Sri Somesha H M @ Putta vs State Of Karnataka
2022 Latest Caselaw 13131 Kant

                                          CRL.A.1962/2017




                            1

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 18TH DAY OF NOVEMBER 2022

                        PRESENT

        THE HON'BLE MR. JUSTICE K. SOMASHEKAR

                          AND

  THE HON'BLE MR.JUSTICE T.G.SHIVASHANKARE GOWDA

           CRIMINAL APPEAL No.1962 OF 2017

BETWEEN:

SRI SOMESHA H. M. @ PUTTA
S/O H.M. CHANDRAIAH,
AGED 30 YEARS
R/AT VADERAHALLI VILLAGE,
TALUK AND DISTRICT: DAVANGERE,
NOW R/AT DEVARAJ URS BADAVANE,
HOUSE NO.32/1, III CROSS,
BEHIND NEW COURT, DAVANGERE,
TALUK AND DISTRICT: DAVANGERE.            ...APPELLANT

(BY SRI C.H. JADHAV, SENIOR COUNSEL FOR
 SRI L. SRINIVAS BABU)

AND:

STATE OF KARNATAKA
REP. BY SUB INSPECTOR OF POLICE,
HADADI POLICE STATION, HADADI
TALUK AND DISTRICT: DAVANGERE,
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
                                           CRL.A.1962/2017




                            2

BENGALURU-560001.                        ...RESPONDENT

(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)


     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRYING TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION DATED 03.11.2017 AND IMPUGNED ORDER OF
SENTENCE DATED 04.11.2017 PASSED BY I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DAVANAGERE IN S.C.
NO.69/2014 - CONVICTING THE APPELLANT/ACCUSED NO.1 FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302, 201 OF IPC.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 22.09.2022 AND COMING ON FOR
PRONOUNCEMENT      OF     JUDGMENT       THIS    DAY,
T.G.SHIVASHANKARE GOWDA J., DELIVERED THE FOLLOWING:


                    JUDGMENT

This appeal is filed challenging the judgment and

order of conviction passed in S.C.No.69/2014 by the

Court of I Additional District and Sessions Judge,

Davanagere dated 03.11.2017/04.11.2017 convicting

the accused of the offence punishable under Section 302

of IPC and sentencing him to undergo imprisonment of

life and pay a fine of Rs.15,000/-, in default he shall

undergo simple imprisonment for 6 months. Further,

convicting him of the offence punishable under Section CRL.A.1962/2017

201 of IPC and sentencing him to undergo simple

imprisonment for 2 years and to pay fine of Rs.1,000/-,

in default to undergo simple imprisonment for 15 days.

2. The appellant herein was accused before trial

Court.

3. The case pleaded by the prosecution is that

one Ramarao (in short the deceased) was fighting land

dispute with one H.M.Chandraiah(A2) who is the father

of accused no.1, in respect of Sy.No.5/1A1 of

Vaderahalli village of Davanagere. In this connection suit

in O.S.No.427/2013 was pending on the file of Additional

Civil Judge, Davanagere. There are many criminal

complaints filed to the police in this connection. These

disputes prompted ill-will between them. In prosecution

of ill-will, on 8.11.2013 at about 7.00 a.m., when the

deceased was milking the cow in front of cattle shed

situated in disputed land, with sole intention to commit CRL.A.1962/2017

his murder, accused no.1/Somesha @ Putta, H.M.

Chandraiah(A-2), Sudha(A-3), Veeresh(A-4) and

Rudresh(A-5), who are the family members came near

the cattle shed of the deceased, on the abetment and

instigation of accused Nos.2 to 5 to commit the murder

of the deceased, the accused no.1 inflicted injuries on

the back of the head and other parts of the body of the

deceased with a chopper, as a result of which, the

deceased succumbed to death. In order to screen the

act of murder with an intention to cause disappearance

of the evidence, accused no.1 thrown the chopper into a

nearby well and thereby the accused escaped from the

spot.

4. PW-7 Ramababu, PW-8 Shrikara and PW-9

Basanna who were working inside the cow shed came to

rescue the deceased. At that time, accused No.1

committed criminal intimidation against them with dire

consequences to their life if they disclose the alleged CRL.A.1962/2017

incident to anybody. Son of the deceased i.e., PW-1

Renugopala Krishna came to know about the incident,

has set the law into motion by presenting Ex.P.1 -

complaint to Hadadi Police. Case in Crime No.179/2013

was registered and investigation was takenup.

5. PW-21 - M.G. Pampapathi, CPI investigated

the matter, arrested the accused, inspected the spot,

conducted inquest and spot panchanama, subjected the

dead body for autopsy, arrested the accused, seized the

weapon of the offence as per his voluntary statement

and also seized the clothes on the dead body, recorded

evidence of witnesses, subjected seized articles to FSL

examination, received the reports and on completion of

the investigation, filed the final report against accused

No.1.

6. Learned JMFC-II Court, Davanagere

registered case in C.C.No.316/2014, after complying CRL.A.1962/2017

Section 207 of Cr.P.C., committed the case to the Court

of Sessions acting under Section 209 of Cr.P.C. Learned

Principal District and Sessions Judge, Davanagere

registered the case in S.C.No.69/2014 and assigned it to

I Additional District and Sessions Judge, Davanagere. In

the meantime, the Investigating Officer also secured the

remaining accused and filed separate charge sheet. It

was registered in C.C.No.820/2014 and after following

the formal procedures, committed the case to court of

Sessions. The committal court registered in

S.C.No.20/2016 and assigned it to I Additional District

and Sessions Judge, Davangere. Both the cases were

clubbed and common trial was conducted by the trial

court.

7. Before the trial Court, the State is represented

by the Public Prosecutor and accused were represented

by their counsel. The Trial Court after hearing both sides

framed the charge under Section 302, 201, 114 and 506 CRL.A.1962/2017

of IPC. As the accused pleaded not guilty, the

prosecution examined PW-1 to 22, marked Exs.P.1 to

P.38 and M.Os.1 to 6.When the accused were

questioned under Section 313 of Cr.P.C., they denied

the incriminating circumstances pointed against them

and they did not produce the defence evidence under

Section 233 of the Cr.P.C. The trial Court after hearing

both sides passed the impugned judgment holding that

accused No.1 is guilty of Sections 302, 201 of IPC and

acquitted accused nos.2 to 5 of charges. Accused

no.1/appellant has assailed the impugned judgment and

order of conviction.

8. We have heard the arguments of Sri. C.H.

Jadhav, learned Senior Counsel representing Sri.

L.Srinivas Babu and Sri.Vijayakumar Majage, learned

Additional SPP for the State and also perused the

impugned judgment, evidence led by the prosecution

and other relevant papers placed before us.

CRL.A.1962/2017

9. PW-1 - Renugopala Krishna, is the son of the

deceased, his testimony shows that his father was

residing in the farm house situated at Vaderahalli village

and the accused persons too residing nearby. Since

2013 accused disputing that the land belonging to them

and there was quarrel in this regard. Seeking protection

on 2-3 occasion deceased had filed complaints to Hadadi

Police, also sent letters to the Chief Minister, Opposition

Leader, Higher Police Officials. On 08.11.2013 at 7.00

a.m. he received phone call from PW-7 Ramababu who

informed him about the incidence. From Davangere he

came to the spot, saw the dead body of his father lying

near cow shed with the injuries on the neck, back, chest

with one finger cut. He also saw the presence of PW-7 to

9 at the spot. He filed Ex.P.1 - complaint to Hadadi

police, later police arrived at spot, drawn Ex.p2 mahazer

between 9.00 a.m. and 9.45 a.m. and collection of

sample bloodstains soil and sample soil at M.O.1 and 2 CRL.A.1962/2017

by taking photograph at Ex.P.3. Later police have

conducted inquest mahazar on the body of the deceased

at 12.00 noon by taking the photographs at Ex.P.4. He

also speaks about presence of PW-2 - Ravi K., PW-12 -

S.B. Marulasiddappa, PW-4 - Datturaj, PW-5 -

Venkatesh, PW-13 - Bhavani and his another sister

Rekha during so. Exs.P.19 to 24 are the documents

pertaining to the letter received from the Chief Minister's

Office, DIG's Office, Tahasildar's Office, Report of the

village accountant and endorsements issued by the

Hadadi Police marked through him.

10. PWs-7 to 9 are said to be the eyewitnesses to

the incident. PW-10 and 13 are said to have knowledge

about the incident, who are the star witnesses, the

prosecution relied.

11. The testimony of PW-7 - Ramababu shows that

on 08.11.2013 at about 7.00 p.m. he, PW-8 - Srikara CRL.A.1962/2017

and PW-9- Basanna while working inside the cow shed

of the deceased, he was milking the cow outside, they

heard the sound outside, went out, saw the accused

no.1 with a machete inflicting injuries on the back, neck,

chest and light leg of the deceased, the deceased was

laying on the ground. When he, PWs-8 and 9 attempted

to pacify, accused No.1 threatened them. He saw the

other accused standing near their house and instigating

the accused No.1. The accused no.1 along with machete

at M.O.6 left the spot in a motorcycle. According to him,

the assault was in connection with the land dispute.

12. The testimony of PW-8 - Srikara shows that he

is a relative of the deceased, an ITI student studying at

Davanagere. He along with PW-7 and 9 were working in

the land of the deceased. On 08.11.2013 between 6.30

and 7.00 a.m. he, PW-7 and 9 while working in the cow-

shed the deceased, he was milking the cow outside.

They heard sound, came out and saw the accused no.1 CRL.A.1962/2017

with M.O.6 - machete inflicting injuries on the back,

neck, chest and right knee of the deceased. The

deceased having sustained injuries succumbed to the

death at the spot. When they attempted to pacify,

accused no.1 threatened them and thereafter carried

M.O.6 along with him in his motorcycle. He saw the

other accused standing near their house, were

persuading accused no.1 not to spare the deceased and

prompting him to inflict injuries with machete.

13. The testimony of PW-9 - Basanna shows that

he was working as labourer with the deceased as and

when called. 3 years ago at about 7.00 a.m. when he

had gone near the cow shed, saw the dead body of the

deceased with bleeding injuries. He was not aware who

had inflicted the injuries. He has given clear goby to the

prosecution version, denying his previous statement as

per Ex.P.13. He did not speak anything except seeing CRL.A.1962/2017

the dead body inflicted with bleeding injuries near the

cow-shed.

14. PW-10 - Sathyanarayana is a fellow villager

of Mudadi village. His testimony shows that PW-7 and 8

were working in the cow shed of the deceased, situated

near the house of the accused. In connection with land

dispute he was witness for several quarrels between

accused and the deceased. He was on pilgrimage about

2½ years ago, after return came to know the news of

murder of the deceased. He was not aware who the

person responsible for death of the deceased. He too

has given clear goby to version of the prosecution and

resiled from his previous statement at Ex.P.14. He was

also now not aware of presence of PWs-7 and 8 at spot

when the incident took place. He resides half a kilometer

away from the house of the deceased and accused

persons were residing at Devarajaurs layout at

Davanagere.

CRL.A.1962/2017

15. PW-13 - Smt. Bhavani is the daughter of the

deceased. Her testimony goes to show the land dispute

between her father with the accused prior to the

incident. There was a frequent quarrel between both and

several cases were also filed. She knew accused no.7 to

9 works under her father in the disputed land. On

08.11.2013 at 7.30 a.m. she received information about

the incident from her sister and death of her father. She

along with her husband reached the spot at 9.15 a.m.

saw the dead body of her father with injuries on the

neck, with cut in foot finger. She speaks about the

presence of the Police, making enquiry about how

incident had happened, PW-7 to 9 informing the Police

about cause of death of her father and particularly about

accused no.1 and the instigation by other accused.

16. PW-3 - Sudha is another daughter of the

deceased. She is the inquest as well as spot panch. Her

testimony shows the purchase of land in Sy.No.5/1A1 by CRL.A.1962/2017

her father, dispute between her father with accused,

accused quarrelling with her father claiming that land

belongs to them resulting registration of several cases.

In the year 2013 after attending deepavali festival she

went to house of her brother at Davanagere. On

08.11.2013, her brother received phone call from the

fellow workers at her father's land informing about the

incident. She and her brother/PW-1 had rushed to the

farm house, saw her father was lying dead with injuries

on the neck, front portion of the chest. Police visited the

spot drawn spot mahazar at Ex.P.2, inquest on the dead

body of her father as per Ex.P.6 and they have taken

the photograph at Ex.P.3. She states the land dispute

was the reason for the incident and she shown her finger

towards accused no.1 has committed murder of her

father at the instance of the other accused. She also

speaks about presence of PW-1, PW-7 and others during

mahazars conducted by the police.

CRL.A.1962/2017

17. PW-22 - L. Rajashekhar, was the PSI of

Hadadi Police Station at relevant point of time. He has

given evidence about registering of FIR/Ex.P.28 on

receipt of Ex.P.1/complaint from PW-1 on 08.11.2013 at

8.30 a.m. He also speaks about apprehending of the

accused from near the Ranganatha Swami temple of

Hallur village of Hirekerur Taluk and his production

before IO on 13.11.2011 under his report/Ex.P.31.

18. PW-20 - Veereshappa S., is Police constable of

Hadadi Police Station. On oath he speaks about carrying

FIR to the Court.

19. PW-4 - Datturaj is a panch witness to the

inquest of the deceased. His evidence shows that on

08.11.2013 he heard about the incident, visited the

spot, saw the dead body of the deceased inflicted with

machete injuries. He also speaks about drawing of

mahazar by the police in presence of PW-1, PW-3, PW-7 CRL.A.1962/2017

and PW-8 between 9.30 and 10.00 a.m. and taking of

photographs/Exs.P.3 to 5. He saw from the gathering

taking about the land dispute was cause for the death of

the deceased in the hands of accused No.1 at the

instigation of other accused.

20. PW-12 - S.B. Marulasiddappa is panch

witness to collection of blood stained soil samples by the

IO at the spot. His testimony points out that 3 years ago

at about 8.30 a.m. Police drawing the mahazar near the

house of the deceased by taking Ex.P3/photograph in

respect of collection of M.O.1 and 2/samples in the

presence of PWs-1, 2 and 3.

21. PW-2 - Ravi is also pancha. His testimony

points out that he was called near cow shed on

8.11.2013, where he had seen plastic mug, milking can.

Police have drawn the mahazar/Ex.P2 between

9.30-9.45, collected sample of bloodstained soil as per CRL.A.1962/2017

M.O.1 and 2 in presence of PW-1 and PW-12. He also

speaks about the inquest drawn by the Police on the

dead body of the deceased between 10.30 and 11.00

a.m. PW-1, PW.12, PW-4, PW-3 were present and police

have taken the photo of the dead body at Ex.P.3. During

so he heard nexus between the incidence with accused

no.1 and his brothers in connection with the land

dispute.

22. PW-14 - Gangappa is the Assistant Engineer.

His testimony points out that on 26.11.2013 Hadadi

Police took him to spot to prepare the sketch. After

visiting the spot he has prepared Ex.P.15 - sketch

noting the topography of the spot and given to police.

23. PW-18 - Chandrakumar, is police constable of

Hadadi Police Station. His testimony points out that as

per the instructions of Investigating Officer, he has

guarded the dead body of the deceased, after autopsy CRL.A.1962/2017

handed over the dead body to the family members and

also carried the clothes on the dead body at M.Os.3 to 5

and produced it before the Investigating Officer and its

seizue under Ex.P7/mahazar in presence of PW-5 -

Venkatesh and CW-7 - Anil Kumar.

24. PW-5 - Venkatesh is panch witness to Ex.P.7.

His testimony points out that 3 years ago he was called

to the office of the CPI between 4.30 to 5.00 p.m., one

police constable had produced M.O.3 to 5 - clothes said

to be of deceased and it was seized under

Ex.P.7/mahazar in presence of CW-7 - Anilkumar.

25. PW-15 - Manjunatha is the person who knew

the purchase of the disputed land by the deceased. His

testimony points out that the deceased purchasing 3

acres of land in Sy.No.5/1B and it was under the

supervision of Shivanandappa. On the date of incident CRL.A.1962/2017

he was out station, he came to know about the

incidence on his return and death of the deceased.

26. PW-16 - Dr.Nagaveni is the Medical Officer of

Chigateri Hospital, Davanagere and she is an eye

surgeon. She speaks about PW-18 handing over the

request of the Investigating Officer for conducting

autopsy on the dead body of the deceased on

08.11.2013. On the very day between 2.00 and 4.00

p.m. she conducted the autopsy. During so, she noticed

the injuries on the dead body of the deceased as under:

"External injuries:

1) There is an oblique cut throat injury extending from right ear lobe to the left sternovleido mastoid oblique measuring 13 cms X 3 cms X 4 cms trachea and esophagus are cut at the level of the hyoid bone, carotid and jugular veins on both sides of the neck.

2) Cut wound from the right side of the neck measuring 13X3X5 cm.

3) Cut wound over the left side of the chest at the end of clavicle and second rib 4 x 1 x 1 cm.

(i) Second oblique cut measuring 4X1X3 cms, cut wound over the occipital area measuring 7 inches length 4 cm depth.

CRL.A.1962/2017

4) Abrasion and cut wound over the left elbow joint measuring 4 x 2 cm.

5) There is a cut of 4th digit of left hand

6) cut wound over the right knee joint measuring 14 x 2 x 3 cm patella detached from tendon.

She also noticed injuries organ-wise (i) fracture of

second and third ribs on the left side of the chest and

(ii) cut throat injury over the trachea and esophagus cut

at the level of thyroid cartilages. She is of the opinion

that, the death of the deceased was 6 to 7 hours prior to

autopsy. She has given her opinion as to cause of the

death was due to hemorrhagic shock, as a result of

injuries to trachea, esophagus, carotid, jugular vessels

and head injury. She has issued autopsy report at

Ex.P.17. On 03.05.2014 she had examined M.O.6 - long

(machete), compared it with the corresponding injuries

on the dead body of the deceased and gave her opinion

at Ex.P18 that injuries found on the dead body was

possible if an assault with M.O.6.

CRL.A.1962/2017

27. PW-21 - Pampapathi is the Investigating

Officer. His testimony goes to shows that on

08.11.2013 after taking over the investigation from PW-

22, he has visited the spot, secured the presence of PW-

2-K. Ravi, PW-12- S.B. Marulasiddappa by issuing

notice. In their presence conducted the spot inspection,

saw the dead body of the deceased with injuries on the

neck, backside, chest and fingers. He also collected

samples of blood stained soil and control soil as per

M.O.1 and 2 between 9.00 to 9.45 a.m. under Ex.P.2 -

Mahazar and taken Ex.P.3 and P.4 photographs. He has

further conducted Ex.P.6 - inquest on the dead body of

the deceased and recorded the statements of PW-3 -

Sudha and PW-4 - Datturaj and sent the dead body for

autopsy through PW-18. PW-18 after autopsy brought

and produced M.Os.3 to 5 and was seized under Ex.P.7

in presence of PW-5 - Venkatesh and CW-7 - Anil

Kumar.

CRL.A.1962/2017

28. His testimony further shows arrest of

accused, recording of his voluntary statement at Ex.P.31

on 13.11.2013 on his production by PW-22 under

Ex.P.32/report. On the next day 10.00 a.m. he has

secured PW- 6 Siddeshaiah and PW-11 - Manjunath

Rathod to his office introduced the accused no.1 to

them. Accused No.1 took them to farm house of the

deceased and shown the well near the cow-shed that he

has thrown weapon of offence. Well was filled with

water, it was dewatered, accused no.1 get down and

produced M.O.6 - machete. On its examination observed

bloodstains on it, hence, it was seized under Ex.P.8 -

mahazar between 10.00 a.m. to 4.00 p.m. and

photographs Ex.P.9 and 10 was also taken. After

collecting petition filed to the Chief Minister and others

as per Ex.P19 to P24, records pertain to the land, land

dispute, the previous complaints filed to Police as per

Ex.P34 to P38, Ex.P.27 - FSL report, opinion report of CRL.A.1962/2017

Doctor as per Ex.P.18 and filed the charge sheet against

accused No.1. The other accused since obtained stay

from this Court, after its vacation, filed separate charge

sheet against them.

29. PW-6 - Siddeshaiah and PW-11 - Manjunath

Rathod are panch witness to the seizure of M.O.6. Their

testimony shows that, they were summoned to the

Hadadi police station, PW-11 visiting first to the police

station and later PW6. They saw the presence of the

accused no.1, who in police jeep took them to

Vaderahalli village, to the land of the deceased. The

accused No.1 went near the well and told them that

M.O.6 was thrown inside the well. Water was in full

brim, Police after dewatering, accused no.1 got into the

well, brought M.O.6 and produced it. It was seized under

Ex.P.8 - mahazar by taking the photograph at Exs. P.9

to 12.

CRL.A.1962/2017

30. PW-17 - Manjunatha, is the police constable.

His version of evidence on oath shows he carrying seized

articles to FSL on 23.11.2013 and bring them back on

30.11.2013.

31. PW-19 Dr.Lingegouda N.L. is the scientific

Officer of FSL, Davanagere. His testimony shows that on

30.11.2013 Hadadi police have brought six items in

M.O.1 to 6 in connection with Cr.No.179/2013. He has

examined them scientifically and observed blood stains

on M.O.3. Such stains were of human 'O' group. In this

regard he has issued Ex.P.27 report and returned M.O.1

to 6 to police.

32. It has been argued by the learned Senior

Counsel Sri.C.H.Jadhav that presence of PWs-7 to 9 at

the time of incident is highly improbable. In spite of

neighbours are present just 200 feet away from place of

incident, none of them were cited as witness. PW-7 has CRL.A.1962/2017

referred the presence of one Prasanna at the time of

incident but Investigating Officer did not choose to

record his statement without recording any reason. PW-

6 speaks about the arrival of several people at the spot

one and half hour after the incident. Such being so, the

very presence of PW-7 is doubtful. PW-8 is unreliable

witness because of his unnatural conduct elicited in the

cross-examination. It is also brought out from the cross-

examination of PW-9 that after seeing the dead body, he

brought PWs-7 and 8 to the spot, then how safe it is to

relay on the evidence of PW-7 to 9. It is also canvassed

referring to the evidence of PW-16 - Dr. Nagaveni

explained that she being the eye surgeon, inexperienced

in conducing autopsy. She has assessed the time since

death was 6-7 hours prior to the time of autopsy. It is

contrary to medical jurisprudence as the assessment of

time since death shall be in the intervals of within 12

hours, 12 to 24 hours and thereon.

CRL.A.1962/2017

33. Learned Senior Counsel also referred to

Ex.P.21 that he has given the extra judicial confession

which is hit by under Section 25 and 26 of Evidence Act.

PW-6 is brought as pancha witness to the seizure who is

a resident of Bellodi village 31 kilometers away from the

spot and interestingly he is friend of PW-1. There is no

explanation offered why neighbours were not summoned

as panchas. For this reason, evidence of PW-6 is

unreliable. It is brought to our notice that soon after the

incident, M.O.6 was thrown inside the well, and it was

inside the water for a period of 5 days. The evidence of

PW-19 FSL expert in the cross-examination did point out

if the metal object with bloodstains was immediately put

inside the water, bloodstains will vanish. Inspite of it,

bloodstains were noticed and to even to the extent of

grouping. Hence the FSL report is strange and for this

reason, the FSL evidence is unreliable.

CRL.A.1962/2017

34. Learned Senior Counsel taken us through the

evidence of PW-1 about presence of Police at the spot

before filing the complaint, if it is so, police have prior

information even before filing of the complaint and they

visited the sopt, this aspect is suppressed. Having

regard to the civil and criminal disputes, conduct of the

witnesses indicate that they are not genuine, the

medical evidence is not worthy, the FSL report is

unreliable and all the witnesses who are all working at

different places have been brought in as eye witnesses.

Therefore, the reasons recoded by the trial Court in

accepting the doubtful evidence and in holding that

accused no.1 is guilty is erroneous.

35. In support of his submission, learned Senior

Counsel placed reliance on:

1) Bhimappa Jinnappa Naganur Vs. State of Karnataka reported in 1993 Supp (3) SCC 449:

CRL.A.1962/2017

The Hon'ble Apex Court referring to behaviour of eye

witness in a criminal trial held to what extent they can

be relied at para 9, it thus reads as follows:

"9. It appears to us that the High Court did not meet with the reasoning of the trial court while rejecting the statement of eyewitnesses. It also appears to us that the behavious of PW 1, wife of the deceased, was not natural in the sense that she merely rests by offering water to her deceased husband who was breathing his last. She does not try to nurse him or offer him any other help which would have shown her presence at the time of the death of the deceased at the site of the incident."

2) Shankarlal Vs. State of Rajasthan reported in (2004) 10 SCC 632:

The Hon'ble Apex Court while considering the sole eye

witness in a criminal trial referring conduct of the

witnesses and its appreciation laid down at para 5,

which reads as under:

"Even according to the prosecution the only witness to the incident in question is PW-6 therefore as contended by learned counsel for the appellant we will have to examine his evidence carefully. If we do so then we notice that on the date of incident he had gone to a village Upli for some work. From there he came back by bus at about 11 CRL.A.1962/2017

o'clock. He then allegedly went to the village to meet Ram Rakh where he was told by his wife that the latter had gone to the field. It is the prosecution case itself that the distance between the field of Ram Rakh and the village is about 4-5 miles and PW-6 covered that distance on foot and when he reached near the field of Ram Rakh he heard a quarrel and when he went towards the place of quarrel he saw the appellant attack the deceased with an axe. It is his further case that when he reached near the deceased the appellant ran away. It is at this point of time he states that he got scared and he took a different route than the one he took on the way and reached the village at about 4 or 4.15 p.m. It is his case that when he went to the house of Ram Rakh he could not find him therefore he came near the village square where he met PW-2 Khyali Ram. From the above evidence of PW-6 it is apparent that though there were persons available on his way back, he did not inform anybody about the incident. Even when he reached the village and met Ram Rakh's wife he did not inform her about the incident and it is for the first time he informs about this incident to PW-2 at the village square at about 4.15 p.m. Contrary to what he stated in the examination in chief that he saw only one assault on the deceased, in the cross examination he stated that he saw the appellant attack the deceased twice and both the injuries were caused in his presence. It is also to be noticed from his cross examination that when he met PW-2 Khyali Ram and told him about the incident in question but PW-2 supposedly told him that he had already come to know of the incident from PW-14.

CRL.A.1962/2017

The prosecution has not found how PW-14 came to know of the incident. In this background if we appreciate the evidence of PW-6 we notice the fact that he is purely a chance witness whose presence at the place of the incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Khyali Ram at the village square. We also notice that there is unexplained delay in filing the complaint inasmuch as according to the prosecution the incident in question took place at about 1.30 p.m. and a complaint was lodged only at 3.15 a.m. on 5.4.1980.

Though the distance is about 30 miles from the place of incident, the complainant had the facility of using the tractors available in the village and they did use the same for travelling to the Police Station. In such circumstances this unexplained long delay also creates a doubt in our mind as to the genuineness of the prosecution case. Once we are not convinced with the evidence of PW-6 then there is no other material to base a conviction on the appellant hence we are of the opinion that the appellant is entitled to the benefit of doubt therefore this appeal succeeds and is allowed. The judgment and order of conviction of the 2 courts below are set aside. The appellant is acquitted of the charge framed against him. From the records we notice that the appellant is on bail. If so his bailbonds shall stand discharged."

3) State of Rajasthan Vs. Sampat Ram and Others reported in (2015) 13 SCC 115:

CRL.A.1962/2017

The Hon'ble Apex Court dealing with unnatural conduct

of witnesses laid down at paras 8 and 9, which reads is

under:

"8. We have gone through the record and considered the rival submissions, PW 3 Lalaram, having turned hostile, the matter completely hinges on the testimony of PW 4 Ramkaran. His behaviour in leaving the place of occurrence and not reporting the matter to anyone is extremely unnatural. The incident having occurred in the darkness and as accepted by PW 4 Ramkaran it was not in front of the tractor, the chance and opportunity for him to have sufficiently identified the assailants is also doubtful. There is nothing on record as to how "one child" who was on the tractor, has after investigation been found to be other than PW 5 Ramratan, aged about 22 years and a stout person.

9. In the circumstances, the view that has weighed with the High Court in reversing the order of conviction and acquitting the respondent-accused is definitely a possible view. In this appeal against acquittal, we do not see any justification to upset such view taken by the High Court. Consequently, this appeal fails and is dismissed."

4) State of Uttar Pradesh Vs. Om Pal and Others reported in AIR 2018 SC 2072:

CRL.A.1962/2017

The Hon'ble Apex Court while appreciating eyewitness to

an incident if statement of one eyewitness contradictory

and it is unreliable. At paras 11, 12 and 14, which is as

follows:

"11. On the other hand, the conduct and statements of PW2 (Dharmendra) 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.

12. We are also not inclined to believe the conduct of PW3-- wife of the deceased, who was stated to be in a shock and not in consciousness for about a month after the death of her husband. We find no valid documentary or medical evidence on record in support of the claim of prosecution that PW3 was really in such unconscious state for about a month. Looking at the unnatural behavior of eyewitnesses PWs 2 & 3 and their contradictory statements, it cannot CRL.A.1962/2017

be said that their evidences are genuine so as to convict the accused.

13. x x x

14. The High Court, while appreciating the evidence of the three important witnesses i.e. PWs 1, 2 and 3, rightly disbelieved the presence of PWs 2 and 3 at the place of occurrence and discredited the evidence of P.W.1--complainant. Undoubtedly, the prosecution in its effort to establish the case with the support of evidences of PWs 1, 2 and 3, has miserably failed to prove the guilt of the accused beyond reasonable doubt. The High Court has, therefore, committed no illegality or manifest error in acquitting the accused giving them the benefit of doubt, under the circumstances. We express our concurrence with the findings recorded by the High Court for acquitting the respondents. For the aforesaid reasoning, we do not find any merit in this appeal calling for our interference under Article 136 of the Constitution."

36. On contrary, learned Additional SPP has

submitted that entire case of the prosecution stands on

the testimony of eye witnesses. There is a direct

evidence to the effect that accused no.1 near cow shed

inflicted fatal injuries on the person of the deceased with

a machete - M.O.6 and the injuries found on the dead

body is as noted during the autopsy corroborates to the

statement of the eye witnesses. Even though PW-9 CRL.A.1962/2017

turned hostile, evidence of PW-7 and 8 is clear and

inspiring confidence. The incident occurred at 7.00 a.m.,

complaint was lodged within 8.30 a.m. there was no

delay. All the procedures have been followed in

registering the complaint. The conduct of witnesses

cannot be given much importance as it varies from

person to person. PW-6 and also PW-11 have supported

the seizure of weapon of offence as M.O.6 at the

instance of accused no.1.

37. It is further submitted that PW-10 -

Satyanarayana deposed about working of PW-7 and 8 in

the cow shed of deceased. As indeed other witnesses did

not point out about the background of the dispute

between the deceased and the accused, prosecution has

established the motive by producing the documents as

per Exs.P.13, 21, 23, 24 and the relative witnesses

stand in support of it. Therefore, prosecution has placed CRL.A.1962/2017

positive evidence and therefore the order of conviction

needs to be confirmed.

38. We have referred the evidence relied by the

prosecution and persuasive submissions made by both

sides to support their contentions.

39. Motive is a double edged weapon. It will cut

either side, if it is established or not. In a case where

entire case of the prosecution lies upon the direct

evidence, motive loses importance and as such let us

see whether the prosecution evidence so relied upon is

trustworthy, reliable and whether the impugned

judgment is sustainable as claimed by the prosecution or

any secondary hypothesis is possible, give benefit in

favour the accused is to be examined now.

40. Firstly let us see the aspect of homicidal death

of the deceased. In this regard, we have already

referred the evidence of prosecution witnesses' viz., CRL.A.1962/2017

PW-3/Sudha, daughter of the deceased, PW-4/Datturaj

and PW-12/S.B.Marulasiddappa and also the evidence of

PW-21/ M.G.Pampathi, the Investigating Officer. Ex.P6

is the inquest panchanama wherein the injuries

mentioned in it is referred to supra; it takes

corroboration from the oral evidence of PW-

16/Dr.Nagaveni. The quality of evidence relied makes it

clear that the dead body of the deceased lying in front of

the cow-shed in the farm-house with inflicted fatal

injuries.

41. In the cross examination of PW-

16/Dr.Nagaveni, several irregularity is explained that

what she committed during autopsy. Even such

admissions she is not a full-fledged forensic expert, she

is not aware of procedure of autopsy, keeping that

apart, it is noticed there is no denial that she did not

conducted autopsy. The injuries recorded in

Ex.P17/postmortem report did not point out any CRL.A.1962/2017

secondary hypothesis give rises to inference of any

other hypothesis. Hence, the prosecution evidence

persuades us to accept it. We also perused by the

finding recorded by the trial court with respect to the

cause of death. We do not find any error in such

findings. Hence, we have no hesitation to accept that

the death of the deceased was homicidal.

42. The entire case of the prosecution rests upon

the direct evidence. As we have evaluated the evidence,

PW-1/Renugopal Krishna, son of the deceased, who

came down to the spot, after seeing the dead body of

his father, lodged the complaint/Ex.P1. PW-3/Sudha and

PW-13/Bhavani are the daughters of the deceased, who

are the chance witnesses, who came to the spot only

after getting the information about the incident. PW-

10/Sathyanarayana is another important witness who

did depose that the deceased had engaged the services

of PWs-7 and 8 to work in his cow-shed. He speaks in CRL.A.1962/2017

respect of frequent quarrel between the deceased and

the accused in respect of land dispute. PW-10 has

turned hostile in the witness box, he resiled from his

previous statement as per Ex.P14. He heard about the

incident from others, he was not a witness to it. The

cross-examination of PW-10 demonstrates that he was

not aware the presence of PW-8 when the incident took

place. He resides half-a-kilometer away from the house

of the deceased wherein the accused persons were

residing at Devaraja Urs Layout at Davanagere. From

the testimony of PW-10, we can make out that he was

not an eye-witness but he only speaks about PWs-7 and

8 working in the cow-shed of the deceased.

43. Apart from these witnesses, star witnesses to

the case are PW-7/Ramababu, PW-8/Srikara and PW-

9/Basanna. As found from the evidence of PW-10, PWs-

7 and 8 were engaged by the deceased, insofar as PW-9 CRL.A.1962/2017

working with the deceased is concerned, it can ascertain

from the evidence of PW-8.

44. In the cross-examination, PW-8 has

categorically stated that the deceased has engaged the

services of PW-9 to work as labour one year prior to the

incident and to this extent; he has also given a

statement before the Police. In the cross-examination he

did not deny this aspect.

45. As seen from the evidence of PW-8, he

admitted that he is the close relative of the deceased,

though the children of deceased did not admit it. The

reason can be inferred that they want to project PW-8 as

an independent witness. The evidence of PW-8/Srikara

indicates that he was an ITI student studying in

Davanagere and he resides at Kunduwada. PW-8 cannot

be a labour as he is an ITI student and relative of the CRL.A.1962/2017

deceased. Keeping this in mind, let us appreciate the

evidence of PWs-7 to 9.

46. We have analyzed the testimony of PW-7 to

PW-9. In his cross-examination PW-7 admits that

though he was present at the spot, witnessed the

incident, he did not show any reflexion to the act of the

accused while assaulting the deceased, even he had not

gone near, he did any attempt to rescue the deceased,

he did not offer first aid to the deceased, even after the

accused left the spot he has not attempted to feed water

to the deceased or tried to shift the deceased to the

hospital to save his life. If really PW-7 was present and

witnessed the incident, his conduct shows his unnatural

behaviour of a person even after seeing such an

incident. He did not shout for help nor has raised hue

and cry, to alert neighbours to rush to the spot and even

PWs-8 and 9 did anything according to him.

CRL.A.1962/2017

47. As seen in the cross-examination of PW-

8/Srikara, while witnessing the incident, he did not cry,

shout or call for any help from the public, inspite of the

houses are situated nearby, he did not intervene with

the accused, he did not rush to the spot to rescue the

deceased, he has not made any attempt to provide first

aid or feed water to the deceased even after the accused

left the spot. He too admits that neither he nor PWs-7

and 9 made any attempt to save the life of the

deceased. They did not care to ascertain whether the

deceased was dead or alive. Even he did not do any

effort to carry the deceased to the hospital at

Davanagere. This is an unnatural conduct of PW-8 as a

human being and the close relative of the deceased.

The conduct of PW-8 is identical to that of PW-7, as

such; presence of PW-8 has to be ascertained now.

48. Let us analyse testimony of PW-9/Basappa. His

service was engaged by the deceased since one year CRL.A.1962/2017

prior to the incident. PW-9 speaks about his arrival to

form house of the deceased at 7.00 a.m. in the morning,

saw the deceased lying in front of the cow-shed with

injuries and found dead. He has not seen the incident,

he did not make any attempt to rescue the deceased, as

he was already dead. He has not given Ex.P13

statement before the Police. In his cross-examination, it

is brought out that he alone came to the house of the

deceased and saw the dead body of the deceased and

thereafter went and brought PWs-7 and 8 to the spot to

show the dead body of the deceased. From the said

version of PW-9 it is clear that he was the first person,

who saw the dead body of the deceased and the

absence of PW7 and 8 is prominent. His evidence

explains PWs-7 and 8 behaving in such a manner, it is

not expected from a prudent man even after seeing such

a ghostly incidence taking place under their eyes

probabalise their absence prominently. It stands in CRL.A.1962/2017

support of PW9 to infer the absence of PWs-7 and 8

during incidence. If they are not present at the spot

naturally there was no occasion for them to behave in

this manner. This goes to establish that PWs-7 to 9

were not eye witness to the incident. Hence the

proposition of the prosecution has to fall on the ground

of direct evidence.

49. The other circumstance that could be gathered

is only from PW-1/Renugopal, son of the deceased, PW-

3/Sudha and PW-13/Bhavani, the daughters of the

deceased, they came to know about the incident from

others, the reason for referring the names of the

accused was the land dispute. It is brought out in the

cross examination of PW-10 that the disputed land

originally belongs to the accused, they pledged to one

Muddappa Master as security to loan. The deceased has

grabbed the said land forcing Muddappa Master to part

with the said land. It is also brought out that the CRL.A.1962/2017

deceased was faced trial as accused for having

committed murder of said Muddappa Master. Under

these circumstances the deceased and the accused

came inside the civil and criminal litigation resulting

frequent quarrel between them. These aspects is not

denied by the son and daughters of the deceased in

their cross examination. Thus, it is clear that the

disputed land was already soaked with blood and it was

repeated again.

50. In this background if we consider the events,

the direct evidence is not available to the prosecution,

now the case rest on the circumstantial evidence. It is

the arrest, voluntary statement and recovery of weapon

of offence at the instance of the accused. In this regard,

the prosecution has relied upon the evidence of PW-

6/Siddeshaiah and PW-11/Manjunath Rathod.

CRL.A.1962/2017

51. As regarding apprehension of the accused is

concerned, the evidence of PW-21/ M.G.Pampapathi and

the evidence of PW-22/L.Rajashekar, PSI did point out

that on 13.11.2013, he has apprehended the accused

near Ranganathaswamy temple of Halloor village of

Hirekerur taluk at about 9.00 a.m. with the assistance of

his staff and he was produced before the Investigating

Officer under Ex.P32/report. In the cross-examination,

though it has been denied, the production of accused

under Ex.P32/report by PW-22 has been deposed by

PW-21/Pampapathi, the Investigating Officer.

52. The manner of apprehending the accused and

production before PW-21 may be doubtful, but the

evidence of PWs-21 and 22 did point out the presence of

the accused was secured on 13.11.2013. According to

PW-21, the first accused has given voluntary statement

as per Ex.P31 and as per such statement, he secured

PWs-6 and 11 as panchas, the accused led them to the CRL.A.1962/2017

place of incident and shown the well where the alleged

weapon of offence/M.O.6 was thrown and it was seized

under Ex.P8.

53. The evidence of PWs-6 and 11 read

conjoiontly, did point out the Investigating Officer

securing them to the Police Station, introduced them

with the accused, he taking them to the place of

incident, shown the well, after dewatered, he went in

and brought M.O.6/machete and same was produced

under Ex.P8. Said procedure was captured in Exs.P9 to

P12 photographs.

54. We have carefully considered the evidence of

PWs-7 and 8 that the accused soon after the incident

carried M.O.6 along with him in the motor cycle. If that

is so, from the scene of offence the accused carried

away M.O.6; it was not thrown to the well. Contrarily

M.O.6 has been seized from inside the well.

CRL.A.1962/2017

55. We have also perused the photograph at

Exs.P9 and P10. They clearly point out that, accused,

Investigating Officer and panchas' are all inside the well,

where the machete was in the hands of the accused, it

was not soaked with water or the accused. It MO6 was

carried away by the accused, how it came inside the

well-cast a cloud of doubt in the version of the

prosecution. FSL evidence supports our inference as

found from testimony of PW-19/Dr.Lingegowda,

bloodstains on M.O.6 to the extent of grouping. In the

cross-examination PW-19 did admit that immediately

after the incident, if M.O.6 was thrown inside the well,

there is chance of bloodstains being washed away.

Interestingly M.O.6 was seized five days after the

incident, during so it was inside the well. As one can see

from the photographs at Exs.P9 and P10, that M.O.6

was dry and not at all soaked with water and therefore,

the seizure as stated by PWs-6, 11 and Investigating CRL.A.1962/2017

Officer, is found artificial. Under these circumstances we

are persuaded to opine theory of seizure as proposed is

make believe and it is hard to accept the evidence in

this regard.

56. As regarding the evidence of PWs-6 and 11, it

has been contended that they are not the local

witnesses; they are all very interested and brought from

outside. As seen from the evidence, PW-6 hails from

Bellodi village, 25 kilo meter away from the place of

incident. PW-11 who is a friend of PW-1 was working at

Mangalore and he was brought in as a panch witness,

inspite of the neighbours and local respectable people

are readily available to the Investigating Officer. A

person unknown to the locality is ropped in by the

Investigating Officer as panch witness. It clearly point

out the cleverness of the Investigating Officer in citing

the selective witnesses excluding local persons also CRL.A.1962/2017

explain the conduct of the Investigating Officer and

quality of investigtion.

57. Now coming to the evidence of remaining

witnesses, who are all formal in nature, PW-

15/Manjunath, whose evidence did point out the

background of the deceased acquiring the land and the

dispute between the parties? The others are official

witnesses are formal in nature.

58. As we have analysed the evidence of the

prosecution, it comes out that, there was an incident on

8.11.2013 in the morning, the deceased was succumbed

to the fatal injuries in front of his cow-shed, PW-9 came

to work in the morning seen the same, brought PWs7

and 8 to the spot. Thereafter the incident was informed

to PW-1, PWs-3 and 13, the children of the deceased,

police were also rushed to the spot without making any

delay, investigation was done and later law was set into CRL.A.1962/2017

motion. The reason for the accused to be brought in was

the dispute in respect of the land.

59. As seen from the records, we do not find any

material evidence explaining how the deceased suffered

injuries. Even if M.O.6 is accepted as the weapon of

offence, the seizure at the instance of the accused is

highly doubtful; FSL evidence did explain that the

seizure of M.O.6 is to make believe. Even the

circumstantial evidence is not available in to prosecution

to bring home the guilt of the accused.

60. We have perused the impugned judgment; the

trial court did fail to evaluate the evidence of the

prosecution in the context of admissibility. Inspite of the

lack of legal evidence, the trial court has come to the

conclusion that the prosecution has proved its case. In

view of our analysis of the prosecution evidence in the

light of the settled law there is a secondary hypothesis

in the prosecution evidence, which was not appreciated CRL.A.1962/2017

in favour of the accused. When two views are possible,

the view in favour of the accused has to benefit him. We

are persuaded to extend benefit of doubt in favour of

the accused holding that prosecution failed to place legal

evidence in support of its proposition. Having regard to

weight of the evidence conviction will not sustain. The

impugned judgment calls for our interference. In the

result, we proceed to pass the following:

ORDER

The appeal is allowed.

Consequently judgment dated 03.11.2017 and

order of conviction dated 04.11.2017 passed in

S.C.No.69/2014 by the Court of I Additional District and

Sessions Judge, Davanagere in convicting the accused of

the offence punishable under Section 302 of IPC and

sentencing him to undergo imprisonment of life and pay

a fine of Rs.15,000/-, in default he shall undergo simple

imprisonment for 6 months and convicting the accused CRL.A.1962/2017

of the offence punishable under Section 201 of IPC and

sentencing him to undergo simple imprisonment for

2 years and to pay fine of Rs.1,000/-, in default

to undergo simple imprisonment for 15 days is hereby

set-aside.

Whereas accused is acquitted of the offence

punishable under Section 302, 201 of IPC.

The accused shall be set at liberty forthwith, if he

does not require in any other case.

Fine amount if any deposited by the accused shall

be returned to him with due identification.

Office to communicate this order to concerned jail

authority forthwith where the accused is now in

incarceration.

Sd/-

JUDGE

Sd/-

JUDGE KNM/-