Shivukumar @ Shivu vs State Of Karnataka
2023 Latest Caselaw 4673 Kant

                            1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 20TH DAY OF JULY, 2023

                         PRESENT

       THE HON'BLE MR JUSTICE K.SOMASHEKAR

                          AND

        THE HON'BLE MR JUSTICE RAJESH RAI K

          CRIMINAL APPEAL NO. 736 OF 2016
                       C/W
          CRIMINAL APPEAL NO.587 OF 2016

IN CRL.A.NO.736 OF 2016

BETWEEN

  VINUTHKUMAR,
  S/O.BOREGOWDA,
  AGED ABOUT 23 YEARS,
  R/O CHIKKAMANDYA,
  NEAR HIGH SCHOOL,
  MANDYA TALUK,
  MANDYA-571 401.
                                         ...APPELLANT

(BY SRI. C. SHANKAR REDDY, ADVOCATE)

AND

   STATE OF KARNATAKA
   BY V.V.PURAM POLICE STATION,
   MYSURU,
   REPRESENTED BY THE STATE
   PUBLIC PROSECUTOR,
                             2



     HIGH COURT BUILDING,
     BANGALORE-560 001.
                                           ...RESPONDENT

(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP)

     THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 25.02.2016 AND
SENTENCE DATED 27.02.2016 PASSED BY THE VI ADDL. DIST.
AND SPL. JUDGE, MYSURU IN S.C.NO.97/2008 - CONVICTING
THE APPELLANT/ACCUSED NO.3 FOR THE OFFENCE P/U/S 302
AND 201 R/W 34 OF IPC.


IN CRL.A.NO.587 OF 2016


BETWEEN

1. SHIVUKUMAR @ SHIVU,
   AGED ABOUT 31 YEARS,
   RESIDING AT NO.2303, 2ND CROSS,
   GANDHINAGAR, NEAR WATER
   TANK, MANDYA TOWN,
   MANDYA DISTRICT-571 401.

2.   RAMACHANDRA @
     MALAVALLI RAMACHANDRA,
     S/O DASAPPA,
     AGED ABOUT 35 YEARS,
     RESIDING AT
     HADLIBASAVANAPURA VILLAGE,
     MALAVALLI TALUK,
     MANDYA DISTRICT-571 430.
                                            ...APPELLANTS

(BY SRI. LAKSHMIKANTH.K, ADVOCATE ALONG WITH
    SRI. SAMPANGI RAMAIAH, AMICUS CURIAE)
                                3



AND

   STATE OF KARNATAKA
   BY V.V.PURAM POLICE STATION,
   MYSURU,
   REPRESENTED BY STATE
   PUBLIC PROSECUTOR,
   HIGH COURT BUILDING,
   BANGALORE-560 001.
                                                ...RESPONDENT

(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP)

     THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 25.02.2016 AND
SENTENCE DATED 27.02.2016 PASSED BY THE VI ADDL. DIST.
AND SPL. JUDGE, AT MYSURU IN S.C.NO.97/2008 -
CONVICTING THE APPELLANT/ACCUSED NO.1 AND 2 FOR THE
OFFENCE P/U/S 201, 302 R/W 34 OF IPC.

     THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR   JUDGMENT    ON  26.06.2023, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, RAJESH RAI.K J.,
DELIVERED THE FOLLOWING:

                         JUDGMENT

These appeals by the convicted accused Nos.1 to 3 are

directed against the judgment of conviction and order of

sentence dated 25.02.2016 passed in S.C. No.97/2008 by the VI

Addl. District and Sessions Judge, Mysore by convicting accused

Nos.1 to 3 for the offences punishable under Sections 302 and

201 r/w Section 34 of IPC and directing them to undergo

rigorous imprisonment for life and accused No.1 shall pay a fine

of Rs.3,00,000/- in default to suffer, further 3 years simple

imprisonment and accused Nos.2 and 3 shall pay a fine of

Rs.10,000/- each in default, to further 3 years simple

imprisonment for the offence punishable under Section 302 r/w

34 IPC. The appellants/accused Nos.1 to 3 are further sentenced

to undergo rigorous imprisonment for a period of 7 years with

fine of Rs.10,000/ each in default, to undergo further 1 year

simple imprisonment for the offence punishable under Section

201 r/w 34 IPC and directed that the sentence shall run

concurrently. However, though accused Nos.1 and 2 preferred an

appeal before this Court in Crl.A.No.587/2016, subsequently,

accused No.2 died and as such, the appeal against him was

abated vide order dated 16.06.2023.

2. The factual matrix of the prosecution case are as

under:

The maternal uncle namely Jadeja Ravi of accused No.1

i.e., appellant No.1 in Crl.A.No.587/2016, was elected as

Counsellor of Mandya Town Municipality and was murdered on

07.12.2017 in Yeliyuru circle at Mandya. On 08.12.2007, funeral

ceremony of said Jadega Ravi was conducted. To the said funeral

ceremony, accused Nos.8 and 9 had come and they were

discussing with accused No.1 with regard to persons who

committed the murder of Jadega Ravi and who are behind the

said murder and in the said discussion accused No.8 and 9

informed to accused No.1 that Nagendra (deceased in this case)

had given supari to commit the murder of Ravi Jadeje by giving

Rs.20,00,000/- for the reason that Jadeja Ravi may come in his

way in MLA election and he may get ticket. Therefore, accused

No.1 on 08.12.2007 at about 10:30 p.m. along with his

companions i.e., accused Nos.2 to 7, had a meeting at Apporva

Lodge Room No.1 by giving party to them and informed them

about a message conveyed by accused Nos.8 to 9 that

deceased-Nagendra had given supari for committing the murder

of Jadeja Ravi and he informed them that the said Nagendra

shall not be left on the earth and he should be finished. Further,

accused No.1 asked them to join their hands with him in

murdering the deceased and accordingly, accused Nos.2 to 7

assured him to assist in murdering the deceased Nagendra.

Accordingly, in the morning on 09.02.2007, accused Nos.1 to 6

with an intention to commit the murder of deceased-Nagendra

went to his house in Tata Indigo car bearing registration No.KA

09 N 9888 belonging to accused No.1 having longs (choppers) in

the said car and accused No.3 i.e., the appellant in Crl.A.

No.736/2016 was driving the said car, but the deceased

Nagendra was not found. Then accused Nos.1 to 6 went in the

said car to Quality Bar at Mandya and consumed liquor and once

again accused No.1 took promise from accused Nos.2 to 6 that

they shall assist him to commit murder of deceased Nagendra.

At that time, accused Nos.5 and 6 went away. Afterwards,

accused Nos.1 to 4 came nearby the house of deceased-

Nagendra in Mandya at about 10:00 a.m. and by stopping their

car at some distance, they watched for coming of the deceased

Nagendra near his house. At that time, the deceased Nagendra

along with his wife (PW.1) came out from the house to go to

Ramakrishna Vidya Shale (School), Mysore wherein his son

Vishruth studying. The deceased-Nagendra and his wife PW.1

went in their car driven by Umesh-PW.3 bearing registration

No.KA-11-MC-7777 and came to Mysore Ramakrishna Vidya

Shale. They left Mandya at about 10:00 a.m. and reached

Ramakrishna Vidya Shale at about 10:50 a.m. In the main gate,

their car was stopped. The deceased-Nagendra and his wife get

down from the car and went inside the main gate of

Ramakrishna Vidya Shale wherein his son Vishruth was waiting.

Later, the deceased Nagendra and his wife had discussion with

their son Vishruth by sitting on stone bench and then they came

near main gate to bring some chocolate to Vishruth by sending

Vishruth for lunch. Meanwhile, accused Nos.1 to 4, who were

following the deceased from Mandya in Indigo car bearing

registration No. KA 09 N 9888 had come to Ramakrishna Vidya

Shaale and stopped their car near the main gate at some

distance and they were waiting for deceased-Nagendra. When

deceased along with his wife (PW.1) was coming out from the

main gate, accused Nos.1 and 2 suddenly came along with

choppers to attack on deceased Nagendra and the deceased

Nagendra having seen them, suddenly, in order to escape from

their attack, came inside the main gate of the school by running.

In that process, he fell down since his right shoulder came in

contact with main gate. At that time, accused Nos.1 and 2

holding choppers in their hands, chased the deceased-Nagendra

and surrounded him and assaulted on his hands, head and neck

and gave fatal blows. Due to the assault, the deceased

Nagendra fell on the ground on the pool of blood. Having seen

this, CW.1 to CW.4 made hue and cry and at that time, accused

Nos.1 and 2 came out from the gate to escape and accused

Nos.3 and 4 brought the car in reverse position, in which

accused Nos.1 to 4 sat in the car along with the choppers and

thereby, escaped from the spot. Immediately, PW.1 shifted the

deceased to Vikram Hospital and later the deceased was shifted

to B.M Hospital for higher treatment. But the deceased

succumbed to the injuries on 11.12.2017 at about 12:45 p.m.

As such, PW.1 gave her statement as per Ex.P1 with regard to

the incident before the PSI, V.V Puram Police Station and who

had come to B.M Hospital after coming to know about the

incident. Thereafter, the said V.V Puram Police investigated the

matter, arrested the accused and conducted the investigation by

recording the voluntary statement of the accused so also, the

investigation officer conducted the spot and inquest mahazar

and recovered the weapons, which are used for the commission

of the crime after recording the statement of witnesses so also

after obtaining the necessary documents from the concerned

departments, the investigation officer i.e., PW.36 laid charge

sheet against accused No.1 to 10 for the offence punishable

under Sections 143, 120(B), 341, 324, 302, 109 R/w 149 of IPC

and also under Section 27 of Indian Arms Act.

3. On committal of the case before the Sessions Court,

the learned Sessions Judge framed the charge against the

accused for the offence punishable under Section 120(B), 109,

302, 201, 118 r/w 34 of IPC and read over the same to the

accused and the accused pleaded not guilty and claims to be

tried. Initially case was registered in SC No.97/2008 against

accused Nos.1 to 7. Since the case against accused Nos.8 to 10

was split up, the same came to be registered in

C.C.No.858/2008 in committal court itself. Subsequently, before

the Sessions Court also the case against them was split up and

separate cases were registered in S.C Nos.188/2008 and

174/2009. However, accused Nos.1 and 3 were tried in S.C

No.97/2008.

4. In order to bring home the guilt of the accused

before the trial Court, the prosecution in total examined 37

witnesses as PW.1 to 37 so also got marked 81 documents as

per Exs.P1 to P81 and 25 material objections as MO.1 to MO.25.

However, on behalf of the accused, the defense counsel

examined 4 witnesses i.e., DW.1 to DW.4 so also got marked 14

documents as Exs.D1 to D.14.

5. After assessment of oral and documentary evidence

available on record and also after hearing the learned counsel for

the accused and the learned public prosecutor, the learned

Sessions Judge convicted accused Nos.1 to 4 for the charges

leveled against them and sentenced them as stated supra.

6. We have heard Sri C.Shankar Reddy, learned counsel

for the appellant in Crl.A.No.736/2016, Sri Sampangiramaiah,

learned Amicus Curiae, who was appointed in Crl.A.No.587/2016

due to the absence of Sri. Lakshmikanth Reddy, learned counsel

and Sri Vijaykumar Majage, learned Additional SPP for the

respondent-State.

7. However, after conclusion of the argument of Sri

Sampangiramaiah, learned Amicus Curiae, Sri Lakshmikanth

Reddy, learned counsel also appeared and submitted that the

judgment under appeal suffers from perversity and illegality and

the same is not based on the evidence available on record. He

further submits that learned Sessions Judge convicted accused

No.1 based on assumption and presumption and as such,

miscarriage of justice is caused to accused No.1 and the

impugned judgment is liable to be set-aside. He would further

contend that by perusal of the complaint-Ex.P1 lodged by PW.1

i.e., wife of the deceased-Nagendra, wherein she failed to

mention the names of the accused in spite of the fact that

accused No.1 is a relative of deceased-Nagendra. He would

contend that admittedly, the complaint-Ex.P1 lodged against

unknown persons and as such, the said complaint cannot be

believed. Subsequently, in the evidence of PW.1, she deposed

that she had identified accused Nos.1 and 3 in the scene of

occurrence. According to the learned counsel, if PW.1 really

witnessed the incident, then she would have informed the name

of accused No.1 to the Police while lodging the complaint-Ex.P1

since he was a relative of her husband Nagendra. Hence, her

version cannot be believed.

8. Learned counsel would further contend that, the

prosecution totally failed to prove the motive for the alleged

incident. It is the case of the prosecution that the deceased-

Nagendra was murdered by accused No.1 along with other

accused for the reason that the deceased eliminated his uncle

i.e., one Jadeja Ravi by giving supari of Rs.20,00,000/- and for

that reason, accused No.1 hatched the conspiracy to commit the

murder of the deceased along with others. However, the

prosecution totally failed to prove the said motive by leading

cogent evidence. According to the learned counsel, the said

Nagendra was not at all accused in Jadeja Ravi's case and such

being the position, the prosecution failed to prove the motive for

the alleged incident. He would further contend that in the

evidence of PW.1 i.e., the wife of the deceased and PW.2-

Basavanna, PW.3-Umesh, who are the alleged eye-witness to

the incident, there are major contradictions, and discrepancy in

respect of identification of accused No.1 during the course of test

identification parade conducted in central prison. He would

further contend that the recovery of material objects i.e., MO.1

and MO.2 is not proved by the prosecution, as contemplated

under Section 27 of Indian Evidence Act, by leading cogent

evidence since there are lot of contradictions in the evidence of

those recovery mahazar witnesses. Accordingly, the learned

counsel for the appellant prays to allow Crl.A No.587/2016

against accused No.1 by setting aside the conviction order.

9. Sri C.Shankar Reddy, learned counsel for appellant

in Crl.A.No.736/2016 for accused No.3 contended that, the role

assigned to accused No.3 in this case is that, he was driving the

vehicle at the time of incident and thereby, facilitated accused

Nos.1 and 2 to commit the murder of the deceased i.e.,

immediately after the incident accused No.3 brought the car to

the spot of incident on reverse direction and thereby, facilitated

accused Nos.1 and 2 to get inside the car and they escaped from

the scene of occurrence. However, according to the learned

counsel, the prosecution failed to prove the said theory by

leading cogent evidence. Learned counsel would contend that by

perusal of the face sheet of the charge sheet, i.e., in column

No.7, it is stated that accused No.3 was not driving the vehicle

and somebody else was driving the vehicle i.e., the Indigo car

and accused No.3 was sitting beside to the driver. Admittedly,

accused No.3 was not got down from the car nor participated in

the crime. Further, the learned Sessions Judge wrongly framed

the charge against all the accused persons in a similar manner

without mentioning the individual overt act of the each of the

accused. No where in the charge sheet it is forth coming that

accused No.3 was driving the car and thereby, facilitated

accused Nos.1 and 2 to commit the murder of the deceased.

Learned counsel would further contend that by perusal of the

complaint-Ex.P1 lodged by PW.1 also depicts that along with the

driver one more person was sitting in the car at the time of

incident. As such, it is the specific case of the prosecution that

the accused was not driving the car at the time of incident. He

would further contend that during the course of evidence, PW.1

totally changed her version and deposed that accused No.3 was

driving the car and in her chief-examination, she stated that

after the incident, the car was brought near the spot of incident

on a reverse direction and at that time, accused No.3 was

present in the car. However, during the course of test

identification parade, PW.1 failed to identify accused No.3 at the

first instance and later, on second and third rounds of

identification, she identified accused No.3 as the driver of the

vehicle at the time of incident. This version of PW.1 goes

contradictory to the complaint-Ex.P1 so also the prosecution

case as per charge sheet. He would further contended that in the

cross examination, PW.1 categorically admitted that the car of

the accused was parked in a distance of 250 feet from the place

of incident and she also admitted in the cross-examination that

they were unable to see the said Indigo car from the spot of

incident and the same was not visible from the place of incident.

Learned counsel would further contend that by perusal of

evidence of PW.2 who is one more eye-witness to the incident,

he deposed before the Court that accused No.7 was driving the

car at the time of incident and accused No.3 was sitting next to

the driver of the Indigo car. As such, there is clear contradiction

in the evidence of PW.1, PW.2 and the complaint-Ex.P1 in

respect of the fact that the accused No.3 was not driving the car

at the time of incident.

10. Learned counsel for accused No.3 would further

contend that PW.2 failed to depose about the registration

number of the car before the Investigation Officer. He would

further contend that the registration number of the car was KA-

09-N-9888 and the said registration number was affixed to the

car in English letter and before the Court, the prosecution

produced the number plate which is written in Kannada

language. As such, there is a clear discrepancy in respect of the

very car which is used for the commission of the crime. Learned

counsel would contend that admittedly, accused No.1 is the RC

owner of the car and accused No.3 is nothing to do with the

incident and he was not at all present at the time of incident and

the prosecution falsely implicated him in the alleged crime. He

would further contend that admittedly, there is no recovery of

incriminating articles at the instance of this accused. Though the

prosecution relied that the key of the car was seized at the

instance of accused No.3, the car itself belongs to accused No.1.

The recovery of key at the instance of accused No.3 does not

have any evidentiary value. As such, the learned counsel prays

to acquit accused No.3 for the charges leveled against him.

11. Per contra, Sri Vijay Kumar Majage, learned Addl.

SPP would vehemently contend that the appeal filed by accused

No.1 and 3 are liable to be dismissed since the judgment under

appeals does not suffers form any perversity or illegality and the

same is based on the evidence available on record. The learned

Sessions Judge convicted the appellants by meticulously going

through the evidence of eye-witnesses so also the other

evidence and the documents available on record. As such, the

same does not call for any interference. Learned Addl. SPP

would further contend that the consistent version of PW.1-eye-

witness, PW.2 and PW.3, who are the other eye-witness to the

incident cannot be discarded for any reason. PW.1 being the

wife of the deceased categorically deposed about the incident

i.e., the assault made by the accused No.1 to the deceased with

the MO.1-longue (chopper). The doctor also opined that the

death was due to injuries sustained by the deceased and also

gave an opinion that the said injuries could be caused by the

weapons which he examined i.e., MOs.1 and 2 and the doctor

i.e., PW.25 gave his opinion as per Ex.P38.

12. Learned Additional SPP would further contend that

the consistent evidence of PW.1 to PW.3 in respect of the assault

made by accused Nos.1 and 2 coupled with the evidence of the

recovery mahazar i.e., recovery of MO.1 at the instance of

accused No.1 so also the motive for the commission of the

alleged incident i.e., PW.1, PW.2 and PW.3 categorically stated

the reason behind the commission of the crime that the maternal

uncle of accused No.1 i.e., one Jadeja Ravi was murdered and

accused No.1 under the impression that the deceased-Nagendra

had given supari to commit the murder of said jadeja Ravi, to

take revenge against the deceased, accused No.1 hatched the

conspiracy along with accused Nos.2 to 7 and thereby,

committed the murder of the deceased. The said aspect was

proved by the prosecution by leading cogent evidence of PW.1 to

PW.3 so also the other witnesses. He would further contend that

the clothes of accused No.1 and MO.1-chopper sent for FSL and

the FSL Officer i.e., PW.28 gave his report as per Ex.P44 and

clearly opined that the blood found in MO.1 and the cloth

materials of the deceased is of human blood and belongs to 'B'

group. In such circumstances, the prosecution proved the

participation of accused No.1 so also accused No.3 being the

driver of the car at the time of incident.

13. Learned Addl. SPP would contend that those minor

contradictions in the evidence of PW.1 and PW.2 in respect of

the participation of accused No.3 does not go into the route of

the prosecution case. As such, learned Sessions Judge rightly

convicted accused Nos.1 and 3. Hence, he prays to dismiss both

the appeals filed by accused Nos.1 and 3.

14. We have bestowed our anxious consideration both on

the submissions made by the parties so also the evidence and

materials available on record including the trial Court records.

15. Having heard the learned counsel for the parties and

having perused the documents, the points that would arise for

our consideration are:-

1. Whether the judgment under appeals suffers from any perversity or legality?

2. Whether the learned Sessions Judge is justified convicting accused Nos.1 and 3 for the offence punishable under Sections 302 and 201 r/w Section 34 of IPC?

16. This Court being the appellate Court, the re-

appreciation of the entire evidence on record is very much

required. Therefore, the cursory glance of the evidence available

on record are as under:

(i) PW.1-Vidya is the complainant. She is the wife of the

deceased. She has deposed that on 9.12.2007 at about 11.00

a.m., she had gone with her husband to meet their son-DW-4

who is studying in 8th Standard at Ramakrishna Vidya Shala,

Mysore. After talking to DW-4, while returning near the gate,

two unknown persons alighted from the car and attacked the

deceased with longs and caused injuries. After assaulting, the

accused escaped in a car bearing registration No.KA 09 N 9888,

which came in the reverse direction. Immediately after the

incident, the complainant and others shifted the injured to

Vikram Hospital, Mysore and thereafter, he was further shifted to

B.M.Hospital, Mysore where he died while under treatment on

11-12-2007.

(ii) PW.2-M.Basavanna was examined as an eye witness

to the incident. He was working as a security in the Ramakrishna

Vidya Shala, Mysore and he supported the case of the

prosecution.

(iii) PW.3-Umesh was examined as an eye witness to the

incident. He was the driver of the car belonging to the deceased.

He has deposed that on the date of incident he had taken the

complainant and the deceased in their car to Ramakrishna Vidya

Shala, Mysore to meet DW.4 i.e., the son of the deceased who

was studying in the said school and at about 11.00 a.m., the

incident took place and he supported the case of the

prosecution.

(iv) PW.4-M.P.Mahesh deposed that he is the brother of

the deceased-Nagendra and he received the information

regarding the incident by PW.1 and immediately, on receipt of

the information, he went to B.M.Hospital, Mysore and he has

also deposed that he is the witness for Ex.P7 mahazar for

seizure of clothes of deceased MOs.4 to 6. Since, he was not

made available for cross-examination, his evidence is of no help

to the prosecution.

(v) PW.5-M.S.Shivakumar was examined as panch

witness for recovery as per Exs.P8, P9 and P10. Ex.P8-the

recovery mahazar of 2 choppers, blood stained clothes and

Ex.P9-the recovery mahazar of car number plates at the instance

of accused-2 on 16-12-2007. He is also panch for Ex.P10

wherein he has deposed that at the instance of accused No.3 a

car key was recovered.

(vi) PW..6-Umesh was examined as panch witness for

recovery of clothes of accused No.1 as per Ex.P13 on 19-12-

2007.

(vii) PW.7-Nagaraju deposed that he was working as

electrician and that he had given certain lands on lease to one

Shesha and from his land, the number plate of the car was

recovered.

(viii) PW.8-Sharath deposed that he was working as a

supplier in Quality Bar, Mandya and he was examined to say that

on 08.12.2007, accused Nos.1 to 7 conspired to murder the

deceased. However, he turned hostile to the case of prosecution.

(ix) PW.9-Chandru has deposed that he was working as

cashier in Samrat Wine Stores, Mandya and he was examined to

say that accused No.1 was using the said room on the first floor

of the building. However, he turned hostile to the case of

prosecution.

(x) PW.10-Krishna is the panch for mahazar-Ex.P7

wherein, the clothes of the deceased i.e., MOs.1 to 6 were seized

during the inquest. He turned hostile to the case of prosecution.

(xi) PW.11-Krishna is the panch for Ex.P19 wherein it is

alleged that accused No.s1 to 7 had conspired in Apporva Delux

Lodge, Mandya. But, he has not supported the case of the

prosecution and turned hostile to the case of prosecution.

(xii) PW.12-Chandra Mohan.H.S. is the panch for

mahazar-Ex.P19. But, he has not supported the case of the

prosecution and turned hostile to the case of prosecution.

(xiii) PW.13-B.S.Ramesh is the panch for mahazar-Ex.P64

under which the accused were arrested on 14.12.2007 in the

car. But, he has not supporter the case of the prosecution and

turned hostile to the case of prosecution.

xiv) PW.14-M.S.Ramesh has deposed that he was

running Kaveri Security Services and PW-2 was on duty at the

relevant point of time at Ramakrishna Vidya Shala, Mysore.

(xv) PW.15-Smt.Nagamma is the mother of accused

No.1. She treated as hostile witness and she has not supported

the case of the prosecution.

(xvi) PW.16-V.Balachandra was working as Assistant

Commissioner in Mysore City Corporation and he deposed that

he had engaged the services of PW-17 for getting the sketch of

scene of offence as per Exs.P23 & P24.

(xvii) PW.17-C.S.Satyamurthy was working as Assistant

Engineer in Mysore City Corporation and he deposed that he had

prepared the sketch of scene of offence as per Ex.P24.

(xviii) PW.18-M.R.Rachaiah is a retired revenue officer and

he deposed that he has issued katha extract of Apporva Hotel

Building in Mandya belonging to PW-15 i.e., the mother of

accused No.1. He turned hostile to the case of prosecution.

(xix) PW.19-Dr.MAnjunath was working as a doctor in

Vikram Hospital and he has deposed that on 09.12.2007 at 11-

30 a.m., PW.1 admitted the deceased in injured condition to the

hospital and he gave first aid and given the nature and number

of injuries suffered by the deceased and for further treatment,

the deceased was shifted to B.M.Hospital.

(xx) PW.20-S.Balaji has deposed that he was working as

Principal in Ramakrishna Vidya Shala, and has issued the study

certificate as per Ex.P30 of DW-4-Vishruth, who is the son of the

deceased.

(xxi) PW.21-A.L.Lakshmegowda was working as Office

Superintendent in the office of R.T.O, Mysore (West) and has

deposed that the car bearing registration No.KA 09 N 9888

belongs to one Amiruddin as per Ex.P31.

(xxii) PW.22-Prema was working as Head Mistress (I/c) in

the Government Higher Primary School, Halebudanur and has

deposed that she has issued date of birth certificate of Manu as

per Ex.P12.

(xxiii) PW.23-Mahadeva was working as constable in

V.V.Puram P.S. and has deposed that he was sent with another

constable to find out the accused and they have not found any

useful information and he reported it as per Ex.P33.

(xxiv) PW.24-J.J.Eranna was working as constable in

V.V.Puram P.S. and has deposed that he was sent to find out

information about the accused Rama, Lakshmana and

Manjunatha and he searched for the same at Bangalore's

Yelahanka and Kamakshipalya and has not found any useful

information and he reported it as per Ex.P35.

(xxv) PW.25-Dr.S.T.Ramachandra was working as doctor

in B.M.Hospital, Mysore. He has deposed that on 09-12-2007 at

12-30 p.m., the deceased was brought to B.M.Hospital for

treatment and after checkup, he referred it to specialist in the

hospital and produced case sheet as per Ex.P.37.

(xxvi) PW.26-R.Puttasiddashetty was working as A.S.I in

Saraswathipuram P.S.,Mysore he has deposed that on 15-12-

2007 along with other police constable, he was deputed to

search the accused persons as per Exs.P.41 & 42.

(xxvii) PW.28-M.Puttaraju was working as A.S.I in Mandi

P.S., Mysore. He has deposed that on 10-12-2007 along with

other police constable, he was deputed to search the car used by

the accused persons as per Ex.P.43.

(xxviii) PW.28-S.M.Gaokar was working as Asst. Director in

FSL Lab, Bangalore. He has deposed that while he was working

as Scientific Officer in FSL Lab., Mysore on 8-1-2008, he

examined the material objects sent for scientific examination by

V.V.Puram P.S. as per Exs.P.44 & 45.

(xxix) PW.29-Bhimanna was working as Police Constable in

Metagalli P.S., Mysore. He has deposed that he was deputed to

collect the information about the accused of their guilt in the

murder of the deceased as per ExPs.46 to 50.

(xxx) PW.30-G.Mallikarjunappa was working as Police

Constable in V.V.Puram P.S., Mysore. He has deposed that he

was deputed with other police constable to search the accused

and the car used by them as per Exs.P.52, 53, 54, 55, 56, 57 &

58.

(xxxi) PW.31-Sharathkumar was working as Manager in

Tata Saraswathipuram, Mysore Docomo Compan. He has

deposed that while he was working as Asst. Manager in Bharati

Televenture at Mysore, the police asked for call details or mobile

phones used by accused persons.

(xxxii) PW.32-G.MAdanna was working as A.S.I in

Vijayanagara P.S., Mysore. He has deposed that on 9-12-2007

on receipt of information, he visited Vikram Hospital and

recorded the statement of Smt. Vidya, who is the wife of injured

and registered FIR in Cr.No. 117/2007 as per Ex.P.65 and he

was sent with other police constable to search the accused as

per Exs.P.66, 67, 68 & 69.

(xxxiii) PW.33-C.K.Aswathnarayana was working as Circle

Inspector in Mandya town. He has deposed that on 14-12-2007,

he along with other staff seized a long in a vehicle bearing

No.KA 09 N 9888 from the persons travelling from Mysore to

Bangalore as per Ex.P64.

(xxxiv) PW.34-Vijayakumar has deposed that he does not

have contact with accused No.1, but he has seen his face. He

has not supported the case of the prosecution and he is treated

as hostile witness.

(xxxv) PW.35-H.M.Vinay was working as A.S.I in Mandya

East Station. He has deposed that on instructions, he has

attested the copies of diary and log book of jeep Exs.P70 & 71

and issued to Mandya District Police Superintendent.

(xxxvi) PW.36-Rajanna was working as S.I in V.V.Puram

P.S. Mysore. He has deposed that after receiving information, he

visited Vikram Hospital and came to know that injured Nagendra

was shifted to B.M.Hospital. He conducted spot inspection at

Vidya Shala of Ramakrishna Ashrama by calling panchas as per

Ex.P4 and deposed that he collected certain material objects

including blood stained soil for sending to scientific examination.

After receiving the message of death of Nagendra, he sent the

dead body for post-mortem and filed charge sheet including

Sec.302 and submitted to the Court and seized Ex.P7.

(xxxvii) PW.37-Mohan has deposed that he was working in

Eshwar Vedeo Mixing, Mysore. V.V.Puram Police called him and

instructed to start make videography and he made videograph of

the enquiry made by police with 2 persons and seizure of their

clothes.

(xxxviii) DW.1-Shivakumar, who is accused No.1 got

himself examined as DW-1 and deposed that he is relative of the

deceased Nagendra and he is not involved in the commission of

the offence of murder. He denied the entire case of the

prosecution.

(xxxix) DW.2-Sannappa @ Shankar has deposed that he is

the maternal uncle of accused No.1. He himself and accused

No.1 used to visit the house of the deceased Nagendra. The

father of accused No.1 by name Sundar was working as the car

driver of the father of deceased Nagendra.

(XL) DW.3-Murthy @ Matsyamurthy has deposed that he

is working as Archaka and knew the deceased, accused No.1

etc., and he has deposed that the deceased, accused No.1 and

the father of accused No.1-Sundara are known to each other.

(XLI) DW.4-Vishruth is the son of the deceased Nagendra

and the complainant. He has deposed that accused No.1 was not

the relative of DW.4. He has not identified certain persons in

photographs Exs.D5 to D7. In the cross- examination, he has

also given the details about the incident that took place on 9-7-

2007 at about 11 a.m.

17. By careful perusal of the above evidence, it could be

seen from the records that in order to prove the homicidal death

of the deceased in this case, the prosecution relied Ex.P51-the

post-mortem report which marked with the consent of the

defence counsel in this case. Apart from that the evidence of

PW.19-Dr. Manjunath of Vikram Hospital, who treated the

deceased for the injuries sustained on 19.12.2017 at about

11:00 a.m., he examined the deceased and identified the

injuries and to that effect, he produced the case records as per

Exs.P26 and P27. On perusal of those case sheets, the doctor

mentioned 5 injuries over the body of the deceased. Thereafter,

the deceased was shifted to B.M Hospital wherein PW.25-the

duty doctor treated the deceased and he also found the injuries

over the body and issued report as per Exs.P37 and P39.

However, later the deceased succumbed to the injuries in the

said hospital on the same day and the doctor conducted the

autopsy over the body as per Ex.P51. By perusal of Ex.P51-the

post-mortem report, the doctor gave an opinion that the death

was due to the complications of the multiple injuries sustained,

"due to homicidal assault at his possession". Nevertheless, the

prosecution also produced the inquest mahazar conducted over

the dead body by the Investigation Officer-PW.36 as per Ex.P76.

PW.1 and PW.2 clearly identified those injuries over the dead

body of the deceased and clearly deposed to that effect. Hence,

a conjoint reading of Ex.P51-the post-mortem report and

Ex.P76-the inquest panchanama with the evidence of PW.19 and

PW.25 coupled with the evidence of PW.36, in our considered

opinion, the prosecution proved the homicidal death of the

deceased beyond reasonable doubt. Nevertheless, the defence

counsel not seriously disputed the homicidal death of the

deceased since the post-mortem report marked with his consent

as per Ex.P51.

18. Once the prosecution proved the homicidal death of

the deceased, then the next question arise for the consideration

whether the accused are responsible for the same?

19. In order to connect the accused for the homicidal

death of the deceased, the prosecution mainly relied the

evidence of PW.1, who is none other then the wife of the

deceased and eye-witness to the incident and PW.2 and PW.3,

who are the other two eye-witnesses. As could be seen from the

evidence of PW.1 i.e., the wife of the deceased, who lodged the

complaint as per Ex.P1 at the earliest point of time i.e.,

immediately after the incident, she clearly stated that two

persons got down from the car and assaulted the deceased with

long choppers similarly before the Court, she deposed in her

evidence that the persons who were assaulted are accused Nos.1

and 2. She identified accused No.1 before the Court and also

MO.1 and MO.2 i.e., the weapons which are said to have been

used for the commission of the crime by accused Nos.1 and 2.

Nevertheless, PW.1 also identified the accused during the course

of test identification parade conducted by the Tahsildar in the

Central Prison as per Ex.P3. She identified her signature on

Ex.P3 (A) and (B). The evidence of PW.1 corroborates with her

complaint-Ex.P1. PW.2, who is the employee of PW.14, is one

more eye-witness to the incident, who is none other than the

security guard of the school where the alleged incident was

committed. This witness also categorically deposed that on the

fateful day, accused Nos.1 and 2 assaulted the deceased with

choppers on his person in the school premises. He also identified

not only the accused, but also the choppers i.e., MOs.1 and 2.

20. It is important to note that PW.14-the employer of

PW.2 stated before the Court that on the relevant date, PW.2

was on security duty in the said school. As such, there is no

reason to disbelieve the evidence of PW.2 that he had witnessed

the incident. Nevertheless, PW.2 also identified accused Nos.1

and 2 not only before the Court but also during the course of

test identification parade conducted in the Central Prison as per

Ex.P5. PW.2 is also witness for Ex.P2-spot mahazar and he

identified MOs.3 to 8 i.e., one pair of slipper, blood stained shirt,

pant, underwear and number plate of the car found in the place

of incident. Hence, as far as the assault made by accused No.1

to the deceased is concerned, the evidence of PW.1 and PW.2

are consistent and corroborative.

21. However, as far as accused No.3 is concerned, PW.1

stated that she identified accused No.3 in the test identification

parade only on the third round as she could not identify him

during first and second round of test identification parade. PW.2

also stated that accused No.3 was not driving the car and he was

sitting near to the driver of the said car and accused No.7 was

driving the car. The said version of PW.2 is quite contrary to the

case of the prosecution and also to the evidence of PW.1. Since

the case of prosecution is that accused No.3 was driving the car.

Even PW.2 in the cross examination admitted that the number

plate of the car produced before the Court is different that he

had seen on the date of the incident. The identification is

concerned, PW.1 and PW.2 not properly identified accused No.3.

22. As far as the evidence of PW.3 i.e., one more eye-

witness to the incident, who is none other than the driver of the

car of the deceased, also categorically stated before the Court

that accused Nos.1 and 2 assaulted the deceased with the long

choppers i.e., MO.1 and Mo.2. This witness also identified

accused No.1 before the Court and also during the course of test

identification parade. However, this witness failed to identify

accused No.3 during the course of test identification parade. As

far as the involvement of accused No.1 in the crime is

concerned, the evidence of PW.1 to PW.3 are consistent and

corroborates each other without any discrepancy or

embellishment. There is no reason to disbelieve the version of

PW.1 to PW.3.

23. Though the learned defence counsel argued that in

the cross examination of PW.1, she stated that she was the

relative of accused No.1 and she knows him prior to the incident,

but PW.1 stoutly denied the said suggestion put forwarded by

the defence counsel. It is the case of the defence that PW.1 is

the relative of accused No.1 and if accused No.1 really

participated in the incident then PW.1 would have disclosed his

name at the earliest point of time while lodging the complaint

i.e., Ex.P1. To that effect, accused No.1 also examined DW.1 to

DW.4. DW.4 is none other than the son of PW.1 and deceased.

Even otherwise, assuming for the sake of arguments, accused

No.1 is the relative of deceased, there is no such hard and fast

rule that PW.1 being the wife of accused No.1 must know all

distant relatives of her husband. Hence, the defence of the

accused does not hold much water. Hence, the evidence of PW.1

to PW.3, who are the eye-witness to the incident coupled with

the evidence of PW.4-the hearsay witness, who is none other

than the brother of PW.1 and also the witness for the seizure of

the clothes of the deceased under Ex.P7, in our considered

opinion, the participation of accused No.1 in the crime by

assaulting the deceased to do away his life is very much proved.

24. As far as the recovery of MO.1 and MO.2 i.e., two

choppers are concerned, PW.5, who is the recovery mahazar

witness, categorically deposed that the same were recovered at

the instance of accused No.2. Moreover, those weapons were

identified by PW.1 to PW.3 before the Court during the course of

their evidence. Even the blood stained clothes of accused No.1

are recovered at his instance under Ex.P13 and to that effect,

PW.6, who is the mahazar witness supported the case of the

prosecution. Those blood stained clothes were sent for FSL and

after examination of those clothes, MO.1 and MO.2, the Scientific

Officer-PW.28 given his opinion as per Exs.P44 and 45 that the

blood stains found in the weapons and the clothes of accused

No.1 are stained with human blood and with 'B' group blood.

Moreover, PW.37, who video graphed the recovery proceedings

of the clothes of accused No.1, MO.1 and MO.2 categorically

deposed before the Court to that effect. In such circumstances,

the prosecution even proved the recovery of weapons MO.1 and

MO.2 said to have used for the commission of the crime by

accused Nos.1 and 2 so also the clothes which worn by accused

No.1 during the course of incident. Hence, in our considered

opinion, the recovery of the weapons at the instance of accused

Nos.1 and 2 which are used for the commission of the crime was

also proved by the prosecution beyond reasonable doubt.

25. As far as the motive for the alleged incident is

concerned, the specific case of the prosecution is that one

maternal uncle of accused No.1 i.e., Jadeja Ravi was murdered

in Mandya on 07.02.2007 and accused No.1 was informed that

the deceased in this case i.e., Nagendra had political rivalry with

the said Jadeja Ravi and in order to eliminate the said Jadeja

Ravi, accused No.1 conspired with the other accused and

committed the murder of the deceased-Nagendra by extending

the financial help to the culprits. As such, accused No.1 hatched

the conspiracy to eliminate the deceased-Nagendra along with

accused Nos.2 to 4. The conspiracy meeting was held at

Apoorva Lodge in Room No.1 and thereafter, accused Nos.1 to 6

with an intention to commit the murder of the deceased-

Nagendra went to his house in the Tata Indigo car bearing No.KA

09 N 9888 belonging to accused No.1 by possessing deadly

weapons i.e., MO.1 and MO.2. Though they searched the

deceased-Nagendra in his shop and office, but the deceased-

Nagendra was not found. Later, they once again went in the

said car to Quality Bar at Mandya and consumed liquor and had

meals and once again accused No.1 got promise of accused

Nos.2 to 6 to assist him to commit the murder of the deceased-

Nagendra. At that point of time, accused Nos.5 and 6 went

away. Thereafter, accused Nos.1 to 4 came near the house of

deceased-Nagendra in Manday at about 10:00 a.m., and they

waited for the deceased. Later, they followed the deceased till

Ramakrishna Vidya Shale, Mysore and there they committed the

murder of the deceased. To prove the said aspect of the matter

i.e., motive for the commission of incident, the prosecution

examined PW.8 and PW.9, who are the employees of Quality Bar

and Samrat Wine at Mandya. However, these two witnesses

were turned hostile to the prosecution case. In spite of that, the

Investigation Officer i.e., PW.36 categorically deposed about the

said aspect. Moreover, it is settled position of law laid down in

the catena of judgments by the Hon'ble Apex Court that when a

case based on the evidence of direct eye-witnesses, then the

motive for the incident does not play any vital role. In the case

on hand, there is a clear evidence of eye-witnesses i.e., PW.1 to

PW.3 by their evidence. Hence, the prosecution proved the

aspect of motive since PW.1 is none other than the wife of the

deceased in this case.

26. On careful perusal of the evidence of PW.1 to PW.3,

who are the eye-witnesses to the incident coupled with the

evidence of Doctors who treated the deceased i.e., PW.19 and

PW.25, in our considered opinion, the deceased died in homicidal

death due to the assault made by accused Nos.1 and 2. Hence,

the trial Court has rightly come to the conclusion that accused

No.1 is the perpetrator of the crime and convicted accused No.1

for the charges levelled against him.

27. It is, vehemently, contended by the learned counsel

for the appellant/accused No.1 that PW.8 and PW.9, who are the

witnesses for the conspiracy held in the Bar and Restaurant by

accused Nos.1 to 4 to commit the murder of the deceased,

turned hostile and there are much contradictions in the evidence

of PW.1 to PW.3. But, in our considered opinion, the evidence of

PW.1 to PW.4 are consistent and absolutely there are no

infirmities to discard their version. Even in the cross-examination

also, these witnesses withhold the cross-examination conducted

by the defence counsel.

28. The Hon'ble Apex Court in the case of Neeraj Dutta

v. State (NCT of Delhi) reported in (2023) 4 SCC 731 held

that the general principles appreciating the evidence of witness

is that when a case involves large number of offenders,

prudently it is necessary but not always, for the Court to seek

corroboration at least from two or more witnesses as a measure

of caution. However, the principle has to be applied is quality

over quantity of witness as held by the Hon'ble Apex Court in the

case of Mrinal Das v. State of Tripura reported in (2011) 9

SCC 479. In respect of the effect of omissions and deficiencies,

the Hon'ble Apex Court in the case of Ravasaheb alias

Ravashebgouda and others vs. State of Karnataka reported

in (2023) 5 SCC 391 held as under:

"23. The evidence examined as a whole, must reflect/ring of truth. The court must not give undue importance to omissions and discrepancies which do not shake the foundations of the prosecution's case."

The Hon'ble Apex Court in the said judgment also held, in

respect of testimony of a close relative, as under:

"25. A witness being a close relative is not a ground enough to reject his testimony. Mechanical rejection of an even "partisan" or "interested" witness may lead to failure of justice. The principle of "falsus in uno, falsus in omnibus" is not one of general application.

29. It is settled position of law that the examination of

the witness before the Court is not to test his/her memory

power. Minor discrepancy bound to occur due to long lapse of

time and substratum of the evidence will have to be looked into.

30. In the case on hand as stated supra, PW.1 is the

complainant and eyewitness to the incident more over the wife

of the deceased, PW.2 and PW.3 are the eyewitness to the

incident. They categorically deposed about the incident and

assault made by accused No.1. The said ocular evidence

corroborates with the medical evidence of the doctor who

conducted the autopsy over the dead body in respect of the

injuries sustained by the deceased by MO.1 and MO.2. As such,

we are in agreement with the conviction and sentence imposed

by the trial Court in S.C. No.97/2008 against accused No.1 is

concerned.

31. However, as far as accused No.3 is concerned, as

discussed supra, the eye-witnesses to the incident i.e., PWs.1, 2

and 3 failed to identify him at the scene of occurrence so also

during the Course of Test Identification Parade. Moreover, all the

witnesses deposed contradictory in respect of the overt act of

accused No.3 that he was driving Tata Indigo car belongs to

accused No.1 at the scene of occurrence and thereby, facilitated

accused Nos.1 and 2 to escape from the spot after commission

of the incident. Admittedly, in the complaint lodged by PW.1,

the names of the assailants and the persons, who facilitated

them are not mentioned. Later though PW.1 deposed that

accused No.3 was driving the car at the time of incident, it is

quite contradictory to the case of the prosecution. Because in the

face sheet of the charge sheet i.e., in the column No.7, it could

be seen that in the accusation column, it is claimed by the

prosecution that accused No.3 sitting along with the driver of the

car. Moreover, the said aspect was deposed by PW.2 in his

evidence. According to PW.2, accused No.3 was sitting next to

the driver of the car at the time of incident. However, the car

key was recovered at the instance of accused No.3 and that

cannot be a sole ground to convict the accused in the case.

Admittedly, the car belongs to accused No.1. Nevertheless,

during the course of test identification parade conducted in the

Central Prison, PW.1 identified accused No.3 in the 3 rd round of

identification. Even PW.2 and PW.3 also not properly identified

accused No.3. In such circumstances, in our considered opinion,

the prosecution failed to prove beyond reasonable doubt the

involvement of accused No.3 in the crime. As such, the benefit of

doubt should be extended to accused No.3 in this case.

32. Accordingly, the point raised for consideration is

answered and we proceed to pass the following:

ORDER

i. Criminal Appeal No.587/2016 filed by accused No.1 is hereby dismissed. Consequently, the judgment of conviction and order of sentence passed in S.C.No.97/2008 dated 25.02.2016 by the VI Additional District and Special Judge, Mysuru against accused No.1 namely Shivukumar @ Shivu is hereby confirmed.

ii. The bail bond executed by accused No.1 stands cancelled and two weeks time is granted to him to surrender before the trial Court to serve the sentence from the date of receipt of certified copy of this judgment, failing which, learned Sessions Judge is directed secure the presence to accused No.1 and to commit him to prison to serve the sentence.

iii. Criminal Appeal No.736/2016 filed by accused No.3 is hereby allowed. The judgment of conviction and order of sentence passed in S.C.No.97/2008 dated 25.02.2016 by the VI Additional District and Special Judge, Mysuru is hereby set aside in respect of accused No.3.

iv. Consequently, accused No.3 is hereby acquitted of the charges levelled against him for the offences punishable under Sections 302 and 201 r/w Section 34 of the IPC.

v. The Bail and Surety Bonds executed by accused No.3 is hereby cancelled and if the aforesaid accused deposited the fine amount, if any, before the trial Court, the same shall be refunded to him on proper identification.

vi. The Registry is hereby directed to send the LCR forthwith along with the certified copy of this order to learned Special Judge, to take appropriate action.

The fee of Sri N.S.Sampangi Ramaiah, who is appointed as

Amicus Curiae for assisting in this matter is fixed at Rs.10,000/-

and the Karnataka State Legal Services Committee shall pay the

same.

Sd/-

JUDGE

Sd/-

JUDGE

HKV/VM