Karnataka High Court

State Of Karnataka By vs Aruna on 9 February, 2024

Author: H.B.Prabhakara Sastry

Bench: H.B.Prabhakara Sastry

                                   1           Crl.A.No.1903/2016




   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF FEBRUARY 2024

                              PRESENT

  THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

                                 AND

            THE HON'BLE MR JUSTICE UMESH M ADIGA

             CRIMINAL APPEAL No.1903 OF 2016(A)

BETWEEN:

State of Karnataka by
Mandi Police Station,
Represented by
State Public Prosecutor,
High Court building,
Bengaluru - 560 001.                                ...Appellant

(By Shri P. Thejesh, HCGP)

AND:

       1.    Aruna
             S/o Hanumantharaju,
             Aged about 32 years,
             R/at Door No.3706,
             9th cross, Thilaknagar,
             Mysuru - 570 002

       2.    Amarjith
             S/o Kaghain,
             Aged about 35 years,
             R/o Door No.7879, 6th cross,
             Jopadi house, Nandikesha village,
             Javargudi taluk,
             Sunnipur district,
             Assam state,
             Presently R/at Byraveshwara Complex,
                                2              Crl.A.No.1903/2016




          New Deluxe Lodge,
          Benki Nawab Road,
          Devaraj Mohalla,
          Mysuru - 570 001

     3.   Mahadevaswamy @ Raja
          S/o Siddashetty,
          Aged about 33 years,
          native of Haradanahalli,
          Chamarajanagar district,
          Presently R/at the house of Mani,
          4th cross, Thilaknagar,
          Mysuru - 570 002

     4.   Mahadeva
          S/o Chinnashety,
          Aged about 49 years,
          native of Konanuru village,
          Nanjangud taluk,
          Presently r/at Door No.3794,
          15th Cross, Thilaknagar,
          Mysuru - 570 002
                                                ...Respondents

(By Shri V.S.Vinayaka, Amicus Curiae for R1, R3 and R4;
 Shri Vasim Pasha, Advocate for
 Shri Sirajuddin Ahmed, Advocate for R2)


This Criminal Appeal is filed under Sections 378(1) and (3) of
Cr.P.C. praying to grant leave to file an appeal against the
judgment and order of acquittal dated 29.06.2016 passed by the
I Additional Sessions Judge, Mysuru in S.C.No.100/2013,
acquitting the respondent/accused for the offence punishable
under Section 302 read with Section 34 of IPC.

      This Criminal Appeal coming on for Further Arguments
having been heard through Physical Hearing/Video Conference
and reserved for judgment on 13.12.2023, coming on for
pronouncement, this day, Umesh M Adiga J., delivered the
following:
                                    3                 Crl.A.No.1903/2016




                           JUDGMENT

This is a State's appeal against the judgment in

Sessions Case No.100 of 2013 on the file of the Additional

Sessions Judge, Mysuru dated 29.06.2016. The accused

Nos.1 to 4 were charge-sheeted for the offence punishable

under Section 302 of the Indian Penal Code (hereinafter

referred to as the 'IPC' for brevity). The accused/

respondents had pleaded not guilty. After holding trial, by

the impugned judgment, the learned Sessions Judge

acquitted the accused for the offence punishable under

Section 302 of IPC.

2. We refer to the parties as per their rank before

the Trial Court.

3. It is the case of the prosecution that deceased

Dasa @ Dasappa was resident of Hosadoddi Village of

Malavalli Taluk. Prior to coming to Mysuru, he was driving

lorry and once in a week, he used to come home.

Thereafter, it appears without informing members of the

family, he came to Mysuru and was serving as Coolie. At

the time of the alleged incident, he was serving as loader

and un-loader in 'Ramco Cement Godown' along with

others. It appears accused Nos.1 to 4 and deceased

together were working as loader and un-loader in the

cement factory. Within a short period of time they became

friends. It appears that prior to the incident, the deceased

lent an amount of `1,500/- to accused No.1. On

31.07.2012, accused Nos.1 to 4 along with the deceased

after completion of coolie work, went to Adi Kaveri Bar and

Restaurant, Mission Hospital Road, Mysuru. They had

drinks. The accused demanded for repayment of the loan

amount from accused No.1. There were some altercation in

this regard between accused No.1 and deceased. Deceased

Dasa @ Dasappa used abusive words against the accused

No.1 and told accused No.1 "to send his wife and mother

with him for sexual enjoyment if he is unable to repay the

loan amount." In view of the said words, accused Nos.1 to

4 were enraged against the deceased. They started fighting

inside the Bar and Restaurant. The person working in the

Bar, i.e., Cashier and Manager along with others pacified

them and sent out of the Bar. Thereafter, it is said that

about 50 feet away from the said Bar, on Mission Hospital,

near entry gate of Staff Quarters, accused assaulted the

deceased and one of the accused lifted a stone slab placed

on the drainage, assaulted the deceased on his head with

the said stone slab; and thereafter, threw the said stone

slab on his stomach. Due to the said injuries, Dasa @

Dasappa succumbed to the injuries at the spot.

4. It is the further case of the prosecution that

sometime after the incident, people seeing the dead body

gathered at the spot and this information was

communicated to the police. Accordingly, PW-2 Shabbir

Hussain who is the Police Sub-Inspector on patrolling duty,

came to the said spot and found the dead body. He

enquired with the persons gathered at the spot and they

were not familiar with the deceased. PW-2 could not get

information regarding identity of the dead body. He

prepared a report and on that basis, registered the case in

Crime No.92 of 2012 for the offence punishable under

Section 302 of IPC. As per the case of the prosecution,

none witnessed the incident.

5. The further investigation was taken up by PW-14

and PW-15. They recorded the statement of the witnesses,

arrested the accused and recorded their confession and on

the basis of the confession statement recovered some of

the properties/dress materials from the respective

residences of the accused.

6. Initially, the deceased was unknown and

address was not known to anyone in the said locality.

Therefore, the Investigating officer has sent the intimation

to different Police Station to ascertain the identity of the

deceased. The Investigating Officer could not get any

relatives of known persons of the deceased. Therefore,

dead body was buried after taking the photographs of the

dead body and drawing mahazar. During the investigation,

he came to know that the deceased is the son of PW-8/

Smt.Thimmamma, brother of PW-7/Ramakrishna and

husband of Smt.Thayamma. During the post-mortem, the

doctor had taken viscera and relevant materials of the dead

body. With an intention to send it for Deoxyribonucleic acid

(for short, DNA) test. Since at that point of time, the body

was not identified. After securing the information that PW-8

was the mother of the deceased, the Investigating officer

with the permission of the Court secured blood samples

and sent the blood samples along with the materials

collected during post-mortem and viscera sent it to DNA

Centre, Forensic Science Laboratory (for short, FSL),

Bengaluru. The Investigating officer also recorded the

statement of the witnesses and on conclusion of the

investigation, charge-sheeted the accused for the offences

punishable under Section 302 of IPC read with Section 34

before the jurisdictional Magistrate.

7. The learned Magistrate took cognizance of the

case; secured presence of the accused; supplied copy of

the charge-sheet to the accused as provided under Section

207 of Cr.P.C. The alleged offence is punishable under

Section 302 of IPC. Hence, the learned Magistrate

committed the case to the Court of Sessions for trial.

Thereafter, the matter was re-registered in Sessions Case

No.100 of 2013 and it was tried by I Additional Sessions

Judge, Mysuru.

8. The learned Sessions Judge secured the

presence of the accused. On hearing both the sides, framed

the charges for the offences punishable under Section 302

of IPC. The accused pleaded not guilty and came to be

tried. Hence, the learned Sessions Judge permitted the

prosecution to lead the evidence.

9. The prosecution in support of its case examined

PWs-1 to 15 and got marked Exs.P1 to P13 and properties

at MOs-1 to 18 and closed its evidence. The learned

Sessions Judge examined accused Nos.1 to 4 Section 313

of the Code of Criminal Procedure (for short, 'Cr.P.C'.) and

their answers were recorded. The accused did not lead

defence of evidence.

10. The learned Sessions Judge, after hearing both

the sides and appreciating evidence on record vide

impugned judgment dated 29.06.2016 acquitted the

accused for the offence punishable under Section 302 of

IPC. The same is challenged in the present appeal.

11. We have heard the arguments of the learned

High Court Government Pleader (for short, HCGP) and the

learned advocate for the accused.

12. The learned HCGP would submit that the

prosecution examined material witnesses as PWs-1 to 15.

PWs-7 and 8 are brother and mother of the deceased. In

their evidence, they have deposed about identity of the

deceased. Blood stains found on wearing apparels of

deceased, stone slab and at spot of incident, blood samples

along with some of the materials collected during the

course of post-mortem were sent to DNA Centre, FSL,

Bengaluru. The DNA Centre, after assessing the blood

samples of PW-8, bloods stains found on the weapon of the

offence and also the dress materials of the deceased, so

also, the materials collected during the post-mortem,

opined that PW-8 is mother of the deceased. Both PW-7

and PW-8 identified the photograph of the deceased and

identified him as Dasa @ Dasappa. The identity of the

deceased is not in serious dispute.

13. The evidence of materials witnesses i.e.,

evidence of PW-12, Ex.P17 and Ex.P25 prove that the

death of Dasa @ Dasappa is a homicidal death. The said

fact is also not in serious dispute.

14. The learned HCGP has further submitted that an

hour prior to the incident, all the accused and deceased

went to "Adi Kaveri Bar and Restaurant" situated near

Mission Hospital, Mysuru. They had drinks and thereafter

they quarrelled in the said Bar. Thereafter, within half an

hour, Dasa @ Dasappa was dead due to injuries. PW-5

identified the dead body and stated that the said person

had visited the Bar and had drinks about half an house

prior to the incident. After arrest of the accused, PW-5 was

called to Police Station to identify the accused. He

identified them in the police station. In the evidence also,

he supported the case of the prosecution. In the thorough

cross-examination, nothing is brought out to discard his

evidence. PW-4 who was the Manager in Adi Kaveri Bar and

Restaurant, has turned hostile. From the cross-examination

of the prosecution, it could be believed that he was not

deposing true facts with an intention to help the accused

for getting acquittal. Hence, the statement given by PW-4,

which is marked has to be considered. Therefore, it is

proved by the prosecution that deceased was last seen in

the company of the accused. The accused did not give any

explanation as to what happened after that till the death of

Dasa @ Dasappa. Therefore, it connects the accused with

the death of Dasa @ Dasappa. PWs-2, 14 and 15 have

stated about investigation done by them. All these evidence

prove the case of the prosecution. The learned Sessions

Judge did not consider the evidence properly and

erroneously acquitted the accused, which needs to be

interfered by this Court. With these reasons, prayed to

allow the appeal and convict the accused.

15. The learned advocate for Respondent No.2/

accused No.2 has submitted that there are no eye-

witnesses to the incident. The witnesses examined by the

prosecution are not material witnesses. PW-5 is the only

person who had identified the accused and the deceased

visited the Bar and Restaurant prior to the incident. The

said evidence is not reliable. He admits that regularly

during evening several customers visited the Bar and

Restaurant and he did not explain how he remembered

identity of accused and deceased, that too, when accused

found after five months from the alleged date of incident.

There was no special feature in the accused to identify

them. Therefore, evidence of PW-5 is not reliable. There

are no connecting materials to believe that the accused had

committed murder of Dasa @ Dasappa. The learned

Sessions Judge properly appreciated the evidence and

rightly held that the prosecution has failed to prove the

guilt of the accused beyond reasonable doubt. The said

order is well reasoned order and does not call for any

interference by this Court. With these reasons, he prayed

to dismiss the appeal.

16. The following points emerges for our

determination:

i) Whether the prosecution prove beyond reasonable doubt on 31.07.2012 at about 9.30 p.m., near Mission Hospital Compound, Mysore on Shaddy Road, Mysuru, accused Nos.1 to 4 in

furtherance of a common intention to murder Dasa @ Dasappa, as he abused accused No.1 in filthy language when the accused No.1 refused to repay the loan amount borrowed from him due to short of money, the accused Nos.1 to 4 assaulted him with a stone slab on his head and caused grievous injuries, as a result of which, Dasa @ Dasappa died and thereby, accused have committed an offence punishable under Section 302 r/w Section 34 of IPC?

ii) Whether the findings of the learned Sessions Judge is perverse, arbitrary, contrary to the law and findings, as such interference by this Court is required?

17. Point Nos.1 and 2: The learned Sessions Judge

has appreciated the evidence on record. The complainant in

this case is Police sub-Inspector of N.R.Mohalla Police

Station, i.e., PW-2/ Shabbir Hussain. In his evidence, he

has stated that on 31.07.2012, during night, he was on

patrolling duty. He received information from control room

to visit near Mission Hospital Compound, wherein a dead

body was found. Immediately, he went to the said place

and found a dead body of a man lying on the road with the

bleeding injuries on his head. A stone slab was found on

the abdomen of the body. Immediately, he returned to

police station and lodged the complaint as per Ex.P2. On

the basis of the registration of the case, the criminal law

was set into motion.

18. When the dead body was found, it was an

unknown body. It was the evidence of PWs-14 and 15 that

they intimated to the different police stations by sending

photographs of the body to ascertain the identity of the

dead body. However, immediately, they could not get any

information regarding identity of the body and the body

was kept in mortuary of the Government Hospital.

Thereafter, on 06.08.2012, PW-15 decided to hold the

inquest and bury the body. Accordingly, PW-15 had drawn

the inquest on the dead body, in the presence of PW-6/

S.N.Ramesha and two other witnesses by name, Nasir

Khan and N.Ganesha. In Ex.P17, injuries found on the dead

body are noted by the Investigating Officer, along with the

witnesses and the witnesses has opined that death might

be caused due to the said injuries and someone have

murdered him.

19. PW-6 during his evidence has stated that he was

called to mortuary of K.R.Hospital. In his presence, the

police conducted the inquest on the dead body from

morning 9.00 a.m. to 12 noon. But he had no knowledge

about the identity of the dead person. In his cross-

examination, he pleads ignorance of the contents of the

documents. It is pertinent to note that inquest was drawn

on 31.07.2015 and he was examined on 08.07.2015.

Moreover, he is not an interested witness. Therefore, it

might be difficult for him to keep in memory the contents

of the said documents, which runs into few pages.

However, his presence is not denied or injury mentioned in

Ex.P17 are not disputed by the accused.

Along with PW-6, PW-15 has also stated about

drawing of inquest on dead body, as per Ex.P17, in the

presence of witnesses. Thereby, drawing up of Ex.P17 is

proved. The contents of Ex.P17 helps the prosecution to

prove that death of Dasa @ Dasappa was homicidal death

and it also supports the case of the prosecution to prove

that there were external injuries found on the dead body.

20. It is the evidence of PW-15 that after conducting

the inquest, he sent the dead body to the post-mortem and

requested Medical Officer, Government Medical College to

collect the viscera to ascertain whether the deceased had

consumed liquor prior to his death and also requested the

Medical Officer to collect the teeth of the deceased for DNA

test. He has also stated that on 09.08.2012, he received

viscera, teeth and bones of the deceased; And also dress

materials found on the dead body, from the Government

Medical College, Mysuru. PW-15 has also stated that since

there were nobody to claim the dead body, he buried the

body in Government Graveyard on 06.08.2012 by drawing

the mahazar as per Ex.P26 and also taking the

photographs.

21. PW-12 is the Medical officer who had conducted

post-mortem and gave the report as per Ex.P24. In Ex.P25,

PW-12 has mentioned external injuries found on the dead

body as also mentioned about the internal injuries after

dissecting the dead body. He has also stated that "cause of

death was due to shock and haemorrhage as a result of

head injuries sustained by an assault." PW-12 during oral

evidence corroborated the same. He also identified MOs-14

to 18, which were found on the dead body. He has stated

by assaulting with MO-13 on the head, such injuries could

be possible.

22. In the cross-examination of PW-12 nothing is

brought out to disbelieve the injuries found on the dead

body or opinion of PW-12 regarding cause of death. PW-12

denied the suggestions of accused that "such injuries could

be possible if a person falls on a hard surface." He has

stated that MO-13 was not sent to him by the Investigating

Officer for his opinion. It is not material lapse, because MO-

13 was seized by the police while drawing the spot

mahazar and produced before the Court during the trial. In

all the fairness, the Investigating Officer ought to have sent

MO-13 to PW-12 and obtained his opinion instead of

surprisingly asking such questions in the open Court.

However, it does not affect the credibility of the evidence of

PW-12. It is pertinent to note that death of the deceased

was due to the injuries is not disputed or denied in the

corss-examination of PW-12.

23. From the evidence of PWs-6, 12 and 15 and also

from Exs.P17 and 25, the prosecution proved that the

death of the deceased was homicidal death.

24. When the dead body was found by PW-2, it was

not identified by anyone. PW-15 during his evidence, has

stated that he took all the efforts to trace out relatives/

friends of deceased identify the said dead body. However,

during his investigation, he could not find the same. PW-14

had taken further investigation. In his evidence, he has

stated that through the assistance of his sub-ordinates he

could ascertain mother/Smt.Thimmamma, brother/

Sri.Ramakrisha and wife/Smt.Thayamma of the deceased

who identified the dead body by looking at the photographs

of the dead body. He has further stated that he obtained

blood samples of PW-8, Smt.Thimmamma, mother of the

deceased for DNA test with the permission of the Court and

he had sent bones as well as teeth collected; by the

Medical officer at the time of conducting the post-mortem

along with the blood samples of PW-8 and other articles

seized in this case to DNA Centre, FSL to ascertain identity

of the dead body. The DNA report is produced at Ex.P22.

From the said materials, the Scientific officer of DNA

Centre, FSL opined that "deceased Dasa @ Dasappa is

offspring of Smt.Thimmamma." PW-8, during her evidence

has stated that she saw the photo of the dead body and

identified the same. She has also stated that prior to his

death, Dasa @ Dasappa was serving as a driver in a lorry

and he used to come home once in a week. However,

three months prior to his death, he went on duty but did

not return home. They searched for the said Dasa @

Dasappa, however, they could not trace him. In the

meanwhile, three to four months after missing of Dasa @

Dasappa, police called her to Mandi Police Station and she

identified the photograph of the dead body as of Dasa @

Dasappa. The relationship of deceased with PW-8 is not at

all denied in her cross-examination.

25. PW-7 is younger brother of deceased. During

his evidence also, he has stated that he went to police

station along with his mother and wife of Dasa @ Dasappa

and identified the photographs of the said Dasa @

Dasappa. In his cross-examinaiton, accused have not

denied identity of the dead body as of Dasa @ Dasappa.

PWs-7 and 8 are brother and mother of the deceased. On

the basis of the photographs of the dead body, they

identified the body. There was no reason to discard or

disbelieve their evidence, which was not disputed.

Thereby, the prosecution by the evidence of PWs-7 and 8

proved that deceased was Dasa @ Dasappa. The scientific

evidence collected by the Investigating Officer, i.e., Ex.P22

also corroborate with the evidence of PW-8 that dead body

is of Dasa @ Dasappa, i.e., son of PW-8.

26. The next evidence to connect the accused with

the incident is regarding the relationship of accused and

deceased. As per the case of prosecution, the accused and

deceased were working in Ramco Cement Factory Godown

as loaders and un-loaders. To prove the said fact,

prosecution examined Manager, serving in Ramco Cement

Factory Godown as PW-9. During the evidence, he could

not identify the accused and deceased as working as

loaders and un-loaders in the Ramco Cement Factory

Godown. He was treated as a hostile witness and cross-

examined by the prosecution. But nothing worth was

brought out to show that he was deliberately giving false

evidence before the Court.

27. It is pertinent to note that deceased or accused

were not permanent employees of Ramco Cement Factory

Godown. As per the statement of PW-9 recorded as per

Ex.P20, contractor used to supply labourers for loading or

unloading the goods whenever cement loaded lorry came to

Godown. Under such circumstances, it is quite natural that

the Manager might not know as to who was the coolie

working to load and unload. Therefore, merely PW-9 did

not support the case of the prosecution, does not mean

that he was deposing falsely before the Court. Evidence of

PW-9, does not help the prosecution to prove that

deceased and accused were working together as loader and

un-loader for a period of about three to four months prior

to his death. There is no other evidence to prove that

accused and deceased were familiar with each other and

were working together. When said fact is not proved, it is

difficult to believe involvement of accused in the incident.

28. It is the case of prosecution that deceased lent

Rs.1,500/- to accused No.1. On the unfortunate day of

incident, while they had drinks in Adi Kaveri Bar and

restaurant, deceased demanded the accused to repay the

amount due to which quarrel started. There is no evidence

either oral or documentary to prove that deceased lent an

amount of Rs.1,500/- to accused No.1 and on the day of

incident, deceased insisted the accused to repay the said

amount. PW-4 has turned hostile to the case of prosecution

except saying that on the day of incident, there was some

commotion/quarrel between the customers. He has not

seen their face. PW-5 says that there was fight between

the deceased and the accused. But he does not know the

reasons for the said quarrel. The said quarrel is motive for

the commission of the crime. But the same is not proved

by the prosecution.

29. It is the case of the prosecution that when

deceased insisted accused No.1 to repay loan amount,

quarrel started between them. There were altercations and

deceased had told accused No.1 that "if he was unable to

pay the amount borrowed by him, then, let him send his

mother and wife with him for sexual enjoyment. Due to

the said fact, all the accused enraged against the deceased

and started fighting in the Bar and restaurant. When they

were sent out of the bar, on the public road around 9.30

p.m. they assaulted the deceased with hand. Thereafter,

accused No.1 removed stone slab from the foot path and

assaulted the deceased on backside of his head. Due to

the injury, deceased fell down and thereafter said stone

slab was put on his abdomen/stomach. In the absence of

proof of money transactions between accused and

deceased so also abusive words used by deceased against

the accused, it is difficult to trace out any motive behind

the crime.

30. The prosecution tried to connect the incident

with the accused on the basis of 'last seen theory'. In this

regard, prosecution examined PWs-4 and 5 who were

manager and Cashier of "Adi Kaveri Bar and Restaurant"

situated near the spot of the incident. PW-4 pleaded

ignorance about visit of accused as well as deceased to the

Bar few hours before the death of Dasa @ Dasappa. Even

he denied that they quarrelled in the Bar. However, he has

stated that about two years back opposite to Mission

Hospital Compound, there was a dead body. The police

and others gathered in the said spot. The police drew

mahazar and seized MOS-11 to 13 and took his signature

on the mahazar as per Ex.P1(c). Since he did not fully

supported the case of the prosecution, he was treated as

hostile witness and cross-examined. In the cross-

examination, he denied suggestions of the learned Public

Prosecutor and denied that he gave the statement before

the Police as per Exx.P15 and P16. In the cross-

examination, nothing was brought out to prove that he was

wilfully giving false evidence before the Court. It is not the

case of the prosecution that the accused were regular

customers of the said Bar and Restaurant or they had

friendship with PW-4. Moreover, he was working as a

Manager in the said Bar and Restaurant. It was not brought

out in his cross-examination regarding nature of work he

was doing in the Bar and Restaurant, as a Manager or he

had an opportunity to meet or look at the customers who

visit the Bar. If he had an opportunity to see the

customers, then there was no reason for him to deny the

said fact before the Court.

31. In the cross-examination of PW-4, accused tried

to challenge his evidence regarding drawing up of mahazar.

But in the cross-examination also, he has elaborated about

drawing up of mahazar. There are no reasons to disbelieve

his evidence regarding drawing up of mahazar. However,

the said mahazar do not connect the accused with the

incident.

32. PW-5 who was serving as Cashier in the Bar; in

his evidence, he has stated that about two years prior to

the incident around 7 to 7.30 pm, deceased and accused

came to the Adi Kaveri Bar and Restaurant after having

drinks, they started to quarrel in respect of money matter,

therefore, he sent all of them from the Bar. Around 8.30

pm., few people gathered near the Bar and he went to the

said spot and saw the dead body. The said person was one

among the five persons who quarrelled in the Bar regarding

money matter. In the detailed cross-examination, he once

again reiterated and elaborated his evidence. Nothing was

brought out to discard or disbelieve his evidence. The

learned Sessions Judge disbelieved his evidence on the

ground that he has stated in his cross-examination that "he

cannot remember the face of each and every customer,

who visits the Bar and Restaurant." The Sessions Judge

ought to have appreciated evidence of PW-5 properly. He

has stated that about an hour or two, prior to seeing of the

dead body, the said person along with four others visited

the Bar and Restaurant. After having some drinks, they had

a quarrel and he persuaded them to go out of the Bar and

was successful in sending them out of the Bar. Within a

span of an hour or two, the incident was said to be taken

place. In view of these circumstances, one could naturally

remember that a person a few hours prior to the incident

had been to the Bar and had drinks. On that basis, he

might have remembered the identity of the accused as well

as the deceased. Thereafter, within four to five months,

when accused were arrested by PWs-2, the Investigating

Officer, has called him to the police station and shown the

accused. Looking at them, he identified them. Therefore,

he might have remembered the identity of the accused,

due to unique circumstances. The other customers who

had visited the Bar and Restaurant might not had such

opportunity. Therefore, there is nothing strange or

unbelievable if PW-5 had remembered the identity of the

deceased as well as the accused.

33. It is not the case of the prosecution that

immediately after they had gone out of the Bar, incident

had occurred or he saw the dead body. The place of

incident is about 50 to100 meters away from the spot of

the incident. Under these circumstances, only on the basis

of the 'last seen theory' stated by PW-5, it is difficult to

believe that they had committed murder of the deceased.

As per the case of the prosecution, deceased and accused

were not close friends. Two to three months prior to the

incident, deceased came to Mysuru and working in different

place as a Coolie. Thereafter, he was working as loader

and un-loader in Ramco Cement Factory Godown on daily

wages. As discussed above, it is not proved that accused

and deceased were working together in the said Godown or

deceased lent an amount of Rs.1,500/- to accused No.1

and accused No.1 did not repay the said amount inspite of

demand by the deceased. In view of the absence of these

circumstances, mere proof of visit of accused and deceased

to the Bar and Restaurant as stated by PW-5, do not help

the prosecution to prove the guilt alleged against the

accused.

34. The prosecution has made out a case that after

arrest of the accused, PW-14 interrogated them and

recorded their statements as per Exs.P27, 28, 29 and 30

respectively and on that basis, PW-14 and witnesses went

to their respective place of residence and seized the dress

materials said to be worn by the respective accused at the

time of the incident and at that time, Exs.P5 to P9 were

drawn. All the said mahazars were witnessed by PW-10/

G.Srinivas. During the evidence, he has turned hostile and

not supported the case of the prosecution and he has

stated that he signed on the said mahazar in the said police

station. Therefore, evidence of PW-14 regarding recovery

of articles on the confession of the accused is not proved by

the prosecution. It appears, the said dress materials of

accused Nos.1 to 4 were sent to DNA Centre, FSL. The

Scientific Officer examined the said articles, which are

mentioned at Sl.Nos.15 to 23 of Ex.P.22 and observed in

his conclusion that "the presence of blood stains were not

detected in item Nos.15, 16, 17, 18, 19, 20, 21, 22 and 23.

Therefore, even if for the sake of discussion, it is accepted

that the said articles were seized from the residence of

respective accused but it will not connect the accused

about the incident since none of the dress materials

contained blood stains of the deceased.

35. In Ex.P8, from the house of accused No.1/

Aruna, the Investigating Officer seized purse containing

photographs, Xerox copy of the ration card and the said

purse was said to be found in a corner of the house of

accused No.1. The learned Sessions Judge rightly observed

that seizure of the said article is highly doubtful. The said

purse was said to be belonging to the deceased. It is not

the case of the prosecution that the said purse was

containing money. Therefore, to grab the said money,

accused No.1 snatched the purse of the deceased.

Moreover, the accused was said to be arrested after about

four months from the date of the incident. It was not kept

in a hidden place. On the contrary, it was found in a corner

of the house, which could be seen by anybody who visits

his house. In the confession of accused No.1 said to be

recorded by PW-14, there is no reference regarding the

said purse. PW-14 in the cross-examination admits that in

the property form (PF), seizure of purse was not specifically

mentioned. Under such circumstances, the seizure of the

said purse form the house of accused No.1 creates serious

suspicion and it is not proved beyond reasonable doubt.

Therefore, Exs.P5 to P9 are seizure of the said articles will

not help the prosecution to connect the accused with the

death of Dasa @ Dasappa.

36. PW-11 is not an important witness. He is the

owner of Sulabha Shouchalaya and according to the case of

the prosecution, deceased usually used to come to the said

Sulabha Shouchalaya and take bath after his work. During

his evidence, he turned hostile and not supported the case

of the prosecution and his evidence do not connect the

accused with the guilt.

37. PWs-14 and 15 are Investigating Officers who

have narrated the investigation done by them. However,

their evidence is not corroborated by the witnesses

examined by the prosecution. From the facts and

circumstances, as well as from the investigation done by

them, it appears that they had not taken proper care while

investigating the case. PW-3 is a witness to the spot

mahazar, who has supported drawing up of the mahazar and

in his cross-examination, in detail, he has stated that place of

incident was a busy road and busy locality. Moreover,

incident was taken place near the entry gate of staff quarters

of Mission Hospital, Mysuru. He has also stated abut situation

of commercial shops near the place of incident. However,

according to the case of the prosecution, incident had taken

place between 8.30 pm to 9.30 pm. The Investigating officer

has not collected the evidence of any of the eye-witnesses to

the incident. There is no material placed along with the

charge-sheet to show that he has made all his efforts to trace

out an eye-witness to the incident. In the cross-examination,

PWs-14 and 15 have stated that they tried for tracing the

eye-witnesses, however, none co-operated with them. They

could have recorded such statement and enclosed with the

charge-sheet. Therefore, best available evidence was not

collected by the Investigating Officer. In view of all these

reasons, prosecution was not able to prove the guilt of the

accused beyond reasonable doubt.

38. The learned Sessions Judge properly appreciated

the evidence on record and acquitted the accused for the

alleged offence. There are no reasons to interfere with the

said finding.

39. For the aforesaid discussion, we answer Point

Nos.1 and 2 in the 'negative' and pass the following:

ORDER

i) The Appeal is dismissed.

ii) The impugned judgment passed by the

learned I Additional District and Sessions

Judge, Mysuru in S.C.No.100 of 2015

dated 29.06.2016, acquitting the accused

Nos.1 to 4 for the offences of punishable

under Sections 302 read with Section 34 of

the Indian Penal Code is confirmed.