[Cites 9, Cited by 0]
Karnataka High Court
Sathish K N vs State Of Karnataka on 6 February, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1994/2019
C/W
CRIMINAL APPEAL NO.1918/2019
IN CRIMINAL APPEAL NO.1994/2019:
BETWEEN:
1. SANDEEP
S/O NARAYAN GOWDA
AGED ABOUT 35 YEARS
OCC: FARMER
R/O KIKKERI
THIRTHAHALLI-577 432.
2. ESHWARANAYAK
S/O TAKANAYAK
AGED ABOUT 44 YEARS
OCC: FARMER
R/O BILLODI
HOSANAGARA-577 418.
3. SHRINIDHI
S/O NAGENDRANAYAK
AGED ABOUT 22 YEARS
OCC: LABOURER
2
R/O BILLODI
HOSANAGARA TALUK-577 418.
... APPELLANTS
(BY SRI. RAJESH RAO K., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY THIRTHAHALLI P.S.
REPRESENTED BY S.P.P.
HIGH COURT COMPLEX
BENGALURU-560 001. ... RESPONDENT
(BY SMT. RASHMI JADHAV, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 26.09.2019 AND SENTENCE DATED
30.09.2019, PASSED BY THE III ADDITIONAL SESSIONS JUDGE,
SHIVAMOGGA, IN S.C.NO.28/2018, CONVICTING THE
APPELLANT/ACCUSED NOS.1 TO 3 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 323 R/W 34 OF IPC AND
SECTION 302 R/W 120B OF IPC.
IN CRIMINAL APPEAL NO.1918/2019:
BETWEEN:
1. SATHISH K.N.,
S/O NAGAPPA GOWDA
AGED ABOUT 44 YEARS
OCC: FARMER
R/O KERODI
THIRTHAHALLI TALUK
SHIVAMOGGA-577432. ... APPELLANT
(BY SRI. DINESH KUMAR K. RAO, ADVOCATE)
3
AND:
1. STATE OF KARNATAKA
BY THIRTHAHALLI P.S.,
REPRESENTED BY S.P.P.
HIGH COURT COMPLEX
BENGALURU-560001. ... RESPONDENT
(BY SMT. RASHMI JADHAV, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.PC BY THE ADVOCATE FOR THE APPELLANT PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 26.09.2019 AND
SENTENCE DATED 30.09.2019, PASSED BY THE III ADDITIONAL
SESSIONS JUDGE, SHIVAMOGGA IN S.C.NO.28/2018,
CONVICTING THE APPELLANT/ACCUSED NO.4 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 R/W SECTION 120B R/W
SECTION 115 OF IPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 31.01.2026 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE VENKATESH NAIK T
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Crl.A.No.1994/2019 is filed by accused Nos.1 to 3 and
Crl.A.No.1918/2019 is filed by accused No.4 questioning the
conviction and sentence for the offence punishable under Section
302 read with Section 120-B of IPC and Section 323 read with
Section 34 of IPC imposing life imprisonment and to pay fine of
Rs.25,000/- for the offence punishable under Section 302 read
with Section 120-B of IPC, in default, to undergo simple
imprisonment for six months and to pay fine of Rs.1,000/- for
the for the offence punishable under Section 323 read with
Section 34 of IPC, in default, to undergo simple imprisonment for
15 days.
2. The factual matrix of case of the prosecution before
the Trial Court is that on 03.10.2017 at about 8.45 p.m., when
C.W.1-Ashwitha was with her husband deceased Hareesha and
daughter Anwitha in their house, the accused Nos.1 to 3 came
there with common intention to commit murder of Hareesha and
C.W.1 called Hareesha and made him to come outside the house
on the pretext of demanding sand and accused No.1-Sandeep
assaulted Hareesha on his neck with long and accused No.2
assaulted the deceased on his stomach with long and on seeing
this incident, when C.W.1 raised hue and cry, the accused No.3
kicked C.W.1 with his leg and held her neck and assaulted her
and made an attempt to kill her. On hearing the altercation,
C.W.2 Manjunatha K.S., C.W.3 Harisha K.S. and C.W.4 Mahesha
K.S. came running to the house of C.W.1. On seeing them, the
accused Nos.1 to 3 ran away from the spot by giving threat to
C.W.1 that they would kill her and thereafter, Hareesha was
shifted to SJC Hospital, Thirthahalli in an ambulance and he
succumbed to the injuries while taking treatment in the hospital
at 10.15 p.m. It is the case of the prosecution that accused No.4
plotted conspiracy to eliminate Hareesha and gave supari to
accused No.1 to the tune of Rs.1,26,000/- and accused No.1
availed the services of accused Nos.2 and 3 to eliminate the
deceased.
3. Based on the complaint of P.W.1, police have
registered the case immediately and thereafter, investigated the
matter and filed the charge-sheet against accused Nos.1 to 4
invoking the offence punishable under Sections 323, 504, 506,
307, 302 and 120-B read with Section 34 of IPC. The accused
did not plead guilty and claimed for trial.
4. During the course of trial, the prosecution examined
the witnesses P.Ws.1 to 17 and got marked Exs.P1 to P33 and
material objects M.Os.1 to 19. After completion of the
prosecution evidence, the accused was subjected to 313
statement and all of them have denied the incriminating
circumstances and they did not choose to lead any defence
evidence.
5. The Trial Court having considered both oral and
documentary evidence, particularly considering the evidence of
the Doctor-P.W.14, comes to the conclusion that it is a case of
homicidal death. The Trial Court also answered point Nos.1 to 3
in coming to the conclusion that there was conspiracy and
committed murder of deceased causing injury to P.W.1.
However, the Trial Court answered point Nos.4, 5, and 6 as
'negative' and comes to the conclusion that the prosecution not
proved the offence under Sections 307, 504 and 506 read with
Section 34 of IPC. The Trial Court comes to the conclusion while
answering point Nos.7 and 8 that accused No.3 caused voluntary
hurt to P.W.1. The Trial Court having convicted accused Nos.1 to
4, imposed the sentence and the same is challenged before this
Court.
6. The main contention of learned counsel appearing for
accused Nos.1 to 3 in Crl.A.No.1994/2019 before this Court is
that though prosecution relies upon the evidence of P.Ws.1 to
17, it is clear that P.W.1 had lodged the complaint against
unknown persons and incident had taken place on 03.10.2017 at
8.45 p.m. The accused Nos.1 to 3 were arrested on 16.10.2017
and accused No.4 was arrested on 17.10.2017. The counsel
would vehemently contend that Ex.P1 does not disclose anything
about the motive for committing the offence and it only speaks
that incident had taken place and the accused inflicted the injury
and the deceased was shifted to hospital and he passed away at
10.15 itself. It is specifically mentioned that when her husband
did not provide sand to them, immediately, they inflicted injury
with machete and committed the murder and lodged complaint
against unknown persons to take action against them. The
counsel would submit that, in the complaint, it is mentioned that
since the sand was not given, murder has taken place. The
counsel would submit that the evidence of P.W.1 cannot be
accepted for the reason that she has given complaint against
unknown persons. But, subsequently, Test Identification Parade
was conducted and she identified the accused persons. In the
cross-examination, she categorically admits that before Test
Identification Parade, photos of the accused were published in
the newspaper as well as in the media, hence, the evidence of
P.W.1 cannot be believed regarding identity of the accused
persons is concerned.
7. The counsel also contends that the prosecution relies
upon the evidence of P.W.3 i.e., last seen theory and he
identified the accused persons before the Court. But, his
statement was recorded on 20.10.2017 after the arrest of the
accused and his evidence also cannot be believed. The other
witnesses P.W.2, P.W.4 and P.W.5 are spot mahazar witnesses,
P.W.6 is inquest witness, P.W.7 is the witness for seizure of
nighty of P.W.1, P.W.8 is owner of scooty, who has turned
hostile. P.W.9 is the Doctor, who treated the injured P.W.1 and
issued the certificate, P.W.10 prepared the sketch of the spot
and P.W.11 and P.W.14 are the recovery witnesses of material
objects at the instance of accused Nos.1 and 2 and their
evidence is not reliable and consistent. The counsel would
contend that P.W.10 is the Doctor, who conducted Test
Identification Parade and though, P.W.13-Tahsildar, who
conducted Test Identification Parade was examined, the same is
belated and in view of admission on the part of P.W.1, the same
cannot be relied upon. P.W.15 is the Investigating Officer and
P.W.16 is In-charge Deputy Director RFSL and her evidence is
that there was no blood group of the accused persons and her
evidence is that only an 'O' blood group was found in the seized
articles. P.W.17 is the witness, who arrested the accused. The
counsel also contend that Test Identification Parade was
conducted after two months and though, helmet was seized at
the spot, no blood stains were found on the same. The counsel
also would vehemently contend that, in order to prove the
conspiracy, no material is recovered and the evidence of P.W.3
cannot be believed.
8. Learned counsel appearing for the appellant in
Crl.A.No.1918/2019 for accused No.4 would vehemently contend
that the evidence of P.W.3 cannot be believed with regard to
conspiracy and his statement was recorded afterthought
subsequent to arrest of the accused persons and no reason was
assigned for arrest. The counsel would contend that there is no
recovery from accused No.4 and motive is also not proved and in
the cross-examination, P.W.1 categorically says that there is no
civil litigation. The Investigating Officer also not speaks anything
about conspiracy. But, accused No.4 was arrested in the house
and the evidence of P.W.3 cannot be believed and he is the only
witness, who speaks about conspiracy.
9. In reply to this argument, learned Additional SPP
appearing for the respondent-State would vehemently contend
that P.W.1 is an eye witness and apart from that, P.W.1
identified the accused persons when the Test Identification
Parade was conducted by P.W.13 in the jail and the Court also
has to take note of contents of Ex.P1. She also would submit
that spot mahazar is very clear that chilly powder was found in
the spot. She would vehemently contend that the evidence of
recovery witnesses P.W.11 and P.W.14 is consistent that jerkin
and cap of accused No.1 was seized and also with regard to
seizure of cloth and weapon from accused No.2. The evidence of
P.W.3 is very clear that he had witnessed all of them and there
was no need to give statement immediately after the incident
and only after the arrest itself P.W.3 came to know about
involvement of these accused, who were discussing the same.
The evidence of P.W.16, In-charge Deputy Director RFSL is very
clear that blood stained cloth and weapons which were seized at
the instance of the accused were stained with blood and FSL
report Ex.P31 is also very clear. Though, it is contended that
procedure for conducting the Test Identification Parade was not
followed, but it is very clear that the evidence of Tahsildar is that
he secured other persons and made the accused persons to
stand in the middle of other persons and thrice P.W.1 identified
each of the accused persons. She would submit that chilly
powder was found at the spot and Ex.P4 shows the same and
even chilly powder was recovered from the jerkin pocket of
accused No.1. In the cross-examination of P.W.1, she has not
disputed with regard to motive and she speaks about the motive.
The witnesses P.W.11 and P.W.14 speak about recovery of
machete and also jerkin and spot mahazar witness P.W.4
categorically says that chilly powder was seized while drawing
mahazar in terms of Ex.P4. P.W.11 also categorically says that
when jerkin was seized at the instance of accused No.1, there
was chilly powder.
10. In reply to this argument of learned Additional SPP
appearing for the respondent-State, learned counsels appearing
for accused Nos.1 to 4 would vehemently contend that evidence
available on record cannot be accepted and the same not
inspires the confidence of the Court. But, the Trial Court
committed an error in convicting the accused Nos.1 to 4 in the
absence of corroborative piece of evidence.
11. Having heard learned counsels appearing for the
appellants, learned Additional SPP appearing for the respondent-
State and having perused the evidence available on record both
oral and document, we have given our anxious consideration to
both oral and documentary evidence available on record and the
points that would arise for our consideration are:-
(i) Whether the Trial Court committed an error in
convicting and imposing sentence on accused
Nos.1 to 4 for the charges levelled against
them for the offence punishable under Sections
120-B, 302 and 323 read with Section 34 of
IPC?
(ii) What order?
Point No.(i):
12. The case rests upon direct evidence as well as
circumstantial evidence. The prosecution mainly relies upon the
direct evidence of P.W.1, who had witnessed the incident and
also sustained injury in the incident. It is also her statement on
03.10.2017 while lodging the complaint at 10.30 to 11.30 p.m.
that at 8.45 p.m., when she was feeding her daughter and her
husband was taking food, some people called, hence herself and
her husband switched on the light and found three persons. But,
they were unknown to her and out of them, one was short and
he was wearing blue colour shirt and other two were tall and one
was wearing jerkin and another was wearing cap and it appears
that they were known to her husband and the person, who is
shorter asked her husband to provide sand from Ramesh and
Govindha and they replied that they are not having any sand,
but they insisted to give sand from her husband and immediately
he replied that he will not give sand and the same is not for sale
and go and ask the said Ramesh and at that time, the person
who was wearing cap suddenly inflicted the injury on the back of
neck of her husband and another person, who is also a tall
person, he inflicted injury on the abdomen of her husband and
immediately, she made hue and cry and tried to pacify him and
the person, who is a short man kicked her and also held her
neck and pressed and did not allow her to even scream at the
spot. Having heard the screaming sound, neighbourers
Manjunatha, Harisha, Mahesha rushed to the spot and
witnessing the same, all the three ran away from the place,
stating that they will not leave her. Immediately, Manjunath,
Harisha and others shifted her to Thirthahalli SJC Hospital and
she also took treatment. But, ultimately her husband succumbed
to the injuries at 10.15 p.m. It is stated that when her husband
refused to give sand, with an ill-will, inflicted injury. Hence,
requested to take action against the unknown person.
13. Having considered Ex.P1, it is very clear that overt
act of each of accused persons is witnessed by P.W.1 and she
has narrated how an incident has taken place in the complaint.
The Court also has to see the evidence of P.W.1 and she has
reiterated the same in her evidence and also identifies her
signature in the complaint Ex.P1 and reiterates that she was not
having acquaintance with the accused. However, she has given
description of accused persons in the complaint. The police also
seized her nighty on 09.10.2017 by drawing mahazar in terms of
Ex.P2 and identifies her signature and also identifies M.O.1. It is
also her evidence that she was called to District Jail and Test
Identification Parade was conducted and she identified the
accused when the Test Identification Parade was conducted by
the Tahsildar and identifies the signature in Ex.P3 and procedure
followed in conducting the Test Identification Parade is also
narrated and she identified accused Nos.1 to 4 and says that
accused Nos.1 to 3 came near her house and inflicted injury and
accused No.4 was also identified in the jail. It is also stated that
accused No.4 got killed her husband in respect of the land which
is located behind their house. This witness was subjected to
cross-examination. It is elicited in the cross-examination that
her husband went to jail in view of complaint given by the first
wife and suggestion was made that there were cases against her
husband in respect of theft of sandal and witness says old cases
were there, but says that the premises was fenced. It is her
evidence that when neighbourers rushed to the spot, accused
persons ran away from the spot. The police came and conducted
the mahazar and visited twice or thrice near her house and the
incident has come in the newspaper. It is also stated that in the
media, photos of the accused were also shown. It is elicited that
she alone went to jail and Test Identification Parade was
conducted in between 5.00 to 5.15 and as soon as Test
Identification Parade was conducted, signatures were taken and
she was sent out and called again and again for continuous Test
Identification Parade. It is suggested that accused persons never
asked sand with her husband and accused persons also not
inflicted any injury and all the suggestions are denied. It is
suggested that nowhere accused Nos.1 to 4 are connected to
this incident and the same was also denied. In the cross
examination by accused No.4 counsel, witness admits that
accused No.4 is cousin of her husband and she says that for the
land, accused No.1 got killed her husband. But, she did not
make the statement before the police and there was no civil case
between her husband and accused No.4. It is suggested that
accused No.4 was not connected to this case and she is falsely
deposing and the same was denied.
14. Having considered this evidence, it is very clear that
she has narrated how an incident has taken place and she is an
eye witness to the incident and immediately after the death of
her husband, she gave the statement between 10.30 to 11.30
p.m. and narrated each of overt act of the accused persons and
also categorically given the description of accused Nos.1 to 3
that two were tall and one was short and the person who was
short itself assaulted her and the fact that she also sustained
injury is not in dispute and wound certificate is also produced.
Hence, it is clear that she is an eye witness to the incident. No
doubt, learned counsel appearing for accused Nos.1 to 3 got
elicited the answer in the cross-examination that the incident
was published in the newspaper and also she says that photo of
the accused also came in the newspaper, this Court has to take
note of the same. Though, this answer is given and they were
arrested after 13 days and the incident has taken place on
03.10.2017 and accused Nos.1 to 3 were arrested on
16.10.2017 and accused No.4 was arrested on 17.10.2017. But,
nothing is elicited in the cross-examination that before Test
Identification Parade, the same was published in the newspaper.
Hence, it cannot be contended that P.W.1 has already seen the
photos prior to Test Identification Parade. Though, this answer is
elicited, it is not specific that she had seen the photos prior to
the Test Identification Parade. Hence, the very contention of
learned counsel appearing for accused Nos.1 to 4 that she had
seen the accused persons in the media prior to Test
Identification Parade cannot be accepted and no such question
was put to the witness P.W.1 that prior to Test Identification
Parade, photos were published and also cross-examined to the
effect Test Identification Parade was conducted. She also
categorically identifies the accused persons thrice when they
were made to stand along with other persons and though
suggestion was made that such incident has not taken place, but
witness categorically denied the same.
15. With regard to the motive is concerned, no doubt, in
the complaint, it is stated that when her husband did not agree
to provide sand, they inflicted the injury, in Ex.P1, not stated
with regard to motive of backyard land dispute between accused
No.1 and accused No.4 is concerned and motive is stated for
non-supply of sand. But, accused persons were apprehended
after 13 days and then only comes to know about involvement of
accused Nos.1 to 3 and accused No.4 was arrested on the next
day, in view of voluntary statement of accused Nos.1 to 3. When
such being the case, question of mentioning the motive in the
complaint does not arise. However, P.W.1 categorically deposed
before the Court that accused No.1 got killed her husband in
view of dispute with regard to land which is located behind their
house. No doubt, in the cross-examination of P.W.1, it is elicited
that she came to know that land which is located behind their
house, the accused No.4 killed her husband, but she did not
make such statement before the police. However, she admits
that there was no civil dispute and also categorically says that
her husband was killed in view of land dispute which is located
behind their house. This evidence was not rebutted by accused
No.4 counsel in the cross-examination, except eliciting that no
civil case. But, with regard to dispute in respect of the property
which is located behind their house, the same is not denied in
the cross-examination of P.W.1. Hence, it is very clear that there
was a motive to commit the murder and accused No.4 was
having motive to eliminate the deceased through accused Nos.1
to 3.
16. Now coming to the evidence of last seen witness,
this Court has to take note of evidence of P.W.3. The P.W.3, in
his evidence says that on 03.10.2007, when he was returning
near Bobby Cross, Brahma Lingeshwara temple, accused Nos.1
and 4 and other two persons parking the kinetic bike were
talking to each other and since there was street light, he
identified the accused persons and they all belong to the same
village. When he overheard their talk, accused No.4 was telling
that this time we should not leave him and he came back to
house. But, on the same day, Hareesha was killed in the night at
10.00 p.m. and he identifies that those persons were there near
Brahma Lingeshwara temple and identifies the accused persons
before the Court. It is elicited that he was having acquaintance
with the deceased from the last 15 years and he used to visit
their house and he came to know about his murder on the same
night and also attended the cremation. The police also came to
the spot, at that time, he did not disclose the same to the police
and also he did not mention before the police that accused Nos.2
and 3 were seen in the village. But, he made the statement
before the police that he witnessed them since there was street
light in the road. He also admits that he was not aware of the
dispute between accused and deceased and statement was not
made before the police to that effect. He also says that he did
not notice the colour of the scooty, but he says that accused
persons were talking in loud voice and says that he made the
statement on 20.10.2017 before the police.
17. Learned counsel appearing for the appellants would
vehemently contend that the evidence of P.W.3 cannot be
believed. But, the evidence of P.W.3 is very consistent with
regard to witnessing the accused Nos.1 to 4 in a particular spot.
No doubt, P.W.3 immediately did not mention the same to the
police when they came to the spot, but at that time, he was not
aware of, who are all the culprits. But, accused Nos.1 to 3 were
arrested on 16.10.2017 and accused No.4 was arrested on
17.10.2017 and his statement was recorded within three days of
the arrest of the accused i.e., on 20.10.2017. When the accused
persons were arrested, then only he come to know about
involvement of these accused and then he made the statement
before the police immediately and there was no delay in making
such statement that all of them were talking with each other. No
doubt, learned counsel appearing for the appellants would
contend that when accused No.4 was telling to accused No.1 not
to leave him this time, he would have made the statement, but
when the involvement of accused Nos.1 to 4 was not known to
anyone till their arrest, question of doubting the role of accused
does not arise. Hence, the contention of learned counsel
appearing for the appellants cannot be accepted.
18. The case is not only based on the evidence of
eyewitness, but also the circumstantial evidence. The case of the
prosecution is that immediately after the arrest of the accused,
voluntary statement was recorded and they disclosed that they
committed the murder and they kept their cloth in a hidden
place. Hence, requested the panch witnesses to accompany
them and in order to prove the same, the Investigating Officer,
who has been examined before the Court categorically says that
voluntary statement was recorded and recovery is made at the
instance of the accused in the presence of P.W.11. The P.W.11
deposes before the Court that he was a panch witness, who on
the direction of the superior on 17.10.2017 went to police station
to assist as pancha at 9.00 a.m. to Thirthahalli police station and
C.W.22 and accused Nos.1 to 4 were there in the police station,
police took both of them and also the accused in a jeep and the
accused No.1 led to his house, where he had kept the machete
in a manure bag in the cow shed by the side of the house and so
also his jerkin and topi and the police have drawn the mahazar
by seizing the same and in the said jerkin, there was chilly
powder. Both of them have signed the same and he also
identifies machete, jerkin and topi as M.Os.8, 9 and 10. It is also
his evidence that accused No.4 also led both of them and also
the Investigating Officer near Brahma Lingeshwara temple and
showed the place where the accused persons had met and
panchanama was drawn in terms of Ex.P12 and identifies the
signature as Exs.P12(a) and P12(b). The witness also identifies
four photographs which are marked as Ex.P13.
19. It is his evidence in the cross-examination that from
the police station to the house of accused No.1, it is around 22
to 23 km. and all of them went in a jeep. In the said jeep,
himself, CPI, C.W.22 and Police Constable were there and in
another jeep, accused, Sub-inspector and other police staff were
there and they followed the accused and the cow shed was on
the north of house of accused No.1 and the cow shed was not
attached to the house. But there was no door and wall to said
cow shed and they could not find the machete and jerkin till they
were produced and other accused persons were also there when
accused No.1 led them and accused No.1 removed the bag. But,
at that time, he was handcuffed. It is also his evidence that one
portion of the jerkin was red in colour and M.Os.9 and 10 were in
the said bag and he cannot say how it was recovered, since he
had received a phone call at that time and the bag was also
seized which was containing M.Os.8 to 10. They left at around
11.10 a.m. from the house of accused No.1 and at around 12.10
p.m., they reached near Bobby Cross Temple and he cannot say
which jeep was ahead of their vehicle and none were there near
temple and people were also not gathered. It is suggested that
no direction was given by the superior and accused not led to
any place and seized M.Os.8 to 10 and Ex.P13 is no way
connected to accused No.1 and the same was denied. It is
suggested that he had signed the same in the police station and
the same was denied. Learned counsel also made the suggestion
that accused No.4 not led near Brahma Lingeshwara Temple and
the same was denied.
20. The other witness is P.W.14. In his evidence, he says
that on 16.10.2017, based on the direction of his superior, he
went to the Office of Circle Inspector and the Circle Inspector
showed the accused and conducted personal search and on
personal search, at the instance of accused No.1, they found
Rs.9,000/-, at the instance of accused No.2, Rs.3,500/-, at the
instance of accused No.3, Rs.1,000/- and accused No.1 was
having two wheeler document and ATM card and the police
seized the same in between 7.00 to 8.00 a.m. and C.W.17 also
signed the same and he identifies the signature as Ex.P17(a). It
is his evidence that the accused person took them and also the
police near Shankadahole i.e., near the house of the deceased
and at the distance of 100 feet from the house of accused No.2,
he had produced the machete and the same was seized by
drawing the mahazar and he identifies M.O.11 and mahazar was
drawn in between 11.30 to 1.15 p.m. It is also his evidence that
accused person took them near Brahma Lingeshwara temple and
near the sand, the accused produced his jerkin which was kept
near the sand in a plastic bag and the same was seized in
between 1.45 to 2.15 p.m. and he identifies the same as
M.O.19. He also identifies the signature in Ex.P18(a) and 18(b)
and also identifies accused Nos.1 to 3 and also ATM card,
documents and RC card as M.Os.12 to 14 and also an amount of
Rs.9,200/- which was recovered from accused No.1 containing
Rs.500/- denomination 18 in number and Rs.100/- denomination
2 in number. The same is marked as M.O.15 and so also
Rs.3,500/- denomination of Rs.500/- in total 7 notes marked as
M.O.16 and M.O.17 and photographs 6 in number marked as
Ex.P19.
21. This witness was subjected to cross-examination.
C.W.17 is the resident of Balebailu and his house is located at
the distance of 1½ k.m. from the police station and both of them
went together and accused persons were there in the police
station and they were handcuffed and personal search was
made, but he is not aware of their names, but amount was there
in their pocket and he cannot say in which pocket notes were
there. He cannot say the number of the notes of denomination of
Rs.500/- and Rs.100/- and police seized the same. They went in
two jeeps and accused persons were there in the front jeep and
took 15 minutes to go to his house from the station and his
relatives and villagers were and he cannot say in which jeep the
police had kept the recovered M.O.11 and seized the machete in
white colour cloth and took their signature and pasted the same
on the cover and suggestion was made that they have not taken
either himself or any panch witness and the same was denied. It
is suggested that Exs.P17 and P18 were signed at police station
and the same was denied and also suggestion was made that
Ex.P19 was created for the case by the police and the same was
denied. It is suggested that ATM, RC card and other articles not
belongs to the accused and the same was denied.
22. Having considered the evidence of P.W.11 as well as
P.W.14, it is very clear with regard to seizure of machete and
cloth i.e., jerkin and also cap and nothing is elicited from the
mouth of these witnesses to disbelieve the case of the
prosecution. The evidence of P.W.15 is very clear that mahazar
was drawn in terms of Exs.P6, P4, P2 and P20 and he
categorically says that accused Nos.1 to 3 were arrested near
Sringeri Temple and produced before the Investigating Officer in
terms of Ex.P20 and he identifies his signature and also
collecting of documents and seizure of money from the accused
persons and drawing of mahazar Ex.P17, so also voluntary
statement in terms of Exs.P22 and 23 of accused Nos.1 and 2
and accused Nos.1 to 3 were arrested on 16.10.2017 and
accused No.4 was arrested on 17.10.2017 and report was given
in terms of Ex.P25 and identifies his signature. He also speaks
about recovery at the instance of accused No.1 by drawing
mahazar in terms of Ex.P12 so also handing over the same to
the FSL. In the cross-examination, it is suggested that M.Os.2
and 4 not belongs to the accused and the same was denied and
he did not insist for Test Identification Parade with the Taluka
Magistrate.
23. Having considered the evidence of P.W.11, P.W.14
and P.W.15, their evidence is consistent with regard to voluntary
statement, recovery of money as well as the report given for
arrest in terms of Ex.P20 and Ex.P25 of accused Nos.1 to 3 and
accused No.4 and taken to custody is also not disputed seriously
in the cross-examination except suggestion. Having taken note
of this recovery evidence as well as the report of FSL in terms of
the evidence of P.W.16, it is very clear that item No.1 containing
one cement bag and item No.2 soil and all details are given item
Nos.1 to 10 including shirt, pant, nighty, machete, jerkins and
subjected the same for chemical examination, except item No.3,
in all the articles, blood stains were detected. In the cross-
examination, suggestion was made the cover of M.O.3, there is a
rubber seal of biology section, but there is no signature of the
person, who received the articles. He also admitted that seal and
signature of the cover of the articles put by their office before
examination. The witness voluntarily states that even after
examination also, they put signature and seal.
24. Having considered the evidence of P.W.16 as well as
recovery witness evidence of P.W.11, P.W.14, P.W.15 and report
is given in terms of Ex.P31, except the sample mud, all the items
are blood stained and report is also positive. The evidence of
P.W.11 and P.W.14 is consistent with regard to recovery at the
instance of accused Nos.1 and 2 having seized incriminating
articles of weapons which were used for committing the offence
and also the clothes which they were worn at the time of the
incident and so also the recovery. The evidence of P.W.15-
Investigating Officer is clear that he had recorded the voluntary
statement of accused persons after their arrest and the accused
persons only lead the punch witnesses and Investigating Officer
and staff of the Police and produced the incriminating articles
and the same are also blood stained and RFSL report-Ex.P.31 is
also very clear in respect of all the items with blood stains of the
deceased was found and there is no any explanation on the part
of the Investigating Officer when the incriminating evidence is
found and accused ought to have given explanation in 313
statement with regard to the blood stains are found in their cloth
and no such explanation. Having considered the RFSL report-
Ex.P.31 and also the evidence of P.W.16 is consistent with
regard to the conducting of test and hence, this Court cannot
doubt the evidence of P.W.11, P.W.14, P.W.15 and P.W.16 and
the same is proved regarding recovery is concerned.
25. The Court has to take note of conduct of the accused
that immediately after the incident, accused No.1 to 3 were not
in town and their voluntary statement Ex.P.22 to Ex.P.24 is very
clear and no doubt the voluntary statement cannot be relied
upon except the recovery and the same is not admissible in
respect of whatever the statement made by them immediately
after their arrest, but Court has to take note of the evidence of
P.W.17.
26. The P.W.17 in his evidence he says that he has
recorded the statement of P.W.1 immediately having come to
know about the incident and he rushed to the S.J.C Hospital,
Thirthahalli and recorded her statement and issued FIR in terms
of Ex.P.33 and statement of the injured eye witness P.W.1 is in
terms of Ex.P.1. It is also the evidence of P.W.17 that after
registering the case and issuing the FIR, papers were entrusted
to C.W.44 that is P.W.15 and P.W.15 appointed him and his staff
to apprehend the accused persons, accordingly, apprehended
accused No.1 to 3 at Sringeri Sree Sharadamba Temple near in a
parking slot at 04:30 a.m., and they were produced before the
Investigating Officer at 05:45 a.m., and given the report in
terms of Ex.P.20 and so also on 17.10.2017, apprehended the
accused No.4 from his house and given the report in terms of
Ex.P.25. In the cross-examination, except the suggestions,
nothing is elicited and only suggestion was made that A1 to A3
were not arrested at Sringeri temple near and the said
suggestion was denied and hence, Court has to take note of
conduct of accused No.1 to 3, after the incident, they left the
village but they were arrested on 16.10.2017 after 13 days and
they were not in the village, but they were arrested out side and
Court has to take note of the accused persons conduct and the
same is also aiding factor to prosecution.
27. The Court also has to take note of evidence of P.W.1
and her evidence is very clear with regard to the overt act is
concerned and in her statement immediately from 10:30 to
11:30 specific overt act allegation is made with the P.W.17 that
person who is very short, kicked her and pressed her neck and
he did not allow her to scream at the spot, but specific overt act
is alleged against other two accused persons who are tall
persons and also narrated that accused have demanded to
provide sand, but when the husband did not agree to give,
suddenly inflicted injury with the machete on the neck as well as
abdomen. Hence, it is very clear that the accused persons came
with preparation to eliminate the deceased and there was a
motive to eliminate him. No doubt she was not having
acquaintance with accused No.1 to 3, but she has given all the
descriptions in respect of the accused persons and the same is
also re-iterated in her evidence and the statement of Ex.P.1
made with P.W.17 is very clear with regard to the overt act of
each of the accused persons and the same is deposed before the
Court and even identified the accused persons before the Court
as well as when the Test Identification Parade is conducted. This
Court while considering the evidence of P.W.1 with regard to the
admission that it has come in media, but no specific question
was put to the witness that whether their photographs were
published in media prior to the identification or subsequent to
the identification and hence, the said stray admission that it has
come in the media will not comes to the aid of the accused and
no doubt if it is come in the media prior to test identification and
then test identification is insignificant and the answer elicited is
that in respect of the incident is concerned, it has come in the
media and though a stray admission is given that it has come in
media photographs, but not put specific question that it has
come in the media prior to the Test Identification, no doubt Test
Identification is conducted almost after 2 months and also the
Court has to take note of the fact that accused persons were
arrested on 16.10.2017 and even after 13 days of the incident,
they were arrested and even while cross examining the
Tahasildar who has been examined as P.W.13, no suggestion
was put to the P.W.13 that before conducting the test
identification parade, the photographs of the accused persons
were splashed in media and only suggestion was made to
P.W.13 that he did not visit district jail and not conducted the
Test Identification Parade and Ex.P.3 is prepared in his office
and all these suggestions have denied and if such question is put
to the P.W.13 that prior to conducting of T.I parade,
photographs of the accused were splashed in media then there
would have been force in the contention of the learned counsel
for the appellant, but prosecution not only relies upon the
evidence of P.W.1 as eye witness and also relies upon the
circumstantial evidence particularly with regard to the last seen
theory as well as recovery and the same has been proved
considering the evidence of P.W.11, P.W.14, P.W.15 and P.W.16
and FSL report is also positive in respect of the blood stains of
the deceased were found in the cloth of the accused and hence,
the very contention that identification of the accused
subsequently to the splashing of the photographs of the accused
in media and to that effect no positive evidence. Hence, the
contention of the counsel cannot be accepted.
28. Now the arguments of the learned counsel for A4 is
that in order to prove the conspiracy against A4, there is no any
material and no recovery against A4 and no motive, but P.W.1
categorically in her chief evidence deposes that accused No.4 got
killed her husband in respect of the dispute with regard to
backyard of their house and the same came to her knowledge.
No doubt, at the first instance, motive is stated that they did not
give the sand since at the time of the incident, accused persons
pretended that they came to get the sand, but they came with
weapons with an intention to take away the life and demanding
of sand is only a reason for calling the deceased outside the
house and hence, she has stated that at the first instance that
motive for killing her husband is non giving the sand, but she
came to know subsequent to the arrest of accused No.1 to 3 and
accused No.4 that the reason for committing the murder and
motive is that there was a dispute in respect of the backyard
property of the house of deceased. In the cross-examination of
P.W.1 except eliciting from the mouth of P.W.1 that she did not
make statement before the Police that there was a motive, but
the same came to her knowledge subsequently during the course
of investigation. No doubt it is elicited that after her marriage,
no dispute and suggestion was made that accused No.4 is no
way connected to the same and she is falsely deposing, but the
same is categorically denied, but no suggestion is made to the
P.W.1 that there was no dispute in respect of the backyard
property of the house of P.W.1 between A4 and the deceased
and her evidence is not denied in the cross-examination of
P.W.1.
29. The P.W.6 also in his evidence categorically deposes
that after 1 week, he came to know that accused No.1 to 4 have
committed the murder in connection with the property. In the
cross examination of this witness, except making suggestion that
he is falsely deposing that there was a galata in the respect of
the property and not even suggested to the P.W.6 that there was
no any such dispute with the deceased and A4. Apart from that
evidence of P.W.5 is very clear that he had witnessed all the
accused No.1 to 4 in a particular place on the very date of
incident, but he did not makes a statement before the Police
immediately, but he was also not aware that who had killed the
deceased, after the arrest of accused No.1 to 3 and then accused
No.4, on the very next day i.e., on 16.10.2017 and 17.10.2017,
he came to know that these accused persons only committed the
murder and immediately he made the statement within 3 days of
their arrest that is on 20.10.2017 and the evidence of P.W.3 is
also consistent and nothing is elicited that he did not witness the
accused persons together except eliciting the answer that he did
not make the statement immediately to the Police and hence,
the very contention of the counsel appearing to the accused that
the accused No.4 was not involved in the incident cannot be
accepted and the fact that A1 is close relative of the A4 that is
sister's son of A4 and also the recovery is made at the instance
of accused i.e., supari amount which was distributed among the
accused No.1 to 3 and also mahazar was drawn to that effect.
30. The P.W.14 clearly deposes with regard to the
amount was recovered from these accused persons, that is from
accused No.1 an amount of Rs.9,200/- and from accused No.2
an amount of Rs.3,500/- and from accused No.3 an amount of
Rs.1,000/- and even P.W.14 categorically deposes the
denomination of notes which were seized at the instance of
accused No.1 to 3 and when all these materials taken note of
and coupled with evidence of P.W.15-Investigating Officer
regarding recovery at the instance of accused persons that is
supari amount and categorically made their statement before the
Investigating Officer that they are going to produce the money
which they have received from accused No.4 that he was
entrusted the work to eliminate the deceased and hence, the
very contention of the counsel appearing for the
appellant/accused No.4 that no material against him cannot be
accepted. No doubt there was no any recovery at the instance of
accused No.4, but Court has to take note of Court cannot expect
the direct evidence in respect of involvement of accused No.4,
but Court has to take note of circumstantial evidence available
on record and all these circumstances goes against the accused
No.4 and hence, this Court do not find any error on the part of
the Trial Court in appreciating both oral and documentary
evidence i.e., eyewitness evidence of P.W.1 and also the
evidence of other witnesses including last seen witness, recovery
and even considering the circumstantial evidence also, the chain
link is established against the accused persons. In order to
impeach the very testimony of seizure mahazar witnesses
P.W.11 and P.W.14, nothing is elicited. Having considered the
evidence of the Doctors and also the evidence of FSL expert,
clearly established that accused No.1 to 3 have committed
murder of Hareesha at the instigation of accused No.4 by
plotting conspiracy near Gobby Cross Brahma Lingeshwara
temple. No doubt there are some minor discrepancies in the
evidence of prosecution witnesses, but the same will not go into
the very root of the case of the prosecution and the minor
discrepancies bound to occur and Court cannot expect
mathematical niceties while examining the prosecution
witnesses. The evidence of each witnesses is consistent and
there was no any material before the Court that prosecution
witnesses having an enmity against accused No.1 to 4 to falsely
implicate the accused persons. Nothing is elicited in the cross-
examination of prosecution witnesses that there was an enmity
between the accused persons and the prosecution witnesses.
31. The counsel appearing for the appellants also
vehemently contend that evidence of P.W.3 cannot be believed
with regard to the conspiracy since he has not given the
statement immediately to Police and his evidence cannot be
doubted on the ground that he has not acted in a particular
manner and this Court already pointed out that he came to know
about the involvement of accused No.1 to 4 only after their
arrest and immediately he gave the statement before the Police
with regard to the conspiracy is concerned and there is no any
inordinate delay in recording the statement of P.W.3. The P.W.3
categorically says that he is also having an acquaintance with
accused No.1 and 4 and also he had seen accused No.2 and 3 in
the village.
32. The counsel would contend that when the P.W.3 has
overheard that this time not to leave, but it is not his evidence
that he was telling in respect of the deceased and if it is
overheard that A4 was telling in respect of deceased, then he
would have intimated the same to the Police immediately even
prior to the arrest, but when the evidence of P.W.3 is very clear
that he overheard the say of A4, not to leave him this time and
there was no any word to take away the life of deceased, but
only he overheard that this time not to leave him and hence, the
evidence of P.W.3 cannot be disbelieved, even to this witness,
not suggested anything that he is having an ill-will against
accused No.1 to 4. He specifically deposes before the Court that
he had seen the accused No.1 to 4 with the help of streetlight,
but he also categorically says that he was not aware of the
dispute between the deceased and the accused No.4 and he has
not given any such statement before the Police and only
suggestion was made that he did not witness the accused No.1
to 4 near the Brahma Lingeshwara temple and the same was
denied, but he categorically says that he is a distant relative of
both the deceased as well as accused No.4 and when A4 is also
the distinct relative of P.W.3, question of deposing against him
also doesn't arise and also Court cannot expect that P.W.3 is
giving evidence against accused No.4 when the answer of P.W.3
is very clear that he is relative of both deceased as well as
accused. The Trial Court also taken note of there is no any
enmity is elicited from the mouth of P.W.3 to disbelieve his
evidence. The evidence of P.W.3 clearly establishes the
involvement of accused No.4 in the commission of conspiracy,
abatement and murder of deceased.
33. The P.W.2 and P.W.4 are the mahazar witnesses of
the spot and seized the articles at the spot and they have also
blood stained and report Ex.P.16 is very clear and so also the
evidence of witnesses P.W.5 is in respect of inquest and P.W.4 is
in respect of the spot mahazar and case of the prosecution is
also that chilli powder was lying at the spot and the same is
evident in Ex.P.4. Apart from that chilli powder was seized at the
instance of the accused when the jerkin was seized wherein also
chilli powder was found and document of Ex.P.17, Ex.P.18 and
also the evidence of P.W.11, P.W.14 coupled with P.W.15
evidence and the evidence of the Police also cannot be brushed
aside merely because P.W.15 is the Police officer and P.W.15-
Investigating Officer evidence also corroborates with the
evidence of P.W.11 and P.W.14 and also the evidence of P.W.1
and P.W.3. Having taken note of cumulative evidence available
on record including the evidence of injured P.W.1, it is very clear
that these accused persons only committed the murder of the
deceased. Though prosecution invoked the offence under Section
307 of Indian Penal Code that accused persons made an attempt
to take away the life of the P.W.1 and having considered the
nature of injury of P.W.1, the Trial Court rightly invoked Section
323 of IPC and not invoked 307 of IPC and there was no material
that with an intention to take away the life of P.W.1, an assault
was made and only A3 assaulted that is kicked the P.W.1 and
only an attempt is made to press her neck, but there was no any
injury on the neck and found the injury in terms of the wound
certificate which is marked as Ex.P.10 injuries that 1.1 x 1 cm
abrasion over right side of lower lip on examination of P.W.1 and
tenderness present over right ring finger and it was a soft tissue
injury and injuries are simple in nature. The evidence of Doctor
is also very clear that injured has given the history of assault by
hands and that injury could be caused if a person dragged and
assaulted by hands. In the cross-examination also injury No.2
can be caused if a person falls on the ground. Having taken note
of nature of injuries, rightly invoked Section 323 of IPC and not
Section 307 of IPC.
34. We have assessed both oral and documentary
evidence available on record meticulously and considering the
overall material available on record, particularly evidence of
P.W.1 and P.W.3 with regard to the involvement of accused No.1
to 4 and also the P.W.1 is an eye witness to the incident and
particularly the recovery at the instance of the accused and
evidence of P.W.11, P.W.14, P.W.15, P.W.16 and P.W.17,
evidence of FSL expert and also the evidence of the Doctor-
P.W.12 who conducted post mortem, it is very clear that inside
wound over the base of the skull measuring 14 x 8 x 10 cm
exposing up to spinal cord and fracture of vertebra present and
incised wound over left side of lower face exposing fractured
body of mandible and sutured wound over abdomen from left
loin to right and nature of injuries found which corresponds with
the evidence of P.W.1 having inflicted the injury and even
opinion was also sought from Investigating Officer and Ex.P.16
report is also given that it was possible to cause such injuries
mentioned in the post mortem report by using the weapon sent
by the Investigating Officer for examination and machetes which
were seized at the instance of the accused were also sent to the
Doctor to furnish the opinion whether that machete measuring
52 cms long with 15 cms of wooden handle and there inner part
was sharp and the outer edge was blunt, whether using such
weapon could cause such injuries and Doctor after examining the
same, given the opinion that MO.8 and MO.11 would cause such
injuries.
35. The evidence of the Doctor-P.W.12 also very clear
that cause of death is due to hemorrhage and shock secondary
to the injury sustained and when the evidence of the Doctor
clearly shows that it is a homicidal and the material collected by
the Investigating Officer and the same has been spoken by
prosecution witnesses consistently and witnesses withstood the
cross-examination of the counsel for the accused and when such
material are taken note of by the Trial Court and appreciated the
evidence available on record in proper perspectives. Hence, we
do not find any error on the part of the Trial Court in convicting
the accused for the offences which have been invoked and
sentencing the accused and sentence also commensurate with
the gravity of the offence and hence, we answer the point
accordingly.
36. In view of the discussions made above, we pass the
following:
ORDER
The appeal filed by accused No.1 to 3 and
accused No.4 in Crl.A.No.1994/2019 connected with
Crl.No.A.No.1918/2019 are dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
ST/RHS
