offence punishable under Section 143 of IPC. Further, the
punishable under Section 147 of IPC. The accused shall
months for the offence punishable under Section 148 of IPC.
302 of IPC. The accused shall undergo rigorous imprisonment
punishable under Section 307 of IPC. The accused shall
for the offence punishable under Section 201 of IPC. The
Section 120(B) r/w Section 149 of IPC. The sentences passed
against the accused shall run concurrently.
2. The abridged facts of the case are as follows:
23-N-1758 away from the spot and parked one Mahindra Maxx
bearing Registration No.KA-28-A-7173 on the spot to make it
appear as if Basappa and Rangavva died in a road accident.
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3. Subsequently, the grandson of the deceased
Basappa and Rangavva one Kalmesh PW.6, called his paternal
uncle i.e., PW.1-Tamanna over a mobile call and narrated the
incident. Hence, PW.1 rushed to the spot and witnessed the
corpses of his parents, thereafter shifted PW.6 to the Hospital
and lodged a complaint before the respondent-Police against
the accused persons as per Ex.P1. Following which an FIR came
to be registered in Crime No.2/2014 against the accused Nos.1
to 5 for the offences punishable under Sections 120B, 143,
147, 148, 307, 302, 201 r/w Section 149 of IPC dated
07.01.2014 at about 10:00 p.m. by PW.14.
4. On the next day i.e., on 08.01.2014, PW.12-
Investigating Officer visited the spot, conducted the spot
mahazar and thereafter conducted the inquest panchamana on
the corpse of the deceased duo. On 17.01.2014, he arrested
the accused and recorded their voluntary statements and based
on it, the vehicle i.e., M.O.10 which was purportedly used while
committing the crime, the weapons i.e., M.Os.12, 15 and 18
and clothes i.e., M.Os.3, 13, 14, 16 and 17 worn by the
accused at the time of perpetrating the crime were seized at
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their behest as per Exs.P13 and 15. Later, upon recording the
statement of witnesses and obtaining necessary documents
from the concerned authorities, PW.12 laid the chargesheet
against the accused for the offences punishable under Sections
143, 147, 148, 302, 307, 201 and 120(B) r/w Section 149 of
IPC before the committal Court.
5. After committal of the case before the Sessions
Court, the learned Sessions Judge framed charges against the
accused for the aforementioned offences and the same was
read over verbatim to them. However, the accused denied the
charges levelled against them and claimed to be tried.
6. In order to prove the charges levelled against the
accused, the prosecution collectively examined 14 witnesses as
PW.1 to PW.14, marked 45 documents as Ex.P1 to Ex.P45 and
identified 20 material objects as M.O.1 to M.O.20. The defence
has not adduced any oral evidence, however, Ex.D1 to Ex.D16
are marked for the defence.
7. On completion of the prosecution evidence, the
learned Sessions Judge read over the incriminating evidence of
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material witnesses to the accused as stipulated in Section 313
of Cr.P.C. However, the accused denied the same. The defence
of the accused is of absolute denial and that of false
implication.
8. Following the assessment of oral and documentary
evidence placed before the Sessions Court, the learned
Sessions Judge convicted the appellants/accused for the
charges levelled against them and sentenced them as stated
supra. The said judgment of conviction and order of sentence is
challenged in these appeals.
9. The validity and legality of the judgment passed by
the Sessions Court aforementioned is called-in for scrutiny by
all the five accused by way of filing separate appeals. More
particularly, accused No.1 (Malappa) and accused No.3
(Mureppa) have filed Criminal Appeal No.200173/2017,
accused No.2 (Paramanand) has filed Criminal Appeal
No.200169/2017, accused No.4 (Krishnappa) has filed Criminal
Appeal No.200072/2020, whereas accused No.5 (Revansidda)
has filed Criminal Appeal No.200062/2017.
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10. The contentions in detail have been advanced by
Sri. Shaikh Saoud, Sri Arun Choudapurkar, Sri Sanjay Kulkarni
and Sri Kadloor Satyanarayanacharya, the learned counsel for
the respective appellant/accused and Additional State Public
Prosecutor Sri. Siddaling P. Patil, for the respondent-State, also
we have perused the records made adduced before us.
11. To summarize the arguments advanced by the
learned counsel for the appellants/accused is that, the
judgment of conviction and order of sentence passed by the
Sessions Court suffers from perversity and illegality. The
learned Sessions Judge has grossly erred while convicting the
appellants/accused without duly appreciating the evidence and
documents placed before him. They contended that, the
prosecution suppressed the genesis of the crime since there is
inordinate delay in registering an FIR by PW.1 though the
incident was allegedly caused at about 04:00 p.m., on
07.01.2014. The FIR was registered late at 10:30 p.m. on the
same night, despite the Police Station being situated close by.
In order to prove the charges levelled against the accused, the
prosecution predominantly relied on the evidence of PW.6, a
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child witness who is the grandson of the deceased and relative
of PW.1 who is said to have been an injured eyewitness to the
incident. However, according to the wound certificate of PW.6
he was brought to the Hospital with a history of road accident
by one Srishaila who has not been cited as a charge sheet
witness. According to the complaint lodged by PW.1 and the
evidence of PWs.5 and 6, the sister of PW.6 i.e., Pooja who had
accompanied the deceased duo and PW.6 on the date of
incident on a motorcycle while they were returning from
Hanamaneri to Gunadala and witnessed the incident. However,
she being the elder sister of PW.6 aged about 13 years at the
time of incident, the prosecution neither cited her on charge
sheet nor examined her before the Court. There neither is
whisper about her treatment nor wound certificate after the
incident. Hence, non-examination of Srishaila and Pooja clearly
creates a doubt in the genesis of the crime and proves totally
fatal to the prosecution. They further contended that according
to PW.6, the motorcycle in which he was travelling along with
the deceased and Pooja was crashed by the cruiser, all of them
were tossed on the road and owing to the accident he sustained
injuries. After sustaining such injuries, he witnessed the
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accused getting down from the cruiser. Hence, he fled the spot
and hid behind nearby bushes from where he witnessed the
incident. However, on perusal of the spot sketch prepared by
PW.13 as per Ex.P44, there were no trees and bushes at the
place of incident. Further, according to PW.6, after the incident
he called PW.1 by borrowing the mobile phone of a tractor
driver who was passing by the alleged spot. But, nowhere in
the charge sheet the Investigating Officer, recorded the
statement of the said person who handed over the mobile
phone to PW.6 so also the call detail to that effect. Further,
there are contradictions and omissions in the statements and
evidence of PW.6 the child witness. As such, according to the
learned counsel, the evidence of PW.6 appears to be tutored
with traces of exaggeration and embellishment. The learned
counsels submitted that though the prosecution projected PW.5
as eyewitness to the incident, on perusal of his evidence, it
could be easily gathered that he is a planted/chance witness to
the incident. According to PW.5, on the date of incident the
deceased met him at Dodda-Galagali village in front of a
provision store at about 3 p.m. thereafter, they left the spot
and after 10 minutes he followed them in the same direction.
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However, he has not stated where the destination of his travel
was. Further, according to him, he had witnessed the incident,
50-150 ft. away from the incident. As admitted by him, he
being a close relative, not made any attempt either to save the
deceased or at least to pacify the quarrel. Further, he had not
accompanied PW.6 the injured boy to the Hospital and lodged
no complaint before the Police; he did not even inform PW.1
about the incident. The learned counsels also submitted that
though the incident occurred at 4:00 p.m. on 07.01.2014 on
the main road of Chikka-Galagali and Hosur, none of the Police
officials visited the spot immediately. Nevertheless, even after
lodging the complaint by PW.1 at about 10:30 p.m. on the
same night, the Police did not visit the spot until the following
day i.e., on 08.01.2014. It is not enumerated in the charge
sheet as to who shifted the two corpses to the Hospital from
the alleged spot. The learned counsel contended that no
witnesses have been examined by the prosecution to prove
immediately prior to the incident there was a meeting of minds
of the accused to hatch a conspiracy to murder the deceased
duo. They also contended that the recovery of the weapons
used for the commission of crime is not as per law i.e., within
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the ambit of Section 27 of the Indian Evidence Act and also as
per the law laid down by the Hon'ble Apex Court. The recovery
of the weapons and clothes at the behest of the accused are
joint recovery under Exs.P13 and 15 i.e., mahazars and PW.4 is
the only witness for all the recoveries alleged and effected from
the accused. Moreover, the said witness is also a close relative
of complainant and deceased's family. They also contended that
the cruiser jeep and motorcycle which the accused travelled
and used while perpetrating the crime, does not belong to the
accused and the Police made no efforts to trace the owners of
the said vehicles and to obtain the IME report to identify the
damage and to gather further details of the vehicles.
12. In order to buttress their arguments, the learned
counsel for the appellants/accused No.1 and 3 relied on the
judgments of the Hon'ble Apex Court, which reads are under:
1. Suresh and Another v. State of Haryana
reported in 2018 (18) SCC 654.
2. Ram Jag and Others v. The State of U.P in
Crl.A.No.110/1970 (Supreme Court of India)
3. Hamza v. Muhammedkutty @ Mani and
Others reported in 2013 (11) SCC 150.
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4. Mohnder Singh and Another v. State of
Punjab and Others reported in 2004 (12)
SCC 311.
5. The State of Karnataka v. T.S.Shivakumar
and Others in Crl.A.No.1256/2016 (High
Court of Karnataka)
6. Arshad Hussain v. Sate of Rajasthan
reported in 2013 (14) SCC 104.
Further, learned counsel for appellant/accused No.4 relied
on the judgments of the Hon'ble Apex Court and prays to allow
the appeals. The judgments reads as under:
1. Basheera Begam v. Md. Ibrahim and Others
reported in (2020) 11 SCC 174.
2. Imrat Singh and Others v. State of M.P.
reported in (2019) 14 SCR 1047.
3. Mahavir Singh v. State of M.P. in
Crl.A.No.1141/2007 (Supreme Court of
India)
4. Manoj Kumar Soni v. State of M.P. (2023)
SCC OnLine SC 984
5. Shivakumar v. State of M.P. 2022 (9) SCC
676.
13. Refuting the above submission, the learned Addl.
SPP on the other hand submitted that the prosecution has
clearly established the guilt of the accused and no exceptions
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can be taken to the reasons indicated by the Sessions Court
under the well reasoned judgment. The evidence has also been
analyzed in great detail by the Sessions Court and therefore, no
question of any interference is called for with the conviction
recorded in the impugned judgment by the Sessions Court. He
further contended that the prosecution has proved the charges
levelled against the accused by placing the evidence of the
injured child witness PW.6-Kalmesh who was travelling along
with the deceased on a motorcycle at the time of incident so
also the evidence of PW.5 who is an eyewitness to the incident.
PW.6 in his evidence categorically stated that the accused
crashed the motorcycle in which he, his sister and the deceased
duo were travelling; thereafter all the accused together
assaulted the deceased duo with M.Os.12, 15 and 18.
Thereafter, accused No.3 and 5 held the deceased Basappa and
accused No.2 drove the jeep over his head. Thereafter, he
called PW.1 through phone. This evidence of PW.6 clearly
corroborated with the evidence of PW.5-Narayana who is the
eyewitness to the incident. Further the evidence of both these
witnesses also corroborate with the medical evidence i.e., the
evidence of PW.9-Doctor who treated PW.6 and also with the
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evidence of PW.10-Doctor who conducted the autopsy on the
corpses of the deceased duo. According to the learned Addl.
SPP, the prosecution also successfully established the motive
for the alleged incident by examining PWs.1, 7 and 8 who have
clearly stated that, owing to civil dispute between the deceased
Rangavva i.e., the wife of deceased Basappa and the parents of
accused Nos.1 to 3, the accused murdered them. Further, four
months prior to the incident i.e., on 08.08.2013, the deceased
Rangavva had lodged a complaint against the accused for
intimidating them with life-threat, owing to the property
dispute. Moreover, the prosecution also placed the documents
to that effect i.e., Exs.P2 to 4. He also contended that, the
prosecution proved the circumstance of recovery of weapons
that were used to commit the crime by the accused under
mahazar Ex.P15. Since PW.4 the panch witness for that clearly
supported the case of prosecution. According to the learned
Addl. SPP, PWs.1, 7 and 8 who visited the spot immediately
after the incident and they have been informed by PWs.5 and 6
about the incident as such, they have to be treated as res
gestae witnesses as stipulated in Section 6 of the Indian
Evidence Act. Hence, the prosecution has successfully proved
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the guilt of the accused beyond all reasonable doubt and prays
to dismiss the appeals.
14. Having heard the learned counsels for the
respective parties and also upon comprehensive perusal of the
evidence on record, the points that surface for our
consideration are:
i. "Whether the judgment under these appeals
either suffers from perversity or illegality?
ii. Whether the learned Sessions Judge is justified
in convicting the appellants/accused for the
offences they charged?"
15. As common narration and consideration are
involved in the appeals on hand, we take the liberty to address
both the above raised points for consideration in the forgoing
paragraphs.
16. In order to prove the homicidal death of the
deceased i.e., Basappa and Rangavva, the prosecution
predominantly relied on the evidence of PW.10-Dr. R.C Patil,
Assistant Professor, Al-Ameen Medical College and Hospital
Vijayapura, who conducted the autopsy of the corpses. He
conducted the autopsy of the deceased Basappa and identified
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13 external injuries and 4 internal injuries and issued his final
opinion as to the cause of death as 'due to haemorrhage as a
result of head injury sustained' and issued a postmortem report
as per Ex.P22. Accordingly, he confirmed that the injuries
sustained on the corpse are similar to the injuries one would
sustain when a person is assaulted with M.Os.12, 15 and 18
from falling off of a moving bike and passing of a jeep wheel
over the head. Subsequently, he also conducted the autopsy of
the deceased Rangavva where he noticed 13 externals injuries
and opined that the death was 'due to haemorrhagic shock, as
a result of injury sustained over head'. He issued the
postmortem report as per Ex.P23. He also opined that the
injuries found on the corpse of Rangavva could be caused by an
assault from wooden club-M.O.15 and due to fall from a moving
bike. Further, PW.10-Doctor stated that all the injuries found
on the duo corpses are anti-mortem in nature. Albeit the
defence made an attempt to dispute the death of the duo that
they both died in a road accident, PW.10 specifically stated that
the injuries noticed on Exs.P22 and 23 cannot be caused due to
road accident. Further, the depressed fracture-injury caused to
the deceased Basappa is unlikely to have occurred in a road
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accident. Aside from this evidence, PW.12 the Investigating
Officer stated on 08.01.2014 that he conducted inquest
panchanama on the corpses of the deceased duo as per Exs.P6
and 7. PW.2 is the panch witness for the same, he along with
PW.12 have identified the injuries on the corpses of both the
deceased. Even in the inquest panchanama, the question No.11
answered that the death of both deceased is homicidal, in such
circumstances, we are of the view that the prosecution has
proved the homicidal death of both the deceased beyond
reasonable doubt.
17. In the instant case, albeit the prosecution examined
14 witnesses to prove the charges levelled against the
appellants/accused, it is redundant to delve into the nitty gritty
of individual evidence of all witnesses. We have carefully
perused the evidence of material witness so also the judgments
relied by the learned counsel as stated supra. To bring home
the guilt of the accused, the prosecution primarily relied on the
evidence of PWs.1, 4, 5, 6 and 7. On careful scrutiny of the
evidence of these witnesses, PW.1 being the son of deceased,
set the criminal law into motion by lodging complaint as per
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Ex.P1. According to him, on 07.01.2014, in the evening hours
PW.6 informed him over a mobile call about the incident,
immediately he rushed to the spot and saw the corpses of his
parents. Upon enquiry PW.6 informed that he, the deceased
duo and his sister Pooja while returning from Hanamaneri to
Gunadala, near Nandi School, Chikka-Galagali, the accused
crashed the cruiser jeep to the motorbike, as a result, all of
them were tossed on the road and thereafter, the accused
murdered his parents by assaulting with M.Os.12, 15 and 18.
Later, PW.1 shifted PW.6 to the Hospital and lodged a
complaint. On perusal of the complaint, admittedly PW.1 has
not whispered about the presence of PW.5 the eyewitness to
the incident. The said complaint was lodged at about 10:30
p.m. on 07.01.2014. According to PW.1, his sister's son PW.6
Kalmesh was injured in a road accident and he was admitted in
the Hospital. Hence, the evidence of PW.1 has to be treated as
hearsay evidence for the reason that he has reached the spot
after two hours of the incident i.e., about 06:00 p.m. and
before he reached the spot, PW.6 was already taken to the
Hospital at about 05:10 p.m. as per the evidence of PW.9-
Doctor who treated him. On perusal of Ex.P1-complaint, it is
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stated by PW.1 that when he reached the spot at about 06:00
p.m., PW.6 was weeping in front of the corpses of the
deceased. On enquiry, he revealed names of the accused and
also divulged about the crime perpetrated by the accused.
Further, PW.1 reiterated the said version in his evidence.
However, as stated supra, PW.9 categorically stated on
07.01.2014 at about 5:10 p.m. that one Shrisaila had brought
PW.6 to the Hospital. To further substantiate, on perusal of
Ex.P20 wound certificate of PW.6 revealed that the date and
time of his examination by PW.9 is at about 5:10 p.m. on
07.01.2014. As such, the version of PW.1 in Ex.P1 and in his
evidence before the Court is that PW.6 was present in the
scene of occurrence at about 06:00 p.m. and he narrated the
incident to him appears to be doubtful. Hence, the evidence of
PW.1 cannot be considered as a res gestae witness as
contended by the learned Addl. SPP.
18. Coming to the evidence of PW.6 the child witness
who is also an injured eyewitness to the incident, deposed that
on the date of incident, he along with his sister Pooja and the
deceased duo, while returning from Hanamaneri on a
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motorcycle, the accused crashed the motorcycle with a cruiser
jeep, owing to the impact, all of them were tossed on the road
and he sustained injuries. Thereafter, the accused got out of
the jeep and assaulted his grandparents with M.Os.12, 13 and
15. As he and his sister Pooja were fearful, they hide among
nearby bushes and witnessed the incident. This witness
identified M.Os.10 and 19 the vehicles used by the accused so
also the motorcycle of the deceased i.e., M.O.20. On careful
perusal of the evidence of this witness, at the outset, this
witness being a child witness aged about 8 years at the time of
incident and 11 years at the time of his evidence, the Sessions
Judge grossly failed to make proper preliminary examination of
the minor by placing appropriate questions to ascertain
whether he is capable to fathom the questions put forth to him
and to ascertain if he is able to rationally answer. It is the duty
of judicial officer to ask preliminary questions to the witnesses
with a view to ascertain whether a minor can understand the
questions put to him.
19. On perusal of the evidence of PW.6, the learned
Sessions Judge has stated that he is satisfied that the minor is
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able to understand the questions and know the difference
between truth and untruth, except such observation, no
preliminary examination of the minor was conducted. Hence, at
the outset, we are of the view that the learned Sessions Judge
has seriously erred while recording the statement of PW.6. It is
a settled principle that corroboration of the testimony of a child
witness is not a rule but a measure of caution and prudence. A
child witness of tender age is easily susceptible to tutoring.
However, that by itself is no ground to reject the evidence of a
child witness. The Court must make careful scrutiny of the
evidence of a child witness. The Court must apply its mind to
the question whether there is a possibility of the child witness
being tutored. Therefore, scrutiny of the evidence of a child
witness is required to be made by the Court with due care and
caution. Our view is fortified by the judgment of the Hon'ble
Apex Court in the case of Pradeep v. State of Haryana
reported in 2023 SCC OnLine SC 777.
20. By applying the above principles to the evidence to
PW.6 in the case on hand, on perusal of evidence of this child
witness, a doubt surfaces in the mind of this Court regarding
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the narration of incident by this child witness who was aged
about 8 years at the time of incident. Moreover, according to
him, while the deceased was riding the motorcycle, in total 4 of
them were on the said motorcycle and due to the accident
caused by the accused, all of them were tossed on the road and
he had sustained as many as 6 injuries on his person. It is hard
to believe that, in the said situation, he fled the spot and hid by
the bushes and witnessed the entire incident i.e., the specific
overt act committed by each of the accused and also identified
the weapons used by each accused. Further, his evidence was
recorded before the Court after a lapse of 3 years i.e., in the
year 2017 and he narrated the 3 year-old incident verbatim to
the prosecution case by withstanding the test of cross-
examination. Further, it is hard to believe that an 8 year-old
boy without being an acquaintance of the accused, named them
and deposed before the Court their act vividly after 3 years
without any variation. Moreover, as discussed supra, the
evidence of PW.6 is a parrot like version which creates doubt
regarding the presence of this witness in the spot at about
06:00 p.m. and narration of the incident by him to PW.1 as
stated in the complaint.
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21. The Hon'ble Apex Court in the case of Radhey
Shyam v. State of Rajasthan, reported in (2014) 5 SCC
12. In Panchhi [Panchhi v. State of U.P.,
(1998) 7 SCC 177 : 1998 SCC (Cri) 1561] , after
reiterating the same principles, this Court
observed that the evidence of a child witness must
be evaluated more carefully and with greater
circumspection because a child is susceptible to be
swayed by what others tell him and, thus, a child
witness is an easy prey to tutoring. This Court
further observed that the courts have held that
the evidence of a child witness must find adequate
corroboration before it is relied upon. But, it is
more a rule of practical wisdom than of law. It is
not necessary to refer to other judgments cited by
the learned counsel because they reiterate the
same principles. The conclusion which can be
deduced from the relevant pronouncements of this
Court is that the evidence of a child witness must
be subjected to close scrutiny to rule out the
possibility of tutoring. It can be relied upon if the
court finds that the child witness has sufficient
intelligence and understanding of the obligation of
an oath. As a matter of caution, the court must
find adequate corroboration to the child witness'
evidence. If found reliable and truthful and
corroborated by other evidence on record, it can
be accepted without hesitation. We will scrutinise
PW 2 Banwari's evidence in light of the above
principles.
22. As per the findings of the Hon'ble Apex Court in the
above referred judgments, it is concluded that the evidence of
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child witness must be subjected to close scrutiny to rule out the
possibility of tutoring and as a rule of prudence corroborative
evidence is required to rely on the evidence of child witness.
23. Though the prosecution examined PW.5 another
eyewitness in the instant case as corroborative evidence to the
evidence of PW.6, on scrutiny of the evidence of PW.5,
according to him on the date of incident, the deceased met him
at a place called Dodda-Galagali and after deceased left the
said place, he also travelled behind them in the same direction
on a motorcycle and thereafter, witnessed the incident.
According to him he is a close relative of the deceased.
Admittedly, he neither made any attempt to rescue the
deceased from the attack nor pacified the row. Being a close
relative, he neither shifted the injured PW.6 to the Hospital nor
lodged any complaint to the Police about the incident till 10:30
p.m. i.e., till the time PW.1 lodged the complaint. Further, he
did not intimate PW.1 immediately after the incident despite
PW.6 sustaining injuries in the incident and the death/murder
of the deceased duo. Nevertheless, his statement was recorded
on the following day i.e., on 08.01.2014. This conduct of PW.5
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stems clear doubt regarding his version that he was present in
the scene of occurrence at the time of incident. To substantiate
this aspect, on perusal of the inquest panchanama Exs.P6 and
7, the column No.4 depicts that the deceased were finally seen
by PW.6 Kalmesh. Moreover, there are serious infirmities in the
evidence of this witness compared to his 161-statement.
Exs.D1 to D14 were marked in his evidence i.e., the portion of
omission/contradiction in his evidence against his 161-
statement. As stated supra, the non-lodging of complaint by
this witness and also not mentioning of the presence of this
witness by PW.1 in Ex.P1 creates a serious doubt in his
evidence.
24. The Hon'ble Apex court in the case of Darya Singh
v. State of Punjab reported in 1963 SCC OnLine SC 123,
held in paragraph No.6 as under:
"6. There can be no doubt that in a murder
case when evidence is given by near relatives of
the victim and the murder is alleged to have
been committed by the enemy of the family,
criminal courts must examine the evidence of the
interested witnesses, like the relatives of the
victim, very carefully. But a person may be
interested in the victim, being his relation or
otherwise, and may not necessarily be hostile to
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the accused. In that case, the fact that the
witness was related to the victim or was his
friend, may not necessarily introduce any
infirmity in his evidence. But where the witness
is a close relation of the victim and is shown to
share the victim's hostility to his assailant, that
naturally makes it necessary for the criminal
courts examine the evidence given by such
witness very carefully and scrutinise all the
infirmities in that evidence before deciding to act
upon it. In dealing with such evidence. Courts
naturally begin with the enquiry as to whether
the said witnesses were chance-witnesses or
whether they were really present on the scene of
the offence. If the offence has taken place, as in
the present case, in front of the house of the
victim, the fact that on hearing his shouts, his
relations rushed out of the house cannot be ruled
out as being improbable, and so, the presence of
the three eyewitnesses cannot be properly
characterised as unlikely. If the criminal court is
satisfied that the witness who is related to the
victim was not a chance-witness, then his
evidence has to the examined from the point of
view of probabilities and the account given by
him as to the assault has to be carefully
scrutinised. In doing so, it may be relevant to
remember that though the witness is hostile to
the assailant, it is not likely that he would
deliberately omit to name the real assailant and
substitute in his place the name of the enemy of
the family out of malice. The desire to punish the
victim would be so powerful in his mind that he
would unhesitatingly name the real assailant and
would not think of substituting in his place the
enemy of the family though he was not
concerned with the assault. It is not improbable
that in giving evidence, such a witness may
name the real assailant and may add other
persons out of malice and enmity and that is a
factor which has to be borne in mind in
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appreciating the evidence of interested
witnesses. On principle, however, it is difficult to
accept the plea that if a witness is shown to be a
relative of the deceased and it is also shown that
he shared the hostility of the victim towards the
assailant, his evidence can never be accepted
unless it is corroborated on material particulars.
We do not think it would be possible to hold that
such witnesses are no better than accomplices
and that their evidence, as a matter of law, must
receive corroboration before it is accepted. That
is not to say that the evidence of such witnesses
should be accepted light-heartedly without very
close and careful examination; and so, we
cannot accept Mr Bhasin's argument that the
High Court committed an error of law in
accepting the evidence of the three eye
witnesses without corroboration."
25. On careful perusal of the evidence of PW.5, the
incident as claimed by him is under serious doubt and he
appears to be a chance witness to the prosecution, who
appeared in the scene out of thin air and then disappeared
after noticing the occurrence about which he was called later to
give evidence. Hence, we are unable to accept the evidence of
this witness to prove the guilt of accused.
26. Though the prosecution relied on the evidence of
PWs.1, 7 and 8 to prove the motive for the commission of
crime by the accused that there was civil dispute between the
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deceased Rangavva and the accused by placing Exs.P2 to 4, the
said documents clearly reveal that the civil dispute between the
parties was conceived way back in the year 2006 i.e., nine
years prior to the date of incident. We are aware about the
position of law that, in a case based on the evidence of
eyewitness to the incident, the motive will not play a vital role.
However, as discussed supra, since the prosecution has failed
to place believable evidence of eyewitness, the circumstance of
motive was also not established by the prosecution.
27. Coming to the circumstance of recovery relied by
the prosecution i.e., the recovery of M.Os.12, 15 and 18 under
Ex.P15, admittedly the mahazar Ex.P15 drawn in the backyard
of the house of the accused Nos.1 to 3, the prosecution failed
to place any documents to show that the said house belonged
to accused Nos.1 to 3. Further, this recovery is a joint recovery
at the behest of the accused Nos.1 to 3. PW.4 is the only
witness for all these recoveries. On perusal of Ex.P15, the
same reveals that PW.4 along with the Police moved from one
place to another by conducting mahazars i.e., Ex.P13 the
recovery of cruiser jeep, thereafter, Ex.P15 and Ex.P19 the
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place where the conspiracy was held by the accused to commit
the crime. According to him, on the date of mahazar the Police
called him to the Police Station at about 10:30 a.m. and
thereafter Police took him to conduct all the above mahazars.
The Police failed to obtain the registration certificate of the
vehicle which was used for the commission of the crime.
Further, the recovery of weapons was also not effected as per
law laid down by the Hon'ble Apex Court.
28. The Hon'ble Apex Court in the case of Subramanya
v. State of Karnataka reported in (2023) 11 SCC 255 held
in paragraph No.78 as under:
"78. If, it is say of the investigating officer
that the appellant-accused while in custody on
his own free will and volition made a statement
that he would lead to the place where he had
hidden the weapon of offence, the site of burial
of the dead body, clothes, etc. then the first
thing that the investigating officer should have
done was to call for two independent witnesses
at the police station itself. Once the two
independent witnesses would arrive at the
police station thereafter in their presence the
accused should be asked to make an
appropriate statement as he may desire in
regard to pointing out the place where he is
said to have hidden the weapon of offence, etc.
When the accused while in custody makes such
statement before the two independent
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witnesses (panch witnesses) the exact
statement or rather the exact words uttered by
the accused should be incorporated in the first
part of the panchnama that the investigating
officer may draw in accordance with law. This
first part of the panchnama for the purpose of
Section 27 of the Evidence Act is always drawn
at the police station in the presence of the
independent witnesses so as to lend credence
that a particular statement was made by the
accused expressing his willingness on his own
free will and volition to point out the place
where the weapon of offence or any other
article used in the commission of the offence
had been hidden. Once the first part of the
panchnama is completed thereafter the police
party along with the accused and the two
independent witnesses (panch witnesses)
would proceed to the particular place as may
be led by the accused. If from that particular
place anything like the weapon of offence or
bloodstained clothes or any other article is
discovered then that part of the entire process
would form the second part of the panchnama.
This is how the law expects the investigating
officer to draw the discovery panchnama as
contemplated under Section 27 of the Evidence
Act. If we read the entire oral evidence of the
investigating officer then it is clear that the
same is deficient in all the aforesaid relevant
aspects of the matter."
29. On careful perusal of Exs.P13, 15 and 19 the Police
have failed to recover the incriminating articles within the ambit
of Section 27 of the Indian Evidence Act as held by the Hon'ble
Apex Court.
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30. On careful perusal of charge sheet materials placed
by the prosecution in this case, we are constrained to express
our displeasure about the manner in which the causal
investigation was conducted by the respondent-Police. Though
two murders have been committed on the highway at about
04:00 p.m. on 07.01.2014 as claimed by them and despite
being a Medico-Legal Case, the Police made least efforts to visit
the spot forthwith. Unfortunately, even after lodging the
complaint at about 10:30 p.m., they failed to visit the spot.
They commenced the investigation on the following day i.e.,
08.01.2014 by visiting the spot. Nowhere in the charge sheet
it is forthcoming as to who shifted the corpses to the mortuary
to conduct inquest and postmortem. Nevertheless, the
Investigation Officer totally failed to record the statement of
Srishaila who shifted the injured PW.6 to the Hospital, who
must be an eyewitness to the incident. The Investigating Officer
also failed to record the statement of sister of PW.6 i.e., Pooja
who was along with the deceased and PW.6 at the time of
incident and also sustained minor injuries. The non examination
of this material witness has proved fatal to the prosecution
case. The casual conduct of the Investigating Officer in a
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serious offence of double murder caused serious prejudice to
the prosecution case. Be that as it may, on overall perusal of
the evidence of the witness discussed supra and also the
inefficient investigation conducted by the Investigating Officer
in the case, creates doubts in the case of prosecution about the
genesis of the crime.
31. It is a cardinal rule of criminal jurisprudence that
the burden in the web of proof of an offence would always lie
upon the prosecution to prove all the facts constituting the
ingredients beyond reasonable doubt. If there is any reasonable
doubt, the accused are entitled to the benefit of reasonable
doubt. At no stage of the prosecution case, the burden to
disprove the fact would rest on the defence.
32. The Hon'ble Apex Court in the case of Mousam
Singha Roy v. State of W.B. reported in (2003) 12 SCC 377
has made an observation in respect of moral conviction that,
wandering on strong suspicion is not an option to decide a case
by the Sessions Court and held in paragraph No.27 as under:
"27. Before we conclude, we must place on
record the fact that we are not unaware of the
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degree of agony and frustration that may be
caused to the society in general and the families
of the victims in particular, by the fact that a
heinous crime like this goes unpunished, but
then the law does not permit the courts to
punish the accused on the basis of moral
conviction or on suspicion alone. The burden of
proof in a criminal trial never shifts, and it is
always the burden of the prosecution to prove
its case beyond reasonable doubt on the basis
of acceptable evidence. In a similar
circumstance this Court in the case of Sarwan
Singh Rattan Singh v. State of Punjab [AIR
1957 SC 637 : 1957 Cri LJ 1014] stated thus:
(AIR p. 645, para 12)
It is no doubt a matter of regret
that a foul cold-blooded and cruel
murder should go unpunished. There
may also be an element of truth in the
prosecution story against the accused.
Considered as a whole, the prosecution
story may be true; but between 'may
be true' and 'must be true' there is
inevitably a long distance to travel and
the whole of this distance must be
covered by the prosecution by legal,
reliable and unimpeachable evidence
before an accused can be convicted."
33. The golden thread which runs through the web of
administration of justice in criminal cases is that, if two views
are held on the evidence adduced in the case, one pointing out
the guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be adopted.
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34. Placing reliance on the above judgments discussed
above so also on meticulous examination of the evidence
comprehensively placed on record, we are of the considered
view that the learned Sessions Judge has erred while convicting
the accused for the charges levelled against them. Hence,
interference is required in the impugned judgment passed by
the Sessions Court. In that view of the matter, these appeals
succeed and accordingly, we answer point No.1 in affirmative,
point No.2 in negative and proceed to pass the following:
ORDER
i. The Criminal Appeals No.200169/2017,
200062/2017, 200173/2017 and 200072/2020
are allowed.
ii. The judgment of conviction and order of
sentence dated 31.03.2017 passed in
S.C.No.108/2014 by the III Additional Sessions
Judge, Vijayapur, is set aside.
iii. The appellants/accused are acquitted for the
offences punishable under Sections 143, 147,
148, 302, 307, 201 and 120(B) r/w Section
149 of the Indian Penal Code.
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iv. The concerned Jail Authority is directed to
release the appellants/accused forthwith, if
they are not required in any other cases.
Registry is directed to communicate this order to
the Jail Authority concerned.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
HKV
CT: PS
