Parashuram Goneppa Gaddadaver vs State Of Karnataka
2022 Latest Caselaw 10175 Kant

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                                    CRL.A No. 100349 of 2021


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

           DATED THIS THE 04TH DAY OF JULY, 2022

                         PRESENT
          THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
                           AND
           THE HON'BLE MR JUSTICE M.G.S. KAMAL
          CRIMINAL APPEAL NO. 100349 OF 2021 (C-)
BETWEEN:
1.    PARASHURAM GONEPPA GADDADAVER
      AGE. 25 YEARS,
      OCC. COOLIE,
      R/O. AMBEDKAR NAGAR,
      LAXMESHWAR,
      SHSIRHATTI TALUK,
      GADAG DIST 582120.



                                               ... APPELLANT
(BY SRI. R.M. JAVED, ADVOCATE)
AND:
1.    STATE OF KARNATAKA
      THROUGH LAXMESHWAR P S
      REP. BY STATE PUBLIC PROSECUTOR,
      HIGH COURT OF KARNATAKA,
      BENCH AT DHARWAD 581105



                                              ...RESPONDENT
(BY SRI. V.N.BANAKAR, ASPP)


     THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.,
SEEKING TO CALL FOR THE RECORDS, SET ASIDE THE
SENTENCE AND ORDER OF CONVICTION IN S.C. NO.72/2017,
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                                      CRL.A No. 100349 of 2021


PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
GADAG      DATED     26.05.2021,    CONVICTING   THE
ACCUSED/APPELLANT AND SENTENCING TO UNDERGO LIFE
IMPRISONMENT FOR THE OFFENCE PUNISHABLE U/S 302 OF
IPC AND TO PAY RS.5,000/- AS FINE IN DEFAULT SHALL
UNDERGO SIMPLE IMPRISONMENT FOR 3 MONTHS AND
FURTHER SENTENCED TO UNDERGO SIMPLE IMPRISONMENT
FOR A PERIOD OF 3 MONTHS FOR THE OFFENCE PUNISHABLE
U/S 323 OF IPC AND THEREBY ACQUIT THE APPELLANT.


     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:


                            JUDGMENT

Aggrieved by the judgment and decree passed against

him, the accused in SC No.72/2017 on the file of the Principal

District and Sessions Judge, Gadag, has preferred this appeal.

2. The accused was prosecuted in SC No.72/2017

for the offences punishable under Sections 323, 302, 504 and

506 of IPC, on the file of the Principal District and Sessions

Judge, Gadag, on the basis of the charge sheet filed by

Laxmeshwar police, in Crime No.140/2017 of their police

station. Crime No.140/2017 was registered against the

accused on the basis of the complaint as per Ex.P13 filed by

PW6-Annappa Torappa Gajakosh.

CRL.A No. 100349 of 2021

3. The appellant was the sole accused in the said

case. For the purpose of convenience, the parties will be

referred to henceforth according to their ranks before the trial

Court.

4. Gist of the complaint of PW6 is as follows:-

The accused used to lift money from the pocket of his

uncle Somanath. Therefore, himself and his uncle had

complained against the accused before the elders of the village

and they had advised him. Being enraged by that on

29.7.2017 at about 6.00 pm the accused and another person

took Somanath on the motorcycle in the guise that the elders

have convened a meeting and summoned him. The

complainant also followed them. At about 6.30 pm near the

pump house of Agasthyathirtha of Laxmeshwar, the accused

picked up quarrel with complainant and Somanath for

complaining to the elders, abused them in foul language and

crushed the head and face of Somanath with stone and

committed his murder. Further, the accused threatened PW6 of

his life, if he reveals the incident to others and he assaulted

him also.

CRL.A No. 100349 of 2021

5. On the basis of such complaint, PW15 registered

FIR as per Ex.P16 and handed over the further investigation to

PW18-CPI of Shiratti police circle. PW18 conducted the

investigation and filed the charge sheet against the accused for

the offences punishable under Sections 323, 504 and 506 of

IPC. Since the accused denied the charges and claimed the

trial, trial was conducted. In support of the case of the

prosecution, PWs.1 to 18 were examined, Exs.P1 to 28 and

MOs.1 to 8 were marked. The accused after his examination

under Section 313 Cr.P.C., did not file any defence statement

or adduce the evidence.

6. The trial Court on hearing both the parties, by

the impugned judgment and order convicted the accused for

the offences punishable under Sections 302 and 323 of IPC.

Though the trial Court did not pass a specific order of acquittal

for the offences under Sections 504 and 506 of IPC, it held that

the said charges were not proved. For the offence punishable

under Section 302 of IPC the trial Court sentenced him to life

imprisonment and fine of Rs.5,000/- and for the offence

punishable under Section 323 of IPC, simple imprisonment of

three months.

CRL.A No. 100349 of 2021

7. The trial Court held that the aforesaid charges

were proved against the accused on the basis of the evidence

of eye-witness PW6 and the medical evidence of PW11-the

Doctor who conducted the postmortem examination and PW13-

the Doctor who treated PW6. The trial Court further held that

the conduct of the accused absconding from his village also

becomes relevant. Aggrieved by the said judgment and order

the accused has preferred this appeal.

Submission of Sri R.M.Javed, learned counsel for

the appellant:

8. There was inordinate delay in filing the

complaint. There were material contradictions in the evidence

of PW6 and PW15 regarding the explanation for the delay. The

story of PW6 about he suffering injuries also did not inspire any

confidence as he had not suffered any external injuries and he

had not disclosed the history of assault by the accused on him

and the victim. It becomes hard to accept that PW6 leaves the

dead body to its own fate and does not inform anybody till next

day. The evidence of PWs.4 and 5-the wife and son of the

deceased show that even before PW6 allegedly filing the

CRL.A No. 100349 of 2021

complaint, the police were in the house of the deceased and at

the scene of offence. Therefore, the geneses of the compliant

itself is doubtful. Except the solitary evidence of PW6 no other

witnesses supported the theory of assault on the victim by the

accused. The trial Court failed to note that PW6 was not a

credible witness and his evidence was impeached. Therefore,

impugned order of conviction and sentence is liable to be set

aside.

Submission of Sri. V.M.Banakar, learned ASPP

9. Since PW6 was an injured eye-witness, his

evidence shall be given due credence. When there is injured

eye-witness no corroboration is required to his evidence. The

medical evidence shows that the victim died homicidal death.

The alleged contradiction or inconsistency are minor in nature

and they do not destroy the core case of the prosecution. The

impugned judgment and order do not call for any interference.

10. On hearing the parties and on perusal of the

record, the point that arises for consideration is "Whether the

trial Court was justified in holding that the charges

against the accused for the offences punishable under

CRL.A No. 100349 of 2021

Sections 302 and 323 of IPC were proved beyond

reasonable doubt?"

Analysis

11. Some of the admitted facts of the case are as

follows:-

Deceased Somanath was younger brother of father of

PW6. PW4-Chandrakala is the wife, PW5-Nagaraj is the son of

Somanath. Somanath was the native of Laxmeshwar.

Somanath and his brothers were living separately in

Laxmeshwar town. PWs.4 and 5 were residing in Bankapur.

Somanath and PW6 were alcoholics. Somanath and PW6 were

doing coolie work. On 29.7.2017, Somanath was found dead

with injuries on his head and face near Agasthyathirtha's pump

house in Laxmeshwar town.

12. The case of the prosecution in brief is as

follows:-

i) Somanath, accused and PW6 used to consume liquor

together. When Somanath was drunk, the accused was picking

cash from his pocket and quarreling with him. On the date of

CRL.A No. 100349 of 2021

the incident, the accused had picked Rs.120/- from the pocket

of Somanath. In that regard, Somanath and PW6 had

complained before PW16-Suresh Nandennanavar and the elders

had rebuked the accused. The accused was enraged by that.

ii) Therefore, on that day, when deceased and PW6 were

standing near the bus stand, the accused approached them

saying that the elders have convened the meeting to settle the

dispute, therefore, they should go with him.

iii) When they reached Ambedkara Nagar, the accused

picked up quarrel with Somanath for complaining before the

elders and abused him in foul language. He assaulted

Somanath and PW6 by hands. When Somanath questioned the

accused, the accused took him on bike towards

Agasthyathirtha, crushed the head and face of Somanath with

stone and committed his murder. When PW6 followed them

and tried to intervene he intimidated PW6 of his life, if he

informs anybody and went away.

iv) Then complainant went to Laxmeshwar Government

hospital for treatment. He was referred to KIMS hospital,

Hubli. After taking treatment in hospital, he came to

CRL.A No. 100349 of 2021

Laxmeshwar and filed the complaint as per Ex.P13 before

PW15. PW15 on the basis of such complaint, registered Ex.P16

and handed over the further investigation to PW18.

v) PW18 visited the scene of offence and conducted

Inquest as per Ex.P1 in the presence of PW1 and CW2 and sent

the dead body for postmortem examination. He conducted the

spot mahazar on 30.07.2017 in the presence of PW1 and CW3.

During spot mahazar, he seized MOs.1 to 3, stone, blood

stained sand and sample sand from the scene of offence and

drew the sketch of scene of offence as per Ex.P27. He

recorded the statement of witnesses, collected the postmortem

report.

vi) On 31.7.2017 he arrested the accused and recorded

his voluntary statement. On the basis of confessional

statement, he seized MOS.7 and 8, the T-shirt and Jeans Pant

of the accused under Mahazar Ex.P8. He referred the seized

articles to RFSL, Belgaum, collected the wound certificate of

PW6 as per Ex.P21. After completing investigation, he filed the

charge sheet.

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CRL.A No. 100349 of 2021

13. The defence of the accused is of total denial.

The case of the prosecution is rests on:

        i)          The circumstance of motive,


        ii)         The evidence of PW6 the injured eye witness;


        iii)        Res gestae witnesses PWs.4, 5 and 7


        iv)         Medical evidence of PW13 who allegedly treated

PW6, PW11-the doctor who conducted the post

mortem examination of the dead body of Somanath

v) The evidence of the police witnesses;

Reg: Eye witness

14. The trial Court convicted the accused relying on

the evidence of PW6-the alleged injured eye witness. According

to the defence counsel, the evidence of PW6 is tainted with

suspicion and discredited. Regarding appreciation of injured

eye witness, the Hon'ble Supreme Court in para 30 of the

judgment in Baleshwar Mahto and Another Vs. State of

Bihar and Another1 relying on its earlier judgment in Abdul

(2017) 3 SCC 152

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CRL.A No. 100349 of 2021

Sayeed Vs. State of M.P.2 and Jarnail Singh Vs. State of

Panjab3 held as follows:-

"30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

(Emphasis supplied)

15. The reading of the above judgment which was

based on several other earlier judgments makes it clear that to

rely on such evidence, firstly prosecution has to establish that

such witness was injured eye witness. If there are strong

grounds for rejection of his evidence on the basis of major

2010 SCC 259

(2009) 9 SCC 719

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CRL.A No. 100349 of 2021

contradictions and discrepancies therein, the evidence of such

injured eye witness can be rejected.

16. In the case on hand, the alleged incident said to

have taken place on 29.07.2017 at 6.30pm. PW6 said to have

filed the complaint on 30.07.2017 at 10.00am. The FIR was

delivered to the Court on 30.07.2017 at 2.30pm. In the

complaint-Ex.P13, the reason assigned to explain the delay in

filling the complaint is that he had suffered internal injury in his

chest, therefore, he was admitted in Laxmeshwar Government

Hospital. It is further stated that from there, he was sent to

KIMS Hospital for higher treatment. After his discharge from

KIMS hospital, he returned to Laxmeshwar and therefore, there

is delay in filling the complaint. In the complaint itself he says

that he was accompanied by his younger brother. The said

younger brother does not file the complaint.

17. Contrary to such explanation in the complaint,

PW6 in his chief-examination states that on the date of the

incident itself, he went to the police station to file a complaint.

But, police declined to receive the complaint on the ground that

he is intoxicated and in such state complaint cannot be taken.

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CRL.A No. 100349 of 2021

Then he went to the District hospital, Gadag, and took

treatment there. Then filed the complaint. But the

prosecution version is totally different.

18. PW15-the A.S.I. of Laxmeshwar police station

who allegedly received the complaint and registered the FIR-

EX.P16 states that on 30.07.2017 at 10.00 am, when he was

the Station House Officer of Laxmeshwar police station, PW6

appeared before him and filed the complaint-Ex.P13. He says

on the basis of the said complaint, he registered FIR-Ex.P16

and handed over the further investigation to PW18-the CPI of

Shirahatti police circle. In Ex.P16, PW6 taking treatment in

Hubli KIMS hospital is shown as the reason for the delay,

whereas according to the prosecution itself, PW6 first went to

Laxmeshwar Community Health Centre, and PW13-the Medical

Officer of the said centre treated him.

19. PW13 states that on 29.07.2017 at 8.00pm, PW6

was brought to the CHC with the history of some galata. He

further deposes that on examination, PW6 was found to be

suffering from the pain in back, chest, knees and elbows and

they were simple injuries. He further says that regarding

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CRL.A No. 100349 of 2021

examination of PW6 he issued the wound certificate-Ex.P21.

The injuries mentioned in EX.P21 are as follows:-

     i)          Backache

     ii)         Chest tenderness

     iii)        Knee elbow joint pain

They are certified to be the simple injures aged 6 hours

prior to the examination. Thus, there were no visible injures on

the body of PW6.

20. PW13 in his cross examination sates that soon

after the arrival of PW6 into the hospital, he informed the

police, that he did not refer PW6 either to Gadag district

hospital or KIMS Hospital, Hubli. No records were produced to

prove that PW6 was treated either in District hospital, Gadag or

in KIMS hospital, Hubli. When PW6 says that he was

accompanied by his younger brother-Maruthi, in Ex.P21 the

name of said Maruthi does not reflect. It only says that he was

accompanied by his relatives. PW13 says that PW6 was

accompanied by 2 to 3 persons and he examined the injured

for about 15-20 minutes. In Ex.P21, it is not stated what

treatment was given to him.

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CRL.A No. 100349 of 2021

21. There were no visible injuries on PW6. The I.O.

doesn't collect the MLC register extract and produce the same

to show that PW6 was examined or treated by PW13 in

Laxmeswhar Community Health Centre. The I.O. in his cross

examination states that after taking treatment in Laxmeshwar

hospital PW6 took treatment in Hubli KIMS hospital. But he has

not collected any records regarding the same. He says because

PW6 was treated as out patient, no record was collected. But,

even for that atleast there will be entry in out patient register.

So far as non collection of MLC register extract from

Laxmeshwar Community Health Centre, though he admits that,

he says since he did not find that necessary he did not collect

that.

22. Contrary to the theory of taking treatment in

KIMS Hospital as found in Ex.P13 and in the evidence of PW18,

PW6 says that he was treated in District Hospital Gadag. PW18

says that PW6 did not inform him about he taking treatment in

Gadag Hospital. These are all the material contradictions which

show that there was an attempt to suppress something by the

aforesaid witness. PW15 who registered the FIR in his cross-

examination says that before he receiving the complaint, he

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CRL.A No. 100349 of 2021

had not received any information regarding the incident. To

improve the case he says that on 29.07.2017, H.C.917 who

had gone to hospital for investigation in another case informed

him that during his visit to the hospital, the Medical Officer told

him about the admission of PW6 in the hospital. He does not

say which was that hospital. He further says that on getting

such information, he went to the hospital at 8.30 pm and came

to know that the injured is shifted to KIMS Hospital, Hubli,

which is neither the case of PW13 nor PW6. PW15 further says

that when he visited the hospital, none of the relatives of the

injured were there and he did not get MLC intimation from the

hospital. He says that PW6 was accompanied by his younger

brother Maruthi Gajakosh.

23. Even according to PW15, the FIR was registered

at 10.00 am. But Ex.P16 shows that the same was delivered to

the Court at 2.30 pm. The delay in delivering the FIR was not

explained. That creates doubt about the registration of the FIR

at 10.00 am. That goes to show that before registering the

FIR, there was some deliberation, because PW1 says that he

was accompanied by his younger brother. He was not cited as

the charge sheet witness. PW6 says that his uncle Somanath

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died instantaneously at the spot. It goes hard to accept that

when his uncle was murdered, himself or his relatives do not

file complaint till next day. PW6 in his cross examination states

that he was accompanied to the hospital by his brother Maruthi

and death of his uncle was known to the people of his lane.

But they have not filed any complaint.

24. When PW6 and PW15 say that the FIR was

registered on 30.07.2017 at 10.00 am, PW4 and PW5 the wife

and son of the deceased Somanath state that they were

informed about the death of Somanath on 29.7.2017, therefore

they came to Laxmeshwar during the same night. PW4 says

that evening only they went and saw the dead body near

Agasthyathirtha, Laxmeshwar and she does not know the cause

of death of her husband. She does not know what crime the

accused has committed. The prosecution treated her as hostile

witness and cross examined her. She denies having given

statement before the police as per Ex.P12 to the effect that

PW6 informed her on 30.07.2017 about the incident. Nothing

was elicited in her cross examination to believe that she has

any strong reason to turn hostile.

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CRL.A No. 100349 of 2021

25. PW5 the son of the deceased says that his elder

brother CW8 informed him that his father has suffered serious

injuries in the quarrel and he was admitted to the hospital.

During the same night he came to Laxmeshwar. He further

deposed that during that night itself, police were in the house

of the victim and did not allow him to enter the house. On

seeing the dead body of his father, he came to know about the

death of his father. He further states that when he enquired

PW6 he told that the quarrel took place between the accused,

deceased and PW6 regarding the payment of wages. But he

says that he does not know who hit whom and who are the

assailants of his father. Though in the cross examination he

admits about PW6 informing him about the incident and he

giving statement about that, his evidence that the police were

present in the house of the victim on the previous evening itself

demolishes the prosecution case that police were informed on

the next day. The above facts go to show that there is an

attempt on the part of the I.O. as well as PW6 to suppress

some material fact and the genesis of the case itself is doubtful.

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Reg: Motive

26. According to the prosecution the motive for

commission of the crime was the victim objecting the accused

picking up the money from his pockets frequently and victim

complaining about the same before PW16 and PW16 and others

rebuking the accused about the same. To prove this

circumstance the prosecution relied on the evidence of PWs.4,

5, 6 and 16. PW16 totally denies the theory of PW6 and the

victim informing him about picking up of any cash or he

advising them or giving statement as per Ex.P23. Nothing

worth was elicited in the cross examination to show that there

was any reason much less strong reason for him to turn hostile.

Then what remains is the only evidence of PW6. According to

the prosecution PW6 and PW16 were only direct witnesses to

the motive circumstances and PW6 narrated the said motive to

PWs.4 and 5. Therefore, the evidence if any of PWs.4 and 5

was hearsay evidence. Even then they did not support that in

their evidence.

27. So far as PW6, it is suggested that there was a

property dispute between the deceased and his brothers

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themselves, on the ground that in the partition, the brothers

had allotted him a house which was in litigation. PW5 in his

cross examination admits that there was dispute between his

father Somanath and the father of PW6 regarding the property.

He further admits that in the site allotted to his father, a

hospital was constructed and they did not get the share of his

father till the date of his evidence.

28. It is the defence of the accused that PW6 himself

on committing murder, to screen that, has filed a false

complaint. PW6 in para 8 of his cross examination admits that

the deceased was living in a rented house in the town and he

and his other uncles are living in their own houses. He further

admits that one Rafiq filed a case against his uncle Somanath

and took the property of Somanath. He further admits that

regarding that his uncle was quarrelling with his father. He

further admits that his uncle was pestering them to clear the

litigation and get that property back to him. To the suggestion

that in that background, he had ill-will against Somanath, he

says that he had no ill-will but his mother was abusing him.

To the suggestion that there was ill-will between him and

Somanath regarding the property matter, he says that there

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was only oral quarrel. Such admissions of PWs.5 and 6

probabalise the defence of the accused that there was ill-will

between PW6 and his family members on one hand and the

deceased on the other hand with regard to property dispute. In

that back ground, he not filing complaint immediately after the

alleged death, creates a doubt about the conduct of PW6.

29. Further the cross examination of PW6 shows that

himself and deceased Somanath were doing coolie work since

two years prior to the incident under Ningappa the uncle of the

accused and collecting their wages from him. He has further

admitted that they were collecting coolie amount on every

Friday at the rate of Rs.1,500/- to Rs.2,000/-. The evidence of

PWs.5 and 6 show that PW6 and Somanath were alcoholics

and the deceased was living separately from his wife and son

since 7 to 8 years. The evidence of PW6 further shows that

house of himself, deceased and accused were in different

directions in Laxmeshwar town. Therefore, he had to

probabalise why and how he himself and Somanath met at the

time of the alleged incident.

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30. The cross examination of PW6 shows that the

alleged scene of offence i.e. Ambedkaranagar where the first

incident took place and the pump house where the second

incident took place were populated areas and people used to

move in those places in the evening time. If that is the case,

there could have been other eye witnesses to the incident

which improbabalises PW6 being the sole eye witness to the

incident.

31. PW11 the Doctor who conducted the autopsy on

the dead body of the victim says that if an intoxicated person is

brought before the Doctor beyond 12 hours though the alcohol

content will not be found in the stomach or intestine, the same

will be present in the blood. He further states the I.O. did not

give requisition for preserving viscera or blood or any part of

the body. She also states that I.O. did not give the history of

the incident when dead body was brought for postmortem

examination and the Doctor who conducts the postmortem

examination should know about the history of the incident.

She further states that she has not ascertained the history of

case before the PM examination. The I.O. has no explanation

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why he did not request PW11 to preserve blood, viscera for

sending for FSL examination.

32. According to the prosecution, the accused held

MO1-the stone in his fist and crushed head of the victim. But,

PW11 says that MO-1 was first holding stone which means a

stone caught or held with fist. She further admits that MO1

cannot be caught hold with single first. She admits that injury

Nos.1 to 3 could be caused, if an intoxicated person falls on the

ground while going on a motorcycle. This medical evidence

improbabalise the theory of assault by MO1 leading to the

injuries found on the dead body.

33. The above discussion goes to show that there

were material contradictions in the evidence of PW6, the

alleged solitary eye witness and the other evidence on record

which goes to the root of the matter and demolishes the core

case of the prosecution. The above discussion further shows

that there were strong grounds for rejection of evidence of PW6

on the basis of major contradictions and discrepancies. In

convicting the accused the trial Court failed to notice the

exception provided to the reliability of the injured eye witness

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in Baleshwar Mahto's case referred to supra, the major

contradictions and discrepancies in the evidence of PW6 and

other evidence on record. That lead to miscarriage of justice to

the accused.

Reg: recovery of MOs.7 and 8 on the basis of the

voluntary statement of the accused

34. According to prosecution on his arrest, the

accused volunteered to produce the T-shirt and jeans pant

worn at the time of offence and the I.O.-PW18 seized the same

under the Mahazar Ex.P8 by taking photograph Ex.P10. The

accused denies having given any voluntary statement as per

Ex.P28 or the recovery of the same. To prove that

circumstance, the prosecution relies on the evidence of PW18,

CW4/PW2, CW5/PW3. As per Ex.P8 on his arrest, the accused

produced MOs.7 and 8-blood stained T-Shirt and pant worn by

him in the presence of PWs.2 and 3 and the same were seized

under the Mahazar Ex.P8 on 31.07.2017 between 3.15 and

4.00 pm.

35. PW2 in his chief-examination itself states that

the police took his signature on Ex.P8 in the police station and

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collected the shirt, pant and towel which were in the police

station. He does not say that the accused produced them.

Though in the cross examination by the Public Prosecutor, he

admitted that he is depicted in Ex.P9 -the photograph (which

was marked subject to objection regarding admissibility) and

accused produced them, again in the cross examination by the

defence counsel, he states that he does not know reading and

writing and does not know the contents of Exs.P7 and P8. He

further admits that he signed on those documents at the

instance of the police and he had not gone to the police station

on 30.07.2017. He further admits that he is the nephew of the

deceased. That goes to show that a relative is brought in as

independent witness and moreover his evidence with regard to

the seizure and drawing of the Mahazar was not cogent and

consistent.

36. So far as PW3, though he admitted his signature

on Exs.P7 and P8, the Mahazars regarding seizure of the

clothes of the deceased and the accused, in the cross

examination by the defence counsel, he says, he has not read

and understood the contents of the said documents. He says

that he is not aware of the contents of the said documents. He

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says he does not know why the photographs and the clothes

MOs.7 and 8 were taken. Therefore, his evidence also did not

support the theory of seizure at the instance of the accused.

37. The said seizure theory was set up to link the

accused to the crime on the basis of RFSL report Ex.P24. In

Ex.P24, it is stated that MO1-stone, MO2-the mud, MOs.4, 5, 7

and 8 were stained with 'O' blood group. But as already

discussed, the doctor who conducted the autopsy says that I.O.

did not issue requisition to collect the viscera in the blood

samples to send them to FSL. Since the seizure itself is not

proved beyond reasonable doubt and in view of the evidence of

PW11, the observation in Ex.P24 is no way advance the case of

the prosecution.

38. The trial Court ignoring all the above said

material contradictions and suspicious circumstances and

judgment of the Hon'ble Supreme Court in Baleshwar

Mahto's case proceeded to convict and sentence the accused

based on the solitary evidence of PW1. Therefore, the said

judgment and order are unsustainable in law and warrants

interference by this Court.

- 27 -

CRL.A No. 100349 of 2021

Therefore following:

ORDER

Appeal is allowed.

The impugned judgment and order of conviction and

sentence passed against the appellant/accused is hereby set

aside. The appellant - accused is acquitted of the charges for

the offences punishable under Sections 302 and 323 IPC.

The accused shall be set at liberty forthwith, if his

detention is not required in any other case.

The fine amount deposited, if any, shall be refunded to

the accused.

The order of the trial Court with regard to disposal of the

properties is maintained.

Communicate the copy of this order to the trial Court and

the concerned prison forthwith.

Sd/-

JUDGE

Sd/-

JUDGE Vmb/jm