Karnataka High Court
Kenchanagoudra vs The State Of Karnataka on 17 March, 2022
Bench: Suraj Govindaraj, J.M.Khazi
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
Crl.A. No.100106/2016
BETWEEN
1. KENCHANAGOUDRA
BASAVARAJAPPA @ BASAPPA
S/O VIRUPAKSHAPPA,
AGE: 54 YEARS,
OCC: AGRICULTURE,
2. GIRISH S/O KENCHANAGOUDRA BASAPPA
AGE: 28 YEARS,
OCC: AGRICULTURE,
3. KANTESH
S/O KENCHANAGOUDRA BASAPPA
AGE: 26 YEARS,
OCC: AGRICULTURE,
4. KARIYAPPA S/O VIRUPAKSHAPPA,
AGE: 44 YEARS,
OCC: AGRICULTURE,
5. RUDRAPPA S/O VIRUPAKSHAPPA,
AGE: 45 YEARS,
OCC: AGRICULTURE,
6. RAMESH S/O VIRUPAKSHAPPA,
AGE: 36 YEARS,
Crl.A. No.100106/2016
2
OCC: AGRICULTURE,
ALL ARE R/O: HOLALU VILLAGE,
TQ: HADAGALI,
DISTRICT: BALLARI.
...APPELLANTS
(BY SRI.K L PATIL, ADVOCATE)
AND
THE STATE OF KARNATAKA,
THROUGH ITTAGI PS,
HADAGALI CIRCLE,
BALLARI
REP BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL SPP.)
THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF CR.P.C.,
PRAYING TO CALL FOR THE RECORDS IN SC NO.89/2011 ON THE
FILE OF HON'BLE III ADDL. DIST. & SESSIONS JUDGE, BALLARI
SITTING AT HOSAPETE AND TO ALLOW THIS CRIMINAL APPEAL BY
SETTING ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 28/3/2016 AND ORDER OF SENTENCE DATED 1/4/2016
PASSED BY THE III ADDL. DIST. & SESSIONS JUDGE, BALLARI,
SITT, G AT HOSAPETE IN SC NO.89/2011 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 148, 448, 302, 307 R/W 149 OF
IPC AND ACQUIT THE APPELLANT OF THE OFFENCES PUNISHABLE
UNDER SECTIONS 148, 448, 302, 307 R/W 149 OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING UP FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, SURAJ GOVINDARAJ J.,
DELIVERED THE FOLLOWING:
Crl.A. No.100106/2016
3
JUDGMENT
1. The appellants are before this Court challenging
the judgment of conviction and order of sentence
passed by the III Additional District and Sessions
Judge, Ballari sitting at Hosapete (for brevity, 'trial
Court') in S.C.No.89/2011 dated 28.03.2016.
2. By way of the said judgment, the
appellants/accused were convicted of the offences
punishable under Sections 148, 448, 302 read with
Section 149 of the Indian Penal code (for brevity,
'IPC') and they were acquitted for the offences
punishable under Sections 143, 147, 504, 324,
326, 323, 506 read with Section 149 of IPC and
sentenced to undergo simple imprisonment for one
year with fine of Rs.500/- each, in default thereof
to undergo simple imprisonment for 10 days for
offence under Section 148 of IPC; to undergo
Crl.A. No.100106/2016
simple imprisonment for six months with fine of
Rs.500/- each, in default thereof to undergo simple
imprisonment for 10 days for offence under
Section 448; to undergo life imprisonment with
fine of Rs.10,000/- each, in default thereof to
undergo simple imprisonment for one year for
offence under Section 302; to undergo simple
imprisonment for five years with fine of Rs.5,000/-
each, in default thereof to undergo simple
imprisonment for six months for offence under
Section 307 of IPC; The accused entitled for set off
of the earlier period of detention. A sum of
Rs.50,000/- was ordered to be given to the family
of the deceased Kamaraj @ Honnappa as
compensation under Section 357(A) of Cr.P.C.
3. The case of the prosecution is that:
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3.1. On 25.07.2010, at about 7.00 p.m. in front of
milk dairy of Holalu village, there was a
quarrel between PW.13/CW.17-Eshwara
Gouda and accused No.3-Kantesh and
accused No.1-Kenchanagoudra
Basavarajappa the accused for mixing water
in the milk.
3.2. Thereafter, at around 12.00 mid night on the
same day, all the accused with a common
object of eliminating the said PW.13/CW.17-
Eashwargouda and his henchmen, formed an
unlawful assembly in front of the house of the
complainant PW.4/CW.1-Kadlenni Basappa,
committed rioting by holding sticks, stones,
axe, abused them in indecent words, insulted
them and provoked them to break the public
peace, threatened them with life and
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criminally trespassed into the house of
PW.4/CW.1-Kadlenni Basappa.
3.3. PW.7/CW.11-Manjappa was dragged from his
bedroom to the drawing room and accused
No.2-Girish tried to assault him on his head
with an axe and caused injuries on his left
hand when he tried to avoid the said blow.
Accused No.4-Kariyappa assaulted him with
handle of axe and inflicted teeth bite injury
on his left chest. Accused No.4-Kariyappa
assaulted PW.8/CW.12-Veerappa with stick
and inflicted bleeding injury. Accused No.1-
Kenchanagoudra Basavarajappa abetted to
commit the murder of deceased Kamaraj @
Honnappa, who had come along with
PW.11/CW.13-Lakappa, PW.12/CW.14-
Basavaraj, CW.15-Nagaraj. CW.16-
Basavarajappa and accused No.6-Ramesh
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pushed PW.12/CW.14-Basavaraja to the
ground and assaulted with stick on right leg.
Further, accused No.3-Kantesh assaulted the
deceased Kamaraj @ Honnappa with axe on
his head and at that time when
PW.11/CW.13-Lakkappa came to rescue the
deceased, accused No.2-Girish and accused
No.3-Kantesh grabbed him, while accused
No.5-Rudrappa assaulted him with a stone.
Further, accused No.4-Kariyappa assaulted
the said PW.11/CW.13-Lakappa's left leg with
stick and accused No.3-Kantesh inflicted
teeth bite injuries on his right forearm and
attempted to commit their murder and left
the spot.
3.4. Thereafter, the deceased Kamaraj @
Honnappa along with PW.11/CW.13-Lakappa
and other injured were taken in an
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ambulance to the Government Hospital,
Hadagali. PW.11/CW.13-Lakappa shifted the
deceased Kamaraj @ Honnappa to City
Central Hospital, Davanagere and said
deceased Kamaraj @ Honnappa died on
01.08.2010 at 2.20 p.m. due to the said
injuries. The accused had inflicted grievous
injuries to PW.7/CW.11-Manjappa and simple
injuries to PW.8/CW.12-Veeranna,
PW.11/CW.13-Lakappa, PW.12/CW.14-
Basavaraj and thereby have committed the
aforesaid offences.
4. It is on that basis that the complainant
PW.4/CW.1-Kadlenni Basappa filed a complaint
before PW.20/CW.32-Shadakshari Patil, ASI of
Police, Holalu on 26.07.2010 at 1.00 a.m in the
night. When he sent the said complaint through
P.C.298 to Hire Hadagali Police Station, on receipt,
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PW.21/CW.33-D.Hanumanthappa, PSI of Hire
Hadagali Police Station had registered the
complaint in Crime No.41/2010 for the offences
under Sections 143, 147, 148, 324 448, 504 506
read with Section 149 of IPC and sent the FIR to
the jurisdictional Magistrate through
PW.19/CW.29-Manjunatha.
5. On being informed about the death of Kamaraj @
Honnappa on 01.08.2010, he addressed a
requisition for addition of offence under Section
302 of IPC to the Magistrate and considering that
the offence now to be dealt with was one under
Section 302. Further investigation was handed
over to PW.22/CW.34-Prakash Rathod, CPI, who
upon investigation, submitted a charge sheet
against the accused showing accused Nos.1 to 6 as
absconding.
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6. The Committal Court took cognizance of the
offences. Since the accused earlier had been
released on bail, their presence was secured, a
copy of the charge sheet along with documents are
furnished to them. On hearing both sides, the
matter was committed to the Principal District and
Sessions Judge, Ballari, who made it over to Fast
Track Court-III, Hosapete, which was subsequently
transferred to the III Additional District and
Sessions Judge, Ballari sitting at Hosapete. The
accused entered appearance through their
advocate. After hearing both sides, charges were
framed, read over and explained to the accused in
a language known to them i.e. Kannada. The
accused pleaded not guilty and claimed to be tried.
7. During the course of trial, the prosecution
examined in all 24 witnesses (PWs.1 to 24), got
marked 16 documents (Exs.P.1 to P.16) and 8
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material objects (MOs.1 to 8) in support of its
case.
8. After closure of the side of the prosecution, the
evidence as against the accused was put across to
them, they denied the same, however they did not
lead any evidence. After hearing both sides the
trial Court passed the impugned judgment of
conviction and order of sentence, which is under
appeal.
9. Sri.K.L.Patil, learned counsel appearing for the
appellants/accused submits as under:
9.1. There are several inconsistencies in the
events as narrated by the complainant, as
such the evidence of the complainant ought
to have been discarded. There is no clear and
clinching evidence regarding the incident
alleged to have taken place in the evening as
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also in the night. The prosecution has been
unable to prove beyond reasonable doubt the
guilt of the accused. The order of conviction
is passed entirely on the basis of the
interested witnesses who are relatives of the
deceased.
9.2. The prosecution has failed to prove the
genesis of the incident by relying on cogent
and reliable evidence. Therefore, the
conviction order passed by the trial court is
contrary to the material placed on record.
9.3. The prosecution has not examined any
independent witnesses. As such, the evidence
of all interested witnesses is required to be
discarded and if so discarded, there would be
no evidence available on record to impute
any blame on the accused.
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9.4. The prosecution case as regards the
occurrence of the incident is in a different
manner, while the incident occurred in a
different manner. The motive being attributed
is the incident which occurred in the evening,
in front of the milk dairy. The prosecution has
failed to prove the motive. There is delay in
filing of the FIR. More so, there is a delay in
the FIR being received by the Magistrate
inasmuch as the FIR was registered at 3.00
am on 26.7.2010 but was received by the
Magistrate at 6.00 pm on 26.07.2010.
9.5. Though the allegation is that the incident
occurred inside the house of PW.4/CW.1-
Kadlenni Basappa, there are no bloodstains in
the said house as per the spot panchanama.
There were no scientific examinations
conducted in the said house, to establish if
Crl.A. No.100106/2016
the incident had occurred in the house of
PW.4/CW.1-Kadlenni Basappa as alleged. He
submits that the incident occurred on the
road in front of the house of PW.4/CW.1-
Kadlenni Basappa and not inside the house of
PW.4/CW.1-Kadlenni Basappa.
9.6. The incident actually occurred at 10.30 p.m.
on the road leading to the grain trashing yard
near the house of the complainant. There is
no incident which had occurred at 12.00
midnight. There is existence of case and
counter case of the same incident which
occurred at the same time as regards which a
different interpretation is sought to be given
by the complainant.
9.7. The medical evidence regarding the deceased
is very suspicious inasmuch as Ex.P.7-wound
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certificate was issued at 11.00 p.m. by
PW.16/CW.26-Dr.Raju wherein it is stated
that the deceased was assaulted in his house.
By referring to Ex.P.6 he submits that it being
the wound certificate of PW.7/CW.11
Manjappa the same also indicates that the
incident occurred at 11.00 p.m. As per Ex.P.7
there was a sutured wound measuring 7x1
c.m., whereas in terms of Ex.P.9-postmortem
report the wound is stated to be 15 inches
sutured wound.
9.8. By referring to the evidence on record, he
states that there is only one incident that has
occurred, that is at 10.30 p.m. There is no
evidence on record to establish the incident
at 12.00 midnight. By referring to Ex.P.3-
Complaint, he submits that there is
interpolation in the complaint inasmuch as
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there is insertion of the word 'Kodli' and
alteration of time to '3.00 a.m.' By referring
to Ex.P.1-spot panchanama, he submits that
assault was by handle of the 'Kodli' and sticks
on 26.07.2010 between 2.00-2.45 a.m.
Though police were at the site, no
panchanama was drawn.
9.9. Though allegations are made that the door is
broken and or the latch is broken, there is no
evidence led in regard thereto. No details as
regards any bloodstains on the floor or the
walls of the house of PW.4/CW.1-Kadlenni
Basappa has been produced. Furthermore, no
photographs have been taken inside the
house of PW.4/CW.1-Kadlenni Basappa,
thereby indicating that the entire story or the
event having occurred in the house of
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PW.4/CW.1-Kadlenni Basappa to be
completely false.
9.10. There are material inconsistencies between
the complaint and the evidence of
PW.4/CW.1-Kadlenni Basappa inasmuch as in
the complaint it is not mentioned which of the
overt acts were committed by whom. The
case of the prosecution is sought to be
supported by such inconsistencies. Though
the FIR is stated to be dispatched on
26.07.2010 at 7.00 a.m., it has reached the
Court only at 6.10 p.m. Therefore, he
submits that the complaint has been
manipulated and modulated to suit the
requirements of the complainant.
9.11. Though the complaint was filed on
25.07.2010, the statements of the accused as
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also the complainants were not recorded until
30.07.2010. There is no explanation which
has been given for such an inordinate delay.
The deceased expired on 01.08.2010. No
attempt was made to record his statement
during the time that he was in hospital.
9.12. In support of his above contentions, he relies
on the following decisions:
i. Hem Raj and Others vs. State of Haryana
9. The fact that no independent witness -
though available, was examined and not even
an explanation was sought to be given for not
examining such witness is a serious infirmity
in the prosecution case having regard to the
indisputable facts of this case. Amongst the
independent witnesses, Kapur Singh was one,
who was very much in the know of things from
the beginning. Kapur singh is alleged to have
been in the company of PW5 at a sweet stall
and both of them after hearing the cries joined
PW4 at Channi Chowk. He was one of those
who kept the deceased on a cot and took the
deceased to hospital. He was there in the
hospital by the time the first I.O.-PW9 went to
the hospital. The evidence of the first I.O.
reveals that the place of occurrence was
Crl.A. No.100106/2016
pointed out to him by Kapur Singh. His
statement was also recorded, though not
immediately but later. The I.O. admitted that
Kapur Singh was the eye-witness to the
occurrence. In the FIR, he is referred to as the
eye-witness along with PW5. Kapur Singh was
present in the Court on 6.10.1997. The Addl.
Public Prosecutor `gave up' the examination of
this witness stating that it was unnecessary.
The trial court commented that he was won
over by the accused and therefore he was not
examined. There is no factual basis for this
comment. The approach of the High Court is
different. The High Court commented that his
examination would only amount to
`proliferation' of direct evidence. But, we are
unable to endorse this view of the High Court.
To put a seal of approval on the prosecution's
omission to examine a material witness who is
unrelated to the deceased and who is
supposed to know every detail of the incident
on the ground of `proliferation' of direct
evidence is not a correct approach. The
corroboration of the testimony of the related
witnesses-PWs 4 & 5 by a known independent
eye-witness could have strengthened the
prosecution case, especially when the incident
took place in a public place.
10. One more aspect which deserves notice is
that at the alleged scene of offence, no
bloodstains were found by the IO, though he
made a search. The surmise of the High Court
that the bloodstains at the public place would
have disappeared in view of the time gap
between the incident and the IO's inspection
may not be correct, especially, in view of the
fact that it is a metal road, as shown by PW 8
in the site plan and it was night-time. It is
difficult to believe that traces of blood would
fade out by the time of the visit of IO. This is
one of the circumstances that has to be kept
Crl.A. No.100106/2016
in mind while appreciating the prosecution
case.
ii. Shivasharanappa vs. State of Karnataka
(AIR 2013 SC 2144 - para 17 to 20
17. The trustworthiness of the version of PWs
7 and 9 is to be tested on the aforesaid
touchstone and it is to be seen whether the
other circumstances do support the
prosecution case or to put it differently,
whether the evidence brought on record
proves the guilt of the accused persons
beyond reasonable doubt. PW 9, the daughter
of the deceased, has testified to have
witnessed the appellant-accused being
exhorted by her paternal grandmother
Ningawwa, who had trespassed into the house
and forcibly took out her mother. She had, as
is reflected, immediately rushed to the house
of her maternal grandmother and disclosed it
to her. It has been elicited in the cross-
examination that her maternal grandmother
was staying with her another married
daughter and both the daughter and son-in-
law were at home. She did not choose it
appropriate to inform them about the incident.
It is manifest, the grandmother, PW 7, came
with her granddaughter, PW 9, to the house of
the deceased and tried to search for her.
Despite the search becoming a Sisyphean
endeavour and non-effective, she chose to
remain silent and did not inform anyone. The
High Court has accepted the version of these
two witnesses on two counts, namely, that the
daughter was threatened and both of them
were in a state of fear. The learned trial
Judge, on the contrary, had found the
aforestated conduct of both the witnesses to
be highly unnatural. In Gopal Singh v. State of
Crl.A. No.100106/2016
M.P. [(2010) 6 SCC 407 : (2010) 3 SCC (Cri)
150] this Court did not agree with the High
Court which had accepted the statement of an
alleged eyewitness as his conduct was
unnatural and while so holding, it observed as
follows: (SCC p. 413, para 25)
"25. We also find that the High Court has
accepted the statement of Feran Singh, PW 5
as the eyewitness of the incident ignoring the
fact that his behaviour was unnatural as he
claimed to have rushed to the village but had
still not conveyed the information about the
incident to his parents and others present
there and had chosen to disappear for a
couple of hours on the specious and
unacceptable plea that he feared for his own
safety."
18. In Rana Partap v. State of Haryana
[(1983) 3 SCC 327 : 1983 SCC (Cri) 601] ,
while dealing with the behaviour of the
witnesses, this Court has opined thus: (SCC p.
330, para 6)
"6. ... Every person who witnesses a murder
reacts in his own way. Some are stunned,
become speechless and stand rooted to the
spot. Some become hysteric and start wailing.
Some start shouting for help. Others run away
to keep themselves as far removed from the
spot as possible. Yet others rush to the rescue
of the victim, even going to the extent of
counter-attacking the assailants. Every one
reacts in his own special way. There is no set
rule of natural reaction. To discard the
evidence of a witness on the ground that he
did not react in any particular manner is to
appreciate evidence in a wholly unrealistic and
unimaginative way."
Crl.A. No.100106/2016
19. In State of H.P. v. Mast Ram[(2004) 8
SCC 660], it has been stated that there is no
set rule that one must react in a particular
way, for the natural reaction of man is
unpredictable. Everyone reacts in his own way
and, hence, natural human behaviour is
difficult to prove by credible evidence. It has
to be appreciated in the context of given facts
and circumstances of the case. Similar view
has been reiterated in Lahu Kamlakar Patil and
anr. v. State of Maharashtra[AIR 2013 SC
(Cri) 441].
20. Thus, the behaviour of witnesses or their
reactions would differ from situation to
situation and individual to individual.
Expectation of uniformity in the reaction of
witnesses would be unrealistic but the court
cannot be oblivious of the fact that even
taking into account the unpredictability of
human conduct and lack of uniformity in
human reaction, whether in the circumstances
of the case, the behaviour is acceptably
natural allowing the variations. If the
behaviour is absolutely unnatural, the
testimony of the witness may not deserve
credence and acceptance. In the case at hand,
PW-9 was given a threat when her mother was
forcibly taken away but she had the courage
to walk in the night to her grandmother who
was in her mid-fifties. After coming to know
about the incident, it defies commonsense
that the mother would not tell her other
daughter and the son-in-law about the
kidnapping of the deceased by her mother-in-
law. It is interesting to note that the High
Court has ascribed the reason that PW-7
possibly wanted to save the reputation of the
deceased-daughter and that is why she did
not inform the other daughter and son-in-law.
That apart, the fear factor has also been taken
into consideration. Definitely, there would
have been fear because, as alleged, the
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mother-in-law had forcibly taken away the
deceased, but it is totally contrary to normal
behaviour that she would have maintained a
sphinx-like silence and not inform others. It is
also worthy to note that she did not tell it to
anyone for almost two days and it has not
been explained why she had thought it apt to
search for her daughter without even
informing anyone else in the family or in the
village or without going to the police station.
In view of the obtaining fact situation, in our
considered opinion, the learned trial Judge
was absolutely justified in treating the conduct
of the said witnesses unnatural and, therefore,
felt that it was unsafe to convict the accused
persons on the basis of their testimony. It was
a plausible view and there were no compelling
circumstances requiring a reversal of the
judgment of acquittal. True it is, the powers of
the appellate court in an appeal against
acquittal are extensive and plenary in nature
to review and reconsider the evidence and
interfere with the acquittal, but then the court
should find an absolute assurance of the guilt
on the basis of the evidence on record and not
that it can take one more possible or a
different view.
iii. Eknath Ganpat Aher vs. State of
Maharashtra (AIR 2010 SC 2657) -
para 19, 20, 21
19. In our considered opinion the aforesaid
approach of the Courts below was incorrect. Nine
persons including four witnesses belonging to the
complainant party received injuries whereas as
many as 14 accused persons received injuries
including some who even suffered grievous
injuries. Admittedly, there was a mob of about
75-100 persons who descended from the hill side
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to the place of occurrence by pelting stones and a
melee followed. Not even a single witness
including the injured witnesses could specifically
state as to who had caused what injury either to
the deceased or to the injured witnesses or to the
accused. A very general statement has been
made that the accused persons were armed with
deadly weapons and caused injuries to the
complainant party. In a situation where a mob of
75-100 persons entered into a clash with the
complainant party it could not have been possible
for any of the witnesses, who would naturally be
concerned with their own safety and to save
themselves from the assault, to see as to who
had inflicted what type of injury either on the
deceased or on the injured witnesses.
20. In view of such omnibus and vague
statements given by the witnesses, the Court
below acquitted as many as 21 accused persons
on the ground that there is no evidence on record
to implicate them in the offences alleged. There
being no other evidence to specifically ascribe any
definite role to any of the 14 appellants herein, it
is difficult to hold that any of the present
appellant had inflicted any particular injury on
any of the deceased or the injured witnesses.
Unless there is cogent and specific evidence
attributing a specific role in the incident to the
accused persons, who have themselves been
injured and there being no explanation
forthcoming as to such injuries, it would be
unsafe to pass an order recording conviction and
sentence against the appellants, moreso when
the prosecution has produced, in support of its
case, witnesses who are inimical to the accused
persons. It is crystal from the records that land of
Gat No. 170 is the bone of contention between
the complainant party and the accused. As noted
above, civil cases with regard to the question of
title and ownership to the said land have been
instituted by both the accused and the
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complainant party which are pending final
adjudication.
21. It is an accepted proposition that in the case
of group rivalries and enmities, there is a general
tendency to rope in as many persons as possible
as having participated in the assault. In such
situations, the Courts are called upon to be very
cautious and sift the evidence with care. Where
after a close scrutiny of the evidence, a
reasonable doubt arises in the mind of the Court
with regard to the participation of any of those
who have been roped in, the Court would be
obliged to give the benefit of doubt to them.
iv. State of Uttar Pradesh vs. Om Pal (AIR 2018
SC (Cril). 694 - para 11
11. On the other hand, the conduct and
statement of PW2 who was stated to be an
eyewitness do not inspire confidence for the
reason that his depositions under Section
161, Cr.P.C. were quite different to what he
stated before Court in his examination-in-chief.
He could not even give a satisfactory reason for
his presence at the time and place of occurrence.
Furthermore, he did not choose to lodge
complaint with the police by himself even though
he had witnessed the occurrence as admittedly
the complaint was lodged by PW1 on the
information provided by PW2. Apart from that,
there were certain conflicting statements in his
evidence as regards how the deceased got
injuries, and also his conduct of not making a hue
and cry and not disclosing to anyone about the
occurrence on his way to the house of Naresh Pal,
gives rise to suspicion on the credibility and
trustworthiness of PW2. When the evidence of
PW2 itself is unbelievable and jeopardizing the
prosecution case, in no manner the evidence of
PW1 could be given credence.
Crl.A. No.100106/2016
v. State of Maharashtra vs. Dinesh (AIR 2018
SC 2997) - para 8 to 11
8. In Joseph v. State of Kerala [Joseph v. State of
Kerala, (2003) 1 SCC 465 : 2003 SCC (Cri) 356] ,
this Court has observed that where there is a sole
witness, his evidence has to be accepted with an
amount of caution and after testing it on the
touchstone of other material on record. In State
of Haryana v. Inder Singh [State of Haryana v.
Inder Singh, (2002) 9 SCC 537 : 2003 SCC (Cri)
1239] , this Court has laid down that the
testimony of a sole witness must be confidence
inspiring and beyond suspicion, thus, leaving no
doubt in the mind of the Court. In Ramnaresh v.
State of Chhattisgarh [Ramnaresh v. State of
Chhattisgarh, (2012) 4 SCC 257 : (2012) 2 SCC
(Cri) 382] , this Court, after taking note of the
aforementioned two judgments, observed that
"the principles stated in these judgments are
indisputable. None of these judgments say that
the testimony of the sole eyewitness cannot be
relied upon or conviction of an accused cannot be
based upon the statement of the sole eyewitness
to the crime. All that is needed is that the
statement of the sole eyewitness should be
reliable, should not leave any doubt in the mind
of the Court and has to be corroborated by other
evidence produced by the prosecution in relation
to commission of the crime and involvement of
the accused in committing such a crime". It is
well settled that it is the quality of the evidence
and not the quantity of the evidence which is
required to be judged by the court to place
credence on the statement (Seeman v. State
[Seeman v. State, (2005) 11 SCC 142 : 2005
SCC (Cri) 1893] ).
9. In light of the above, the evidence of PW 7
Pushpabai in the present case, needs to be
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considered. Admittedly, PW 7 had witnessed the
crime being committed by the accused at about
10.30 p.m. in the night and there was no
electricity at the alleged scene of offence.
According to PW 7, her husband also witnessed
the crime, but they could not identify whether the
accused were cutting into pieces the body of a
dead person or an alive person. Even after
watching the brutal crime, neither PW 7 nor her
husband had raised hue and cry in the vicinity
which was stated to be thickly populated, but
they went to sleep peacefully and thereafter led
normal life. There is also no dispute that PW 7 did
not identify the respondent herein--Accused 2
and her statement was recorded after a gap of
one-and-half months from the date of the
incident.
10. After giving our thoughtful consideration to
the evidence of PW 7, we have also considered
the circumstances of the entire case and also the
evidence of other prosecution witnesses. We find
from the record that husband of PW 7, who was
also stated to be an eyewitness to the incident,
was neither examined by police at the time of
investigation, nor even before the court and no
satisfactory explanation for his non-examination
is found on record. Apart from this, even, test
identification parade was not conducted and no
steps were taken to prove the blood group of the
deceased with the bloodstains found on the
alleged weapon used in the crime.
11. Thus, in the foregoing circumstances,
especially taking note of the unnatural manner in
which PW 7 kept quiet till one-and-half months
after the incident, that too in the midst of thickly
populated vicinity, it is not safe to convict an
accused solely relying on her evidence. Thus, we
find no firm ground in this appeal or reason to
believe the testimony of alleged eyewitness PW 7
calling for our interference in the judgment
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passed by the High Court. In our view, the High
Court has rightly classified and considered the
evidence of prosecution witnesses and after
properly analysing the facts and circumstances
rendered a reasoned judgment, disbelieving the
prosecution story. We, therefore, affirm the view
taken by the High Court and dismiss the appeal of
the State.
vi. Krishnegowda and Others vs. The State of
Karnataka by Arkalgund Police Station (AIR
2017 SC 1657) - para 28 to 30
28. Medical Evidence: When we look at the
medical evidence, the Doctor (PW10) has
categorically stated that the weapons were not
sent to her. In the chief examination, it was
stated that the injuries 1 & 4 on the body of the
deceased are possible with chopper and club. But
in the cross examination it was deposed that even
if a person falls on a sharp object these injuries
could happen. According to PW3, the deceased
fell into the drain.
(i) As per the evidence of prosecution witnesses,
accused by using the sharp edge of the weapon
assaulted on the right side of the forehead but
the Doctor's evidence in this regard is that the
deceased has not sustained incised wound on the
forehead. PW10 further stated that if a person is
assaulted with an object like MO4 it would result
in fracture of frontal bone.
(ii) The other ground is, when the father of A5
gave a complaint against the deceased's family as
the police filed 'B form' the same was closed and
not filed before the Court. Apart from that, the
direction of the Court to seize the gun of the
deceased and file a case under the relevant
provisions of the Arms Act was not brought to the
notice of the Court. Non explanation of injuries on
A5 is another major defect.
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29. Once there is a clear contradiction between
the medical and the ocular evidence coupled with
severe contradictions in the oral evidence, clear
latches in investigation, then the benefit of doubt
has to go to the accused.
30. Going by the material on record, we disagree
with the finding of the High Court that the ocular
evidence and the medical evidence are in
conformity with the case of prosecution to convict
the accused. The High Court has brushed aside
the vital defects involved in the prosecution case
and in a very unconventional way convicted the
accused.
vii. Ram Narain vs. State of Punjab (1975 (4)
SCC 497) - para 13 and 14
13. The High Court appears to have overlooked
most of these circumstances discussed by us
which were extremely damaging to the
prosecution case. The High Court has lightly
brushed aside the inconsistency between the
medical evidence and the prosecution version.
The question of the time of occurrence having
been shifted from 8.00 p.m. to 6.30 p.m. has
been blindly believed as also the evidence
regarding the production of the weapons by the
accused. In view of these striking circumstances,
we should have expected the High Court to have
approached this case with much more care and
caution that it has, particularly when a death
sentence was involved.
14. Where the evidence of the witnesses for the
prosecution is totally inconsistent with the
medical evidence or the evidence of the ballistic
expert, this is a most fundamental defect in the
prosecution case and unless reasonably explained
it is sufficient to discredit the entire case. In
Mohinder Singh v. State [AIR 1953 SC 415 : 1950
Crl.A. No.100106/2016
SCR 821] this Court observed in similar
circumstances as follows:
"In a case where death is due to injuries or
wounds caused by a lethal weapon, it has always
been considered to be the duty of the prosecution
to prove by expert evidence that it was likely or
at least possible for the injuries to have been
caused with the weapon with which and in the
manner in which they are alleged to have been
caused. It is elementary that where the
prosecution has a definite or positive case, it is
doubtful whether the injuries which are attributed
to the appellant were caused by a gun or by a
rifle."
It is obvious that where the direct evidence is not
supported by the expert evidence, then the
evidence is wanting in the most material part of
the prosecution case and it would be difficult to
convict the accused on the basis of such
evidence. While appreciating the evidence of the
witnesses, the High Court does not appear to
have considered this important aspect, but readily
accepted the prosecution case without noticing
that the evidence of the eyewitnesses in the
Court was a belated attempt to improve their
testimony and bring the same in line with the
doctor's evidence with a view to support an
incorrect case.
viii. Amar Singh vs. State of Punjab (AIR 1987
SC 826) - para 9 to 12
9. It is next contended on behalf of the appellants
that the learned Additional Sessions Judge and the
High Court were not justified in placing any
reliance upon the evidence of PW 5 Smt Veero,
which is totally inconsistent with the medical
evidence. It has been already noticed that all the
accused persons were armed with sharp weapons.
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It is the evidence of PW 5 that Amar Singh, son of
Bachan Singh, and Rattan Singh were each armed
with a sua, Lakha Singh was armed with a barchi,
Harbhajan Singh was armed with a kulhari and
Amar Singh, son of Isher Das, was armed with a
kirpan. She said: "Then all the accused except
Bachan Singh accused surrounded my son Piara
Singh (deceased). Then Lakha Singh accused gave
a barchi-blow on the left knee of my son. Then
Piara Singh (deceased) fell down and all the
accused then gave injuries to him with their
respective weapons." In her cross-examination
she said that the accused persons gave quite a
number of blows with their respective weapons
after they had overpowered him, and that many of
the blows fell on the ribs and abdomen of
deceased Piara Singh. But, not a single incised
wound was found on the body of the deceased by
PW 2 Dr Verma. Moreover, the medical report
shows that there was no injury on the ribs and
abdomen of the deceased. We are unable to
accept the evidence of PW 5 that although a
number of blows were given by the accused with
their weapons on the ribs and abdomen of
deceased, yet such blows did not produce any
mark of injury. The medical report submitted by
PW 2 shows that there were only contusions,
abrasions and fractures, but there was no incised
wound on the left knee of the deceased as alleged
by PW 5. If her evidence that all the accused
inflicted injuries on the deceased with their
respective weapons has to be accepted, then there
would be incised wounds all over the body of the
deceased, but the medical report shows that not a
single incised wound was found on the body of the
deceased. Thus the evidence of PW 5 is totally
inconsistent with the medical evidence. This Court
in Ram Narain Singh v. State of Punjab [(1975) 4
SCC 497 : 1975 SCC (Cri) 571 : AIR 1975 SC
1727] has laid down that if the evidence of the
witnesses for the prosecution is totally inconsistent
with the medical evidence, this is a most
fundamental defect in the prosecution case and
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unless reasonably explained, it is sufficient to
discredit the entire case. There is no explanation
for the apparent total inconsistency between the
evidence of PW 5 and the medical evidence.
10. In this connection, we may refer to the
evidence of the second eyewitness PW 6 Anokh
Singh. In his examination-in-chief this witness
sought to support the prosecution case, but in
cross-examination he stated in clear and
unequivocal terms that he did not see Piara Singh
deceased receiving any injury at the hands of the
accused. No reliance, therefore, can be placed on
the evidence of PW 6. So far as PW 4 Murta Singh
is concerned, he is not a witness of the actual
incident, as he had started running towards village
Dhariwal on being chased by Amar Singh and
Rattan Singh, sons of Isher Das, and hid himself in
the bushes. He then waited for a short while in the
bushes out of fear and then went to his use. His
mother PW 5 told him that his brother Piara Singh
had been murdered in the house of Bachan Singh,
and that he should run away from home. Thus,
out of the three witnesses, the only witness who
gave evidence about the beating of Piara Singh
deceased by the appellants and the other accused
is PW 5 Smt Veero. Her evidence, as already
noticed, is contrary to the medical evidence.
11. We may further examine the evidence of PW 5
as to the place where Piara Singh was alleged to
have been killed. In her examination-in-chief she
stated that all the accused took Piara Singh
deceased to the courtyard of the house of Bachan
Singh where he was beaten by Amar Singh,
Appellant 1, with thappi. Thereafter Piara Singh
was dragged inside the room of the house of
Bachan Singh by the accused persons. In her
cross-examination she said that after killing Piara
Singh on the spot, the accused took him inside the
room of the house. The evidence, however, is that
blood was recovered from the room and no blood
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was found on the courtyard. Her evidence is,
therefore, inconsistent as to the place where Piara
Singh was killed by the accused. In this
connection, it may be pointed out that although
according to the evidence of PW 4 Murta Singh,
that when he came home he found his mother
weeping and she told him that the accused had
killed Piara Singh, in the first information report
lodged by PW 4, there is no mention of the
statement of his mother that Piara Singh was
killed by the accused.
12. Upon an analysis of the evidence of P.W. 5, it
appears that her evidence is not only not
corroborated by the evidence of any witness, but
is contrary to the medical evidence as to the
injuries that were found on the body of the
deceased. Apart from the fact that the appellants
cannot be convicted under Sections
148 and 149 IPC, it is difficult to convict them on
any charge on the basis of the evidence of P.W. 5,
The learned Additional Sessions Judge was not
right in holding that the guilt of the appellants had
been proved by the prosecution beyond all
reasonable doubts. In our opinion, the evidence of
P.W. 5 who turns out to be the only eye-witness in
the case casts a great doubt as to the commission
of any offence by the appellants and,
consequently, the benefit of that doubt must go to
the appellant.
ix. Shahid Khan vs. State of Rajasthan (AIR
2016 SC 1178) - para 10 and 11
10. Both the above witnesses are residents of
Kota which is at a distance of about 150 kms. from
Jhalawar town. According to PW 25 Mirza Majid Beg
he went to Jhalawar to meet Ashok Kumar and on
reaching the factory at 1.00 p.m. they happened to
witness the occurrence. It is relevant to point out
that PW 9 Anwar and PW 19 Anil Kumar Jain, who
on intimation rushed to the occurrence place, did
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not state that they saw PW 25 Mirza Majid Beg and
PW 24 Mohamed Shakir in the occurrence place. It
is only PW 19 Anil Kumar Jain with the help of PW
9 Anwar and PW 20 Lal Chand lifted injured Ashok
Kumar and put in the Maruti vehicle and took him
to Jhalawar hospital, where he was declared dead.
Thereafter PW 19 Anil Kumar Jain went to the
Police Station and lodged the written complaint. In
the said complaint, the names of the assailants are
not mentioned and also the names of the persons
who were present during the occurrence are not
mentioned. PW 25 Mirza Majid Beg and PW 24
Mohamed Shakir have stated in their cross
examination that they did not help PW 9 Anwar and
PW 19 Anil Kumar Jain to shift the injured to the
hospital and they rushed towards Toll Tax and
reached the hospital in a truck and on seeing their
car, without entering the hospital, they drove to
Kota and they did not inform any one about the
occurrence and they did not also go to the Police
Station for lodging the complaint. The High Court in
the impugned judgment has concluded that the
presence of PW 25 Mirza Majid Beg is established in
view of the fact that his Maruti van was used for
shifting injured to the hospital. There was nothing
on record to show the Maruti vehicle used for
transporting Ashok Kumar to the hospital belonged
to PW 25 Mirza Majid Beg. In fact PW 19 Anil
Kumar Jain in his cross examination has stated that
he did not know the Registration number of the
Maruti van in which Ashok Kumar was taken to
hospital and he also did not know whose vehicle it
was. In other words, nothing is stood established
by the use of this Maruti vehicle for transporting to
the injured to the hospital and in any event this will
not clinch the presence of PW 25 Mirza Majid Beg
at the time of occurrence. PW 25 Mirza Majid Beg
and PW 24 Mohamed Shakir slipping away
unnoticed by the others particularly after the
alleged attack is utterly unbelievable. It appears
unreal. They are not strange to expect and they did
not render any help for shifting the injured to the
hospital nor had the courtesy to go inside the
Crl.A. No.100106/2016
hospital to ascertain the condition and also did not
inform the occurrence to the police. The aspect of
fear is without any foundation and is not supported
by any evidence of act or conduct. This plea does
not impress us. In this context, it is relevant to
point out that PW 25 Mirza Majid Beg has admitted
that he is a history-sheeter, and two cases
under NDPS Act were imposed on him and he was
also bound down under Section 110 Cr.P.C.
11. The statements of PW 25 Mirza Majid Beg and
PW 24 Mohamed Shakir were recorded after 3 days
of the occurrence. No explanation is forthcoming as
to why they are not examined for 3 days. It is also
not known as to how the police came to know that
these witnesses saw the occurrence. The delay in
recording the statements casts a serious doubt
about their being eye-witnesses to the occurrence.
It may suggest that the investigating officer was
deliberately marking time with a view to decide
about the shape to be given to the case and the
eye-witnesses to be introduced. The circumstances
in this case lend such significance to this delay. PW
25 Mirza Majid Beg and PW 24 Mohamed Shakir, in
view of their unexplained silence and delayed
statement to the police, does not appear to us to
be wholly reliable witnesses. There is no
corroboration of their evidence from any other
independent source either. We find it rather unsafe
to rely upon their evidence only to uphold the
conviction and sentence of the appellants. The High
Court has failed to advert to the contentions raised
by the appellants and re-appreciate the evidence
thereby resulting in miscarriage of justice. In our
opinion, the case against the appellants has not
been proved beyond reasonable doubt.
10. Sri.V.M.Banakar, learned Additional SPP submits
that:
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10.1. The trial court has considered all the aspects
in proper and required manner. The
judgment of conviction and order of sentence
is proper and correct and does not require
any interference. The delay in the FIR
reaching the Court is explained on account of
the P.C.(PW.19/CW29-Manjunath) having
attended to his work and taken a bus to the
Magistrate Court. Therefore, there is no
infirmity arising out of the said delay.
10.2. In this regard he relies upon the decision of
the Hon'ble Apex Court in Betal Singh vs.
State of M.P. reported in (1996) 8 SCC
205, more particularly second portion of para
No.8 which is reproduced hereunder for easy
reference:
8. ................. The High Court also rightly
observed that even if the F.I. R. was not
immediately sent to the Court of the
Crl.A. No.100106/2016
Magistrate, but it is of no consequence,
since the F.I. R. had been lodged within 30
minutes of the occurrence and the said F.I.
R. clearly described the basic prosecution
case. The High Court has then analysed the
evidence of PW. 1 and has held the same to
be unimpeachable and established the
charge against appellant Betal Singh. We
find no infirmity with the judgment of the
High Court. We have also ourselves
scrutinised the evidence of PW. 1 and, in our
view, the same evidence can be safely relied
upon in establishing the charge against the
appellant notwithstanding some minor
inconsistency in the evidence here and
there. There is not an iota of materials on
record excepting the bald suggestion to PW.
1 which he denied in support of the defence
theory that while there was a scuffle
between the appellant Betal Singh and Prem
Singh, PW. 1, the loaded gun was fired. In
the premises as aforesaid and for the
reasons advanced by us we do not find any
merit in this appeal and the same is
accordingly dismissed. The appellant who is
on bail will now surrender to his bail bonds
to serve out the sentence.
10.3. The FIR is not an encyclopedia of all the
events. The FIR when lodged, contained all
the necessary information which was required
to set the criminal law into motion. No fault
can be found therewith. Therefore, he
Crl.A. No.100106/2016
submits that the above appeal is required to
be dismissed.
11. When the matter was pending, the appellants filed
an application in I.A.No.1/2020 under Section 367
of Cr.P.C. for production of additional documents.
Along with the said application, the documents
which have been produced in S.C.No.70/2011
arising out of Crime No.42/2010 had been
produced. This Court vide its order dated
21.10.2020 allowed I.A.No.1/2020 considering that
this case and the case in S.C.No.70/2011 were
case and counter complaint, allowed marking of
the documents. The documents are marked as
under:
i) Certified copy of the Chargesheet in
C.C.No.123/2011 (S.C.No.70/2011).
ii) Certified copy of the complaint in
C.C.No.123/2011 (S.C.No.70/2011)
dated 26.07.2010.
Crl.A. No.100106/2016
iii) Certified copy of the spot Mahazar, in
C.C.No.123/2011 (S.C.No.70/2011) (in
front of Milk Diary) dated 26.07.2010.
iv) Certified copy of another spot Mahazar in
C.C.No.123/2011 (S.C.No.7/2011) dated
26.07.2010.
v) Certified copy of the sketch in
C.C.No.123/2011 (S.C.No.70/2011)
(near Diary)
vi) Certified copy of the sketch in
C.C.No.123/2011 (S.C.No.70/2011)
(near Diary) (drawn near Kadlenne
Basappa's house:
vii) Certified copy of the wound certificate of
Rudrappa Virupakshappa Kenchanagouda
in C.C.No.123/2011
(S.c.No.70/2011)(near Diary).
viii) Certified copy of the wound certificate dof
Kariyappa Virupakshappa
Kenchanagouda in C.C.No.123/2011
(S.C.No.70/2011) (near Diary).
ix) Certified copy of the wound certificate of
Kantesha Basavarajappa Kenchanagouda
in C.C.No.123/2011 (S.C.No.70/2011)
(near Diary)
x) Certified copy of the wound certificate of
Shoha Basavaraja Kenchanagouda in
C.C.No.123/2011 (S.C.No.70/2011)
(near Diary)
Crl.A. No.100106/2016
xi) Certified copy of the wound certificate of
Bulamma Virupakshappa Kenchanagouda
in C.C.No.123/2011 (S.C.No.70/2011)
(near Diary)
xii) Certificated copy of the wound certificate
of Girisha Basavarajappa Kenchanagouda
in C.C.No.123/2011 (S.C.No.70/2011)
(near Diary)
xiii) Certified copy of the FIR in crime
No.42/2910 of Hirehadagali in
C.C.No.123/2011 (S.C.No.70/2011)
(near Diary)
xiv) Certified copy of the sketch drawn
near Milk Dairy in
C.C.No.123/2011(S.C.No.70/2011) (near
Diary)
xv) Certificated copy of the Charge in
C.C.No.123/2011 (S.C.No.70/2011)
(near Diary)
12. It is in the background of the above submissions
that we have to appreciate and re-appreciate the
evidence on record in order to arrive at a
conclusion as to whether the prosecution has been
able to prove beyond reasonable doubt about the
guilt of the accused and whether we are required
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to intercede in the judgment passed by the trial
Court.
13. PW.1/CW.2-Shantannavara Basappa in his
examination-in-chief conducted on 26.09.2013 has
deposed that:
13.1. On 26.07.2010 at 4.00 p.m. the police had
called him to the house of PW.4/CW.1-
Kadlenni Basappa because of the altercation
that had taken place between the accused
and PW.4/CW.1-Kadlenni Basappa in the hall
of house of said PW.4/CW.1-Kadlenni
Basappa.
13.2. The police had drawn mahazar and at that
time police seized 2 banians, 3 clubs, 2
stones and 1 axe. He has identified the
mahazar as Ex.P.1 and his signature as
Ex.P.1(a). He has identified 3 clubs as MOs.1
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to 3, two stones as MOs.4 and 5, axe as
MO.6, one banian as MO.7 and other banian
as MO.8. He has also identified the rough
sketch of the spot which has been marked as
Ex.P.2 and his signature is identified as
Ex.P.2(a).
13.3. In the cross-examination conducted on the
same day, he states that he was not given
any instructions to write the mahazar,
PW.4/CW.1-Kadlenni Basappa had given
instructions. He denies that he does not know
the contents of the mahazar. He also denies
he has signed the mahazar at Veerabhadra
Temple. He has admitted that he came to
Court on the day of his examination with
complainant PW.4/CW.1-Kadlenni Basappa.
He has denied all other suggestions put to
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him and he has supported the case of the
prosecution.
14. PW.2/CW.3-Ambli Jayappa in his examination-in-
chief conducted on 26.09.2013 has stated that:
14.1. He knows the complainant and accused
persons. He knows PW.13/CW.17-
Eashwargouda, Kamaraj and PW.11/CW.13-
Lakappa. Kamaraj and PW.11/CW.13-
Lakappa are the elder brothers of
PW.13/CW.17-Eashwargouda who is a
secretary in a milk dairy.
14.2. He has stated that on 25.07.2010 at 7.00
p.m., altercation took place between
PW.13/CW.17-Eashwargouda and accused
No.3-Kantesh in the dairy. Some persons who
had supplied milk on that day had informed
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about the altercation and that the elders of
the village pacified the said quarrel.
14.3. On the same day at 11.00 p.m. or at 12.00
midnight, when he was sleeping on the
platform in his house, at that time he heard
the sound of quarrel and he saw that the
accused person had gone to the house of
PW.4/CW.1-Kadlenni Basappa. At that time
accused No.1-Kenchanagoudara
Basavarajappa @ Basappa, accused No.4-
Kariyappa and accused No.6-Ramesh were
having clubs, accused No.3-Kantesh and
accused No.5-Rudrappa were having stones
and accused No.2-Girish was having an axe.
14.4. He stated that the accused went into the
house of PW.4/CW.1-Kadlenni Basappa and
he followed them, accused dragged
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PW.7/CW.11-Manjappa who was sleeping in
his bedroom to the hall, accused No.2-Girish
tried to assault PW.7/CW.11-Manjappa with
axe at that time PW.7/CW.11-Manjappa put
his left hand across hence the handle of the
axe hit his left hand and got fractured.
Accused No.4-Kariyappa assaulted on the
head of PW.7/CW.11-Manjappa with a club
and also bit his left side of the chest. At that
time PW.8/CW.12-Veeranna (elder brother of
PW.7/CW.11-Manjappa) who was sleeping in
the bedroom came outside hearing the
quarrel, when accused No.5-Rudrappa
assaulted on both his legs by which time
PW.12/CW.14-Basavaraj came there and
accused No.6-Ramesh twisted the left leg of
PW.12/CW.14-Basavaraj, then Jatti
Honnappa @ Kamaraj and PW.11/CW.13-
Crl.A. No.100106/2016
Lakappa came there. Accused No.1-Basavaraj
assaulted on the head of Kamaraj with a club,
accused No.4-Kariyappa assaulted on the left
shoulder of said Kamaraj with club, accused
No.2-Girish assaulted on the head of Kamaraj
with axe. When Kamaraj fell down and
PW.11/CW.13-Lakappa came to his rescue,
accused No.2-Girish and accused No.3-
Kantesh held the said PW.11/CW.13-Lakappa
tightly and accused No.5-Rudrappa assaulted
on the head of said PW.11/CW.13-Lakappa
with stones and someone had bitten the right
arm of PW.11/CW.13-Lakappa.
14.5. At that time an ambulance came there.
Kamaraj, PW.11/CW.13-Lakappa and
PW.7/CW.11-Manjappa and some other
persons went in the said ambulance to
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Government Hospital, Hadagali for treatment
and thereafter to the hospital in Davangere.
14.6. A mahazar was conducted on 26.07.2010 at
7.30 p.m. or 8.00 p.m. when the police came
near the house of PW.4/CW.1-Kadlenni
Basappa and seized three clubs, two stones
and one axe and two banians. He has
identified the mahazar as Ex.P.1 and his
signature as Ex.P.1(b).
14.7. He has stated that Kamaraj died in the
hospital at Davanagere after 6-7 days due to
the injuries sustained by him in the quarrel.
He has identified the three clubs, two stones
and one axe and two banians marked as
MOs.1 to 8. He has further stated that the
quarrel took place regarding milk.
Crl.A. No.100106/2016
14.8. In his cross-examination conducted on
31.10.2013, he has stated that his elder
sister CW.18-Gouravva was married to
PW.4/CW.1-Kadlenni Basappa (complainant)
and his house is situate about 1200-1400
feet from the house of said PW.4/CW.1-
Kadlenni Basappa. He admits that his house
was not situate in the same lane as that of
PW.4/CW.1-Kadlenni Basappa. There are six
houses in the lane of PW.4/CW.1-Kadlenni
Basappa and the distance is about 400-500
feet from the house of Kamaraj to the house
of PW.4/CW.1-Kadlenni Basappa. He has
stated that Kamaraj's house is also not
situate in the same lane as PW.4/CW.1-
Kadlenni Basappa. There are 18 houses
between his house and the house of
PW.3/CW.7-Shantappanavara Chandrappa.
Crl.A. No.100106/2016
There is distance of 200 feet from the house
of CW.6-Shantappanavara Basavarajappa to
the house of PW.4/CW.1-Kadlenni Basappa.
14.9. He states that CW.6-Shantappanavara
Basavarajappa was present in front of the
house of PW.4/CW.1-Kadlenni Basappa. He
states that some other 10-15 persons were
also present there, who belong to the same
village. He knows them but he is unable to
say the names of those persons.
14.10. He states that PW.3/CW.7-Shantappanavara
Chandrappa came to the house of
PW.4/CW.1-Kadlenni Basappa after 10
minutes, after he went there, Kamaraj,
PW.11/CW.13-Lakappa, PW.5/CW.5-Kadlenni
Shivappa and his sons came after 10
minutes. He states that he was inside the
Crl.A. No.100106/2016
house of PW.4/CW.1-Kadlenni Basappa when
Kamaraj and others came to the house of
PW.4/CW.1-Kadlenni Basappa.
14.11. He has denied that it was dark or no
electricity was there in front the said house.
The quarrel happened for about 20 minutes
and for another half an hour after Kamaraj
and others came.
14.12. It is stated that the door of the house of
PW.4/CW.1-Kadlenni Basappa was already
opened but he has not seen any breaking of
the door. He entered the house of
PW.4/CW.1-Kadlenni Basappa from the back
door. He does not know who opened the back
door. When he went in PW.4/CW.1-Kadlenni
Basappa's house his wife CW.18-Gouravva
and their sons PW.8/CW.12-Veeranna,
Crl.A. No.100106/2016
PW.7/CW.11-Manjappa, PW.6/CW.4-Sangana
Basappa and wives of PW.7/CW.11-Manjappa
and PW.6/CW.4-Sangana Basappa were
weeping.
14.13. He was recalled and further cross-examined
on 23.11.2013. He states that his house is at
a distance of 60-70 feet from the main road
and admits that if a person were to sit in
front of his house, then that person would not
be visible to the persons passing in the lane.
He admits that he would not be able to hear
the sound of any quarrel in the event of
quarrel taking place near the place of
PW.4/CW.1-Kadlenni Basappa. He admits
that he would not know about any quarrel
unless someone informs him.
Crl.A. No.100106/2016
14.14. He states that he was sleeping in his house
from 10.30 p.m. to 12.30 a.m. He denies the
knowledge of the person running the milk
dairy prior to PW.13/CW.17-Eashwargouda.
He states that PW.11/CW.13-Lakappa went to
the hospital at Huvina Hadagali for treatment
but he did not go and see him. Wife of
PW.4/CW.1-Kadlenni Basappa (CW.18-
Gowramma) has not sustained any injuries
but she was unconscious. He states that
PW.8/CW.12-Veeranna, PW.7/CW.11-
Manjappa, PW.6/CW.4-Sangana Basappa and
Basanna had sustained injuries in the
altercation but were not taken to the hospital
for treatment. He was there in the house of
PW.4/CW.1-Kadlenni Basappa till the
ambulance came which was about 20
minutes. There were about 25 persons
Crl.A. No.100106/2016
present in the house who are the natives of
the village but he cannot name them.
14.15. He states that neither himself nor
PW.4/CW.1-Kadlenni Basappa went to the
Police Out Post to inform about the incident.
He also did not go to Holalu Police Station. He
does not know whether PW.4/CW.1-Kadlenni
Basappa went to Hadagali Police Station.
14.16. He states that it had rained before and after
the quarrel. In that it was drizzling.
PW.5/CW.5-Kadlenni Shivappa's house is
behind the house of PW.4/CW.1-Kadlenni
Basappa. He did not observe whether the
door of Kadlenni Shivappa's house was open
or not. He admits that when it rains no one
sleeps on the platform in front of the house.
Crl.A. No.100106/2016
14.17. He was recalled and sworn in on 04.01.2014.
He states that he does not know if on that
night at 10.30 p.m. the complainant and
others had assaulted the accused persons in
front of the house of PW.4/CW.1-Kadlenni
Basappa. He also states that he does not
know if the accused had lodged complaint
against PW.4/CW.1-Kadlenni Basappa and
others for assaulting the accused at 10.30
p.m.
14.18. He states that the police came to the house
of PW.4/CW.1-Kadlenni Basappa after the
quarrel at about 12.00 midnight or at 12.30
hours, when he was present. He states that
he has not observed whether the police have
taken clubs, stones, axes, banian. However,
PW.4/CW.1-Kadlenni Basappa had shown
them to the police. He states that he did not
Crl.A. No.100106/2016
observe whether they were bloodstained or
not. He states that the police were there up
to 3.00 a.m. (night) and on the next morning
at 10.30 a.m. they once again came and
called him to the spot and enquired about the
quarrel, the police recorded his statement.
The police drew mahazar in his presence and
at that time the police have taken 3 clubs, 2
stones, 1 axe and two bloodstained banians.
14.19. He admits that MOs.1, 2, 3 and 6 are
available in the house of any agriculturist and
MOs.7-8 stones were there in the house of
PW.4/CW.1-Kadlenni Basappa. The police had
not taken all the stones. He identified Ex.P.2
as the spot sketch. He has denied rest of the
suggestions put to him.
Crl.A. No.100106/2016
15. PW.3/CW.7-Shantappanavara Chandrappa in his
examination-in-chief conducted on 31.10.2013 has
stated that;
15.1. He knows the complainant-Kadlenni Basappa
(PW.4/CW.1) as also the accused persons. He
also knows PW.13/CW.17-Eashwargouda,
Kamaraj and PW.11/CW.13-Lakappa. He has
similarly stated as PW.2/CW.3-Ambli Jayappa
about the relationship between the parties
and as also about the quarrel in front of the
milk dairy.
15.2. He has stated that on the same day while he
was sleeping on the platform in front of his
house at midnight, all the accused persons
went to the house of PW.4/CW.1-Kadlenni
Basappa and creating ruckus. At that time
accused No.1-Kenchanagoudra
Crl.A. No.100106/2016
Basavarajappa, accused No.4-Kariyappa and
accused No.6-Ramesh were having clubs,
accused No.3-Kantesh and accused No.5-
Rudrappa were having stones and accused
No.2-Girish was having an axe. He states that
thereafter PW.2/CW.3-Ambli Jayappa and he
went to the house of PW.4/CW.1-Kadlenni
Basappa. At that time, the accused had
trespassed into the house of PW.4/CW.1-
Kadlenni Basappa, accused No.2-Girish had
dragged PW.7/CW.11-Manjappa from his
bedroom to the hall, and assaulted
PW.7/CW.11-Manjappa with an axe.
15.3. He has deposed more or less similarly to
what has been stated by PW.2/CW.3-Ambli
Jayappa as regards the assault which took
place in the house of PW.4/CW.1-Kadlenni
Basappa.
Crl.A. No.100106/2016
15.4. He states that PW.11/CW.13-Lakappa took all
the injured persons to the Government
Hospital, Hadagali in 108 ambulance and
Kamaraj died at Davanagere Hospital after 6
days. He has identified MOs.1 to 6.
15.5. He was recalled and cross-examined on
04.01.2014, wherein he has stated that the
villagers would usually sleep at 9.30 p.m.
everyday. He has admitted that the month of
July is rainy season and on the date of the
incident it was drizzling. He states that the
villagers would usually sleep inside the house
when it rains but some also sleep on the
platform. He states that on the date of the
incident, he was sleeping on the platform in
front of his house. There is a distance of 3/4th
furlongs from the house of PW.2/CW.3-Ambli
Jayappa to his house. The police came to the
Crl.A. No.100106/2016
house of PW.4/CW.1-Kadlenni Basappa at 12
O'clock. When he was in the house of
PW.4/CW.1-Kadlenni Basappa, there were
more than 15 persons in the said house. He
is unable to say their names, but states that
they were residents of the village. He states
that his house and PW.4/CW.1-Kadlenni
Basappa's house are in the same lane at a
distance of 60-70 feet. He does not know if
the accused have also lodged complaint
against PW.4/CW.1-Kadlenni Basappa and
others for assaulting them. When he went to
the house of PW.4/CW.1-Kadlenni Basappa,
the iron gate and main door were open,
about 15-20 persons were outside the house.
He states that the quarrel lasted for 45
minutes. He and other 15-20 persons tried to
pacify the quarrel. He has further stated that
Crl.A. No.100106/2016
Kamaraj, PW.11/CW.13-Lakappa and
PW.12/CW.14-Basavaraj were not there in
the house of PW.4/CW.1-Kadlenni Basappa
when police came there. He has denied rest
of the suggestions.
16. PW.4/CW.1-Kadlenni Basappa in his examination-
in-chief conducted on 07.03.2014 has stated that;
16.1. PW.13/CW.17-Eashwargouda is the son of his
elder sister (nephew). He knows about the
quarrel which took place on 25.07.2010 in
front of the milk dairy. When he was at his
house some persons came and told him about
the quarrel and then he, his younger brother
PW.5/CW.5-Kadlenni Shivappa, PW.7/CW.11-
Manjappa and PW.8/CW.12-Veeranna went
there. In the meanwhile, PW.14/CW.22-
Dyamappa and CW.23-Kaddigoudara
Crl.A. No.100106/2016
Bharamappa pacified the said quarrel and
they came back to the house. He states that
on the same day at midnight all the accused
persons came to his house. He also states as
regards who was carrying which weapons as
per PW.2/CW.3-Ambli Jayappa and
PW.3/CW.7-Shantappanavara Chandrappa.
16.2. He has stated that the accused persons came
near his house and were shouting that they
will kill him and his children. When he came
out of the house on hearing the sound, he
requested them not to make any sound and
they can settle the matter in the morning. In
spite of that they pushed the front door of
the house and entered the house. The back
lock of the said front door fell down. He has
also described the assault and quarrel similar
to that stated by PW.2/CW.3-Ambli Jayappa
Crl.A. No.100106/2016
and PW.3/CW.7-Shantappanavara
Chandrappa.
16.3. He states that some persons who had
gathered there had called an ambulance and
taken them to the Government Hospital,
Huvina Hadagali for treatment. The police
came there after Kamaraj was taken in the
ambulance. He states that he and his
younger brother PW.5/CW.5-Kadlenni
Shivappa went to the Police Out Post at 1.00
a.m. PW.5/CW.5-Kadlenni Shivappa lodged
the complaint as per his instructions and he
gave the complaint. He has identified the
complaint as Ex.P.3 and signature of the
witness as Ex.P.3(a).
16.4. He states that the police came on the next
day, took photographs, seized clubs and
Crl.A. No.100106/2016
drawn mahazar in the presence of
PW.2/CW.3-Jayappa, PW.1/CW.2-
Shantappanavara Basappa and seized MOs.1
to 8. The doctor at Huvina Hadagali Hospital
advised to take Kamaraj to Chigateri
Hospital, Davanagere. Hence, he was taken
to Chigateri Hospital and then to City Central
Hospital, Davanagere, where he was in coma
for 5 days and later died on 01.08.2010 in
the hospital.
16.5. He was cross-examined on 26.04.2014,
wherein he has stated that he does not know
the contents of the complaint, it was written
by his brother PW.5/CW.5-Kadlenni
Shivappa. He admits that in the complaint, it
is stated that the accused persons had
broken the back door of the house and
entered into the house.
Crl.A. No.100106/2016
16.6. The police came to the scene of crime at
midnight 12 O'clock, after the death of
Kamaraj. About 15-20 persons had gathered
there when the police came to the spot at
midnight and that it was drizzling at that
time. He states that he slept at 9.00 p.m. He
has no proper eyesight. He had not opened
the main door of the house. He was near the
back door of the house, which had been
locked by him, but was opened by the
accused persons. That night, he had slept
alone on the platform near the back door.
The house of his younger brother
PW.5/CW.5-Kadlenni Shivappa is about 30
feet from the back door of his house.
PW.5/CW.5-Kadlenni Shivappa and his sons
were also sleeping on the platform.
Crl.A. No.100106/2016
16.7. He states that the accused persons had
broken the front door and entered into the
house and before he came to the front door
of the house, about 10-15 persons had
entered the house. He knows the name of
some person. He knows some persons, but
he does not know the name of everyone.
16.8. He was recalled and further cross-examined
on 05.07.2014, wherein he has stated that
10-15 people had come to his house, but he
is unable to say who they are, but they are
all from his village and he knows them. He
states that the quarrel happened for about
one hour. He admits that the accused have
filed a case against him and that he and
others are accused in that case.
Crl.A. No.100106/2016
16.9. He denies that his nephew had hit the
accused and they were taken to the hospital.
He denies there were 4-5 criminal cases
against Kamaraj, but admits that there was a
fight as regards water pipeline. He denies
that there was a case filed by Kamaraj for
hitting BEO or about a sand mining case
being filed against him. He denies that he is a
congress leader. He states that he has not
gone to the hospital with the wounded or
anytime thereafter. He admits that
PW.2/CW.3-Ambli Jayappa is his son-in-law.
He cannot say at what time police came to
his house. He admits that MOs.1 to 6 are
commonly found in the farmers house. He
does not know that is written in Ex.P.1.
17. PW.5/CW.5-Kadlenni Shivappa in his examination-
in-chief conducted on 05.07.2014 has stated that;
Crl.A. No.100106/2016
17.1. PW.4/CW.1-Kadlenni Basappa is his brother,
PW.6/CW.4-Sangana Basappa, PW.7/CW.11-
Manjappa and PW.8/CW.12-Veeranna are his
brother's children, PW.12/CW.14-Basavaraj
and CW.15-Nagaraj are his children,
PW.11/CW.13-Lakappa, Kamaraj and
PW.13/CW.17-Eashwargouda are his
nephews and that PW.13/CW.17-
Eashwargouda works as a secretary at dairy.
He states that on 25.07.2010 at 7.00 p.m. he
went to the dairy after coming to know about
the fight between PW.13/CW.17-
Eashwargouda and accused No.3-Kantesh
regarding an issue about milk.
17.2. The fight was pacified by CW.23-
Kaddigoudara Bharamappa and
PW.14/CW.22-Harlalli Dyamappa and
thereafter they went home. After dinner
Crl.A. No.100106/2016
when he was sleeping at home at 12 O'clock
he has stated about accused No.1-
Kenchanagoudra Basavarajappa and others
carrying various MO's and entering the house
of PW.4/CW.1-Kadlenni Basappa. Hearing the
commotion, he and his children
PW.12/CW.14-Basavaraj, CW.15-Nagaraj
went there. At that time Kamaraj and
PW.11/CW.13-Lakappa also came there. He
states that accused No.4-Kariyappa pointed
to them and stated that he would kill them.
17.3. He has stated that accused No.1-
Kenchanagoudar Basavarajappa hit on the
head of Kamaraj with great force with a stick,
accused No.3-Kantesh hit the head of
Kamaraj with stone and accused No.2-Girish
hit on the head of Kamaraj with an axe when
he started bleeding and fell down. He states
Crl.A. No.100106/2016
that when PW.11/CW.13-Lakappa went to
help Kamaraj, accused No.2-Girish and
accused No.3-Kantesh held PW.11/CW.13-
Lakappa and accused No.4-Kariyappa hit on
the head of PW.11/CW.13-Lakappa with stick.
accused No.5-Rudrappa hit him with stone
and accused No.3-Kantesh bit his shoulders.
An ambulance was called by someone and
the injured were taken in it. At that time,
accused threw the weapons and fled.
17.4. He states that his son PW.12/CW.14-
Basavaraj had injures on his right knee.
PW.11/CW.13-Lakappa had broken his hand
and his head was injured. Kamaraj was
bleeding from the head and was unconscious.
At first, they went to Hadagali Government
Hospital and after first aid was administered
they went to Davanagere City Central
Crl.A. No.100106/2016
Hospital, where Kamaraj was admitted. He
came to know about the death of Kamaraj on
01.08.2010, the death having occurred
because of the assault done by the accused.
He identifies MOs.1 to 6.
17.5. In his cross-examination on the same day, he
has stated that his daughter is married to the
brother of accused No.1-Kenchanagoudra
Basavarajappa. Accused No.1-
Kenchanagoudra Basavarajappa, his brothers
and his children live together. He denies
about the fight in the evening taking place at
6.00 p.m, but states that it took place at 7.00
p.m. He denies that accused No.3-Kantesh
was assaulted. He also denies that at 10.30
p.m. when the accused were going to grain
thrashing yard, he and his brothers assaulted
them. He states that at 10.00 p.m. on that
Crl.A. No.100106/2016
day it was raining. He states that the police
had come at 10.00 a.m. on the next day after
the incident. He has not gone to the hospital
to see the injured. He has not given any
statement to the police. He states that 20-25
people had gathered during the incident,
some were inside and some were outside.
They were from his village, he knows them
but he cannot name them.
17.6. He states that he has entered the house of
his brother PW.4/CW.1-Kadlenni Basappa
through the back door. He went with his
brother to file the complaint. He denies all
other suggestions and supported the case of
the prosecution.
18. PW.6/CW.4-Sangana Basappa in his examination-
in-chief conducted on 05.07.2014 has stated that;
Crl.A. No.100106/2016
18.1. PW.4/CW.1-Kadlenni Basappa is his father,
PW.7/CW.11-Manjappa and PW.8/CW.12-
Veeranna are his brothers, PW.5/CW.5-
Kadlenni Shivappa is his uncle (father's
younger brother), PW.12/CW.14-Basavaraj
and CW.15-Nagaraj are his cousins,
PW.11/CW.13-Lakappa, deceased Kamaraj
and PW.13/CW.17-Eashwargouda are his
uncles, PW.13/CW.17-Eashwargouda is the
secretary of milk dairy.
18.2. He has stated that on 25.07.2010 at about
7.00 p.m. he heard from others that accused
No.1-Kenchanagoudra Basavarajappa, his
brothers and children had a fight with
PW.13/CW.17-Eashwargouda with regard to
dispute regarding milk delivered. At that time
his father PW.4/CW.1-Kadlenni Basappa,
Kamaraj, PW.11/CW.13-Lakappa and others
Crl.A. No.100106/2016
went and stopped the fight and returned
home. On the same night at 12.00 a.m.,
accused No.1-Kenchanagoudar
Basavarajappa, his brothers and children
came to their house holding wooden sticks
and stones in their hands and started
shouting. Thereafter they broke open the
door of their house and entered their house.
They went into the room of his brother
PW.7/CW.11-Manjappa who was sleeping in
the room and dragged him out. When
accused No.2-Girish tried to hit on his head
with axe, PW.7/CW.11-Manjappa tried to
block with his hand and as such his left hand
broke. Accused No.4-Kariyappa hit him on
the head with wooden stick and bit his chest.
When his other brother PW.8/CW.12-
Veeranna who was sleeping in another room
Crl.A. No.100106/2016
came out, accused No.4-Kariyappa hit him on
his left shoulder with wooden stick. At that
time his uncle PW.5/CW.5-Kadlenni Shivappa,
his children PW.12/CW.14-Basavaraj and
CW.15-Nagaraj came there followed by
Kamaraj, PW.11/CW.13-Lakappa. Accused
No.6-Ramesh shoved down PW.12/CW.14-
Basavaraj, twisted his left leg and hit him
with a wooden stick on both legs and
thereafter accused No.1-Kenchanagoudra
Basavarajappa with wooden stick, accused
No.3-Kantesh with stone and accused No.2-
Girish with an axe, hit Kamaraj with full force
on his head, then he started to bleed and lost
conscious and fell down. When
PW.11/CW.13-Lakappa went to lift Kamaraj,
accused No.2-Girish and accused No.3-
Kantesh held PW.11/CW.13-Lakappa and
Crl.A. No.100106/2016
accused No.5-Rudrappa hit PW.11/CW.13-
Lakkappa with a stone on his head, accused
No.6-Ramesh hit his knee with a stick,
accused No.3-Kantesh bit the right shoulder
of PW.11/CW.13-Lakappa.
18.3. At that time, PW.1/CW2-Shantappnavara
Basappa, CW.6-Shantappanavara
Basavarajappa, PW.3/CW.7-Shantappanavara
Chandrappa, PW.2/CW.3-Ambli Jayappa,
Gooleppa came into the house and pacified
the galata.
18.4. Someone had called 108 ambulance,
PW.11/CW.13-Lakappa and Kamaraj were put
in the ambulance and were taken to Hadagali
Hospital and thereafter Kamaraj was taken to
Davanagere City Central Hospital for better
treatment. He was in coma for 6-7 days and
Crl.A. No.100106/2016
thereafter he expired. His death was due to
the assault caused on him.
18.5. He states that the incident occurred in the
hall (padasale) of his house at 12.00 a.m. He
identifies MOs.1 to 5 as stones and sticks.
and axe as MO.6. He states that the police
had made enquiry with him and recorded a
statement on 30.07.2010.
18.6. In the cross-examination conducted on the
same day, he states that the quarrel lasted
for about 45 minutes, The fight was going on
for 45 minutes prior to PW.5/CW.5-Kadlenni
Shivappa, his children, Kamaraj and
PW.11/CW.13-Lakappa coming to the house.
At that time no one from the village was
present at the spot.
Crl.A. No.100106/2016
18.7. They were sleeping prior to the incident and
had not come out. The bolt of his house had
been broken. His father had slept on the
platform next to the place where
arrangements were made for tying the cattle.
He did not open the door even after hearing
the sound of the quarrel. He woke up due to
the said sound. He does not know whether
his father was awake, he did not wake him
up. His father opened the back door and
came out. He does not know if anybody else
was present at that time. He had witnessed
the entire quarrel for the duration of 45
minutes.
18.8. He states that his father was in the house
when the quarrel had happened. PW.5/CW.5-
Kadlenni Shivappa and his sons came into the
house from back door. Thereafter the quarrel
Crl.A. No.100106/2016
went on for 50 more minutes. PW.5/CW.5-
Kadlenni Shivappa, his sons as also Kamaraj
and PW.11/CW.13-Lakappa came into the
house at the same time. It was drizzling at
that time.
18.9. He denies that the police came at 11 O'clock.
He states that they came at 12 O'clock. At
that time there were various villagers. The
police did not make enquiries with him or
with his father. He had not shown which
stone/stick/axe was used by the accused in
the quarrel, to the police. He had also not
informed the police that accused had
threatened to kill all of them. He had not
informed the police who hit whom, and
where, as also of Kamaraj having been
unconscious. He did not see if the police were
there till the morning. He had not informed
Crl.A. No.100106/2016
the police that he had been injured on
account of the assault by the accused. He did
not suffer from any injuries. He states that
the police did not make enquires with the
people who had gathered around the house.
He states that the items like MOs.1 to 6 may
be available in any farmer's house.
18.10. He denies that PW.7/CW.11-Manjappa went
to the hospital and obtained treatment. He
further denies that PW.8/CW.12-Veeranna
and PW.12/CW.14-Basavaraj also did not get
any treatment. He does not know if accused
had filed a complaint alleging that they were
assaulted when they were going to their
Grain thrashing yard on 25.07.2010 at 10.30
p.m. He has denied the suggestion that he
had not come to the Court as an accused in
that matter. He admits that there was a fight
Crl.A. No.100106/2016
in front of the milk dairy on that day evening.
He denies because of that the complainants
had assaulted the accused.
18.11. He states that there were about 7-8 persons
in front of his house. He knows them, but he
is unable to give their names. He states that
the police did not come to his house the next
day of the quarrel. He did not go to the police
station on the next day. He denies all other
suggestions made to him.
19. PW.7/CW.11-Manjappa son of PW.4/CW.1-Kadlenni
Basappa in his examination-in-chief conducted on
26.07.2014 has stated that;
19.1. PW.4/CW.1-Kadlenni Basappa is his father,
PW.6/CW.4-Sangana Basappa and
PW.8/CW.12-Veeranna are his brothers,
PW.8/CW.12-Veeranna is his uncle's son
Crl.A. No.100106/2016
(father's younger brother's son),
PW.11/CW.13-Lakappa and Kamaraj are his
cousins, PW.13/CW.17-Eashwargouda is his
nephew and secretary at the dairy. He knows
the accused, they are from his village.
19.2. On 25.07.2010 at 7.00 p.m. there was a fight
between PW.13/CW.17-Eashwargouda and
accused No.3-Kantesh regarding the milk
delivered, at that time he was in his house.
He came to know about the fight from
someone. Hence, he along with PW.8/CW.12-
Veeranna, PW.12/CW.14-Basavaraj,
PW.5/CW.5-Kadlenni Shivappa and
PW.4/CW.1-Kadlenni Basappa went to the
dairy. By that time, fight had already been
stopped by PW.14/CW.22-Dyamappa and
CW.23-Kaddigoudar Bharamappa. Hence, all
Crl.A. No.100106/2016
went back, at which time the accused had
threatened not to spare them.
19.3. He states that on the same night when he
was sleeping around 12 midnight, the
accused came to their house and started
shouting and screaming, hearing that he
woke up. The accused kicked open the door
of his bedroom, dragged him out to the hall
(padasale) of the house. When accused No.2-
Girish tried to hit him with axe, he put up his
hands to avoid injury to his head at that time
handle of the axe hit his left hand resulting in
fracture. Accused No.4-Kariyappa hit him
with stick and bit him on his chest. When his
brother PW.8/CW.12-Veeranna who was in
another room woke up to the sound and
came there, accused No.4-Kariyappa hit him
on his left shoulder and poked his left eye. At
Crl.A. No.100106/2016
that time PW.12/CW.14-Basavaraj,
PW.5/CW.5-Kadlenni Shivappa and CW.15-
Nagaraj also came in. Then accused No.6-
Ramesh hit PW.12/CW.14-Basavaraj on both
his knees, accused No.1-Kenchanagoudra
Basavarajappa hit Kamaraj's head with
wooden stick, accused No.3-Kantesh
smashed on his head with stone, accused
No.2-Girish hit him with axe. At that time
Kamaraj was bleeding and became
unconscious and fell to the ground.
PW.11/CW.13-Lakappa rushed towards
Kamaraj. Then accused No.2-Girish and
accused No.3-Kantesh held him and accused
No.4-Kariyappa hit him on his right thigh with
a wooden stick, accused No.5-Rudrappa hit
him on his head with a stone, accused No.4-
Kariyappa bit the right shoulder of
Crl.A. No.100106/2016
PW.11/CW.13-Lakappa. When the ambulance
came, PW.11/CW.13-Lakappa put Kamaraj in
the ambulance and they were taken to
Davanagere Chigateri Hospital. When they
were not treated, they were taken to
Davanagere City Central Hospital, where
Kamaraj continued to be in coma and expired
on 01.08.2010. Kamaraj was also known as
Honnappa.
19.4. He states that he was also injured in the
fight. He was admitted to Davanagere City
Central Hospital for three days. Kamaraj died
due to heavy blow from the axe. He states
that he gave statement to the police on 6th
and he identifies MOs.1 to 6.
19.5. In his cross-examination conducted on the
same day, he denies that the accused are
Crl.A. No.100106/2016
related to him. He does not know if the
daughter of PW.5/CW.5-Kadlenni Shivappa
and brother of accused No.1-Kenchanagoudra
Basavarajappa were married. He states that
at 6.00 p.m. that day there was a fight when
accused No.3-Kantesh had been to deliver
the milk. The police had not come to the
spot at that time. They slept at 9.30-10.00
p.m. He denies that when he got up the
house was in darkness. He states that no one
else from the village was present at that
time. His father was sleeping near the cattle
shed, his brother PW.6/CW.4-Sangana
Basappa was sleeping in a room. He does not
know who broke the door or who opened the
door. He does not know if the back door was
open. When he got up no one was awake.
After ten minutes PW.8/CW.12-Veeranna
Crl.A. No.100106/2016
came. He does not know at what time
PW.6/CW.4-Sangana Basappa came there.
His father came there five minutes before he
was hit. The incident took place for about 30-
40 minutes.
19.6. He states that if one were to stand on east of
the door of his house, the house of
PW.11/CW.13-Lakappa would not be seen.
He states that on that day the main door of
his house had not been broken. He does not
know who opened the door of his house. He
has not seen whether latch of the back door
had been broken. He does not know who all
from his house had woken up. Within ten
minutes after waking up, his brother
PW.8/CW.12-Veeranna came there. He does
not know if PW.6/CW.4-Sangana Basappa
had been arrested. His father had come to
Crl.A. No.100106/2016
the spot within five minutes after
PW.7/CW.11-Manjappa was assaulted. The
quarrel went on for 30-45 minutes. They
cannot see PW.11/CW.13-Lakappa's house
from the east door of the house of
PW.4/CW.1-Kadlenni Basappa. Before
Kamaraj and PW.11/CW.13-Lakappa came to
the place there was no one else from the
village who had come there.
19.7. He states that at the time when the quarrel
was going on, 25 people from the village
might have gathered there. He knows them,
but is unable to state their name.
19.8. He denies that at 10.30 p.m. on the same
day when accused were near his house and
going to grain thrashing yard, they had
assaulted the accused. The accused had
Crl.A. No.100106/2016
come to their house at 12.00 midnight. The
police had come inside the house. He was
present when the police came but he did not
inform them about the quarrel. But his father
had informed. PW.6/CW.4-Sangana Basappa
and PW.5/CW.5-Kadlenni Shivappa also
informed the police. When the police came,
PW.11/CW.13-Lakappa and Kamaraj were not
in the house. They had been taken in an
ambulance to the hospital. There were two
policemen near the house. When the police
came at 6.00 a.m. on the next day morning,
he had been to Davanagere. He states, on
the night of the incident he did not get any
treatment done. Before 28th the police had
not taken the statement. Even after 28th he
had not gone to the police station. After he
was discharged from the hospital, he gave
Crl.A. No.100106/2016
statement on 5th. He again says he does not
know on which date he gave the statement.
He states that the police wrote down what he
had stated. He states that his father and his
brother PW.6/CW.4-Sangana Basappa were
not injured. PW.12/CW.14-Basavaraj and
PW.8/CW.12-Veeranna also did not get any
treatment. He denies rest of the suggestions
made to him.
20. PW.8/CW.12-Veeranna in his examination-in-chief
conducted on 26.07.2014 states that;
20.1. PW.4/CW.1-Kadlenni Basappa is his father.
His father, brothers PW.7/CW.11-Manjappa,
PW.6/CW.4-Sangana Basappa Basappa, his
mother CW.18-Gouramma, wife CW.19-
Roopa and sister CW.20-Manjulamma stay
together. He states that PW.13/CW.17-
Crl.A. No.100106/2016
Eashwargouda is the son of his aunt (father's
sister) and he works as secretary in the dairy.
On 25.07.2010 at 7.00 p.m. when he was at
home, he came to know that PW.13/CW.17-
Eashwargouda and accused No.3-Kantesh
were fighting in front of milk dairy. He along
with his father and PW.7/CW.11-Manjappa
went there, by that time, PW.14/CW.22-
Dyamappa and CW.23-Kaddigoudar
Bharamappa had stopped the fight. That
night while sleeping, he heard some
commotion and came out only to see the
accused were dragging his brother
PW.7/CW.11-Manjappa from the room and
accused No.2-Girish was hitting him with an
axe which was blocked by him with his hand
resulting in fracture of his left hand.
Crl.A. No.100106/2016
20.2. He has further described the fight/quarrel in
more or similar manner as that described by
others. He identifies MOs.1 to 6 as sticks,
stones and axe.
20.3. In his cross-examination held on the same
day, he states that when he woke up and he
came out he saw accused were beating his
brother PW.7/CW.11-Manjappa. At that point
of time none of the villagers were present
near the house. He states that usually the
door would be locked at night. He does not
know who opened the door at 12.00 a.m. His
father PW.4/CW.1-Kadlenni Basappa and his
brother PW.6/CW.4-Sangana Basappa were
in the hall (padasale) and both were
uninjured. He states that the door was not
broken but the latch was open. He states that
the quarrel happened for 30 minutes during
Crl.A. No.100106/2016
which period 4-5 persons from the village had
come to their house. PW.5/CW.5-Kadlenni
Shivappa and his children came at 12.15 a.m.
and 5-10 minutes thereafter PW.11/CW.13-
Lakappa and Kamaraj came there.
20.4. He denies that in that fight which happened
at 6 O'clock, they had assaulted accused
No.3-Kantesh. He also denies when the
accused were going to their Grain thrashing
yard at 10.30 p.m. they assaulted the
accused. He states that the police did not
take statement that night. He did not show
the sticks, axe and stones to the police.
20.5. When the police came, his father PW.4/CW.1-
Kadlenni Basappa, his brother PW.6/CW.4-
Sangana Basappa and PW.7/CW.11-Manjappa
were there. None of them gave any
Crl.A. No.100106/2016
statement to the police. He does not know
what time police had come, but they had
come to his house. He is unable to say the
time because of the long passage of time. He
again says that the police did not come on
the next day and again retracts by saying
that they had come. Then he states that the
police came after 11 O'clock. Then he
informed the police about the incident.
Statements were given by his father, his
brother PW.6/CW.4-Sangana Basappa, his
uncle PW.5/CW.5-Kadlenni Shivappa and
PW.12/CW.14-Basavaraj. The police seized
the sticks, stones and axe on that day. The
police did not come two days after. He denies
all other suggestions made to him.
Crl.A. No.100106/2016
21. PW.9/CW.8-Honnappa S/o Mahadevappa in his
examination-in-chief conducted on 10.10.2014 has
stated that;
21.1. On 01.08.2010 police had called him to
Davanagere C.J. Hospital for panchanama
regarding dead body of the deceased
Kamaraj. At the hospital, Kamaraj was on a
table at the morgue and his head was
completely wrapped in bandages. He came to
know that he had died due to the injuries
sustained during the assault. Inquest
Panchanama was carried out at 8-10 p.m.
and he has signed the same. The inquest
panchanama was identified as Ex.P.4 and his
signature as Ex.P.4(a).
21.2. In the cross-examination conducted on the
same day, he says that PW.4/CW.1-Kadlenni
Crl.A. No.100106/2016
Basappa is his uncle. The police had come
and taken him. The doctors had opened the
wound in his presence and thereafter
bandaged it and the details were entered into
the panchanama.
22. PW.10/CW.10-Rajashekhar Jatti, in his
examination-in-chief conducted on 10.10.2014
states that;
22.1. He is a native of Hadagali taluk, Holalu
village. PW.13/CW.17-Eashwargouda is his
brother who is the secretary of the dairy.
PW.4/CW.1-Kadlenni Basappa is his uncle.
PW.11/CW.13-Lakappa and Kamaraj are his
brothers. He states that on 25.07.2010 he
was at Ranebennur when PW.13/CW.17-
Eashwargouda had called him at 7.00 p.m.
and told him over phone about his quarrel
Crl.A. No.100106/2016
with accused No.3-Kantesh. Later at 3.00
a.m, PW.13/CW.17-Eashwargouda and
PW.8/CW.12-Veeranna had called him and
told him about the fight that had happened at
12.00 a.m. where the accused No.1-
Kenchanagoudra Basavarajappa, his brothers
accused No.4-Kariyappa, accused No.5-
Rudrappa, accused No.6-Ramesh and
accused No.1-Kenchanagoudra
Basavarajappa's children accused No.2-Girish
and accused No.3-Kantesh had come to
PW.4/CW.1-Kadlenni Basappa's house, armed
with stones, sticks and axe, they barged into
the house and assaulted them including
PW.11/CW.13-Lakappa and Kamaraj who
were hit with wooden sticks and axe and
were seriously wounded as a result of which
they were taken to Davanagere Hospital.
Crl.A. No.100106/2016
22.2. He went to the hospital at 9.00 a.m. and met
PW.11/CW.13-Lakappa and his wife. Kamaraj
was seriously injured and was in ICU. When
he enquired PW.11/CW.13-Lakappa, he had
informed him about accused No.1-
Kenchanagoudra Basavarajappa, accused
No.4-Kariyappa, accused No.2-Girish and
accused No.3-Kantesh having assaulted them
and of PW.2/CW.3-Ambli Jayappa and
PW.1/CW.2-Shantappanavar Basappa having
broken up of the fight, Kamaraj expired on
01.08.2010 at 2.20 p.m. on account of the
injuries sustained.
22.3. In the cross-examination conducted on the
same day, he has stated that he was not in
Holalu village at 7.00 p.m. on that day.
PW.13/CW.17-Eashwargouda had called him
twice. He has not given the mobile number to
Crl.A. No.100106/2016
the police and he was in the hospital from
9.00 a.m. From next day onwards he was
visiting the hospital every day. He states
that he had not met the police when he was
at the hospital. He does not know the exact
dates on which he visited the village. He has
discussed with PW.4/CW.1-Kadlenni Basappa
about the incident on one occasion. The
police have taken his statement on
01.08.2010 and 02.08.2010. He has not gone
to the police station but he has seen the
wounds on his brother.
23. PW.11/CW.13-Jatti Lakkappa in his examination-
in-chief conducted on 10.10.2014 has stated that;
23.1. PW.4/CW.1-Kadlenni Basappa is his uncle,
Kamaraj and PW.13/CW.17-Eshwargouda are
his brothers. PW.13/CW.17-Eshwargouda is
Crl.A. No.100106/2016
working as secretary at the dairy. On 25th
July, 2010 a fight had taken place between
PW.13/CW.17-Eshwargouda and the accused
regarding an issue with the milk. Himself,
Kamaraj, PW.12/CW.14-Basavaraj,
PW.6/CW.4-Sangana Basappa went to dairy
and saw them fighting. Then PW.14/CW.22-
Dyamappa and CW.23-Kaddigoudara
Bharamappa stopped the fight, thereafter
they went home. At night when they were
sleeping, at 12 midnight accused had come to
the house of PW.4/CW.1-Kadlenni Basappa
shouting and making a racket. He and
Kamaraj went to the house of PW.4/CW.1-
Kadlenni Basappa, by that time PW.5/CW.5-
Kadlenni Shivappa and PW.12/CW.14-
Basavaraj had also come there. Accused
No.3-Kantesh was beating PW.12/CW.14-
Crl.A. No.100106/2016
Basavaraj when they entered. The accused
pointed to them, used foul language and
threatened them. They assaulted Kamaraj,
PW.12/CW.14-Basavaraj hit his brother on
his head with a stick, accused No.2-Girish
assaulted with a axe and Accused No.3-
Kantesh with a stone on the head of the
Kamaraj. When he went to help his brother,
accused No.2-Girish and Accused No.3-
Kantesh held him tightly, accused No.5-
Rudrappa smashed his head with stone,
accused No.4-Kariyappa hit his right leg with
stick and Accused No.3-Kantesh bit his right
shoulder. An ambulance had come by then.
Hence, he, Kamaraj and his sister-in-law
went to Hadagali hospital, where the wounds
were stitched and they were sent to
Davanagere City Central Hospital. After 4-5
Crl.A. No.100106/2016
days Kamaraj died at the hospital. He
identifies MOs.1 to 6 as also the accused.
23.2. In the cross-examination held on the same
day, he states that their house is next to the
main road and PW.4/CW.1-Kadlenni
Basappa's house is in the next cross. It was
raining that night and they were sleeping
outside on the porch. He states that from his
house no one could see inside PW.4/CW.1-
Kadlenni Basappa's house, no one woke
them. They entered PW.4/CW.1-Kadlenni
Basappa's house from the east door, there
were 10-20 people from the village who had
gathered in front of the house. He knows
them, but he cannot name them. By the time
they had gone to the house, the quarrel was
going on for more than 50 minutes. They
were there for 60-90 minutes then the police
Crl.A. No.100106/2016
came there. The police did not make any
enquiry at that time and he did not tell them
that the accused had assaulted them. The
police had gone with him to Davanagere
Hospital. He has not taken any treatment for
his wounds. Even on that day police had not
made any enquiry and he had not told the
police about the incident. He had informed
PW.10/CW.10-Rajashekhar about the incident
and he came to the hospital and stayed till
morning and would come everyday to the
hospital.
23.3. He again states that he took treatment in
Davanagere City Central Hospital. He states
that he came to know about the fight that
occurred on 25.07.2010 at 5.00 p.m. He
denies that he, Kamaraj and PW.13/CW.17-
Eshwargouda had assaulted Accused No.3-
Crl.A. No.100106/2016
Kantesh and accused No.1-Kenchanagoudra
Basavarajappa. He denies that they had
assaulted and caused injuries to the accused
at 10.00 p.m. on that night. The police had
not come to the place at 10.30 in the night.
He denies that accused had gone to the
hospital for treatment at 11.00 p.m. He
denies all other suggestions put to him. He
states that the police had not come to the
hospital after Kamaraj's death nor did they
take any statement. They did not come for
the final rites of his brother and he has also
not gone to the police station.
24. PW.12/CW.14-Kadlenni Basavaraj in his
examination-in-chief conducted on 15.11.2014 has
stated that;
Crl.A. No.100106/2016
24.1. PW.4/CW.1-Kadlenni Basappa is his uncle
(elder brother of his father), PW.5/CW.5-
Kadlenni Shivappa is his father, PW.7/CW.11-
Manjappa and PW.8/CW.12-Veerappa are his
brothers, PW.11/CW.13-Lakappa,
PW.13/CW.17-Eshwargouda and Kamaraj are
his uncles, PW.13/CW.17-Eshwargouda is his
nephew who works as secretary at the dairy.
24.2. On 25.07.2010 at 7.00 p.m. a fight had taken
place between PW.13/CW.17-Eshwargouda
and accused No.3-Kantesh. He, Honnappa,
PW.11/CW.13-Lakappa and his father
(PW.5/CW.5-Kadlenni Shivappa) went to the
dairy at which point of time accused No.1-
Kenchanagoudra Basavarajappa and his
children were fighting with PW.13/CW.17-
Eshwargouda, which fight was stopped by
PW.14/CW.22-Dyamappa and CW.23-
Crl.A. No.100106/2016
Kaddigoudara Bharamappa, they also
stopped the fight and after that they went
home.
24.3. At 12 midnight when he was sleeping, he
heard commotion, he and his father came out
of their home when they came to know that
there was a fight going on in his uncle's
home. Hence, they went to PW.4/CW.1-
Kadlenni Basappa's house. When they
entered, accused were assaulting
PW.7/CW.11-Manjappa and PW.8/CW.12-
Veerappa. When he and his father tried to
stop the fight, accused No.6-Ramesh made
him fall down and twisted his left leg and hit
him with a stick on both his legs. At which
point of time, Honnappa @ Kamaraj and
PW.11/CW.13-Lakappa came there and tried
to stop the fight.
Crl.A. No.100106/2016
24.4. Accused No.1- Kenchanagoudra
Basavarajappa @ Basappa assaulted them,
used foul language and stated they would kill
them and assaulted Kamaraj with a stick on
his head, Accused No.3-Kantesh assaulted
Kamaraj with a stone and accused No.2-
Girish assaulted him with an axe. When
Kamaraj fell down unconscious,
PW.11/CW.13-Lakappa tried to help him,
accused No.2-Girish and Accused No.3-
Kantesh held him, accused No.4-Kariyappa
hit PW.11/CW.13-Lakappa with stick on both
his legs and his thighs, accused No.5-
Rudrappa assaulted PW.11/CW.13-Lakappa
with stone, Accused No.3-Kantesh bit the
right shoulder of PW.11/CW.13-Lakappa.
24.5. By that time an ambulance had come. Hence,
the injured were put in and were taken to
Crl.A. No.100106/2016
Hadagali hospital. Since serious injury was
caused to Kamaraj, he was in coma. On
01.08.2010 Kamaraj expired at 2.20 p.m.
Since his uncle Kamaraj was hospitalized, he
did not get treatment for himself but got
treated on 05.08.2010 at Huvina Hadagali
Government Hospital and he gave a
statement to the police on that day. He
identifies MOs.1 to 6.
24.6. In his cross-examination conducted on the
same day, he states that he is aware that any
injury would have to be treated. When
injured whenever he has time, he would get
it treated. None of the elders of the village
were present in the house of PW.4/CW.1-
Kadlenni Basappa when they had gone there.
They went into the house of PW.4/CW.1-
Kadlenni Basappa through the back door. The
Crl.A. No.100106/2016
front door was open at that time. He has not
seen whether the latch of the front door had
been broken. There were 5-6 stones fallen in
front of the door. The incident went on till
12.20-12.30 a.m. The police persons came to
the spot. He did not give any information to
the police about the incident at that time. He
did not show them the stones. He did not go
to the hospital that night. He was in
Davanagere hospital for six days. He did not
go home. During that time, the police had
come and made enquiries as regards the
incident. He has given a statement.
24.7. He denies that on 25.07.2010 at 6.00 p.m.
PW.13/CW.17-Eshwargoud, PW.7/CW.11-
Manjappa and PW.8/CW.12-Veerappa had
assaulted Accused No.3-Kantesh. He denies
that accused No.1-Kenchanagoudra
Crl.A. No.100106/2016
Basavarajappa was injured at that time. He
denies that PW.14/CW.22-Dyamappa and
Bharamappa did not stop the quarrel. He
denies rest of the suggestions put to him.
25. PW.13/CW.17-Eshwargouda in his examination-in-
chief conducted on 15.11.2014 has stated that;
25.1. PW.4/CW.1-Kadlenni Basappa and
PW.1/CW.2-Shantappanavara Basappa are
his uncles, PW.7/CW.11-Manjappa and
PW.8/CW.12-Veerappa are the children of
PW.4/CW.1-Kadlenni Basappa and
PW.1/CW.2-Shantappanavara Basappa,
PW.12/CW.14-Basavaraj and CW.15-Nagaraj
are his relatives, CW.16-Jatti Basavarajappa
is his father, PW.11/CW.13-Lakappa and
Kamaraj are his brothers.
Crl.A. No.100106/2016
25.2. For the past 5-6 years he is working as a
secretary at Holalu village dairy. On
25.07.2010 when Accused No.3-Kantesh
came and gave the milk he found water
mixed in it, which when informed, accused
No.3-Kantesh started to abuse him, rest of
the accused also stated pointing at him and
started abusing him.
25.3. At that time, his brothers and uncles who
heard about the same, came there and
enquired with them as to what happened.
The accused started to abuse them as well.
At that time PW.14/CW.22-Dyamappa and
CW.23-Gaddigoudra Parasappa who had also
come to deliver milk stopped the fight and
then the accused went home.
Crl.A. No.100106/2016
25.4. At 12.30 a.m. that night he heard siren of
ambulance and got up, saw the ambulance
going towards his uncle PW.4/CW.1-Kadlenni
Basappa's house. Hence, he went there and
PW.8/CW.12-Veerappa, PW.12/CW.14-
Basavaraj, PW.7/CW.11-Manjappa and
PW.2/CW.3-Ambli Jayappa were at the
house. All of them were putting Kamaraj and
PW.11/CW.13-Lakappa in the ambulance.
Kamaraj was bleeding profusely from his
head and was unconscious. PW.11/CW.13-
Lakappa's head was also injured. They were
sent to Hadagali Hospital.
25.5. During the said fight he came to know that
PW.8/CW.12-Veerappa, PW.7/CW.11-
Manjappa, Basavaraj and PW.6/CW.4-
Sangana Basappa were also injured and
bleeding. He enquired with his uncle
Crl.A. No.100106/2016
PW.4/CW.1-Kadlenni Basappa who informed
him that the accused were holding grudge
from the dairy incident and hence had
assaulted them. Accused No.1-
Kenchanagoudra Basavarajappa accused
No.4-Kariyappa accused No.6-Ramesh with
sticks, accused No.2-Girish with axe and
Accused No.3-Kantesh with stone had
assaulted PW.7/CW.11-Manjappa,
PW.6/CW.4-Sangana Basappa,
PW.12/CW.14-Basavaraj, PW.11/CW.13-
Lakappa and Kamaraj. On account of the
injuries suffered they were shifted to City
Central Hospital where Kamaraj was in coma
and expired on 01.08.2010 at 2.20 p.m.
25.6. In the cross-examination held on the same
day, he has stated that PW.4/CW.1-Kadlenni
Basappa is a village leader and villagers listen
Crl.A. No.100106/2016
to his words. He is not affiliated to any
political party. He states that the Government
has given milk quality testing machine which
gives report as regards the quality of the
milk. If there is water content in the milk it is
sent back and therefore, he had sent back
the milk brought by Accused No.3-Kantesh as
regards which he has given statement to the
police.
25.7. He denies that Accused No.3-Kantesh gives
100 liters of milk and he states that Accused
No.3-Kantesh gives 10-15 liters of milk. He
states that the house of PW.4/CW.1-Kadlenni
Basappa is situated 500 feet from his house.
If someone were to stand in front of his
house, he could not see PW.4/CW.1-Kadlenni
Basappa's house. Vehicles do not go on the
road in front of his house. In his house,
Crl.A. No.100106/2016
himself, his father and brothers
PW.11/CW.13-Lakappa and Honnappa @
Kamaraj are residing.
25.8. He heard the ambulance sound and he alone
went to the house of PW.4/CW.1-Kadlenni
Basappa. At that time there were 10-15
people gathered around there. He cannot
give the names of those persons. At that time
3-4 police persons came there. The police did
not make any enquiries. He enquired with
PW.4/CW.1-Kadlenni Basappa at 12.45 p.m.
as regards the incident. He states that at that
time along with the police PW.4/CW.1-
Kadlenni Basappa, PW.6/CW.4-Sangana
Basappa, PW.8/CW.12-Veerappa,
PW.7/CW.11-Manjappa and PW.12/CW.14-
Basavaraj were there. The police did not
make enquiry with PW.4/CW.1-Kadlenni
Crl.A. No.100106/2016
Basappa. The police stayed at the spot
throughout the night. He did not inform the
police about what his uncle PW.4/CW.1-
Kadlenni Basappa has told him. He went back
home and slept.
25.9. He admits that when anyone in the house is
grievously injured no one would go to sleep in
the house. He states that on the next day
morning the police came to PW.4/CW.1-
Kadlenni Basappa's house. The police did not
call him and make any enquiry. He states
that he did not go to the house of
PW.4/CW.1-Kadlenni Basappa. From 25th to
31st he used to go to the hospital and make
enquiries about his brothers. The police did
not make any enquiries with him. He denies
rest of the suggestions put to him.
Crl.A. No.100106/2016
26. PW.14/CW.22-Dyavappa in his examination-in-
chief conducted on 15.11.2014 states that;
26.1. He knows PW.13/CW.17-Eshwargouda who is
the secretary at Holalu village dairy. He also
sells milk there. CW.23-Bharmappa is his
uncle. On the date of incident when he went
there at 7.00-7.30 p.m., he saw Accused
No.3-Kantesh and PW.13/CW.17-
Eshwargouda fighting with regard to some
issue with the milk. PW.13/CW.17-
Eshwargouda stated that the milk had water
mixed in it and Accused No.3-Kantesh was
arguing that it is not tampered and to take it
as it is. He along with CW.23-Bharamappa
stopped the fight and sold his milk and
headed home. Next day he found from the
people that PW.4/CW.1-Kadlenni Basappa
and accused No.1-Kenchanagoudra
Crl.A. No.100106/2016
Basavarajappa had fought at PW.4/CW.1-
Kadlenni Basappa's house and two persons
were hospitalized for serious injuries. After a
week, he came to know that one of them had
died.
26.2. In the cross-examination conducted on the
same day, he has stated that the dairy tests
the quality of the milk by using a machine.
Only good quality milk could be accepted,
and watered milk was sent back if the
machine depicted it to be so. He admits that
people used to insist for use of machine to
check the quality of the milk, but denies that
no machine test was carried out. He states
that there were 30-40 people gathered at the
spot. They are all from his village. He knows
them, but he cannot name them.
Crl.A. No.100106/2016
26.3. He admits that PW.4/CW.1-Kadlenni Basappa
and he belongs to the same caste and the
relationship between him and PW.4/CW.1-
Kadlenni Basappa is good. He denies rest of
the suggestions.
27. PW.15/CW.24-Shivanandappa in his examination-
in-chief conducted on 21.07.2015 has stated that
he is the PDO of Holalu Gram Panchayat. He has
furnished the property extract of the house of the
complainant PW.4/CW.1-Kadlenni Basappa as per
the panchayat records. He was not cross-
examined.
28. PW.16/CW.26-Dr.Raju G.M. in his examination-in-
chief conducted on 27.07.2015 has stated that;
28.1. He is the medical officer of the City Central
Hospital, Davanagere. On 26.07.2010 the
injured PW.7/CW.11-Manjappa had come for
Crl.A. No.100106/2016
treatment with one PW.11/CW.13-Lakappa
with the history of assault on 25.07.2010. He
had examined the deceased Kamaraj on
26.07.2010 and PW.7/CW.11-Manjappa on
the same day and noticed the following
injuries:
1. Linear abrasion present over the right arm,
situated near axilla measuring 7 X 2 cms.
horizontally placed, red in colour.
2. Tenderness and swelling present over the
occipital region of scalp.
3. Pattern abrasion present over the left side
of the chest situated above the left nipple
measuring 3 X 3 cms. circular red in colour
due to bite marks.
4. Tenderness and swelling present over the
left hand, situated elbow the elbow joint
upto the wrist joint, lateral movement
restricted.
5. Linear abrasion present over the right side
of the back region, situated near outer
aspect of axilla, measuring 3 X 1 cms .,
red in colour extended from later side of
scapula region upto the axilla.
Crl.A. No.100106/2016
6. Abrasion present over the right side of
ears, situated at chin, measuring 1 X 1
cms., 2 in number, linear horizontally
placed.
28.2. He states that all the injuries are less than 12
hours. Injury No.1, 2, 3 and 4 are simple and
injury No.5 and 6 are grievous in nature. He
had taken X-ray of left forearm and noticed
fracture of left forearm of olicron. He has
issued the wound certificate at Ex.P.6. He
states that injury No.2 could be inflicted by
teeth bite, injury No.3 can be inflicted by
assault with club and injury No.5 could be
inflicted assaulting with wooden handle of
axe. He states that he treated Kamaraj and
noticed sutured wound on left parietal region
of scalp measuring 3 x 1 cms. which was
fresh in nature. He had issued MLC marked at
Ex.P.7. He has examined the axe and stated
Crl.A. No.100106/2016
that the axe could have caused the injury. His
opinion has been marked as Ex.P.8.
28.3. In his cross-examination held on the same
day, he admits that there is overwriting of
date in Ex.P.7 and no initial has been put on
it. He has stated that the injuries were
inflicted while the victim was asleep as per
the say of the brother of the victim. The
patient was treated in Hadagali PHC earlier.
He has not secured the report from the PHC.
He states that PW.10/CW.10-Rajashekhar
had brought the injured PW.7/CW.11-
Manjappa. He has denied all other
suggestions.
29. PW.17/CW.25-Dr.Manjula is the senior specialist in
Chitageri Hospital. In her examination-in-chief
conducted on 21.07.2015, she stated that;
Crl.A. No.100106/2016
29.1. she received requisition from Hadagali Police
Station for conducting postmortem of the
body of Kamaraj @ Honnappa which she
conducted and given a report. She found the
external injuries on left side of the scalp
extending from left frontal to left post
auricular area crossing over left temporal
parietal area. She found sutured wound of 15
inch over left side of scalp extending from left
frontal to left post auricular area crossing
over left temporal parietal area. A triangular
piece of bone was lying freely under the scalp
skin with burn holes at all 3 corners over left
temporal region.
29.2. In the cross-examination on the same day,
she has stated that a person in coma cannot
swallow any food. She has not seen the
previous line of treatment of the deceased
Crl.A. No.100106/2016
before conducting the postmortem. She has
seen the sutured wound while carrying out
the postmortem. She has denied that she is
deposing falsely for political purposes.
30. PW.18/CW.27 Dr. L.N.Lingegouda is working in the
Forensic Science Lab, Davanagere in his
Examination-in-chief conducted on 22.07.2015, he
has stated that:
30.1. On 24.08.2018 the police had sent two sealed
bags with CW.31-P.C. Bennikoppa. He has
inspected the seal and opened them. Item
No.1 was an axe and item No.2 was a
baniyan. He found the human blood of blood
group 'A' and after testing the items the
same were sent back with a report. The
report is identified as Ex.P.10 and he
identifies MO.6 & MO.7.
Crl.A. No.100106/2016
30.2. In the cross-examination conducted on the
same day, he admits that the report does not
indicate the date on which he has tested the
items, he has stated that he has packed the
Baniyan and sent it back. He states that, the
packet which was shown to him is not the
one in which he has sent the items. He states
that, the packet had a seal on it, which now
is not seen. He does not remember on which
side of the blade of the axe was blood
stained.
31. CW.19/PW.29 M.Manjunath, Police Constable at
Hadagali Police Station who delivered the FIR to
the Court, he has stated that, on 26.07.2010 the
PSI called him at 3.00 a.m. and asked him to
deliver the FIR since there were no bus service,
there was a delay. He took the bus at 5.30 a.m.
and delivered the FIR and complaint to the Court.
Crl.A. No.100106/2016
He identifies the FIR at Ex.P.11 and complaint at
Ex.P.3. He states that, to include Section 307 of
IPC, he has delivered the letter from the police
station to the Court. On 01.08.2010 to include
Section 302 another requisition was submitted as
per Ex.P.13. His cross-examination was conducted
on the same day. He states that, though there was
facility of giving vehicle, they have not given the
vehicle, he does not have two wheeler, other
persons have two wheeler. He states that, it takes
2-3 hours by walk to the Court, but on a bike, it
takes 45 minutes. He further states that, the
delivery of FIR was made at 6.00 a.m. The same is
not there in the statement, but can be found in the
FIR.
32. PW.20/CW.32 Shadakshari Patil in his
examination-in-chief, conducted on 06.08.2015
has stated that;
Crl.A. No.100106/2016
32.1. He was working as a ASI at the Hirehadagali
outpost station. On 25.07.2010 at 1.00 a.m.,
the complainant had given a written
complaint which he had sent to the
Hirehadagali police station with Police
Constable Mahantesh as per Ex.P.3. Since PSI
was not available on 30.07.2010 he took
charge as the Station Head, taken up further
investigation in Crime No.41/2010, recorded
the statement of PW.3/CW.7-
Shantappanavara Chandrappa, PW.5/CW.5-
Kadlenni Shivappa, PW.6/CW.4-Sangana
Basappa, PW.2/CW.3-Ambli Jayappa and
CW.6-Shantappanavara Basavarajappa. He
wrote a letter for including Section 302 of
IPC. On 01.08.2010, the Police Constable had
called him to inform him about the demise of
the deceased. Hence, he wrote a letter to
Crl.A. No.100106/2016
include Section 302 of IPC. Since the offence
was grave, he was handed over to the
PW.22/CW.34-Prakash Rathod, CPI. In the
cross-examination conducted on the same
day, he states that PSI would take over the
investigation. Before taking over he would
have seen the investigation made earlier.
Upon receiving the information, he did not
send any police men to the spot at 12.00
a.m. He has not sent anybody at 10.30 p.m.
He had not gone to the spot.
32.2. He went to the spot on the next day morning
at 10.00 a.m. He had not gone inside the
house, but had gone to the place of crime.
When he had gone there, the family members
of the complaint were present. He did not
make any inquiry with the complainant. He
saw the scene of crime. He did not see any
Crl.A. No.100106/2016
material objects at that time. He does not
know if the PSI had enquired with
PW.2/C.W.3-Ambli Jayappa about the
incident. The PSI stayed there, and he went
elsewhere. He does not know of PSI enquiring
with PW.2/CW.3-Ambli Jayappa and
PW.6/CW.4-Sanaga Basappa at recording on
the laptop.
32.3. He does not know the contents of the
complaint. He admits that in the complaint, it
is not stated that the accused had assaulted
complainant. From the investigation
documents, he came to know that the door of
the complainant's house had been broken. He
has not questioned the investigation done by
his superior. Since Kamaraj was in Coma he
did not go the hospital to record his
Crl.A. No.100106/2016
statement. The police were assigned to guard
the injured.
32.4. He does not know if PW.2/CW.3-Ambli
Jayappa's Sister is married to PW.6/CW.4-
Sanga Basappa. He did not ask about the
relation of various witnesses. PW.6/CW.4-
Sangana Basappa had not told him that he
was injured and wanted to seek treatment.
From 26th to 30th July 2010, he had not gone
to the spot of the incident. The outpost is at
14 kilometers from the main station and main
station is 17 kilometers from the Court and it
takes 30 minutes to go to the Court on a
motorcycle. He took the statement on the
laptop from 10.30 to 3.30 and gave letter to
the Police Constable for inclusion of Section
302 at 4.30 p.m.
Crl.A. No.100106/2016
33. PW.21/CW.33 D. Hanumantappa is the PSI of
Hirehadagali police station in his examination-in-
Chief he has stated that;
33.1. On 26.07.2010 at 3.00 a.m., the ASI had
forwarded the complaint from the outpost
which he registered as Crime No.41/2010 and
then sent the FIR to the Court and he
identifies the Ex.P.3 to be the complaint and
PW.11/CW.13-Lakkappa to be the FIR. He
has sent ASI, Dharmappa and Police
Constable Chandrashekar to arrest the
accused.
33.2. In the afternoon at 2.00 to 2.45 p.m. on the
basis of the spot shown by the complainant in
the presence of the witnesses the
panchanama was drawn as per Ex.P.1. One
axe and two blood stained baniyans as per
Crl.A. No.100106/2016
MO.1 to MO.8. He identifies the rough sketch
as per Ex.P.2.
33.3. He handed over the investigation to ASI. On
the same day, the investigation was
conducted. He says that the FIR was sent to
the Court at 9.30 a.m. He met the ASI at the
spot in the morning when the complainant
and his family were there, he was shown the
spot and he examined it. The wooden sticks
were lying there, he did not take any
statement. PW.2/CW.3-Ambli Jayappa has
not stated which accused used which items to
assault. He enquired as to how the incident
had happened. He does not remember the
names of the witnesses. He admits that the
name of the person from whom the enquiry is
made is required to be stated.
Crl.A. No.100106/2016
33.4. He was at the house of the complainant at
9.00 a.m. He did not draw a panchanama in
the morning since he came to know that the
fight was a verbal fight. An ASI and two
Police Constables were assigned to the
complainant's house. He admits that the
assault by the accused using an axe is not
mentioned in the complaint.
33.5. He did not try and get treatment to the
injured PW.6/CW.4-Sangana Basappa, but
came to know that they have been taken to
the hospital, he does not know the name of
the hospital, he denies that he had added the
line about the axe in Ex.P.3.
33.6. He states that, the door was broken at the
spot, but he has not shown it in the
panchanama, nor he has taken the full
Crl.A. No.100106/2016
statement of the complainant. He has not
enquired with any eyewitness. He admits
that, PW.2/CW.3-Ambli Jayappa has not
given any statement that he saw the incident.
He admits that, during panchanama no
witness has stated about the axe. He has not
seized the handle of the axe. He states that
Baniyan was not fully stained by blood, but
stained here and there. He admits that, the
sketch does not have a date.
34. PW.22/CW.34 Prakash Rathod in his examination-
in-chief on 06.08.2015 has stated that;
34.1. He was the CPI of Huvina-hadagali. When he
was at the station, ASI had handed over the
further investigation to him on 01.08.2010 at
5.30 p.m. since the injured had died, he went
to the Davanagere C.J.Hospital, received the
Crl.A. No.100106/2016
death certificate from Police Constable
Chandrakant(CW-30), visited the mortuary
and conducted panchanama in the presence
of witnesses as per Ex.P.4. Thereafter, he
recorded the statement of PW.10/CW.10-
Rajashekhar and sent the body with Police
Constable Chandrakant for postmortem.
Thereafter, the body was handed over to the
relatives. He states that on 02.08.2010 he
visited the station, received the receipt from
CW-30-Police Constable Chandrakant for
having handed over the body.
34.2. He went to the spot and examined it. he was
informed that the accused Nos.2 to 5 were
hospitalized in a hospital in Haveri. He sent
ASI Nagappa with CW.30-Police Constable
Chandrakant and two Police Constable of
Ittagi, to Haveri at 4.00 p.m., the accused
Crl.A. No.100106/2016
were brought before him, they were arrested
and interrogated and sent to the Court. On
05.08.2010, he recorded the statements of
PW.7/CW.11-Manjappa, PW.8/CW.12-
Veerappa, PW.11/CW.13-Lakappa,
PW.12/CW.14-Basavaraj, CW.15-Nagaraj,
CW.16-Jatti Basavarajappa, PW.13/CW.17-
Eshwargouda and further statement of the
complainant PW.4/CW.1-Kadlenni Basappa.
34.3. He had sent his personnel to apprehend the
absconding accused Nos.1 to 6, sent MO.1 to
MO.8 to FSL on 25.08.2010, received the
wound certificate from Davanagere Hospital
on 20.10.2010 as per Ex.P.6 received FSL
report on 22.11.2010 as per Ex.P.10. Asked
the opinion to the Doctor as regards the axe.
Crl.A. No.100106/2016
34.4. As per Ex.P.8 received wound certificate from
Hadagali Hospital of PW.11/CW.13-Lakappa,
PW.8/CW.12-Veerappa and PW.12/CW.14-
Basavaraj as per Ex.P.14, Ex.P.15, Ex.P.16,
thereafter he submitted the charge-sheet. He
can identify accused No.2-Girish, accused
No.4-Kariyappa and accused No.6-Ramesh
and stated that, he can identify the
absconded accused No.1-Kenchanagoudra
Basavarajappa and accused No.2-Girish.
34.5. In the cross-examination conducted on the
same day, he has stated that neither in the
complaint nor in the panchanama, there is a
mention of the accused having hit with an
axe. He states that it is possible to have a
wound of 15 inch, if hit by an axe. He states
that, the axe is not 15 inch and the blade is
not that big. He states that, during the
Crl.A. No.100106/2016
panchanama no blood stains were seen. He
has taken the Baniyan sized by the PSI, he
does not know to whom the Baniyan belongs
to. He did not personally send the items to
FSL, but the Baniyan belongs to the
deceased.
34.6. He states that, the main entrance of the
house faces east. He did not go to the spot as
soon as possible since the PSI was
conducting the investigation and as it was not
a serious offence. He does not know which
Baniyan belongs to whom and or the blood
belongs to whom.
34.7. He has taken the samples of PW.11/CW.13-
Lakappa and Kamaraj separately. He does
not know if PW.2/C.W.3-Ambli Jayappa and
PW.6/CW.4-Sangana Basappa are the
Crl.A. No.100106/2016
relatives of the complainant and if C.W.30-
Chandrakanth,PC is related to PW.11/CW.13-
Lakappa.
34.8. He has not enquired from the villagers since
they did not come forward to give the
statement. He has not taken any action
against the villagers. He does not know if the
complainant had gone to the hospital to see
Kamaraj and PW.11/CW.13-Lakappa. He does
not know how many bolts and latches were
there on the door. He does not know if the
complainant and the accused have political
rivalry. He has not conducted any
panchanama at the Dairy as he felt it was not
necessary.
35. PW.23/CW.28 Dr. Shivakumar, in his examination-
in-chief on 20.08.2015 has stated that he was
Crl.A. No.100106/2016
serving as a Medical Officer at Hadagali. The
injured PW.11/CW.13-Lakappa was brought by
P.C. 108 and examined by him on 26.07.2010 at
2.10 a.m. when he noticed laceration of 3X2 cm. of
occipital region. He noticed several lacerations
which are similar in nature and as such he issued a
wound certificate as per Ex.P.14. He states that,
there were lacerations and contusions. He states
that, on 05.08.2010 at 4.00 p.m, he has examined
the injured PW.8/CW.12-Veerappa, brought in by
P.C.280 of Hadagali Police Station. All his injuries
were simple in nature. He has issued wound
certificate as per Ex.P.15. On 05.08.2010 he has
examined injured PW.12/CW.14-Basavaraj brought
in by P.C.280 to Hadagali Police Station. All his
injuries were simple in nature and he has issued
wound certificate at Ex.P.16. In the cross-
examination conducted on the same date he has
Crl.A. No.100106/2016
stated for any injured was accompanied by him. He
sees no entry of the name of the patient
accompanying PW.11/CW.13-Lakappa. He states
that, he has not put his initial on the overwriting of
the day in Ex.P.14. He admits that, he has not
mentioned the time of the incident.
36. PW.24 who is the Police Constable 280 has stated
that on 26.-07.2010 at 1.00 a.m., the complainant
and come to the station with a written complaint
and PW.20/C.W.32-Shadakshari Patil, ASI had
asked him to take it to the station, as such, he
delivered it to the station at 3.00 a.m. and
registered Crime No.41/2010. He identifies the
complaint as Ex.P.3. He has denied the rest of the
suggestions.
37. It is on the basis of the above evidence which is on
record, that this Court would have to ascertain as to
whether the order of conviction and sentence passed
Crl.A. No.100106/2016
by the trial Court is proper and correct after
reappreciating the said evidence.
38. From perusal of the above evidence, it is seen that
PW1/CW2-Shanthannanavar Basappa is a panch
witness, PW.2/CW.3-Ambli Jayappa is also an eye
witness, PW.9/CW.8-Honnappa is an inquest panch
witness, PW.15/CW.24-Shivanadappa is the
Panchayat Development Officer, PW.16/CW.26-
Dr.Raju is a Medical Officer at City Central hospital,
PW.17/CW.25-Dr.Manjula is a Senior Specialist at
Chigateri hospital, PW.18/CW.27-Dr.Lingegowda is
a scientific officer at the Regional Forensic Science
Laboratory, PW.19/CW.29-Manjunath is a Police
constable at Hatagali police station, PW.20/CW.32-
Shadakshari Patil is the Assistant Sub-inspector
who recorded the complaint, PW.21/CW.33-
D.Hanumantappa is the first investigating officer
before the charge for the offence under Section
Crl.A. No.100106/2016
302 of IPC were added, PW.22/CW.34-Prakash
Rathode is the Circle Inspector of police who took
up investigation subsequent to the charge under
Section 302 of IPC being added, PW.23/CW.28-
Dr.Shivakumar is the Medical officer at
Huvinahadagali Government hospital, PW.24-
Mahantesh Gudli is a police constable at Holalu.
39. PW.2/CW.3-Ambli Jayappa apart from being a
panch witness is also a eye witness, PW.3/CW.7-
Shantappanavara Chandrappa, PW.4/CW.1-
Kadlenni Basappa, PW.5/CW.5-Kadlenni Shivappa
and PW.6/CW.4-Sangana Basappa are eye
witnesses to the incident. PW.4/CW.1-Kadlenni
Basappa is also the complainant. PW.7/CW.11-
Manjappa, PW.8/CW.12-Veeranna, PW.11/CW.13-
Lakappa and PW.12/CW.14-Basvaraj apart from
being eye witnesses are also the injured.
Crl.A. No.100106/2016
PW.14/CW.22-Dhyamappa is the eye witness for
the dairy incident.
40. The case of the prosecution is that at 7 p.m on
25.7.2010 there was an altercation in front of the
milk dairy between PW.13/CW.17-Eshwar Gouda
and accused No.3 Kanthesh and in pursuance
thereof, at 12 midnight, the accused with an
intention of committing the murder of
PW.13/CW.17-Eshwar Gouda had barged into the
house of the complainant- PW.4/CW.1-Kadlenni
Basappa. After barging into the house, they
assaulted the persons residing in the house as also
the deceased Kamaraj causing his death, apart
from causing grievous injuries to PW.7/CW.11-
Manjappa, PW.8/CW.12-Veeranna, PW.11/CW.13-
Lakappa and PW.12/CW.14-Basvaraj. It is on this
basis that criminal proceedings were set in motion.
Crl.A. No.100106/2016
41. The evidence on record as also the investigation
which has been conducted leaves much to be
desired. Though the knowledge of the incident and
the description of the incident before the dairy at 7
pm on 25.7.2010 has been spoken of by almost all
the witnesses, there is a slight discrepancy as to
the manner in which the incident occurred
inasmuch as some of the witnesses have
mentioned about the altercation between accused
No.3-Kantesh and PW.11/CW.13-Lakappa, the
discrepancy is as regards the father of accused
No.3-Kantesh viz., accused No.1-Kenchanagoudara
Basavarajappa being pushed into the drain or not.
42. There is serious discrepancy in the time at which
the incident occurred, as regards which the
complaint has been filed, is stated to have
occurred. PW.3/CW.7-Shantappanavara
Chandrappa has stated that the incident occurred
Crl.A. No.100106/2016
between 10.30 p.m. to 12.30 at night. During the
course of cross-examination, PW.3/CW.7-
Shantappanavara Chandrappa, PW.4/CW.1-
Kadlenni Basappa, PW.5/CW.5-Kadlenni Shivappa,
PW.6/CW.4-Sangana Basappa, PW.10/CW10-
Rajashekar, PW.7/CW.11-Manjappa, PW.8/CW.12-
Veeranna, PW.11/CW.13-Lakappa and
PW.12/CW.14-Basavaraj have stated that the
incident occurred at 12 midnight inasmuch as they
contend that the incident commenced at 12
midnight. All the witnesses more or less have
stated that the altercation took place for half an
hour to one hour from the time it commenced i.e.
to say that the incident ought to have gone on
until 12.30 or 1 a.m on 26.07.2010. The
complaint was however recorded and/or registered
at 1 a.m. on 26.07.2010.
Crl.A. No.100106/2016
43. The say of the complainant-PW.4/CW.1-Kadlenni
Basappa is that after the altercation occurred,
somebody had called an ambulance and the police
who had come there. He further states that he and
his younger brother PW.5/CW.5-Kadlenni Shivappa
had gone to the police outpost at 1 a.m. to lodge a
complaint, the details of which have been given by
PW.4/CW.1-Kadlenni Basappa and written down by
PW.5/CW.5-Kadlenni Shivappa. If the statement
of the witnesses as regards the duration of the
altercation that took place is to be believed, as per
PW.2/CW.3-Ambli Jayappa, the altercation lasted
for 30 minutes, PW.4/CW.1-Kadlenni Basappa
states that it lasted for 45 minutes, as per
PW.5/CW.5-Kadlenni Shivappa it lasted for an
hour, as per PW.6/CW.4-Sangana Basappa it
lasted for 45 minutes, PW.7/CW.11-Manjappa
states that it lasted for 45-60 minutes, as per
Crl.A. No.100106/2016
PW.12/CW.14-Basvaraj it lasted till 12.20 a.m. All
of them have stated that the incident started at 12
midnight in the examination in chief, in the cross-
examination the duration of the altercation varies
from one person to the other. Even if we were to
assume that the least amount of 30 minutes had
taken place in the altercation, it is unimaginable
that within that span of time the police and the
ambulance would have arrived at the spot, more
so when the police station is stated to be more
than half an hour from the house of PW.4/CW.1-
Kadlenni Basappa, which is the scene of the crime.
44. It is only thereafter that PW.4/CW.1-Kadlenni
Basappa and PW.5/CW.5-Kadlenni Shivappa are
stated to have gone to the police station to lodge
their complaint, which being the Holalu Police
outpost and is situated nearly 300-400 meters
from the Holalu village and from the Police out
Crl.A. No.100106/2016
post, the Police Station is about 14 kilometers
away. The timelines which have been stated by all
the witnesses as regards the commencement of
the altercation, ending of the altercation, arrival of
the police to the spot and registration of the
complaint at 1 a.m is replete with contradictions.
The only timeline which can be taken to be without
any doubt is the time at which the complaint was
lodged, since the time of 1 a.m. is recorded in the
said complaint. If any other timeline is to be
considered, the same would not make any sense
and would defy logic. Therefore, the evidence of
the witnesses as tendered before the trial Court as
regards the time when the incident commenced to
how long the altercation took place is suspect.
45. The time at which the police came to the spot is
also replete with contradictions, inasmuch as
PW.2/CW.3-Ambli Jayappa states that the police
Crl.A. No.100106/2016
came when accused were assaulting
PW.11/CW.13-Lakappa, PW.3/CW.7-
Shantappanavara Chandrappa states in his cross
examination that police came at 12 midnight,
PW.4/CW.1-Kadlenni Basappa also states that
police came at 12 midnight, after the death of
Kamaraj. PW.6/CW.4-Sangana Basappa in his
cross-examination states that police came at 12
midnight, PW.7/CW.11-Manjappa also states that
the police came at 12 midnight. If the occurrence
of the incident started at 12 midnight, the question
of police coming to the spot at 12 midnight itself
would not arise. PW.11/CW.13-Lakappa has stated
that the police came at 1.30 a.m. if that be so,
then the question of registration of complaint at 1
a.m. is also suspect. PW.12/CW.14-Basvaraj has
stated that the police came at 12.30 midnight,
PW.20/CW.32-Shadakshari Patil has stated that
Crl.A. No.100106/2016
after coming to know of the incident he had sent
constables but he did not go there, he went to the
spot at 10 a.m. the next day. PW.21/CW.33-
D.Hanumatappa had gone to the spot at 2 p.m. on
the next day.
46. There is no evidence on record as to who informed
the police and when the said information was given
to the police about the incident. As regards the
time at which the ambulance came,
PW.13/CW.17-Eshwar Gouda has stated that he
woke up to the sound of the ambulance going
towards PW.4/CW.1-Kadlenni Basappa's house and
rushed there. PW.5/CW.5-Kadlenni Shivappa has
stated that the ambulance came when the
altercation was going on and as soon as the
ambulance came, the accused left the various
material objects used to assault and ran away i.e.
the ambulance has come to the spot at the time
Crl.A. No.100106/2016
when the altercation was going on and the assault
was still in progress. These statements of
PW.5/CW.5-Kadlenni Shivappa and PW.13/CW.17-
Eshwar Gouda also do not inspire any confidence
as regards the time at which the ambulance came
to the spot. As regards whether the ambulance
arrived before or after the police had arrived,
PW.13/CW.17-Eshwar Gouda has stated that he
woke up to the sound of the ambulance and went
to the scene of crime and saw 3 to 4 police
personnel already at the spot, that is to say that
he woke up at 12.30 and immediately rushed to
the spot and police were already at the spot.
PW.2/CW.3-Ambli Jayappa, in his cross-
examination, has stated that the police came to
the spot at 12 or 12.30 and stayed till 3 a.m.
47. PW.4/CW.1-Kadlenni Basappa has stated that after
the altercation was over and the ambulance had
Crl.A. No.100106/2016
come, Kamaraj was taken to the hospital,
thereafter, the police came to the spot, that is to
say that the police came to the spot after the
altercation. PW.8/CW.12-Veeranna has stated that
there were one or two police who were present
when the ambulance came to take Kamaraj to the
hospital. PW.11/CW.13-Lakappa has stated that
the police accompanied the victims/injured to the
hospital at Davanagere. However, there is no
indication or evidence which has been led about
the police having accompanied the injured nor is
the evidence of those police personnel on record.
Therefore, from the evidence on record, there
appears to be a huge lacuna and/or contradiction
as regards both the time at which the ambulance
came, the time at which the police came, the time
at which the altercation commenced and ended.
Crl.A. No.100106/2016
48. The other issue that we find shocking in the entire
matter is as regards the recordal of statement of
each witness, inasmuch as PW.2/CW.3-Ambli
Jayappa has stated that he did not observe the
police taking statement of anyone. PW.3/CW.7-
Shantappanavara Chandrappa has stated in his
examination-in-chief that police had taken the
statements, but in cross-examination he has
denied police having taken his statement.
PW.4/CW.1-Kadlenni Basappa has stated that he
has given a statement to the police at 1 a.m. at
the police station and thereafter, on the next day,
at the time when mahazar was conducted.
PW.5/CW.5-Kadlenni Shivappa has stated that he
has not given any statement nor have the police
enquired with him or his sons or his nephews, but
they had enquired only with PW1/CW2-
Shanthannanavar Basappa, CW.6-
Crl.A. No.100106/2016
Shantappanavara Basavarajappa, PW.2/CW.3-
Ambli Jayappa and PW.3/CW.7-Shantappanavara
Chandrappa. PW.6/CW.4-Sangana Basappa has
stated that his statement was recorded on
30.07.2010. PW.7/CW.11-Manjappa gave a
statement on 06.08.2010 after he was discharged
from the hospital on 05.08.2010. PW.8/CW.12-
Veeranna has stated that his statement was
recorded on 05.08.2010. PW.8/CW.12-Veeranna
though has stated that on the next day statements
were recorded of all other witnesses, he has clearly
stated that his statement was not recorded.
PW1/CW2-Shanthannanavar Basappa has stated
that he has given his statement on 02.08.2010,
but he does not know when the statements of
other witnesses were recorded. PW.12/CW.14-
Basvaraj has stated that he had showed the
Crl.A. No.100106/2016
Material Objects used in the altercation, but he had
not been enquired with in this matter.
49. PW.20/CW.32-Shadakshari Patil has stated that
the statements of PW.3/CW.7-Shantappanavara
Chandrappa, PW.5/CW.5-Kadlenni Shivappa and
PW.6/CW.4-Sangana Basappa were recorded
between 10.30 a.m to 3.30 p.m. on 26.07.2010.
PW.22/CW.34-Prakash Rathode has stated that he
had recorded the statement of PW.10/CW.10-
Rajashekar Jatti on 01.08.2010. He went to the
spot on 02.08.2010 and on 05.08.2010 he had
recorded the statements of PW.7/CW.11-
Manjappa, PW.8/CW.12-Veeranna, PW.11/CW.13-
Lakappa, PW.12/CW.14-Basvaraj, CW.15-Nagaraj,
CW.16-Basavarajappa and PW.13/CW.17-Eshwar
gouda. On 06.08.2010, he has recorded the
statement Of CW.18-Gouravva, CW.19-Roopa,
CW.20-Manjulamma, CW.21-Nagamma and
Crl.A. No.100106/2016
PW.14/CW.22-Dyamappa; and further statement
of PW.3/CW.7-Shantappanavara Chandrappa,
PW.7/CW.11-Manjappa and PW.6/CW.4-Sangana
Basappa on the said date.
50. Thus, it is rather shocking that the initial
investigating officer viz., PW.21/CW.33-
D.Hanumantappa has not recorded the statement
of any of the witnesses on the date of occurrence
of the event/crime or immediately thereafter. It is
only PW.22/CW.34-Prakash Rathode who has
recorded the statements of witnesses as
aforestated, after he took over the investigation,
by then nearly four days had passed since the
incident had occurred.
51. It is also shocking to observe that PW.1 to 14 are
all family members. Apart from the family
members of the complainant no other witnesses
Crl.A. No.100106/2016
have been examined. PW1/CW2-Shanthannanavar
Basappa is stated to have come along with the
complainant to the court during his deposition.
PW.2/CW.3-Ambli Jayappa is the brother-in-law of
PW.4/CW.1-Kadlenni Basappa. PW.3/CW.7-
Shantappanavara Chandrappa is stated to know
PW.4/CW.1-Kadlenni Basappa from the year 2006
and has a good relationship. PW.4/CW.1-Kadlenni
Basappa is the uncle of PW.13/CW.17-
Eashwargouda, PW.5/CW.5-Kadlenni Shivappa is
the brother of PW.4/CW.1-Kadlenni Basappa,
PW.6/CW.4-Sangana Basappa, PW.7/CW.11-
Manjappa and PW.8/CW.12-Veeranna are the sons
of PW.4/CW.1-Kadlenni Basappa. PW.9/CW.8-
Honappa is the son-in-law of PW.4/CW.1-Kadlenni
Basappa. PW.10/CW.10-Rajashekhar,
PW.11/CW.13-Lakappa and PW.13/CW.17-
Crl.A. No.100106/2016
Eashwargouda are the nephews of PW.4/CW.1-
Kadlenni Basappa.
52. Apart from these interested persons, no evidence
of any third party has been recorded by either the
investigating officer or any witness has been
presented before the court.
53. As mentioned and observed above, it is only
interested witnesses and/or family members who
had been examined as witnesses during the course
of the trial. This is despite all the witnesses having
deposed that they were several other third parties
namely, villagers who were present at the spot
during and after the incident.
54. PW.2/CW.3-Ambli Jayappa has stated in his
examination-in-chief that there were about to 10
to 15 persons who were present during the
incident and in his cross-examination, he has
Crl.A. No.100106/2016
stated that there were about 25 persons from the
village who were present at the time when the
ambulance had come to the spot. PW.3/CW.7-
Shantappanavara Chandrappa has stated in his
examination-in-chief that there were 15 persons at
the scene of crime when the police came and there
were 15 to 20 persons present inside the house of
PW.4/CW.1-Kadlenni Basappa. PW.4/CW.1-
Kadlenni Basappa himself has stated that 15 to 20
persons had gathered outside his house when the
police arrived. PW.5/CW.5-Kadlenni Shivappa has
stated that there were about 20 to 25 persons
gathered at the spot at that time. PW.6/CW.4-
Sangana Basappa has stated that there were about
11 to 12 persons, PW.7/CW.11-Manjappa has
stated that there were 25 persons present,
PW.11/CW.13-Lakappa has stated that many
people had gathered, PW.13/CW.17-Eashwargouda
Crl.A. No.100106/2016
has stated that there were about 15 to 20 people
who were gathered at the site.
55. If that be so, we are rather shocked that
statements of those persons were not recorded
either by PW.21/CW.33-D.Hanmantappa when he
visited the spot or by PW.20/CW.32-Shadakshari
Patil. These witnesses would have been material
witnesses, but their statements have neither been
recorded nor have they been examined in the
matter, leaving the recordal of statements to be
that of only the interested witnesses.
56. One of the allegations is that the accused barged
into the house of PW.4/CW.1-Kadlenni Basappa, by
breaking open the door and resultantly breaking
the door's latches. PW.2/CW.3-Ambli Jayappa has
stated that there are two entrance doors to the
house, but the doors were not broken. He states
Crl.A. No.100106/2016
that the back door was open but he has not
observed if the front door had been opened.
PW.4/CW.1-Kadlenni Basappa has stated that the
back door was locked, but the accused had broken
open the back door and entered the house. In the
cross-examination, he has stated that the accused
broke open the front door and entered the house
while he was coming from the back door.
PW.6/CW.4-Sangana Basappa has stated that the
back door's latch was broken. PW.7/CW.11-
Manjappa has stated that front door did not seem
to be broken, but he has not seen if the back door
latch was broken, but when he woke up both the
doors were open. PW.8/CW.12-Veeranna has
stated that both the doors were open but were not
broken, PW.11/CW.13-Lakappa has stated that he
had entered the house through the front door.
Crl.A. No.100106/2016
57. There is again the contradiction in this, inasmuch
as the allegation against the accused is that the
accused had gathered in front of the house of
PW.4/CW.1-Kadlenni Basappa and thereafter
barged into the said house and assaulted
PW.4/CW.1-Kadlenni Basappa and his family
members. If the accused had gathered in front of
the house and barged into the house, the question
of the back door being broken would not at all
arise. It would be the front door which should
have been broken and/or latch of the front door
which ought to have been broken. Even in this
there is a contradiction, leaving the evidence of the
witnesses on this aspect suspect.
58. One of the most important issues being as regards
the injuries caused and the treatment given.
PW.2/CW.3-Ambli Jayappa has stated that the
deceased-Kamaraj, PW.11/CW.13-Lakappa,
Crl.A. No.100106/2016
PW.7/CW.11-Manjappa were taken in the
ambulance to the Hadagali Government Hospital
and then to Davanagere hospital, but he has stated
that he had not visited any of the injured or the
deceased at the hospital.
59. PW.13/CW.17-Eshwar gouda who is the brother of
the deceased has stated that his other brothers,
PW.11/CW.13-Lakappa and the deceased Kamaraj
were taken to the Hadagalli Hospital, but however,
he as stated that after the ambulance left, he went
back home and slept.
60. PW.3/CW.7-Shantappanavara Chandrappa has
stated that, PW.11/CW.13-Lakappa was taken to
the Hadagalli hospital, the deceased Kamaraj was
taken to Davanagere hospital. PW.4/CW.1-
Kadlenni Basappa has stated that injured were
taken to the Hadagalli hospital and deceased
Crl.A. No.100106/2016
Kamaraj was taken to Chigateri Hospital and then
to City Center Hospital, Davanagere, but he has
not visited either the injured or deceased.
61. PW.5/CW.5-Kadlenni Shivappa has stated that
PW.11/CW.13-Lakappa and deceased Kamaraj
were sent in the ambulance, first they went to
Hadagalli Hospital and then to Davangere Hospital
after first aid, but he also not visited either of them
at the hospitals. He has stated that thereafter
PW.12/CW.14-Basvaraj and PW.8/CW.12-Veeranna
went to the hospital for treatment. PW.6/CW.4-
Sangana Basappa has stated that PW.11/CW.13-
Lakappa and the deceased were sent in the
ambulance first to Hadagalli Hospital then to
Davangere hospital, PW.7/CW.11-Manjappa has
also made similar depostion. PW.10/CW.10-
Rajashekhar is the only person who is stated to
have visited the injured PW.11/CW.13-Lakappa
Crl.A. No.100106/2016
and deceased Kamaraj at Davangere Hospital and
stayed there from 27.07.2010 to the 1.08.2010.
PW.11/CW.13-Lakappa has also stated that he and
his brother were taken in an ambulance to
Hadagalli Hospital and thereafter to Davangere
Hospital, where PW.10/CW.10-Rajashekhar is
stated to have visited them. PW.12/CW.14-
Basvaraj has stated about PW.11/CW.13-Lakappa
and deceased Kamaraj being first taken to
Hadagalli Hospital and thereafter to Davanagere
Hospital. He has also stated that he was admitted
in the hospital for 6 days.
62. As observed above, PW.13/CW.17-Eshwar gouda is
the brother of the deceased Kamaraj and is stated
to be the fulcrum of the entire incident, inasmuch
as it is on account of the incident/altercation which
occurred at 7.00 PM on 25.07.2010 between
PW.13/CW.17-Eashwargouda and accused No.3-
Crl.A. No.100106/2016
Kantesh at the dairy of which PW.13/CW.17-
Eshwar gouda is the Secretary. As aforestated,
after his brothers were taken in the ambulance to
the hospitals, he has stated that he went back to
his home and slept. He also stated that he has not
visited his brothers at the hospitals and he came to
know about the death of his brother Kamaraj only
on 01.08.2010. This evidence on record, apart
from establishing the contradiction between the
various witnesses also establishes that none of the
witnesses had even bothered to attend to the
injured, more particularly knowing that the
deceased was fatally injured and in a dire state.
63. The deposition as regards the occurrence of the
event, wherein the so-called eyewitnesses have
deposed as regard the manner of assault having
been committed on the deceased, which ought to
have indicated to them that the assault is fatal in
Crl.A. No.100106/2016
nature, since there is a head injury. However,
despite the same they let the injured be taken in
an ambulance without anybody accompanying the
said injured and thereafter none of them bothered
to visit the hospital to enquire about the status of
the said injured except for PW.10/CW.10-
Rajashekhar brother of the injured PW.11/CW.13-
Lakappa and deceased Kamaraj. As aforestated,
PW.13/CW.17-Eshwar gouda has not done
anything at all in facilitating the injured and the
deceased.
64. All these facts would lead to an irresistible
conclusion, that the time at which incident is stated
to have occurred, the arrival of the ambulance, the
arrival of the police, the shifting of the injured to
the hospital, the treatment given to the said
injured as deposed to by all the witnesses is
suspect.
Crl.A. No.100106/2016
65. Coming to the medical evidence on record,
PW.23/CW.28-Dr.Shivakumar has stated that, he
had examined PW.11/CW.13-Lakappa on
26.07.2010 and has examined PW.8/CW.12-
Veeranna and PW.12/CW.14-Basvaraj on
05.08.2010 who were accompanied by PC 280 for
treatment. There is no record of medical
treatment or examination of PW.8/CW.12-
Veeranna and PW.12/CW.14-Basvaraj from
25.07.2010 to 04.08.2010, apart from being
examined around 10 days after the incident.
66. The nature of injuries caused to the deceased is
also different in different reports, inasmuch as the
treating doctor has stated that the wound is
measuring 7x1 cms on the scalp of the deceased,
whereas the post-mortem report indicates that the
wound is 15 inches. Apart therefrom, the post-
mortem report of the deceased Kamaraj indicates
Crl.A. No.100106/2016
that the sutured wound of 15 inches in size, on left
side of the Scalp where a triangular piece of the
bone was lying freely under the scalp skin with
burn holes in three corners over the left temporal
parietal area. It is not understood if the deceased
Kamaraj was treated in hospital for 5 days, as it
begs the question as to how a triangular piece of
bone could just have been freely lying under the
scalp skin after 5 days.
67. As regards the contents of the intestine, the post-
mortem report indicates that the intestine was
intact and contained semi-digested food. The
incident having occurred 25/26.07.2010 and post-
mortem was conducted on 02.08.2010 after a gap
of nearly 6 days, the question of semi digested
food being present in the intestine does not make
any sense. More so when the deceased Kamaraj is
stated to have been in a coma during all this
Crl.A. No.100106/2016
period, was not conscious and had not had any
solid food during that period of time.
68. This being the contents of the small intestine, the
large intestine is saidt to have contained fecal
matter. This is also suspect for the reason that the
said fecal matter was present after 6 days of the
injury.
69. Thus, the existence of semi digested food in the
small intestine and fecal matter in the large
intestine of a person being in coma for a period of
six days cannot be accepted. There are no records
produced as regard the treatment provided to the
deceased while at the City Central Hospital,
Davangarere, the medicines administered, the
treatment given nor the case history are marked in
evidence, which is a big lacuna in the entire
investigation and prosecution's case.
Crl.A. No.100106/2016
70. Juxtaposing the post-mortem report with the
wound certificate at Ex.P7 indicates that the date
and time of the incident is stated to be 25.7.2010
at 11.00 p.m and he was examined in the hospital
at 6.15 a.m after having been admitted at 5.45
a.m by PW.11/CW.13-Lakappa, who is the younger
brother of the deceased Kamaraj and at that time
the said PW.11/CW.13-Lakappa had informed the
hospital authority that the assault occurred at
11.00 p.m at the residence of the deceased
Kamaraj when he was said to be asleep in his
residence and attacked by accused herein.
71. This wound certificate recorded at an undisputed
point of time categorically indicates that the
incident is stated to have occurred at 11.00 p.m
and the accused are stated to have attacked the
deceased Kamaraj in his house while he was
asleep, whereas the entire complaint alleges that
Crl.A. No.100106/2016
the attack occurred in the house of PW.4/CW.1-
Kadlenni Basappa.
72. As per the evidence of PW.2/CW.3-Ambli Jayappa
the house of the deceased is situate at a distance
of 400-500 meters from the house of PW.4/CW.1-
Kadlenni Basappa.
73. Despite the said wound certificate being available
and having been issued on 26.07.2010 and MLC
No.222/2010 having been registered, there is no
investigation done at the house of the deceased
Kamaraj, there is no examination made of the said
house.
74. In fact, the entire investigation and the evidence of
the investigating officer is completely silent about
the contents of wound certificate which had been
issued at an undisputed point of time. The said
wound certificate at ExP.7 also indicates that there
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is a sutured wound present over the left parietal
region measuring in 7x1 centimeters and there is
subdural hematoma extending over left temporal
occipital region with fracture of left parietal bone
wound. The injury being 7 x 1 centimeters at the
time of when the wound certificate was issued, it is
not explained as to how a sutured wound of 15
inches in size was present at the time when the
post-mortem was conducted. It is not that a
sutured wound would grow and become 15 inches
admittedly it is not an open wound.
75. Even as regard the sutured wound, there is no
explanation as to how and who sutured the wound.
Moreso when he has not received any particular
treatment at the Holalu Hospital. The evidence on
record as regards the place of assault, nature of
assault, time of assault, injuries caused at that
time, treatment given to the said injury at Holalu
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Hospital, arrival of the deceased at the City Central
Hospital, the suturing of the wounds, the size of
the sutured wound being 7x1 centimeters as on
26.07.2010 which became 15 inches as on
02.8.2010 when the post-mortem was conducted
has not been explained nor is there any evidence
recorded relating there to. This lacuna was
absolutely required to be explained in the evidence
of the prosecution.
76. As aforestated from 26.07.2010 to 2.8.2010 there
are no records which have been produced as
regards the treatment made available to the
deceased at the City Central Hospital Private
Limited. It is also stated that three burn holes in
the corners of the left temporal parietal area were
observed. None of the MO's if had been used
namely the Stick, Axe or the Stone could cause
burn holes in three corners of the left temporal
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parietal area. There is no allegation of any
equipment or weapon being used which could
cause such an injury to the deceased Kamaraj.
These aspects have also not been explained in the
evidence of the prosecution.
77. Coming to the defense of the accused at the time
when cross-examination of the witnesses was
conducted, the suggestions which have been put
across and the nature of questioning indicates that
when the accused were travelling towards their
grain thrashing yard, the deceased, injured, along
with other family members had assaulted the
accused by waiting for them, in regard to which
another complaint in Crime No.42/2010 had been
filed by the accused against the Complainant and
others herein. The said complaint and evidence on
record in the said proceedings have been marked
in the present proceedings as Ex.D1 to 17. Though
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the statements only are marked it is to be noted
that the said marking was made subsequently,
after it was remanded by this Court, before the
trail Court for the purpose of recordal of such
evidence.
78. The prosecution has categorically stated that they
have no cross-examination on the said documents.
By stating so, the prosecution has accepted the
said documents, there being no challenge to the
aforesaid Ex D.1 to 17. Such being the case, this
Court would have to consider the said documents
and evidence to be uncontroverted and would have
to take the same into consideration. Having taken
the same into consideration, it supports the earlier
reasoning that the incident did not occur at 12.00
a.m, but had occurred at an earlier point of time.
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79. The evidence as discussed above leaves much to
be desired, so also the manner and extent of the
investigation. There has also been no examination
of independent witnesses by the Investigating
officer or the prosecution, despite there being, as
per the evidence, at least 10 persons who have
witnessed the incident and its aftermath. All the
witnesses examined are interested witnesses
whose testimonies are replete with contradictions
and/or their evidence is unbelievable as discussed
above.
80. Applying the decision of the Hon'ble Apex Court in
Hem Raj's case (supra), it is clear that in the
present case, non-examination of independent
witnesses would result in an adverse inference
being drawn against the prosecution. Again,
applying Hem Raj's case neither the house of
PW.4/CW.1-Kadlenni Basappa has been examined
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for the purpose of blood stains, no forensic
examination has been done at the said house, no
photographs have been taken by the investigating
officer of the said house nor has the house of the
deceased Kamaraj been examined at all, despite
the MLC in relation thereto stating that Kamaraj
had been assaulted in his house at 11 p.m. There
are serious lacunae in the investigation practices
which has been followed by the Investigating
officers in the present case.
81. Though all the witnesses claim to be eye
witnesses, the evidence which has been given by
the said witnesses during their examination-in-
chief, as also the statements which have been
recorded, though belatedly appear to be parroted,
created for the purpose of prosecution. Therefore,
in our considered opinion, the case of the
prosecution does not inspire confidence. As held
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by the Hon'ble Apex Court in Eknath Ganapat
Aher's case, the non-examination of independent
witnesses at the spot would require adverse
inference being drawn.
82. As held by the Hon'ble Apex Court in
Krishnegowda's case, once there is a clear
contradiction between the medical and the ocular
evidence coupled with severe contradictions in the
oral evidence, clear latches in investigation, then
the benefit of doubt has to go to the accused.
83. Even otherwise, a wound at the time of
examination of the deceased for the first time
measured 7 cm x 1 cm which became 15 inches at
the time of postmortem. The triangular shape
bone was hanging with three holes with burn
marks. The ocular evidence does not indicate as to
how these injuries had been caused, more
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particularly as to the holes in the said bone which
are burnt. There is nothing on record to indicate
how the same could have occurred. Therefore, the
ocular evidence provided no explanation to the
injuries found on the deceased, thus, the said
ocular evidence also cannot be believed. That
apart, as observed hereinabove, the small intestine
contained semi-digested food and the large
intestine contained fecal matter even after a period
of six days of the injuries having occurred during
which time the deceased was in a coma and did
not have any solid or semi solid food. This aspect
has not been dealt with by the prosecution or the
trial Court. All these aspects are extremely
damaging to the prosecution case as held by the
Hon'ble Apex Court in Ram Narain's case
(supra), these aspects would negate and deals a
deathblow to the case of the prosecution resulting
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in the irresistible conclusion that no such offence
as alleged had occurred.
84. All these evidences which we have dealt with have
not been considered by the trial Court in a proper
perspective, resulting in the conviction of the
accused which ought not to have occurred.
85. Though we are conscious of the fact that there is a
death which has occurred, the fact that death has
occurred cannot result in a conviction of the
accused, since the same would only amount to
moral conviction and not a legal conviction on the
basis of evidence on record which establishes that
the offence infact had been committed by the
accused.
86. As discussed and detailed hereinabove there is no
evidence on record which would implicate the
accused, except that of the interested witnesses
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which is not supported by any other independent
material witness, though it is categorically stated
that there were atleast 10-15 people present at the
scene of occurrence of the crime.
87. In view of the above, we are of the considered
opinion that the conviction of the accused by the
trial Court is not sustainable. Hence, we pass the
following:
ORDER
i. The appeal is allowed. The accused are acquitted
of the offences by giving them benefit of doubt.
ii. Accused 1 to 6 being on bail, no order of release
is required to be made. The bail bonds stand
discharged.
iii. The Fine amount if any deposited by the accused
is directed to be refunded to the respective
accused.
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iv. The Director General of Police is directed to
initiate necessary proceedings against the
Investigating Officers for having mishandled the
entire investigation and not followed proper
investigating techniques.
v. The Director General of Police is also directed to
from time to time hold training sessions for the
Investigating Officers as regards the manner in
which an investigation has to be conducted, both
prior to the inclusion of a serious offence and
thereafter since there are two Investigating
Officers who get involved in investigating of
such an offence. In the present case,
neither the earlier Investigating Officer
nor the second Investigating Officer have
discharged their duties in a proper and required
manner.
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vi. The Director General of Police is also directed to
get prepared a proper standard operating
procedure for investigation including forensic
and scientific methodologies to be followed
during investigation.
Sd/-
JUDGE
Sd/-
JUDGE
sh/svh
