Karnataka High Court
State Of Karnataka vs Ramaswamy on 3 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 2536, 2018 (4) AKR 211, (2019) 1 ALLCRILR 72
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF APRIL 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.940/2012
BETWEEN:
STATE OF KARNATAKA
BY INSPECTOR OF POLICE
HAL POLICE STATION
BANGALORE ...APPELLANT
(BY VIJAYAKUMAR MAJAGE, ADDL. SPP)
AND:
1. RAMASWAMY
S/O ANNAYAPPA
AGED ABOUT 47 YEARS
R/AT NO.51, 2ND CROSS
KADABEESANAHALLI
PANATHURU POST
BANGALORE EAST TALUK
2. MANJA @ MATESHA
S/O PAPANNA
AGED ABOUT 34 YEARS
R/AT NO.YELLAMMA TEMPLE
KADABEESANAHALLI
PANATHURU POST
2
BANGALORE EAST TALUK
3. MUNIKRISHNA @ GALAGANTE
S/O NARAYANAPPA
AGED ABOUT 27 YEARS
R/AT NO.YELLAMMA TEMPLE
KADABEESANAHALLI
PANATHURU POST
BANGALORE EAST TALUK
4. SOMA @ KANNADA SOMA
S/O ANNAYYAPPA
AGED ABOUT 30 YEARS
R/AT NO.20, 2ND CROSS
KADABEESANAHALLI
PANATHURU POST
BANGALORE EAST TALUK
5. MANJUNATHA
S/O ANNAYYAPPA
AGED ABOUT 28 YEARS
R/AT NO.20, 2ND CROSS
KADABEESANAHALLI
PANATHURU POST
BANGALORE EAST TALUK
6. SAMPANGI
S/O ANNAYYAPPA
AGED ABOUT 30 YEARS
R/AT NO.20, 2ND CROSS
KADABEESANAHALLI
PANATHURU POST
BANGALORE EAST TALUK
7. RENU
S/O PUTTAPPA
AGED ABOUT 22 YEARS
R/AT NO.15, 3RD CROSS
KADABEESANAHALLI
3
PANATHURU POST
BANGALORE EAST TALUK
8. VIKKI @ VIKRAM
S/O SRINIVASA MURTHY
AGED ABOUT 22 YEARS
R/AT NO.10, 1ST CROSS
KADABEESANAHALLI
PANATHURU POST
BANGALORE EAST TALUK
9. LOKESH
S/O VENKATARAMAPPA
AGED ABOUT 30 YEARS
R/AT NO.18, 2ND CROSS
KADABEESANAHALLI
PANATHURU POST
BANGALORE EAST TALUK
10. RAMACHANDRAPPA
S/O KRISHNAPPA
AGED ABOUT 24 YEARS
R/AT NO.91, 1ST CROSS
KADABEESANAHALLI
PANATHURU POST
BANGALORE EAST TALUK
11. MANJA
S/O NARAYANAPPA
AGED ABOUT 24 YEARS
R/AT NO.91, 1ST CROSS
KADABEESANAHALLI
PANATHURU POST
BANGALORE EAST TALUK
12. LAKSHMAN
S/O VENKATASWAMY
AGED ABOUT 23 YEARS
R/AT NO.5, 2ND CROSS
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KADABEESANAHALLI
PANATHURU POST
BANGALORE EAST TALUK ...RESPONDENTS
(BY SRI TOMY SEBASTIAN, SR. COUNSEL FOR
SRI K.RAMSINGH, ADV. FOR R1, R4 TO R6 & R11;
SRI TOMY SEBASTIAN, SR. COUNSEL FOR
SRI H.M.RAJASHEKAR, ADV. FOR R2, R3,
R8 TO R10 & R12;
SRI TOMY SEBASTIAN, SR. COUNSEL FOR
SRI LAKSHMIKANTH RAO, ADV. FOR R7)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) CR.P.C., PRAYING TO GRANT LEAVE TO FILE
AN APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 28.03.2012 PASSED BY THE XXXII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE FOR CBI CASES, BANGALORE IN
S.C.NO.1119/2010 C/W S.C.NO.1010/2008 - ACQUITTING
THE RESPONDENTS/ACCUSED FOR THE OFFENCES
P/U/S 143, 145, 146, 147, 148 AND 302 R/W 149 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, BUDIHAL R.B., J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the State being aggrieved by the judgment and order of acquittal dated 28.03.2012 passed in S.C.No.1119/2010 c/w S.C.No.1010/2008 on the file of the XXXII Addl. City Civil and Sessions Judge and Special Judge for CBI cases, Bengaluru (CCH No.34).
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2. Brief facts of the prosecution case as per the complaint Ex.P1 are that, there was enmity between the deceased persons, namely Dinesh and Prasanna with the accused persons. Deceased had settled the civil litigation between one Gopala Gowda and Puttappa and earned commission of Rs.2 lakhs. In this regard, the accused persons were jealous against the deceased. Further in respect of an incident with regard to teasing of a girl of Boganahalli village by the boys of Kadubeesanahalli village, the deceased had warned and advised the accused persons and there was a quarrel between them. As such, there was ill will between the deceased and the accused persons. The accused persons were grinding axe against the deceased. Further, on 2.4.2008 at about 9.30 p.m. in the 2nd cross of Kadubeesanahalli village in front of the shop of accused No.5 when deceased persons namely, Dinesh and Prasanna had gone in the santro car of Dinesh bearing registration No.KA- 05-MW-738 to compromise the issue as requested by the accused persons, the accused persons formed unlawful assembly with an object of committing the murder of Dinesh 6 and Prasanna and attacked them with knives, long etc., and also by dropping stones on them, committed murder of both of them. On the basis of the complaint lodged by P.W.1 Manjunath as per Ex.P1, case was registered in Crime No.156/2008 of HAL police station for the offences punishable under Sections 302, 143, 145, 146, 147, 148 r/w Section 149 of IPC.
After completing the investigation, the Investigation Officer has filed the charge sheet against the accused persons for the offences punishable under Sections 143, 145, 146, 148, 302 r/w Section 149 of IPC. After hearing both sides, the learned Sessions Judge, framed the charges against the accused in both sessions cases S.C.No.1119/2010 c/w S.C.No.1010/2008. When the charges were read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. Accordingly, the matter was set down for trial.
In support of its case, the prosecution in all examined 20 witnesses and got marked documents Exs.P1 to P52 and also got marked the material objects M.Os.1 to 42. The 7 accused were examined under Section 313 of Cr.P.C. and their statements were recorded. On the side of the defence no witnesses were examined. But the documents Exs.D1 to D3 were marked while cross examining the prosecution witnesses.
After hearing the arguments on both sides in respect of both the Sessions matters and after considering the oral and documentary evidence placed on record, the learned Sessions Judge has acquitted all the accused persons holding that prosecution has not proved its case beyond all reasonable doubt.
Being aggrieved by the same and also challenging the legality and correctness of the judgment and order of acquittal, the State is before this Court in this appeal.
3. We have heard the arguments of the learned Addl. SPP for the appellant-State, so also, the arguments of the learned senior counsel appearing for the respondents- accused.
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4. Learned Addl. SPP during the course of his arguments submits that P.Ws.2 and 3 who have been examined before the trial Court are the eyewitnesses to the incident and they have clearly deposed in their evidence that they have personally witnessed the incident. He also submits that in the evidence of P.W.2, one of the eyewitnesses, so also, in the evidence of P.W.16, the Investigation Officer, it has come on record that there was electricity street light at the place of the incident. Hence, there was an opportunity for the eyewitnesses to see the incident and to identity the persons involved in committing the alleged offences. Learned Addl. SPP drew our attention to the entire material in the paper book and took us through the evidence of P.W.1, the complainant and the brother of deceased Dinesh, the oral evidence of P.Ws.2 and 3, the eyewitnesses to the incident and the evidence of the Investigation Officer P.W.16 and also to the oral evidence of other prosecution witnesses. He submits that the voluntary statement of the accused persons was recorded by the Investigating Officer and at their instance there is recovery of the weapons used for the commission of 9 offence, so also, blood stained clothes of accused persons, in the presence of panch witnesses. He has referred to the oral evidence of P.W.17, the Doctor who conducted the post mortem examination of deceased Dinesh and Prasanna and issued post mortem reports as per Exs.P44 and P45 and submits that the prosecution was able to establish that the death of Dinesh and Prasanna is homicidal in nature. He has referred to the FSL report at Ex.P21 and submits that totally 43 articles were sent to FSL for examination and report and it is opined by the FSL authorities that except the articles at Sl.Nos.2 and 10, rest of the articles are stained with blood. Further as per the Serology report at Ex.P52 the blood stains found on the articles were of human blood and belong to AB blood group. Hence, if all the accused persons are not involved in committing the alleged offences there was no reason to have such blood stains on their clothes, which were seized by the Investigation Officer in the presence of panch witnesses.
It is also his submission that the panch witnesses have supported the prosecution case regarding recovery of clothes 10 from the respective accused persons. The prosecution has adduced cogent and worth believable material before the Court, more particularly, the evidence P.Ws.2 and 3, eyewitnesses to the incident and in spite of that the learned Sessions Judge has disbelieved the evidence of the eyewitnesses and has wrongly read the entire evidence both oral and documentary and proceeded to pass a wrong judgment acquitting all the accused persons from the charges. He submits that the material placed on record is sufficient to hold that prosecution has proved its case beyond all reasonable doubt.
Regarding non-mentioning of the names of eyewitnesses in the inquest mahazar proceedings, learned Addl. SPP has submits that even if it is not mentioned, it is not the ground to disbelieve the case of the prosecution. In this connection, he relied upon the decision of the Hon'ble Apex Court reported in (2003)2 SCC 518 in the case of Amar Singh Vs. Balvendar Singh.
Hence, submits to allow the appeal and to set aside the judgment and order of acquittal passed by the Court below. 11
5. Per-contra, learned senior counsel appearing for the respondents-accused submits that though it is the case of the prosecution that P.Ws.2 and 3 are the eyewitnesses to the incident, but their evidence clearly shows that they are not the eyewitnesses to the incident and that the prosecution has planted these two persons as eyewitness to suit their case. He drew our attention to the entire material both oral and documentary and submits that the oral evidence of the investigation officer also raises reasonable doubt in the mind of the Court as to whether really P.Ws.2 and 3 are the eyewitnesses to the incident. He has further submitted that even with regard to the light at the spot where the incident took place, there is no acceptable material placed by the prosecution that in the said light P.Ws.2 and 3 have seen the incident. In this connection, he drew our attention to the evidence of P.Ws.2 and 3 so also, to the evidence of P.W.16 the investigation officer. He submits that the evidence of P.Ws.1, 4 and 5 is clearly contrary to the evidence of PWs.2 and 3 and even the evidence of P.Ws.2 and 3 is contradictory to each other and will not inspire the confidence in the mind 12 of the Court. In their evidence, P.Ws.2 and 3 have not at all deposed as to with which particular weapon the accused persons have assaulted Dinesh and Prasanna. There is only bald and vague evidence deposed by P.Ws.2 and 3. Hence, considering all these aspects of the matter, it cannot be concluded that they are really the eyewitnesses to the incident. In this connection, learned senior counsel drew our attention to the cross-examination of P.W.16, the Investigation Officer regarding Ex.D1, the remand application and Ex.D2 the case diary and submits that if really P.Ws.2 and 3 are the eyewitnesses to the incident and their statement are really recorded on 3.4.2008 itself, same could have been reflected in Ex.D1, the remand application. This material shows that by anti-dating, their statements have been recorded subsequently. The learned senior counsel submits that the learned Sessions Judge has considered all these aspects of the matter extensively and has rightly come to the conclusion in holding that prosecution has failed to prove its case beyond all reasonable doubt. Reasonable doubt arises about the case of the prosecution, as such, 13 benefit of doubt was rightly given to the accused persons. He submits that no illegality has been committed by the Court below and there are no grounds for this Court to interfere into the judgment and order of acquittal, either to modify or to set aside the judgment of the learned Sessions Judge. Accordingly, submits to dismiss the appeal confirming the judgment and order of acquittal passed by the Court below.
6. We have perused the grounds in the appeal memorandum, judgment and order of acquittal passed by the Court below, oral evidences of P.Ws.1 to 20, documents Exs.P1 to P52 and also the decision relied upon by learned Addl. SPP in support of his contention, referred to above. We have also considered the oral submissions made by the learned counsel on both sides at the bar.
7. As per the prosecution case there are two murders in this case. The deceased persons are Dinesh and Prasanna. P.W.17 Dr.Bhimappa has conducted autopsy over the dead body of Dinesh and Prasanna. In his oral evidence, firstly he has deposed about receiving the dead body of Dinesh aged 14 about 26 years for post mortem examination and he conducted post mortem examination at 10.20 a.m. and concluded at about 11.20 a.m. on 3.4.2008 and in paragraph No.4 of his deposition he has stated about external injuries, which he has noticed on the dead body of Dinesh, which are injury Nos.1 to 13. In paragraph 5 he has deposed about the internal injuries on dissection of body of Dinesh i.e., injury Nos.1 to 10. In paragraph 7 he has given the cause of death as 'on account of shock and hemorrhage as a result of multiple injuries sustained' and issued post mortem report as per Ex.P44 and his signature is as per Ex.P44(b). He has also mentioned in paragraph No.8 that on the same day at about 12.35 p.m. he received the dead body of Prasanna, aged about 34 years for post mortem examination and he has commenced post mortem examination at about 12.40 p.m. and concluded at about 2.10 p.m. In paragraph No.11 of his deposition he has mentioned the external injuries that he has noticed on the dead body of Prasanna i.e., injury Nos.1 to 11. Regarding the internal injuries he has mentioned in paragraph No.12 that on dissection of the body of Prasanna 15 he found injuries at Sl.Nos.1 to 7. In paragraph No.13 he has mentioned that injuries noticed on the dead body were fresh and ante mortem. In paragraph No.14 he has mentioned the cause of death of Prasanna as on account of shock and hemorrhage as a result of multiple injuries sustained and issued post mortem report as per Ex.P45 and his signature is as per Ex.P45(b).
Looking to the evidence of P.W.17, the Doctor and considering Exs.P44 and P45, the post mortem reports, we are of the opinion that prosecution was able to place the material to show that the death of Dinesh as well as Prasanna are homicidal in nature.
8. Now coming to the merits of the case, the prosecution case is that the incident has been witnessed by the eyewitnesses P.Ws.2 and 3. Let us refer to the relevant portion of their evidence.
P.W.2, Naveen Hegde has deposed in his evidence in the examination-in-chief that on 2.4.2008 at about 8.00 p.m. himself, deceased Dinesh and Prasanna, C.W.3 were near the 16 Aralikatte of Kariyammana Agrahara village. At that time, C.W.4 Idyaraj came there. Within five minutes deceased Dinesh received phone call to his mobile who talked to the said person and told him that accused No.1 Soma was calling him to talk about the teasing of girl and therefore, they were to go to Kadubisanahalli village. Himself, deceased Dinesh, Prasanna, C.W.3 L.G.Prasad, C.W.4 Idyaraj were proceeding to Kadubisnahalli by Santro car belonging to deceased Dinesh. The number of the car is KA05-MW-738. They left the said place at about 8.30 p.m. Within five minutes they reached the village Kadubisanahalli. The said car was stopped in 2nd cross. Himself, C.W.3 and C.W.4 got down from the said car. Deceased Dinesh and Prasanna told them that they will go to the place and would return after the talks. However, they have seen that all the accused gathered in front of shop of the brother of accused No.1. Deceased Dinesh driven the car to the said shop and stopped the car at a little distance from the said shop. Deceased Dinesh got down from the car and came near the shop of brother of accused No.1. Dinesh was talking with the accused. At that 17 time accused No.1 Somu told Dinesh what would be the matter if a boy from his village teased the girl of Boganahalli. At that time, Dinesh told the accused that he has already advised them and said boys would not tease the girl of the village Boganahalli. On account of said exchange of words, there was quarrel between deceased Dinesh and accused. At the relevant time, accused No.2 told the other accused that they would not leave Dinesh since he was interfering with their work. At that time, accused No.1 Soma removed knife from his waist and stabbed Dinesh on his stomach just below the chest. He can identify the knife which is marked as M.O.12 and also identify the pouch marked as M.O.13. At that time, accused No.4 Muniraju and Accused No.8 Lokesh caught hold the hands of deceased Dinesh. Accused No.3 Manjunatha has taken one knife and sliced the neck of said Dinesh. He can identify the knife marked as M.O.14. Accused No.7 Vikki @ Vikram assaulted Dinesh with long on his face and leg. He can identify the said long, which is marked as M.O.15. On account of the said assault Dinesh fell down on the ground. Accused No.9 Ramachandra picked 18 cement block from the ground and thrown on the head of Dinesh. He can identify the cement block, which is as per M.O.6. Accused No.12 Manja @ Matescha and accused No.13 Munikrishna picked up stones from the ground and thrown on the head of Dinesh. He can identify the stones which are as per M.Os.7 and 8. It is further deposed by P.W.2 that accused No.1 Soma told other accused that they have to catch hold Prasanna and not leave him. Accused No.11 Lakshmana taken one size stone from the ground and thrown on the wind screen glass of the car, on account of which, deceased Prasanna opened the door of Santro car and started to run away, whom accused No.5 Sampangi and accused No.10 Manjunatha caught hold, accused No.6 Renu sliced the neck of deceased Prasanna with the help of knife. He can identify the knife M.O.5 and accused No.7 Vikrama assaulted Prasanna with a long on his head, face and chest, on account of which, he fell on the ground and died. The deceased Dinesh also died on account of the injuries. Accused No.6 thrown M.O.5 on the ground. Then all the accused went away along with the weapons. Then himself, C.W.3 and C.W.4 19 went to the spot and found that Dinesh and Prasanna died on account of the injuries. He further deposed that at the place of incident since there was street light besides the light of the said shop, they have seen the accused persons. Himself, C.W.3 Prasad and C.W.4 Idayaraj ran away to the house of Kariyammana Agrahara belonging to deceased Prasanna and found C.W.9 Prakash in the said house to whom they informed the incident. Prakash told him that he also received the phone to that effect and he was proceeding towards the place of incident. C.W.3 went to the house of Dinesh to inform the incident. The clothes of deceased Dinesh and Prasanna were blood stained and they are Exs.P5 and P6. Photos of the car are as per Exs.P7 to P12. He can identify the jerkin and shirt of deceased Dinesh marked as per M.Os.16 and 17, baniyan as per M.O.18, kacha as per M.O.19 and pant as per M.O.20. He can also identify the blood stained clothes of Prasanna. The blood stained shirt is marked as M.O.21, baniyan is marked as M.O.22, kacha is marked as M.O.23 and pant is marked as M.O.24. 20
In the cross-examination by the learned counsel for the defence this witness has deposed that on the date of the incident between 8.15 p.m. and 8.30 p.m. Dinesh received the phone call. Within five minutes after receipt of the phone call they left the place at about 8.30 p.m. They stopped their van on Panathur main road at the junction of 2nd cross. Himself, P.W.3 and C.W.4 got down from the Santro car at about 8.35 or 8.40 p.m. Within 10 or 15 minutes of they getting down from the Santro car the incident has commenced. Assailants were not surrounded Dinesh and Prasanna. However, they were assaulting them one after another. Five to six other persons were on the spot who were witnessing the incident. He cannot say how many ladies and how many gents were in the said six persons. The said six persons were in the said area whom earlier he has seen. He cannot say their names. However, can identify them if they are shown to him. He cannot say the 'chahare' of the above persons. He has seen the above six persons from the distance of 20 ft. The incident was over at about 9.00 or 9.15 p.m. Police have not come to the spot while he was in the 21 spot. Himself and P.W.3 not attempted to send the phone calls in connection with the incident. He admitted the suggestion as true that one has to pass in front of the house of Dinesh for reaching the house of P.W.5 Prakash. He has not placed his effort to inform the incident to the inmates of the house of Dinesh. On the night of the incident he has not seen P.W.3 and C.W.4 after the incident. He admitted the suggestion as true that himself and other two office boys were not having any difficulty to pay their visit once again to the spot. He has also seen P.W.1 Manjunath in the police station. Police enquired him regarding the incident while he revealed it was reduced into writing to which he has put his signature and police told him that he has to go. Therefore, he left the police station. At the relevant time, the police have not shown the stone, cement block, knives, longs in the police station. After that he was not called to the police station. He denied the suggestion that he has not stated before the police that at the place of incident since there was streetlight besides the lights of the said shop, they have seen the accused.
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Coming to the oral evidence of P.W.3-L.G.Prasad another eyewitness in the case he too deposed that on 2.4.2008 at about 8.30 p.m. himself, deceased Dinesh and Prasanna, P.W.2 N.V.Hegde, C.W.4 Idyaraj were near the same Aralikatte of village Kariyammana Agrahara. Deceased Dinesh received phone call to the mobile phone and he talked with the said person and told him that accused No.1 Soma was calling him to talk about teasing of the girl. Therefore, they were to go to Kadubisanahalli village. Himself, deceased Dinesh, Prasanna, P.W.2 N.V.Hegde, C.W.4 Idyaraj were proceeding to Kadubisanahalli by Santro car belonging to Dinesh. He can say the number of the car which was bearing No.KA05-MW-738. They left the said place by 8.30 p.m. Within five minutes they reached Kadubisanahalli. The said car was stopped in 2nd cross, himself and P.W.2 N.V.Hegde and C.W.4 Idayaraj got down from the said car. Deceased Dinesh and Prasanna told them that they will go to the place and would return after the talks. However they have seen that all the accused gathered in front of the shop of brother of accused No.1. Deceased Dinesh driven the car to the said 23 shop and stopped the car at some distance of the said shop. Deceased Dinesh got down from the said car and came near the shop of brother of accused No.1. All the accused surrounded. Deceased Dinesh was talking with the accused. At that time accused No.2 Ramaswamy told the other accused that they would not leave deceased Dinesh otherwise they would be put into trouble. Accuse No.1 Soma removed knife from his waist and stabbed Dinesh on his stomach just below the chest. He can identify the said knife which is M.O.12. He can identify the pouch M.O.13. Accused No.4 Muniraju and accused No.8 Lokesh caught hold deceased Dinesh and made him to fall on the ground. Accused No.3 Manjunatha took out a knife and sliced the neck of deceased Dinesh. He can identify the knife which is as per M.O.14. Accused No.9 Ramachandra picked cement block from the ground and thrown on the head of Dinesh. He can identify the same which is as per M.O.6. Accused No.13 Munikrishna picked stones from the ground and thrown the same on the head of deceased Dinesh. Accused No.12 Manjunath also picked a size stone from the ground and thrown on the head of 24 deceased Dinesh. He can identify the said stones, which is as per M.Os.7 and 8. When they went near the said shop found that Dinesh and Prasanna were dead on account of the injuries. Their clothes were blood stained. All the accused went away from the spot. Then himself, P.W.2, C.W.4 came near the house of deceased Dinesh and informed the matter to his mother. He can identify the jerkin and shirt of deceased Dinesh, which are as per M.Os.16 and 17, banian as per M.O.18, Kacha as per M.O.19 and pant as per M.O.20. He can also identify the blood stained clothes of deceased Prasanna which are as per M.Os.21 to 24.
In paragraph No.20 of the cross-examination by the defence counsel he deposed that police called him to his mobile phone and asked him that he has to give evidence. The phone number to which the police contacted him is saved in his mobile phone. He would like to say that police have phoned him to his mobile phone bearing No.9438114280. The mobile having the above connection is in his house in Guntur and it is with his paternal uncle at his house at Guntur while he has provided the said number to the police 25 who recorded his statement. The place of incident is at the distance of 3 to 4 kms. from the office of Dinesh and the place of incident is at the distance of 500 mtrs. from Panathur main road. One could see the place of incident by standing on the Panathur main road. He has heard the conversation between accused No.2 and Dinesh. At the time of said conversation he came to know about the teasing of the girl however he does not know the boys who teased the girls. He denied the suggestion that he has not stated before the police that himself, deceased Dinesh, Prasanna, P.W.2 N.V.Hegde, C.W.4 Idayaraj were proceeding to Kadubisanahalli by Santro car belonging to deceased Dinesh. He further deposed in the cross-examination that it was about 10.00 p.m. while he went to the house of P.W.1 to inform about the incident. P.W.1 his mother was present in the house while he informed the incident. However, P.W.5 has not come to the house of P.W.1 on that night. P.W.2 and C.W.4 not come to the house of P.W.1 for informing the incident. He has not informed P.W.1 regarding the particular act of particular accused at the incident. On the next day 26 morning at about 7.00 a.m. while P.W.1 was in his house he has given the details of the incident. On the date of incident he stayed in the house of P.W.1. He was having the intention to intimate the incident immediately to the family members of the deceased. At the relevant time he was not having mobile phone which he has put for charging. Therefore, he was not able to intimate the said incident to the family members of Dinesh and Prasanna. It was about 9.30 p.m. while he reached the spot. While all the persons went away from the spot he went to the spot. He further deposed that the police shown above 8-9 persons to him and other witnesses and asked them whether they committed the offence. He cannot say the names of above 9 persons. However, he can show two or three persons and could not show all the 9 persons among the accused. He denied the suggestion that they have not witnessed the incident and not having any knowledge regarding the incident. They were taken to the police station 8 days after the incident and the police in collusion with P.W.1 have concocted the story of him witnessing the incident and as such, his statement came to be created. 27
9. Looking to the oral evidence of P.Ws.2 and 3 who claims to be the eyewitnesses to the incident, there is no consistency in the evidence of these two witnesses. Apart form that, their evidence show that immediately after the incident they went to the house of deceased Dinesh, informed about the incident to P.W.1, the brother of the deceased Dinesh and also to the mother of the deceased. This goes to show that immediately after the alleged incident and before filing the complaint under Ex.P1, P.W.1 was having the knowledge about the incident as deposed by the eyewitnesses. If that is so, while lodging the complaint at about 10.50 p.m. during the night P.W.1 supposed to have mentioned the names of the two eyewitnesses, because according to the evidence of P.Ws.2 and 3, they went to the house of P.W.1 informed P.W.1 and the mother of P.W.1 about the incident. It has also come in their evidence that they also went to the house of Prasanna informed P.W.5 Prakash who is the brother of deceased Prasanna. Therefore, his evidence clearly gives an impression that even much earlier to filing of the complaint under Ex.P1, he was apprised about the incident 28 by P.Ws.2 and 3. In that situation, necessarily the names of P.Ws.2 and 3 ought to have been mentioned in the complaint Ex.P1. Therefore, non-mentioning of the names of P.Ws.2 and 3 in the complaint under Ex.P1 at the earliest point of time is not properly explained by the prosecution.
10. It is the case of the prosecution that the incident took place at about 9 to 9.30 p.m. on 2.4.2008 and P.W.2 has deposed in his evidence that there was electricity street light, so also, in the light of the shop of brother of accused No.1 they have witnessed the incident. However, P.W.3 in his evidence, has not referred either in the chief or in the cross- examination as to how he witnessed the incident. In this connection, learned Addl. SPP submits that P.W.16, the Investigation Officer has deposed in his evidence that when he went to the spot there was street light. P.W.16 came to the spot when the incident was over. Therefore, even if P.W.16 has deposed in his evidence that there was street light when he went to the spot, it will not come to the aid and assistance of the prosecution case. The material point for our 29 consideration is, when the alleged incident took place, at the spot whether there was electricity light or not. In this connection, it is clear from the prosecution material, so also, from the evidence of P.W.16, the Investigation Officer that he has not given any requisition to the electricity department to know whether there was electricity supply at the relevant point of time when the incident took place. Even he has not recorded the statement of people of the electricity department and there is no requisition to the Engineers of the KEB authority to prepare the sketch of the spot. However, rough sketch map was produced as per Ex.P24. We have perused the same. There is no mention in the said sketch regarding the electric pole nearby the scene of occurrence. If really there was electric pole having light, necessarily the same could have been mentioned in Ex.P2, the spot mahazar. We have perused the contents of Ex.P2, the spot mahazar. Coming to the last portion of the said mahazar, while recording the boundaries of the spot, it is mentioned that on the eastern side there is a petty shop of one Sampangi, on the western side residential house of one Chikka Muniyappa and at the 30 distance of 25 ft. there is one public borewell and to the north and to the South Kadur 2nd cross road. The next sentence is very important wherein it is stated that while preparing the panchanama as it was night, they secured gas light, battery (search light) to the spot and so also, it is mentioned that (electric) light through which they have conducted panchanama.
11. Therefore, perusing the contents of the spot mahazar (Ex.P.2) regarding the source of light at the spot is concerned, we have already observed above that in both the spot mahazar (Ex.P.2) and rough sketch (Ex.P.24) produced in the case, there is no specific mention regarding the existence of the electrical pole in the said place.
12. Apart from that, we have also observed referring to the contents of spot mahazar (Ex.P.2) wherein it is mentioned that gas light and battery (search light) were also secured from the said place. This raises a reasonable doubt in the mind of the Court as to whether there was really such electric 31 street light when the alleged incident took place. Even if it was there, again the next question is that whether it was so sufficient in order to identify a person clearly without any sort of defect. These aspects are not satisfactorily explained by the prosecution. We have also observed regarding the submission of the Additional SPP referring to the evidence of Investigation Officer (P.W.16) that he has deposed that there was electric light in the said place. His evidence will not give assistance because he comes to the spot after completion of the incident.
13. We can also verify the evidence of P.Ws.2 and 3 referring to the evidence of the Investigation Officer (P.W.16). Investigation Officer (P.W.16) in his evidence in the examination in chief has stated in detail about the investigation that he has conducted i.e., the arrest of the accused persons, seizure of weapons under the mahazar and also regarding recording of the voluntary statement from the accused persons. But in the cross examination, the Investigation Officer (P.W.16), in para No.29 of deposition, has 32 admitted the suggestion that in Ex.P.1, it has been incorporated that one Shekar informed P.W.1 regarding the incident. He had not recorded the statement of the said Shekar. However, the witness volunteers that since he was not available, therefore, his statement was not recorded. However, he had not disclosed in CD regarding the non availability of Shekar in spite of his efforts. He enquired P.W.1 regarding the availability of the said Shekar who was also not able to trace said Shekar.
The Investigation Officer (P.W.16), in para No.30 of the deposition has admitted that P.W.1 is not an eye witness. According to Ex.P.1, P.W.1 received the information from the said Shekar. P.W.16 further admitted the suggestion that the names of P.Ws.2, 3 and C.W.4 were not found place in Ex.P.1 as the eye witnesses to the incident. He has denied the suggestion that till the arrest and remand of all the accused, he had not recorded the statements of P.Ws.2, 3 and C.W.4. He has further denied the suggestion that he had not recorded the statements of P.Ws.2, 3 and C.W.4 either on 33 3.4.2008 or on 4.4.2008, as such, he had come up with the false evidence to that effect.
The Investigation Officer (P.W.16), in para No.30 of the deposition has admitted the suggestion that accused Nos.1, 3, 5 to 11 were sent to the ACMM along with the remand application on 6.4.2008. The remand application is marked as per Ex.D.1. He has admitted the suggestion that along with Ex.D.1, submitted CD extract which is marked as per Ex.D.2. It is further admitted that he had mentioned in Ex.D.1 regarding the progress of the case from registering the case till the arrest of the accused and their production before the ACMM including the recoveries. It is further admitted that in Ex.D.1, he had not stated regarding recording the statements of P.Ws.2, 3 and C.W.4. Witness volunteers that he has incorporated the said fact in the CD dated 3.4.2008.
14. Therefore, looking to the cross examination of the Investigation Officer (P.W.16), when he has stated that in the remand application (Ex.D.1) he has shown the progress made in the case including the arrest of the accused persons and 34 their production before the ACMM Court including the recoveries, he was supposed to mention regarding the recording of statements of P.W.2 and 3, the alleged eye witnesses, if really their statement came to be recorded on 3.4.2008 itself. Therefore, this is also one of the circumstances which supports the defence of the accused that in reality they have not at all personally witnessed the incident and they have been planted by the prosecution to suit their case.
15. Regarding non showing of the names of eye witnesses P.Ws.2 and 3 in the inquest mahazar proceedings are concerned, the learned Addl. SPP has relied upon the decision of the Apex Court about which we have already made reference above. It is no doubt true that the principle enunciated in the said decision is that even if the names are not stated in the inquest mahazar proceedings, that itself will not vitiate the case of prosecution. But the said principle is with reference to the factual matrix involved in a particular case. Therefore, the factual matrix involved in each 35 individual case is to be looked into for application of the principle. It is no doubt true that normally even if it is not stated in the inquest mahazar proceedings, the same need not have to be considered. But in the case on hand, it is the specific evidence of P.Ws.2 and 3 that immediately after the incident, they went to the house of both Dinesh as well as Prasanna and informed their family members and one of the eye witness had gone to the extent of deposing before the Court that the whole night, he stayed in the house of Dinesh. When they narrated about the incident, it cannot be presumed by the Court that they have not stated the names of the alleged eye witnesses P.Ws.2 and 3. When they have brought to the notice of the complainant and family members of Dinesh so also to the notice of P.W.5 Prakash and to the family members of Prasanna, the complainant (P.W.1) ought to have mentioned the names of these alleged two eye witnesses in the complaint. Therefore, non mentioning of their names in the complaint (Ex.P.1) as well as in the inquest mahazar proceedings of both Dinesh as well as Prasanna, under such circumstances, is concerned, there is no 36 acceptable explanation placed by the prosecution. If all these things are put together and re-appreciated the cumulative effect of oral evidence of P.Ws.2 and 3 and Investigation Officer (P.W.16), here again the reasonable doubt arises in the mind of the Court about the presence of P.Ws.2 and 3 at the spot when the incident was going on.
16. We have already discussed about the source of light. Even with regard to the source of light, there is no worth believable material placed by the prosecution that in the said street light, P.Ws.2 and 3 witnessed the incident during that period and all these aspects were properly considered by the learned Sessions Judge in his judgment.
17. With regard to the recoveries effected, the Investigation Officer (P.W.16) in his evidence has deposed that he has recorded the voluntary statements of all the accused. But the materials go to show that the recoveries are at the instance of accused Nos.3 and 7. But even that recovery has to be accepted or not, is a question which we have to examine. The materials show that M.Os.12 and 13 are said 37 to have been seized from the spot under the spot mahazar (Ex.P.2). But looking to the oral evidence of Naveen Hegade (P.W.2), he has clearly deposed in his evidence that after assaulting both the deceased, all the accused persons ran away from the place holding the weapons. If really, he is the eye witness and if his evidence is to be believed, then in that case, the contents of Ex.P.2 goes to show the falsity to the extent of M.Os.12 and 13 (knife and pouch of knife). Regarding the recording of voluntary statement of accused No.1 is concerned, in para No.34 of his deposition, Investigation Officer (P.W.16) has stated that after the recovery of knife from accused, he had recorded the voluntary statement. Therefore, this itself goes to show that the alleged recovery of knife from accused No.1 is not at his instance and not as per the alleged voluntary statement. If recovery was already made, there was no reason for recording the voluntary statement of accused No.1.
18. Apart from that, so far as recording of the voluntary statements are concerned, again there is no consistency in 38 the evidence of the prosecution witnesses. Here, we are referring to the evidence of Investigation Officer (P.W.16). In para No.25 of his deposition, P.W.16 has stated that he had seen Ex.P.2 where there was the endorsement of the ACMM dated 5.4.2008. Like wise, he has seen P.F. as per Ex.P.25 where also there was an endorsement of ACMM dated 5.4.2008. He had seen the mahazar as per Ex.P.14 wherein also there was an endorsement dated 5.4.2008 of ACMM, Bangalore. He has further deposed that he had seen P.F as per Ex.P.30 wherein he had seen the endorsement of ACMM dated 5.4.2008. The above documents were delivered to the ACMM. Exs.P.2, 14, 25 and 30 were earlier submitted to the ACMM and they were not sent along with the charge sheet. In para No.26 of his cross examination, P.W.16 has deposed that Exs.P.14 and 30 were sent to the ACMM on 4.4.2008. He has further deposed that only at the time of his cross examination, he got realized that Exs.P.2, 14, 25 and 30 reached the ACMM on 5.4.2008. He admitted the suggestion as true that the ACMM has endorsed on Exs.P.17 to P.19 and P.Fs. as per Exs.P.40 to P.42 on 9.4.2008. He has denied the 39 suggestion that he has produced these documents before the ACMM on 9.4.2008. He has denied the further suggestion that he has sent Exs.P.2, 14, 25 and 30 on 5.4.2008. He has further denied the suggestion that he had prepared Exs.P.2, 14, 25 and 30 on 5.4.2008.
In para No.31 of his cross examination, Investigation Officer (P.W.16) has deposed and admitted the suggestion as true, that in Ex.D1, he has stated that the long was recovered at the instance of accused No.8. He has further admitted as true that the said fact was also incorporated in Ex.D.2. It is admitted as true that long was not recovered from accused No.8. He has further admitted the suggestion as true that in Exs.D.1 and D.2, it has not been incorporated that the long was recovered from accused No.7. Witness volunteers that on account of over sight, accused No.8 is mentioned instead of mentioning accused No.7.
In para No.32 also, the Investigation Officer (P.W.16) has deposed that after the arrest, he prepared the notices of the arrest to the relatives of the accused. Such notice in connection with accused No.3 is marked as per Ex.D.3. He 40 has admitted the suggestion as true that in Ex.D.3, five is corrected as six. In Ex.D.3, the time of arrest is mentioned as 5.15 a.m.
19. Looking to this portion of cross examination of Investigation Officer (P.W.16), it goes to show that he has not sent the documents to the ACMM Court on the day he prepared the document. He has admitted his mistake also and the correction made regarding the figures.
20. Regarding the items/articles which are said to have been seized by the Investigation Officer (P.W.16), in para No.39 of cross examination, he has admitted the suggestion as true that he was supposed to send the articles seized to the FSL without undue delay. He has further admitted the suggestion as true that by 6.4.2008, he was in custody of all the articles which he sent to the FSL for the examination. But according to him, there was no delay in sending the articles to the FSL for examination. He has denied the suggestion that he had taken one month time for sending the 41 above articles, perhaps during that time, the blood group of the deceased was ascertained.
21. So far as delay in sending the articles is concerned, we have perused the evidence of G. Manjunath (P.W.19), who is H.C. No.3750, HAL Police Station. In his deposition, P.W.19 has stated that on 5.5.2008 at about 8.00 a.m., while he was in the police station, police inspector asked him to carry 43 sealed articles to the FSL, Bengaluru. Accordingly, he carried 43 sealed articles to the FSL. So the evidence of P.W.19 indicates that sending of these articles to FSL is after the lapse of 30 days from the date when the Investigation Officer (P.W.16) was having the custody of those articles. Therefore, they were not immediately sent to the FSL without waiting any time and there is lapse of one month in sending those articles to the FSL.
22. We have perused the documents FSL report (Ex.P.21) and the serology report (Ex.P.52). It is no doubt true that as per Ex.P.21, out of 43 sealed articles sent, only 42 two articles i.e., articles at Sl. Nos.2 and 10 were not having the blood stains and in respect of rest of the items/articles, it is mentioned that they were having the blood stains. Ex.P.52 goes to show that the said articles were stained with human blood and grouping is also mentioned by the laboratory as 'AB' blood group. It is true that out of the articles sent, the clothes of Dinesh and Prasanna so also the alleged recovery of articles from the accused persons were said to have sent to the FSL for the purpose of examination. Even if the articles are said to have contained the human blood with 'AB' grouping, in the absence of the eye witnesses, that itself is not sufficient for the prosecution to establish that it is the case against the accused persons. Because we have also discussed and mentioned in the above paragraphs that the evidence of P.Ws.2 and 3 is not worth believable and that they are not the eye witnesses to the incident. These materials were considered by the learned Sessions Judge correctly and he has rightly came to the conclusion in disbelieving the evidence of P.Ws.2 and 3 that they are the eye witnesses to the incident.
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23. So far as the evidence of P.W.1, who is the own brother of the deceased Dinesh is concerned, he has lodged the complaint under Ex.P.1 and even according to the Investigation Officer (P.W.16), P.W.1 is not the eye witness and therefore, his evidence is hear say.
24. Considering all these aspects of the matter and re- appreciating the entire material, we are of the opinion that we do not find any illegality in the judgment and order of acquittal passed by the learned Sessions Judge. There are no valid and justifiable grounds for this Court to interfere with the judgment and order of acquittal passed by the learned Sessions Judge. There is no merit in the appeal. The appeal is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE Bkp/Cs