Karnataka High Court

Balaji @ Setu vs State Of Karnataka By on 2 November, 2023

Bench: Sreenivas Harish Kumar, Venkatesh Naik T

                                                 -1-
                                                            NC: 2023:KHC:38800-DB
                                                           CRL.A No. 2077 of 2016




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 2ND DAY OF NOVEMBER, 2023

                                              PRESENT
                    THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                                AND
                          THE HON'BLE MR JUSTICE VENKATESH NAIK T
                              CRIMINAL APPEAL NO. 2077 OF 2016


                   Between:

                   Balaji @ Setu
                   S/o. Amar Raj
                   Aged about 22 years,
                   R/at CMC Pump House,
                   Permanent R/at Ajandha,
                   Chanapura Police Badhan,
                   Kattmand Taluk,
                   Nepal State-44600.
                                                                        ...Appellant
                   (By Sri. M.Sharass Chandra, Advocate)

                   And:
Digitally signed
by VEERENDRA       State of Karnataka by
KUMAR K M
                   Doddaballapura Town Police Station,
Location: HIGH
COURT OF           Bengaluru Rural District-561203
KARNATAKA          (Rep. by Public Prosecutor)
                   High Court of Karnataka,
                   Bengaluru-560001.
                                                                     ...Respondent
                   (By Sri. Vijayakumar Majage, SPP-II)

                         This Criminal Appeal is filed under section 374(2) Cr.P.C.
                   praying to set aside the judgment and order of conviction dated
                   25.10.2016 passed by the IV Additional District and Sessions
                   Judge at Doddaballapura in S.C.No.10005/2014 - convicting the
                   appellant/accused for the offence p/u/s 302 of IPC.
                                  -2-
                                              NC: 2023:KHC:38800-DB
                                             CRL.A No. 2077 of 2016




     This Criminal Appeal, coming on for hearing, this day,
Sreenivas Harish Kumar J., delivered the following:

                              JUDGMENT

This appeal is directed against the judgment

dated 25.10.2016 passed by the IV Additional

District and Sessions Judge, Doddaballapura in

S.C.No.10005/2014 convicting the accused for the

offence punishable under Section 302 of IPC and

sentencing him to undergo life imprisonment and

fine of Rs.5,000/- with default imprisonment for a

period of two years.

2. The name of the deceased is one Ramu @

Ramesh who was working as a watchman of the

pushcarts in the bus stand. The accused was a

cleaner in a hotel. PW1, who was a private bus

loader in Doddaballapura bus stand, gave a report

of the incident dated 12.11.2013. He reported to

the police that around 02.45pm on 12.11.2013, he

saw the deceased and the accused quarreling with

each other and in the course of quarrel, the

NC: 2023:KHC:38800-DB CRL.A No. 2077 of 2016

accused inflicted an injury on the neck of the

deceased Ramu @ Ramesh and fled that place.

Immediately PW1 and other two or three persons

went there. He saw Ramu @ Ramesh being dead.

The investigation led to filing of charge sheet

against the accused.

3. Of the 20 witnesses examined by the

prosecution, PW1, PW2, PW3 and PW6 are the eye

witnesses. PW4 and PW7 are the witnesses to spot

mahazar drawn as per Ex.P.4. PW8 and PW9 are

the witnesses to seizure of blood stained clothes of

accused in the police station under the mahazar,

Ex.P.9. PW15 was the doctor who conducted post

mortem examination. PW2, PW3 and PW6 turned

hostile.

4. The trial court has held that although

PW2, PW3 and PW6 turned hostile, the evidence of

PW1 is believable. The knife was seized by the

police on the spot itself. After arrest of the

NC: 2023:KHC:38800-DB CRL.A No. 2077 of 2016

accused, his blood stained clothes were seized.

The knife, clothes of the deceased and the clothes

of the accused were all sent to FSL for scientific

examination and the FSL report marked at Ex.P.16

indicates the presence of 'A' group blood on all the

items. Though the witness to mahazar Ex.P.9

turned hostile, the evidence of PW19, the

investigating officer can be believed. The trial

court in this regard has opined that there is no

rule that the court should not act upon the

evidence of the investigating officer. Finding that

there is no case made out for scaling down the

offence from Section 302 of IPC to Section 304 of

IPC, the trial court arrived at a conclusion that the

prosecution was able to prove beyond reasonable

doubt that the accused did commit murder of the

deceased Ramu @ Ramesh and, hence convicted

and sentenced him.

NC: 2023:KHC:38800-DB CRL.A No. 2077 of 2016

5. We have heard the arguments of Sri

M.Sharass Chandra, learned counsel for the

appellant/accused and Sri Vijayakumar Majage,

learned SPP-II for respondent/State.

6. It is the argument of Sri M.Sharass

Chandra, learned counsel for the appellant /

accused that PW2, PW3 and PW6 turned hostile

completely. If the evidence of PW1 is read, it

cannot be said that he supported the prosecution.

The incident is said to have taken place around

02.45pm on 12.11.2013, but in the cross

examination, PW1 stated very clearly that he came

to bus stand at 4.00pm. He also stated that he did

not lodge any complaint as per Ex.P.6 and that the

police obtained his signature on it. Ex.P.6 is a

computer typed complaint. PW1 has not written it

and therefore in all probability, the police might

have prepared the complaint and obtained the

signature of PW1. The trial court ought to have

NC: 2023:KHC:38800-DB CRL.A No. 2077 of 2016

drawn conclusions that PW1 was not an eye

witness in the light of the answers that he has

given in the cross examination. His argument is

therefore that when the testimony of PW1 fails,

based on mere recovery of the clothes said to be

that of accused, no inference about his

involvement in the commission of crime can be

drawn. Moreover PW8 and PW9 did not support

the seizure of blood stained clothes. Indeed FSL

report indicates the presence of blood stains on all

the material objects, but that itself cannot be a

reason for drawing conclusion against the accused

about his involvement in the crime. He therefore

argued that appreciation of evidence made by the

trial court is not proper. In this view the

appellant/accused becomes entitled to acquittal.

7. Per contra, Sri Vijayakumar Majage,

learned SPP-II submits that PW1 has clearly stated

that he has seen the incident when he was in the

NC: 2023:KHC:38800-DB CRL.A No. 2077 of 2016

bus stand. He has stated that he himself gave a

complaint to the police. He is an eye witness. He

identified the accused in the open court. He was

very much present when spot mahazar was drawn.

He also identified MO1, the knife used for inflicting

injuries. Merely because he gave one stray answer

in the cross examination that he did not lodge

complaint, his entire testimony does not become

unbelievable. His further argument is that the

testimony of PW1 is strengthened by the FSL

report which states about detection of 'A' group

blood on all the items. The blood group of the

deceased was 'A'. The same blood group was

detected on the clothes of the accused. On the

knife also same blood group was detected. For all

these reasons a clear inference can be drawn that

none other than the accused committed the crime

of killing Ramu @ Ramesh. The trial court has

drawn the conclusion correctly and the appeal

deserves to be dismissed.

NC: 2023:KHC:38800-DB CRL.A No. 2077 of 2016

8. We have perused the entire evidence

both oral and documentary and considered the

points of arguments.

9. Out of the four eye witnesses-PW1, PW2,

PW3 and PW6, PW2, PW3 and PW6 did not support.

If the evidence of PW1 is perused, what we find in

his examination in chief is that a quarrel was going

on in the old bus stand in between 3 and 3.15pm

and during that quarrel, Balaji i.e., the accused

stabbed the deceased with a knife. He was also

present when the spot mahazar was drawn as per

Ex.P.4. He identified the knife at MO1, the blood

stained mud at MO2 and plain mud at MO3. But in

the cross examination, he stated that he did not

lodge complaint and that the police obtained his

signature on Ex.P.6. He also stated that he did

not know the contents of Ex.P.6. His evidence is

that the police told him about the contents of

Ex.P.6. Again he was examined by the public

NC: 2023:KHC:38800-DB CRL.A No. 2077 of 2016

prosecutor on 05.08.2016 and at that time, he

turned hostile to some extent. When the public

prosecutor cross examined him, he stated that he

himself did not get the complaint written by

anybody and it was written by the police.

10. When we refer to the evidence of PW20,

the Sub-Inspector of Police, who registered the

FIR, he stated that at 04.30pm, PW1 came to

police station with a written complaint. But Ex.P.6

is not a written complaint, but it is computer

typed. We will deal this aspect later.

11. Though there is no dispute with regard to

drawing of spot panchanama and seizure of clothes

of the deceased as also the knife, in regard to

seizure of clothes of the accused, the independent

witnesses have not supported. Therefore there

remains the evidence of PW19 the investigating

officer, who stated that after arresting the

accused, he obtained his voluntary statement. He

- 10 -

NC: 2023:KHC:38800-DB CRL.A No. 2077 of 2016

noticed blood stains on the clothes worn by the

accused and then seized those clothes in the police

station. MO6 and MO7 are the clothes of the

accused.

12. Now if the entire evidence is assessed, a

doubt arises with regard to lodging of complaint by

PW1. In the examination-in-chief, he may have

stated that he gave a complaint, but in the cross

examination, he denies it and states that it was

obtained by the police. The answer thus given by

PW1 appears to be believable, because Ex.P.6 is

not hand written. PW20 stated that PW1 gave a

written complaint to him, his evidence thereby

becomes difficult to be believed, because of the

fact that Ex.P.6 is not hand written. Whatever may

be the discrepancy with regard to lodging of

complaint, the question arises whether PW1 was an

eye witness to the incident.

- 11 -

NC: 2023:KHC:38800-DB CRL.A No. 2077 of 2016

13. According to prosecution the incident is

said to have taken place around 02.45pm. The

deceased met the death on account of cut injury

on his neck which is clearly mentioned in Ex.P.11,

the post mortem report. If according to PW1 he

came to bus stand at 04.00pm, a doubt really

arises whether he was present at the time the

incident occurred. What he has stated in the cross

examination is that when he came to bus stand at

4.00pm, he saw the police being there and they

obtained his signature on Ex.P.6. Merely because

PW1 stated in his examination-in-chief that a

person by name Balaji i.e., accused stabbed the

deceased by that itself he cannot be called an eye

witness to the incident. This becomes possible

because of the nature of answers extracted from

him by the public prosecutor himself. The other

eye witnesses have not supported the prosecution.

Thereby the testimony of PW1 is difficult to be

relied on.

- 12 -

NC: 2023:KHC:38800-DB CRL.A No. 2077 of 2016

14. There remains the evidence given by

PW19 with regard to seizure to blood stained

clothes of the accused. No doubt MO6 and MO7

contained blood stains. MO1 also contained blood

stains. FSL report clearly states that blood stains

were detected on the knife, clothes of the accused

and also the deceased. Of course the seizure of

MO6 and MO7 by PW19 is believable. If the blood

stains were found on the clothes of the accused he

alone must explain as to how the stains was found

on his clothes; he has not given any explanation.

Based on this a conclusion can be drawn about his

involvement.

15. From the discussion, it is found that two

views are possible to be taken. If the testimony of

PW1 appears to be not believable, the blood

stained clothes of the accused points to his

involvement in the commission of the offence. It

is a well settled principle that when two views are

- 13 -

NC: 2023:KHC:38800-DB CRL.A No. 2077 of 2016

possible, benefit should go to the accused.

Though the view expressed by the trial court

cannot be said to be wrong, in view of another

possible view being taken, we are of the opinion

that the appeal deserves to be allowed. Hence the

following:

ORDER

The appeal is allowed.

The judgment and order of conviction

passed by the IV Additional District and

Sessions Judge, Doddaballapura dated

25.10.2016 in S.C.No.10005/2014 is set-

aside.