Karnataka High Court
Thulunadanda A. Aruna @ Thimmaiah vs The State Of Karnataka By on 9 February, 2024
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CRL.A No. 678 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.678 OF 2017
BETWEEN:
1. Thulunadanda A. Aruna @ Thimmaiah
S/o T.K.Aiyappa
Aged About 45 Years,
Occ: Agriculturist,
R/o Kalur Village and Post,
Madikeri Taluk,
Kodagu District-571 201.
2. Paleyanda M. Mahesh
S/o P.B.Madappa
Aged About 45 Years
Digitally
signed by C K Occ: Agriculturist,
LATHA R/o Kalur Village and Post,
Location:
HIGH COURT Madikeri Taluk,
OF
KARNATAKA Kodagu District-571 201.
3. Karera U. Dinesh
S/o K.P.Uthaiah
Aged About 35 Years
Occ: Agriculturist
R/o Kalur Village and Post,
Madikeri Taluk,
Kodagu District-571 201.
...Appellants
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CRL.A No. 678 of 2017
(By Sri. Sandesh J. Chouta, Sr. Counsel for
Sri. B. Lethif, Adv. for Appellant no.1;
Sri. M.T.Nanaiah, Sr. Counsel and
Sri. M.R.C. Manohar, Adv. for
Sri. Balasubramanya B.N. and
Sri. Prabhugoud B. Tumbigi, Advs. for
Appellant no.2 and Appellant no.3)
AND:
The State of Karnataka by
The Police Inspector,
District Crime Inspection Bureau,
Police Station,
Madikeri-571 201.
Represented by:
The State Public Prosecutor,
High Court of Karnataka,
Principle Bench,
Bengaluru-560 001.
...Respondent
(By Sri. Vinay Mahadevaiah, HCGP)
This Criminal Appeal filed under Section 374(2) Cr.P.C.,
praying to set aside the judgment and order of conviction dated
30.12.2016 and sentence dated 04.01.2017 passed by the
Learned I Addl. Dist. and Sessions Judge, Kodagu at Madikeri in
S.C.No.24/2005 - convicted the accused no.2 to 4 for the
offence p/u/s 302 and 120(B) r/w 34 of IPC and further the
accused no.2 for the offence p/u/s 25(1-B)(a) and 27(1) of
Indian Arms Act and accused no.3 for the offence p/u/s 27(1)
of Indian Arms Act.
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CRL.A No. 678 of 2017
This Criminal Appeal having been heard & reserved on
23.11.2023, coming on for pronouncement this day, Sreenivas
Harish Kumar J., pronounced the following:
JUDGMENT
This appeal is against the judgment of conviction
dated 30.12.2016 in S.C. 24/2005 and S.C.6/2012 on the
file of I Additional District and Sessions Judge, Kodagu.
Accused 2 to 4 are the appellants. Criminal Appeal
186/2017 filed by accused No.1 was abated because of his
death.
2. The prosecution case in brief is that somewhere
in the year 2000, M.B.Bopanna, the deceased in this case
had assaulted accused No.1 with a sickle on his hands and
legs with an intention to commit his murder. In the
background of this incident, accused No.1 hatched a
conspiracy with accused 2 to 9 to commit the murder of
M.B.Bopanna. On 09.01.2005 in between 7.00 and 8.30
p.m, the accused were waiting for arrival of M.B.Bopanna
near a sloppy area at a junction place of the roads situated
at Bhagavathinagara, Madikeri. They chose that place as
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the house of M.B.Bopanna was situated on one of those
roads. Their plan to eliminate Bopanna did not become
successful as the latter did not pass through that road on
that day. Therefore on the next day, i.e., 10.01.2005 all
the accused except accused No.9 came to the same place
around same time and were waiting for the arrival of
Bopanna. Around 8.30 p.m Bopanna was seen driving his
Gypsy Jeep bearing No. KA03 MC 3451. He stopped the
jeep at the road junction as PW12 who was sitting with
him in the jeep was to get down at that place. As the jeep
was stopped accused 2 and 3 shot from the guns that they
had and the fourth accused inflicted injuries to Bopanna
with a chopper (mande kathhi). As a result of gun shots
and the injuries, Bopanna died. After investigation, in the
first instance charge sheet was filed against accused 1 to 9
which was registered as S.C.24/2005. Thereafter
additional charge sheet was filed against accused No.10
and it was registered as S.C.6/2012. On 10.1.2007 and
14.8.2012, charges were framed against accused 1 to 10
for the offences punishable under sections 302, 118, 114
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read with 34 of IPC and section 5 read with sections 27
and 29 of the Indian Arms Act. Since accused No.8 died
during pendency of the trial, the case against him stood
abated. On 16.12.2016, charges were re-framed against
accused 1 to 7 and 9 and 10 for the offences punishable
under sections 143, 144, 147, 302, 120B, 118, 114 read
with 149 of IPC and sections 3, 25 (1-B), 5, 27(1), 29 and
30 of the Indian Arms Act. After assessment of evidence,
the trial court passed the judgment :
(i) Convicting accused 1 to 4 for the
offences punishable under sections 302 and
120B read with 34 of IPC.
(ii) Convicting accused No.1 for the
offence under section 114 of IPC, convicting
accused No.2 for the offence punishable under
section 25(1-B)(a) and section 27(1) of the
Indian Arms Act.
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(iii) Convicting accused No.3 for the
offence under section 27(1) of the Indian Arms
Act
(iv) Convicting accused No.10 for the
offence under section 30 of the Indian Arms Act
(v) Acquitting accused 2 and 9 of the
offence under section 29 of the Indian Arms Act
(vi) Acquitting accused 1 to 4 of the
offences punishable under sections 143, 144,
147 and 118 read with 149 of IPC
(vii) Acquitting accused 5, 6, 7 and 9 of
the offences punishable under sections 143,
144, 147, 302, 120B, 118 and 114 of IPC.
3. To render a judgment of conviction and acquittal
as aforementioned, the trial court has recorded main
reasons that the evidence on record discloses that accused
1 to 4 had the common intention to commit the murder of
Bopanna and in furtherance of the same, they hatched a
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conspiracy. Accused No.1 was mainly responsible for
hatching conspiracy. But the evidence does not disclose
participation of accused 5 to 9 in the commission of crime.
The evidence also does not disclose that accused 5 to 9
had knowledge of the conspiracy. The evidence further
discloses that accused No.2 possessed unauthorized
country made single barrel gun, that accused No.3
violated section 5 of the Indian Arms Act, as he did not
have licence, yet he used it and that accused No.10
violated the conditions of licence. We will refer to the
specific reasons given by the trial court for arriving at
these conclusions in the course of discussion.
4. We have heard the arguments of Sri Sandesh
Chouta, learned senior counsel who appeared on behalf of
Sri B.Lethif, advocate for accused No.2, Sri M.T.Nanaiah,
learned senior counsel appearing on behalf of Sri
M.R.C.Manohar for accused 3 and 4.
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5. The argument of Sri Sandesh Chouta is this :
The entire case stands on the testimony of PW12
who is said to be an eyewitness to the incident. If his
testimony is considered, a doubt really arises about his
witnessing the incident. There are five reasons with the
help of which a clear conclusion can be drawn that PW12
could not have seen the incident. Firstly, PWs1, 3, 21, 22,
24 and 26 do not speak about the presence of PW12 post
the incident. Secondly, PW12 states that he went to the
hospital and names the persons present in the hospital,
per contra those persons do not state that PW12 had come
to hospital. Thirdly, PW12 did not see the person who
shot at the deceased, he only heard the gun shots; he was
not an eyewitness to the shooting. Fourthly, whether
there was sufficient light to see the incident or not has not
been established. Ex.P12 is the sketch of the scene of
occurrence which does not indicate existence of street
light. PW25 has stated that the said place was dark.
Lastly, the unnatural conduct of PW12 makes his
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testimony wholly unbelievable. He claims to be an
eyewitness having traveled along with the deceased in the
jeep. He states that as soon as he got down from the
jeep, there was shooting by accused 2 and 3 and infliction
of injuries by accused No.4 with a sickle. He does not call
for help from neighbours. He says that he ran towards
electric pole. After all the assailants left that place,
instead of coming near the jeep and seeing whether
Bopanna was still breathing or not, he would go to his
house. After going home, he does not inform anybody in
spite of the fact that he had a telephone facility. Even he
does not inform anybody in his house. He says that he
was scared, but comes back to the place of incident in
another fifteen minutes and sees people having gathered
there. At that time also he keeps silence. He did not take
part at the time of inquest. He was not a part of spot
mahazar. He waits till he was summoned to police station
for obtaining his statement on 11.1.2005. All these
sequences gives scope for inferring his absence at the
time of the incident. Therefore based on the testimony of
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PW12 the trial court should not have convicted accused
No.2.
5.1. Sri Sandesh Chouta also highlighted the point
that the entire prosecution case shows that accused No.1
had the motive to kill Bopanna. The two guns did not
belong to accused 3 and 4. The sickle was an agricultural
implement available with the farmers. Very easily the
weapons can be planted to create evidence. About
conspiracy, his argument was that no single witness has
supported the prosecution. Even if recovery of guns and
sickle are said to have been proved, it is a sole
circumstance which cannot be acted upon. The scientific
evidence is that single barrel gun (SBL) was not working
properly. There was no shooting from it. This also makes
the evidence of PW12 doubtful. He also pointed out that
the clothes of the accused was not seized. With this kind
of infirmity in the evidence, the trial court should not have
convicted accused No.2 and hence this appeal deserves to
be allowed.
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6. Sri M.T.Nanaiah and Sri M.R.C.Manohar for
accused 3 and 4 argued that the evidence of PW12 cannot
be believed at all. PW20 speaks about seizure of sickle-
MO16 by drawing mahazar as per Ex.P16. The place from
where the sickle was recovered was accessible to
everybody as it was a public place. Sickle was also
recovered five days after the incident. It is highly
impossible that a sickle remained in the same place for
about five days after the incident. Moreover the witness
does not speak about a special identity mark with the help
of which the sickle could be identified. It was an
agricultural implement which could have been planted at
any time. Accused 3 and 4 had no rivalry against the
deceased. Section 164 Cr.P.C statement of the witness
was not properly recorded and therefore it cannot be
relied upon. According to him there are a lot of infirmities
in the prosecution. Therefore the conviction judgment
cannot be sustained.
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7. Sri Vinay Mahadevaiah, learned HCGP, argued
that the trial court has correctly appreciated the evidence.
Direct evidence is seldom available for proving conspiracy
and it must be gathered from the surrounding
circumstances. There was no delay in filing FIR. PW12 is
an eyewitness. His evidence cannot be disbelieved for any
reason. Merely for the reason that the statement was
recorded one or two days later his entire evidence cannot
be discarded. The way PW12 is cross-examined is seen, it
can definitely be said that the defence too does not deny
him to be an eyewitness. The conduct of PW12 is not
unnatural. Exs.P28 and 29 show that there was light at the
place of incident. Recovery has been proved. The other
witnesses have also established the prosecution case and
hence there are no reasons to interfere with the judgment
of the trial court.
8. We have considered the points of arguments.
The entire case rests on the testimony of PW12, who is an
eye witness according to prosecution. Before evaluating
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the evidence of PW12, if we briefly refer to the evidence
given by other witnesses, we get the following picture.
9. PW1 is the brother of the deceased. After coming
to know of the incident from PW22, he came to the spot
with his wife, saw his brother Bopanna being severely
injured having received gun shots and inflictions with
sickle. He took his brother to the hospital where the
doctor declared that his brother had already died.
Thereafter he went to police station and gave a report as
per Ex.P1. From the evidence of PW3, it can be gathered
that while she was watching TV at about 8.30 p.m. on
10.01.2005, she heard some sound outside the house.
She came out of the house and saw a jeep. She went
near the jeep and saw the deceased inside the jeep having
sustained bleeding injuries. Thinking that it was an
accident, she made a call to her brother, but her sister-in-
law viz., Gracy - PW22 picked the call and then informed
the same to the wife of the deceased. She told PW22
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what she saw. By that time many people gathered.
Bopanna was shifted to hospital.
10. PW22 Gracy John has given evidence that she
received a call from her sister-in-law i.e., PW3 at 8.30
p.m. and came to know about the incident of murder of
Bopanna. PW3 had asked her to convey the information
to PW21 - Daisy. PW21 - Daisy @ Neeta is the wife of
PW1. Her evidence is that on 10.01.2005 at 8.30 p.m.
she received a phone call from her friend i.e., PW22, who
told her that somebody was assaulting her brother-in-law
Bopanna and she was asked to come soon. Immediately
she and her husband went near the house of Bopanna and
by the time they reached, Bopanna had received gun
shots. They took Bopanna to hospital in a van belonging
to one Robin. The doctor said that Bopanna had already
died. PW24 is the wife of deceased Bopanna and her
evidence shows that at 8.30 p.m. her neighbour Rajina
came and took her to the spot and saw her husband
having sustained bleeding injuries.
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11. PW1 has also given evidence about spot
mahazar drawn as per Ex.P2. Another witness examined
for establishing Ex.P2 is PW15, who just stated that his
signature was taken in the police station. Therefore he
was treated hostile and cross examined by the public
prosecutor. In the cross examination he stuck to his stand
that he was not present at the time when Ex.P2 was
drawn at the spot.
12. PW2 has spoken about seizing an autorickshaw
at the instance of accused no.5 under panchanama Ex.P3.
He also speaks about seizing of a motorcycle under the
mahazar Ex.P4 at the instance of accused no.6. PW16 is
another witness to Ex.P3 and P4 and he has stated that
the police obtained his signature in connection with seizing
an autorickshaw and did not establish the contents of
Ex.P4. In the cross-examination by the public prosecutor
as he was treated hostile, he denied that he saw seizure of
autorickshaw and motorcycle in his presence.
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13. PW14 has given evidence in regard to seizing
the clothes of the deceased by writing a mahazar as per
Ex.P6. PWs17, 18 and 19 were examined to prove that
accused no.3 took the police to his house and produced a
gun, marked MO14 which was seized by the police under
mahazar Ex.P15. But none of them supported.
14. The evidence of PW20 is that he was asked to
come over to the police station on 15.01.2005. When he
went there he saw accused nos.2 and 4 being there.
Thereafter the police took him and accused 2 and 4 to a
forest place near Abbi falls. Accused no.2 took the police
inside the forest and removed a gun (MO15) which he had
hidden there and gave it to the police. Likewise accused
no.4 produced a sickle (MO16) before the police at the
same place. The police recovered these two weapons by
writing mahazar as per Ex.P16.
15. PW8 and 10 are the witnesses to the inquest
panchanama drawn as per Ex.P11. PW4 has also stated
that he was present when inquest panchanama was
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drawn. PW26 has stated that he too had been to hospital
and saw the dead body.
16. PW9 was the engineer who prepared the sketch
of the scene of occurrence as per Ex.P12. PW27 is the
ballistic expert and his evidence is that there was firing
from the two guns, a single barrel gun and a double barrel
gun. PW28 was the doctor who conducted post-mortem
examination and gave report as per Ex.P21. He has stated
to have noticed 14 external injuries on the dead body of
Bopanna and as many as 5 internal injuries corresponding
to external injuries 3, 4, 5, 6 and 8. His opinion about
death was that it was due to shock and hemorrhage as a
result of injuries found on chest, abdomen, head and neck.
Therefore the death of Bopanna was homicidal.
17. PW23 - Seethamma, PW24 - Swarna, PW25 -
Ananda are examined to prove the motive. PW23 has
stated that four or five days before the incident took place,
she received a telephone call. She has stated that the
person who had made the call to her said that he would be
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killing her son. She brought this to the notice of Bopanna.
Later on she came to know that first accused Mahesha and
his associates were responsible for causing death of her
son. PW24 is the wife of Bopanna. Her main evidence is
that she had noticed some change in her husband ten
days before the incident. There was change in his daily
routine and he was looking disturbed. When she asked
him, he told her that he had a threat from Tulunadanda
Mahesha i.e., accused no.1. At that time her mother-in-
law i.e., PW23 also told that Mahesha had telephoned her
to inform that he would kill Bopanna. The evidence given
by PW25 - Ananda is that one day before the incident took
place around 7.00 p.m. he went to the house of Bopanna
to meet him. As Bopanna was not in the house, his wife
asked him to come on the next day morning. When he
was returning from the house of Bopanna he saw all the
accused standing with a sickle and guns. When he asked
them, as to why they were standing there, they said that
they were waiting for a hunt. Three or four days after, he
came to know about the murder of Bopanna. He also
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stated that before the death of Bopanna occurred, there
had taken place a scuffle between the first accused and
Bopanna and during that scuffle accused no.1 sustained
injuries to his hands and therefore accused no.1 had kept
on telling that he would not leave Bopanna.
18. PW30 has stated about subjecting MOs1, 2, 5, 6,
8, 10, 16 and one thread to chemical examination to
detect the presence of blood stains and his examination
indicated the presence of blood stains in MOs1, 5, 8 and
the thread of the human origin. He did not detect the
blood stains on MOs6 and 16 as the samples were
insufficient for serological analysis. The rest are police
officials. Except the evidence of PW32, the evidence of
other police officials need not be referred to.
19. The first accused adduced evidence as DW1.
From his oral testimony, what can be gathered is that
because of assault on him by Bopanna, he became
physically disabled, the disability was to the extent of
75%. Because of this disability he was not able to hold
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anything in his hands and he needed support from others.
He has stated that the deceased Bopanna was a naxalite
and was involved in supply of arms and ammunitions to
the terrorists. This was the news published in many
newspapers.
20. So the evidence of many witnesses other than
the official witnesses does make it very clear that none of
them was an eye witness. What is to be examined is to
what extent the evidence given by PW20 in regard to
seizure of a double barrel gun and a sickle at the instance
of accused 2 and 4 helps prosecution. Before that if we
examine the evidence given by PW12, we get the following
picture.
21. On 10.01.2005 at 7.30 p.m., PW12 had been to
District Hospital, Madikeri to see the dead body of one
Venkatesh who was the President of Kodandarama Swamy
Temple. Bopanna also came to the hospital to see the
dead body. While returning from the hospital, both PW12
and Bopanna left together in the latter's jeep. Bopanna
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was driving that jeep. The jeep was stopped near the
house of Bopanna and when PW12 got down from the
jeep, he heard a gun shot sound. Very soon he heard two
more gun shots sound. Being afraid he ran towards a
shrub grown behind an electric pole. He turned around
from that place and saw accused no.2 having a single
barrel gun and accused no.3 a double barrel gun. He saw
accused no.4 having a sickle in his hand. He heard
accused no.1 asking accused no.4 Dinesh to come and
assault Bopanna as he had not yet died. Then accused
no.4 came and gave two or three blows to Bopanna with a
sickle. Thereafter accused no.1 peeped inside the jeep
and said that Bopanna was dead. By that time other
accused persons came down a mound situate by the side
of the road. When PW12 saw all the accused coming
towards him, he had to hide. After all the accused left
that place in an autorickshaw and a motorbike, PW12 went
to his house. Again he came to the same place, after 10
or 15 minutes and by that time Mandappa (PW1), Robin
and a few others had gathered. He saw Bopanna and
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noticed bleeding from his chest and head. Bopanna was
taken to hospital in the vehicle belonging to Robin. He has
stated that he had been to police station to give his
statement. As he did not state that after accused no.4
inflicted injuries with sickle, he saw accused no.2 pricking
on the stomach of Bopanna with the tip of the barrel of the
gun, he was treated hostile by the public prosecutor. In
the cross-examination he admitted the suggestion about
the prick given by accused no.2. He also stated about
seeing the accused in the police station.
22. If the entire evidence is evaluated, it appears
that Bopanna had criminal antecedents and he was
involved in some criminal cases. This is admitted by PW1
in the cross-examination. It also appears probable that
there was a scuffle between Bopanna and accused no.1.
As rightly argued by Sri.M.T. Nanaiah, accused no.1 might
be having motive, but unless the evidence of PW12 is
believable, no inference can be drawn that all the accused
were responsible for the homicidal death of Bopanna. If
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the answers given by PW12 in the cross-examination are
seen, certainly a doubt as to his conduct arises and it
makes his testimony in examination-in-chief untrustworthy
and unreliable. PW12 has stated that Bopanna was his
childhood friend. Therefore the natural conduct of a close
friend was that as soon as the assailants left that place he
was expected to go near the jeep and see whether
Bopanna was till breathing or not. He was expected to
shout for help. He was supposed to take Bopanna to
hospital and disclose what he saw to PW1, and also to the
wife of Bopanna. But his evidence is that he hid behind a
bush because of fright. Having heard the sound of gun
shots, it is quite natural for anybody to be afraid of. But
instead of coming near the jeep after all the assailants left
the place of incident, if he would go to his house, it was
something unnatural of a person who is a close friend of
the deceased. He has stated to have come back to the
place of incident 10 or 15 minutes later and many people
including PW21 had gathered. He did not inform PW1 of
having seen the accused shooting from guns and inflicting
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sickle injuries. He kept quite. He also went to hospital.
By that time police had arrived there. He did not inform
the police when inquest was conducted. He also did not
inform the mother of the deceased. Quite contrary to the
evidence to PW12, PW1 has stated that on 11.01.2005
PW12 told him about seeing the accused killing Bopanna.
Even this statement of PW1 is doubtful to be believed
because PW32 the investigating officer has not stated that
he came to know from PW1 that PW12 was an eye witness
to the incident, rather he has stated that he came to know
about the involvement of the accused from the police
informants. That means PW1 might not have brought it
to the notice of PW32 that PW12 was an eye witness. If
all these attending circumstances are seen, definitely a
doubt arises whether PW12 was an eye witness. If he was
really present at the time of incident, he would have
shouted for help because if the scene of occurrence is
seen, many residential houses are situated there. He
would not have gone home after the assailants left that
place. At least when he came back again, he would have
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definitely informed PW1 and the wife of the deceased that
he saw all the accused inflicting the injuries. Actually it
was he who should have immediately informed the police.
If he did not disclose before the police during inquest, it
becomes a main reason to disbelieve his evidence that he
was an eye witness.
23. Even if it is assumed that PW12 was an eye
witness, it can be inferred from the other evidence that it
was not possible for him in all probability to see the faces
of the assailants. In Ex.P12, the sketch of scene of
occurrence, the source of light is not indicated. The
incident took place during night hours. Some of the
accused were standing on a road side mound and only
accused 2, 3 and 4 are said to have inflicted injuries.
PW12 does not say that as soon as he got down from the
jeep he saw the faces of the assailants. Instead he ran
towards a bushy plant near the electric pole which is
shown to be situated at a distance of 6.1 meters from the
place of incident. This sketch does not indicate whether
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the electric pole was fitted with electric bulb. PW32 has
admitted in the cross-examination that Ex.P12 does not
indicate that a sodium light was fixed to the pole. Even
there was no electric pole at the place marked Ex.D4 in
the sketch where a Nerale tree existed. The only source of
light was from the head lights of the jeep. Therefore
standing at a distance of 6.1 meters, it is highly impossible
that PW12 would have seen the faces of the assailants. In
this circumstance it was necessary that a test identification
parade should have been conducted for identification of
the accused. Merely for the reason that there was enmity
between the deceased and accused no.1, it cannot be said
that he and other accused might have committed the
crime. It is true that the statement of PW12 was obtained
under section 164 Cr.P.C. But this was on 05.02.2005. It
is the evidence of PW32 that he recorded the statement of
PW12 on 11.01.2005. It is not understandable as to why
he did not think of producing PW12 before the Magistrate
to have his statement under section 164 Cr.P.C. recorded
at the earliest point of time. By the time statement under
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section 164 was obtained, the accused had been arrested
and recovery mahazars had been drawn. Therefore these
aspects are sufficient enough to hold that the statement
under section 164 Cr.P.C cannot be relied on. These are
all the major discrepancies that surface if the evidence of
PW12 is strictly scrutinized.
24. It is true that PW20 has stated about recovery of
a gun and a sickle at the instance of accused 2 and 4
based on their voluntary statements. The ballistic expert
has also stated that the cartridges collected at the spot
appear to have been shot from the two guns. Firstly the
evidence of PW20 with regard to recovery of the weapons,
it may be stated that the place from where the recovery
was made, since situate near Abbi Falls, a tourist place, it
is not possible to place reliance on such a recovery.
Ballistic expert's opinion is of no use when the evidence of
PW12 appears to be doubtful.
25. The learned trial judge has, in para 87 of his
judgment has come to a conclusion that the evidence of
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PW12 is consistent and cogent in regard to the role played
by accused 1 to 4 and his evidence finds corroboration
from the evidence of other witnesses. Placing reliance on
a number of decided cases the trial court has arrived at an
opinion that minor contradictions in the evidence cannot
be given importance. But he has failed to point out those
minor contradictions that can be ignored. Evaluation of
evidence is not at all forthcoming in the impugned
judgment. In our opinion the testimony of PW12 itself
gives an indication that he might be a planted witness.
His unnatural conduct as discussed above cannot be
brushed aside holding it as a minor discrepancy. When
the major offence under section 302 IPC does not get
established, the conviction of accused 2, 3 and 10 for the
offences under the Arms Act cannot be sustained.
Therefore looked from any angle the judgment of
conviction cannot be sustained. Appeal deserves to be
allowed and now the following:
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ORDER
(i) Appeal is allowed.
(ii) The judgment dated 30.12.2016 in
S.C.No.24/2005 and S.C.No.6/2012 is
set aside. Accused 2 to 4 are
acquitted of all the offences charged
against them.
are cancelled.
Sd/-
JUDGE
Sd/-
JUDGE
sd
