Karnataka High Court
Madesha @ Avva Madesha vs The State Of Karnataka on 14 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR. JUSTICE B.A.PATIL
CRIMINAL APPEAL NO.414/2016
BETWEEN:
1. MADESHA @ AVVA MADESHA
S/O CHIKKAPUTTAIAH
AGE: 50 YEARS
2. MANJU
S/O CHIKKAPUTTAIAH
AGE: 47 YEARS
BOTH APPELLANT NOS.1 AND 2
ARE R/AT NO.255/1
KALIDASA ROAD
VONTIKOPPAL
MYSURU - 570 019.
3. SATISHA @ PALAHALLI SATISHA
S/O PUTTAIAH
AGE: 36 YEARS
R/AT NO.2588 VALMIKI ROAD
MYSURU - 570 002
4. CHANDU @ CHANDRU
S/O GANESHA
AGE: 32 YEARS
2
R/AT NO.2565,
KALIDASA ROAD
VONTIKOPPLU
MYSURU - 570 019.
5. RAVI @ VJONTIKOPPALU VARI
S/O LINGANNA
AGE: 39 YEARS
R/AT NO.1558
7TH CROSS
KALIDASA ROAD
VONTIKOPPLU
MYSURU - 570 019.
6. SHIVAKUMAR @ KALAPPA
S/O NARAYANA
AGE: 40 YEARS
R/AT NO.23, 3RD CROSS
VINAYAKANAGAR
MYSURU - 570 023.
7. RAMESH BABU @ AMBI @ AMBARISHA
S/O SWAMY
AGE: 36 YEARS
R/AT 7TH CROSS
MAHADESHWARA EXTENSION
VINAYAKANAGARA
MYSURU - 571 490.
8. K.K. @ KARTHIK
S/O KAPANAIAH
AGE: 30 YEARS
R/AT NO.1081
45TH CROSS, GOKULAM
MYSURU - 570 002. ...APPELLANTS
(BY SRI HASHMATH PASHA, ADV. FOR A1 & A2;
SRI PARAMESHWARAPPA C., ADV. FOR A3, A5, A6 & A8;
SRI RAVI B. NAIK, SENIOR COUNSEL A/W
SRI P.CHANDRASHEKAR, ADV. FOR A4 & A7)
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AND:
THE STATE OF KARNATAKA
BY THE POLICE OF
HUNSUR TOWN POLICE STATION
MYSURU DISTRICT - 571 105
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
HIGH COURT ANNEX BUILDING
BANGALORE - 560 001. ...RESPONDENT
(BY SRI S.RACHAIAH, HCGP.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(3) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER DATED 26.02.2016 PASSED BY THE II
ADDITIONAL SESSIONS JUDGE, MYSURU IN
S.C.NO.233/2008 - CONVICTING THE APPELLANT/ACCUSED
NOS.1 TO 8 FOR THE OFFENCES P/U/S 307, 449, 201, 427,
148, 427, 143, 144, 147 AND 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, BUDIHAL.R.B, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the appellants-accused being aggrieved by the judgment and order dated 26.2.2016 passed by the II Additional Sessions Judge, Mysuru in S.C.No.233/2008 convicting the appellants for the offences punishable under Sections 307, 449, 201, 427, 4 143, 144, 147, 148 and 302 of IPC and sentencing them accordingly.
2. Brief facts of the prosecution case are that on the intervening night of 14/15.05.2008 appellants herein alleged to have committed the murder of Rajesh and Ramu while injuring P.Ws.4 and 14 at a farm house belonging to one Muddappa, situated behind APMC, Hunsur and the said offence has been committed by using machetes M.Os.1 to 6. The motive attributed for the commission of offence is that appellant No.1 was doing real estate business, while the deceased were also into same profession. About one and half months prior to the incident, deceased Rajesh had attacked appellant No.1 in connection with business and in this regard appellant No.1 had developed ill-will against the deceased. On the basis of the said complaint, case was registered in Crime No.108/2008. After completing the investigation, the 5 Investigating Officer has filed the charge sheet against the accused persons for the said offences.
After hearing both sides and after perusing the charge sheet material, the learned Sessions Judge prepared the charges and when the charges were read over and explained to the accused, they pleaded not guilty and claimed to be tried. Accordingly, charges were framed and plea of appellants-accused were recorded and matter was set down for trial.
In support of its case, prosecution in all examined 72 witnesses and got marked documents Exs.P1 to P160, so also, material objects M.Os.1 to 78. Thereafter, accused were examined under Section 313 of Cr.P.C. and incriminating material as against each of them was read over by way of framing questionnaire and answers given by each of the accused were recorded in their respective statements. On the side of defence no witnesses were examined, but during cross-examination of the witnesses, defence got marked the documents Ex.D1 to D5. 6
After hearing the arguments of both sides and after considering both oral and documentary evidence on record, the learned Sessions Judge convicted the appellants-accused for the above said offences.
Being aggrieved by the judgment and order of conviction and also challenging the legality and correctness of the said judgment and order of conviction, on the grounds as mentioned in ground Nos.(i) to (xxix) of the appeal memorandum, the appellants are before this Court in this appeal.
3. We have heard the arguments of Sri.Ravi.B.Naik, learned senior counsel representing accused Nos.4 and 7, Sri.Hashmath Pash, learned counsel representing accused Nos.1 and 2 and also Sri.Parameswarappa.C, learned counsel representing accused Nos.3, 5, 6 and 8.
4. Sri.Ravi.B.Naik, learned senior counsel submits that though the case of the prosecution rests on direct evidence that the witnesses have personally witnessed the 7 incident, none of them have supported the case of the prosecution and all the eyewitnesses have turned hostile. He also submits that so far as other circumstances like motive and recovery, none of the panch witnesses have supported the prosecution case. Hence, there is no material placed by the prosecution to establish any of the charges as against accused Nos.4 and 7 and in spite of that the learned Sessions Judge has convicted appellants- accused Nos.4 and 7 mainly relying upon the evidence of P.W.70, the Investigating Officer. Hence, he submits that the judgment and order of conviction passed by the Court below is illegal and not sustainable in law.
5. Sri.Hashmath Pasha, learned counsel taking us through the entire material in the paper book and also to the oral evidence of witnesses submits that firstly, the case rests on direct evidence. P.W.1 Srinivasa, P.W.4 Kumara, P.W.5 Kala, P.W.14 Sunil, P.W.21 Devendra and P.W.43 Ashok are said to be the eyewitnesses to the 8 incident. They have turned hostile to the case of the prosecution. Even when they were cross-examined by the Public Prosecutor by treating them hostile, nothing has been elicited from them as against any of the accused persons. Hence, so far as the alleged eyewitnesses are concerned, absolutely no evidence is placed by the prosecution as against the accused. Regarding the motive aspect, referring to the evidence of P.W.9, learned counsel submits that P.W.9 is not having personal knowledge about the previous incident and the attack made by the deceased on accused No.1 and no case is registered with regard to the said incident. Therefore, the evidence of P.W.9 will not make out a case regarding the motive for the accused persons to eliminate both the deceased. He also refers to the other material regarding alleged recovery of weapons and submits that none of the panch witnesses have supported the prosecution case. He submits that the evidence of P.W.70, the Investigating Officer is not sufficient to hold that the recovery has been effected and 9 has been proved by the prosecution. The recovery is not made under Section 165 of Cr.P.C., but it has been effected under the voluntary statement said to have been given by each of the accused persons. As per Section 27 of the Evidence Act (hereinafter called as 'Act'), the material object seized is not material, but the place at which it has been discovered for the first time is important. If the weapon is said to have been recovered, ultimately, it is for the prosecution to establish the fact that the said weapon has been used in committing the alleged offence. He also refers to the FSL report and submits that the report of the FSL that the weapons were having human blood stains is not sufficient, because once the eyewitnesses turns hostile, then the case of the prosecution partakes the character of as good as the case rests on circumstantial evidence. Therefore, each and every circumstance is to be established with cogent and acceptable evidence. The benefit of any missing link in the chain of circumstances will have to be given to the accused persons. In this 10 regard, he submits that the blood group on the material objects under M.Os.1, 2, 3 and 6 does not match with each other. Even according to the FSL report so far as M.Os.4 and 5 are concerned, he submits that the blood of the deceased was not at all collected and sent for examination to the laboratory. Further, the blood stained clothes of the accused were not sent for examination since it is the case of the prosecution itself that they have burnt the clothes and only ash and control mud were sent to the laboratory. Even with regard to this he refers to Ex.P123, report of P.W.57 regarding article at Sl.Nos.41 and 42 marked as M.Os.42 and 43 and submits that there is no matching of the blood group and these materials will not help the prosecution in establishing the charges as against the accused persons. He also refers to the evidence of other witnesses and submits that none of the witnesses have spoken about the involvement of any of the accused persons. It is his submission that when the alleged incident took place, even the injured witnesses 11 were not knowing who were the assailants and have not stated the names of any of the accused persons and the history shows that about 3-4 unknown persons assaulted them. But subsequently, during the course of investigation and at the stage of recording the evidence, the prosecution has improved its case falsely implicating accused Nos.1 and 2 and other accused persons. These material aspects were not at all taken into consideration by the learned Sessions Judge and only relying upon the evidence of P.W.70, the Investigating Officer, the learned Sessions Judge held that recoveries are proved and there is motive for the accused persons to commit the murder of two deceased.
He further submits that the learned trial Judge has also relied upon under Section 164 Cr.P.C. statement of two witnesses viz., P.Ws.14 and 21. The said witnesses have not at all supported the case of the prosecution and have turned hostile. No doubt, the judicial officer who said to have recorded the statement of these two witnesses 12 has been examined, but that itself is not sufficient to hold that prosecution has proved its case about the involvement of accused persons. He submits that the statement under Section 164 of Cr.P.C. is not a substantive piece of evidence. It can be used only for the purpose of contradiction. This legal aspect is not properly appreciated by the learned Sessions Judge. Accordingly, submitted to allow the appeal and to set aside the judgment and order of conviction passed by the Court below.
In support of his contention, Sri.Hashmath Pasha, learned counsel has relied upon the following decisions:
(i) AIR 1977 Supreme Court 1753 in the case of Narsinbhai Haribhai Prajapati etc. Vs. Chhatrasinh and others
(ii) 2015 Cri.L.J. 4676 in the case of State Vs. Nagendra and others
(iii) SUPREME COURT OF INDIA in Crl.A.Nos.178-
79/1989 decided on 3.9.1996 in the case of Rehmat Vs. The State of Haryana.
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(iv) AIR 1972 Supreme Court 102 in the case of Rameshwar Singh Vs. State of J and K.
(iv) (1998) 4 Supreme Court Cases 605 in the case of George and others Vs. State of Kerala and another
(vi) AIR 1964 Supreme Court 900 in the case of Moti Singh and another Vs. The State of Uttar Pradesh
(vii) AIR 1960 Supreme Court 490 in the case of State of Delhi Vs. Shri Ram Lohia
(viii) (1987) 3 Supreme Court Cases 480 in the case of Kansa Behera Vs. State of Orissa.
6. Sri.Parameswarappa.C, learned counsel appearing on behalf of accused Nos. 3, 5, 6 and 8 submits that he will adopt the arguments advanced on behalf of accused Nos.4 and 7 and also on behalf of accused Nos.1 and 2 and in addition to that he also submits that there is no material placed by the prosecution to prove that the accused persons are involved in committing the alleged offences. Hence, submitted to allow the appeal.
7. Per-contra, learned High Court Government Pleader submits that only because the witnesses have 14 turned hostile, that does not mean that the prosecution has not proved its case beyond all reasonable doubt. He submits that in this regard the evidence of the Investigating Officer is to be looked into. If the evidence of Investigating Officer is worth believable, the same can be relied upon. In this connection he relied upon the decision of the Hon'ble Apex Court dated 20.10.2010 rendered in Crl.A.No.1146/2008 and Crl.A.No.1166/2009 in the case of Rameshbhai Mohanbhai Koli and others Vs. State of Gujarat. Drawing our attention to the deposition of witnesses, more particularly, to the deposition of P.W.9 submits that there is a motive for the accused persons to eliminate both the deceased persons. He submits that P.W.9 has clearly deposed in his evidence about the rivalry in between accused No.1 and the deceased. He also refers to the evidence of other witnesses and submits that prosecution has proved the motive in between the deceased and the accused. Further regarding the recovery of the material 15 objects, he refers to the seizure mahazars under Exs.P11, P12, P26, P27, P28 and P29 and submits that the recoveries are effected at the instance of respective accused persons on their voluntary statements. He further refers to the FSL and Serology reports under Exs.P124, 125 and 126 and submits that they clearly shows the use of weapons in committing the alleged offences and it is ascertained that the said weapons were having human blood stains. Further, the blood group on M.Os.4 and 5 was also ascertained. Hence, he submits that this aspect has been taken into consideration by the learned Sessions Judge while coming to the conclusion about the guilt of accused persons. He also refers to Ex.P16, the seizure of Maruti Van at the instance of accused No.2 and the oral evidence of P.Ws.23 and 24 in this regard and submits that though P.Ws.23 and 24 have turned hostile, but the Investigating Officer has clearly deposed in his evidence about the seizure of the said material object. However, so far as Ex.P17 is concerned, 16 he submits that looking to Ex.P17 and the oral evidence of panch witnesses, the prosecution has not established about the seizure of any of the articles under Ex.P17, which is said to be at the instance of accused Nos.7 and 8.
Referring to these materials the learned High Court Government Pleader made the submission that when the evidence of the Investigating Officer PW17 is acceptable and worth believable, there is nothing wrong by the learned Sessions Judge in relying upon such evidence and coming to the conclusion in holding that the accused are found guilty and they have been rightly convicted for the said offences. He submitted that no illegality has been committed by the Court below.
8. We perused the grounds in the appeal memorandum, judgment and order of conviction passed by the Court below, oral evidence of PWs.1 to 72, so also the documents. We have also considered the oral 17 submissions made by the learned counsels on both sides at the Bar.
9. Looking to the prosecution material, prosecution case said to be on the direct witnesses of PWs.1, 4, 5, 21 and 43. We have perused the oral evidence of these witnesses. Looking to the oral evidence of PW1-Srinivasa, PW4-Kumara, PW5-Kaala, PW14-Sunil, PW21-Devendra, PW43-Ashoka. All these witnesses have turned hostile and not supported the case of the prosecution. We have also perused the cross-examination portion by the Public Prosecutor after treating them hostile. No doubt suggestions are made to these witnesses suggesting the case of the prosecution, but the witnesses denied all those suggestions. Therefore, even looking to the cross- examination by the Public Prosecutor, nothing has been elicited from their mouth so as to believe the story of the prosecution that these witnesses personally witnessed the incident.
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PW14 - Sunil also said to have given the statement under Section 164 of Cr.P.C. before the Magistrate Court which is said to have been marked at Ex.P.159 and even with regard to the said statement also PW14-Sunil has not supported the said statement, he turned hostile even to his alleged statement under Section 164 of Cr.P.C., so also PW21-Devendra's statement under Section 164 of the Cr.P.C. said to be recorded before the Magistrate Court is also accepted as the document under Ex.P160. In this regard we perused the oral evidence of PW14-Sunil, in the examination-in-chief though he turned hostile and not supported the case of the prosecution and after treating him hostile and when cross-examined by the Public Prosecutor he go on admitting the suggestion made by the Public Prosecutor as true. Even the suggestion that he has given the statement before the Magistrate Court. He admitted the said suggestion as true and further he deposed that the truth involved as to he making the 19 statement before the Magistrate in relation to this case is concerned he gave such a statement as stated by the police. In the cross-examination by the defence he deposed that police brought Devendra also along with him. he has further stated in his evidence that he deposed as tutored by the police, that between themselves and his friends and in between Avva Madesha/accused No.1 there was an enmity in connection with the real estate business and when it was suggested that Madesha was not at all doing the real estate business and there was no any sort of enmity between himself and Avva Madesha and the people of his side. The witnesses has deposed that he does not know who are those persons. He admitted the suggestion as true that in the presence of the doctor in the Hunsur hospital he has stated that about 3-4 unknown persons came and they have assaulted. He admitted the suggestion as true that none of the accused persons have committed any of the offences. He further deposed that as the police have brought pressure on him to give the 20 statement before the Magistrate, he has given such a statement before the Magistrate. He admitted the suggestion as true that the accused persons have not committed any of such offences. He also admitted the suggestion as true that as the police have given the paper making some writings and made him to go through the contents of the said paper and asked him that he has to tell before the Magistrate the same, in that connection he has given such a statement before the Magistrate. Even he deposed that as the police are waiting outside the Court Hall and because of the fear from them he has not stated the truth before the Magistrate Court.
Now coming to the evidence of another witness PW21 who also said to have given the statement under Ex.P160 under Section 164 of the Cr.P.C. In his evidence he has deposed in his examination-in- chief that when they were playing the card in the garden, at that time from behind 4- 5 persons came and he feel like some body assaulted on him. The people came from behind to assault them. They 21 ran away from the said place and as they chased them he went into the forest. He has not seen who were those persons came to assault him. He has not seen Sunil, Rajesh and Ashok who went towards which place. After running about 4-5 miles, as there was auto-rickshaw on the road, he went to his house at Mysore in the auto- rickshaw. He sustained injury on the waist portion with the matchu and there was a bleeding injury and after two days he got the treatment in the Hunsur hospital. He further deposed that Madesha and other 4-5 persons assaulted Rajesh @ Gandhi and he has given his statement before the Court. Earlier Madesha assaulted to Ramu, so also Manja and other 4-5 persons assaulted, as they stated in his earlier statement before the Court. He further deposed that he stated the names of the persons who said to have assaulted Ramu, as told by the police on that day when they were playing cards in the Garden nearby the house of the persons who came and assaulted. He has stated before the Court in his statement as 22 Madesha, Manja and other 7-8 persons and he deposed that except Madesha, Manja, the accused persons who are present before the Court, he cannot identify the other persons. Therefore, at this stage, the Public Prosecutor requested the Court for treating him as hostile. Accordingly, this witness has been treated as hostile and the learned Public Prosecutor cross-examined this witness and even in the cross- examination he denied the suggestions about the involvement of these accused persons in committing the said offence.
When it was suggested that in connection with the real estate business and having enmity the accused persons forming the group holding the longs and also the chilly powder, they throw the chilly powder on the face of Rajesh @ Gandhi and Ramu and then assaulted with long and thereafter committed the murder and Sunil assaulted the worker by name Kumar with long and made an attempt to commit his murder and he has seen those persons in the light which was there in the garden land 23 and he will identify them he has denied the same. He has been further cross examined wherein he has deposed that if he had occasion to see them again and when it was suggested that he has given the statement before the police, all these suggestions were denied by this witness.
When cross-examined by the Public Prosecutor he admitted that he has given the statement before the Magistrate Court. When it was suggested by the Public Prosecution to this witness about his statement said to have been given by the Magistrate Court. He went on admitting the suggestion as true. In the cross- examination by defence he deposed that police have not enquired with him as to how the incident has taken place. When he was brought before the Magistrate Court by the police it was 2.00 p.m. At that time, ten police personnel came in the jeep because of the threat and also pressure brought by the police and memorizing the names of the accused persons, he has given the statement before the Magistrate Court. He does not know that the name of 24 Ramu was in the Rowdy Sheet in the police station. He further deposed that he does not know that there were so many enemies to said Ramu. He admitted the suggestion as true that on that day none of the accused persons come to the garden at Hunsur. He admitted the suggestion as true that he has not received any summons from the Court for giving such a statement.
Therefore, perusing the oral evidence of even PW21 regarding the statement under Section 164 of the Cr.P.C. they have turned hostile and not supported the case of prosecution. On the contrary both the witnesses have deposed that the reason for giving such a statement before the Court is the threat and the pressure brought by the police upon them. Therefore, even if the learned Magistrate has been examined before the trial Court and he deposed about PW14-Sunil and PW21-Devendra said to have given such a statement, but even then looking to the evidence of these two witnesses and the cross-examination portion by the defence, they clearly deposed that the said 25 statements are not voluntary and they were given because of the threat and the pressure brought by the police. Under such circumstances, it cannot be said that the prosecution established the statements under Sections 159 and 160 that they were the statement given voluntary of their free volitions. Therefore, such statement cannot be relied upon by the Court as evidence on the side of the prosecution.
10. Looking to these materials and all the witnesses turned hostile, this evidence will not help the prosecution. Then the case of the prosecution will have to be appreciated regarding the circumstances said to have been relied upon by the prosecution. The first circumstance is the motive and the next one recovery of the incriminating materials at the instance of the accused persons. Regarding the motive aspect is concerned the evidence of PWs.9, 40, 48, 50, 51 and 53 are relevant and as such examined.
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PW9 one Lokesh deposed in his evidence in examination-in-chief that Ramu used to tell him over the phone that there was a galata took place between Ramu and his friend and accused Madesha has not come to the house and because of such galata he was having the life threat and Ramu has not come to the house, he has not come to the house about 1 and 1½ months. He further deposed that on 15.5.2008 morning at 6 to 6.30 a.m. when he was watching the TV-9 Channel, there was a news about the murder of Ramu and Rajesh and it took place in the house at the garden near APMC Yard, when immediately rushed to the said place, he has seen Ramu and Rajesh were lying in a pool of blood and there were injuries and at the place of the incident chilly powder pockets were also lying. In the cross-examination he deposed that with regard to the life threat to his brother, himself, his brother and any of the family members have not at all given any complaint before the police. He denied 27 the suggestion that as there was no such life threat caused to his brother, that was the reason for not filing the complaint before the police, but the witness further deposed in this regard that as the people of accused No.1 and Rajesh and Ramu were thinking to compromise the matter and told not to give the complaint, they have not given the complaint.
Another witness PW40 Naveen Kumar turned hostile and not supported the case of the prosecution. Even in the cross-examination by the Public Prosecutor also he go on denying all the suggestions put to him and nothing has been elicited from his mouth about the prosecution case.
PW48 Purushotham also turned hostile and not supported the prosecution case. When cross- examined by the Public Prosecutor he has denied the suggestions and his cross-examination portion also will not make out a case of the prosecution and he deposed that he has not given the statement as per Ex.P3D.
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PW50 Nagaraju is another witness so far as the motive aspect is concerned, he completely turned hostile and even in the cross-examination also he has not supported the prosecution case.
PW51 one Mahesh turned hostile stating that Ramu went out of the house 15 days earlier to the incident. He does not know where he has gone and for what reason. He does not know earlier to this murder whether there was any galata in between the said Ramu and the accused persons. When cross- examined by the Public Prosecutor he deposed that he does not know accused No.1 along with his friend was doing their real estate business and he has also deposed that 1 and 1½ months earlier to this incident there was a galata in between said Ramu and accused No.1 in connection with real estate business and at that time accused No.1 was assaulted and accused No.1 escaped from the said place. He deposed that he does 29 not know about these things, another suggestion he has denied.
The last witness so far as the motive aspect is concerned is PW53- Rathnamma who is the mother of deceased Ramu. She deposed that she does not know the accused who are before the Court. Further deposed that she does not know whether her son the deceased has quarreled with any one of them in connection with his business. She does not know who killed him, police have not examined her in this case, so she was also treated as hostile. When cross- examined by the Public Prosecutor she has denied the suggestions and she denied the suggestion that she has given the statement as per Ex.P103.
Therefore, looking to the evidence of these witnesses they have not supported the prosecution case regarding the motive aspect of the deceased carrying on the real estate business, so also accused No.1 and galata said to 30 have taken place in connection with the said real estate business.
So far as PW9 is concerned though it was submitted by the learned High Court Government Pleader that he has stated about the statement made by the deceased i.e. his brother about the threat posed by accused No.1, so far as the said threat is concerned, no complaint was filed in that regard either by the deceased or by PW9 or by any of the family members. Apart from that the motive aspect is said to be by accused No.1 and not by other accused persons. Even so far as accused No.1 is concerned, looking to the conduct of the witnesses keeping mum for long time without taking any action, it cannot be said that the said motive has been established by the prosecution when the witness deposed only in this case about the incident which is said to have taken place much earlier to happening of this incident.
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11. Another aspect is regarding the recovery said to have been affected by the prosecution. We have perused the prosecution material and the evidence of the prosecution witnesses in this regard. The voluntary statement said to have been given by the accused persons. Looking to the evidence of panch witnesses, the panch witnesses turned hostile in respect of all the recovery panchanama Exs.P11, 12, 26, 27, 28 and 29. We have also perused the oral evidence of PWs.15, 16 and 17. So far as Ex.P11 is concerned, the oral evidence of PWs.18, 19 and 20 in connection with mahazar under Ex.P12, evidence of PWs.35 and 36, in so far as the recovery mahazar under Ex.P26 and regarding the mahazar under Exs.P27, 28 and 29, the panch witnesses are PWs.35 and
36. They have not supported any of these panchnamas. They turned hostile and even in their cross-examination portion also nothing has been elicited by the prosecution to believe that such recoveries are affected in the presence of panch witnesses under any of the said mahazar. With 32 regard to the recovery of the Maruthi Van under Ex.P16 which is at the instance of accused No.2. Two witnesses were examined PWs.23 and 24. We have perused the oral evidence of PWs.23 and 24 also. There is no supporting material even from the mouth of PWs.23 and 24. Therefore, so far as panchanamas are concerned none of the panch witnesses have supported any of the panchnamas. Except Ex.P17 nothing has been seized at the instance of accused Nos.7 and 8.
We have also perused the FSL reports under Exs.P124, 125 and 126. We perused the document under Ex.P124 from the report FSL under which 42 articles were sent for examination. Looking to the result of the analysis, the item at Sl.No.4, item Nos.26, 28, 30 and 32 were not stained with blood, but the other articles were stained with blood. We have also perused another document Ex.P125 i.e. Serology Report, wherein it is mentioned that 'the gel defusion precipitin test has indicated that bloodstains at items.1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 33 14, 15, 16, 17, 18, 21, 22, 23, 23(A), 24 and 27 are of human blood. The bloodstains in items 19, 20, 25, 29 and 31 are disintegrated. Hence, its origin could not be determined. Further it is stated regarding the blood group of the bloodstains. The blood group of the bloodstains of items.1, 9, 10, 12, 13, 14, 22 and 27 are stained with 'O' group blood by adopting the absorption and elution test.
The blood group of the bloodstains in items.3, 5, 6, 15, 16 and 24 are stained with 'A' group blood by adopting absorption and elution test.
The blood group of the bloodstains in items 7, 8, 11, 17, 18, 21, 23 and 23(A) could not be determined since the results of the test were inconclusive.
Another report with regard to the hairs are concerned it is under Ex.P126, wherein it is stated at point No.1 that on the basis of morphological examination, the hairs in item '23(A)' are of human and similar to item No.10 and dissimilar to item 11, at point No.2 the hairs in 34 item No.9 are of human and dissimilar to items 33, 34, 35, 36, 37, 38, 39 and 40.
We have perused the oral evidence of PW60 so also PW63. Looking to the oral evidence of these witnesses they are in consonance with the documents under Exs.P124, 125 and 126. Therefore, even looking to the reports from the FSL also, the grouping is not ascertained so far as the Material Objects MOs.1, 2, 3 and 6. No doubt so far as MOs.4 and 5 are concerned i.e. MO.4 at the instance of A6, MO.5 at the instance of A5 said to be recovered firstly. The panch witnesses have not supported the recovery as we have already observed above. Apart from that for ascertaining the grouping the materials goes to show that the prosecution has not sent the blood of the deceased for examination. It is the prosecution case itself so far as the clothes of the accused are concerned they were said to have been burnt and the clothes of the accused persons were not at all seized. Therefore, even perusing the FSL and the oral evidence of PWs.60 and 63, it will not make 35 out a case on the side of the prosecution to establish the involvement of the accused persons in committing the alleged offences.
12. We have examined evidence led before the Court below i.e. PW1-Srinivasa, PW4-Kumara, PW5-Kaala, PW14-Sunil, PW21-Devendra and PW43 Ashoka and we perused the medical records which are under Exs.P113, 114 and 116. We perused the documents under Ex.P113, wherein it is mentioned the history of assault by Ravi on 14.5.2008 at 11.45 p.m. with macchu. In Ex.P114 it is mentioned that certain injuries are due to assault by 3-4 unknown persons on 15.5.2008 at 12.30 a.m. at coconut garden behind Church, Hunsur Town with sickle. Multiple scar marks on right side of face.
Ex.P116 regarding the history that certain injuries are due to assault by two unknown persons on 15.5.2008 at 12.30 a.m. with sickle near coconut garden behind 36 Church, Hunsur Town. A black mole present below the left eye.
13. Therefore, looking to these documents i.e. Exs.P114 and 116, there also it mentioned before the doctor 3-4 unknown persons. Therefore, if these documents are also taken into consideration it speaks on the case of the prosecution regarding the alleged eyewitnesses. If really the eyewitnesses have seen and identified the accused persons who assaulted the deceased, then naturally they told the name of such assailants at the first instance before the doctor. Therefore, these documents also are consistent with the defence of the accused persons.
We have also perused the oral evidence of the doctors who conducted the autopsy over the dead body of the deceased. The post mortem report so far as the deceased Ramu is concerned is under Ex.P118. The post mortem report goes to show that there are nine external 37 injuries on the body of the deceased and the doctor gave the opinion as the cause of death is due to shock and haemorrhage as a result of head injuries.
So far as Rajesh @ Gandhi deceased is concerned, another post mortem report is marked under Ex.P122. The doctor who conducted autopsy noticed 14 external injuries on the body of the deceased. He has given the opinion that death is due to shock and haemorrhage as a result of the head injuries. Therefore, perusing these materials they clearly goes to show that death of Ramu and Rajesh @ Gandhi are of homicidal deaths. But the question is who has caused the death of two deceased. In that connection we have already examined the prosecution material. We have perused the oral evidence of the Investigating Office who has been examined as PW17. Looking to the evidence of PW17 in examination-in-chief, no doubt he has deposed in detail about the investigation which he has been conducted in the matter, but as we have already referred to the oral evidence of the 38 prosecution witnesses as well as the panch witnesses in connection with the different panchanamas, as none of the witnesses supported the prosecution case. We have also perused the decision relied upon by the learned High Court Government Pleader which is referred above in the case of Rameshbhai Mohanbhai Koli and Others Vs. State of Gujarat in Criminal Appeal No.1146/2008 and Criminal Appeal No.1166 of 2009 decided on 20.10.2010, the relevant paragraph at paragraph 24 reads as under;.
"24. In Modan Singh Vs. State of Rajasthan (1978) 4 SCC 435, it was observed that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam Vs. State of Maharashtra MANU/SC/2255/2000 : (2001) 9 SCC 362. In Anter Singh Vs. State of Rajasthan 39 MANU/SC/0096/2004 : (2004) 10 SCC 657, it was further held that even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated."
14. But looking to the said reported decision and the materials in the case on hand, the panchanamas are in connection with the recoveries effected at the instance of the accused persons and the weapons alleged to have been used in committing the offence said to have been recovered at the instance of the accused persons. Therefore, the proof of the said voluntary statement and the recovery of the weapons is necessary.
Perusing the evidence of PW.10 the Investigating Officer he has stated that he conducted the recovery panchanama in the presence of panchwitnesses and effected the recoveries we are of the opinion that the said material is not sufficient in coming to the conclusion that 40 voluntary statement so also the panchanama at the instance of accused persons have been proved to the satisfaction of this Court. So far as the contents of the prosecution regarding the statements under Section 164 of the Cr.P.C. by PW14-Sunil and PW21-Devendra is concerned we have already referred to the evidence of the prosecution in this regard who have not supported the case of the prosecution case and regarding the legal aspect also we referred the decisions relied upon by the learned counsel appearing for accused Nos.1 and 2 which are referred above. Therefore, looking to the principles enunciated in those decisions regarding the statement under Section 164 of the Cr.P.C. it cannot be said to be the substantive piece of evidence and it can be used for the purpose of contradiction. Therefore, perusing the materials on record with regard to the statements under Section 164 of the Cr.P.C. and in view of the deposition of the witnesses specifically before the Court on oath that as the police have put the pressure and threat, they have 41 given such a statement before the police. The Court cannot rely upon such statement and in view of such evidence it cannot be held that those statements have been satisfactorily proved by the prosecution with cogent and acceptable material. Therefore, perusing and re- appreciating the entire materials produced on the side of the prosecution and also considering the oral and documentary evidence and looking to the judgment and order of conviction passed by the Court below, the learned Sessions Judge mainly relied upon the 164 statement of PWs.14 and 21 and also the evidence of PW17 the Investigating Officer and held that even though all the panch witnesses and eyewitnesses turned hostile, but the other material sufficient to come to the conclusion that accused committed the alleged offences.
15. Perusing the entire material we are of the opinion that the view taken by the learned Sessions Judge is not supported by any material. He has wrongly read the 42 evidence and not considered the legal aspect involved in the case. Therefore, the judgment and order of conviction passed by the Court below is not in accordance with the material produced in the case. The appellants have made out a case to allow the appeal.
16. Accordingly the appeal is allowed. The judgment and order of conviction an sentence passed by the II Additional Sessions Judge, Mysuru, in S.C.No.233/2008 is hereby set aside. The appellants/accused are acquitted from all the charges levelled against them.
The concerned Prison Authorities are hereby directed to release the appellants/accused Nos.1 and 2 forthwith, if they are not required in any other case. The bail bonds executed by the other accused persons stand cancelled.
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The Registry is hereby directed to communicate the operative portion of this judgment to the concerned Prison Authorities.
Sd/-
JUDGE Sd/-
JUDGE *BKP/AP*-