Parasappa Durgappa Madar vs The State Of Karnataka
2022 Latest Caselaw 9821 Kant

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                                 CRL.A No. 100377 of 2019


        IN THE HIGH COURT OF KARNATAKA,
                  DHARWAD BENCH

      DATED THIS THE 28th DAY OF JUNE, 2022

                      PRESENT
     THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                         AND
       THE HON'BLE MR JUSTICE M.G.S. KAMAL
     CRIMINAL APPEAL NO. 100377 OF 2019 (C)


BETWEEN:



1.   PARASAPPA DURGAPPA MADAR
     AGE: 34 YEARS,
     OCC: FARMER (NOW IN JC),
     R/O: VAJJAL,
     TQ: HUNGUND.



                                            ...APPELLANT

(BY SRI. NEELENDRA D. GUNDE, ADVOCATE)



AND:


1.   THE STATE OF KARNATAKA
     BY ILAKAL POLICE STATION,
     REPRESENTED BY
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                                      CRL.A No. 100377 of 2019


   STATE PUBLIC PROSECUTOR,
   HIGH COURT BUILDING,
   DHARWAD.



                                                     ...RESPONDENT

(BY SRI. V.M.BANAKAR, ADDL. S.P.P.)



     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO CALL FOR THE RELEVANT
RECORDS AND ALLOW THIS CRIMINAL APPEAL BY SETTING
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE     RECORDED     BY        THE   LEARNED         PRINCIPAL
DISTRICT AND SESSIONS JUDGE, BAGALKOT, IN S.C.
NO.27/2015, DATED 20.08.2019, THEREBY CONVICTING
THE APPELLANT FOR THE OFFENCE PUNISHABLE UNDER
SECTION 302 OF IPC AND SENTENCING HIM TO SUFFER
IMPRISONMENT    FOR    LIFE    AND        TO   PAY    A   FINE   OF
RS.25,000/- WITH DEFAULT CLAUSE OF 6 MONTHS.



     THIS   CRIMINAL    APPEAL       COMING     ON     FOR    FINAL
HEARING ON 01.06.2022 AND THE SAME HAVING BEEN
HEARD   AND    RESERVED        FOR        PRONOUNCEMENT          OF
JUDGMENT, THIS DAY M.G.S.KAMAL J., DELIVERED THE
FOLLOWING:
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                                           CRL.A No. 100377 of 2019


                              JUDGMENT

1. Present appeal is filed by the appellant/accused

No.1 being aggrieved by the judgment and order dated

20.08.2019 passed in Sessions Case No.27/2015 on the file of

the Principal District and Sessions Judge, Bagalkot (hereinafter

referred to as 'the Trial Court') by which the Trial Court has

convicted accused No.1 for the offence punishable under

Section 302 of the Indian Penal Code, 1860 (for short, 'IPC')

and sentenced him to undergo imprisonment for life and pay

fine of Rs.25,000/- and in default of payment, to undergo

simple imprisonment of six months and has acquitted accused

No.2 of the said offence.

2. The case of the prosecution is that; the deceased

Malakajagouda had illicit relationship with the wife of accused

No.1 namely Smt.Gangavva. That on 08.11.2014 at about

12.45 a.m. near Dyamavvana Katte, in the land bearing

R.S.No.40 belonging to the complainant situated in Vajjal

village, accused No.1 in furtherance of his common intention

along with accused No.2 murdered Malakajagouda by

assaulting him with an axe on the backside of his neck and

head while he was sleeping in the land.

CRL.A No. 100377 of 2019

3. The prosecution examined 21 witnesses as PWs.1 to

21 and exhibited 27 documents marked as Exs.P1 to P27 and

produced 11 material objects as MOs.1 to 11. On recording the

statement under Section 313 of Cr.P.C., accused Nos.1 and 2

denied all material evidence produced against them and

examined one Sunita Arun Kathari as DW1 and produced

document Ex.D1 in their defence evidence.

4. The Trial Court on appreciation of evidence passed

the impugned judgment and order convicting accused No.1 of

the offence punishable under Section 302 of IPC and acquitting

accused No.2 as above. Being aggrieved by the same, the

appellant is before this Court in this appeal.

5. Sri.Neelendra D. Gunde, learned counsel for the

appellant reiterating the grounds urged in the memorandum of

appeal submitted that the entire case of the prosecution is

based on circumstantial evidence and the same has not been

established beyond the reasonable doubt; prosecution has not

established the motive being alleged illicit relationship which

the deceased purportedly had with the wife of accused No.1,

PW1-brother of the deceased, PW5-mother of the deceased and

CRL.A No. 100377 of 2019

PW6-the uncle of the deceased have pleaded ignorance about

the said allegation of illicit relationship; that PW7-Prashant,

PW8-Basavaraj, who claim to have been sleeping beside the

deceased at the time of the incident have not seen the accused

assaulting the deceased, their evidence is therefore of no use

for the prosecution; there are inconsistencies in the versions of

the prosecution as on the one hand it is claimed that the

accused were allegedly identified in the light from the

Durgamma temple, while PW1 has stated that they were

identified in the light of the torch; that in the sketch at Ex.P22,

there is no mention of existence of light pole, thus, the very

theory of identification of the accused at the scene of offence is

doubtful; there is also inconsistency in the evidence of PW9 and

PW10 who claim to have seen accused holding the weapon

prior to the incident, in that, PW9 states that accused No.2 was

holding the axe whereas PW10 states accused No.1 was holding

the axe while only one axe has been recovered by the

prosecution; that when the Trial Court acquitted accused No.2

for want of evidence against him, there was no reason or

justification in convicting accused No.1 on the same set of facts

and circumstances when there is no eyewitness or direct

CRL.A No. 100377 of 2019

evidence in the matter; that the Trial Court has not appreciated

the line of defence adopted by the accused in bringing forth the

possibility of deceased having animosity with the other

residents of the village more particularly of Mahalingavva and

her husband Fakirappa Chalavadi on the issue of the deceased

raped Mahalingavva and a case in that regard having been filed

against the deceased; that the Trial Court has not appreciated

the conduct of PWs.7 and 8 who though claim to be present at

the scene of offence not having tried to either take the

deceased to the hospital or catching the accused. Hence, seeks

for allowing of the appeal.

6. On the other hand, Sri.V.M.Banakar, learned

Additional State Public Prosecutor justifying the judgment and

order passed by the Trial Court submitted that the prosecution

has established the guilt of the accused beyond reasonable

doubt. All the witnesses have supported the case of the

prosecution thereby the chain of events got completed pointing

out the only possibility of the accused having committed the

offence. PW7 has specifically spoken about the illicit

relationship the deceased had with Gangavva even before the

marriage and continuing to have the same after the marriage

CRL.A No. 100377 of 2019

show the grave circumstance of motive which led the accused

to commit the offence; that the medical evidence is consistent

with the ocular evidence and that the said evidence not having

been impeached, the prosecution has thus established the case

beyond reasonable doubt and that the appellant has not made

out any ground warranting interference. Hence, sought for

dismissal of the appeal.

7. Heard the learned counsel for the parties. Perused

the records. The point that arises for consideration is that;

"Whether the trial Court justified in passing the judgment and order, convicting and sentencing accused No.1 for the offence punishable under Section 302 of IPC, even while under the same facts and circumstances of the case, the trial Court acquitted accused No.2."

Cause of Death:

8. There is no dispute with regard to the fact that the

death of the deceased was a homicidal. It is useful at the

beginning to refer to the deposition of PW21-Dr.Naveenkumar.

Originally postmortem examination report at Ex.P24 was

prepared by one Dr.A.T.Kiragi, who is stated to have been

passed away. Consequentially PW21 who was acquainted with

the handwriting and signature of deceased-Dr.A.T.Kiragi, has

been examined by the prosecution. The postmortem report is

CRL.A No. 100377 of 2019

produced at Ex.P24. The injuries found on the dead body as

noted in the postmortem report are as under:

1. Cut lacerated wound in the occipital area of the head, horizontal in direction, clotted blood present around the wound. Size 5 inch x 3/4th inch. Edges are smooth, regular and contused. They are retracted and gaping present underlying muscles cut and occipital bone exposed. There is transverse of the occipital bone, with spiracles of bone pierced inside. Meninges torn and occipital lotre of brain was torn, ecchymosed.

2. Cut lacerated wound on the nape of the neck. Horizontal, extending from middle of the neck to the posterior boarder of left stern mastered muscle, clotted blood present in the wound, size 5 inch X 3/4th inch. Underlying muscles torn. Underlying 7th vertebra was fractured. Spinal cord congested."

9. The opinion as to the cause of death stated in the

postmortem report is "shock as a result of injuries sustained on

the head and neck (and to the brain). The time lapse since

death is around 6-24 hours. The injuries may be caused by

sharp weapon."

10. Ex.P6 is the report of examination and opinion

regarding the seized weapon. The Senior Specialist has found

that the injuries mentioned in the postmortem report of

Malakajagouda, could be caused by an axe which is produced

as per MO.10 and it can cause the death.

11. From the aforesaid evidence of PW21 supported by

the postmortem report Ex.P24 and opinion as per Ex.P26, it is

CRL.A No. 100377 of 2019

clear that the death of deceased - Malakajagouda was a

homicidal.

Evidence Produced by the Prosecution:

12. The prosecution having established the cause of

death as above being homicidal is required to prove the guilt of

the accused in committing the offence beyond reasonable

doubt. In that, the prosecution has examined PW1-

Mr.Siddanagouda Patil-the brother of the deceased who lodged

the complaint at Ex.P1 before PW19. In his deposition, PW1 has

stated that on 07.04.2014 at about 10.00 p.m., his elder

brother Malakajagouda after having his dinner, went to his

lands to guard the harvested onion. PWs.7 and 8 had already

gone to lands. PW1-his mother and his sister-in-law were at

home. In the night at 1.00 a.m., PW8 came rushing to his

house and informed him that the accused had assaulted the

deceased on the backside of his neck and head and caused

severe blood injuries. Upon hearing the same, PW1- his mother

and PW6-Doddanagouda, his uncle, who resides opposite to the

house of the deceased, went to the land. At that time,

Malakajagouda was screaming. He had sustained the injuries

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CRL.A No. 100377 of 2019

on account of assault by an axe behind his neck and to his

head. On enquiry, PW7 informed him that he was asleep and

woke up to the screaming of Malakajagouda. When he saw

accused No.1 was running away with axe in his hand along with

his brother Kempanna-the accused No.2. Both of them ran

through the Durgamma temple. That PWs.7 and 8 had seen the

accused with the torch light and also in the light from

Durgamma temple. Thereafter, PW1 along with others took the

injured in a cruise vehicle to Ilakal and on the way he passed

away at 1.30 a.m. on 08.11.2014. PW1 further states that he

heard from the villagers about his brother having illicit

relationship with the wife of accused No.1, which was the

reason for the accused to commit the murder of his brother.

PW1 identified the material objects such as blood stained

pillows, jamkhana, white and black underwear, white baniyan,

lungi, shirt marked as MOs.1 to 6. He also identified a pair of

chappal of his brother marked as MO.7. In the cross-

examination, he has admitted that there is one Fakirappa

Chalavadi in the village and that there was a case against the

deceased brother Malakajagouda for having raped the wife of

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CRL.A No. 100377 of 2019

said Fakirappa Chalavadi. However, he has deposed that his

brother was acquitted as he was found innocent.

13. PW2 is the witness to the inquest panchnama at

Ex.P2. In the cross-examination, the said witness has stated

that he had gone to the hospital on hearing the death news of

the said Malakajagouda. He is not aware as to what the Police

had written and he has not read the contents of the

panchanama.

14. PW3 is the witness to the spot panchanama Ex.P4,

for panchanama of recovery of clothes at Ex.P6 and recovery of

MOs.1, 2, 7 to 9. The said witness in the cross-examination

stated that piles of onion were about 80 feet away from

Dyamavana Katte and if one stands on the other side, it was

not possible to see the movement of people towards the

northern side. He has stated that he has not read the contents

of the panchanama.

15. PW4 is the witness to panchanama Ex.P7 drawn

while recovering the axe-MO10 apparently at the instance of

accused No.1. Before the trial Court, the said witness pointing

out at accused No.2 has identified him to be accused No.1.

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CRL.A No. 100377 of 2019

16. PW5 is the mother of the deceased. She has

reiterated the contents of the complaint. The said witness has

pleaded her ignorance with regard to the deceased-

Malakajagouda having illicit relationship with the wife of

accused No.1. She has also expressed her inability to name the

persons who had spoken about the illicit relationship between

the deceased and the wife of accused No.1.

17. PW6 is a relative of deceased. In the cross-

examination, the said witness has deposed that he had no

personal information regarding the deceased having illicit

relationship with the wife of accused No.1 and that he learnt

about the same through the Police.

18. PW7 is also a relative of the deceased, who claims

to have been present at the place of incident. The said witness

has stated that since Gangavva the wife of accused No.1 was

working in the lands of the deceased, he knew about her

relationship with the deceased and that the said matter was

known to the villagers. That accused No.1 had also seen the

deceased and Gangavva together. The said witness has stated

that on 07.11.2014, he and Basavarj-PW8 went to the land at

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CRL.A No. 100377 of 2019

9.00 p.m. and Malakajagouda came there at about 10.00 p.m.

and they slept by the side of deceased and at about 12.30

a.m., he and PW8 woke up to the screaming of Malakajagouda

and heard accused Nos.1 and 2 saying that they had assaulted

the deceased and that he would die. That PW8 had used his

torch and they saw accused Nos.1 and 2 going towards the

village in the light from Durgamma temple. That he asked PW8

to go home and inform about the incident and while he

remained at the spot to look after the injured Malakajgouda. He

further stated that because of the illicit relationship which the

deceased had with the wife of accused No.1, they had assaulted

him. In the cross-examination, the said witness has stated he

went to the land at 10.00 p.m. Malakajgouda came there at

11.00 p.m. All three of them slept towards the east west

direction. Malakajgouda slept on his right hand side and PW8

slept on his left hand side. Malakajgouda was sleeping at a

distance of about 3 to 5 maaru. Malakajgouda had brought a

bed to sleep. That he had a torch and he neither used his torch

and nor did he try to catch the accused. That they slept about

20 to 30 feet away from Durgamma temple from where there

was sufficient light to the place where they were sleeping and

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CRL.A No. 100377 of 2019

that there was no need for any other light as everything was

seen from the temple light. That he learnt about the illicit

relationship of Malakajgouda with Gangavva from villagers.

That Police did not enquire him in the station and that he had

not given any statement about he having seen the accused

going away after assaulting the deceased. That he has not

stated about he having seen the accused in the light of

Durgamma temple.

19. PW8 is the driver of the deceased, who has also

spoken about the deceased having relationship with the wife of

accused No.1 and accused No.1 being aware of the same. His

deposition is also in the lines of the deposition of PW7. In the

cross-examination, the said witness has stated that he and

PW7 went to the land of the deceased at 8.00 p.m. after

finishing their dinner. Deceased Malakajgouda was already in

the land. They were talking and slept at about 01.00 a.m.

Malakajgouda slept at a distance of one maaru. Deceased slept

between him and PW7. That pile of onion was up to the knee

level and that a person coming from Durgamma temple had to

cross the pile of onion to reach the spot where Malakajgouda

was sleeping. Malakajgouda was sleeping on manure bag. That

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CRL.A No. 100377 of 2019

except him nobody had a torch. The light from the Durgamma

Temple was sufficient to see the people moving around. He has

stated that the torch which he used to see the accused is still

with him at his home.

20. PW9 is a witness who has claimed to have last seen

accused Nos.1 and 2 at about 8.00 p.m. on 07.11.2014. He has

stated that at about 8.00 p.m. he, PW10 and one Muttappa

Sangappa along with the accused persons were sitting and

talking on the Durgamma temple katte. He also stated to have

seen accused No.2 carrying the axe. He has pleaded ignorance

about the reason for the murder. In the cross-examination, he

has stated that everyone has to pass through the Durgamma

temple to go towards the land of Malakajagouda. That he has

not seen Malakajagouda and his relative Prashantgouda-PW7

and Basavaraj Madar-PW8 going towards the land of

Malakajagouda.

21. PW10 is another witness who also has stated that

on the date of the incident, he along with PW9, Muttappa

Sangappa and the accused persons were sitting and talking

upto 9.30 p.m. Thereafter he went to his home and the accused

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persons went towards the land. He has stated to have seen the

axe in the hands of accused No.1. In the cross-examination,

the said witness stated to have seen Malakajagouda going

towards his land at about 11.00 p.m. He further states that he

has not seen Prashantgouda-PW7 or Basavaraj-PW8 going

towards the land. He has further stated that after finishing their

talks, he went to his home and accused went towards the land.

22. PW11 is a witness who claimed to have seen

accused Nos.1 and 2 after the incident at about 1.00 a.m. when

he woke up to answer nature's call and he claimed to have

seen the axe in the hands of accused No.1

23. PW12 is the wife accused No.1 who turned hostile.

24. PW13 is Dr.Radha who has spoken about having

examined MOs.1, 2, 3, 5 to 9 and given the FSL report as per

Ex.P11.

25. PW14 is Yallavva, a relative of the accused who has

turned hostile. In the cross-examination by the prosecution, it

is suggested that on 07.11.2014, when she was working in the

land of the deceased, the deceased hugged her from back and

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sought sexual favours and that she had screamed and escaped

from him. The said suggestion is denied by her.

26. PWs.15, 16, 17 and 18 are the official witnesses

who have spoken about carrying the FIR Ex.P14, the body to

the hospital for postmortem and having received the report and

preparing the sketch-Ex.P17, having taken the blood stained

items to FSL, Belgaum and obtaining report at Ex.P18.

27. PW19 who has spoken about receiving the

complaint on 08.11.2014 at 7.10 a.m. and registering the case

in Crime No.144/2014 and having received the memo from the

Investigating Officer to arrest the accused as per Ex.P20 and

arresting of accused No.1 on 10.11.2014.

28. PW20 is the Investigating Officer who has spoken

about the process of investigation, preparing the spot

panchanama, inquest report, seizure of material objects,

preparing the sketch of the spot, taking photographs, receiving

postmortem report, receiving the report of FSL and recording

the voluntary statement of the accused and recovering the axe

at the instance and information provided by the accused etc. In

the cross-examination, the said witness has admitted that in

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Ex.P22, there is no mention with regard to the electricity pole.

He has also stated that PWs.7 and 8 have not given any

statement before him regarding them having seen the accused

in the light of the torch. He has further stated that as per the

investigation, the torch was with accused No.2 and accused

No.1 did not have the torch. He further stated that as per

investigation, PWs.7 and 8 did not have the torch with them.

He has stated that he has taken the torch from one Laxman

Jalgar who has not been cited as witness in the charge sheet.

29. After closing of the evidence, the Trial Court

recorded the statement of the accused under Section 313 of

Cr.P.C. The accused in the defence, examined one Dr.Sunita,

exhibited discharge card as Ex.D1. The said witness has

deposed that on 10.10.2014 the wife of accused No.1 had

undergone cesarean process for delivery and was discharged on

15.10.2014 and that the person undergoing such process would

not be able to have any physical relationship for about 3

months.

Analysis:

30. Thus, on the basis of the above, the prosecution

has attempted to establish the guilt of the accused. As noted

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above, there are no eye witnesses to the incident. As regards

the motive, the prosecution has setup that deceased had illicit

relationship with the wife of accused No.1 and accused No.1

having learnt about the same, had decided to kill the deceased

and with that common intention, he along with accused No.2

assaulted the deceased with axe while he was asleep in his

lands guarding onion crop. PWs.7 and 8, being the relative and

the driver of the deceased claim to have been present at the

time and scene of the offence. However, not having seen the

offence.

31. In the above circumstances, it is imperative to have

a close scrutiny of the evidence produced by the prosecution to

prove the guilt of the accused. In the complaint at Ex.P1, there

is no whisper regarding the motive of the accused persons for

commission of the offence. There is also no reference with

regard to overt act specifically attributing on the accused

persons. There is no clarity as to which of the accused actually

assaulted the deceased. PWs.7 and 8 purported to have seen

the accused persons while they were allegedly going away after

assaulting the deceased from the scene of offence in the light

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from Durgamma temple. Except this, there are no other details

mentioned in the complaint.

32. PW1 in his evidence apart from reiterating the

contents at Ex.P1, has further stated that PWs.7 and 8 had

informed him of they had seen the accused with their torch

light and also in the light from Durgamma temple. Thus, there

is an improvement with regard to PWs.7 and 8 seeing the

accused with the torch light. As regards the motive, PW1 has

stated that he learnt from the villagers that the deceased had

illicit relationship with the wife of accused No.1 and for this

reason, they had killed his brother. Thus, the said witness is

merely a hearsay witness.

33. PW5-the mother of the deceased in her deposition

has stated that she was informed by PW7-Prashant about the

incident. She has also stated that she learnt from the villagers

about deceased having relationship with the wife of the accused

being the reason for the murder. PW2 is also a hearsay

witness.

34. PW7 in his cross-examination has stated that he as

well as Basavaraj-PW8 had torch with them. In the cross-

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examination, he has admitted that there was sufficient light

from Durgamma temple and that there was no need for any

other source of light. PW8 in his cross-examination has stated

that except him, nobody had a torch.

35. It is pertinent to note as per the deposition of

PWs.7 and 8, the heap of onion was up to the knee level.

Durgamma temple was situated on the northern side of the

place of the incident. PWs.7, 8 and the deceased were sleeping

on the other side of the onion heap. According to PW8, light

from the temple was not falling near the onion heap and to

reach to the place of incident, one has to cross the onion heap.

PW7 has stated that he and PW8 reached the land at 10.00

p.m. while deceased reached at 11.00 p.m. and deceased slept

on his right hand side while PW8 slept on his left hand side at a

distance of 2 to 3 maaru (the word "maaru" in Kannada means,

measure of a man with extended arm. On an average, one

maaru would be approximately 5 feet to 5½ feet). While PW8 in

his deposition has stated that he and PW7 went to the spot at

about 08:00 p.m. and deceased Malakajgouda was already

there. According to PW8, they were talking and slept at about

01.00 a.m. That they were sleeping at a distance of about one

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maaru and the deceased Malakajgouda slept between PWs.7

and 8. Further, according to PW7 deceased had brought a bed

to sleep while according to PW8 deceased was sleeping on a

manure bag. According to PW7, himself and PW8 had torch.

While according to PW8, only he had a torch. According to PW7,

he learnt about the illicit relationship from the villagers. Both

PWs.7 and 8 have pleaded ignorance about the owner of the

neighbouring lands.

36. From the aforesaid deposition of the PWs.7 and 8, a

reasonable doubt that creeps in the mind is whether at all their

version with regard to they seeing the accused while they were

going away allegedly after commission of the offence can be

relied upon. As seen above, there is contradiction and

inconsistency with regard to the timings, situation, source of

light and the direction of the scene of offence from the

Durgamma temple. Though PW7 has stated that deceased had

brought bed to sleep and PW8 stated that deceased was

sleeping on a manure bag, but as per Crime Detail Form at

Ex.P4, the Police seem to have found blood stained bed and

pillow. However, while listing the material objects seized from

the spot, the Police have mentioned about a blood stained

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jamkhana and pillow. The onion heaps upto knee level which

the deceased, PWs.7 and 8 were guarding on the date of

incident is nowhere in site as could be seen in the photographs

at Ex.P5, purportedly taken while drawing the mahazar at

Ex.P5 no heaps of onion anywhere near the site.

37. As regards the theory of torch, PW1 in his complaint

has not stated about PWs.7 and 8 having seen the accused in

the torch light. PW7 in his deposition has stated that he and

PW8 both had torch in their hand while PW8 states only he had

the torch in his hand. Be that as it is, the prosecution has

neither seized nor produced the torch which were apparently

used by PWs.7 and 8 to see the accused. Both the witnesses

have stated that they saw the accused in the light from

Durgamma temple. The prosecution has not obtained any

information/evidence from the concerned electricity supply

company with regard to supply of electricity on the date of the

incident particularly supply of electricity to Durgamma temple.

It is necessary to note that as per the prosecution version, they

seized a torch as per Ex.P9. In Ex.P9 it is stated that accused

No.1 had handed over his torch to one Sri.Laxman Hanumappa

Jalagar after the incident and that said Sri.Laxman Hanumappa

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Jalagar had handed over the same in the Police Station on

11.11.2014. As seen above, all the witnesses, more particularly

the last seen witnesses namely PWs.9 and 10 have stated that

accused did not have torch in their hand. The said Laxman

Hanumappa Jalagar has not been cited as a witness.

38. It is also pertinent to note that Ex.P22 is a rough

sketch, in that there is no mention with regard to existence of

any light or electricity pole near the place of incident. Contrary

to the same, Ex.P17 is sketch prepared by PW17 in which two

electricity poles are shown, one on the north eastern direction

and one on the north western direction from the place of

incident. There is no mention of Durgamma temple in Ex.P17.

It is also pertinent to note that the distance between the

electricity pole shown on the north eastern side and the place

of incident is 42.52 metres. (about 140 feet) and between the

electricity pole shown on the north western side and the place

of incident is 48.80 metres (about 160 feet). The rough sketch

at Ex.P22 and sketch at Ex.P17 do not corroborate with the

evidence of PWs.7 and 8. Further PW17 in his cross-

examination has stated that he has not seen if there were bulbs

in the electricity poles shown by him in the sketch and that if

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the light from the said bulbs would reach up to the place of

incident. This aspect of the matter is very crucial for

determination of the guilt of the accused as this is the only

strong circumstance which would establish the identity of the

accused as per PWs.7 and 8 who claim to have seen the

accused from the light of the temple. The chain of

circumstances would probably get completed only on the

prosecution furnishing the acceptable evidence on this aspect of

the matter.

39. The Trial Court however at paragraphs 21 and 22 of

its judgment though has dealt with the evidence of PWs.7, 8,

17 and 23 with regard to the theory of PWs.7 and 8 seeing the

accused while they were going away after commission of

offence in the light from Durgamma temple states that they are

the minor discrepancies liable to be brushed aside as they do

not go to the root of the case. In our considered opinion, the

entire case of the prosecution revolves around the evidence of

PWs.7 and 8 who claim to have seen the accused as narrated

above. But for their evidence, the further story of prosecution

cannot be built upon. As already noted, in the complaint and in

the evidence, PW1 has not whispered anything about the

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motive. Which theory also appears to be an improved version

of the prosecution. It is to be noted that PWs.7 and 8 were

apparently with the deceased to guard the onion crop in the

lands which postulates PWs.7 and 8 to be completely alert. It

is therefore beyond the comprehension that PWs.7 and 8 woke

up only to the screaming of the deceased after accused

assaulting the deceased and that too when they were going

away near the temple which is about 50 to 60 feet away from

the place of incident. This further gives rise to serious doubt

with regard to the very possibility of the accused assaulting the

deceased as claimed by the prosecution.

40. The last seen witnesses namely PWs.9 and 10 have

claimed that they were talking with the accused persons and

have seen the axe in the hands of both accused Nos.1 and 2.

PW9 in the cross-examination has stated that they were talking

up to 8.00 p.m. and thereafter went to his home for dinner. He

has stated to have seen axe in the hands of Kenchappa

(accused No.2). He has stated that he has not seen

Malakajgouda, Prashant (PW7) or Basavaraj (PW8) going

towards the land. PW10 on the other hand has stated that all of

them were talking up to 9.30 p.m. and he has seen axe in the

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hands of accused No.1. In the cross-examination, he has

deposed that he has seen Malakajgouda going towards his land

and he was empty handed and it was about 11.00 p.m. He

further states that he has not seen Prashant (PW7) or

Basavaraj (PW8) going towards the land. This contradiction in

the versions of PWs.9 and 10 gives rise to serious doubt with

regard to the truth of their claim. Besides it is difficult to

believe that person intending to commit an offence would sit

with his known people and talk for hours with the weapon in

hand and thereafter go and commit the offence.

41. PW11 claims to have seen the accused person at

about 1.00 a.m. while he was awake to attend the nature's call.

He claims to have seen axe in the hands of accused No.1. As

per PWs.7 and 8, they were talking and awake up to 1.00 a.m.

This evidence of the purported last seen witnesses, even if it is

accepted, the same would not complete the chain of events

justifying holding the accused No.1 guilty of offence of murder.

Needless to mention the inconsistency in the versions of the

witnesses creating extreme doubts on their reliability. This

contradiction in their version gives rise to a serious doubt with

regard to the last seen theory propounded by the prosecution.

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42. In the light of the aforesaid facts and circumstances

of the case, the theory of illicit relationship between the

deceased and the wife of the accused No.1 not proved beyond

reasonable doubt. In the cross-examination, the defence has

suggested about the deceased having been charged of rape of

one Mahalingavva wife of Fakirappa Chalavadi and a case in

S.C. No.67/2005 having been filed against him. The motive

circumstances of deceased having illicit relationship with the

wife of accused No.1 is being stated only by PW8 who as noted

above is the interested witness. In view of the contradiction

and unreliability of their version of they having seen the

accused after the incident, their version regarding the motive

also becomes unreliable.

43. As regards recovery of the weapon, the prosecution

has produced Ex.P7 the mahazar drawn, while seizing the axe

allegedly used by the accused for committing the offence,

purportedly upon the information given by the accused in their

voluntary statement. As per the said mahazar, the accused

went near a place called Hirehalla and picked up the axe from a

thorny bush. The said mahazar is drawn in the presence of PW4

and another witness by name Venkateshgouda. Photographs

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taken while drawing the said mahazar is at Ex.P8. PW4 in his

evidence has stated that the said axe was buried in the mud

and the accused removed it and handed over to the police in

his presence. PW4 in the cross-examination pointed at accused

No.2 identifying him to be Parasappa-the accused No.1. The

deposition of PW4 read in the light of the contents of Ex.P7 and

the photographs as seen in Ex.P8 do not inspire the confidence

of the very story of recovery of axe at the alleged information

given by the accused No.1.

44. It is settled law that when the story narrated by the

witness in his evidence before the Court differs substantially

from that set out in his statement before the Police and there

are large number of contradictions in his evidence not on mere

matters of detail but on vital points, it would not be safe to rely

on his evidence and it may be excluded from consideration in

determining the case of the accused (Namdeo Daulata

Dhayagude and others vs. State of Maharashtra reported

in AIR 1977 SC 381). As noted above, it is not mere omission

or contradiction but the very essence of the case of the

prosecution.

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45. The Trial Court on the same set of charges and

evidence has thought it appropriate to acquit accused No.2 for

the reasons of there being no incriminating material evidence

against accused No.2 justifying his conviction. This being so, it

is incomprehensible that the Trial Court thought it appropriate

to convict the accused No.1 on the same set of charge and

evidence. This is particularly in view of the fact that none of the

witnesses have spoken attributing any specific overt act either

on the accused No.1 or accused No.2. Therefore, the reasoning

and conclusion arrived by the trial Court holding accused No.1

guilty of murder of the deceased by assault with axe on the

backside of his neck and head becomes extremely doubtful.

46. The ocular evidence has to be corroborated with the

medical evidence, if there are inconsistency, the prosecution

cannot rely only on the medical evidence to establish the guilt

of the accused. In the instant case, though the medical

evidence and the opinion as per the forensic report would

indicate that the injuries sustained by the deceased could have

been caused by the axe as per MO.10, it is not possible to link

the offence to the accused as the deposition of witnesses and

the material evidence produced by the prosecution is not

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sufficient enough to prove the guilt of accused No.1 besides

there being serious doubts on their reliability.

47. For the aforesaid reasons, we are of the considered

opinion that the prosecution has failed to prove the guilt of the

accused beyond reasonable doubt and the trial Court is not

justified in passing the judgment and order convicting accused

No.1 for the offence punishable under Section 302 of IPC.

Consequently, the following:

ORDER Appeal is allowed.

The impugned order of conviction and sentence passed

against the appellant/accused No.1 for the offence punishable

under Section 302 of IPC is hereby set aside.

Appellant/accused No.1 is acquitted of the charge for the

offence punishable under Section 302 of IPC. Accused No.1

shall be set at liberty forthwith, if his detention is not required

in any other case.

The fine amount deposited if any by accused No.1, shall

be refunded to him.

The rest of the order is maintained.

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The Registry shall communicate this order forthwith to

the Trial Court and the concerned Jail Authorities.

Pending interlocutory applications stood disposed off.

Sd/-

JUDGE

Sd/-

JUDGE

KGK/RSH