW8. The benefit of material contradictions, omissions and improvements must go in favour of the appellants herein. Therefore, as such the appellants are entitled to be given benefit of doubt."

13. Sri.M R Nanjunda Gowda, learned counsel appearing for

accused No.3 in Criminal Appeal No.399 of 2020 while adopting the

arguments of learned senior counsel for accused No.2 contended

that the prosecution has not produced the Medico Legal Case

Register. The doctor who treated PW2 at NIMHANS, KGF Hospital

and St.Johns Hospital were not examined. The earlier version of

PW34 - the Investigating Officer has been suppressed. The

recovery of MO5 - chopper as per Ex.P15 at the instance of accused

No.3 is not proved. The pancha witnesses have turned hostile.

Therefore, he sought to allow the appeal.

14. Sri.E H Devendrappa, learned counsel for Sri.D Mohan

Kumar, learned counsel appearing for accused Nos.4 and 6 in

Criminal Appeal Nos.362 of 2021 and 2065 of 2016, while adopting

the arguments advanced by learned senior counsel for accused

No.2 contended that based on the statement of accused Nos.1 to 5,

accused No.6 has been falsely implicated. Absolutely, there is no

averment made in the complaint Ex.P1 as there is no evidence

against accused No.6. In the absence of any material, the

judgment of conviction passed by the Trial Court against accused

Nos.4 and 6 cannot be sustained. Therefore, he sought to allow the

appeals.

15. Sri.C V Sheelavant, learned counsel appearing for

accused No.1 in Criminal Appeal No.785 of 2018 adopting the

arguments advanced by the learned senior counsel for accused

No.2 contended that the recovery of MO4 and Ex.P14 is not proved.

All the witnesses have turned hostile. The entire case of the

prosecution based on presumption and assumption cannot be

sustained. Therefore, he sought to allow the appeal.

16. Per contra, Sri.Vijaykumar Majage, learned Additional

State Public Prosecutor while justifying the impugned judgment of

conviction and order of sentence passed by the Trial Court

contended that the entire case of the prosecution is based on the

evidence of PW2 - the eye witness and the evidence of PW34 - the

Investigating Officer. The evidence of PWs.1, 2, 16, 17, 24, 25, 27

and 28 clearly depicts with regard to the motive for the alleged

murder of the deceased and attempt to murder of PW2. Ex.P26 -

FSL report supports the case of prosecution. He would further

contend that the recovery of MOs.1, 2 and 4 to 6 at the instance of

accused as per Exs.P15, 17 and 18 - the mahazars clearly depicts

that the accused persons are involved in homicidal death of the

deceased. He would further contend that MOs.4 to 6 - Gurkha

chopper and long choppers contain blood stains as per Ex.P26 - FSL

report. The learned Sessions Judge considering both oral and

documentary evidence on record in a proper perspective has rightly

convicted the accused persons and the accused persons have not

made out any case for interference by this Court in exercise of

power under the provisions of Section 374(2) of Cr.P.C. Therefore,

he sought to dismiss all the appeals.

17. In view of the rival contentions urged by learned

counsel for the parties, the only point that would arise for our

consideration in the present appeals are:

"Whether the learned Sessions Judge is justified in convicting the accused persons for the offences punishable under Sections 143, 144, 147, 148, 302, 307 and 201 read with 149 of IPC and whether the accused persons have made out a case to interfere with the impugned judgment of conviction and order of sentence, in the peculiar facts and circumstances of the case?"

18. We have given our anxious consideration to the

arguments advanced by the learned counsel for the parties and

perused the entire material on record including the Trial Court

records.

19. This Court being the Appellate Court, in order to re-

appreciate the entire materials on record, it is relevant to consider

the evidence of the prosecution witnesses and the documents relied

upon.

(i) PW1 - Dilip is the complainant. He has lodged the complaint as per Ex.P1 at 6.00 a.m. on 28.06.2011. He has deposed that he is the maternal uncle of the

deceased Arun Kumar and PW2 - Vijaya Babu. Both the deceased and PW2 used to sleep in a room nearby his house. He was working in Bengaluru and used to travel by train and leave his place at 4.00 a.m. On the night of 27.06.2011, PW2 had worn his foot wear and when he woke up to leave for duty, he noticed that his slippers were missing and accordingly, he went near the room where the deceased and PW2 were sleeping. The door of the room was partially opened and he went inside and switched on the light and saw both deceased and PW2 were lying in a pool of blood. Immediately, he informed the said incident to his relatives and neighbours. All of them came to the spot and shifted the injured persons to the Government Hospital, Robertson Pete. The doctor declared Arun Kumar as brought dead. He further stated that there was previous enmity with accused Nos.1 to 4 and he suspected that they might have committed the offence. Accordingly, he lodged the complaint - Ex.P1. He has also signed the complaint which is marked as Ex.P1(a). He has supported the case of prosecution.

(ii) PW2 - Vijaya Babu @ Nayana is the injured eye witness

- a star witness to the case of prosecution. He has deposed that the deceased and himself are brothers and sons of Anandan who died on 18.05.2011 and his

father's 40th day death ceremony was conducted on 26.06.2011. All the relatives have attended the ceremony and returned, while some of them stayed back. As there was no space to sleep in the house and since some of the relatives stayed back that night, himself and Arunkumar went to first floor to sleep and they kept open the door of the room thinking that others may come to sleep. At midnight, he heard a big sound and when he woke up, he noticed that the stones were dropped on his left part of the head and on the face of Arun Kumar. When he opened his eyes, he saw accused Nos.1 to 6 armed with long chopper. All of them assaulted him and the deceased. He became unconscious and when he regained his conscious, he was in St.Johns Hospital. Exs.P2 to 10 are the photographs of the scene of occurrence. He identified MOs.11 to 20 which were at the scene of occurrence. He has supported the case of prosecution.

(iii) PW3 - Vijay Kumar is the elder brother of the deceased and PW2. He has deposed that on 26.06.2011 there was 40th day death ceremony of his father. All the relatives attended the said function and some of them stayed back. On 27.06.2011, PW2 and the deceased have been to sleep in a room situated nearby. At about 3.00 a.m. on 28.06.2011, when PW1 went to the room

to take his slippers, he noticed that the deceased and PW2 were lying in a pool of blood. Immediately, they shifted the injured to the hospital for treatment. The doctor declared Arun Kumar as brought dead. PW2 was still alive and he was shifted to Bengaluru for better treatment. Thereafter, PW1 lodged the complaint before the police. At about 9.00 a.m., to 11.00 a.m., the police conducted spot mahazar at the scene of occurrence and drawn mahazar as per Ex.P11. The samples of mud and bloodstained mud were seized under MOs.21 and 22. The other articles were also seized as per MOs.3, 7, 8 and 11 to 17. He has supported the case of prosecution.

(iv) PW4 - Saravana is pancha witness to seizure mahazar -

Ex.P12. He has deposed that on 28.06.2011 the police called him to the police station as a pancha. The police seized the clothes of the deceased Arun Kumar which was produced after post mortem examination and the police drew seizure mahazar as per Ex.P12. The police also seized blood stained clothes as per MOs.18 to 20. He has supported the case of prosecution.

(v) PW5 - Amala Mary is the mother of the deceased Arun Kumar and PW2. She has deposed that on 26.06.2011 there was 40th day death ceremony of her husband and on 27.06.2011, food was arranged for the relatives.

After dinner, the deceased Arun Kumar and PW2 went to sleep in the farm land and at about 3.15 a.m., her daughters rushed to the house screaming and told that both deceased and PW2 have been assaulted. They shifted both of them to the hospital. The doctor declared Arun Kumar as brought dead. PW2 was still alive and he was referred to Bengaluru for better treatment. She further deposed that there was previous enmity between the family of the deceased and the accused, hence, they have committed the said murder and assault. She has supported the case of prosecution.

(vi) PW6 - Edward is the inquest pancha. He has deposed that on 28.06.2011, he went to the hospital and saw the dead body of Arun Kumar in KGF Hospital. The face of the injured was crashed. The police drew inquest mahazar as per Ex.P13. He has supported the case of the prosecution.

(vii) PW7 - Ramesh, PW8 - Desilva, PW9 - Stephen, PW10 -

Rasheed Khan, PW11 - Mano, PW12 - Ranjith Kumar, PW13 - Kodanda, PW14 - Mari Vishwas and PW15 - Vijay are the pancha witnesses for recovery of weapons and blood stained clothes at the instance of the accused. They have not supported the case of prosecution and have turned hostile.

(viii) PW16 - Balaji is the circumstantial witness. He has deposed that he know the deceased and PW2. He further deposed that about 2 years back on the occasion of 40th day death ceremony of the father of PW2 and the deceased, they went to put banner and at that time, the accused persons stopped them and had given life threat. He has also deposed about the motive for the accused person to cause the homicidal death of the deceased. He further deposed that since the accused persons were teasing the ladies and demanding money from the people by threatening them, PW2, the deceased and himself have warned them not to repeat the activities of the accused persons. Hence, the accused persons were having grudge against the deceased and PW2. He has supported the case of prosecution.

(ix) PW17 - Sathish is the driver of the auto rickshaw. He has deposed about the motive for the incident. He has deposed that when CWs.1 and 2, deceased, PW2 were proceeding in his auto rickshaw, the accused stopped them and gave life threat. He further deposed that the accused persons used to tease ladies and extract money from people by threatening them. In this regard, the deceased and PW2 have warned them not to repeat such activities. Hence, the accused persons

were having grudge against them. On 27.06.2011, he learnt that Arun Kumar has been killed and PW2 has been assaulted and he has been taken to Bengaluru for better treatment. He has identified accused Nos.1 to 3 who were present before the Court. He has supported the case of prosecution.

(x) PW18 - Yashwant is the pancha witness to spot-cum-

seizure mahazar Ex.P11. He has turned hostile and has not supported the case of prosecution.

(xi) PW19 - Reegan is the circumstantial witness. He has deposed that he knew the deceased, PW2 and the accused persons. On 27.06.2011, while he was going towards the railway station, he came to know about the incident. He went back to the hospital and saw the dead body of the deceased Arun Kumar and learnt that PW2 was shifted to Bengaluru for better treatment. He further deposed that he came to know that accused persons committed the murder of the deceased and assaulted PW2 due to the previous enmity. He has supported the case of prosecution.

(xii) PW20 - Dr.Fayaz Khan conducted the post mortem of the deceased at General Hospital, KGF. He has deposed that on 28.06.2011 as per the requisition of the police, he conducted post mortem and noted injuries and has

issued post mortem report as per Ex.P19. He further deposed that the death was due to shock and haemorrhage as a result of multiple injuries sustained. He has further deposed that on 05.09.2011, he received the weapons MOs.2 and 4 for his opinion. After examination, he has issued his opinion as per Ex.P20. He has stated that all the injuries are ante-mortem and fresh in nature. The time since death was within 6 hours. He has opined that the said injuries could be caused by using MOs.2 and 4. He has supported the case of prosecution.

(xiii) PW21 - Dr.Betti Issac who treated PW2 at St.Johns Hospital, Bengaluru has deposed that on 28.06.2011 at about 11.00 a.m. PW2 - Vijaya Babu was referred from NIMHANS hospital, with a history of assault. He noted the injuries and has issued wound certificate as per Ex.P21 and opined that from the weapons like MOs.1, 2, 4 to 6, the injuries could be caused. He has further stated that since PW2 has sustained sutured wounds, he cannot give opinion in that regard and the Medical Officer of NIMHANS is competent to give opinion relating to injuries.

(xiv) PW22 Umesh is the Junior Engineer in PWD Department, Bangarpet. He has deposed that as per the requisition made by the police, he visited the scene

of occurrence on 28.06.2011 and drew sketch as per Ex.P22. Ex.P23 is the report sent by the Higher Officer of PWD Department to the police. He has supported the case of prosecution.

(xv) PW23 - Rajashekar is the Assistant Sub Inspector, KGF.

He has deposed that on 04.07.2011 he was deputed to trace the accused in this case. Upon information, he along with other police went and caught hold of accused Nos.2, 3 and 5 and produced them before the Investigating Officer. The said report is as per Ex.P24. He has supported the case of prosecution.

(xvi) PW24 - Uday Rajan is the brother-in-law of the deceased and PW2. He has deposed that he knew PWs.1, 2, 9 to 12. He has deposed that since there was 40th day death ceremony of his father-in-law, they all went to put a banner and at that time, the accused persons obstructed their way and have given life threat. The accused persons also asked to leave Balaji as they want to discuss something, but they did not allow Balaji to stay there and came back. On the night, he came to know deceased and PW2 have sustained injuries and were shifted to the District Hospital, KGF. The doctor declared Arun Kumar as brought dead and referred PW2 to Bengaluru for better treatment. PW2 was referred to

NIMHANS and from there to St.Johns Hospital. He has supported the case of prosecution.

(xvii) PW25 - Lakshmi is elder sister of the deceased. She has deposed that her father died on 08.05.2011. His father's 40th day death ceremony was observed on 26.06.2011. On the night of 27.06.2011, PW2 and Arun Kumar had gone to sleep in a room in the farm house and at about 3.00 a.m. when PW1 went to the said room to take his slippers, he had noticed that the deceased and PW2 were lying in a pool of blood. On the information given by PW1, all went to the spot and shifted the injured to the hospital. She has also spoken about the motive for the accused to commit the crime. She has supported the case of prosecution.

(xviii) PW26 - Latha is the neighbour. She has deposed that she knows CWs.1 to 11. She has further deposed that she does not know the accused persons. She has also deposed that she does not know as to at whose instance the deceased died and how PW2 got injured. She has turned hostile and has not supported the case of prosecution.

(xix) PW27 - Shantha Kumari is elder sister of the deceased and PW2. She has deposed that there was old enmity between the deceased family and the accused family

with regard to murder in the family of the accused, for which, they were suspecting that deceased family was the cause for the murder. She has further deposed that on 27.06.2011 in the midnight, the incident had happened and she came to know about the same from PW1 and they rushed to the spot and saw the deceased and PW2. They shifted the injured to the hospital. She has supported the case of prosecution.

(xx) PW28 - Selvi is elder sister of PW2 and deceased. She has re-iterated the version as that of PW27 and has deposed regarding the motive for the accused to commit the crime. She has supported the case of prosecution.

(xxi) PW29 - Shankarappa is the Head Constable. He has deposed that on 04.07.2011 he was deputed to trace the accused. He went along with PWs.23 and 30 and apprehended accused Nos.2, 3 and 5 in the Railway Station, Bangarpet and produced before the Investigating Officer. He has supported the case of prosecution.

(xxii) PW30 - Shivanna is the Police Constable. He has deposed that on 04.07.2011, he was deputed to arrest the accused. He went along with PWs.23 and 29 and apprehended accused Nos.2, 3 and 5 and produced

before the Investigating Officer. He has supported the case of prosecution.

(xxiii) PW31 - Manjappa is the Police Constable. He has deposed that he was deputed to arrest the accused person. He along with another Police Constable - PW5 went to Bengaluru on 11.08.2011 and searched several places and on 12.08.2011, near the bridge of Marathahalli, they arrested accused No.4 and produced before the Investigating Officer. He has supported the case of prosecution.

(xxiv) PW32 - Markondaiah is the Sub Inspector of Police. He has deposed that on 28.06.2011 at about 6.00 a.m. PW1 came to the police station and gave complaint as per Ex.P1. Based on the complaint, he registered FIR as per Ex.P27. The further investigation was taken up by CPI, Later on 05.07.2011, he was instructed to trace the accused. He along with CWs.45 and 46 apprehended accused Nos.1 and 6 in KGF town and produced them before the Investigating Officer and submitted report as per Ex.P28. He has supported the case of prosecution.

(xxv) PW33 - Abdul Saleem is the Circle Inspector of police.

He has deposed that on 08.09.2011, he took up further

investigation and filed the charge sheet. He has supported the case of prosecution.

(xxvi) PW34 - Puttamadaiah is the Circle Inspector of Police.

He is also the Investigating Officer and he has conducted major part of the investigation. He has deposed that on 28.06.2011 he received information about the incident. He went to the hospital and saw the dead body of deceased Arun Kumar and PW2 with severe injuries. On enquiry, PW1 gave details of the incident and he took up investigation and conducted spot mahazar, inquest and arrested the accused persons and recovered the incriminating materials from the accused. Since he was transferred, the further investigation was handed over to PW33. Thereby, he has supported the case of prosecution.

(xxvii)PW35 - Kanigachalam is the photographer. He has deposed that upon instructions, he went to the spot and taken the photographs and also video coverage, which is marked as per Exs.P2 to 10 and 29. He has turned hostile and has not supported the case of prosecution.

(xxviii)PW36 - Goankar is the Assistant Director of FSL, Bengaluru. He has deposed that he received 23 material objects in a sealed cover from the Investigating Officer for chemical examination. He has

given his report as per Ex.P37. The material objects, which are weapons were also forwarded to him for chemical examination and he has given report as per Ex.P26.

20. Based on the aforesaid oral and documentary evidence

on record, the learned Sessions Judge proceeded to convict and

sentence the accused persons for the offences punishable under

Sections 143, 144, 147, 148, 302, 307, 201 read with 149 of IPC.

21. The gist of the prosecution case is that as per the

complaint - Ex.P.1 dated 28.06.2011 lodged by P.W.1-Dilip, he was

residing along with his parents at Anandan Compound, Prank and

Co., Marikuppam, K.G.F. and was working at Scan Cafe, a private

Company at Bengaluru and every day he used to travel from

Marikuppam to Bengaluru, by train at 4.00 am. He used to sleep in

the house of his uncle-Rajan situated close to his house. Even the

house of the brothers of his mother i.e., Vijayababu @ Nayana @

Vinsent and Arunkumar (deceased) was situated near to his house.

At a short distance to the said house they had constructed a shed

and used to sleep in the room situated above the said shed.

22. On 28.06.2011, as usual, he got up at 3.00 am and got

ready to catch the train at 4.00 am. When he searched for his

slippers, he came to know that his uncle Nayana had worn them

and therefore, to take his slippers, he went to the shed where they

used to sleep. The door was open. Due to sultry weather they

used to keep the door open while sleeping at night. When he went

inside and switched on the light, he noticed that Arun and Nayana

were sleeping. But their face and head were injured with sharp

weapons and he was frightened seeing the blood stains on the bed

and the walls. Both of them were unconscious. Immediately he

rushed and informed his uncle Rajan. His uncle shifted the injured

in an Auto to Robertsonpet Government Hospital. The doctors

examined the victims and declared that Arunkumar is brought

dead. It is further stated in the complaint that there was old

enmity between them and Stalin-accused No.1, Saw Mill line Magi-

accused No.2, Tooblock Sharath-accused No.3 and Karka @

Naresh- accused No.4, who are all residents of Susaipalyam.

Previous year, accused persons had demanded some money and

since the complainant did not give them the money, they had

beaten him. In that regard, complainant had lodged a complaint

with Andersonpet Police Station. Case was pending before the

Court. The accused persons used to pressurize him to withdraw the

case. Since the accused persons used to demand money from

persons like complainant and used to tease women on Twoblock

Kerekatte road, himself and his uncle had warned them on many

occasion. Therefore, the accused had enmity against them. The

complainant suspects that, in this back ground, on the previous

night the accused persons came to the house of his uncle with an

intention to kill them and accordingly assaulted them.

23. Based on the aforesaid complaint, the Marikuppam

Police registered a case in Crime No.14/2011 against the accused

persons for the offences punishable under Sections 302, 307 r/w

Section 34 of the Indian Penal Code.

24. P.W.2-Vijay Babu @ Nayana @ Vincent, who is injured

in the incident and star witness to the prosecution case has

deposed about the motive for the offence, recovery of the weapons

from accused persons. The version of P.W.2 rests on high pedestal

and it can be the basis to convict the accused persons, only if it is

of sterling quality. But when the version of the injured eye witness-

P.W.2 creates doubt about the manner in which the incident had

taken place, the Court has to look for corroboration. The motive for

the accused persons to commit the offence is a double edged

weapon. When it can be said that the accused persons have

committed the offence with a motive, it can also be said that the

complainant or the eye witness have falsely implicated the accused.

As admitted by P.W.2, he is accused of causing the homicidal death

of Suvin @ Infant- accused No.5 in the present case. In the cross-

examination, P.W.2 has deposed that the accused have not only

assaulted the deceased and P.W.2 with M.O.4-Gurkha chopper and

M.Os.5 and 6-long choppers, but also assaulted with M.Os.1 and 2-

stones. He also admitted in the cross-examination that on the date

of his cross-examination he was in judicial custody as he was one of

the accused for the homicidal death of Suvin @ Infant-accused No.5

in the present case. He has also deposed that on the date of the

incident, as he was sleeping he could not identify as to who

dropped the stones-M.Os.1 and 2 on himself and the deceased. He

also deposed that, before the Police he has not stated that, at the

time of the incident, in the room, the light was on. The accused

persons while walking out of the room switched off the light and

switched on the fan. He has further deposed that he has not stated

before the police that accused Nos.2 and 4 assaulted with the

swords in their hands on Arun's head, hands and legs. He has

further deposed that he stated before the police that since stones

M.Os.1 and 2 were dropped, Arun's face was crushed/smashed.

Further, he has not stated before the police that since stone was

dropped on his face, he was in pain. P.W.2 further deposed that,

accused No.1 tried to kill P.W.2 by pressing his neck with feet,

others kicked on his stomach and private part, but he is deposing

about all these facts for the first time before the Court. Thus there

are serious the omissions and material contradictions in the

evidence of P.W.2.

25. P.W.2 has further deposed that he has rared dogs. But

had kept them in the cage. On the date of the incident, the dogs

were confined in another room. A puppy was there in the room in

which he slept. The house in which they were sleeping had two

rooms. In one room they were sleeping. Between two rooms there

is an arch to go to the other room and it has no door. There is no

explanation as to why the dogs have not alerted the deceased and

P.W.2 about the arrival of the accused to the house in question.

26. P.W.2 has deposed that the incident occurred on

28.06.2011. P.W.21-Dr.Betty Issac, St. Johns Hospital, has

deposed that P.W.2 was admitted to the hospital on 28.06.2011

and was discharged on 21.07.2011, after 24 days. But, the

statement of P.W.2 was recorded on 07.09.2011, i.e., after lapse of

70 days. P.W.2 has deposed that he was not in a position to speak

and he was again admitted to hospital. But, no medical records are

produced to prove the same.

27. With regard to motive for the offence, it is clear from

the evidence on record that there was long standing enmity

between both the parties. It is also admitted by P.W.2 that he is an

accused for having caused homicidal death of accused No.5.

28. In order to ascertain the veracity of the evidence of

P.W.2, we summoned M.Os.1 and 2-stones to the Court. The

weight of M.O.1 is 25.1 kg and that of M.O.2 is 16.2 kg, as

recorded by this Court by the Order dated 17.11.2021. If the

evidence of P.W.2 has to be believed, when the stones weighing

25.1 kg and 16.2 kgs were dropped on the face of a person, the

face should have been crushed/ smashed. But the postmortem

report-Ex.P.19 depicts that the head and skull were intact and chest

was also in tact. The description of the external injuries found on

the dead body are as under:

1. Incised wound 4" x 1" into bone deep, just below the left eye.

2. Incised wound 1" x ½" into whole thickness of ear lobule cutting the lobule into upper x lower segments.

3. Incised wound 1" x ½" x ½" on the middle of left cheek.

4. Incised wound 2" x ½" x ½" on the left angle of mouth.

5. Incised wound 2" x ½" x ½" just below the previous injury i.e., No.4.

6. Incised wound 2" x ½" x ½" just below the left angle of mouth.

7. Incised wound 4" x ½" x ½" transversely present in front of left side of chin.

8. Incised wound 1½" x ½" x ½" on front and middle of chin.

9. Lower jaw bone fractured at middle region of chin.

10. Incised wound in front and right side of chin 1½"

x ½" x ½".

11. Incised wound 1" x ¼" x ¼" on right angle of mouth.

12. Incised wound transversely present on right side of upper lip just below the nostril 1½" x ½" x ½".

13. Both the upper central incisors (two teeth) are missing and socket filled with blood clots.

14. Mouth disfigured due to the presence of injuries around it.

15. All the injuries are antemortem and fresh in nature.

29. The postmortem report does not refer to the crushing of

the skull or face of the deceased. The doctor has opined that the

death was due to shock and haemorrhage as a result of multiple

injuries sustained.

30. The wound certificate-Ex.P.21 issued by the St.John's

Medical College and Hospital, pertaining to the injuries sustained by

P.W.2 depicts the following injuries:

1) Obliquely placed six sutured wounds in varying dimensions from 3 cm to 18 cm in length over face.

2) Obliquely placed eight sutured wounds in varying dimensions from 2 cm to 15 cm in length over left side of head and left ear, one placed below the other.

- CT Brain done in Nimhans: Fracture left frontal, parietal and temporal bones, fracture right frontal bone, bilateral maxilla, left nasal bone, extra dural Haemorrhage in left high parietal region with diffuse cerebral oedema.

- Since all the wounds are sutured in Nimhans, opinion can be taken from Nimhans.

31. In the wound certificate-Ex.P.21 it is observed that the

patient had severe face maxillary and head injury. Thus the wound

certificate is contrary to the evidence of P.W.2 who deposed that he

sustained crush injuries. There are material contradictions,

omissions, inconsistency and improvement in the evidence of

P.W.2. Therefore, the learned Sessions Judge is not justified in

believing the version of eye witness- P.W.2 and proceeding to

convict the accused persons, as the evidence of P.W.2 has not been

corroborated except with the evidence of P.W.34-Investigating

Officer.

32. It is relevant to consider the evidence of P.W.20-

Dr.Fayaz Khan, the doctor who conducted autopsy on the dead

body of deceased Arunkumar. He deposed about the injuries

sustained by the deceased. In the entire evidence, he has not

stated about the crush injuries either on the face or skull of the

deceased or P.W.2. P.W.20, in his cross-examination deposed that

crush injury could be caused if the stone is dropped on the face of a

person and due to this reason he has shown in Ex.P.19/post-mortm

report that there was disfiguration of the face of the deceased. He

has further deposed that there is possibility of injuries if assaulted

with M.Os.1 and 2. The injuries found on the body of the deceased

and P.W.2 do not correspond to the use of M.Os.1 and 2. He has

further deposed that the death has occurred six hours prior to the

time of post-mortem.

33. P.W.21-Dr.Betty Issac, deposed that he examined

P.W.2 on 28.06.2011 and found six stitches on the face and eight

stitches on the left side of the head and that the CT scan report

sent from NIMHANS depicts fracture of frontal bone. The left side

of the skull and both the nasal bones were fractured and fracture of

both maxilla cheek bones and bleeding in the brain was found. The

said injuries were grievous in nature. He has further deposed that

he examined the patient for about half an hour to one hour in the

Emergency ward. However, the evidence of the doctors P.Ws.20

and 21 are not consistent and do not support the case of the

prosecution.

34. The material on record depicts that M.Os.1 and 2-

stones were not sent to Forensic Science Laboratory. M.O.4-

Gurkha chopper said to have been recovered at the instance of

accused No.4 under Ex.P.17. M.O.5-Long chopper was said to be

recovered at the instance of accused No.1 under Ex.P.14. M.O.6-

Long chopper was said to be recovered at the instance of accused

No.3 under Ex.P.18. Admittedly, all the mahazar witnesses to the

recovery of weapons under Exs.P.14, 17 and 18 have turned hostile

and have not supported the case of the prosecution.

35. Though learned Additional State Public Prosecutor

contended that the evidence of P.Ws.1, 2, 15, 16, 17, 24, 27 and

28 reveals the motive for the offence, the fact remains that they

are all the relatives of the complainant and are interested

witnesses. So also, as admitted by P.Ws.1 and 2, there was long

standing rivalry between P.Ws.1, 2 and accused, and their family

members and according to the complainant, the accused persons

hatched a plan to kill the deceased and P.W.2, but they failed in

execution of their plan to kill P.W.2. The material on record shows

that P.W.2 is the accused in the homicidal death of accused No.5-

Suvin @ Infant. It is clear from the evidence on record that there

was a mini gang war between two rival groups. The material on

record clearly depicts that M.Os.1 and 2-stones were not found at

the scene of occurrence of the offence and they were not seized

from the spot, as per the spot mahazar-Ex.P.11. The evidence of

some of the witnesses depicts that the said stones were recovered

at the instance of accused Nos.2 and 5 from a place far away from

the scene of occurrence of the offence. P.W.34 deposed that M.Os.1

and 2 were recovered near the water tank situated in Excellent

Middle School premises.

36. If the accused persons really used M.Os.1 and 2-stones

as stated supra in commission of the offence they would not have

carried them back and thrown in the school premises. Looking at

the size and weight of M.Os.1 and 2, it is hard to believe that

accused persons brought these two stones, dropped them on the

victims and thereafter carried them back and threw at some other

place. There is no evidence to come to the conclusion that the

accused persons carried back M.Os.1 and 2, after committing the

offence. It is further case of the prosecution that accused No.2

assaulted the deceased with chopper. But none of the sharp edged

weapons were recovered at his instance, but, M.O.2. stone was

recovered at his instance.

37. Exs.P.30 to 36-voluntary statements of accused Nos.1,

2, 3, 5 and 6 and statement of P.W.35 and voluntary statement of

accused No.4 marked through P.W.34-Investigating Officer. The

entire statement were marked as Exhibits. The said voluntary

statements of the accused persons are hit by Section 25 of the

Indian Evidence Act, as held by the Hon'ble Supreme Court in the

case of Pulukuri Kottaya and others vs. Emperor5 wherein, at

paragraphs 10 it is held as under:

AIR 1947 Privy Council 67,

"10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in cones quence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object

can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to section 26, added by section 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate

distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

38. The Co-ordinate Bench of this Court in the case of

Vijayakumar vs. State at paragraph 6, held as under:

6. Our attention was drawn by the Counsel for the appellant to the manner of recording evidence by the Sessions Court, particularly with regard to most material circumstance of the accused giving information under Section 27 of the Evidence Act leading to the discovery of fact. Our attention was particularly drawn

ILR 1994 KAR 419,

to that part of the testimony recorded by the Trial Court which shows that practically no evidence was given in this behalf by the Investigating Officer. The learned Judge has recorded the evidence as follows:--

"The accused was present in the police station as produced by P.C. 3286 & 2004. I recorded the voluntary statement of the accused, as per Ex. P. 17. I arrested the accused and then seized the blood stained shirt and subjected it to P.F. No. 71/91 and under Mahazar Ex. P-3."

It was rightly urged on behalf of the appellant that taken by itself, Ex. P. 17 cannot go in substantive evidence as Ex. P. 17 would provide corroboration to the substantive evidence that should be given in Court by the witness speaking about this information. The Trial Court ought to have insisted on the prosecution to lead substantive evidence in this behalf before making use of Ex. P. 17. Thus practically the Investigating Officer P.W. 22 did not state anything regarding the information said to have been given to him by the accused. Section 27 says that so much of the information that distinctly leads to the discovery of a fact alone is admissible in evidence and it is exception

to Sections 25 & 26 of the Evidence Act. Therefore so much of the information as leads to discovery of a fact must be proved like any other fact and recording in the deposition or the prosecution leading evidence of an Investigating Officer that he recorded a particular statement as per certain record made by him and exhibited cannot take place of substantive evidence.

Similarly we have come across certain contradictions being recorded only by referring to exhibits without reproducing exactly what is the contradiction or omission stated by a particular witness or Investigating Officer. Likewise, unless facts incorporated in the mahazar are spoken to by a particular witness in order to marking of a mahazar it does not amount to substantive evidence. It is unfortunate that many of the Sessions Judges have not understood this distinction and it has become a practice to take down depositions in the manner stated above thus unnecessarily creating complications in the matter of acceptance or rejection of the evidence so given. It may also sometimes happen that even if a witness states what exactly was recorded in his own words, the Sessions Judges may find it a short cut to take down only as stated as per certain exhibits without taking down what exactly was the information given by the accused which could fall under Section 27 of the Evidence Act. Such a practice is

wholly deprecable as even evidence given by witnesses according to law might sometimes not be reduced to writing while taking depositions only as a matter of convenience. We impress upon Courts below that such a practice of not taking down in the evidence of material witnesses what they actually deposed to in such situations would come in the way of proper appreciation of evidence and even good cases may be seriously affected by such casual and perfunctory recording. Such practice should be discontinued. With these observations, we find that practically there was no evidence for the Trial Court to find accused guilty. Appeal has to be allowed and it is allowed. Judgment of conviction and sentence imposed by the Trial Court are set aside and the accused is acquitted of the charge under Section 302 IPC. He shall be set at liberty forthwith. A copy of this Judgment shall be forwarded to the learned Trial Judge wherever he is."

39. It is also relevant to state at this stage that M.Os.1 and

2 were not sent to FSL and the evidence on record depicts that they

were not blood stained. Ex.P.28, report of P.W.32-PSI dated

05.07.2011 depicts that there was suspicion against accused

persons and there are no eye witnesses except the injured witness

(P.W.2) who deposed that when he was sleeping suddenly wake up

hearing the sound. By that time, accused persons had already

dropped M.Os.1 and 2 on the deceased and P.W.2. The accused

persons assaulted using choppers and they switched off the lights

and switched on the fan. Therefore, P.W.2 could not identify the

accused.

40. When prosecution failed to prove the guilt of the

accused, mere FSL report as per Exs.P.26 and 37 will no way assist

the case of the prosecution.

41. As already stated above, there are material

contradictions, omissions and improvements in the evidence of

P.W.2 and there is no other corroborative evidence except the

evidence of P.Ws.1, 3, 4, 16, 17, 24, 25, 27 and 28 who spoke

about the motive but they are all interested witnesses and relatives.

In the absence of any corroborative evidence, it is not possible for

the Court to come to a definite conclusion that accused persons are

involved in the homicidal death of the deceased.

42. There are three versions. One as per the complaint,

other as per the evidence of P.W.2 and the third one as per the

evidence of P.W.1. The medical evidence clearly depicts that there

is possibility of two views in the present case.

43. The Investigating Officer has not properly conducted

the investigation to dig out the truth. The material evidence on

record clearly depicts that two views are possible.

44. Another important point is delay of 70 days in recording

the statement of P.W.2 has not been properly explained by the

prosecution. Even though the incident occurred on 28.06.2011,

statement of P.W.2 was recorded on 07.09.2011, after lapse of 70

days, though P.W.2, admitted that he regained conscious on 07th or

12th day after the incident and was discharged from the hospital.

45. It is also relevant to note that except examining the

Doctors-P.Ws.20 and 21, the doctors who treated P.W.2 at

Bangarpet Hospital, KGF Hopsital, NIMHANS and at St.John's

hospital have not been examined. No other medical evidence has

been produced to prove the involvement of the accused persons.

The evidence of P.W.2 is inconsistent with the medical evidence.

P.W.2 in the cross-examination has admitted that there was enmity

between the accused persons, P.Ws.1 and 2 and their family and he

had no opportunity to identify the accused on the date of the

incident, since he was sleeping.

46. From careful perusal and meticulous examination of the

evidence on record, and the evidence of P.Ws.1, 2, 16, 17, 24, 25,

27 and 28, who are the relatives of the complainant and the

evidence of P.W.34-Investigating Officer, there are so many

omissions and contradictions and the entire fabric of the

prosecution case appears to be ridden with gaping holes. It is true

that due to passage of time, witnesses do deviate from their

statements as their memory fades to some extent. Reasonable

allowance can be made for such discrepancies. But when such

discrepancies make the foundation of the prosecution case shaky,

the Court has to take strict note thereof. On perusal of the

evidence of the prosecution witnesses, the discrepancies are

noticed and the witnesses have discredited themselves. However,

the learned Sessions Judge proceeded to convict the accused

persons erroneously, mainly on the basis of the evidence of P.Ws.2

and 34, without there being any corroboration. Therefore, the

same cannot be sustained. It is clear from the evidence of the

prosecution witnesses and medical evidence that two views are

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

Appellate Court reviewing the evidence upon which an order of

conviction is based. The golden thread which runs through the web

of administration of justice in criminal cases is that if two views are

possible on the evidence adduced in the case, one pointing to the

guilt of the accused and the other to his innocence, the view which

is favourable to the accused should be adopted. The paramount

consideration of the Court is to ensure that miscarriage of justice is

prevented. A miscarriage of justice which may arise from acquittal

of the guilty is no less than from the conviction of an innocent.

47. After careful perusal of the complaint-Ex.P.1 and

common Charge framed against accused persons depicts that the

prosecution has not proved its case beyond shadow of reasonable

doubt.

48. The non explanation of time gap of about 70 days

between the incident and recording the statement of P.W.2 and non

production of documents including register of medico legal case and

case sheet are fatal to the case of the prosecution.

49. The Hon'ble Supreme Court, while considering the

evidence of sole eye witness in the case of Bhimapa Chandappa

Hosamani and others vs. State of Karnataka7, at paragraphs

14 and 24, held as under:

"14. However, in the instant case we are left with the evidence of a sole eyewitness and it, therefore, becomes the duty of the Court to critically scrutinise her evidence with a view to assure itself that the witness is stating the truth and that her evidence is so convincing and appears to be so natural and truthful that it is not necessary to look for other evidence to record a conviction. Viewed from this angle, it is established that in the first information report, a false statement had been made by PW 1 as to the existence of motive.

24. We have undertaken a very close and critical scrutiny of the evidence of PW 1 and the other evidence on record only with a view to assess whether the evidence of PW 1 is of such quality that a conviction for the offence of murder can be safely rested on her sole testimony. This Court has repeatedly observed that on

(2006)11 SCC 323

the basis of the testimony of a single eyewitness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the court as wholly truthful, must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness."

50. The Hon'ble Supreme Court, while considering the

provisions of Section 302 r/w Section 149 of the Indian Penal Code,

in the case of Parvat Singh and others vs. State of Madhya

Pradesh8, at paragraphs 12, 13, 13.1 and 13.2, held as under:

"12. At the outset, it is required to be noted that the appellants herein -- original Accused 2 to 5 are convicted by the learned trial court and the High Court solely relying upon the evidence/deposition of PW 8 -- Mullo Bai. It cannot be disputed that there

(2020)4 SCC 33

can be a conviction relying upon the evidence/deposition of the sole witness. However, at the same time, the evidence/deposition of the sole witness can be relied upon, provided it is found to be trustworthy and reliable and there are no material contradictions and/or omissions and/or improvements in the case of the prosecution.

Therefore, the question which is posed for consideration of this Court is whether in the facts and circumstances of the case, can the appellants herein, original Accused 2 to 5 be convicted relying upon the deposition of the sole witness -- PW 8 and whether PW 8 is a reliable and trustworthy witness to convict the appellants herein, original Accused 2 to 5?

13. Having heard the learned counsel appearing for the respective parties and considering the evidence on record, we are of the opinion that the evidence/deposition of PW 8 is full of material contradictions, omissions and improvements.

13.1. It is required to be noted that it was a black night (Amavasya) at the time of incident. It was a dark night as the incident has happened between 4- 5 a.m. PW 8 in her statement recorded under

Section 161 CrPC has stated that she has seen all the accused in the light of the torch. She has stated that Bal Kishan -- original Accused 1 was having an axe and other four were armed with lathis. She had also stated in her statement under Section 161 CrPC that Bal Kishan -- original Accused 1 gave the axe- blow on the neck of the deceased due to the enmity and earlier dispute and other accused were telling to run away immediately and thereafter all the five accused ran away from behind the cattle shed/house. She stated that she had identified all the accused in the light of the torch and also by voice. According to her after she shouted, other persons came. However, there is material improvement in her deposition before the court. In her deposition, she has stated that accused Santosh and Rakesh caught hold of Bal Kishan -- deceased. In her deposition, she has also stated that there was a chimney light in the cattle shed. She has also stated in her deposition that the accused ran away from the nearby agricultural field of sugarcane. Therefore, the deposition of PW 8 is full of material contradictions and improvements so far as original Accused 2 to 5 is concerned. It is required to be noted that no other independent witness even named by PW 8 has supported the case of the

prosecution. Though, according to PW 8, she identified the accused in the light of the torch, there is no recovery of torch. There is material improvement so far as the chimney light is concerned. In her deposition, she has not stated anything that the appellants -- original Accused 2 to 5 were having the lathis, though she has stated this in her statement under Section 161 CrPC. The High Court has observed relying upon her statement recorded under Section 161 CrPC that the appellants herein -- Accused 2 to 5 were having lathis.

However, as per the settled proposition of law a statement recorded under Section 161 CrPC is inadmissible in evidence and cannot be relied upon or used to convict the accused. As per the settled proposition of law, the statement recorded under Section 161 CrPC can be used only to prove the contradictions and/or omissions. Therefore, as such, the High Court has erred in relying upon the statement of PW 8 recorded under Section 161 CrPC while observing that the appellants were having the lathis.

13.2. As observed hereinabove in her statement under Section 161 CrPC, she has never stated that accused Santosh and Rakesh caught hold of Bal

Kishan, but stated that the appellants herein told to run away as other persons have woken. In the facts and circumstances of the case, there are material contradictions, omissions and/or improvements so far as the appellants herein -- original Accused 2 to 5 are concerned and therefore we are of the opinion that it is not safe to convict the appellants on the evidence of the sole witness of PW 8. The benefit of material contradictions, omissions and improvements must go in favour of the appellants herein.

Therefore, as such the appellants are entitled to be given benefit of doubt."

51. Such consideration of the evidence placed before the

Court has not been done by the learned Sessions Judge while

convicting the accused persons.

52. On meticulous re-appreciation of the oral and

documentary evidence on record, it is clear that there was enmity

between the accused persons and P.Ws.1 and 2 and their family.

Mini gang war was going on between two rivalry groups. It is also

not in dispute that according to the prosecution, accused persons

killed the deceased-Arunkumar and according to the defence, as

admitted by P.W.2 in the cross-examination he is an accused in the

homicidal death of accused No.5.

53. Sri Hashmath Pasha, learned Senior counsel for accused

No.2 submitted that P.W.2 has been acquitted of the charge of

committing homicidal death of accused No.5.

54. Taking into consideration the long standing history of

rivalry between two groups and the inconsistency in the evidence of

P.W.2 who is a star witness to the case of the prosecution and

evidence of P.W.34-Investigating Officer we find material

contradictions, omissions and improvements. Therefore, we are of

the considered opinion that the accused persons have made out a

case for acquittal.

55. For the reasons stated above, the point raised for

consideration in the present Appeals has to be answered in the

negative holding that the learned Sessions Judge is not justified in

convicting the accused persons for the offences punishable under

Sections 143, 144, 147, 148, 120-B, 302, 307, 201 r/w Section 149

of the Indian Penal Code and the accused persons have made out a

case to interfere with the impugned judgment of conviction and

order of sentence.

56. In view of the above, we pass the following:

ORDER

1. (i) Criminal Appeal No.2065/2016 filed by accused No.6-Louis @ Karthick;

(ii) Criminal Appeal No.785/2018 filed by accused No.1- Stalin;

(iii) Criminal Appeal No.1388/2018 filed by accused No.2- Magi @ Magesh.K;

(iv) Criminal Appeal No.399/2020 filed by accused No.3- Sharath;

(v) Criminal Appeal No.362/2021 filed by accused No.4- Karka @ S.Naresh; are hereby allowed.

2. The impugned judgment of conviction and order of sentence dated 26.08.2016 made in S.C.No.175/2011 on the file of the III Additional District and Sessions Judge, Kolar, sitting at K.G.F. is hereby set-aside.

3. The appellants/accused Nos.1, 2, 3, 4 and 6 are hereby acquitted for the offences punishable under Sections 143, 144, 147, 148, 120-B, 302,

307, 201 r/w Section 149 of the Indian Penal Code.

4. The concerned jail authorities are directed to release the appellants/accused Nos.1, 2, 3, 4 and 6 immediately, if they are not required in any other case, after following the Standard Operating Procedure dated 18.01.2022.

5. The fine amount, if any, deposited by the accused persons shall be refunded to them.

6. Registry is directed to return the Trial Court Records, forthwith.

7. The operative portion of the judgment shall be communicated to the concerned Jail authorities, forthwith.

57. In view of the disposal of the Appeals all pending I.As.

are disposed off.

Sd/-

JUDGE

Sd/-

JUDGE Pages 1 to 10 Nsu/-

10 to 39 bgn 39 to 70 kcm