Karnataka High Court
Mr. K. R. Pushpesh @ Puppi vs State Of Karnataka on 21 June, 2023
Bench: K.Somashekar, Rajesh Rai K
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 879 OF 2016
C/W
CRIMINAL APPEAL NO. 2118 OF 2016
IN CRL.A.NO.879 OF 2016
BETWEEN:
1. MR. K.R. PUSHPESH @ PUPPI ,
S/O K.R. RAMESH,
AGED ABOUT 25 YEARS,
CENTERING WORK,
RESIDENT OF NAVANAGAR,
PERUMBADI, ARJI VILLAGE,
VIRAJPET TALUK,
SOUTH KODAGU-571 218.
2. P.V. VINAYA @ VINI,
S/O P.R. VIJAYA,
AGED ABOUT 26 YEARS,
DODDABEEDI, PERIYAPATNA,
MYSORE DISTRICT
PERMANENT RESIDENTOF BOODITHITTU,
PERIYAPATNA,
MYSURU DISTRICT-571 107.
2
3. K.R. RADHISH,
S/O K.R. RAMESH,
AGED ABOUT 27 YEARS,
SOLAR MARKETING,
RESIDING AT NAVANAGAR,
PERUMBADI, ARJI VILLAGE,
VIRAJPET TALUK-571 218.
....APPELLANTS
(BY SRI. MURTHY D.NAIK, SENIOR ADVOCATE FOR
SRI. GOUTAM S. BHARADWAJ, ADVOCATE FOR A1;
SRI. ARUNA SHYAM.M, SENIOR ADVOCATE FOR
SRI. SUYOG HERELE .E AND SRI. NISHANTH S.K,
ADVOCATE FOR A2;
SRI. DINESH KUMAR.K.RAO, ADVOCATE FOR A3)
AND:
STATE OF KARNATAKA,
BY CIRCLE INSPECTOR OF POLICE,
VIRAJPET, KODAGU- 571 218.
....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 IMPUGNED JUDGMENT AND SENTENCE DATED
30.03.2016 PASSED BY THE II ADDL. DIST. AND S.J., KODAGU-
MADIKERI (SITTING AT VIRAJPET) IN S.C.NO.50/2014 -
CONVICTING THE APPELLANT/ACCUSED NO.1 TO 3 FOR THE
OFFENCE P/U/S 302,109,120(B) AND 341 R/W 34 OF IPC.
IN CRL.A.NO.2118 OF 2016
BETWEEN:
STATE OF KARNATAKA,
BY CIRCLE INSPECTOR OF
3
POLICE,
VIRAJPET CIRCLE,
REPRESENTED BY STATE
PUBLIC PROSECUTOR, HIGH
COURT BUILDING
BENGALURU- 01.
....APPELLANT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP )
AND:
1. K.R. PUSHPESH @ PUPPI ,
S/O K.R. RAMESH,
AGED ABOUT 25 YEARS,
CENTERING WORK,
RESIDENT OF NAVANAGAR,
PERUMBADI,
ARJI VILLAGE,
VIRAJPET TALUK- 571 218.
2. P.V. VINAYA @ VINI,
S/O P.R. VIJAYA,
AGED ABOUT 26 YEARS,
AGENT, R/AT DODDABEEDI,
PERIYAPATNA,
MYSORE DISTRICT
PERMANENTLY
R/O BOODITHITTU,
PERIYAPATNA,
MYSURU DISTRICT-571 107.
3. K.R. RADHISH,
S/O K.R. RAMESH,
AGED ABOUT 27 YEARS,
SOLAR MARKETING,
RESIDING AT NAVANAGAR,
4
PERUMBADI, ARJI VILLAGE,
VIRAJPET TALUK-571 218.
....RESPONDENTS
(BY SRI. MURTHY D.NAIK, SENIOR ADVOCATE FOR
SRI. GOUTAM S. BHARADWAJ, ADVOCATE FOR R1;
SRI. ARUNA SHYAM.M, SENIOR ADVOCATE FOR
SRI. SUYOG HERELE .E AND NISHANTH S.K, ADVOCATES
FOR R2;
SRI. DINESH KUMAR.K.RAO, ADVOCATE FOR R3)
THIS CRL.A. IS FILED U/S.378(1) AND (3) OF CR.P.C
PRAYING TO GRANT LEAVE TO APPEAL AGAINST JUDGMENT
AND ORDER DATED 30.03.2016 PASSED BY THE II ADDL. DIST.
AND S.J., KODAGU-MADIKERI (SITTING AT VIRAJPET) IN
S.C.NO.50/2014 - ACQUITTING THE RESPONDENTS/ACCUSED
FOR THE CHARGED OFFENCES U/S 5 OF THE ARMS ACT,
WHICH IS P/U/S27(1) OF ARMS ACT, 1959 R/W SEC. 34 OF IPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 05.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, RAJESH RAI.K, J
DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals arising out of the common judgment
passed in SC No.50/2014 dated 30.03.2016 by the I Additional
District and Sessions Judge and concurrent charge of II
Additional District and Sessions Judge, Kodagu, Madikeri (sitting
at Virajpet).
2. Criminal Appeal 879/2016 by the convicted accused
Nos.1 to 3 is directed against the judgment of conviction and
order of sentence passed in SC No.50/2014 dated 30.03.2016 by
the I Additional District and Sessions Judge, wherein accused
Nos.1 to 3 sentenced to undergo simple imprisonment for life
and to pay a fine of Rs.10,000/- each for the offence punishable
under Section 302 read with Section 34 IPC. Further, they
sentenced to undergo simple imprisonment for a period of five
years and to pay a fine of Rs.5,000/-, in default to undergo
simple imprisonment for a period of six months for the offence
punishable under Section 109 read with Section 34 IPC. Further,
sentenced to undergo rigorous imprisonment for a period of two
years and to pay a fine of Rs.5,000/- in default to undergo
simple imprisonment for a period of six months for the offence
punishable under Section 120B read with Section 34 IPC and
also sentenced to undergo simple imprisonment for a period of
one month and to pay fine of Rs.500/- in default, to undergo
imprisonment for one month for the offence punishable under
Section 34 of IPC.
3. Whereas Crl.A.No.2118/2016 is preferred by the State
under Section 378(1) and (3) of Cr.P.C. to set aside the
judgment and order dated 30.03.2016 passed by the I Additional
District and Sessions Judge, in SC No.50/2014, insofar as it
relates to acquitting the accused for the charges under Section 5
of the Arms Act which is punishable under Section 27(1) of the
Arms Act, 1959 read with Section 34 of IPC and thereby, to
convict and sentence the accused for the offence punishable
under Section 5 of Arms Act, which is punishable under Section
27(1) of the Arms Act read with Section 34 of IPC.
4. The brief facts of the prosecution case in these appeals
are as under:
On 17.04.2014, at about 3.55 p.m. within the limits of
Virajpet Town Police Station, in Navanagara, Perumbadi of Arji
Village, due to ill-will between the deceased in this case, one
Nousheer and accused No.1 i.e. appellant No.1-Pushpesh,
accused Nos.1 to 3 with a common intention of committing the
murder of the deceased went in Kharishma Motor vehicle bearing
Regn.No.KA 45/R-5333 and while the deceased Nousheer was
going to his house, accused Nos.1 and 2 restrained him near the
house of CW.6-Raman and assaulted the deceased on his head,
face, neck, shoulder and both hands with sickle causing grievous
injuries to him and thereby, committed his murder. Accused
No.3 facilitated accused Nos.1 and 2 to commit the murder of
the deceased-Nousheer by giving information to accused Nos.1
and 2 about the movements of the deceased. Hence, PW.23, one
of the relatives of the deceased lodged the complaint before the
respondent-Nagara Police Station, Virajpet, Madiker, as per
Ex.P.43, against accused Nos.1, 2 and one Sampath and
Ramesh. The same has been registered in Crime No.52/2014
dated 17.04.2014 by the said Police against accused Nos.1, 2
and one Sampath and Vinay for the offences punishable under
Sections 302, 114, 120B read with Section 34 of IPC as per
Ex.P.42 by PW.28, the then PSI of Nagara Police, Virajpet.
Thereafter, submitted the FIR to the jurisdictional Magistrate.
Subsequently, the said Police during the course of investigation,
recorded the statements of the PWs.22 and 23, the relatives of
the deceased and visited the scene of occurrence, drew up spot
mahazar, apprehend the accused and after collecting necessary
document and other evidence, laid the charge sheet against
these appellants i.e. accused Nos.1 to 3 for the offence
punishable under Sections 109, 120B, 341, 302, read with 34 of
IPC.
5. On committal of the case to the Court of Sessions, the
appellants/accused pleaded not guilty for the charges leveled
against them and claimed to be tried. In order to bring home
the guilt of the accused, for the charges leveled against them,
the prosecution examined in total 32 witnesses as PWs.1 to 32
and relied 72 documents as per Exs.P.1 to P.72 so also, 13
material objects i.e. MOs.1 to 13.
6. Apart from denying all the incriminating circumstances
appearing against the accused in the evidence of prosecution
witnesses, the accused though not examined any of the witness
on their favour, relied on four documents marked as Exs.D.1 to
D.4. The defence of the accused is one of total denial and that
of false implication.
7. After hearing the learned counsel appearing on both
sides and on assessment of oral as well as documentary
evidence, the learned Sessions Judge, by the judgment under
appeal held that the evidence on record established beyond
reasonable doubt that the accused committed the murder of the
deceased Nousheer. In that view of the matter, the learned
Sessions Judge convicted the accused for the aforesaid offences.
Aggrieved by the said judgment of conviction and order of
sentence, the accused preferred Crl.A.879/2016 before this
Court to set aside the impugned judgment and order of
sentence. However, the State preferred Crl.A.No.2118/2016 to
convict the accused for the charged offence under Section 5 of
the Arms Act, which is punishable under Section 27(1) of the
Arms Act, 1959 read with Section 34 of IPC. Though the learned
Sessions Judge framed the additional charge for the offence
punishable under Sections 5 and 27(1) of the Arms Act, has not
passed any order on the said charge.
8. We have heard the learned Senior counsel Sri Murthy D
Naik for accused No.1/appellant No.1, the learned Senior counsel
Sri Arun Shyam for accused No.2/appellant No.2, learned
counsel Sri Dinesh K Rao for accused No.3/appellant No.3 in
Crl.A.No.879/2016 and Sri. Vijay Kumar Majage, learned
Additional SPP for the State in Crl.A.No.879/2016 and perused
the records secured from the Trial Court.
9. The learned Senior Counsel Sri Murthy D Naik for the
appellant No.1 vehemently contended that the judgment under
appeal suffers from perversity and illegality inasmuch as the
learned Sessions Judge has failed to appreciate the evidence on
record. He would further contend that the Trial Court failed to
consider inconsistency and discrepancy in the evidence rendered
by the witnesses before the Trial Court. The Trial Court passed a
cryptic judgment without considering/assigning judicious reasons
and appreciating the evidence on record which caused great
miscarriage of justice to the accused/appellants. He would
further contend that the Trial Court totally relied on the evidence
of PW.22 and PW.24, who are the alleged eyewitness to the
incident without scrutinizing/appreciating their evidence, though
the same does not inspire confidence of the Court as the same is
highly inconsistent. According to learned Senior Counsel, those
eyewitnesses PW.22 and PW.24 are relatives of the deceased
and they failed to inform the incident to the concerned police
either orally or by lodging a written complaint instead, they
informed the said incident to PW.23 one Hamsa and in turn, he
lodged Ex.P.43 complaint before the Police. However, the scribe
of the said complaint is PW.30 one K.V Sunil who is none other
than the Advocate of PW.23. The said aspect of the matter
creates doubt in the version of PW.22 and PW.24.
10. The Learned Senior Counsel would further contend that
by perusal of the cross-examination of PW.22 & PW.24, who are
the alleged eyewitnesses to the incident, they categorically
admitted that there is a distance of 2 to 3 furlong between spot
of the incident and their house. More over, there is no visibility
of the said spot from their house due to the ups and downs of
the road and also due to the coverage of the view by the
saplings of coffee plantation existing in the fens of their house.
Hence, there is no possibility of they witnessing the alleged
incident. He would further contend that those witnesses neither
made any attempt to prevent the accused while committing the
incident nor made any hue and cry. They also failed to inform
the same to the Police. Further, the said witnesses failed to
identify the weapons said to have been used for the commission
of the crime ie. MOS.11 and 12. Hence, according to the learned
Senior Counsel the evidence of PW.22 & PW.24 requires greater
scrutiny and much evidentiary value cannot be attached without
any independent corroboration.
11. The learned Senior counsel also contend that though
PW.23 i.e. the first informant said to be an eyewitness to the
incident, according to the complaint, he totally turned hostile to
that effect and he deposed only in respect of lodging the
complaint. Further, the learned Senior Counsel also contended
that the prosecution totally failed to prove the motive for the
alleged incident since none of the witnesses deposed on that
aspect including the eye-witnesses and the complainant. Though
the accused not disputed the homicidal death of the deceased,
the prosecution falsely implicated these accused in the crime and
accordingly, failed to prove the charges leveled against them.
According to the learned Senior Counsel, among the other
witnesses examined by the prosecution, PWs.9 to 16 have totally
turned hostile to the prosecution and remaining witnesses i.e.
Mahazar witness are also not fully supported the prosecution
case. Hence, the learned Senior Counsel prays to allow the
appeal.
12. The learned senior counsel relied on the following
decisions of the Hon'ble Apex Court to substantiate his
arguments:
i) AIR 1957 SC 614 (VADIVELU THEVAR AND
ANOTHER vs. STATE OF MADRAS);
ii) 2022 SCC ONLINE SC 991 (KHEMA ALIAS KHEM
CHANDRA ETC., vs. STATE OF UTTAR PRADESH);
13. The learned Senior counsel Sri Arun Shyam with his
vehemence contend that there is a delay in transmitting the FIR
to the jurisdictional Magistrate from the Police, i.e. though the
FIR dispatched from the Police Station on 17.04.2014 at about
6.00 p.m., the same has reached before the jurisdictional
magistrate on 18.04.2014 at about 13 hours. Hence, there is an
inordinate delay of six hours in transmitting the FIR and the
investigating officer totally failed to explain the said delay. As
such, there is a doubt creates in the prosecution case. He would
further contend that the recovery of MOS.11 and 12, i.e., two
sickles at the instance of accused Nos.1 and 2 as per Ex.P.9 not
proved as per law since the recovery mahazar witness PW.6 and
21 in their cross-examination categorically admitted that they do
not know the contents of Ex.P.9. Further, the said witnesses
admitted that they affixed their signature in the Police station to
the said mahazar. They further stated in their cross-examination
that before they reaching the spot from where the sickles said to
have been recovered, the Police were there already. Further the
place of recovery of MOS.11 and 12 is an open area, i.e., water
stream with access to the public. Hence, evidentiary value
cannot be attached to the said recovery of MOS.11 and 12. The
learned Senior counsel would further contend that apart from the
said legal infirmities, the said recovery is a joint recovery at the
instance of both accused Nos.1 and 2 as such, the same cannot
be relied for the purpose of connecting the accused in the
alleged crime. By reiterating the arguments advanced by
learned Senior counsel for accused No.1, the learned Senior
counsel Sri. Shyam submits that the trial Judge failed to consider
the material inconsistency and discrepancy in the evidence of
PWs.22 and 24 and also the evidence of the Investigating
Officer-PW.29. He would further submit that by perusal of the
entire evidence on record and the charge sheet papers, the
motive for the alleged incident is not forthcoming. Though the
case rests on evidence of eye-witnesses, motive does not play
vital role. But in the same time, there must a reason / intention
/ motive for the commission of crime. But the prosecution
totally failed to prove the same. He would further submit that
the scribe of the complaint is a practicing advocate who is well
acquainted with PW.23 and also with the eye-witnesses. As
such, there is a possibility of false implication of the accused
cannot be ruled out. According to him, the seizure mahazar
witness, i.e., seizure of M.Os.11 and 12 under Ex.P9-mahazar,
though supported the case of the prosecution, in the chief-
examination, but in the same time, in their cross-examination,
they categorically admitted that they affixed their signature in
the police station. Further, PW.23, the complainant is projected
as an eye-witness to the incident, but he totally turned hostile to
that effect. The alleged eye-witnesses i.e. PW.22 and PW.24
were also failed to identify MO.11 and MO.12, i.e., the weapons
said to have been used for the commission of the crime.
According to the learned Senior counsel, there are much
contradictions in the evidence of PW.22 & PW.24 in respect of
the alleged incident is concerned. The topography of the place
of incident as admitted by PW.23 and PW.24 clarifies that there
is no possibility of they witnessing the incident. Hence for that
reason only, they failed to lodge the complaint before the Police
or to inform the same to any other third parties, being the
relatives of the deceased. Hence, the learned Senior counsel
would contend that much evidentiary value cannot be attached
to their evidence. Accordingly, learned Senior counsel prays to
allow the appeal.
14. The learned Senior counsel relied on the following
decisions of the Hon'ble Apex Court to substantiate his
arguments:
1) Pulen Phukan and Others v. State of Assam, (2023)
SCC OnLine SC350
2) Chunthuram v. State of Chhattisgarh, (2020) 10
SCC 733
3) Nand Lal and Others v. State of Chhattisgarh,
(2023) SCC OnLine SC262
4) State of Rajasthan v. Teja Singh and Others,
(2001) 3 SCC 147
5) Rangaswamaiah and Ors v. The State of Karnataka
- Criminal Appeal No.526/2014
6) Nagaraja P.M v. The State of Karnataka - Criminal
Appeal.No. 348/2015
7) Pradeep Kumar v. State of Chhattisgarh, (2023)
LiveLaw (SC) 239
8) Md. Jabbar Ali and Others v. State of Assam,
(2022) SCC OnLine SC 1440
9) Ramanand alias Nandlal Bharti v. State of Uttar
Pradesh, (2022) SCC OnLine SC 1396
15. Sri. Dinesh K Rao, learned counsel for appellant No.3
vehemently contend that either in the complaint or in the F.I.R,
the name of accused No.3 is not forthcoming and initially, the
complaint lodged against accused Nos.1, 2 and against one
Sampath and one Ramesh by the complainant-PW.23. However,
the F.I.R registered against accused Nos.1, 2 and one Sampath
and one Vinay. Subsequently, during the course of filing the
charge sheet, by dropping the name of the said Sampath, Vijay
and Ramesh, accused No.3, i.e. appellant No.3 was implicated in
the crime without any basis or material. According to the
learned counsel, by perusal of the entire charge sheet materials
and also evidence of the witnesses, absolutely, there is no
materials/evidence/overt-act forthcoming against accused No.3.
The learned Trial Judge convicted accused No.3 only based on
assumption and presumptions for the reason that he is the
brother of accused No.1. Hence, according to the learned
counsel, the learned Sessions Judge viewed the matter in a
different angle, which caused miscarriage of justice to accused
No.3. In the evidence of PW.8 and PW.23, it is stated that the
accused No.3 was near the petty shop of PW.8 till 2.30 p.m on
the date of incident. However, the incident caused in the
evening hours. Admittedly, there was an election on that day.
Hence, mere presence of accused No.3 in the spot, in the noon
hours, no way connects him in the alleged crime. The learned
counsel submits that by perusal of the entire Judgment of the
Trial Court, the Trial Judge totally failed to appreciate the non
availability of evidence against accused No.3. Accordingly, he
prays to allow the appeal.
16. On the other hand, Sri.Vijayakumar Majage, learned
Addl. SPP, sought to justify the Judgment under appeal and
contended that the Judgment and order of sentence does not
suffer from any perversity or illegality since the learned Sessions
judge on proper appreciation of oral and documentary evidence
has recorded findings, which are sound and reasonable regard
being had to the evidence on record. Therefore, it does not call
for interference by this Court. He further contends that though
there is a little delay in transmitting the F.I.R from the Police
Station to the jurisdictional Magistrate, the same does not go
into the root of the prosecution case when there is ample
evidence available on record to prove the guilt of the accused.
The learned Add. SPP would vehemently contend that the first
information was lodged immediately after the incident and to
that effect, PW.23 clearly deposed before the Court. As such,
there is no reason to disbelieve the version of PW.23-the
complainant. He would further contend that the case rests on
the evidence of eye-witnesses i.e., PW.22 and PW.24 and those
two witnesses categorically deposed about the commission of the
murder of the deceased by the accused and they are natural
witnesses since their house situated 50 feet away from the spot
of incident. The said aspect was very much forthcoming in their
evidence and also in the evidence of P.W.6. The evidence of
PW.22 and PW.24 are consistent with each other since there is
no much contradiction in their version. The non-lodging of the
complaint by PW.22 will not be fatal to the prosecution case
since the said witness informed the incident to PW.23 to lodge
the complaint. Moreover, there is no reason to depose falsely
against the accused by PW.22 and PW.24. He would further
contend that, during the course of cross-examination of PW.22
and PW.24 the counsel for the accused elicited the manner in
which the incident taken place and also about the assault made
by the accused persons to the deceased. In such circumstance,
the defence counsel himself filled the lacuna, if any in the
evidence of eye-witnesses, in the cross-examination. He would
further submit that as far as recovery of MO.11 and MO.12, the
weapons said to have been used for the commission of the crime
clearly proved by the evidence of PW.6 and PW.21 under Ex.P9-
the mahazar. PW.6 and PW.21 categorically deposed in respect
of the recovery of MO.11 and MO.12 based on the voluntary
statement of accused Nos.1 and 2 respectively. He would
further contend that the recovery of the blood-stained clothes
also proved beyond reasonable doubt by the prosecution and
those material objects sent to FSL and the said FSL officer
examined as PW.26 i.e. Dr.Chaya Kumari and the said witness
categorically stated that the blood-group found in the said
material object belongs to human blood and that of 'O' blood
group and issued report to that effect as per Ex.P48. Moreover,
the doctor who conducted the autopsy over the dead body, i.e.,
PW.25, issued post mortem report as Ex.P46 and also after
perusal of MO.11 and MO.12, gave a opinion that the injuries
found and examined in the P.M Report by him could be caused
by those weapons, i.e., MO.11 and MO.12. Accordingly, issued
report as per Ex.P47. The learned Addl. SPP further contend
that PW.6 is a witness who had seen accused Nos.1 and 2
escaping from the spot immediately after the commission of the
incident by holding MO.11 and MO.12. He also identified their
dress which is seized under Ex.P8 and also MO.11 and MO.12.
As such, by perusal of the evidence of PW.22 and PW.24 coupled
with the evidence of PW.6, the prosecution proved its case
beyond reasonable doubt. According to him, since the case rests
on eye-witnesses evidence, motive does not play any vital role.
As such, the learned Addl. SPP prays to dismiss the appeal filed
by the accused and prays to allow the appeal filed by the state
and to convict the accused for the offence punishable under the
provisions of Arms Act since MO.11 & MO.12 comes within the
purview of Section 2(1)(c) of Arms Act which reads as under:
" (c) "arms" means articles of any description
designed or adapted as weapons for offences, or
defence, and includes firearms, sharpedged and
other deadly weapons, and parts of, and machinery
for manufacturing arms, but des not include articles
designed solely for manufacturing arms, but des not
include articles designed solely for domestic or
agricultural uses such as a lathi or an ordinary
walking stick and weapons incapable of being used
otherwise than as toys or of being converted into
serviceable weapons;"
17. Hence, according to the Addl. SPP, though the
commission of the crime and recovery has been proved and
there is a specific charge for the offence punishable under
Section 5 r/w section 27(1) of Arms Act 1959 r/w section 34 of
IPC, the learned Sessions Judge failed to convict the accused for
the said offence. As such the learned Addl. SPP prays to dismiss
the appeal filed by the accused and prays to allow the appeal
filed by the State.
18. In the facts and circumstances of the case and in the
light of the submissions made on both the sides, the points that
would arise for our consideration are:
i) Whether the Judgment under the appeal suffers
from any perversity or illegality warranting
interference by this Court?
ii) Whether the learned Sessions Judge is justified
in convicting the appellants/accused Nos.1 to 3 for
the offence punishable under Sections 109, 120-B,
341, 302 read with Section 34 of IPC?
iii) Whether the learned Sessions Judge erred by
not convicting the accused for the offence
punishable under sections 5 r/w Section 27(1) of
Arms Act 1959 r/w Section 34 of IPC ?
19. We have bestowed our anxious consideration to the
submissions made by the learned Senior counsels appearing on
appellants and learned Addl. SPP for State and carefully perused
the records secured from the Trial Court and also the reasonings
adopted by the learned Sessions Judge.
20. This Court being the Appellate Court, in order to re-
appreciate the entire material on record, it is relevant to
consider the entire prosecution witnesses and the documents
relied upon.
i) PW.1-K.Suleman, who is the father of the deceased
Nousheer in this case has stated that the accused and deceased
were friends and on 17.04.2014, when he was at his house, he
heard the screaming sound near his house and PW.3 and PW.4
informed him that accused Nos.1 and 2 were assaulting his son.
Hence, he immediately rushed to the spot. At that time, his son
lying on the pool of blood. However, before he reaching there,
the accused escaped from the spot. He denied the other
contents of his statement. Hence, prosecution treated him as a
hostile witness. Though the learned Prosecutor cross-examined
the said witness, he denied his statement in respect of the actual
commission of the incident.
ii) PW.2-Nousheena who is the younger sister of the
deceased stated that she knows the accused from childhood and
on 17.04.2014, when she was at her house, daughter of CW.4
informed her that there was a quarrel between accused Nos.1
and 2 and deceased. Immediately, she rushed to the spot, at
that time, she saw her brother was assaulted. However, the
accused Nos.1 and 2 already escaped from the spot and she was
informed by the public that accused Nos.1 and 2 committed the
murder of her brother. In the cross-examination, she stated
that daughter of C.W.4 informed her that accused Nos.1 and 2
assaulted her brother.
iii) PW.3-Abbas is a witness for spot mahazar-Ex.P5. He
identified his signature on Ex.P5 as per Ex.P5(a) and deposed to
that effect, by identifying the wounds found in the dead body.
However, in the cross-examination, he admitted that he does not
know the contents of Ex.P5.
iv) PW.4 is witness for inquest panchanama as per Ex.P6.
This witness also identified his signature on Ex.P6 as per
Ex.P6(a) and deposed that the said mahazar was drawn at
Govenrment Hosptial, Virajpet. However, in the cross-
examination, he admitted that he does not know the contents of
Ex.P6.
v) PW.5-Asgar is a witness for recovery mahazar of the
clothes and other belongings of the deceased as per Ex.P7. This
witness also supported the case of the prosecution and identified
his signature on Ex.P7 as per Ex.P7(a).
vi) PW.6-Nasir is a witness who had seen the accused at
the spot immediately after the commission of the incident along
with MOS.11 and 12 and also a witness for Ex.P8, i.e., seizure of
jerkins which were worn by the accused at the time of
commission of crime and seized in the police station. He is also a
witness for recovery mahazar-Ex.P9 wherein MOs.11 and 12
recovered at the instance of accused Nos.1 and 2 from a gutter
near the property of one Pinto. This witness also identified
MO.13, i.e. the photograph of the bike. In his cross-
examination, he has stated that himself and Nousheer are close
friends and also admitted that he does not know the contents of
Ex.P8. Further, he also admitted that MO.11 and MO.12 were
not seized and sealed in front of him and accused Nos.1 and 2
were already there in the garden of Pinto before he reaching
there. He further admitted that he does not know the contents
of the said mahazar since the Police had not read over the same
to him.
vii) P.W.7-Hussainar is also a witness for Ex.P7-mahazar,
i.e., recovery of the dress and other materials belongs to the
deceased as per Ex.P3 to P8. However, in the cross-
examination, it is stated that he had not read the contents of
mahazar.
viii) P.W.8-Abdul Rahaman is a hearsay witness running a
petty shop at the vicinity of the alleged spot of incident.
However, in the cross-examination, he admitted that he had not
seen the accused persons on the date of incident and also had
not given any statement before the Police.
ix) PW.9-P.N.Vijesh is a circumstantial witness running a
mobile shop in the vicinity of the spot of incident. However, this
witness turned hostile to the prosecution case.
x) PW.10-P.R.Vijay, father of accused No.2, PW.11-mother
of accused No.2, PW.12-sister of accused No.2, PW.13-sister of
accused No.2, PW.14-mother of accused Nos.1 and 3, PW.15-
brother of accused Nos.1 and 3. However, all these witnesses
have turned hostile to the case of the prosecution. PW.16 is
also a circumstantial witness, who turned hostile.
xi) PW.17-Deepa.B, Panchayath Development Officer of
Bettoli village Panchayath who issued the domicile certificate of
accused No.1.
xii) Pw.18-Sampath Kumar is an Auto Driver at the vicinity
turned hostile to the prosecution case.
xiii) PW.19-M.M.Kushalappa, the then Police Constable of
Virajpet Rural Police who has transmitted the F.I.R to Magistrate.
xiv) PW.20-Kishore.B.T, who is also the then Police
constable of Virajpet Police formal witness carrier of the FSL
items.
xv) PW.21-Younus @ Uned is a circumstantial witness, a
daily wage worker in the vicinity to the place of incident,
deposed that immediately after the incident, he visited the spot
and came to know that accused Nos.1 and 2 have committed the
murder of deceased. This witness also deposed in respect of the
recovery of MO.9 and MO.10 under Ex.P8 and Ex.P9 and
identified his signature on Ex.P8 as per Ex.P8(a) and Ex.P9(a).
However, in the cross-examination, he stated that he does not
know the contents of Ex.P8 and Ex.P9 and he did not know the
names of the Police officer who visited the spot and the exact
place from where MO.9 to MO.12 are recovered.
xvi) PW.22-M.E.Yousuf who is an eye-witness to the
incident deposed in his evidence that, on 17.04.2014, at about
3.45 p.m., himself and his wife PW.25 were sitting in a washing
stone behind the courtyard of their house. At that time, they
saw the accused presons chasing the deceased Nousheer and
accused Nos.1 and 2 were assaulting him with the sickles. He
cried for help. At that time, public gathered and accused Nos.1
and 2 escaped in a motor vehicle. However, this witness failed
to identify MO.11 and MO.12, i.e., the material objects used for
the commission of crime. In the cross-examination, he admitted
that his house and the house of the deceased is situated in a
distance of about 2 to 3 furlongs and he does not know to read
and write Kannada and there are several houses situated in and
around the place of incident. According to him, when he reached
the spot of incident, C.W.6-Raman was also there.
xvii) PW.23-Hamsa is the neighbour of the deceased who
lodged the complaint as per Ex.P43 immediately after the
incident. According to him, he did not witnessed the incident.
However, lodged the complaint before the Police. Hence, the
prosecution treated this witness as hostile witness. This witness
also turned hostile in respect of Ex.P5-seizure mahazar and
Ex.P6-spot mahazar.
xviii) PW.24-Ramula who is none other than the wife of
PW.22 and she reiterated the version of PW.22 and stated that
herself and her husband PW.22 have seen the commission of the
incident by accused Nos.1 and 2 by assaulting the deceased
Nousheer. However, in the cross-examination, this witness
admitted that there are coffee saplings around their house in the
fence and the said coffee saplings covered the visibility of the
road. She stated that she had not seen Raman at the place of
incident. This witness also failed to identify MO.11 and MO.12.
xix) PW.25-Dr.C.Srinivasa Murthy, the then doctor of
Government Hospital, Virajpet, who conducted autopsy over the
dead body and examined the injuries found on the dead body of
the deceased and gave his opinion as per Ex.P46 that the "death
is due to hemorrhagic and neurogenic shock secondary to
homicide using sharp edged weapons." The doctor has also gave
an opinion in respect of the weapons, i.e. MO.11 and Mo.12 said
to have been used for the commission of the crime that the
injuries found on the dead body could be caused from the
weapons like MO.11 and MO.12 which he examined.
Accordingly, issued report to that effect as per Ex.P47.
xx) P.W.26-Dr.Chayakumari, the FSL officer, who
examined MO.1 to MO.5, MO.8 to MO.12 and issued the report
as per Ex.P48. She deposed that the blood group found on the
articles are belongs to 'O' blood group.
xxi) PW.27-K.K.Jais is a hearsay witness residing near
the spot of the incident. However, this witness turned hostile to
the prosecution case and denied his statement recorded as per
Ex.P50.
xxii) PW.28-Suresh Bopanna, the then Police Sub-
Inspector of Virajpet town police, who received the complaint
from PW.23 as per Ex.P43 and registered the F.I.R against the
accused and others as per Ex.P42. He also visited the spot and
shifted the dead body from the spot of incident to Government
Hospital, Virajpet. He is also witness for Ex.P5, i.e., the spot
mahazar in which MO.1 and MO.2 were seized. This witness also
prepared the rough sketch of the place of incident as per Ex.P54.
However, in the cross-examination, he admitted that PW.23-
complainant is not residing within the vicinity of the spot of
incident. Further, he also admitted that either in the complaint
or in the F.I.R, there is no mention in so far as the weapon used
for commission of the crime.
xxiii) PW.29-K.R.Prasad is the then Circle Inspector of
Police of Virajpet circle, who conducted the investigation of the
case, i.e., drawing of the spot mahazar, inquest mahazar, arrest
of the accused, recording of voluntary statement of accused
Nos.1 and 2 as per Ex.P59 and P60 and thereby, recovery of
MO.11 and MO.12 and other recoveries. He also recorded the
statement of other witnesses in the case and by obtaining the
post mortem report and other scientific report, laid the charge
sheet against the accused for the offences charged. During the
course of cross-examination, he admitted that except the house
of one Raman, there were no houses situated near the spot of
incident as per the rough sketch, i.e., Ex.P54. He also admitted
that he received the information in respect of the incident at
about 6 to 6.45 p.m. in the evening. He also admitted that he
did not recover any wooden rods in the case. He also admitted
that he had not drawn any mahazar at Kushalnagara where the
motor bike was seized in the case. He also admitted that the
doctor did not give any firm opinion that the injuries found in the
dead body could be caused by MO.11 and MO.12.
xxiv) PW.30-K.V.Sunil, who is a practicing advocate at
Virajpet Court and known to PW.23, the complainant, wrote the
complaint-Ex.P43. In the cross-examination, he admitted that
he is the Secretary of communist party of Kodagu District and
conducted Zilla Panchayath election from the Communist party.
He also admitted that he was advocate for PW.23-Hamsa.
xxv) P.W.31-T.H.Ramesh, the then Police Constable of
Virajpete police station, handed over the dead body to the father
of the deceased and received the requisition to that effect. He
also carried the cloths of deceased to the office of the Circle
Inspector/I.O.
xxvi) PW.32-Chikkaswamy, the then PSI of Kushalnagara
police station deposed that based on the wireless message of
Virajpete Police, he arrested Accused Nos.1 and 2 at
Kushalnagara and taken them to Kushallnagara Police Station.
From there, handed over them to Virajpet Police Station on
17.04.2014.
21. By careful perusal of the evidence of the above
witnesses and the documents placed by the prosecution and
defence, it could be seen, in order to prove the homicidal death
of the deceased, the prosecution mainly relied on Ex.P.6-inquest
mahazar and Ex.P46-post mortem report. PW.4 and PW.23 are
the witnesses examined by the prosecution in order to prove the
contents of Ex.P6-Inquest Panchanama and both the said
witnesses have supported the prosecution case and identified the
signature on Inquest lmahazar-Ex.P6 and also deposed about
the injuries found on the dead body. Nevertheless, PW.25, i.e.,
the doctor who conducted the autopsy as per Ex.P46,
categorically stated before the Court that on examination of the
dead body, he found as many as ten injuries over the dead body
and also opined that all those injuries are ante-mortem in
nature. Further, he also gave his opinion that the "death is due
to hemorrhagic and neurogenic shock secondary to homicide
using sharp edged weapon." Hence, by conjoint reading of the
evidence of Doctor-PW.25 and contents of Ex.P46 and also the
contents of Ex.P6 i.e. inquest mahazar and the evidence of the
witnesses to that mahazar, it can be easily concluded that the
prosecution proved the homicidal death of deceased-Nousheer in
this case. Even otherwise, the learned defence counsels also not
seriously disputed that aspect of the matter. Once the homicidal
death of the deceased proved the next question that would arise
for consideration is "Whether the accused are responsible for the
same?" To substantiate the said aspect, the prosecution mainly
relied on the evidence of PW.23, i.e. the complaint PW.22 and
PW.24. PW.24 is none other than the wife of PW.22. On careful
perusal of the evidence of PW.23, he deposed that PW.22
informed him that accused Nos.1 and 2 committed the murder of
deceased. As such, he lodged the complaint before the Police as
Ex.P43. Except the said aspect, this witness denied the other
contents of Ex.P43-complaint. Hence, the learned Prosecutor
treated the said witness as hostile witness to the prosecution
case. Even otherwise, in the cross-examination of this witness,
he admitted that the complaint was written by his advocate one
Sunil and he did not gone through the contents of the complaint.
Further, this witness also stated that he did not know the reason
behind the commission of the incident. By perusal of the
complaint-Ex.P43, the same is lodged against accused Nos.1 and
2 and one Sampath and Ramesh. However, the Police registered
the F.I.R against accused Nos.1 and 2, one Sampath and one
Vinay. This material discrepancy in the complaint and FIR has
not explained by the prosecution either during investigation or
before the trial Court. Nevertheless, after investigation, the
respondent-Police filed the charge-sheet against accused Nos.1
to 3 and dropped Accused No.4- Sampath Kumar whose name
was found in the F.I.R and implicated accused No.3 in the case.
Hence, the evidence of PW.23-complainant will not much helpful
to the prosecution case since PW.23 turned hostile in respect of
the alleged incident is concerned.
22. Coming to the evidence of PW.22 and PW.24, i.e., the
eye-witnesses to the incident, PW.22 deposed that on
17.04.2014, himself and his wife were sitting on the backyard of
their house on a cloth-washing stone and at that time, they saw
accused Nos.1 and 2 chasing the deceased and they assaulted
the deceased near the house of one Raman. Thereafter, they
escaped from the spot. However, this witness failed to identify
the weapons, MO.11 and MO.12 said to have been used for the
commission of the crime by accused Nos.1 and 2. By careful
perusal of the cross-examination of this witness, he deposed that
he has not given any statement to the Police and there are
several houses situated near the spot of incident and C.W.6-one
Raman also present at the spot of incident, whose house
situated very near to the spot of incident. He further stated that
after the incident, he called PW.23 and informed about the
incident. However, he admitted in the cross-examination that
his house and deceased Nousheer's house are situated in the
opposite directions. He also admitted in the cross-examination
that he does not know to read and write Kannada and on the
date of incident, he was engaged in cutting wooden logs and the
alleged place of incident is situated nearly one furlong to his
house and that place was covered by hills.
23. PW.24, is another eye-witness to the incident who is
none other than the wife of PW.22. The said witness also
deposed that on 17.04.2014, i.e., the date of incident, herself
and her husband were in their house. At that time, they saw
accused Nos.1 and 2 were chasing the deceased and they
assaulted him and thereby, committed his murder. However,
this witness also faild to identify the material objects, MO.11 and
MO.12 said to have been used for the commission of the crime.
Moreover, she admitted that there is no visibility of the place of
incident from her house since coffee saplings in the fence
covered their house and she also stated that her house is
situated 10 feet down to the main road. She also admitted that
there are nine houses situated in and around the spot of incident
and all the inmates of those houses have witnessed the incident.
24. The learned Senior counsels for the appellants
vehemently contend that there is no possibility of P.W.22 and
PW.24 witnessing the alleged incident since there are material
contradictions in their evidence in respect of the distance from
their house to the spot of incident and also their admission in
respect of the visibility of the scene of occurrence from their
house. On careful perusal of the evidence of this witness, we are
of the opinion that there is considerable force in the submission
made by the learned Senior counsels for the appellants about
the evidence deposed by these witnesses in respect of the
incident witness by them, cannot be relied to the fullest extent
to prove the guilt of the accused. Moreover in their cross-
examination they categorically admitted that their house is
situated 10 feet down from the road and also their house is
covered with the coffee saplings in the fence. PW.22 stated in his
evidence that himself and his wife were sitting in the cloth-washing
stone in the backyard of their house and the incident caused in
front of their house. On perusal of Ex.P54, i.e., the rough
sketch drawn by the investigation officer clearly depicts that
except one house belonging to one Raman, there are no other
houses situated on either side of the road. Nevertheless, the
I.O-PW.29 categorically admitted in his cross-examination that
he did not examine the said Raman whose house is situated
adjacent to the spot of incident and there are no houses situated
near the spot of incident except the house of said Raman as per
Ex.P54. This admission of PW.29-the I.O in the evidence totally
contradictory to the version of eye-witnesses P.W.22 and P.W.24
and discarded the evidence of PW.22 & PW.24. Moreover, the
conduct of PW.22 and PW.24, the alleged eye-witnesses to the
incident, not lodging of the complaint to the Police in spite of
they both allegedly witnessing the incident, is quite strange and
creates a doubt in their version. According to PW.22, he
informed about the alleged incident to PW.23 and in turn, PW.23
approached his advocate PW.30 and prepared the complaint and
lodged the same. Admittedly, the complaint discloses the names
of two other persons, i.e., one Ramesh and one Sampath.
Moreover, the respondent-Police though registered the F.I.R
against accused Nos.1, 2, one Sampath and Vinay, after
investigation the Police dropped the names of Sampath and
Vinay and implicated accused No.3. Hence, the version of PW.22
and PW.24 coupled with the subsequent event of lodging
complaint by PW.23 and registering of F.I.R and filing of charge
sheet against accused Nos.1 to 3, creates a clear doubt in the
mind of this Court. Even otherwise, P.W.22 and PW.23
categorically admitted that they did not give any statement
before the Police and they do not know to read and write
Kannada. Moreover, there was an election on the alleged date
of incident. According to PW.22 and PW.24, the movements of
general public are there in the road on that day. Further,
according to PW.24, there are nine houses in and around the
spot of incident and all the inmates of those houses have
witnessed the incident. But admittedly, none of them were
neither sighted as charge-sheet witnesses nor examined before
the Court by the prosecution. Interestingly, the Investigation
Officer admitted in his cross-examination that the house of
one Raman is the only house situated adjacent to the
spot of incident and according to PW.22, the said Raman was
very much present at the scene of occurrence, but the said
witness was not examined before the Court, for the reason
known to the prosecution. In our considered opinion, the non-
examination of the said material witness is also fatal to the
prosecution case. Hence, without any corroboration, the
evidence of PW.22 and PW.24 cannot be based for conviction of
the accused since there are material contradictions and
omissions forthcoming in their evidence. After careful perusal of
their evidence, much evidentiary value cannot be attached to
their evidence. According to PW.22, he who informed PW.23 to
lodge the complaint, but the contents of the complaint reveals
that PW.23 himself is an eye-witness to the incident. However,
in the evidence, PW.23 turned hostile to that effect. Hence, in
the peculiar circumstance, version of PW.22 and PW.24 cannot
be believed as a gospel truth.
25. As far as the other evidence available on record are
concerned, though the learned Addl. State Public Prosectuor very
much relied on the evidence of PW.6 that he had seen accused
Nos.1 and 2 immediately after the incident while they are
escaping from the spot of incident by holding two sickles, PW.6
in the examination-in-chief, deposed that before he reaching the
spot, the deceased Nousheer was murdered and the accused
were escaping in a motor bike, but in the cross-examination, he
categorically admitted that he had not seen the face of the
accused and also registration number of the said motor bike. He
further deposed that he signed Ex.P8-mahazar, i.e., seizure of
motor bike of the accused in the police station and those articles
were not seized in his presence. Hence, on careful perusal of the
evidence PW.6, the same cannot be relied to prove either
recovery or last seen theory. The Hon'ble Apex Court in catena
of judgments held that to prove the theory of last seen it is
always necessary that the prosecution has to establish place and
time of the death which in this case the prosecution failed to
prove in the evidence of PW.6.
26. Coming to the next circumstance which the
prosecution heavily relied, i.e., the recovery of weapons, i.e.,
MO.11 and MO.12, said to have been used for the commission of
the crime, seized under Ex.P9-mahazar at the instance of
accused Nos.1 and 2 based on their voluntary statement. PW.6
and PW.22 are the witnesses to that effect. By perusal of the
evidence of PW.6 and the contents of Ex.P9-mahazar, MO.11
and MO.12 recovered from a stream/drainage near the property
of one Pinto situated at Virajpet and Madikeri main road, but
PW.6 in his evidence stated that the said recovery has been
caused from the road-side of one Pinto's property. More over, in
the cross-examination, he categorically admitted that before he
reaching the said place, the accused were already there along
with the police. He also admitted that the police have not seized
and packed MO.11 and MO.12 in his presence. He also admitted
that he does not know the contents of Ex.P9. The other witness-
PW.22 though supported the case of prosecution in the
examination-in-chief, but during the course of cross-
examination, he admitted that he does not know the contents of
Ex.P9 and MO.11 and MO.12 are not seized and packed in the
said place where the Police recovered the same. He further
admitted that he does not know whether the owner of that
property was present at the time of seizure or not. Hence, by
careful perusal of the evidence of PW.6 and PW.22 coupled with
the evidence of I.O-PW.29, it can be duly concluded that the
recovery effected at the instance of accused Nos.1 and 2 not
within the ambit of Section 27 of the Indian Evidence Act. The
Investigation Officer failed to secure the presence of the
neighbours within the vicinity of the said place in spite of several
houses situated in and around the said place as admitted by
PW.29. Hence, the non-compliance of the provisions of Section
100(4) of Cr.P.C., which creates a doubt in the mind of this
Court about the recovery of MO.11 and MO.12 under Ex.P9. The
Hon'ble Apex Court in the judgment rendered Pradeep
Narayan Modgankar V/s State of Maharashtra held in Para-
6 of the judgment that, Section 100(4) of Cr.P.C requires that
before making a search, the Officer or other person to make it,
shall call upon two or more independent respectable inhabitants
of the locality in which the place to be searched is situate or of
any other locality if no such inhabitant of the said locality is
available or is willing to be witness to the search. To attend the
witnesses, the search and may issue an order in writing to them
or any of them so to do. The Courts generally look for
compliance of the aforesaid provisions, to the extent possible in
the facts and circumstance of a given case. Hence in this case in
our considered opinion, the prosecution failed to comply the
provisions of Section 100(4) of Cr.P.C.
27. It is relevant to note at this juncture that when the
evidence of eye-witnesses are not trust-worthy and shaky, in
such circumstances, the recovery of material objects play a vital
role in evidence, unfortunately, the prosecution even failed to
prove such vital circumstance by adducing proper evidence.
Hence, in that view of the matter, in our considered opinion, the
prosecution also failed to prove the circumstances of recovery of
MO.11 and MO.12.
28. Though, the prosecution relied on the evidence of PW.1
and PW.2 who are none other than the father and sister of the
deceased in order to prove the motive for the commission of the
crime, strangely they both turned hostile to the prosecution
case. PW.2, the sister of the deceased also failed to depose the
reason behind the commission of such an act by the accused.
PW.2 being hearsay witness, stated that somebody informed her
about the death of her brother. Hence, the prosecution also
miserably failed to prove the motive for the alleged incident.
29. The learned Addl. SPP vehemently contended that
when a case rests on the evidence of direct eye-witness to the
incident, the motive does not play a vital role. However in this
case, by perusal of the entire evidence and material on record,
none of the witness including the family members of the
deceased deposed the reason behind commission of the murder
of the deceased by the accused. It is the fundamental criminal
jurisprudence that for a criminal act, there must be an intention.
The Prosecution failed to prove the said circumstance also.
Nevertheless when the evidence of eye-witnesses are not trust
worthy to believe, then motive place an important role to prove
the guilt of the accused.
30. The Prosecution also relied the other circumstance i.e.,
scientific evidence by examining PW.26-Dr.Chaya Kumari who is
the FSL officer. The said witness though deposed that she
examined MO.1 to MO.5 and MO.8 to MO.13, i.e., the dress and
jerkin of deceased and also MO.11 and MO.12, i.e., two sickles
which are said to have been used for commission of the crime,
after serological examination of those articles, she found that the
stains found on those articles are of human blood and the same
belongs to 'O' group. To that effect, she issued Ex.P8-report.
Admittedly, the I.O did not either drew any blood from the body
of the deceased or collected blood from the spot and sent the
same for FSL to find out the blood group of the deceased.
Without examination of the blood-group of the deceased, though
the human blood of 'O' group found on the dress and other
articles of the deceased, an inference cannot be drawn that the
blood group of the deceased also belongs to 'O' group. It was
the duty of the prosecution either to collect the blood from the
spot or from the body of the deceased to determine the blood
group of the deceased, but the prosecution failed to conduct
such investigation to determine the same. Our view is fortified
by the judgment rendered by the Hon'ble Apex Court in the case
of Rahul vs. State of Delhi Ministry of home Affairs and Anr.
reported in AIR 2022 SUPREME COURT 5661 wherein, the Apex
Court held as under:
"30. It is true that PW-23 Dr.B.K.Mohapatra,
Senior Scientific Officer (Biology) of CFSL, New Delhi
had stepped into the witness box and his report
regarding DNA profiling was exhibited as Es.PW-
23/A, however mere exhibiting a document, would
not prove its contents. The record shows that all the
samples relating to the accused and relating to the
deceased were seized by the Investigating Officer on
14.02.2012 and 16.02.2012; and they were sent to
CFSL for examination on 27.02.2012. During this
period, they remained in the Malkhana of the Police
Station. Under the circumstances, the possibility of
tampering with the samples collected also could not
be ruled out. Neither the Trial Court nor the High
Court has examined the underlying basis of the
findings in the DNA reports nor have they examined
the fact whether the techniques were reliably applied
by the expert. In absence of such evidence on
record, all the reports with regard to the DNA
profiling become highly vulnerable, more particularly
when the collection and sealing of the samples sent
for examination were also not free from suspicion.
31. In the circumstance, though the prosecution proved
the homicidal death of the deceased beyond reasonable doubt,
but by perusal of the evidence of the eye-witnesses and other
circumstantial evidence examined by the prosecution, we are of
the opinion that the prosecution failed to connect the accused for
the homicidal death of deceased. Admittedly, there is a six
hours delay in transmitting the F.I.R from the Police Station to
the jurisdictional Magistrate. That view of the matter has to be
taken into consideration along with the complaint lodged by
PW.23 as per Ex.P43 wherein the said complaint lodged against
accused Nos.1 and 2 and Sampath and one Ramesh. But
strangely the F.I.R registered against accused Nos.1 and 2, the
said Sampath and one Vinay. Further, at the time of filing
charge sheet, the respondent-Police even dropped the name of
said Sampath and implicated accused No.3 in the offence. By
perusal of entire materials and evidence on record, there is no
such evidence deposed by the witnesses against Accused No.3.
Mere presence of the accused No.3 in the scene of offence on
the date of incident, itself not sufficient to either implicate him in
the crime or to convict him. Though PW.23, the complainant is
said to be an eye-witness to the incident, but he turned hostile
to that effect. Moreover, the complaint is lodged by PW.30, one
K.V.Sunil, i.e., the practicing advocate at Virajpet Court and the
said witness used to defend the complainant's case. Hence, as
rightly contended by the learned senior counsels, at the
inception of the prosecution case itself, i.e., lodging of complaint
and transmitting of F.I.R, creates doubt in the prosecution case.
The Hon'ble Apex Court in the case of STATE OF RAJASTHAN
vs. TEJA SINGH AND OTHERS relied by the learned senior
counsel, held that, the delay in the F.I.R reaching the Court has
to be viewed seriously because requirement of law is that the
F.I.R should reach the Magistrate concerned without any undue
delay. Moreover, in the case on hand, the prosecution totally
failed to explain the said inordinate delay of six hours in
transmitting the F.I.R from the Police Station to the jurisdictional
Magistrate.
32. As far as the evidence of eye-witnesses-PW.22 and
PW.24 are concerned, as discussed supra, there are much
contradictions in their evidence. They being well acquainted with
the father of the deceased and interested witness, their evidence
has to be considered in greater care and caution. The Hon'ble
Apex Court time and again held in catena of judgments that, the
vital discrepancies and inconsistencies in the evidence of
material witnesses has to be appreciated with greater care. It is
a sound and well established rule of law that the Court is
concerned with quality and not with quantity of the evidence
necessary for proving or disproving a fact. The Court has to
weigh carefully the testimony of the witnesses and if it is
satisfied that the evidence is reliable and free from all taints
which tend to render oral testimony opened to suspicion, then
only the evidence has to taken into consider while convicting the
accused. In the Case on hand the Trial Court has failed to
appreciate the evidence carefully. The Trial Court passed the
cryptic judgment without appreciating the evidence and
materials available on record. Our view is fortified by the
judgment rendered by the Hon'ble Apex Court in Vadivelu
Thevar vs. State of Madras (1957 SCR 981).
33. On meticulous examination of evidence on record, it is
clear from the evidence of PW.22, PW.23 and PW.24, that there
are so many omissions and contradictions in their evidence and
the entire fabric of the prosecution case appears to be ridden
with the gaping holes. It is true that due to passage of time,
witness do deviate from their Police Statements as their memory
fades to some extent and reasonable allowance can be made for
such discrepancies. But when such discrepancies makes the
foundation of the prosecution case shaky, the Court has to take
strict note thereof. On thorough reading of the evidence of the
prosecution witnesses, the discrepancies are located the
witnesses have discredited themselves. It is well settled
principle that there is no embargo on the Appellate Court
reviewing the evidence upon which an order of conviction is
based.
34. The golden thread which runs through the web of
administration of justice in criminal cases is that, if two views
are possible on the evidence adduced in the case, one pointing
to the guilt of the accused persons and the other to their
innocence, the view which is favourable to the accused persons
should be adopted. The paramount consideration of the Court is
to ensure that miscarriage of justice should be prevented. A
miscarriage of justice which may arise from acquittal of the
guilty is not less than the conviction of an innocent. Our view is
fortified by the dictum of the Hon'ble Supreme Court in the Case
Lakshman V/s State of Maharashtra reported in AIR 2002
SC 2973 and the same is reconsidered by the Hon'ble Apex
Court in its latest judgment in the case of Purushottam Chopra
and another vs. State (Govt of NCT, Delhi) reported in AIR 2020
SC 476.
35. The Learned Sessions Judge has ignored number of
reasonable doubts which legitimately arose on the evidence lead
by the prosecution and its conduct in suppressing the material
witness which clearly indicate that the prosecution failed to
prove the guilt of the accused beyond all reasonable doubt. The
inconsistency of lodging the complaint against 4 persons,
subsequently registering the case against 3 persons and finally
at the time of filing charge sheet dropping the accused No.3 and
implicating the present accused No.3 and the preparing of
complaint by an Advocate known to PW.23 and the delay in
transmitting the F.I.R to the Jurisdictional Magistrate, creates
doubt in the prosecution case at its inception itself. So also the
contradictions in the evidence of eye-witnesses and other
recovery mahazar witnesses also creates doubt in the mind of
this Court about the veracity of those witnesses. Hence, the
benefit of doubt has to be given to the accused persons. In that
view of the matter, we are of the considered opinion that the
Prosecution failed to prove the charges leveled against the
accused beyond reasonable doubt and accordingly, we answer
the above points which raised for consideration and proceed to
pass the following:
ORDER
i. The Criminal Appeal No.879/2016 filed by the
appellants / accused Nos.1 to 3 is hereby allowed.
Consequently the Appeal filed by the State in
Criminal Appeal No.2118/2016 is dismissed.
ii. The Judgment of conviction and Order of sentence
passed in SC.No.50/2014 dated 30.03.2016 by the
2nd Addl. District and Sessions Judge, Kodagu -
Madikere (Sitting at Virajpet) is hereby set aside.
iii. Accused Nos.1 to 3 are hereby acquitted of the
charges leveled against them for the offence
punishable under Sections 302, 109, 120B, 341 R/w
34 of Indian Penal Code 1860.
iv. The Bail and Surety Bonds executed by accused
Nos.1 to 3 are hereby cancelled and if the accused
deposited the fine amount, if any, before the Trial
Court, the same shall be refunded to them on proper
identification.
v. The Registry is hereby directed to communicate
this Order to the concerned Jail Authority and the Jail
Authorities are hereby directed to release
Appellants/accused Nos.1 and 2 forthwith, if they are
not required in any other cases.
Sd/-
JUDGE
Sd/-
JUDGE
BNV
